England and wales: fair trial analysis and the presumed admissibility of physical evidence

In England and Wales the Police and Criminal Evidence Act of 1984 (PACE) introduced two exclusionary rules which have taken their place in a judicial landscape, where, traditionally, all relevant and credible evidence was always admissible, regardless of the legality of its acquisition. One rule excludes statements or confessions obtained through “oppression” which goes beyond a rule which previously excluded confessions obtained as a result of torture, which nonetheless could be excluded under exercise of the judge’s traditional discretion to exclude evidence which lacks credibility. But the most important rule, is that of Article 78 PACE, which calls upon the judge to balance all of the circumstances of the case, the seriousness of the violation in the gathering of evidence, the seriousness of the crime, the interest violated, among other things, in determining whether the admission of the evidence “would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”. This “fair trial” test has now been applied for nearly 30 years and has led to exclusion, for instance, in cases where the right to counsel has been violated, but virtually never in cases involving the violation of the right to privacy. English courts also never exclude physical evidence which is the fruit of an illegal search, or even an “oppressive” interrogation.