Criminal and Civil Justice - Essay Example

al rule regarding admissibility is set out in the case of R v Leathem1, which provides that the manner of obtaining evidence does not exclude admissibility. The test of admissibility is whether the evidence is relevant. However, whilst there is there is no rule of exclusion per se, it is open to the court to exercise its discretion under Section 78 of PACE. The main ground for challenging the admissibility of Jack’s statement under Section 78 will be “the circumstances in which the evidence was obtained”.

This is further supported by the decision in Matto v Wolverhampton Crown Court.2 Furthermore, breaches of the PACE accompanying Codes of Practice can also require the section 78 discretion to be used if such breaches are significant and substantial3. Under section 58 of PACE and paragraph 11.2 of Code C, detainees must be told of their right to legal advice. Jack was denied the right to legal advice. Whilst assault is a serious arrestable offence and section 116 of PACE permits delay of access to legal advice up to 36 hours, in order to rely on section 116, the police have to prove that they reasonably feared one of the contingencies referred to in section 58 (8) of PACE arising.

However, it does not appear that these were applicable to justify the delay of legal advice to Jack. Whilst a wrongful delay in obtaining legal advice will not render automatic exclusion of evidence under section 78, in the case of R v Alladice4, the Court of Appeal stressed that relevant factors under section 78 were whether the police acted in bad faith and whether the presence of a solicitor would have made a difference to the defendant. The restriction and denial of legal advice is in breach of Code C section 6.

5 and reflects adversely on the fairness of the proceedings. On this basis there are strong grounds to exclude Jack’s statement. With regard to Jack’s statement regarding Edward’s culpability for the offence, under the common law, as established in R v