What was the UK's traditional position on such obtained evidence?
Admit any evidence (regardless of how it was obtained) + possibly punish rule-breaker
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What is UK's current position on such obtained evidence?
Evidence might be excluded in court's discretion
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What are the 2 extreme positions on illegally obtained evidence?
Always exclude it (due to loss of moral authority) vs. don't exclude it where it is reliable
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Discretion no.1: common law - which provisions preserves them?
s.82(3) PACE
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Does common law discretion allow you to exclude evidence that is more prejudicial than probative?
Yes: Christie
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When common law discretion is used to exclude evidence in trials involving co-defendants, what do judges have to be careful about doing?
Not look as though they are taking sides: Lawson
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Which discretion (no.2) can be used to exclude "unfair" prosecution evidence?
Court's discretion under s.78
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What are 2 big issues with s.78 wording?
Meaning of fairness + discretion is as to whether to exclude it (not as to whether it is unfair to admit it)
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When are CA reluctant to interfere with trial judge's discretion?
When powers have been properly exercised (even if different views are taken in very similar circumstances by different judges: Jelen)
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There are 4 general principles which emerge on the exercise of s.78 statutory discretion - what are they?
(1) courts are readier to exclude improperly obtained evidence where breach of rule undermines liability
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Give another of the general principles on exercise of statutory discretion
(2) courts are readier to exclude where authorities have deliberately flouted rules
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Another general principle for s.78 exercise?
(3) bigger breaches are more significant than smaller breaches
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Final general principle for s.78 discretion exercise?
(4) worse the crime, the less likely it is court will exclude evidence on basis of the way it was obtained
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General principle (1): where was the reliability of evidence undermined? How was it undermined?
Delaney: failure to keep records + undercover officer was used
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General principle (1): where was reliability of evidence affirmed, and why?
Christou (entrapment case): Ds applied themselves to the trick, rather than the trick being applied to Ds
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Give an example of general principle (2)
Mason (case on confessions): police deliberately lied to solicitor when pretending they have fingerprint evidence linking D to crime scene
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Give an example of general principle (4)
AG's Reference (No 3 of 1999): DNA was wrongly retained by police but this later linked D to **** (of which D was convicted using DNA) - evidence was admissible due to severity of crime
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In which ECHR/Portuguese case was D's conviction quashed? And why?
Texeria de Castro: police had no reason to think D was a drug dealer before starting investigation + no judicial supervision to authorise investigation (as required by law)
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Other cards in this set
Card 2
Front
Evidence might be excluded in court's discretion
Back
What is UK's current position on such obtained evidence?
Card 3
Front
Always exclude it (due to loss of moral authority) vs. don't exclude it where it is reliable
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