Evidence and Exclusion of Evidence
Confessions and exclusion
A confession (s.82 PACE) is admissible against its maker unless excluded under s.76(2): where it was obtained by oppression, or in consequence of anything said or done which was likely, in the circumstances, to render it unreliable. Exclusion under s.76 is mandatory where a ground is made out. Section 78 gives a discretion to exclude prosecution evidence on which it would be unfair to rely, having regard to all the circumstances, including how it was obtained; it is the usual vehicle for breaches of PACE or Code C. Confessions by co-accused are governed by s.76A.
Bad character
Under the Criminal Justice Act 2003, evidence of a defendant's bad character is admissible only through the s.101 gateways: agreement of all parties; adduced by the defendant; important explanatory evidence; substantial probative value on a matter in issue between the defendant and the prosecution (including propensity, s.103) or a co-defendant; correcting a false impression; or attacking another person's character. Non-defendants' bad character requires one of the three s.100 gateways.
Hearsay and safeguards
Hearsay is admissible under s.114 CJA 2003 through the statutory gateways (s.116 unavailable witnesses; s.117 business documents) or where the interests of justice require, but the court retains discretion to exclude under s.126 and s.78. Identification evidence requires a Turnbull direction; lies relied on as evidence of guilt require a Lucas direction; silence at interview or trial engages ss.34-35 CJPOA 1994.
Trap: treating s.78 as automatic exclusion for unlawfully obtained evidence; the court weighs unfairness, not police discipline. Rule of thumb: ask first whether the evidence is admissible under its own rules, then whether a discretion excludes it.