Criminal Appeal Lawyers



Unfair evidence and the right to a fair trial

Article 6 of the European Convention on Human Rights provides all persons with the right to a fair trial. Fairness is at the heart of all criminal proceedings. Sometimes, however, prosecutions seek to introduce inherently “unfair” evidence into the criminal process. When the Judge allows such evidence to be used, it is often difficult to challenge. This creates obvious unfairness and can have devastating consequences on the prospect of an acquittal.

This article will explain what the legal definition of unfair evidence is, what should be done in the course of a criminal trial to exclude that evidence, and finally, what can be done if you have been convicted on the basis of unfair evidence.

What is “unfair” evidence?

Lord Lane C.J. in the case of R v Quinn Crim L.R. 581 stated the following in relation to criminal trials:

“…The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if… all relevant evidence [is heard] which either side wishes to place before the court, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.”

Unfair evidence deprives the Defence of being in a position to properly scrutinize what is being introduced. Miscarriages of justice can occur. Unfair evidence can come in a variety of forms but incorporates anything which on the face of it deprives a defendant of a fair trial.

Discretion to exclude unfair evidence

Fortunately, there is a safeguard against unfair- ness in all criminal proceedings. Section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) provides the Court with a discretion to exclude any Prosecution evidence if:

“…it appears to the court that, having regard to all the circumstances, including the circum- stances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the pro- ceedings that the court ought not to admit it.”

The key consideration is whether admitting a certain piece of evidence into the proceedings would render those proceedings as a whole unfair. This is a two-stage test. It is not always enough to demonstrate that the circumstances under which the evidence was obtained was unfair. The test usually will only be satisfied if in addition to the circumstances being unfair, admitting the evidence would have an adverse impact on the fairness of the proceedings.

What types of circumstances could be considered unfair?
Section 78 will usually be invoked to exclude evidence which has been obtained by an improper act on the part of the police, or if evidence has been obtained in bad faith. The following are merely examples of circum- stances which could fall within the remit of Section 78:

  • Oppressive or aggressive questioning by the police;
  • Evidence obtained in breach of the PACE Codes of Conduct;
  • Evidence obtained in the absence of an appropriate adult (if the accused was entitled to one); l Evidence obtained through an unlawful search; l Evidence obtained by trickery, or by deception; l Breaches of the European Convention on Human Rights;
  • Breaches of the Codes of Practice issued under PACE;
  • Bad faith on the part of the police.

However, Section 78 can also be used as a general non-specific safeguard against unfairness and is an argument often relied upon by the defence to seek to exclude all sorts of evidence including bad character and hearsay evidence.

When in criminal proceedings does Section 78 apply?
Applications to exclude unfair evidence have been made in relation to a wide range of evidential material. That material could include confes- sions, identification evidence, or alibi notices.

How is unfair evidence excluded?

Usually, the Defence will make an application in court to the trial judge in the absence of the jury stating the reasons why certain ‘evidence’ should not be admitted. The application is usually made just before the evidence is due to be put before the jury. The Prosecution may respond. It is then up to the trial judge whether or not to allow the evidence.

Can the admission of unfair evidence amount to a ground of appeal?
The test that the Court of Appeal applies in deciding whether or not to allow an appeal is whether or not the conviction is “unsafe”. This is an excep- tionally high threshold, however, the Court of Appeal has previously allowed appeals on the basis that unfair evidence was wrongly put before the jury. Importantly, to succeed as a ground of appeal, the admission of that evidence must have had an impact on the jury’s verdict.