Section 78 of the Police and Criminal Evidence Act 1984 Essay -- common

To a man with a hammer everything looks like a nail. I would submit this is the case in regards to Section 78 of the Police and criminal Evidence Act 1984. The courts have been granted a tool and since its introduction have been wantonly applying it case after case. I will endeavour to get by that s.78 has been developed into the tool the courts sought as oppose to the tool they have been granted and the wording of the statute ignored. The point of s.78 has been glossed over and it has instead been utilized as if it were a subsection of s.76. Whilst unnecessary is perhaps the wrong term to use the purpose of s.78 has been defeated.I would first draw attention to how section 78 of charge per unit should be used. A judge has the discretion to use s.78 if the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The key issue here is that the exclusion has to relate to the fairness of the proceedings. Whilst is states tha t circumstance surrounding the manner in which the evidence was obtained are relevant, the modus operandiual evidence for its exclusion remains a question of the fairness of proceedings. An example of this can be found in the case of OLoughlin where the defendant would not be able to cross-examine the witness. This would be a strict application of s.78 where the fairness of the proceedings is adversely effected. Unfortunately cases like this are a rarity. Bernard Robertson directs us to a farsighted list of authorities in his article where the application of s.78 is inappropriate and/or wrong . Further to this he advocates his argument that crusade must proceed effect. The cause is the admission of the evidence and the effect is the unfair proceedings. Only after the cause (the ad... ...1994 98 Cr. App. R. 209 DPP v Marshall (Robert Dennis) 1988 3 All E.R. 683 M. A. Gelowitz, Section 78 of the practice of law and criminal evidence act 1984 Middle ground or no mans land?, L. Q. Rev. 327, 1990 at 329 M. A. Gelowitz, Section 78 of the police and criminal evidence act 1984 Middle ground or no mans land?, L. Q. Rev. 327, 1990 at 329 R May, Fair play at Trial an interim assessment of section 78 of the police and criminal evidence act 1984, Criminal Law Review, 1988 R v Harwood 1989 Crim. L.R. 285 Andrew L.-T. Choo, Entrapment and Section 78 of Pace, The Cambridge Law Journal, Vol. 51, No. 2 (Jul., 1992), pp. 236-238 Andrew L.-T. Choo, Entrapment and Section 78 of Pace, The Cambridge Law Journal, Vol. 51, No. 2 (Jul., 1992), pp. 236-238 R v Gill and Ranuana 1989 Crim. L.R. 358 R v Samuel 1988 2 WLR 920 R v Foster 1987 Crim LR 821