Students often become confused when thinking and applying their knowledge in this area.
The Police and Criminal Evidence Act 1984 (PACE) is for all intents and purposes useless without the threat of consequences, otherwise it is merely guidance that the Police ought to follow.
Section 78 is the main provision that gives PACE its teeth. A failure by Police to adhere to the procedures set out under PACE could led to a criminal defence advocate asserting the evidence should not be admitted, as to do so would lead to a serious impact regarding the fairness of the proceedings.
Section 78 is all about whether the evidence has been obtained as per the procedures set out under PACE and allows for evidence that has not been gathered in this manner to be excluded as evidence and therefore weaken the Crown Prosecutions Services (CPS) case against the accused.
Section 78 has a wide remit and is a provision that can be utilised in relation to any piece of evidence that is being relied upon by the CPS to prove their case. Interestingly though, the burden of proof, both evidential and legal, in relation to asserting that evidence should not relied upon because it contravenes section 78, is on the defence. The defence must demonstrate that on the balance of probabilities the evidence in question, if relied upon, would have such an adverse impact on the fairness of the proceedings that it ought not to be admitted into evidence.
Section 76 on the other hand has a narrower remit. The first thing to notice is that it specifically relates to confession evidence. This section is all about whether the confession evidence is unreliable because of oppression or other behaviour including inducements. I often get students to think of the metaphor of the carrot and the stick. In other words, have the Police made threats to do something undesirable or have they already done something undesirable to the suspect which has had a bearing on them making the confession (the proverbial stick). Or on the other hand, have they made an inducement of some kind, the “if you do this for us, we will do this for you” type of situation (the proverbial carrot).
Section 76 does not give any mention to the word fairness. However, if a piece of evidence is deemed unreliable then arguably it would be inherently unfair to admit it into evidence.
Section 76 has a different regime in relation to the burden of proof. In relation to this section of PACE the defence have the evidential burden of needing to establish some evidence to support their argument that the confession evidence was obtained by oppression or is otherwise unreliable. Once this relatively low burden has been met, the burden of proof then switches to the CPS. The CPS then have the legal burden of proof, so must prove beyond reasonable doubt the evidence was not obtained by oppression or in other circumstances that would make the confession unreliable.
Those are some of the key differences between the two sections. It is imperative that you understand these and utilise the rules effectively dependant on the relevant facts.
Post written by Laura Webb, Barrister, Director and Senior Tutor