Character Evidence

Introduction

English criminal law provides several mechanisms for **excluding prosecution evidence** that would otherwise be admissible. This chapter focuses on the broadest and most frequently invoked of these — the **general discretionary exclusion under s. 78 PACE 1984** — and explains how it interacts with the mandatory exclusion of confessions under **s. 76(2) PACE 1984**, the exclusion of bad character under **s. 101(3) CJA 2003**, and the exclusion of hearsay under **s. 126 CJA 2003**. You will learn the **categories of challenge** under s. 78 (breaches of the PACE Codes, entrapment, improper identification, non-disclosure and bad faith), the **voir dire** procedure, and the link between s. 78 and the right to a fair trial under **Article 6 ECHR**.

Assessment focus

For the SQE1 FLK2 assessment, you must be able to apply **s. 78 PACE 1984** to realistic client scenarios. The examiner repeatedly tests three propositions: (i) that s. 78 is a **discretionary** power ('may'), not a mandatory one; (ii) that it applies **only to prosecution evidence** and cannot be used by the prosecution against the defence; and (iii) that a **breach of a PACE Code does not automatically lead to exclusion**. You should be able to distinguish s. 78 from the **mandatory** exclusion of confessions under s. 76(2), apply **R v Looseley** to entrapment, and identify the role of the **voir dire**. Questions are single best answer questions (SBAQs) set in client-based scenarios; you must **apply the s. 78 test** rather than merely recall it. This is a closed-book assessment.

Study tips

1) Memorise the **s. 78(1) test** verbatim: the court 'may refuse to allow' prosecution evidence if its admission 'would have such an **adverse effect on the fairness of the proceedings** that it **ought not** to be admitted'. 2) Remember s. 78 is **discretionary** ('may') and applies **only to prosecution evidence**. 3) **A breach of a PACE Code is a relevant factor but never automatic exclusion** — assess seriousness, bad faith, reliability and prejudice. 4) Contrast **s. 76 (mandatory, confessions, proof beyond reasonable doubt)** with **s. 78 (discretionary, all prosecution evidence)** — the two are **cumulative**, not alternatives. 5) Learn the **Looseley** entrapment distinction: an **unexceptional opportunity** is legitimate; **active incitement** justifies exclusion under s. 78 or a stay as abuse of process.