made as a result of the exercise by him of a discretion based upon the particular circumstances of
the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the
proceedings. The circumstances of each case are almost always different, and the judges may well
take different views in the proper exercise of their discretion even where the circumstances are
similar. This is not an apt field for hard case law and well-founded distinction between cases.
My Lord, it then cites the case of R. v. Quinn, an identification case;
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, or where there
has been an abuse of process, e.g. because evidence has been obtained in deliberate breach of
procedures laid down in the official code of practice.
My Lord, it moves on from there to paragraph 15-420. My Lord, this really now comes to the nub
of the matter. My Lord, if one looks at 15-420, it says;
Before the Police and Criminal Evidence Act, in English, as opposed to Scots law, the method by
which evidence was obtained was strictly irrelevant. Therefore evidence was admissible which had
been stolen or obtained by an illegal search. But the authorities under the P.A.C.E. Act show that
evidence obtained improperly or by a trick may be excluded, either because the confession which
follows the impropriety may be rendered unreliable, or because an admission of the evidence would
have such an effect on the fairness of the proceedings that the court ought not to admit it.
My Lord, it cites the case of R. v. Mason. I have that authority here, but if I just read it from
In R. v. Mason the defendants conviction for arson was quashed because police officers tricked
the defendant into making a confession. They told him and his solicitor, untruthfully, that his
fingerprint had been found on fragments of a bottle used in starting the fire. The trial judge had
wrongly admitted the evidence. He failed to consider, in the exercise of his discretion under Section
78, the deceit.
My Lord, that was the case where the police officers lied to the defendant who had been arrested,
and they told him that they found his fingerprint on a bottle. That was totally untrue. They had no
such evidence at all and they lied to both the defendant and to the defendants solicitor, and
thereafter he made an admission.
The Court of Appeal ruled in that situation that that was quite wrong. The evidence should not have
been admitted having been obtained by this trick and this deceit. My Lord, the next case referred to
is R. v. Jelen and Katz and the appeal was dismissed.
The Court of Appeal emphasised that the circumstances of each case considered for the purposes
of Section 78 were almost always different. In the R. v. Jelen and Katz one of the defendants, D,
had pleaded guilty to an offence of conspiracy to commit false accounting. He had been the first to
be arrested. He admitted his part and incriminated the two persons, J and K, who subsequently
became his co-defendants.
At the time of Ds arrest the police took the view that there was insufficient evidence to justify
arresting and charging J, but that if they interviewed him they would have to caution him. In these
circumstances they sought and received the assistance of D, who agreed to meet with J while
wearing a concealed tape-recorder. Such a meeting took place and the tape recording was admitted