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My Lord, that sets out the principle, when the caution must be put. “A person whom there are
grounds to suspect of an offence must be cautioned.” Mandatory. “Must be cautioned before any
questions about it (or further questions if it is his answers to previous questions that provide grounds
for suspicion) are put to him for the purpose of obtaining evidence which may be given to a court in
a prosecution.”
So, my Lord, that is the starting proposition. My Lord, may I refer your Lordship now to paragraph
15-359, Volume 1 in Archbold.
JUSTICE BLOFELD: I suppose that is right. I am just looking at 10.1; “A person whom there are
grounds to suspect of an offence must be cautioned before any questions about it …” I can see your
entrapment argument. He is really not being asked about an offence that he has already committed,
they are testing him to see whether he is committing any offence.
MR. TANSEY: Mr Lord, with respect, in fact, what the prosecution are seeking to establish is that
he in fact knew this man, Viktor Oshcenko who had given them certain information which they were
relying on. So, my Lord, it is in relation to that matter. The first thing they wish to establish is whether
or not he knows this man, Viktor. So, my Lord, that is the start off position so far as what they must
do.
My Lord, may I refer you to paragraph 15-359, which is Section 78 of the Act which your
Lordship knows well:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to
rely to be given if it appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence would have such
an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
And Section 82. (3);
“Nothing in this part of this Act shall prejudice any power of a court to exclude evidence (whether
by preventing questions being put or otherwise) at its discretion.”
My Lord, it moves on then to the next page. (2) Applying Section 78. My Lord, it is paragraph 15-
364, just above that 15-363 where it says at number 7.
“There are two stages in the application of Section 78: first, the circumstances in which the evidence
came to be obtained; secondly, whether the admission of the evidence would have an adverse effect
upon the fairness of the proceedings. In considering fairness, a balance has to be struck between
that which is fair to the prosecution and that which is fair to the defence. But the final aspect of the
fairness test appears to relate only to the defendant: whether the admission of the evidence would
have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
My Lord, it is at 15-364. Applying Section 78: no general guidance, and your Lordship should see
the reference there to the case of R. v. Samuel. If you come further down that page it has;
For the effect of breaches of the Act or Codes, it says see 15-367, and it quotes the case of R. v.
Jelen and Katz, (1990) 90 Cr.App.R. 456, C.A., Auld J. giving the judgement of the court said;
“… the decision of a judge whether or not to exclude evidence under Section 78 of the 1984 Act is
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