M v Regina

Section 78 of the Police and Criminal Evidence Act 1984 addresses the fairness of criminal proceedings, not the personal-safety consequences of otherwise admissible evidence. The discretion may arise where evidence cannot be fairly evaluated, significant procedural safeguards have been breached, or the moral integrity of proceedings has been materially undermined. Evidence may nevertheless be admitted. Responsibility for assessing and addressing risks of violence or serious harm caused by disclosure rests with the prosecution authorities. Section 78, the Human Rights Act 1998 and the inherent jurisdiction do not empower the court to prohibit service or admission merely because disclosure may engage Articles 2 or 3 of the Convention.

The appellant was awaiting trial at Isleworth Crown Court with four family members on charges of controlling or coercive behaviour and holding a person in slavery or servitude. The prosecution intended to rely on evidence of his sexual orientation, including mobile-phone messages, as relevant to the complainant’s account and the context of the alleged abuse.

The Crown Court rejected an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence. It also directed a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996 and held that the hearing could take place privately without the co-accused. The appellant challenged those rulings, relying principally on fairness, data protection and Articles 2, 3 and 8 of the Convention.

1. Appeal. Leave to appeal was granted, but the appeal was dismissed.
2. Section 78. The evidence was plainly relevant and its examination and processing served a law-enforcement purpose. The absence of formal consent, poor record-keeping and the lack of a data-protection impact assessment did not materially affect the section 78 assessment. There was no bad faith, deception or compromise of the messages’ integrity.
3. The section 78 discretion is potentially engaged where the evidence cannot fairly be evaluated, where there are significant and substantial breaches of procedural safeguards, or where the moral integrity of the proceedings has been materially undermined. It does not provide a safeguarding mechanism against violence or serious mistreatment resulting from the service or admission of admissible evidence. The fairness of proceedings is distinct from the personal safety of a defendant or witness.
4. The court rejected reliance on section 3 of the Human Rights Act 1998 to give section 78 an unusual and far-reaching meaning. Nor did section 8 of that Act or the inherent jurisdiction empower the court to prohibit service or admission of the evidence. Articles 2 and 3 were not engaged vis-à-vis the Crown Court in this context. The obligation to assess and address any real and immediate risk rested with the prosecution authorities, subject to realistic and proportionate steps.
5. The Crown Court was entitled to order a preparatory hearing. The issue was novel, discrete, likely to arise, free of factual dispute and capable of causing the trial to proceed on a false footing if unresolved. The judge was also entitled, in these exceptional circumstances, to hear the application privately and ex parte the co-accused.
6. Before service, the prosecution was required to redact material so far as necessary to avoid needless identification of others, undertake risk assessments and take realistic protective steps, while informing the appellant’s representatives when the material would be served on the co-accused.

• Court of Appeal (Criminal Division): Leave to appeal was granted, but the appeal was dismissed.
• Isleworth Crown Court: The judge rejected the application to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984, directed a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, and permitted the hearing to take place privately without the co-accused.