In ensuring that a person has a fair trial, the court may exclude evidence, even though the evidence itself is admissible. The court may exclude any evidence in certain circumstances and has additional powers in relation to evidence obtained by confession. The courts’ powers to exclude evidence come generally from s. 78 of the Police and Criminal Evidence Act 1984 (and specifically in relation to confession evidence from s. 76(2) of that Act), although the courts also have common law powers to exclude evidence.
Where the suspect initially confesses to the offence, he/she may still plead not guilty, alleging that the confession was obtained by oppression and/or in circumstances that would render it unreliable or that it should be excluded as having been unfairly obtained. The courts are concerned with the reliability of evidence and often regard confessions as the least reliable way to prove a person’s involvement in an offence.
A confession, which is defined by s. 82 of the Police and Criminal Evidence Act 1984 (see below), is an out-of-court statement made by a person and therefore falls into the category of evidence known as ‘hearsay’ evidence. Hearsay evidence is inadmissible unless it falls within one of the statutory or common law exceptions.
Confessions are such an exceptional category and are admissible in evidence as outlined in s. 76(1) of the 1984 Act. However, evidence of confession may be excluded by a court under either s. 76(2) or 78 of the 1984 Act.
Section 76 of the Police and Criminal Evidence Act 1984 states:
(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
A ‘confession’ is defined by s. 82 of the 1984 Act, which states:
(1) In this Part of this Act—‘confession’ includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise;
A confession, therefore, is a positive action by the person making it. The person must use words or some other method of communication (e.g. nodding his/her head to a question, or a video tape of the suspect taking police to a murder weapon). Therefore confessions do not include silence by a person (although this may be relevant to special warnings, see chapter 2.10). It could include a filmed re-enactment of the crime (Li Shu-Ling v The Queen  AC 270).
The confession does not have to be a pure statement of guilt and can include the answers to questions asked in interview which are adverse to the defendant. In R v Z  EWCA Crim 191 the Court of Appeal considered the meaning of ‘confession’ for the purposes of the Police and Criminal Evidence Act 1984 in light of the Human Rights Act 1998. The court held that the decision as to whether or not a statement was a confession was to be made at the time it was sought to give the statement in evidence as opposed to at the time the statement was made by the person.
Section 76A (which makes provisions for exclusion similar to those under s. 76) states that so long as it has not been excluded by the court, that in any proceedings where a confession was made by one accused person it may be given in evidence for another person charged in the same proceedings (a co-accused). The key part of this subsection is that the co-accused must be ‘charged in the same proceedings’: for instance, in R v Finch  EWCA Crim 36, where one suspect pleaded guilty the House of Lords held that he was no longer a person charged or accused in the trial; accordingly, s. 76A of the 1984 Act did not apply and what he said to the police was not admissible.
22.214.171.124 The Exclusion of Confession Evidence
Section 76(2) of the Police and Criminal Evidence Act 1984 gives the courts a responsibility to exclude confessions where they have been obtained by oppression (s. 76(2)(a)), or where the court considers that they are unreliable (s. 76(2)(b)). There is also a general power (under s. 78 of the 1984 Act and at common law) to exclude any evidence that the court considers would be detrimental to the fairness of the trial if allowed, which can also be applicable to the exclusion of confessions. Once the defence raises the issue of oppression and/or unreliability, it is for the prosecution to prove that the confession was not obtained in such circumstances (R v Allen  EWCA Crim 1607).
126.96.36.199 Exclusion under Section 76 PACE
Section 76 of the Police and Criminal Evidence Act 1984 states:
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
Under s. 76(2)(a) a court is under a duty to exclude a confession where it has been, or may have been, obtained by the oppression of the person making the confession. This means that there must be some link between the oppressive behaviour and the confession. So for instance, if the confession was made before the oppressive behaviour, this would not justify exclusion under this subsection (it may, however, justify exclusion under the general power of the courts). Where a confession has been obtained by oppression, any later confession obtained properly may also be excluded from evidence (R v Ismail  Crim LR 109). It does not matter whether or not the confession is true; the issue under s. 76(2)(a) is how the person has been treated and whether any mistreatment led, or might have led, the person to make the confession. This issue is of particular importance in the interviewing of suspects. In looking at this the courts seem to take into account the nature of the person being interviewed. It was said in R v Gowan  Crim LR 821 that hardened criminals must expect vigorous police interrogation.
188.8.131.52 What is Oppression?
In R v Fulling  QB 426, the Court of Appeal held that oppression is:
[The] exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc, or the imposition of unreasonable or unjust burdens.
It is suggested by some commentators that oppression involves some kind of impropriety on the part of the police, which might be suggested by a deliberate failure to follow the PACE Codes of Practice, although a failure to follow the Codes is not of itself an automatic reason for excluding evidence. Given that the courts have occasionally excluded evidence even where the relevant Code of Practice has been followed, the converse does not appear to be true and it is possible that a court might conclude that treatment had been ‘oppressive’ under all the circumstances even though the Codes of Practice had been followed.
The oppression must have been against the person who makes the confession.
When the defence raise the issue of oppression, it will be for the prosecution to show beyond reasonable doubt (R v Miller (1993) 97 Cr App R 99) that this was not the case. For these reasons (as well as those of professional ethics) it is of great importance to comply with the PACE Codes of Practice. It is also important to keep records of how a case is investigated, together with the reasons for taking decisions during the course of the investigation so that the prosecution can present a case which demonstrates that there was no oppressive or improper conduct in obtaining the confession.
It is a question of fact on each occasion whether a person’s treatment was oppressive and whether there was any link between that person’s treatment and his/her decision to make the confession. It might be possible for the defence to use evidence against officers involved in the case who have allegedly ‘mistreated’ suspects in other cases (R v Twitchell  1 Cr App R 373).
It will be for the prosecution to satisfy the judge that the confession was made voluntarily; even where the confession is admissible a jury would still need to be directed that they should disregard the confession if they considered that it was or may have been obtained by oppression or in consequence of anything said or done that was likely to render it unreliable (R v Mushtaq  UKHL 25).
The legislation itself gives little guidance as to what will amount to oppression. For this reason it is necessary to look at the case law. Below are examples where the courts have held that the treatment of a person was ‘oppressive’:
• A person who was on the border of being mentally impaired, admitted the offence after denying it over 300 times because of the bullying manner of the questioning (R v Paris (1993) 97 Cr App R 99). This case does not mean that interviewers cannot go over the same point several times or even suggest to the interviewee that he/she is lying. However, Paris does suggest that this should be done in moderation and not to the point where it becomes oppressive.
• A person confessed but had been kept in custody longer than the court felt was justified and therefore unlawfully (R v Davison  Crim LR 442).
• The suspect was wrongly informed that he/she had been recognised when this was not true (R v Heron (1993), unreported).
• There was a failure to have an appropriate adult present (R v Silcott (1991) The Times, 9 December).
• The defendant was a choir master and the police had told him that if he did not make a statement they would have to interview all the members of the choir and this could disclose other offences on his part (R v Howden-Simpson  Crim LR 49).
• A confession was obtained where the person was being held without access to a solicitor (Barbera v Spain (1989) 11 EHRR 360).
• Interviews had extended over a three-hour period and were conducted in a manner that was persistent, aggressive and calculated to get a conviction as opposed to necessarily getting to the truth (R v Ridley (1999) 17 December, unreported). The court went on to comment that the manner in which the interviews were conducted was to be deplored and was an exploitation of a naïve man by methods which were unacceptable and prejudiced the fair conduct of the trial.
• A person had been kept in custody for 14 hours, had been interviewed four times before confessing and had been refused any visits from family (R v Silcott).
Under s. 76(2)(b) a court is under a duty to exclude a confession where it is, has been or may have been obtained in consequence of anything which was likely, in the circumstances that existed at the time, to render it unreliable.
When looking at whether a confession is reliable, the court will consider the circumstances as they actually were at the time and not as they were believed to be. For instance, if it was believed that a suspect was in a fit state to be interviewed but it later transpires that he/she was medically unfit, there is likely to be some doubt as to whether a confession made at that time is reliable. (The belief of the officers at the time of acting, however, may be relevant to any disciplinary matters.)
For instance, in R v Walker  Crim LR 211 the court held that the defendant’s mental state may be taken into account when considering the surrounding circumstances, regardless of whether it was known to the police. The prosecution bore the burden of proof to show that the confession was admissible. The court went further and said that s. 76(2)(b) was not restricted in its application to use by the police of oppression. It was not necessary to show that the confession was unreliable by reference to the old common law test of ‘threat or inducement’. A successful submission under s. 76(2)(b) does not require a breach of a Code of Practice.
Once again, it is for the prosecution to show (beyond reasonable doubt) that the confession is reliable once the question of unreliability has been raised by the defence.
In R v Fulling  QB 426 it was suggested that questioning had been:
… by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.
Thus the circumstances of a case can affect the reliability of the accused’s statement.
184.108.40.206 What is Unreliable?
It is a question of fact on each occasion whether the reliability of a person’s confession is in question as a result of something said or done. Below are examples where the courts have held that a confession was unreliable:
• No caution was given to the suspect, the suspect was not asked if he wanted his solicitor present and was not shown the note of the interview (R v Trussler  Crim LR 446).
• The PACE Codes of Practice were flagrantly breached (R v Delaney (1989) 88 Cr App R 338). Not all breaches of PACE will lead to evidence being excluded (Lariba v R  EWCA Crim 4878).
• A suspect who had just vomited was interviewed (any medical condition could affect the reliability of a confession; if in doubt the person should be examined by a doctor) (R v McGovern (1991) 92 Cr App R 228).
• The appropriate adult had a low IQ and was unable to assist the detained person (R v Silcott  Crim LR 765).
• In a case where the suspect was a vulnerable person, the fact that he/she confessed to the offence without an appropriate adult being called made the confession unreliable. The court found that had the adult been present, a solicitor would in all probability have been instructed and there was a realistic likelihood that the suspect would not have made any admissions (R v W  EWCA Crim 2799).
• An offer of bail was made subject to the suspect admitting the offence or, conversely, the suspect was told that he/she would be kept in custody until he/she admitted the offence (R v Barry (1992) 95 Cr App R 384).
• Psychiatric evidence suggested that the suspect suffered from a severe personality disorder and that her admissions in her interview were unreliable (R v Walker  Crim LR 211).
• A suspect had been forcibly overcome, and a confession was obtained in response to a question designed to elicit details of the offence from him without any prior caution having been administered (R v Allen  EWCA Crim 1607).
• A defendant who was told by his employer that if he admitted to the theft no further action would be taken, but if he did not admit it, the police would be called. The suspect admitted it; nevertheless, the manager called the police. The manager’s untrue inducement to the defendant made his confession unreliable, therefore the confession had been wrongfully admitted, which rendered the conviction unsafe (R v Roberts  EWCA Crim 2974).
220.127.116.11 Effect of Excluding Confessions
Often further evidence is obtained after a person makes a confession. If a court excludes all or any part of a confession, then this may impact on the value of the additional evidence obtained by the prosecution.
While the additional evidence obtained after a confession may be admissible, much of the value of the evidence may be lost because s. 76(5) of the 1984 Act prevents the prosecution from linking the discovery of the additional evidence to any confession which has been excluded.
If the additional evidence cannot be linked to the confession, then it might not be possible to link the evidence to the suspect (and the evidence may be excluded under s. 78 of the 1984 Act or at common law).
In the case of a murder, if a suspect confesses to the murder and tells the investigators where he/she has hidden the murder weapon, this would be good evidence that the person committed the offence. If the confession is excluded then, although evidence can be given that the weapon found is in fact the murder weapon, it will not be possible to show any connection between the suspect and the weapon. Therefore, unless there is some other evidence to link the weapon to the suspect (e.g. fingerprint evidence), the case may fail. The reason is that it would not be possible to say that the police went to the location where the weapon was hidden without at least implying that the suspect had indicated that it was there when interviewed. All that can be said is that the weapon was found at the particular location, which could be accessible to any number of people.
Section 76(4) of the Police and Criminal Evidence Act 1984 provides that the exclusion of such additional evidence is not affected by the exclusion of the confession. Even where a confession is excluded, it may still be admissible for other matters such as the fact that the accused speaks in a certain way or writes or expresses him/herself in a particular fashion. In such a case it would only be that part of the confession which is necessary to prove the point that will be admissible. Once again, this illustrates the point that evidence is often only admissible for a specific purpose.
2.6.3 Exclusion of Evidence Generally
The courts in England and Wales can exclude any evidence under certain circumstances. Those circumstances will usually be concerned with the way in which the evidence has been obtained or with the potential effect of allowing it to be adduced at trial.
Section 77 of the Police and Criminal Evidence Act 1984 states:
(1) Without prejudice to the general duty of the court at a trial on indictment with a jury to direct the jury on any matter on which it appears to the court appropriate to do so, where at such a trial—
(a) the case against the accused depends wholly or substantially on a confession by him; and
(b) the court is satisfied—
(i) that he is mentally handicapped; and
(ii) that the confession was not made in the presence of an independent person,
the court shall warn the jury that there is special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.
Section 77 of the Police and Criminal Evidence Act 1984 provides additional safeguards for those who suffer from a ‘mental handicap’. This is defined as being in ‘a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning’.
The test is an objective one. The court should consider medical evidence as to the actual mental condition of the suspect. The disorder must be of a type which might render a suspect’s confession unreliable and there must be a significant deviation from the norm. In addition, there must be a history of making admissions, which point toward or explain the abnormality of mind suffered by the suspect and are not solely based on a history given by the suspect.
18.104.22.168 Exclusion of Unfair Evidence
Section 78 of the Police and Criminal Evidence Act 1984 states:
(1) 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.
Section 78 is wider than s. 76 and applies to all evidence that the prosecution intend to produce in court.
When applying s. 78, the courts will look at the fairness of allowing the evidence to be admitted against the defendant.
Compliance with the Codes of Practice is vital. In Batley v DPP (1998) The Times, 5 March, the court said that where steps required by the Codes were not observed and where material was entered as evidence without those checks which formed an important aspect of the case, there was a real risk to the fairness of the proceedings against the defendant. This must be balanced against R v Parris (1989) 89 Cr App R 68, where the court held that a breach of the Codes is not an automatic exclusion of evidence. It is important to note that the court may take account of any changes to the Codes of Practice (even when changed after the person was in police detention) on the basis that the new Code reflects what is considered to be fair (R v Word (1994) 98 Cr App R 337).
In R v Samuel  QB 615 the court stated that it is undesirable to attempt any general guidance as to the way in which a judge’s discretion under s. 78 should be exercised. It is a question of fact in each case and, while s. 76 requires links with the treatment of the person spoken to, the only issue under s. 78 is whether it would be unfair to admit the evidence in court. Stanesby v DPP  EWHC 1320 (Admin) is a case that supports this position; this was a drink drive procedure where the defendant told the custody sergeant that he was taking medication for depression, which should have triggered an appropriate adult being called (Code C1.4). The Court held that each case had to be determined on its facts; the breath test had been properly administered, by persons acting in good faith, to somebody who appeared to understand, and in fact did understand, what was required of him; even if an appropriate adult had attended it would not have made any difference to the administration of the breath test. Under s. 78, admission of the breath test results would not have such an adverse effect on the fairness of the proceedings that they should be excluded.
22.214.171.124 Evidence which will be Excluded
It is therefore difficult to give specific guidance, but the following are examples of evidence that has been excluded:
• Evidence of a driver being over the prescribed limit where the officer did not suspect that the driver had alcohol in his/her body.
• Some cases of ‘entrapment’ where the court is not satisfied that the person would have committed such an offence had it not been for the action of the police/customs officers. The court may look to see whether the person was pressurised into committing the offence/providing information or whether, by some ruse, the person was given an opportunity of so doing.
• Informing the suspect and his/her solicitor that the suspect’s fingerprints had been found on items at the scene of the offence when this was not true.
• Undercover operations where the officers failed to record conversations in accordance with the PACE Codes of Practice.
• Failure by custody officers to inform a detained person of his/her rights.
• Interviewing a suspect without informing the person of his/her rights.
• Failing to provide the detained person with adequate meals.
• ‘Off the record’ interviews that were not recorded as required by the PACE Codes of Practice.
• Failing to make a contemporaneous note of a conversation.
• Failing to get an interpreter or appropriate adult.
• Interviewing a person suffering from schizophrenia without an appropriate adult being present (R v Aspinall  2 Cr App R 115).
• Identification of a suspect by police officers who had seen the person after he had been arrested and in handcuffs (R v Bazil (1996) 6 April, unreported).
• Failing to inform a suspect arrested in respect of one offence that it was proposed to question him/her in respect of another more serious offence or failing to ensure that he/she was aware of the true nature of the investigation (R v Kirk  1 WLR 567).
126.96.36.199 Exclusion at Common Law
Section 82(3) of the Police and Criminal Evidence Act 1984 retained the courts’ common law power to exclude evidence at its discretion (as to which, see R v Sang  AC 402). For evidence to be excluded at common law the court will not so much concern itself with how evidence is obtained, but rather the effect that the evidence will have at trial. The court can exclude evidence at common law where the prejudicial effect of the evidence on the defendant greatly outweighs its probative value.
In these cases, the courts are looking at the trial process itself, as opposed to the investigation, and therefore this power has less impact on how investigations should be conducted.
The issue of entrapment falls into two categories: that is to say, trying to obtain evidence relating to offences that have already been committed; and those cases where evidence is obtained of offences yet to be committed.
Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, [the judge] has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur.
(This is now subject to s. 78 of the 1984 Act but the principle still applies.)
188.8.131.52 Undercover Operations
One of the arguments often raised by defendants who are caught by undercover officers is that they were induced or pressurised into committing the offence by the officers and, as a result, they should not be prosecuted or the evidence of the officer(s) should be excluded.
In R v Loosely; Attorney-General’s Reference (No. 3) of 2000  UKHL 53, the House of Lords took the chance to set out the legal position in relation to these issues. Their lordships held that it is both unfair and an abuse of process if a person is incited (the predecessor of encouraging or assisting an offence (see Crime, chapter 1.3)), or pressurised by an undercover officer into committing a crime which the person would otherwise not have committed. If, however, the police officer(s) did no more than present a person with an ‘unexceptional opportunity’ to commit a criminal offence and the person took that opportunity, this would not amount to such an abuse of process.
An example of such an ‘unexceptional opportunity’ can be seen in R v Breen  EWCA Crim 1213, where police officers had attended the suspect’s address unannounced and asked for ‘blow’. The suspect gave the police his mobile telephone number and they returned the following day and were supplied with £20 worth of cannabis resin. The officers were invited to return at any time and they were supplied with drugs on subsequent visits. The Court of Appeal held that the judge had been entitled to find that the undercover officers had done no more than give the appellants an opportunity to break the law, of which each of them freely took advantage.
In Edwards v United Kingdom (2005) 40 EHRR 24, the European Court of Human Rights re-stated the rights of defendants who are to be prosecuted on the basis of evidence obtained by undercover officers, and highlighted the tensions between protecting the sensitive sources of that evidence while affording the defendant a fair trial.
• It is not acceptable for the ‘State’ (police officers or other agents) to lure its citizens into committing acts that are against the law and then to prosecute those citizens for doing so—this amounts to entrapment, a misuse of power and abuse of the courts’ process.
• If police officers acted only as ‘detectives’ and ‘passive observers’ of criminal activity that was to take place anyway, there would be no problem in drawing the line between what is allowable and what is not.
• However, some offences need a degree of active involvement by the police if those offences are to be successfully prosecuted. In such cases the police officers themselves become the reporters and witnesses of the offence as well as the investigators.
• The yardstick for judging the activities of the police in this regard is to ask whether the officers’ conduct preceding the offence was no more than might have been expected from others in the circumstances. That is, did they do no more than give the defendant the ‘unexceptional opportunity’ to commit a crime as described above? If the answer is ‘yes’, the consequences below are not relevant. If the answer is ‘no’, there are several potential consequences for any subsequent trial.
The trial judge’s task in such cases is to distinguish between legitimate crime detection and illegitimate crime creation (R v Byrne  EWCA Crim 1073).
• The greater the degree of intrusiveness into the ‘target’s’ life—the closer the courts will scrutinise the ‘proportionality’ of the operation.
• The courts will also look at the defendant’s personal circumstances including vulnerability and experience. What might be insignificant in terms of an inducement to one person may not be seen as so insignificant in relation to another.
In R v Winter  EWCA Crim 3493 the defendant (W) had planned to kill his estranged wife. To carry out his plan, W solicited the help of a friend (M). M introduced W to a friend (T) with the intention that T drive W’s car around areas with CCTV coverage to provide an alibi. T was in fact an undercover police officer. W was arrested in the living quarters of the public house where he had been hiding, and officers found a knife in his pocket. W argued that once the police became aware of his plan they should have arrested him immediately rather than embark upon further evidence-gathering by means of entrapment. The Court of Appeal held that police conduct that brought about state-created crime was not acceptable except where the individual concerned took the opportunity to break the law of his/her own free will. The court concluded that the jury were satisfied that W had formed the plan in advance of his encouraging M and T to join him but their presence had made the plan possible and did not amount to entrapment.
In R v Jones  EWCA Crim 1118 the police had received reports of graffiti being written in black marker pen on the toilets of trains and stations seeking girls of 8–13 years old for sex, offering payment and leaving a contact number. Police began an undercover operation using an officer posing as a 12-year-old girl. The undercover officer exchanged several texts with the suspect which clarified her age and arrangements for a meeting; the defendant sent the officer further text messages of an explicit nature including various sexual acts that he expected he would be able to perform on her. The Court of Appeal held that the police did not incite or instigate a crime but merely provided the opportunity for the defendant to commit a similar offence and provide evidence for a conviction. The officer did no more than pretend to be a child of a particular age. The police did not behave improperly in choosing the age of 12. It was the defendant who had asked the officer for her age, and he therefore believed that he was inciting penetrative sexual activity with a child under 13.
This is an area where the substantive criminal law overlaps with evidence and procedure. Evidential factors to consider in running an operation that involves forms of entrapment include:
• The nature of the offence, as some offences are difficult to detect otherwise. Therefore, the more difficult the offence is to detect without intrusive inducement from the police, the more such intrusion will be justifiable.
• What suspicion officers have that an offence of that kind would be committed in the locality, for example, the setting-up of a van containing cigarettes to see if someone took the opportunity to steal them (Williams and O’Hare v DPP  3 All ER 365). ‘If the trick had been the individual enterprise of a policeman in an area where such crime was not suspected to be prevalent, it would have been an abuse of State power’ (Lord Hoffmann in Attorney-General’s Reference (No. 3 of 2000)  UKHL 53).
The potential consequences are as follows:
• Courts have a general discretion to exclude evidence under the Police and Criminal Evidence Act 1984, s. 78.
• Courts also have a common law power to stay (discontinue) proceedings and order the release of a defendant where it becomes apparent that there has been a serious abuse of power by the State (R v Horseferry Road Magistrates’ Court, ex parte Bennett  1 AC 42).
• Courts also have a general duty to consider the fairness of any defendant’s trial under Article 6 of the European Convention on Human Rights (see General Police Duties, chapter 4.4). However, it should be noted that violations of Article 8 (right to privacy) will not by themselves usually give rise to exclusion of any evidence obtained as a result (PG v United Kingdom (2008) 46 EHRR 51).