Section 137 of the Evidence Act 1995 imposes a mandatory obligation to exclude prosecution evidence where its probative value is outweighed by the danger of unfair prejudice — it does not confer a residual discretion. A photographic identification array in which only one photograph matches a distinctive feature described by the witness (here, a goatee beard) has low probative value and high unfair prejudice, and must be excluded under s 137. The prejudice of flawed identification evidence is not diminished by the same flaws that reduce its probative value.
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