Admissible Criminal Evidence
It matters not how you get it; if you steal it even, it would be admissible in evidence” [per Justice Crompton in R v Leatham 1861] Discuss
When considering the above statement it is necessary to examine legislation with regard to the admissibility of evidence. The starting point is to look at section 78 of the Police and Criminal Evidence Act 1984 which allows the court discretion to exclude any evidence they deem to have been unfairly obtained. There have been several cases where the issue of illegally obtained material has been considered. This paper proposes to examine the cases where judges have both exercised their discretion and excluded the evidence as well as the times when such evidence has been allowed.
Within this framework consideration will be given of the factors that judges have taken into account when deciding whether or not to exclude such evidence. This will involve looking at policy issues in relation to the use of illegally obtained evidence in order to reach a conclusion as to whether in general terms the courts will opt to include or exclude such evidence.
In reaching a decision as to the uniformity of the application of this discretion consideration will be given to whether changes that have occurred with regard to the rights of the suspect under the Criminal Justice and Public Order Act 1994 have impacted on the admissibility of such evidence.
Although there have been many changes in the law with regard to the use of evidence that has been illegally obtained many judges still use the case of R v Sang  as a yardstick by which to measure whether evidence such be excluded. In this case Lord Diplock commented that
“(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.”(at p 437)
In this case the court following the comments made by Lord Diplock concluded that the judge would have no power to exclude the evidence on the basis that it had been obtained through the use of an agent provocateur. In many ways the decision whether or not to exclude illegally obtained evidence seems to centre on fairness. Sang remains as an authority of the rules on the exclusion of evidence as was demonstrated in the case of R v Nadir  where Lord Taylor CJ said that if a judge
“considers evidence the Crown wish to lead would have an adverse effect on the fairness of the trial, he can exclude it under s 78 of the Police and Criminal Evidence Act 1984….He also has a general discretion to exclude evidence which was preserved by s.82(3) of the 1984 Act which would allow the judge to exclude evidence he considers more prejudicial than probative.”
In the later case of R v Khan  4 All ER 426, Lord Taylor seemed to change his opinion of the use of Sang as an authority stating that
“Since, on any view, the discretion conferred on the judge by s 78 is at least as wide as that identified in R v Sang it is only necessary to consider the question of the exercise of discretion under s 78 – which is what the judge did.”
In general terms although the judge has the discretion to be able to rule the evidence as inadmissible it is more common for the courts to allow the evidence to be adduced.
Many judges are of the opinion that the effect of s78 does not make very much difference to the cases brought before the court as most judges seem to decide in favour of inclusion rather then exclusion of such evidence as was the case of R v Mason  and in the subsequent case of R v Samuel . Mason was later quashed on appeal when it was discovered that the only real evidence against the defendant was the confession and that this had been obtained by telling the defendant that his fingerprints had been found in glass near the scene, which was totally untrue. This decision was reached on the basis of interpretation of s78 where it was considered that there was bad faith and impropriety on the part of the police.
A similar decision was reached in the case of Matto v DPP where the officers persuaded the defendant to undergo a breath test despite the fact that they were conducting the test under circumstances in which they were not entitled to do so. The conviction was quashed with the judge stating that the bad faith of the officers in carrying out the test when they knew they were not entitled to had tainted the case as a whole. This case was distinguished from the case of Fox v Gwent  as in this case the officers were not aware that they were acting outside of there powers.
A further case where the court have ruled that the police were not acting in bad faith was the case of R v Alladice  in which the defendant confessed and the confession was allowed to be admitted to the court despite the fact that the police had wrongly refused to allow the defendant access to a solicitor. From all of the above it would seem that the court will only regard the police as acting in bad faith if there is clear evidence that the police deliberately deceived the defendant.
There are of course exceptions where the action of the officers was questionable and the courts have still deemed the evidence to be admissible as was the case in R v Christou . In this case undercover police officers set up a shop were they were supposedly selling jewellery. All transactions in the shop were secretly recorded which led to the arrest of the defendant for dealing with stolen goods and making incriminating statements. The judge held that the police had not incited the offences and there had been no unfairness in their conduct.
In the case of R v Smurthwaite andGill  the officers posed as contract killers and recorded conversations with the defendants who were attempting to hire the services of a contract killer to murder their spouses. The court regarded the officers as agent provocateurs but held that the officers had not incited the defendants to kill their spouses and therefore the evidence was admissible. In this case the judge stated that
“…the fact that the evidence has been obtained by entrapment, or by an agent provocateur, or by a trick, does not of itself require the judge to exclude it. If, however, he considers that in all the circumstances the obtaining of the evidence in that way would have the adverse effect described in the statute, then he will exclude it.”
In some instances evidence that has been obtained through impropriety has been excluded. Impropriety can occur were there has been a breach of criminal law or a breach of PACE. This was held to be the case in R v Khan  where surveillance devices had been placed on the premises of the suspect. It was argued that the placing of the equipment on the premises amounted to trespass by the police. The court however allowed the evidence to be admitted and the defendant was convicted.
In cases where impropriety is alleged most of these cases centre on the admissibility of confessions or incriminating statements. The reliability and admissibility of confessions is governed by s76 of PACE. The most common impropriety is the denial of access to legal representation. The failure to contemporaneously record interviews has also been a problem in the past.
One such case where the defendant was denied access to a solicitor was R v Samuel in which the defendant was arrested for burglary and after having been charged with one offence of burglary was denied access to a solicitor during which time he was interviewed again and confessed to a robbery. At the appeal the court held that the denial of the right to consult with a solicitor was a breach of s58 of PACE and of the Code of Practice on Detention and Questioning. As the judge had failed to exclude the confession at the original hearing the conviction for robbery was ordered to be quashed. The appeal court stated that even if the confession was reliable the breach of s58 rendered the confession as unfair.
Within the criminal justice system the gaining of evidence illegally is classed as one of the exclusionary rules where evidence is suppressed or defendantâ€™s rights are violated. Bentham (1827) argued that if you
â€˜exclude evidence you exclude justiceâ€™
He further argued that the solution to the problem was not to deprive the jurors of the evidence but to instruct them about the dangers presented by the evidence and allow the jury to decide for themselves whether to believe the evidence presented to them. Bentham stated that it was rather a contradiction for the court to declare their confidence in the decision of the jury whilst at the same time withholding evidence from that jury for fear of them reaching the wrong conclusion. Bentham stated that
If there be one business that belongs to a jury more particularly than another, it is, one should think, the judging of the probability of evidence: if they are not fit to be trusted with this, not even with the benefit of the judgeâ€™s assistance and advice, what is it they are fit to be trusted with? Better trust them with nothing at all, and do without them altogether
Bentham felt that exclusionary rules are
â€œinsults offered by the author of each rule to the understanding of those whose hands are expected to be tied by it.â€
He stated that relevant evidence should only be excluded when there was a risk of an inaccurate verdict without the use of the evidence. He went on to advocate
â€˜the abolition of all formal rules and a return to a â€˜naturalâ€™ system of free proof, based on everyday experience and common-sense reasoningâ€™.
In the case of R v Kearley  the House of Lords held that the evidence of telephone calls and visitorâ€™s to the defendantâ€™s house where they were asking for drugs was irrelevant or inadmissible as hearsay evidence. The primary evidence in this case came from two witnesses who had given evidence stating that the defendants were engaged in the sale of heroin. In this case the persons that came to the house or telephoned dealt with the police who were occupying the house at the time.
The evidence of those that had rang or had come to the house could only be used as hearsay evidence as there was no way of getting the persons to give direct evidence to the court. Initially the defendant was found guilty but this was overturned on appeal on the grounds that the judge should have directed the jury of the inferences that could be drawn from the evidence. The court stated that the defendants could not be found guilty on the basis of their association with the people who had rang or called at the house.
As with criminal law evidence can also be excluded in civil law cases under Civil Procedure Rules 32.1, though such exclusion is rare as the burden of proof in civil cases is significantly less then for criminal trials.
Choo (1989) argued that there are three possible rationales for the exclusion of evidence, these being compensation, deterrence and repute. Choo (1993) stated that judicial legitimacy was the most satisfactory basis for the exclusion of evidence. Ashworth (1977) disagreed with this stating that exclusion was on the basis of discipline, reliability and protection. Hunter (1994) agreed with this stating that discipline is similar to deterrence.
One of the main reasons for excluding evidence is on the basis of reliability. Where the reliability of the evidence is in question the courts will frequently opt to exclude the evidence from the proceedings. Bentham (1827) suggests that there is no need for total exclusion and that so long as a caution is issued with the presentation of the evidence the jury should be entitled to hear that evidence.
Choo (1989) believes that allowing the evidence to be disclosed to the jury when such evidence could be unreliable is an â€˜infringementâ€™ of the rights of the defendant. Choo states that such evidence should be excluded if it admission ‘would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it.’
From the above it can be concluded that the rules regarding the use of illegally obtained evidence are not uniformly applied. In some instances the court will exclude such evidence from the jury whilst in other cases the evidence will be admitted. It is clear from s78 that evidence that has been illegally obtained can still be submitted to the court if it can be proven to be reliable or if an unfair result would be achieved if the evidence where not presented to the court. The courts seem to place emphasis on the notion of fairness as fair play. This is applicable both in deciding whether to allow the evidence to be heard or whether the evidence should be withheld from the jury.
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Ashworth, A (1977) â€˜Excluding Evidence as Protecting Rightsâ€™  Criminal Law Review 723
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Bentham, J, Rationale of Judicial Evidence 15-16 (1827), London
Choo, A & Mellors, M, â€˜Undercover Police Operations and What the Suspect Said (or Didnâ€™t Say),  2 Web JCLI
Choo, A (1989) â€˜Improperly obtained evidence: a reconsiderationâ€™ 9 Legal Studies 261
Choo, A (1993) Abuse of Process and Judicial Stays of Proceedings (Oxford: Clarendon Press)
Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education
Glazebrook, P R, Statutes on Criminal Law, 2001, Blackstoneâ€™s
Hunter, M (1994) â€˜Judicial Discretion: Section 78 in Practiceâ€™  Criminal Law Review 558
Huxley, P, & Oâ€™Connell, M, Statutes on Evidence, 5th Ed, Blackstoneâ€™s
Murphy, P, Blackstoneâ€™s Criminal Practice, 2002, Oxford University Press
Smith. J C, The presumption of innocence (1987) NILQ 223 B
Stephen, Sir JF, A Digest of the Law of Evidence, 12th Ed, 1936, Art 147
Spencer & Spencer: Evidence Concentrate 4e
Chapter 4: Chapter 4
'Section 78 of the Police and Criminal Evidence Act 1984 empowers the court to exclude prosecution evidence if its admission "would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". However so far there has been little inclination to elucidate the principles which should govern the exercise of this discretion.' (Zuckerman (1989,352)).
Explain, with reasons, whether Zuckerman's comment is still valid today in relation to the discretionary exclusion of improperly obtained evidence other than confessions.
The scope of the question:
The comment invites you to review the case law on exclusion of evidence under s78 PACE and analyse the judgments to see if you derive a coherent set of principles. You should initially contrast the pre-PACE position, exempliﬁed by Sang , where the very existence of a discretion to exclude was left unclear. You will need to be familiar with the leading cases and also with academic comment, most of which has been critical of an overly cautious stance of the judiciary. Your introduction should stress the importance of the HRA 1998 and the subsequent more jurisprudential approach.
Arguments to suggest the statement is still valid:
- Apart from confessions, there are few cases where s78 has been applied to exclude evidence and thus, although the courts accept the principle that s78 may exclude entrapment evidence, for example, it is rarely applied. Also the test set out e.g. in Smurthwaite , are based on practical considerations rather than principle.
- Academic commentary has identiﬁed a possible structured approach to exclusion as being based on reliability, deterrence, compensating the defendant, providing a fairer balance between the state and defendant, and upholding the integrity of the criminal justice process.
- Reliability of evidence does provide a coherent thread in the cases- usually ensuring admissibility not exclusion – see Chalkley , Khan  – but this is a pragmatic not a principled stance.
- The case law suggests deterrence is not a recognised principle – see Mason (1988) – although it may have that indirect effect. It is difﬁcult to argue that police behaviour will be affected by an exclusion of evidence at a trial some time away.
- Public opinion would arguably not countenance acquittal of the obviously guilty to compensate for earlier police transgressions. The evidence exists and it might defy common sense to exclude it.
- Although the doctrine of abuse of process (see Looseley ) has operated more robustly than s78 to safeguard a principled approach . Note that the courts are reluctant to apply the doctrine to breaches of the Regulation of Investigatory Powers Act (2000) (RIPA), see Warren v Att-Gen of Jersey (2012).
- Breaches of Art. 8 do not lead to exclusion of evidence. See R v Button (2005) where a secret recording of a suspect in his cell had been made. The Court rejected the argument that it would be unlawful not to exclude evidence obtained in breach of Art 8. In R v Khan (2013) a covert recording was made in good faith but in breach of RIPA. There had been a breach of Art 8 but the judge had not erred in refusing to exclude evidence under s78. The test was fairness to the proceedings.
Arguments to suggest the statement is no longer valid:
On the other hand there is evidence to suggest that the courts have increasingly adopted a principled stance on s78:
- In Shannon  the court applied the test of the violation of a Convention right as one of the criteria for exclusion.
- In Looseley  the House of Lords acknowledged the importance of both the protective principle and the need to uphold the integrity of the criminal justice process.
- The ECHR and the HRA 1998 have led to an increasingly principled approach e.g. Allan v UK (2002), Texheira v Portugal (1998).
- Looseley  has demonstrated the close link between abuse of process and s78 grounds of exclusion.
Some academic commentators acknowledge that a blanket exclusionary practice would not be appropriate. Laudan (2008 p190) for example argues that false acquittals may result from excluding evidence because of the way evidence has been obtained. Others, however, call for the application of the principled approach which is suggested in the question. Ashworth for examples stresses the importance of protecting constitutional rights – citing the Canadian Charter of Rights and Freedom. Roberts and Zuckerman (2010p39) also recommend ‘refocusing trial judges’ training and trial management on the principled exercise of judicial discretion.
The legitimacy of the proceedings appears to be an increasingly important factor in deciding on admissibility as Looseley demonstrates. A v Secretary of State for Home Department (2006) is a landmark principled stance although not on s78, it does illustrate the increasingly jurisprudential reasoning of the House of Lords also shown in Looseley . Not also the more robust approach to exclusion of evidence in the Strasbourg jurisprudence, see for example R v Allan v UK (2002).
Note finally that judicial discretion cannot override parliamentary provisions which give increased powers to investigative authorities.