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would be unfair to admit it since the accused would not be able to test the evidence by cross-
311
examination. [2006] Crim. LR 839. (2004) 541 US 36.
459 The exclusionary rules of evidence


ruling was in line with the Supreme Court™s 1981 decision in Ohio v. Roberts312
which held that the Sixth Amendment right to be ˜confronted with the witnesses
against him™ did not prevent admission of an unavailable witness™s statement if
it bore ˜adequate indicia of reliability™ as falling within one of the recognised
exceptions to the hearsay rule or possessing ˜particularised guarantees of trust-
worthiness™. In Crawford the Supreme Court overruling its decision in Ohio v.
Roberts said:
(d) The Confrontation Clause commands that reliability be assessed in a par-
ticular manner: by testing in the crucible of cross-examination. Roberts allows a
jury to hear evidence, untested by the adversary process, based on a mere judi-
cial determination of reliability, thus replacing the constitutionally prescribed
method of assessing reliability with a wholly foreign one (25“27).
(e) Roberts™ framework is unpredictable. Whether a statement is deemed reli-
able depends on which factors a judge considers and how much weight he
accords each of them. However, the unpardonable vice of the Roberts test is its
demonstrated capacity to admit core testimonial statements that the
Confrontation Clause plainly meant to exclude (27“30).
(f) The instant case is a self-contained demonstration of Roberts™ unpre-
dictable and inconsistent application. It also reveals Roberts™ failure to interpret
the Constitution in a way that secures its intended constraint on judicial discre-
tion. The Constitution prescribes the procedure for determining the reliability
of testimony in criminal trials, and this court, no less than the state courts, lacks
authority to replace it with one of its own devising (30“32).313
The gist of the Supreme Court™s ruling was that if an out-of-court statement is
˜testimonial™ in nature, its admission in evidence breaches the defendant™s right
of confrontation even if it appears to be wholly reliable.314

Identification evidence
Possibly the most notorious source of miscarriages of justice is identi¬cation
evidence raising the question whether such evidence ought to be wholly
excluded in criminal cases unless corroborated. The question was examined by
the Devlin Committee on Evidence of Identi¬cation in Criminal Cases.315 The
Committee rejected this view but recommended that the judge should be
required to warn the jury that it was unsafe to convict on the basis of eyewitness
evidence unless the circumstances of the identi¬cation were exceptional or
there was substantial evidence of some other sort. A judge who gave such

312
(1981) 448 US 56.
313
The o¬cial headnote issued by the Reporter of Decisions “ www.bailii.org “ World
Collections “ North America “ United States “ Supreme Court decisions.
314
For approving commentary see S. Clark, ˜Who Do You Think You Are? The Criminal Trial
and Community Character™ in A. Du¬ et al. (eds.), The Trial on Trial (2), (Oxford, 2006)
pp. 83“97 at pp. 90“4. (˜The act of accusation without a willingness to confront is simply an
unacceptable act of ignoble cowardice “ an act worthy of outrage, and not to be abetted by the
state™ (p. 94).) See also W.E. O™Brien, ˜The Right of Confrontation: US and European
Perspectives™, 121 Law Quarterly Review, 2005, pp. 481“510.
315
House of Commons Paper 338, 1976.
460 The trial process


warning should indicate the kind of case where exceptionally it might be rea-
sonable to rely on eyewitness evidence. Failure to give the warning would be
grounds to quash the conviction. So too would a ¬nding by the Court of Appeal
that the case was not such as to justify reliance on eyewitness evidence or that
there was insu¬cient supporting evidence.
The Court of Appeal in R v. Turnbull316 acted on the report only a few weeks
after the report was published though it did not give full e¬ect to the
Committee™s recommendation. Sitting with ¬ve judges, the court laid down
new guidelines for trial judges in cases involving disputed identi¬cation evi-
dence. Lord Widgery for the court said that the trial judge should warn the jury
of the special need for caution before relying on identi¬cation evidence. He
should instruct them as to the reason for such warning and should refer to the
possibility that a mistaken witness was a convincing one and that even a number
of such witnesses could be mistaken. Secondly, he should direct the jury to
examine very closely the circumstances in which the identi¬cation came to be
made:
How long did the witness have the accused under observation? At what distance?
In what light? Was the observation impeded in any way, as for example by
passing tra¬c or a press of people? Had the witness ever seen the accused before?
How often? If only occasionally, had he any reason for remembering the
accused? How long elapsed between the original observation and the subse-
quent identi¬cation to the police? Was there any material discrepancy between
the description of the accused given to the police by the witness when ¬rst seen
by them and his actual appearance? (at p. 228).
If there were such discrepancies, the prosecution should inform the defence.
The court said that in setting out its guidelines it had tried to follow the rec-
ommendations of the Devlin Committee. A failure to follow the guidelines was
likely to result in a conviction being quashed,317 but the courts have resisted the
suggestion that Turnbull requires them to follow a formula.318
The rules for identi¬cation procedures are now to be found in the PACE Code
of Practice on Identi¬cation Evidence (Code D) revised as from 1 January
2006.319

316
[1977] QB 224.
317
For cases in which convictions were subsequently quashed as a result of a failure to follow the
guidelines see for instance R v. Hunjan (1978) 68 Cr App Rep 99; Bentley [1991] Crim LR 620;
Fergus (1993) 98 Cr App Rep 313.
318
See for instance Mills [1995] Crim LR 884 and Mussell; Dalton [1995] Crim LR 887. See also
E. Grayson, ˜Identifying Turnbull™, Criminal Law Review, 1977, p. 509; and J.D. Jackson, ˜The
Insu¬ciency of Identi¬cation Evidence Based on Personal Impression™, Criminal Law Review,
1986, p. 203.
319
See M. Zander, Police and Criminal Evidence Act 1984 (5th edn, Sweet & Maxwell, 2005 and
First Supplement, 2006). For cases on the admissibility of evidence obtained in breach of the
identi¬cation rules see ibid, paras. 8“116 and 8“121. For a recent evaluation of the rules see A.
Roberts, ˜The Problem of Mistaken Identi¬cation: Some Observations on Process™,
8 International Journal of Evidence and Proof, 2004, pp. 100“19.
461 The exclusionary rules of evidence


Judicial warnings regarding uncorroborated evidence
Until very recently the judges were required to give the jury a warning about
the danger of relying on the uncorroborated evidence of children (p. 445
above), accomplices giving evidence for the prosecution and complainants in
a sexual o¬ence. The Law Commission recommended in 1991 that the rules
requiring such warnings should be abolished.320 This was e¬ected in the
Criminal Justice and Public Order Act 1994, s. 32(1). In Makanjuola and
Easton321 the Court of Appeal held that although there was no longer a rule
requiring a warning about uncorroborated evidence, one could be given on a
discretionary basis where the judge thought it necessary. It gave guidelines as
to how the matter should be approached. The guidelines provoked a good deal
of debate.322
Section 33 of the 1994 Act also abolished the requirement of actual corrobo-
ration for a number of o¬ences under the Sexual O¬ences Act 1956.

Judicial warnings regarding cell confessions
Evidence in a criminal case in the form of a confession allegedly made to a cell
mate in prison is open to the danger that it was fabricated by the witness to gain
some advantage for himself. In Benedetto323 the Privy Council seemed to require
that once it was established that a prisoner had a motive for lying a speci¬c and
detailed warning should always be given to the jury about the danger of con-
victing on cell confession evidence, but in the high pro¬le case of Stone324 the
Court of Appeal said that not every case involving a cell confession required
such a warning. There were no ¬xed rules. The nature of the warning would
depend on the facts of each case. In the case of a two-line confession, there
would generally be a need to warn the jury that such confessions were easy to
concoct and di¬cult to prove and that prisoners could have many motives to
lie. If the informant had a signi¬cant criminal record or a history of lying, this
should be pointed out, but where, as in that case, an alleged confession would
not be easy to invent, it would be absurd to require the judge to say that cell con-
fessions were easy to concoct. Similarly, where as in that case, the defence had
not cross-examined the informant about the motive of hope of advantage the
judge was not required to warn the jury of that possibility. Warnings about the
possibility that the prisoner informant might give tainted evidence had to arise
from the evidence.

320
Corroboration of Evidence in Criminal Trials, Cm. 1620, 1991.
321
[1995] 2 Cr App Rep 469, [1995] 3 All ER 730.
322
See commentary in Criminal Law Review, 1996, pp. 44 at 45 and 815 at 816; D.J. Birch,
˜Corroboration: Goodbye to All That?™, Criminal Law Review, 1995, pp. 524“39; P. Mir¬eld,
˜Corroboration after the 1994 Act™, ibid, pp. 448“60; J. Hartshorne, ˜Corroboration and Care
Warnings after Makanjuola™, 2 International Journal of Evidence and Proof, 1998, pp. 1“12. See
323
also Warwick Muncaster [1999] Crim LR 409. [2003] 1 WLR 1545.
324
[2005] EWCA Crim 105, [2005] Crim LR 569. Michael Stone was convicted of the horri¬c
murders of Lin Russell and her daughter Megan and of the attempted murder of Megan™s
sister Josie.
462 The trial process


Evidence excluded because its admissibility would be against the public
interest
There are various categories of excluded evidence that can conveniently be col-
lected under this head.

The evidence of spouses in criminal cases
A spouse was generally not able to give evidence for the prosecution in a criminal
case even if willing to give evidence.325 She was not competent as a witness. There
were some exceptions where the wife was permitted to give evidence but was not
compellable, mainly involving o¬ences against the wife herself, her property or
against their children. In Hoskyn v. Metropolitan Police Commissioner326 the House
of Lords held that a woman who married the defendant two days before the trial
could not be compelled to give evidence against her new husband in a case arising
out of a serious assault on her! In R v. Pitt 327 the Court of Appeal said that a wife
who was competent but not compellable to give evidence for the prosecution
against her husband remained free to decide whether to give evidence until the
moment that she entered the witness box and was una¬ected by whether she had
previously given a statement to the police or had given evidence at the committal
proceedings, but once she decided to give evidence she became like any other
witness and had to answer all questions save those that might incriminate her.
Moreover, she could be treated as a hostile witness if that would be legitimate with
an ordinary witness. This should be explained to her before she started to give evi-
dence. The general exclusionary rule applied even after judicial separation and
possibly after divorce with regard to matters that occurred during the marriage.
In its 1972 11th Report, the Criminal Law Revision Committee (CLRC) rec-
ommended that the rule should be modi¬ed to make the wife competent to give
evidence for the prosecution if willing to do so. She should be compellable (as
opposed to being merely competent) in cases involving violence against her or
against children of the household under sixteen.328 If the parties were divorced,
the CLRC thought that they should be treated for all purposes as if they had
never been married “ even with regard to matters occurring during the marriage.
PACE, s. 80 broadly carried into e¬ect the CLRC™s proposals. It provides, ¬rst,
that a spouse is always competent for the prosecution save where he or she is
charged jointly with the same o¬ence. (The exception does not apply, however,
where he or she is no longer liable to be convicted for that o¬ence by virtue of
having pleaded guilty or otherwise.) The Act, secondly, made the spouse always
compellable for the defence “ save for the same exception where she is charged
jointly with him.329 The Act extended the CLRC™s proposals by making a spouse

325 326
See R v. Mount (1934) 24 Cr App Rep 135. [1978] 2 All ER 136.
327 328
[1982] Crim LR 513. Paragraphs 149“50.
329
In R (on the application of CPS) v. Registrar General of Births, Deaths and Marriages [2002]
EWCA Civ 1661, [2003] 1 All ER 540 the Court of Appeal held that it was not contrary to
public policy for the defendant to marry in order to take advantage of s. 80. The prosecution
463 The exclusionary rules of evidence


compellable for the prosecution not only in cases of violence to children of the
family under sixteen, but also in cases of violence or a sexual o¬ence against
anyone under sixteen whether or not they were family members. Thirdly, PACE
implemented the CLRC™s proposal that a spouse should be competent for a co-
accused regardless of whether his or her spouse consented. Fourthly, the Act laid
down that after the marriage has been terminated, both spouses become com-
petent and compellable as if they had never been married “ even regarding
events that occurred during the marriage.

Evidence that might incriminate the witness
Any witness in any case, other than the defendant himself, is entitled to refuse
to answer a question that might expose him to a criminal charge. (The equiva-
lent of the American ˜taking the Fifth Amendment™.) If the privilege is invoked,
it is for the judge to decide whether the questions have to be answered. It seems
that the privilege may extend to cover answers that could incriminate a spouse,
but it does not go beyond that to protect other family members.
In Re O (disclosure order)330 the Court of Appeal held that convicted persons
could be required to make full disclosure of their assets for the purposes of
potential con¬scation proceedings under the Criminal Justice Act 1988, but
because of the principle of not requiring a person to incriminate himself, the
order would be subject to a condition that no disclosure made in compliance
with the order should be used as evidence in the prosecution of an o¬ence
alleged to have been committed by the person required to make the disclosure.

The accused is not a compellable witness
An accused person in a criminal case has a right to remain silent in the dock.
That was and remains the case. In fact the great majority of defendants who
plead not guilty do give evidence. (In the Crown Court Study done for the Royal
Commission on Criminal Justice over 70 per cent of defendants gave evi-
dence.331)
The basic rule was that the prosecution were not permitted to comment on
the fact that the defendant chose not to go into the witness box.332 The judge
was allowed, in his discretion, to draw the jury™s attention to the fact but he
could not suggest that silence constituted evidence against the defendant.333


was therefore not entitled to ask the prison authorities and/or the Registrar of Births, Deaths
and Marriages to refuse to allow the wedding until after the defendant™s trial.
330
[1991] 1 All ER 330.
331
M. Zander and P. Henderson, The Crown Court Study (Royal Commission on Criminal
Justice, Research Study No 19, 1993) p. 114.
332
Criminal Evidence Act 1898, s. 1(b), but see R v. Brown and Routh [1983] Crim LR 38 where it
was held the rule had not been infringed even though the prosecution counsel did comment
on the defendants™ failure to give evidence in the sense that he said the prosecution™s case was
uncontradicted.
333
R v. Martinez-Tobon [1994] 2 All ER 90, CA. Provided the judge told the jury that they should
not assume guilt from a refusal to give evidence, comment was permitted. Where the defence
464 The trial process


Until 1982, if the defendant chose to give evidence he could either go into the
witness box and thereby subject himself to cross-examination or he could make
a statement from the dock on which he could not be cross-examined.
The CLRC in its 1972 11th Report recommended drastic reform of the rules
along the lines of its recommendations regarding silence in the police station
(p. 166 above):334
• That if the prosecution had established a prima facie case, the accused should
formally be asked to go into the witness box and told that, if he failed to do
so, adverse inferences could be drawn. Failure to do so could also amount to
corroboration where corroboration was required. In the view of the Com-
mittee the existing rule was much too favourable to the defence. Normally it
should be incumbent on the accused to give evidence, but it would not
become contempt of court to refuse.
• The prosecution and judge should be entitled to comment on the accused™s
failure to give evidence. The prohibition on comment was wrong in principle
and entirely illogical.
• The right to make an unsworn statement from the dock should be abolished.
It was rarely exercised in trials on indictment save in cases where the accused
wanted to attack prosecution witnesses without making himself liable to the
revelations of his own prior convictions. It was wrong to give the accused this
choice.
These proposals were received with much less criticism than those made by the
CLRC with regard to the right of silence in the police station.
The Philips Royal Commission on Criminal Procedure (1981)335 disagreed
with the CLRC on the ¬rst two points. It did not favour putting pressure on the
accused to give evidence or allowing comment on his refusal to testify, but it did
agree that the right of the defendant to make an unsworn statement from the
dock should be abolished. It was anomalous that a defendant should be able to
give evidence without being subject to the possibility of perjury proceedings. He
should be required to submit himself to the oath and cross-examination.
The Government followed the advice of the Philips Commission. The
Criminal Justice Act 1982, s. 72 abolished the right of the defendant to make an
unsworn statement from the dock but it preserved the right of an unrepresented
accused to address the court in the same way that counsel could, by way of
submissions or in mitigation of sentence.
The Runciman Royal Commission on Criminal Justice said that the balance
was held correctly in the standard direction given to juries:

Footnote 333 (cont.)
case involved facts which were at variance with the prosecution™s case and which were within
the defendant™s knowledge, such comment might be legitimate. The nature and strength of
such comment was a matter for the judge.
334
Criminal Law Revision Committee, Evidence (General), Eleventh Report, 1972, Cmnd. 4991,
335
paras. 102“13. Philips, paras. 4.63“7.
465 The exclusionary rules of evidence


The defendant does not have to give evidence. He is entitled to sit in the dock
and require the prosecution to prove its case. You must not assume that he is
guilty because he has not given evidence. The fact that he has not given evidence
proves nothing one way or the other. It does nothing to establish his guilt. On
the other hand, it means that there is no evidence from the defendant to under-
mine, contradict, or explain the evidence put before you by the prosecution.
Where the defendant did not give evidence, the prosecution could question, and
the judge could comment on, the explanation given by counsel but, the Royal
Commission said, ˜neither the prosecution nor the judge should invite the jury
to draw from the defendant™s failure to give evidence the inference that his or
her explanation is less deserving of being believed™.336
The Government, however, rejected the view of the two Royal Commissions
and instead implemented the recommendation of the CLRC made in 1972. The
Criminal Justice and Public Order Act 1994, s. 35 states that at the trial of
someone [. . .]337 at the conclusion of the prosecution™s case, the court must:
Satisfy itself . . . that the accused is aware that the stage has been reached at
which evidence can be given for the defence . . . and that, if he chooses not to
give evidence, or having been sworn, without good cause refuses to answer any
question, it will be permissible for the court or jury to draw such inferences as
appear proper from his failure to give evidence or his refusal without good cause
to answer any question (s. 35(2)).
The court or jury may draw such inferences as appear proper from the failure
to give evidence or refusal to answer questions (s. 35(3)).
The rule does not apply if it appears to the court that ˜the physical or mental
condition of the accused makes it undesirable for him to give evidence™
(s. 35(1)(b)).
A Practice Direction dealt with the procedure to be followed.338 If the defen-
dant is legally represented and the court is informed that he does not intend to
give evidence, the judge should, in the presence of the jury, inquire of the
lawyer: ˜have you advised your client that the stage has now been reached at
which he may give evidence and if he chooses not to do so, or, having been
sworn, without good cause refuses to answer any questions, the jury may draw
such inferences as appear proper?™ If this assurance is given, the case proceeds.
If not, the case should brie¬‚y be adjourned for that to be done.
If the accused is not legally represented the judge should say to the defendant:
You have heard the evidence against you. Now is the time for you to make your
defence. You may give evidence on oath, and be cross-examined like any other
witness. If you do not give evidence, or having been sworn, without good cause
refuse to answer any question, the jury may draw such inferences as appear

336
Runciman, p. 56, para. 27.
337
˜[who has attained the age of fourteen years]™. The words in square brackets were removed by
the Crime and Disorder Act 1998, s. 35.
338
Practice Direction (Crown Court: Evidence: Advice to Defendant) [1995] 1 WLR 657.
466 The trial process


proper. That means they may hold it against you. You may also call any witness
or witnesses whom you have arranged to attend court. Afterwards you may also,
if you wish, address the jury by arguing your case from the dock, but you cannot
at that stage give evidence. Do you now intend to give evidence?
In Cowan339 Lord Chief Justice Taylor, for the Court of Appeal, said there were
certain essential matters on which the judge must direct the jury under s. 35,
namely:
• The burden of proof remains on the prosecution at all times.
• The defendant is entitled to remain silent.
• An inference from failure to give evidence cannot on its own prove guilt.
• The jury must be satis¬ed that the prosecution have established a case to
answer before drawing an inference from silence.
• The jury may draw an adverse inference if, despite any evidence relied on by
the accused to explain his silence or in the absence of such evidence, the jury
concludes the silence can only sensibly be attributed to the accused having no
answer or none that would stand up to cross-examination.
There needs to be some evidential basis or some exceptional factors in the case
to justify the judge NOT permitting the jury to draw an adverse inference from
the failure to give evidence.
For the recommended text of the Judicial Studies Board™s latest specimen
direction for the judge to give to the jury see the JSB™s Website “ www.jsboard.
co.uk “ Publications “ Bench Books “ Specimen Directions No. 39.

Legal professional privilege
As has been seen (pp. 90“93) communications between a client and his legal
adviser generally cannot be given in evidence by the lawyer without the per-
mission of the client if they were made either (1) with reference to proceedings
in being or then contemplated; or (2) to enable the client to receive, or the
lawyer to give, legal advice.
The privilege is that of the client not the lawyer and can only be waived by the
client. (There is no equivalent privilege for communications between doctor and
patient, priest and penitent or journalist and his source, though, as has been seen
(p. 228 above), these categories do now have some immunity under the Police
and Criminal Evidence Act with regard to certain pre-trial police searches.) The
privilege is intended to promote candour between a client and his lawyers.
In the Police and Criminal Evidence Act 1984 legal professional privilege is
de¬ned to include not only communications but also documents and other arti-
cles mentioned in or enclosed with privileged communications if the commu-
nication was in connection with the giving of legal advice or in connection with
or contemplation of legal proceedings and for the purpose of such proceedings
(s. 10). It also includes not only communications for these purposes between

339
[1996] QB 373.
467 The exclusionary rules of evidence


the client and the lawyer, but also with third persons such as accountants or
others involved in legal advice or legal proceedings.340
For the position regarding legal professional privilege in light of the lawyer™s
obligations to report his client under the Money Laundering Act 2002 see p. 91
above.

Evidence obtained at a ˜trial within a trial™
It is a common feature of Crown Court cases that the admissibility of evidence
is considered by the judge, usually in the absence of the jury. This is known tech-
nically as a voir dire or, less formally, as a ˜trial within a trial™.
If the accused makes admissions during the voir dire, the prosecution cannot
give evidence of them once the trial resumes.341 If, however, the defendant used
the voir dire to boast of having committed the o¬ences in question or used the
occasion to make a political speech, that would be irrelevant to the issue of
admissibility and di¬erent considerations would apply.
When the trial is in the magistrates™ courts, a challenge to the admissibility of
a confession cannot easily be conducted in the same way. There is no jury to
withdraw while the court makes up its mind on the question of admissibility.
On the other hand, it is not satisfactory for the magistrates to consider admis-
sibility at the same time as considering the question of weight and truth. In F
(an infant) v. Chief Constable of Kent342 Lord Chief Justice Lane said: ˜where
matters are being conducted before magistrates, there is no question of a “trial
within a trial” because magistrates are judges of both fact and law and deter-
mine questions of guilt and innocence™, but this does mean that, where a con-
fession is to be challenged, the chances of a fair trial are inevitably greater in the
Crown Court than in the magistrates™ court.343

340
See T.R.S. Allen, ˜Legal Privilege and the Principle of Fairness in the Criminal Trial™ (1987)
Criminal Law Review, p. 449.
341
R v. Brophy [1981] 2 All ER 705, HL. B was accused of forty-nine counts of terrorism o¬ences
including twelve murders by explosions. There was no evidence against him other than
admissions made during interrogations. During the trial within a trial as to their admissibility
he said he had been a member of the IRA for years. The trial judge ruled that the statements
made in the interrogations were inadmissible. There was therefore no evidence against B on
the ¬rst forty-eight counts. The forty-ninth count was being a member of the IRA. This was
allowed to be proved by the admissions made during the voir dire. On appeal, the House of
Lords held that this was not proper, even though it had been a voluntary admission in answer
to questions from his own counsel. Anything which emerged only at the voir dire and was
relevant to the voir dire could not be admissible at the trial: ˜If such evidence, being relevant,
were admissible at the substantive trial, an accused person would not enjoy the complete
freedom that he ought to have to contest the admissibility of his previous statements™ (at
p. 709, per Lord Fraser). He would not feel free if what he said at the voir dire could be used
against him at the trial. See also Wong Kam-Ming [1980] AC 247, PC. For a discussion of
whether there are any exceptions to the rule either at common law or as a result of the rules
on inferences from silence see P. Mir¬eld, ˜Two Side-e¬ects of Sections 34 to 37 of the
Criminal Justice and Public Order Act 1994™, Criminal Law Review, 1995, pp. 612 at 617“24.
342
[1982] Crim LR 682.
343
For a discussion of this issue see W.M.S. Tildesley and W.F. Bullock, ˜Challenging Confessions
in the Magistrates™ Courts™, 147 Justice of the Peace, 16 April 1983, p. 243.
468 The trial process


In R v. Liverpool Juvenile Court, ex p R344 it was argued on behalf of the juve-
nile accused that the Chief Constable of Kent case had in e¬ect been displaced by
the provisions of s. 76 of the Police and Criminal Evidence Act 1984 which dealt
with the admissibility of confessions (see below). The Divisional Court upheld
the contention. It ruled that, where the question of the admissibility of a con-
fession is raised by the accused, the magistrates must hold a trial within a trial
at which the defendant would be entitled to give and call evidence relating
purely to the question of admissibility.345

To protect police informers
The courts have for decades recognised the principle that the identity of police
informers should, if possible, be kept secret and that surveillance methods
should not necessarily become known to the defence. As long ago as 1890 Lord
Esher MR referred to the rule protecting the disclosure of the name of an infor-
mant as a rule in public prosecutions.346 In Rankine347 the appellant argued on
appeal that his conviction was unsafe and unsatisfactory because he had not
been allowed by the trial judge to cross-examine the police witnesses as to the
location of the observation point from which they had allegedly seen him
repeatedly selling drugs. The Court of Appeal refused to quash the convic-
tion.348
However, this principle of public interest exclusion of evidence may have to
give way to the even higher principle that the defendant should not be unfairly
impeded from establishing his innocence. Thus, in Brown349 the Court of
Appeal quashed convictions because the trial judge had refused to allow police
o¬cers to be questioned about the details of their surveillance operation.
Note that no equivalent tenderness is shown toward the defendant when his
case on appeal is that the jury considered material that should not have been
known to them. The principle in such cases is that the Court of Appeal will not
permit such a contention to be put.350
See generally J.A. Andrews, ˜Public Interest and Criminal Proceedings™, 104
Law Quarterly Review, 1988, pp. 410“21.

Cross-examination of rape victims
At common law a rape victim giving evidence against her alleged attacker could
be cross-examined about her sexual past. The purpose of the Sexual O¬ences
(Amendment) Act 1976, s. 2 was to restrict such questions. No such questions
could be asked without the leave of the judge and no such questions could be
asked about the sexual experience of the complainant with anyone other than
the defendant. Moreover the Act provided that the judge should only give such

344
[1987] 2 All ER 668.
345
For comment see B. Gibson, ˜Justices and Trials Within Trials “ Yet Again™, 151 Justice of the
346
Peace, 2 May 1987, p. 275. Marks v. Beyfus (1890) 25 QBD 494.
347 348
[1986] QB 861. See to the same e¬ect Johnson [1988] 1 WLR 1377.
349 350
(1987) 87 Cr App Rep 52. See Thompson, p. 532 below.
469 The exclusionary rules of evidence


consent if satis¬ed that it would be unfair to the defendant to refuse to allow the
evidence to be adduced.
It was felt that the 1976 Act did not do the job351 and the Youth Justice and
Criminal Evidence Act 1999 returned to the issue.
Section 41 of the 1999 Act provided that evidence or questioning about a
complainant™s sexual conduct was not admissible as evidence of whether he or
she consented to the o¬ence except where the evidence or questions related to
acts at or about the time of the incident that was the subject of the charge.
Evidence or questioning about sexual behaviour was admissible, however, in
relation to whether sex took place or whether the defendant believed his alleged
victim consented, provided it related to speci¬c instances of sexual behaviour
at or about the time in question and that its main purpose was not to impugn
the witness™s character.352
In R v. A (No 2)353 the House of Lords held that, despite the wording of s. 41,
the complainant could be asked questions about her sexual conduct that, if
excluded, would endanger the defendant™s right to a fair trial under Article 6 of
the ECHR. The defendant had been barred by the trial judge from asking ques-
tions about their sexual relationship during the three weeks before the alleged
rape. The House of Lords upheld the Court of Appeal™s decision thereby over-
turning the trial judge™s ruling and Parliament™s intention in passing s. 41.354

Phone tap evidence
Telephone-tap intercept evidence, even if lawfully obtained in the UK,355 is
inadmissible in a criminal trial.356 The topic has been much debated in recent
years and it is now widely thought that the Government™s policy is mistaken.
Opposition to a change is based at least partly on the fear that admitting such
evidence would lead to the methods used in covert surveillance becoming
known to criminals and terrorists. Professor John Spencer has powerfully
argued that this is unconvincing.357 For one thing, if security considerations
made it undesirable to use the evidence in a particular case the prosecutors
would not use it. If it had to be revealed as unused material (see p. 290 above),
that could be done under the special procedure for public interest immunity for
such material (p. 297 above). In the ¬nal analysis the prosecution could drop
the case.
351
See L. Ellison, ˜Cross-Examination in Rape Trials™, Criminal Law Review, 1998, pp. 605“15.
352
See N. Kibble, ˜The Sexual History Provisions: Charting a Course between In¬‚exible Legislative
Rules and Wholly Untrammelled Judicial Discretion™, Criminal Law Review, 2000, p. 274.
353
[2002] AC 45, [2001] 3 All ER 1.
354
For discussion see J. Temkin, ˜Sexual History Evidence: Beware the Backlash™, Criminal Law
Review, 2003, p. 217; and D. Birch, ˜Untangling Sexual History Evidence: A Rejoinder to
Professor Temkin™, Criminal Law Review, 2003, p. 370.
355
If it is obtained legally abroad, it is admissible: R v. P [2002] 1 AC 146.
356
The Regulation of Investigatory Powers Act 2000 (RIPA 2000), s. 17. See generally D.
Ormerod and S. McKay, ˜Telephone Intercepts and their Admissibility™, Criminal Law Review,
2004, pp. 15“38.
357
˜Tapping into the Telephones™, 155 New Law Journal, 4 March 2005, p. 309.
470 The trial process


Spencer suggests that at least part of the real reason is that it might expose the
Home Secretary™s actions to unwelcome scrutiny in the courts. The authorisa-
tion of telephone tapping is done not by a judicial person but by the Home
Secretary.358 If such evidence were admissible, the courts would be able to
examine the way that he and his o¬cials use the power.
In August 2006 the Joint Parliamentary Human Rights Committee recom-
mended that the ban on intercept evidence be lifted.359 It said that the DPP
strongly supported this view issue The Joint Committee urged that this be dealt
with as a matter of urgency. The protection of sources was handled appropri-
ately in other countries and could be handled here too.
In September 2006 the Attorney General, Lord Goldsmith, and the Director
of Public Prosecutions, Ken MacDonald QC, both publicly added their voices
to support a change in the rule. Both said that they had been convinced by the
experience of the US and of Australia that admissibility of intercept evidence
was a vital tool in the ¬ght against organised crime and terrorism and that the
problems could be handled.360

Evidence obtained by improper means
The common law made a distinction between confessions that were improperly
obtained and other kinds of evidence obtained in regular ways. Broadly, con-
fessions were liable to be excluded, whilst other evidence was normally admit-
ted in evidence.

Confessions
The common law There was a well-established common law rule going back
some two hundred years that a confession could not be admitted in evidence if
it was ˜involuntary™, de¬ned to mean obtained as the result of a threat or
promise held out by a person in authority.361
The rule was expressed in the Judges™ Rules, principle (e) of the preamble of
which stated: ˜it is a fundamental condition of the admissibility in evidence
against any person . . . that it shall have been voluntary in the sense that it has

358
Before 1985 the Home Secretary issued warrants without any clear powers to do so. In 1985
the Interception of Communications Act “ in response to the Strasbourg Court™s decision in
Malone v. United Kingdom (1984) 7 EHRR 7 “ con¬rmed the Home Secretary as the person
responsible for authorisation. That system was perpetuated in the RIPA 2000.
359
Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, 24th
Report of Session 2005“6, 1 August 2006, HL 240, HC 1576.
360
The Guardian, 21 and 22 September 2006. The newspaper reported that the move also had the
backing of the Association of Chief Police O¬cers, the Conservative Party and Liberty.
361
This was held to include a father “ see R v. Moore (1972) 56 Cr App Rep 373 and R v. Cleary
(1963) 48 Cr App Rep 116. In R v. Thompson (1978) Times, 18 January it was held to include
also a social worker who said: ˜Do not admit something you have not done but it is always the
best policy to be honest. If you were concerned tell him about it and get the matter cleared up
for your own sake™. The judge excluded the accused™s confession. On the concept of the person
in authority see P. Mir¬eld, ˜Confessions “ the “Person in Authority” Requirement™, Criminal
Law Review, 1981, p. 92.
471 The exclusionary rules of evidence


not been obtained from him by fear of prejudice or hope of advantage, exercised
or held out by a person in authority or by oppression™. An example of the prin-
ciple being applied was R v. Smith, decided in 1959:

R v. Smith [1959] 2 QB 35, Courts Martial Appeal Court
The appellant, a soldier, was charged with the murder by stabbing of a soldier of
another regiment during a barrack-room ¬ght. Immediately after the ¬ght the
appellant™s regimental sergeant-major put his company on parade and indicated
that the men would be kept there until he learnt who had been involved in the
¬ghting. At the trial the judge-advocate admitted in evidence a statement made
by the appellant to the sergeant-major at that parade, confessing to the stabbing.
Evidence was also given of a subsequent confession made the following day to a
sergeant of the Special Investigation Branch after a caution had been adminis-
tered.
Lord Chief Justice Parker, giving the judgment of the court, stated the facts and
continued:
The court is quite clear that while there was nothing improper in the action
taken by the regimental sergeant-major, the evidence of what took place was
clearly inadmissible at the prisoner™s trial. What the sergeant-major did might
well have been a very useful course of action in order to enable further inquiries
to be made, but the court is satis¬ed that if the only evidence against the pris-
oner was a confession obtained in those circumstances, it would be quite inad-
missible at his trial. It has always been a fundamental principle of the courts, and
something quite apart from the Judges™ Rules of Practice, that a prisoner™s con-
fession outside the court is only admissible if it is voluntary. In deciding whether
an admission is voluntary the court has been at pains to hold that even the most
gentle, if I may put it in that way, threats or slight inducements will taint a con-
fession. To say to all those on parade, ˜You are staying here and are not going to
bed until one of you owns up™ is in the view of this court clearly a threat. It might
also, I suppose, be looked upon as an inducement in that the converse is true, ˜If
one of you will come forward and own up, the rest of you can go to bed™; but
whichever way one looks at it, the court is of the opinion that while the action
was perfectly proper and a useful start no doubt to inquiries, evidence in regard
thereto was clearly inadmissible.
The court then considered the second confession made by the accused the next
morning. It ruled that this was admissible because the e¬ect of the threat or
inducement was then spent.
The Smith case did not end in the defendant™s conviction being quashed. An
even more striking case was that of R v. Zaveckas362 because the court there did
quash the conviction when it found that the confession had followed an
improper promise. The case was even more remarkable in that the promise
came as the result of a request from the accused. He was told by the police that
an identi¬cation parade had been arranged and if he was not picked out he

362
[1970] 1 All ER 413.
472 The trial process


would be allowed to go. He asked whether he would be given bail at once if he
made a statement. The o¬cer said ˜yes™ and he then made a statement admit-
ting guilt. The Court of Appeal Criminal Division ruled that the statement
should have been held inadmissible because it was an inducement held out by
a person in authority. With regret, the court said, it had to quash the conviction.
Similarly, in Northam363 the Court of Appeal quashed a conviction based on a
confession after the accused had asked a police o¬cer whether it would be pos-
sible for a second o¬ence to be taken into consideration at his forthcoming trial
rather than being the basis of a later separate trial. The police o¬cer said the
police would have no objection. The Court of Appeal said this amounted to a
fatal inducement.
The common law objection to the admissibility of confessions obtained
through oppression appears to be more recent than for confessions obtained by
threats or promises. The preamble to the Judges™ Rules mentioned ˜oppression™
as one reason for a confession being found ˜involuntary™.364
Confessions obtained as a result of threats, promises or oppression were
inadmissible in law. Once they were classi¬ed in this way the judge had no dis-
cretion. Confessions obtained in breach of the Judges™ Rules, by contrast, were
only inadmissible in the judge™s discretion, though it was not easy to get the
judges to exercise this discretion. In Prager Lord Justice Edmund Davies dealt
with the submission by counsel that a statement was inadmissible because the
police had not cautioned the defendant before questioning him, even though
they plainly had plenty of evidence justifying reasonable suspicion, and that the
questioning was therefore in breach of Rule 2 of the Judges™ Rules which
required a suspect to be cautioned when the police had su¬cient admissible evi-
dence reasonably to suspect him. The defendant was taken from his house in the
early hours of the morning and on arrival at the police station was questioned
at length about complicity in espionage activities. The Court of Appeal refused
to hold that the confession should have been excluded.365
Pre-PACE changes in the admissibility rules regarding confessions In its 1972
11th Report, the CLRC recommended by a majority that confessions should
only be excluded where it was likely that the threat or inducement would
produce an unreliable confession. It would be for the judge to imagine that he
was present at the questioning and to consider in the light of all the evidence
˜whether at the point when the threat was uttered or the inducement o¬ered,
any confession which the accused might make as a result of it would be likely to
be unreliable™. The proposed test would apply not to the confession actually
made but ˜to any confession which he might have made in consequence of the
threat or inducement™ (para. 65). The Committee did not make it clear whether

363
(1967) 52 Cr App Rep 97.
364
For judicial statements on the subject see for instance Prager [1972] 1 WLR 260; Westlake
[1979] Crim LR 652; Hudson [1981] Crim LR 107; Gowan [1982] Crim LR 821.
365
See to same e¬ect Conway v. Hotten [1976] 2 All ER 213; Greaves v. D [1980] Crim LR 435;
Lam Chi-ming [1991] AC 212, [1991] 3 All ER 172, PC.
473 The exclusionary rules of evidence


the test should relate to the reasonable defendant in that situation or to the
accused himself i.e. whether it should be objective or subjective.
The CLRC™s proposal was at ¬rst not implemented by legislation but in the
period between the CLRC™s Report and enactment of the Police and Criminal
Evidence Act 1984, the common law changed to come somewhat into line with
the approach adopted by the CLRC. This was mainly achieved by two cases. In
the ¬rst, DPP v. Ping Lin,366 the defendant confessed after the o¬cer in the case
had assured him: ˜if you show the judge that you have helped the police to trace
bigger drug people, I am sure that he will bear it in mind when he sentences
you™. The House of Lords upheld the trial judge™s decision to allow the confes-
sion to be given in evidence. The question of voluntariness, the Law Lords held,
was one of fact and causation.
The second case, Rennie,367 went even further. The o¬cer admitted that the
defendant confessed in return for a promise from the o¬cer that he would in that
event not bring the suspect™s sister and mother into the a¬air. The Court of
Appeal upheld the trial judge™s decision to admit the confession. Giving judg-
ment, Lord Chief Justice Lane said it was for the court simply to take a common
sense view of whether the confession had been of the defendant™s own free will.
The fact that his confession was induced wholly or in part because he hoped the
police would then not charge his mother or his sister did not make it involuntary.
Plainly, the test of whether a confession was voluntary had undergone a sea-
change since decisions like Smith in 1959 and Zaveckas in 1970.

The Philips Royal Commission The Philips Royal Commission on Criminal
Procedure (1981) criticised the common law rule with regard to confessions (as
it then stood) on the ground that it was unrealistic. It assumed, ¬rst, that sus-
pects in the police station could be free from fear of prejudice or hope of advan-
tage and, secondly, that it was possible to tell to what extent any particular
suspect was a¬ected by such fear or hope. Both assumptions, the Commission
said, were false. Research conducted for the Commission by Dr Barrie Irving
showed that even a trained psychologist present at the questioning of suspects
could not tell what pressures were responsible for suspects making statements,
but fear of prejudice and hope of advantage were in the very nature of the situ-
ation, regardless of what precisely was said or done by the police.368
The Commission thought it would be better to abandon the vain attempt to dis-
tinguish between voluntary and involuntary confessions and to concentrate
instead on the behaviour of the police o¬cer. If the suspect was subjected to
torture, violence, the threat of violence or inhuman or degrading treatment, any
subsequent confession should be inadmissible. This would mark society™s ˜abhor-
rence of such conduct™.369 Any lesser breach of the rules of questioning should only


366 367
[1975] 3 All ER 175. [1982] 1 All ER 385.
368
Philips, para. 4.73 based on B. Irving, Police Interrogation: A Case Study of Current Practice
369
(Royal Commission Research Study No. 2, 1980). Philips, para. 4.132.
474 The trial process


be liable to the consequence that the trial judge would warn the jury of the danger
of relying on the resulting confession if there was no independent evidence.370

PACE The proposal that the voluntariness test should be abolished met with
considerable opposition and the Conservative Government did not accept it. The
Police and Criminal Evidence Act instead based its approach on the inadmissi-
bility of any confession obtained as a result of oppression or which was obtained
in consequence of something ˜likely in the circumstances to render unreliable any
confession which might be made by the accused in consequence thereof ™:

Police and Criminal Evidence Act 1984, s. 76
(1) In any proceedings a confession made by an accused person may be given
in evidence against him in so far as it is relevant to any matter in issue in the
proceedings and is not excluded by the court in pursuance of this section.
(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 cir-
cumstances 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.

Oppression As de¬ned in s. 76(8), oppression ˜includes torture, inhuman or
degrading treatment, and the use or threat of violence™.
Various points arise:
• The burden of proof on questions of the admissibility of confessions lies on
the prosecution “ s. 76(2).
• When any question of the admissibility of a confession arises, it is for the
judge to rule as to whether the evidence is admissible and for the jury to
decide on whether it is to be believed.371
• There is supposed to be a trial within a trial to determine the admissibility of
a confession, even in the magistrates™ court.372 Moreover, the Court of Appeal
has said obiter that the question of its admissibility cannot be considered by
the court after the confession has been given in evidence,373 but this seems
questionable.374

370
Philips, para. 4.133.
371
McCarthy (1980) 70 Cr App Rep 270; Ragho Prasad s/o Ram Autar Rao v. R [1981] 1 All ER
372
319. R v. Liverpool Juvenile Court, ex p R [1988] QB 1.
373
Sat-Bhambra (1988) 88 Cr App Rep 55, [1988] Crim LR 453.
374
See Professor J.C. Smith “ a comment on the case after the report in the Criminal Law Review
at p. 454.
475 The exclusionary rules of evidence


• A judge™s direction that the jury may rely on a confession if they regard it as
true even if it has or may have been made as a result of oppression is incom-
patible with Article 6 of the ECHR.375
• There have hardly been any cases in which the courts have held that there was
oppressive conduct by the police. In Fulling 376 the Court of Appeal made it
clear that oppression would exist only very rarely. It gave the word its meaning
in the Oxford English Dictionary as: ˜the exercise of authority or power in a
burdensome, harsh or wrongful manner; unjust or cruel treatment of sub-
jects, inferiors etc; the imposition of unreasonable or unjust burdens™.377
In Beales378 the trial judge found that questioning of the suspect for thirty-¬ve
minutes(!) ˜stepped into the realm™ of oppression because the police o¬cer
deliberately misled the suspect as to the existence of evidence of the o¬ence, but
the judge said that even if the police conduct was not oppressive under
s. 76(2)(a) the confession was certainly unreliable under s. 76(2)(b). On the
facts of the case it seems unlikely that the Court of Appeal would have upheld
the trial judge™s ¬nding that there was evidence of oppression.
In Davison 379 where there had been a whole series of breaches of the Act and
the Codes of Practice, the judge held that the prosecution had failed to discharge
the burden of proof on it to show that the confessions in a series of interviews
had not been obtained as a result of oppression. He seemed to regard the unlaw-
ful detention of the suspect as of prime signi¬cance.
In the case of Timothy West in 1988, the trial judge held that police had been
oppressive in constantly interrupting the defendant, shouting at him, using foul
language to indicate that he was lying and making it clear that they would con-
tinue questioning him until he confessed.
In Paris, Abdullahi and Miller380 (known as the case of the ˜Cardi¬ Three™), the
Lord Chief Justice in the Court of Appeal said the court had been horri¬ed by the
hectoring and bullying manner of the police questioning of Miller who denied
the murder charge over 300 times over some thirteen hours before making admis-
sions. (˜Short of physical violence, it is hard to conceive a more hostile and intim-
idating approach to a suspect. It is impossible to convey on the printed page the
pace, force and menace of the o¬cer™s delivery™.) The Court of Appeal quashed
all three convictions after they had served four years™ imprisonment. (Eleven
years later, after testing of DNA evidence that had been overlooked at the time of
the original investigation, the real murderer was identi¬ed and convicted.)
In the George Heron case in November 1993, Mitchell J ruled that confessions
and admissions to the murder of a seven-year-old girl were inadmissible because


375
Mushtaq [2005] UKHL 25, [2005] 3 All ER 885. For a question as to which institutions would
376
be trusted see [2006] Crim LR 834. [1987] QB 426.
377
For an elegant essay in the form of a Socratic dialogue on the meaning of oppression see R.
Munday, ˜The Court, the Dictionary, and the True Meaning of “Oppression”: A Neo-Socratic
Dialogue on English Legal Method™, 26 Statute Law Review, 2005, pp. 103“24.
378 379 380
[1991] Crim LR 118. [1988] Crim LR 442. (1992) 97 Cr App Rep 99.
476 The trial process


they had been obtained by oppression. The questioning had been conducted
without any hectoring or shouting, but the judge held that oppression existed in
falsely telling the accused that he had been identi¬ed, in pounding him with
being a killer and with sexual motives for the killing and in telling him that it was
in his interest to tell the truth when it had been made clear that the police
regarded the truth to be that he had done the killing. The police had been
engaged in breaking the defendant™s resolve to make no admissions.
It is worthy of note that in both the Cardi¬ Three case and the George Heron
case the suspect had had his legal adviser present throughout the interviews.

Unreliability The formula adopted in s. 76(2)(b) (p. 474 above) was e¬ectively
that recommended by the CLRC in its 1972 Report. The fact that the new test
abandoned the previous law as re¬‚ected in decisions like Zaveckas (p. 471
above) is con¬rmed by the provision in PACE Code C that if a suspect asks an
o¬cer what action will be taken by the police if the person being questioned
answers questions, makes a statement or refuses to do either, the o¬cer may
inform him what action he proposes to take in that event provided that the
action is itself proper and warranted (Code C, para. 11.5). But o¬cers are still
admonished not to indicate ˜except in answer to a direct question™ what action
will be taken if the person being interviewed answers questions, makes a state-
ment or refuses to do either (ibid).
The issue of reliability of confessions has given rise to a number of di¬erent
points:
• The words ˜in consequence of anything said or done™ mean said or done by
someone other than the suspect.381
• The test of ˜likely in the circumstances existing at the time™ is objective and
hypothetical. It is not what the o¬cer thought was the suspect™s mental
state but what it actually was.382 The circumstances existing at the time can
include the fact that the suspect had a very low IQ or was very suggestible.383
Also the truth or otherwise of the confession does not come into the
question.
• Although the words of the subsection seem to require a causal link between
what was said and done in fact, in some of the cases the courts have found a
confession to be unreliable where there was no such link. The courts have
treated breaches of the Code as su¬cient to establish unreliability even
without any evidence that the breaches led directly to the admissions or
confession.384


381 382
Goldenberg [1988] Crim LR 678. Everett [1988] Crim LR 826.
383
Silcott, Braithwaite and Raghip (1991) Times, 9 December; McKenzie (1992) 96 Cr App Rep
98, CA.
384
See for instance DPP v. Blake [1989] 1 WLR 432 and Doolan [1988] Crim LR 747. The latter
was an especially striking case since some of the breaches considered relevant by the court
occurred after the confession.
477 The exclusionary rules of evidence


Examples of things said or done which have been held to constitute grounds for
holding a confession to be unreliable include: an o¬er of bail,385 minimising the
signi¬cance of a serious (sex) o¬ence and suggesting that psychiatric help might
be appropriate,386 saying to a defendant who has previously denied the o¬ence,
˜Do I gather that you are now admitting the o¬ence?™,387 falsely telling the
suspect that his voice has been recognised on tape,388 falsely telling the suspect
that he has been identi¬ed by a witness389 and indicating that the suspect will
have to stay in the police station until the matter is cleared up.390
Examples of things not said or done which have been held to be grounds for
holding a confession to be unreliable include: failure to obtain a solicitor,391
breaches in the provisions of Code C392 or failure to see that the suspect has an
appropriate adult,393 but such grounds will not necessarily result in a confession
being held to be inadmissible.394
Runciman Royal Commission The Runciman Commission, by a majority of
eight to three, rejected the suggestion that a confession should only be admissi-
ble if corroborated, but it recommended that the judge should be required to
give the jury a warning, adapted to the circumstances of the case similar to that
in identi¬cation cases, about the dangers of relying on an uncorroborated con-
fession.395
For further reading on confession evidence see: D.J. Birch, ˜The PACE Hots
Up: Confessions and Confusions under the 1984 Act™, Criminal Law Review,
1985, p. 95 and ˜The Evidence Provisions™, Northern Ireland Legal Quarterly,
1989, p. 411; I. Dennis, ˜Miscarriages of Justice and the Law of Confessions:
Evidentiary Issues and Solutions™, Public Law, 1993, pp. 291“313; I.H. Dennis,
The Law of Evidence (3rd revised edn, Sweet and Maxwell, 2006) Ch. 6; M.
Zander, The Police and Criminal Evidence Act 1984 (5th edn, Sweet and Maxwell,
2005 and First Supplement, 2006) pp. 341“60.

Evidence, including confessions, illegally or improperly obtained
Whereas the common law historically took a strict view of the admissibility of
confession evidence, its approach to other evidence was di¬erent. Until 1979 the
rule was that the courts had a discretion as to whether such evidence should be
admitted. There were many cases in which this proposition had been stated. The
origin of the doctrine was a dictum of Lord Chief Justice Goddard, giving the
judgment of the Privy Council in Kuruma, Son of Kaniu v. R: ˜No doubt in a
criminal case the judge always has a discretion to disallow evidence if the strict
rules of admissibility would operate unfairly against the accused . . . If, for
385 386
Barry (1991) 95 Cr App Rep 384, CA. Delaney (1988) 88 Cr App Rep 338, CA.
387 388
Waters [1989] Crim LR 62, CA. Blake [1989] 1 WLR 432.
389 390
Heron, p. 475 above. Jasper (24 April 1994, unreported), CA.
391
McGovern (1990) 92 Cr App Rep 228, CA; Chung (1990) 92 Cr App Rep 314, CA.
392
Delaney (1988) 88 Cr App Rep 338, CA; Doolan (1991) 12 Cr App Rep (S) 634, CA.
393
Everett [1988] Crim LR 826; Moss (1990) 91 Cr App Rep 371, CA.
394
Waters [1989] Crim LR 62; Maguire (1989) 90 Cr App Rep 115, CA.
395
Runciman, p. 68, para. 87.
478 The trial process


instance, some admission of some piece of evidence, e.g. a document, had been
obtained from a defendant by a trick, no doubt the judge might properly rule it
out™.396 See also Je¬rey v. Black397 in which Lord Chief Justice Widgery said that
the discretion, though not often exercised, certainly existed: ˜But if the case is
exceptional, if the case is such that not only have the police o¬cers entered
without authority, but they have been guilty of trickery or they have misled
someone, or they have been oppressive or they have been unfair, or in other
respects they have behaved in a manner which is morally reprehensible, then it
is open to the justices to apply their discretion and decline to allow the partic-
ular evidence to be let in as part of the trial™. But there were few cases in which
the discretion was exercised.
In 1980 in Sang398 the House of Lords either abolished the discretion or at
least drastically curtailed it. The case concerned a defence of entrapment “ the
defendant claimed that he had been induced to commit the o¬ence by an
informer acting on the instructions of the police. All the judges in the House of
Lords ruled that there was no such defence as entrapment in English law, but
they went on to consider the more general question whether a judge had a dis-
cretion to exclude relevant evidence. They ruled, again unanimously, that (save
for confessions or evidence tantamount to a confession) no discretion existed
to exclude evidence simply on the ground that it had been illegally or improp-
erly obtained! Such illegality might be a factor to be taken into account in sen-
tencing or might be the basis for civil proceedings or disciplinary action against
the police. The only basis for excluding relevant evidence was where its e¬ect
would be unduly prejudicial “ for example, evidence of previous similar acts399
“ or where it would be unfair to admit it, but unfairness could not be shown
merely by the fact that the evidence had been illegally obtained. In fact the
nature of ˜unfairness™ that would entitle the judge to exclude evidence in his dis-
cretion is obscure. Lord Scarman, for instance, said that each case must depend
on its circumstances: ˜All I would say is that the principle of fairness, though
concerned exclusively with the use of evidence at trial, is not susceptible to cat-
egorisation or classi¬cation, and is wide enough in some circumstances to
embrace the way in which, after the crime, evidence has been obtained from the
accused™.400

The Philips Royal Commission The Royal Commission on Criminal Procedure
recommended that the admissibility of improperly obtained evidence other than
confessions be substantially con¬rmed. It did not accept the view that illegally

396 397
[1955] AC 197 at 204. [1978] 1 All ER 555.
398
[1980] AC 402, [1979] 2 All ER 1222. For comment on Sang see J.D. Jackson, ˜Unfairness and
the Judicial Discretion to Exclude Evidence™, New Law Journal, 1980, p. 585. See generally J.D.
Heydon, ˜Illegally Obtained Evidence™, Criminal Law Review, 1973, p. 690 and A.J. Ashworth,
˜Excluding Evidence as Protecting Rights™, Criminal Law Review, 1977, p. 723.
399
As in Noor Mohamed v. R [1949] AC 182 or Harris v. DPP [1952] AC 694.
400
[1979] 2 All ER 1222 at 1247.
479 The exclusionary rules of evidence


or improperly obtained evidence should basically be excluded, as it is in the
United States under the doctrine of ˜the fruit of the poisoned tree™.401
The Commission said it was not appropriate to use the rules as to the admis-
sibility of evidence to discipline the police or to discourage police malpractice.
First, it could only a¬ect the small minority of cases where the defendant
pleaded not guilty and would therefore not discourage improper behaviour by
the police in the majority of cases. Secondly, the challenge on admissibility
would be so distant in time from the moment of the improper conduct as not
to be an e¬ective deterrent. Experience in the United States suggested that it was
not e¬ective as a deterrent to misconduct by the police. The proper way to deter
or to deal with misconduct by the police was through police disciplinary and
supervisory procedures, civil actions for damages and the machinery of com-
plaints against the police.402
The Commission equally did not favour the ˜reverse onus™ exclusionary rule
recommended by the Australian Law Reform Commission, under which
improperly obtained evidence is inadmissible unless the prosecution can satisfy
the judge that there was some special reason why the impropriety should be
condoned. Such a rule, the Commission said, would be di¬cult to administer
in a uniform way. It would not reduce trials within trials. The fact that the judge
had a discretion would weaken the deterrent e¬ect on the police.

PACE The Government adopted a di¬erent approach from that proposed by
the Royal Commission. At a very late stage of the Bill it introduced an expanded
version of the common law discretion. This became s. 78, which has been by far
the most frequently used section of the Act:
78. (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 evi-
dence was obtained, the admission of the evidence would have such an adverse
e¬ect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to
exclude evidence.
The impact of s. 78 has been remarkable. Contrary to what most commentators
expected, the judges have forged the somewhat ambiguous words of the section

401
The Royal Commission™s Report attracted severe criticism from some quarters for its failure to
recommend an exclusionary rule“ see for instance J. Driscoll, ˜Excluding Illegally Obtained
Evidence “ Can We Learn from the United States?™, Legal Action Group Bulletin, June 1981,
p. 131. See also by same author, ˜Excluding Illegally Obtained Evidence in the United States™,
Criminal Law Review, 1987, p. 553. The US rule is in the process of development. In US v.
Patane 542 US 630 (2004) the Supreme Court held that where the fruit of a voluntary
statement is physical evidence (in that case a gun), the fact that the suspect had not been
cautioned (in that case because the suspect said he knew his rights) did not mean that the
evidence (of the gun) had to be excluded. The privilege against self-incrimination was not
engaged, the court said, since the evidence was the gun not his voluntary statement that he
402
had a gun in the house. Philips, paras. 4.123“8.
480 The trial process


into a powerful weapon to hold the police accountable for breaches of the law
and of the Codes of Practice.
The most common basis for the Court of Appeal to apply s. 78 has been ˜sig-
ni¬cant and substantial™ breaches of the PACE rules. The cases concern (1)
breaches of the Act and or the Codes such as failure to tell the suspect (D) his
rights, not giving D access to a solicitor, not cautioning D, not providing an
appropriate adult, not complying with the formalities regarding interviews and
not complying with identi¬cation procedures; and (2) obtaining evidence by
tricks, undercover police work and the like.403
The Court of Appeal has repeatedly said that each case must be decided on
its own facts. It has refused to lay down guidelines as to how the discretion
under s. 78 should be exercised. The decision to exclude evidence is not taken
to penalise the police.404 In order to succeed under s. 78 the defence has to estab-
lish that a signi¬cant and substantial breach of the rules or other impropriety
has occurred, which a¬ects the fairness of the proceedings and which is
su¬ciently serious to require that the court excludes the evidence. In Walsh405
the Court of Appeal said: ˜The task of the court is not merely to consider
whether there would be an adverse e¬ect on the fairness of the proceedings, but
such an adverse e¬ect that justice requires the evidence to be excluded™.406
There are now a very large number of decisions interpreting and applying
s. 78. Reviewing this mass of case law for the 2005 edition of his book on PACE
the writer expressed his impression:407
Not that the courts have articulated a consistent and all-embracing theory for
the application of s. 78. Various principles explaining the exercise of the discre-
tion to exclude evidence have been suggested by academic commentators. These
include the Reliability principle (to promote the reliability of evidence), the
Disciplinary principle (to penalise the police for breaches of the rules as a way
of promoting adherence to the rules), and the Protective principle (to protect
the accused).408 Many cases could be said to fall within those broad approaches
“ but there is little or no sign that the judges themselves deal with the problems
in that way. The evidence from the cases is to the contrary.409


403
For references to the actual cases see for instance the writer™s book, The Police and Criminal
Evidence Act 1984 (5th edn, 2005) pp. 368“76.
404
See for instance R v. Delaney (1988) 88 Cr App Rep 338, CA.
405
(1989) 91 Cr App Rep 161.
406
For the view that the courts tend to exercise the discretion in s. 78 against professional
criminals see M. Doherty, ˜Judicial Discretion: Victimising the Villains?™, 3 International
Journal of Evidence and Proof, 1999, pp. 44“56.
407
M. Zander, The Police and Criminal Evidence Act 1984 (5th edn, 2003, Sweet & Maxwell)
paras. 8“61“2.
408
See A. Ashworth and M. Redmayne, The Criminal Process (3rd edn, Clarendon Press, 2005)
pp. 314“32; and P. Roberts and A.A.S. Zuckerman, The Principles of Criminal Evidence (3rd
edn, Oxford, 2005) pp. 147“75.
409
See M. Hunter, ˜Judicial Discretion: Section 78 in Practice™, Criminal Law Review, 1994, p. 558
reporting on an empirical study in Leeds Crown Court. The judges she interviewed were
unanimous in rejecting the idea that they considered any of these theoretical principles when
481 The exclusionary rules of evidence


The writer believes rather that s. 78 has become established and accepted as a
means for the courts to determine what breaches of the rules or improper
conduct are unacceptable on a case by case basis without any clearly articulated
theory. Usually, even when there has been some breach or impropriety, the court
allows the evidence in and even when it ¬nds there to have been impropriety,
the Court of Appeal usually ends by dismissing the appeal, but there have also
been many cases, including non-confession cases, in which the appeal court has
quashed a conviction because of such improprieties. In the great majority of
such cases the court™s chief concern seems to be that the verdict should be based
on reliable evidence, but sometimes, the court is expressing a more fundamen-
tal concern directed not so much to the result in the particular case as to a view
that the system demands a minimum of procedural correctness and moral
integrity.410
To some extent the decisions of the courts applying s. 78 can be systematised.
Certain basic distinctions have emerged, but there remains (and will always
remain) a signi¬cant and irreducible degree of discretion left to the court . . .
Professor Diane Birch, writing about the entrapment cases, has suggested that
˜the more principled the discretion can be said to be, and the more its underly-
ing aims can be articulated, the more consistent will be the decisions made
under it™.411 She cites another academic view of the need to avoid the ˜mushiness
and unpredictability of a general doctrine of exclusion for “unfairness” ™.412
Consistency in the application of a discretion to exclude evidence on the
grounds of unfairness may be desirable but in the end it is unattainable.

Evidence obtained by torture In December 2005, the House of Lords, in a case
heard by seven law lords, held unanimously that evidence of any kind obtained
by torture is inadmissible in judicial proceedings regardless of whether the
torture was conducted by British or by foreign agents.413 The Special
Immigration Appeals Commission had held that the fact that evidence had
been, or might have been, procured by torture in¬‚icted by foreign agents, pro-
vided it was without the complicity of the British authorities, did not make it
legally inadmissible. The Court of Appeal by a majority of two to one, upheld
the decision. Each of the law lords wrote an opinion rejecting the Court of
Appeal™s view.414 They relied primarily on the common law, though Lord
Bingham also based himself on international law as taken into account by the
ECHR.415

deciding whether to exclude disputed evidence. The writer cannot say that he is surprised at
this ¬nding which would probably be equally true of the Court of Appeal.
410
See further I.H. Dennis, ˜Reconstructing the Law of Criminal Evidence™, 42 Current Legal
Problems, 1989, p. 21 and A.A.S. Zuckerman, ˜Illegally Obtained Evidence: Discretion as a
Guardian of Legitimacy™, 40 Current Legal Problems, 1987, p. 55.
411
˜Excluding Evidence from Entrapment: What is a “Fair Cop”?™, 73 Current Legal Problems,
1994, p. 89.
412
J.D. Heydon, ˜Entrapment and Unfairly Obtained Evidence in the House of Lords™, Criminal
Law Review, 1980, p. 134.
413
A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 1 All ER 575.
414 415
In the All England Law Reports, the judgments run to 63 pages. At [52].
482 The trial process


However, their lordships were not prepared to extend the common law exclu-
sionary rule to evidence obtained as a result of inhuman or degrading treatment.
Also, they recognised that although the courts could not take evidence pro-
cured by torture into account, the executive in the person of the Home Secretary
could do so when deciding whether to impose control orders on terrorism sus-
pects.416

Irregularly obtained real evidence in Scotland In the leading case of Lawrie v.
Muir decided in 1950 by a full bench of the High Court of Justiciary, Lord
Cooper stated that whether irregularly obtained real evidence should be admit-
ted must be determined according to the balance between the need to preserve
civil liberties and the need to ensure that justice is done.417 Until then, in
Scotland, real evidence which had been obtained irregularly was always in prac-
tice admitted. Tracing the history of this doctrine since 1950 Professor Peter
Du¬ wrote:418
Unfortunately, for a number of reasons, no clear framework has evolved to guide
judges in this task. First, the various, traditional rationales for excluding
improperly obtained evidence have all frequently been cited: the ˜reliability
principle™ (i.e. ensuring the reliability of the evidence); the ˜disciplinary princi-
ple™ (i.e. controlling the police and prosecution authorities); the ˜vindicatory
principle™ (i.e protecting or vindicating the rights of the accused). As is the sit-
uation elsewhere, it is not clear which of these rationales motivates the decisions
of the Scottish courts and this has led to inconsistencies in the application of the
law. As we shall see, in one case the court will cite one of these three principles,
leading to a particular result, and in another similar case the court will cite
another, leading to a di¬erent result . . .
Secondly, and to some degree related to the ¬rst reason, there is some confu-
sion as to what factors are relevant in determining whether evidence should be
admitted and the weight to be attributed to these. Among the issues which have
been taken into account by the Scottish courts are: the gravity of the crime; the
extent of the irregularity; the urgency of the investigation; the need to preserve
evidence; the authority and identity of those who obtained the evidence; the
motive of those responsible for the impropriety; the extent of the infringement
of the accused™s rights; and the issue of fairness to the accused. The judiciary has
tended to ˜pick and mix™ from this list, sometimes being heavily in¬‚uenced by a
particular factor and on other occasions, dismissing the same factor as of no
account. This has led to considerable inconsistency and uncertainty in the law.
(One di¬erence between the English and the Scottish position is that whereas
s. 78 explicitly gives the judge a discretion, in Scotland the judge technically has

416
For the suggestion that the reasoning in the judgment is not as solid as one might wish see
N. Rasiah, ˜A v Secretary of State for the Home Department (No 2): Occupying the Moral
High Ground™, 69 Modern Law Review, 2006, pp. 991“5.
417
1950 JC 19 at 26.
418
P. Du¬, ˜Irregularly Obtained Real Evidence: The Scottish Solution?™, 8 International Journal of
Evidence and Proof, 2004, p. 77 at 78“9.
483 The exclusionary rules of evidence


no discretion. The admissibility question is treated as a matter of law. In
England the appeal court is reluctant to interfere with the trial judge™s exercise
of discretion. In Scotland, Professor Du¬ says, the appeal court is ready to ˜¬ne-
tune™ decisions on admissibility reached below.)

Exclusion of improperly obtained evidence in New Zealand419 In 1992, the
New Zealand Court of Appeal created a rule for the exclusion of evidence
obtained in breach of New Zealand™s Bill of Rights Act 1990.420 The rule pro-
vided that such evidence was presumed to be inadmissible unless the prosecu-
tion was able to persuade the court otherwise.421 In practice, once a breach was
established the evidence was normally excluded. However, this prima facie
exclusionary rule did not last long. In 2002, in Shaheed422 the Court of Appeal,
sitting with seven judges, abolished the rule it had created only ten years earlier.
Six of the seven judges decided that exclusion should instead be based on a bal-
ancing of di¬erent factors similar to the discretion to exclude evidence on the
basis of unfairness which applied in non-Bill of Rights cases. The balancing of
a variety of factors is what operates explicitly in Scotland and implicitly in
England under s. 78.
See also I.H. Dennis, The Law of Evidence (3rd revised edn, Sweet and
Maxwell, 2006) Ch. 8.


The ECHR and the fairness of trials
In Khan (Sultan) v. United Kingdom423 the European Court of Human Rights
held that although there had been breaches of Articles 8 and 13 of the
Convention, the defendant had not been deprived of his right to a fair trial
under Article 6(1) of the Convention. The case concerned reception of evidence
from a listening device installed on his home by the police.424 The Strasbourg
Court reached the same decision in PG and JH v. United Kingdom425 which con-
cerned covert listening devices both at the suspects™ home and at the police
station. The House of Lords adopted the same approach in Sultan Khan426 and
P.427 In both it held that the question whether the trial was fair should be judged
by application of s. 78.
Further reading A. Ashworth, ˜Article 6 and the Fairness of Trials™, Criminal
Law Review, 1999, pp. 261“72; Sir Robert Walker, ˜The Impact of European

419
See R. Mahoney, ˜Abolition of New Zealand™s Prima Facie Exclusionary Rule™, Criminal Law
Review, 2003, pp. 607“17.
420
Butcher [1992] 2 NZLR 257; Kiri¬ [1992] 2 NZLR 8.
421
For the argument that the English system should adopt the same rule for evidence obtained in
breach of the ECHR see D. Ormerod, ˜ECHR and the Exclusion of Evidence: Trial Remedies
for Article 8 Breaches?™, Criminal Law Review, 2003, p. 61.
422 423
[2002] 2 NZLR 377, CA. (2000) 31 EHRR 1016, [2000] Crim LR 684.
424
For critical comment see Professor Ashworth™s commentary in the Criminal Law Review, 2000
425 426
at pp. 684“86. [2002] Crim LR 308. [1997] AC 558.
427
[2001] 1 AC 146, HL.
484 The trial process


Standards on the Right to a Fair Trial in Civil Proceedings in United Kingdom
Domestic Law™, European Human Rights Law Review, 1999, pp. 4“14; F.G.
Jacobs, ˜The Right to a Fair Trial in European Law™, European Human Rights Law
Review, 1999, pp. 141“56.
For fuller treatment see especially B. Emmerson and A. Ashworth, Human
Rights and Criminal Justice (2nd edn, Sweet and Maxwell, 2006).


Abuse of process
The court can stop a case under the separate common law doctrine known as
˜abuse of process™ if it regards it contrary to the public interest to permit it to
continue.428 In R v. Horseferry Road Magistrates™ Court, ex p Bennett429 the
House of Lords ruled that a stay was appropriate where B had been forcibly
abducted and brought to this country to face trial for false pretences in disre-
gard of extradition laws. Lord Gri¬ths said that the judiciary should not ˜coun-
tenance behaviour that threatens either human rights or the rule of law™ and
that if a serious abuse of power has occurred the court ˜should express its dis-
approval by refusing to act upon it™.430 The same doctrine was applied in 2005
by the Court of Appeal in Grant431 when it stayed a case for conspiracy to
murder432 because the police had deliberately eavesdropped upon and tape
recorded privileged conversations between the defendant and his solicitor. The
case is the more striking in that the taped conversations did not produce any
material of assistance to the prosecution. The mere fact of the eavesdropping
was so serious an abuse of process as to require the quashing of the murder
conviction.
In Shahzad433 by contrast, the House of Lords refused to apply the doctrine
in a case where S was lured by a customs o¬cer to come to this country to collect
a shipment of heroin S had sent here. (˜The conduct of the customs o¬cer was
not so unworthy or shameful that it was an a¬ront to the public conscience to
allow the prosecution to proceed™.434) In a speech, with which the other four
Law Lords agreed, Lord Steyn said:
The speeches in Bennett conclusively establish that proceedings may be stayed
in the exercise of the judge™s discretion not only where a fair trial is impossible,
but also where it would be contrary to the public interest in the integrity of the
criminal justice system that a trial should take place. An in¬nite variety of cases
could arise. General guidance as to how the discretion should be exercised in
particular circumstances will not be useful, but it is possible to say that in a case
such as the present the judge must weigh in the balance the public interest in
ensuring that those who are charged with grave crimes should be tried and the

428
For application of abuse of process in the context of delay see pp. 255, 368“69 above.
429 430
[1994] AC 42, [1993] 3 All ER 138. [1994] AC 42 at 62.
431
[2005] EWCA 1089, [2005] Crim LR 955.
432
The prosecution™s case was that G had recruited a gunman to kill his wife™s lover.
433 434
[1996] 1 All ER 353. Per Lord Steyn at 361.
485 The exclusionary rules of evidence


competing public interest in not conveying the impression that the court will
adopt the approach that the end justi¬es any means.435
See further M. Mackarel and C. Gane, ˜Admitting Irregularly or Illegally
Obtained Evidence from Abroad into Criminal Proceedings “ a Common Law
Approach™, Criminal Law Review, 1997, pp. 721“9. The authors criticise the
laxity of common law courts in the United States, Canada, Australia and the UK
for their failure to apply the standard set by the House of Lords in Bennett. Lord
Steyn in Shahzad said that the court had to undertake a balancing exercise.
Mackarel and Gane suggest that ˜the balance has been tipping heavily in favour
of the requirements of e¬ective crime control, to the extent that the irregular
and illegal activities of law enforcement agencies are considered to have little
bearing on the fairness or the propriety of any subsequent trial™.436
See generally D. Corker and D. Young, Abuse of Process and Fairness in
Criminal Proceedings (Butterworths, 2002).

435 436
Ibid. At p. 728.
Chapter 5

The jury


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