I just typed out a new blog post but because something was wrong with the internet connection, I lost it while I was posting. Aaaargh. I should have typed it out on Microsoft Word first.
Anyway, allow me to share my answer on a question on law of evidence today.
Is it justifiable to exclude entirely reliable evidence under section 78 of the Police and Criminal Evidence Act 1984?
The wording of section 78(1) of the Police and Criminal Evidence Act 1984 (PACE) suggested that it is justifiable to exclude entirely reliable evidence under the section. The section allows courts to refuse to allow evidence that “would have such an adverse effect on the fairness of the proceedings”, and it is entirely possible for reliable evidence obtained by improper means to have adverse effect on the fairness of the proceedings. Lord Scott in R v Looseley acknowledged that the fairness of a trial may be compromised if the prosecution is allowed to rely on evidence obtained by unfair means.
However, more often than not, what is practiced is not what was preached. The common law position as derived from House of Lords’ decision in Sang was that improperly obtained evidence could be excluded only in the exercise of the court’s discretion to ensure a “fair trial” and in the exercise of this discretion such evidence could be excluded only if the impropriety affected the reliability of the evidence or constituted an infringement of the accused’s right against self-discrimination. Reliability is a factor taken into account in deciding whether discretion to exclude ought to be exercised. After all, section 78 is not a tool used to discipline the police.
On the other hand, significant and substantial breaches of Code by police tend to lead to exclusion of evidence, irrespective of the issue of reliability. In Mason, where the police hoodwinked both the solicitor and client, the deceit practiced was said to be “a most reprehensible thing to do.” PACE is an important Act, especially to protect the rights of the accused. As the court reasoned in Canale, if police continue to demonstrate lamentable attitude towards PACE by practicing serious breaches that are flagrant, deliberate and cynical, it is time for the police to appreciate the importance of PACE. It does seem that section 78 had turned out to be a means to ensure the police comply with the Codes under PACE by excluding entirely reliable evidence.
Furthermore, the case of Smurthwaite provided a non-exhaustive list of factors in deciding whether to exercise its exclusionary discretion: was the police enticing the defendant to commit an offence he would not otherwise have committed; does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of offence; is there an unassailable record of what occurred or is it strongly corroborated; and whether he has abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the codes.
There is a public interest in not conveying the impression that the court will adopt the approach that the end justified any means. Even if there is no danger of the conviction of an innocent person, a court has the duty to act if failure to do so would compromise the legitimacy of the adjudicative process. As House of Lords put it simply in Latif, there is a need to take into account “broader considerations of the integrity of the criminal justice system.” Considerations of extrinsic policy are as much a concern as considerations of intrinsic policy.
Recent decisions of the Court of Appeal appear to have shifted their focus from nature of the breach to nature of the evidence. Reliability of evidence is once again an issue. It was held in Cooke that even if the DNA profile obtained from hair from accused’s head was illegal, it is not wrong to admit the evidence since it constituted very strong evidence that Cooke had sexual intercourse with the complainant. The illegality had not affected the reliability of the evidence – it would be absurd to say that DNA could change just because the hair was plucked illegally.
Perhaps we can argue that the gravity of illegality in Cooke was not serious enough. The police did not inflict grievous bodily harm on Cooke to obtain the evidence. What about Chalkley, then? In order to obtain evidence, the police had arrested Chalkley in connection with crimes about which no action had previously been taken to place listening device in his home. The court held that even if the arrest of Chalkley was unlawful, the judge’s decision not to exclude the evidence should stand. Court also suggested that the discretion to exclude evidence on the ground that it had been obtained improperly was only applicable in relation to evidence of a confession obtained from the accused, other evidence obtained from the accused after the commission of the offence, evidence excludible under the Smurthwaite principle and evidence which quality might be affected by the way it was obtained. The decision of House of Lords in Khan (Sultan) also made it clear that even taking into account the effect of European Convention of Human Rights and Human Rights Act 1998, it would be a strange reflection on English law if a man who has admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded. The cases seem to be suggesting that reliable evidence would not be excluded. As said in Mullen, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.
However we must taken into account what was said in Quinn: that function of the judge is to protect the fairness of proceedings. Normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if one side is allowed to adduce relevant evidence which the other side cannot properly challenge or meet, or where there has been an abuse of process. Section 78 aims to ensure fairness of proceedings. This would mean that it is justifiable to exclude reliable evidence which is improperly obtained.
This is followed by Radak, where the court’s central concern was the failure to respect the accused’s procedural rights instead of the quality of the impugned evidence. This was also the position of Saunders v United Kingdom, where the court was prepared to accept that the use of evidence obtained in breach of internationally recognized procedural safeguards could violate basic principles of fair procedure inherent in Article 6 of the European Convention on Human Rights. The case of Teixeria de Castro v Portugal also made it clear that despite the fact that the fight against organized crime may require “appropriate measures to be taken”, the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience.
Perhaps the justification of entirely reliable evidence could be best explained by Dennis, who said that fairness of the proceedings as a whole may be adversely affected if admission of the prosecution evidence in question means that the prosecution have an advantage which is inconsistent with the fundamental moral and political values of the criminal justice system. Section 78 enables the judge to calculate whether the extent of the unfair advantage is such as to require the exclusion of the evidence.
