Illegally Obtained Evidence in Justice System - Coursework Example

Introduction By virtue of common law and statute the courts have a wide discretionary power to exclude unfairly or illegally obtained evidence. However, based on the authorities there are only two primary circumstances in which the courts will exercise that discretion in favour of the defendant at his or her trial. The courts are guided by several statutory and case law provisions that basically hold that the facts of a case be established by relevant and probative evidence. In other words the case is required to be established by credible evidence. Many academics and jurists alike argue that if evidence is obtained unfairly or illegally it is suspect and undermines not only the integrity of the evidence but the integrity of the criminal justice system as well. This discussion examines these safeguards and whether or not they sufficiently maintain the integrity of the criminal justice system. Discussion Section 78 of the Police and Criminal Evidence Act as interpreted by the courts has a double agenda. It seeks to ensure that a defendant is afforded his Convention right to a fair trial as contained in Article 6 of the European Convention on Human Rights.1 Its second purpose is to ensure that all relevant evidence is admitted where ever possible and at the same time provide for the defendant’s right to a fair trial. Section 78 provides as follows: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."2 In interpreting Section 78 the courts have taken a position entirely geared toward an element of fairness and in this way the discretion to include unfairly or illegally obtained evidence does not compromise the integrity of the criminal justice system. While Section 78 of the 1984 Act has given rise to a plethora of case law decisions, Professor Richard Stone maintains that the underlying approach by the courts is one of “fairness as fair play.”3 The judiciary has consistently displayed a propensity to remain loyal to the House of Lords decision in R v Sang [1980] AC 402 in its reading and interpretation of Section 78 of the Police and Criminal Evidence Act 1984. The cumulative value of the Lords’ position on the admission into evidence of unfairly or illegally obtained evidence is manifested by Lord Diplock as follows: "(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."4 R v Mason [1987] 3 All ER 481 has the notoriety of being the first case to which Section 78 of the Police and Criminal Evidence Act 1984 was applied. In this case, Watkins LJ determined that the sole purpose of Section 78 was to codify existing principles relative to unfairly or improperly obtained evidence as expressed by the common law.5 The Court of Appeal however did not share this view of Section 78 and maintained in R v Samuel [1988] 2 All ER 135 that Section 78 was a “self-contained provision” warranting an interpretation independent of precedents.6 Professor Richard Stone identifies three main recurring factors in the judicial application of section 78 all of which defeat the argument that all improperly obtained evidence should be ruled inadmissible so as to preserve the integrity of the criminal justice system. Stone’s recurring factors are bad faith, impropriety and “the effect of such impropriety on the outcome of the case.”7 With these provisos applied as guidelines to the judiciary’s exercise of its discretion to either admit or not to admit improperly obtained evidence the question of fairness is not compromised. If the evidence can be admitted in such a way that it does not unfairly prejudice the accused person the decision to refuse to admit such evidence has a great capacity to compromise the integrity of the criminal justice system. A fair trial means the balancing of the interests of all those impacted, not just the accused person. The public has an interest is the truth as well as the particular victims. Therefore striking a fair balance between these competing interests is the only way to preserve the integrity of the criminal justice system. In R v Mason [1987] 3 All ER 481 police conduct amounted to what was deemed bad faith by telling a suspect that his fingerprints had been discovered on a container which had contained inflammable liquids in an arson investigation. This information was a pure fabrication on the part of the police investigators and despite its concocted nature the suspect confessed to the arson under investigation. Although the judge at first instance allowed the admission into evidence of this improperly obtained confession statement the Court of Appeal did not agree. The Court of Appeal maintained that the deceit used by the police was “reprehensible” and given that the confession statement was the only evidence against the accused the conviction was unsafe and unsatisfactory and was therefore quashed.8 In maintaining a balance between the interest of justice for both sides of a trial the courts have drawn a line in determining what amounts to bad faith. For instance in R v Alladice [1988] Crim LR 608 when the police refused to allow a suspect in custody to have access to his attorney while they were conducting interrogations of him and he confessed the court ruled that there was no evidence of bad faith by the police, however: "if the police had acted in bad faith, the Court would have had little difficulty in ruling any confession inadmissible under s 78".9 Obviously every impropriety on the part of the police will not automatically result in the exclusion of evidence. After all police are made up of a system of human beings and as such will not conduct investigations without making some error of judgment.10 The case of R v Christou [1992] 3 WLR 228 offer an example where the police behaved improperly and the courts did not dismiss the evidence obtained as a result. In this case, the police had intentionally staged a scenario where they engaged in an operation for the sale of jewelry and in so doing they recorded the transactions. In the process the defendant was recorded dealing with and in stolen property. The Court of Appeal ruled that the police had not incited or encouraged the offences and had not acted improperly therefore the discretion under Section 78 would not arise.11 The courts have steadfastly maintained the position that the underlying question is whether or not the conduct by which evidence is collected is always to be scrutinized with a view to assessing whether or not it has the capacity to undermine the criminal justice system. Lord Nichols maintained that: “Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute.”12 Moreover the House of Lords in R v Loosely (2001) ruled that the question of police entrapment was not a matter for discussion or consideration under Section 78 of the Police and Criminal Evidence Act 1984. Any challenge to evidence obtained by entrapment properly remains under the substantive law by virtue of an application for a stay.13 A police officer may act in good faith when obtaining evidence by improper means, but that doesn’t necessarily mean that the evidence will automatically be admitted. Professor Stone argues that there are two circumstances in which police although acting in good faith have acted improperly with the result that the evidence obtained have been excluded by the courts by virtue of Section 78. These circumstances are: “…the failure to allow access to legal advice, and the failure to comply with the requirements of Code C as regards contemporaneous recording of interviews, or incriminating statements.”14 In a typical case the courts usually evaluate the elements of fairness within the context of Section 78 by looking to the Police and Criminal Evidence Act 1984 and its Codes of Practice. The court often takes into consideration: “…the extent to which the breaches were instrumental in obtaining the evidence, or whether the outcome of the case would have been any different if the evidence had been excluded.”15 Section 76(2) of the Police and Criminal Evidence Act 1984 provides another safeguard against the admission of a coerced confession. The underlying principle is closely tied to the concept of fairness and credibility of evidence. Section 76(2) permits an accused person to challenge the admissibility of a confession statement the grounds that it has either been obtained by oppressive means or by inducement.16 The Court of Appeal ruled in Regina v Fulling 1987 2 All E.R 65 that a confession statement is unreliable and should be excluded in evidence it was obtained by virtue of an inducement, for example a promise to the suspect that he would be released from custody or the prosecution process should he confess. The confession could also be excluded if it was obtained by virtue of coercion during the course of interrogations.17 Section 76 mandates that a confession statement might be excluded if the police fail to accurately record the interview, caution the suspect as to his right to remain silent, allow access to an adult guardian in appropriate cases and comply with the Code of Practice under the Police and Criminal Evidence Act 1984.18 The general purpose of the evidential rules discussed above is for the purpose of ensuring that criminal matters are not only resolved in fairness to the accused, but in fairness to both sides. The judge’s role in criminal proceedings is to ensure that the trial is conducted in a fair manner and that in the process all of the relevant evidence is presented in the interest of both sides. However, proceedings may lose its fairness if relevant evidence if allowed and it is such that the opposing party can not challenge it.19 The rules of evidence has as its primary purpose the preservation of the integrity of the criminal justice system. Perhaps Lord Steyn makes the best case for the balancing principle in which it is inappropriate to admit some improperly obtained evidence and yet in other cases it is entirely permissible. In Latif and Shahzad [1996] 1 WLR 104, Lord Steyn said that if the court steadfastly admitted improperly obtained evidence: “…the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases it would incure the reproach that it is failing to protect the public from serius crime.”20 Lord Steyn went on to explain that there can only be one solution. That solution was to permit the court the discretion which obviates a balancing act. It involves “countervailing considerations of policie and justice.”21 Peter Mirfield takes a similar view. The integrity of the criminal justice system is no less threatened by a practice that permits a guilty man to escape prosecution than it is by a system that permits an innocent man to be prosecuted.22 As Andrew T Choo explains this balancing act reflects that: “While the public interest in the moral integrity of the criminal justice system favours the exclusion of relevant and reliable evidence which happens to have been obtained improperly, the public interest in the conviction of the guilty favours its admission.”23 This is obviously no easy task, but it is far more preferrable for the preservation of the criminal justice system than the adaptation of a practice that subscribes to a strict exclusionary principle. Conclusion The discretion to admit or to refuse to admit improperly obtained evidence is dictated by judicial discretion which must by and large be left untouched. Each case must turn on its own facts since impacts and consequences of improperly obtained evidence can not be prescribed and applied to a strict list of scenarios. Any attempt to do so would compromise the integrity of the criminal justice system.24 The judge is in the best position to determine whether the admission of dubious evidence would unfairly prejudice the trial.25 After all principles of fairness and confidence that the guilty will be prosecuted and the innocent will not be punished are the key elements to fostering the integrity of the criminal justice system.26 Indiscriminately excluding all evidence that has been improperly obtained compromises these principles. Bibliography Bates, Frank. “Improperly Obtained Evidence and Public Policy: An Australian Perspective.” The International and Comparative Law Quarterly, Vol. 43, No. 2 (Apr., 1994), pp. 379-391 Barnett, Hillaire. (2004) Constitutional and Administrative Justice. Routledge Cavendish Choo, Andrew, T. (1993) Abuse of Process and Judicial Stays of Criminal Proceedings. Oxford University Press European Convention on Human Rights Latif and Shahzad [1996] 1 WLR 104 Mirfield, Peter. (1997) Silence, Confessions and Improperly Obtained Evidence. Oxford University Press Osborne, Debra. “Suppressing the Truth: Judicial Exclusion of Illegally Obtained Evidence in the United States, Canada, England and Australia.” [2000] MUrUEJL 40 Available online at: http://www.austlii.edu.au/au/journals/MurUEJL/2000/44.html Retrieved January 23, 2008 Police and Criminal Evidence Act 1984 R v Alladice [1988] Crim LR 608 R v Christou [1992] 3 WLR 228 R v. Loosely (2001) http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd011025/loose-1.htm viewed January 23, 2008 R v Mason [1987] 3 All ER 481 R v Samuel [1988] 2 All ER 135 R v Sang [1980] AC 402 Regina v Fulling 1987 2 All E.R 65 Stone, Richard Professor. Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles. [1995] 3 Web JCLI http://webjcli.ncl.ac.uk/articles3/stone3.html viewed January 23, 2008 Read More