Should Evidence Be Excluded if Obtained Improperly by the Police - Term Paper Example

 Should Evidence Be Excluded If Obtained Improperly By The Police? Discuss In Relation To S. 78 And S. 76 Of The Police And Criminal Evidence Act 1984 TABLE OF CONTENTS TITLE PAGE/S Abstract 3 Chapter I. The Problem and Its Background 4-8 Chapter II. Review of Related Literature 8-9 Chapter III. Research Methodology Used 10-11 Chapter IV. Presentation of Data and Data Analysis 11-35 Chapter V. Conclusion 36-37 Chapter VI. Recommendation 37 Bibliography ABSTRACT This paper discusses The Admissibility Of Illegally Obtained Evidence Presented By The Police Authorities To The Courts Of Justice in line with the provisions of the Police and Criminal Evidence Act 1984 (PACE), particularly S. 78 and S. 76. These provisions give the court sufficient discretion to exclude or admit evidence which has been obtained illegally. Due to this development, numerous case laws erupted, often conflicting with each other. This study therefore attempts to analyze the principles behind the court’s exercise of discretion. The policy behind the law as well as the reasons behind the grant of discretion to the judge shall be examined and understood in light of the recent development of jurisprudence on this aspect of remedial law. The boundaries between its strict application and exercise of discretion shall be presented for the purpose of shedding more light to the public. It will include examination of all relevant decisions of the courts so that the factors affecting the exercise of discretion could be clearly identified. It will also include a study of connecting the policies with the actual practice in courts. Thus, legal as well as practical recommendations shall be made in the end. CHAPTER I THE PROBLEM AND ITS BACKGROUND INTRODUCTION As a general rule, criminal laws are enacted in order to protect the society from unscrupulous elements of the law and vindicate the rights of the victims, which have been violated by the suspects. These laws lay down the specific acts which, when committed, create a demandable right, both on the state and the individual, to pursue the suspect and indict him for the malfeasance committed. Thus, justice on the part of the victim could be obtained by merely proving the existence of probable cause against the suspect so that the police authorities could immediately act and apprehend the suspect for prosecution and trial. On the other hand, criminal procedure as embodied in the Police and Criminal Evidence Act 1984 (PACE) lays down the policies as well as the limitations to be observed by the police that will serve as guidance to the magistrates who will handle the case. One of the issues embraced therein is the admissibility of evidence procured by the police thru means not sanctioned by law. In short, the question is whether or not the court, for purposes of convicting the accused, should accept the evidence illegally obtained by the police authorities. Those who oppose the proposition base their arguments on the legal maxim that such kind of evidence is ‘a fruit of the poisonous tree’ and therefore must not be used. No amount of evidence, no matter how substantial it would be, could justify its use for the conviction of an accused, which, incidentally, is always presumed to be innocent unless proven beyond reasonable doubt. Hence, the end does not justify the means. Indeed, if conviction of an accused will lie on evidence that has been obtained in violation of the latter’s rights, absolute justice will still not prevail as in the process, injustice was also meted to the accused. This should not be the case of the English judicial system. On the other hand, adherents of the proposition stand firm on the logic of the maxim, ‘The end justifies the means.’ It has been argued that justice to the victims should not be sacrificed for the lame reason that the evidence proving the guilt of the accused was obtained in violation of the law, by the police authorities. This would create a grave injustice as the accused could just make underground connections with the police themselves and ask the latter to set him up and obtain evidence from him that would make up a violation of his rights and therefore automatically excludes the evidence before the court. This would mean a clear acquittal of the accused, to the prejudice of the victim and the whole society. Due to this conflict of arguments regarding the application of the exclusionary rule on evidence, it is deemed necessary that a thorough study on the matter should be made not just to guide the police but also the magistrates who might find themselves caught in a situation wherein their exercise of discretion as embodied in the Police and Criminal Evidence Act 1984 is called for. STATEMENT OF THE PROBLEM This study aims to provide the legal and practical bases of admission or non-admission of evidence illegally obtained by police authorities. It also seeks to provide the specific instances that could lay down the exceptions to the general rule being observed in the state. In particular, this study aims to answer the following questions: 1. What does the law provides on this issue? 2. What is the rationale behind the provision/s? 3. What is the rationale behind the argument of the opposition? HYPOTHESES 1. The law does not provide a strict rule on this issue. 2. Courts are given enough leeway to exercise their discretion on case-to- case basis. 3. The rights of the accused are the most paramount among the rights involved in the prosecution. SIGNIFICANCE OF THE STUDY A clear understanding of the effects of illegally obtaining evidence could assist the police as well as the public, in gathering evidence against the accused. This could serve as a practical guide in the proper enforcement of the laws so that time, money and effort of the government would not be wasted gathering evidence that could otherwise be refused by the court. Also, concrete and easy-to-apply guidance could help the judges in ascertaining when evidence is admissible or not so that they would not be swayed by the volume thereof, or its substance, to the prejudice of the accused whose rights could have been violated by the police. This will therefore create a more reliable justice system through the help of a more informed police and more updated magistrates. SCOPE AND DELIMITATION OF THE STUDY This study will focus on the recent jurisprudence applying S. 78 and S. 76 of the Police and Criminal Evidence Act 1984 as well as the basic rights of the accused. All cases involving admissibility of illegally obtained evidence decided prior to the enactment of the Act are not included in order to avoid confusion on the laws being considered. DEFINITION OF TERMS Admissible evidence - evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections.1 Entrapment – inducement by a police officer or a police agent, of the commission of an offense, which the defendant would not otherwise have committed2 Evidence - the documentary or oral statements and the material objects admissible as testimony in a court of law3 Exclusionary rule - A rule that forbids the use of illegally obtained evidence in a criminal trial.4 CHAPTER II REVIEW OF RELATED LITERATURE Roberts and Zuckerman5 discussed the main arguments for and against exclusion. These include the remedial theory, the deterrent theory and the moral integrity and the legitimacy of the verdict theory. They explained that the remedial theory provides that there should be boundaries to police investigation. Although the public will benefit from being protected from illegal searches, this theory has been criticized. Some argue that once incriminating evidence has been found it cannot simply be ignored. It may be argued that the pubic would not mind restrictions on their rights for the protection from criminals. An example cited by Zuckerman6 is where a police officer uses force on a terrorist to obtain information about the whereabouts of his bomb, which is in a public place. However such circumstances may be rare and the police may use improper methods as a rule in order to secure convictions. The deterrent theory is based on the idea that the police would not use improper methods to gain evidence, if such evidence was not admissible. Critics state that sometimes, illegitimate evidence gathering is morally permissible. It has been said that even lawful police powers erode citizens’ rights, or else, they would not be able to control crime at all. In some cases when the defendant pleads guilty to a crime, the legality of the police conduct will not be investigated in court, so that may be a weakness in the deterrent theory. Another rationale for excluding improperly obtained evidence is the moral integrity and the legitimacy of the verdict theory.7 It suggests that if courts admitted evidence that was obtained in an improper way, it would affect the moral integrity of the courts per se. Judges thought themselves as isolated from the police conduct in the past but this is no longer acceptable. Critics of this proposition however argue that the state may lose faith in the public if there is a perception that suspects are getting off on a technicality. This may raise fears of an increasing crime rate. Prior to 1998, judges were in favor of admitting evidence even if improperly obtained, provided it overcame the hurdles of relevance and exclusion on other grounds.8 CHAPTER III RESEARCH METHODOLOGY USED Description of the Research Method to Be Used The researcher will use descriptive survey design. The researcher will critically examine legal documents as well as relevant articles, and identify, extract, analyze, integrate and present in a more useful, accessible and comprehensive form, the problems, methods, findings, conclusions and recommendations that cut across the study. The researcher will use qualitative research method since the study involves analysis of different documents such as relevant laws, opinions, and court decisions. This approach could attempt to examine the situation from a more open-ended perspective. Population Frame The population for this study is all accessible legal documents particularly laws relating to remedial law and criminal law. This will include mainly the Police and Criminal Evidence Act of 1984 (PACE) and Human Rights Act. Data Gathering Procedures The researcher will gather relevant documents from the different libraries and government agencies concerned with the subject of the research. Sources of Data Data from all relevant laws were gathered via library research. Some information was downloaded from the websites which provide adequate presentation of jurisprudence on the issue. CHAPTER IV PRESENTATION OF DATA AND DATA ANALYSIS The Police and Criminal Evidence Act (PACE) 1984 is an Act of the English Parliament which instituted a legislative framework for limitation of the powers of police officers in England and Wales in their pursuit to combat crime. It also serves as a code of practice for the exercise of those powers. The aim of the PACE 1984 is to establish a balance between the enforcement power of the British police, and the right of the members of the public. Any and all persons with a duty of enforcement is required to follow the provisons of the PACE 1984 in so far as it is practicable and relevant to the issue. These includes store detectives, Council Officers and Customs Officials. Criminal liability on the part of the authorities may arise if the specific terms of the act itself are not conformed to. On the other hand, if there is a failure to conform to the codes of practice while searching, arresting, detaining or interviewing a suspect, the evidence obtained thereon may be found to be inadmissable in court.9 Section 78 of the Act provides that “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.” This provision which lays down a permissible exercise of discretion of the court in admitting the evidence extracted thru unlawful means opens a wide room for arguments and discussions. The words ‘may’ and ‘if it appears to the court’ implies in the negative a hands-off policy in terms of appreciation of evidentiary rules while on the positive side, it can be deduced as an express recognition of the judiciary’s capability to analyze the peculiar facts of each case and thereafter, determine at its own free will, whether or not to accept the evidence presented by police authorities. Illegally obtained evidence are those facts, objects and/or confessions extracted by the authorities from the suspect thru means not sanctioned by law because it involves a process which violates the constitutionally enshrined right of the accused, among which are: right against self-incrimination, right to be informed of his custodial rights prior to examination, right to have an assistance of a counsel preferably of his own choice, right to be informed of the cause or accusation against himself prior to investigation, right to privacy, right to privileged communication, among others. As commented by the trial judge in the famous case of Colin Stagg who was charged in the murder of Rachel Nickell in July 1992, “the undercover operation is misconceived and betray[ing] not merely an excess of zeal, but a blatant attempt to incriminate a suspect by positive and deceptive conduct of the grossest kind. . . [a]ny legitimate steps taken by the police and the prosecuting authorities to bring the perpetrators to justice are to be applauded – but the emphasis must be on the word legitimate.”10 The acts of the police, in trying to extract evidence from a suspect, could run in conflict with the idea of fair play and right to privacy. 11 The police authorities, with all its armaments and power granted by law, may tend to abuse its powers in order to incriminate an otherwise innocent individual just because of mere suspicion.12 Despite the argument that nothing can be elicited from an innocent person, the mere fact that he was made a subject of surveillance and investigation, can be interpreted as intrusion of privacy and in effect, being penalized for something that he has not done. To admit improperly obtained evidence could be contrary to the Human Rights Act 1998, and in particular Article 6 thereof which provides a right to a fair trial and Article 8, which provides a right to privacy.13 One case that sought to use this argument is Teixeira de Castro14 where undercover police officers asked the defendant, a drug user, to put them in touch with a dealer. After much negotiation he introduced them to the dealer who supplied heroin to the officers. The European Court held that admittance of such evidence would be contrary to Article 6. The police incited a crime that could not have happened had they not created it. The operation was not conducted by authorized drugs investigation officers and was not subject to judicial supervision by a magistrate. Mirfield 15 suggest that this was a case on its own facts as the discretion has not been applied so widely subsequently. This is somewhat related to the integrity principle wherein one of the basic institutions of the government would get an unfavorable image of engaging in a ‘fishing expedition.’ Arguments against allowing improperly obtained evidence include the integrity principle. The law enforcement agencies should practice what they preach. Another argument is the idea of abuse of power. The police have a lot of power and resources; they also have the psychological advantage over most suspects. Another justification put forth is confidence in the criminal justice system. People may lose faith and may be less willing to believe the evidence of the police officers. The ever reliable image that the police authorities should have will then be tainted by constantly resorting to illegal means in getting evidence which they are suppose to get only thru means allowed by law. Such a resolution to admit evidence may have dangerous consequences. If the police believe that the evidence they obtain will be admitted, no matter how they got it, may lead to very serious abuses of power. It may in fact mean that the police will abuse their power without a second thought, and that such abuses may therefore become very common. S. 78 of the PACE Act gives the power to the court to exclude evidence under the circumstances enumerated therein. This has been criticized because the evidence may be probative yet excluded, which may lead to a guilty person getting an acquittal. The idea of exclusion of improperly obtained evidence is linked to fairness of proceedings. In the case of R v Sang,16 the House of Lords ruled that evidence obtained thru entrapment cannot be excluded by the judge by mere exercise of discretion because under the English law, entrapment is not a substantial defense. At the most, it could be used merely to mitigate the penalty for the crime committed. In this case the evidence was procured as a result of an agent provocateur. The admissibility of such evidence depends on whether any impropriety would affect the reliability of the evidence or violate the suspect’s right against self-incrimination; such a right would only be violated if obtained after the offense. However, there is no certainty as to the result of this case as to when such evidence would be excluded, which may mean that the police would not tame such strategy or behavior. The overall view of the Lordships is summarized as follows: Lord Dislock gave two (2) propositions namely, (a) A trial judge in a criminal trial has always a discretion to refuse to admit if in his opinion, its prejudicial effect outweighs its probative value; and (b) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offense, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. Lord Salmon expressed the view tht a judge has the discretion to refuse admission of evidence when it would make the trial unfair. Lord Fraser on the other hand, said that judges should be left to exercise their discretion if based on their individual perception, the evidence is unfair or morally blameworthy or oppressive. Lord Scarman expressed a similar view stating that “the principle of fairness, though concerned exclusively with the use of evidence at trial, is not susceptible to categorization or classification, and is wide enough in some circumstances to embrace the way in which after the crime, evidence has been obtained from the accused.” However, with the enactment of PACE 1984, the element of discretion has been recognized. However, before ruling on the admissibility of the entrapment evidence, there must be sufficient consideration of all important circumstances surrounding the undercover operation of the police, e.g. whether a confession was obtained from the accused, whether the role played by the police is active or passive, whether there are other collaborating evidence, or whether the entrapment was adopted with the intention of circumventing the Code of Practice. In this aspect, what the court could have meant as entrapment is actually a mere instigation wherein the criminal idea is already possessed by the accused and the police merely joined the latter in the precise execution of the criminal plan of the accused. This means that whether or not the police entered the scene, the accused will definitely commit the crime. To this, there could have been no violation of the rights of the accused and evidence obtained therein is surely admissible in court. No exact provisions exist, either in PACE 1984 or in the Code of Practice, which enumerate the particular boundaries or limitation of undercover police operations. The general executive guidelines could be found in the Home Office Consolidated Circular to the Police on Crime and Kindred Matters 17 which states, inter alia: “a. No member of a police force, and no public informant, should counsel, incite or procute the commission of a crime. b. Where an informant gives the police information about the intention of others to commit a crime in which they intend that he shall play a part, his participation should be allowed to continue only where – i. he does not actively engage in planning and committing the crime; ii. he is intended to play only a minor role; and iii. his participation is essential to enable the police to frustrate the principal criminals and to arrest them (albeit for lesser offenses such as attempt or conspiracy to commit the crime, or carrying offensive weapons) before injury is done to any person or serious damage to property. The informant should always be instructed that he must on no account act as agent provocateur, whether by suggesting to others that they should commit offenses or encouraging them to do so.” It can be observed that the danger being prevented in the above guidelines is upon the possibility that the undercover operations may result to the creation of a crime, or may encourage or stimulate a crime. Gary Marx enumerated some ways by which the undercover activities may amplify crime. Some of which are the following: it may generate a market for the purchase or sale of illegal goods and services and may indirectly generate capital for other illegality; it may generate the idea and motive for the crime; it may entail coercion, intimidation, trickery, or persuasion of a person not otherwise predisposed to commit the offense; it may offer a seductive temptation to a person who would not otherwise encourter it; it may provide the contraband or a missing resource or ingredients essential for the commission of the crime; it may provide the context for false records and framing; it may generate a covert opportunity sturcture for illegal actions on the part of the undercover agent or informant; it may lead to retaliatory violence against informers; and it may stimulate a variety of crimes on the part of those who are not targers of the undercover operation.18 However, the possibility of creating a crime is not present when the inducements are made in getting evidence for crimes that are already committed. The prime consideration in this case now is to haunt for individuals who might be guilty of commission of some crimes and obtaining evidence for the purpose of indicting them in a manner that is consistent with the idea of fairplay and the criminal concept of presumption of innocence until proven otherwise. At present, it appears that the traditional concept of entrapment is no longer accepted. To this, the Court of Appeals held that entrapment is merely one of the many factors that should be considered in weighing the propriety of the actions of undercover agents of the police. It should be left to special circumstances, if necessary, because it seems that by doing this, it is the State that creates the crime which could not have been committed after all. Hence, unacceptable entrapment should not be a ground for discretionary exercise of exclusion of evidence but must be used as a ground to stay the proceedings due to abuse of process by the court. Ashworth19 also puts forth arguments for and against using deceptive practices exceptionally. This is linked to the seriousness of the offence, which may allow such evidence in cases of robbery, murder and terrorism. However, others argue that the more serious the crime the stronger the need to protect individual rights. Another justification could be for cases where there is difficulty in obtaining evidence. However it is unclear what criteria the police would apply to determine when such a situation would arise to entail them to apply deceptive practices. In R v Latif and Shahzad,20 it was held that the seriousness of the offense charged has something to do with the admissibility of the evidence obtained thru entrapment. In this case, the suspect raised the defense that he was in fact encouraged by the British government. He was accused of being an importer of heroin worth 3.2 million euros. The court favored admissibility of evidence against him. The logic behind it was the balancing of interest between the protection of the rights of the accused and the vindication of the public. In Leatham,21 Justice Crompton said that “It matters not how you get it; if you steal it even, it would be admissible in evidence.” This is backed up by the logical reasoning that the evidence of commission of a crime can stand by itself if it really exists; the manner it was discovered does not negate its admissibility, to the prejudice of the justice system. Recently however, there was a gradual change linking improperly obtained evidence to fairness and inadmissibility. In Kuruma v. R,22 the Privy Council stated that evidence would be excluded if its admission would be unfair to the defendant. According to Callis v. Gunn23 this included the police obtaining the evidence by threats, tricks, false representations, oppression, bribes or anything of that sort. Ashworth24 also sets out the arguments for and against exclusion of improperly obtained evidence. He begins with arguments for allowing such evidence. One justification is for reduced rights for criminals, meaning that there is less need for moral ‘compunction’ when dealing with them as opposed to ordinary citizens. However Ashworth deflects this argument by stating that at the investigation stage the defendant is a suspect not a criminal. Another justification is the equality or arms argument. This idea suggests that since suspects often tell lies the police should be able to do so. Ashworth argues that criminals should not be setting the standards for law enforcement. The third justification is the overall benefit to the community, which suggests that when balancing the costs versus the benefits of deceptive tactics the result state that allowing such evidence is justifiable especially in major crimes. However lies deprive people of free choice, and suspects ought to have the same protection as other citizens. PACE 1984 was enacted supposedly to help prevent unfair police practices. Choo and Nash25 thus state that it is unclear whether the judiciary will use it to exclude improperly obtained evidence that is otherwise reliable. They were then referring to the Court of Appeal authorities, which held that such exclusions may happen only in exceptional cases. They suggest that this line of reasoning is wrong. Keenan26 also addressed the scope of s.78. According to him, there was a need for some restrictions in the exercise of discretion by the courts as it would be impractical to exclude evidence on a minor infringement of the rules by the police authorities. It was held that the breach by the police would have to be significant and substantial before the evidence obtained could be excluded. Thru this, there would be proportionality in upholding good police conduct and public safety in having the evidence admitted.27 Choo 28 enumerated three (3) main factors which affect the decisions under S. 78, to wit: bad faith on the part of the police, impropriety in breach of PACE 1984 or its Code of Practice, and the effect of such impropriety on the outcome of the case. One form of bad faith is when the police employs deceitful means deliberately. The simple fact that the police are conscious that they are asking beyond their authority may in itself constitute bad faith that justifies the exclusion of the evidence thus obtained. Not every trick however may be regarded as evidence for exclusion. In R v Christou ,29 the police undercover agents put up a shop called Stardust Jewellers where they pretend to buy and sell jewelries. Each and every transaction was secretly recorded on camera. The suspect was caught on video dealing with stolen goods and giving incriminating statements. The Court of Appeals ruled that the evidence was admissible since the police did not act as agents provocateurs not did they induce the commission of the offense. More so, fairness was properly observed. In R v. Bailey and R v Smith30 a more deliberate play acting was sanctioned by the court. In this case, the police officers pretended to engage in a conversation in front of the defendants wherein the custody officer appeared to act in contravention to the investigating officers’ plans. The custody officer then placed the defendants in the same cell which was actually bugged. Feeling secured together, the two engaged in a conversation wherein incriminating statements were duly recorded. The Court of Appeals held that the action of the police was valid, claiming that the same was only a means to elicit evidence of a crime that has already been committed. Impropriety may be in the form of a breach of criminal or civil law, or failure to follow the procedures laid down by PACE 1984 and its Codes relative to detention, identification, custodial investigation, etc. of the accused. However, the fact that the evidence was obtained through impropriety does not automatically result to its exclusion. A clear example is the case of R v Samuel31. Here, Samuel was arrested for burglary or theft and was brought to the police for investigation. After he was charged, he was denied access to a solicitor. Afterwhich, he was investigated again during which, he admitted the commission of the crime. He was convicted but made an appeal before the Court of Appeals which ruled that the refusal of access to a solicitor after being charged was a violation of S. 58 of the PACE 1984 and of the Code of Practice on Detention and Questioning. Access to the solicitor was described by the court as one of the most paramount and fundamental rights of an accused and every citizen of the state. It further ruled that the magistrate should have pondered whether to exclude the evidence of the confession under S. 78. Failing this, the conviction of Samuel should be quashed. In this case, the emphasis was not on the reliability of the confession made but the precise breach of S. 58 which rendered the trial as unfair for the accused. The application of s.78 actually depends on the facts of the case. In R v. Roberts32 the Court of Appeals stated that “The true test is whether, having regard to the circumstances of the case as a whole, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice: and we consider that the proper adjudicator of this question is the trial judge himself, who has seen the witness, and who has a wide margin of discretion under section 78 which should only be disturbed in this Court if it can be shown that he erred in principle or was plainly wrong.” However in ITC Film Distributors v. Video Exchange Ltd33 it was held that if privileged documents were obtained by trickery in court it would not be admissible. This is because the court should not be allowed to condone this sort of practice. However Clegg34 suggests that this case was peculiar to the facts. There was a gradual change linking improperly obtained evidence to fairness and inadmissibility. In Kuruma v. R35 the Privy Council stated that evidence would be excluded if its admission would be unfair to the defendant. According to Callis v. Gunn36 this included the police obtaining the evidence by threats, tricks, false representations, oppression, bribes or anything of that sort. One of the first cases concerning the jurisprudence of s.78 was the case of Mason.37 In this case the trial judge rejected the argument that the evidence should be excluded under s.78 and 76. This case then went to the Court of Appeal (CA) who ruled that s.78 should be given its natural broad meaning, so as to cover non-confessional evidence. They also heavily criticised the tactics employed by the police, who had deceived the suspect and the lawyer, they hoped never again to hear of this kind of behaviour. Such reasoning may be limited to the facts, as it was the judges own lamentation of the police tactics that may have lead to this decision. Keenan38 also addressed the scope of s.78. There was a need for some restrictions as it would be silly to exclude evidence on a minor infringement of the rules. It was held that the breach by the police would have to be significant and substantial. This way there would be proportionality in upholding good police conduct and public safety in having the evidence admitted. This seems like sensible reasoning. S.78 has implications in entrapment cases. In Christou and Wright39 the police set up a fake jewellers shop in order to entice people into ‘shady’ deals, and rid the area of thieves. Some people came forward to sell stolen goods to them, they were asked questions such as where would it be unwise to resell the goods and they told them about areas that would minimise to chance of the real owners seeing their goods. This was all recorded on a video camera. On appeal they argued that the evidence should have been excluded under s.78. The CA held that the fact that the appellants had been tricked into that conduct did not make the police operation unfair. It was held that the trick was not applied to the accused but they applied the trick to themselves. Turning to the application of Code C of PACE, that they had to be cautioned before a police interview it was held that as long as the police were doing no more than was necessary to authenticate their roles, the operation was not to be rejected as a rouse deployed in order to avoid the PACE provisions. This seems like an artificial distinction to make, which in reality lead to the commission of the offence. It may lead to many similar cases having inconsistent results in applying this narrow distinction. The police went too far in the case of Bryce40 when they acted as a potential buyer for a stolen car. The defendant suggested that he knew that the car was stolen and had therefore paid considerably less for it than its true market value. Christou and Wright41 was distinguished because in this case the admission was not taped and when the police asked questions of B they did so to extract B’s knowledge of the car being stolen and therefore went beyond what was necessary in order to keep their cover. In R v. Smurthwaite; R v. Gill42 there was an attempt to lay down some guidelines on admissibility and entrapment evidence. They gave a non-exhaustive list for a judge to consider when deciding whether or not to use their discretion. Firstly was the police acting as an agent provocateur, so that they were enticing the suspect into the crime which he may not otherwise have committed? Secondly the nature of the entrapment, thirdly does the evidence consist of the actual commission of an offence or admissions to a completed offence, fourthly whether the police were passive or active in obtaining the evidence and fifthly is what happened strongly corroborated or is there an unassailable record of it. This may also seem like an artificial distinction. Choo compared Khan with Chalkley43, in which case the prosecution sought to adduce evidence of incriminating conversations. To obtain this conservation the police arrested Chalkley of crimes where no previous action had been taken, seized a house key and used it to enter his house to insert the recording devise. They made a copy of the key to enter his house on later occasions. The Court of Appeal (CA) held that evidence should only be excluded under s. 78 if firstly, it related to evidence of a confession from the suspect secondly, there was other evidence obtained from the suspect after the offence thirdly, the evidence is excludable under the Smurthwaite principles44 and fourthly, the quality of the evidence had been, or might have been, affected by the way in which it had been obtained. Choo states that Chalkley is wrong in implying that reliability is the sole concern in confession cases. In Khan45 the European Court held that a breach of Article 8 does not mean that there was a breach of Article 6. The defendant had pleaded guilty in this case, and the trial was held to be fair. They stated that it was strong evidence and not unreliable so the need for supporting evidence was weak. Mirfield46 pointed out that this was contrary to their previous jurisprudence. S. 76 PACE is linked to s.78. Prima facie confessions are admissible, unless some rule in this section operates to exclude it. The evidence may not be admitted if obtained by oppression of the person who made it or ‘in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’. This section defines oppression as ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).’ The prosecution must prove beyond reasonable doubt that the evidence was not obtained in such a way. The court may itself ask the prosecution to do this. However subsection (4) provides that even if the evidence is wholly or partly excluded, this does not mean that it will effect the admissibility of ‘any facts discovered as a result of the confession; or where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.’ Subsection (5) states that a fact which is discovered as a result of a statement made by the defendant is not to be admissible unless he or someone on his behalf gives evidence of how it was discovered. This includes the situation where the fact was discovered as a result of a confession which is excluded by operation of this section; or when the fact is discovered as a result of a confession which is partly excluded, and the fact was discovered as a result of the excluded part of the confession. There is a discretionary exclusion of confessions under s.76. If a confession is actually admissible under s.76 that is not conclusive of the matter, as it may be rendered inadmissible under s.78.47 Choo48 named four (4) policies which could be the bases for decisions ruling in favor of exclusion of evidence obtained illegally, to wit: unreliability, fairness, deterrence, and repute. According to him, reliability should be the basis of admission of evidence, thus, courts should avoid using unreliable evidence. He reminded however that in case of doubt as to the reliability of evidence, the courts should not automatically resort to exclusionary rule but rather, must exercise great caution in examining the same. This is usually applied in terms of confession of the accused. Related to the principle of compensation and protection as rationales for non-admission of illegally obtained evidence is the fairness principle. These refer to the situation in which the rights of the accused might have been infringed. It has been said that the court should be responsible enough to protect the accused from the disadvantage of using evidence resulting to the infringement of the latter’s rights. Another analysis given on this aspect is the requirement of balance between the powers of the police authorities and the rights of the accused. Given the fact that the police has more power and authority as compared to the accused, there is a demand for the protection of the latter and avoid the abuse of the power and position of the police as the state’s arm. As enunciated by Choo, deterrence is based on the concept of availing the exclusionary rule as away of penalizing the police for resorting to illegal means of obtaining evidence, and at the same time, encouraging them to ensure that correct procedures would be observed in the coming cases. As to repute, Choo explained that by itself, the administration of justice should not be tainted by malice or doubt by anybody. Thus, resorting to illegal means should be a no-no for the judiciary, otherwise, it would become an accomplice to an improper action committed by the police. One aspect of s.76 is the exclusion of evidence obtained by oppression. The breadth of this section is illustrated by the case of Glaves49 it was held by the trial judge that admission made due to police misconduct was inadmissible but that further admissions made eight days later was admissible. The judge made this decision on the incorrect understanding that the defendant had received legal advice within those eight days. CA held that in fact the further admissions could also have been excluded as the suspect may have been subject to a continuing influence of oppression. There have been questions of interpretation of torture, inhumane treatment and degrading treatment as specified in s.76. In the Greek Case50 the European Commission of Human Rights stated that the definition of inhuman treatment included treatment that ‘deliberately causes severe suffering, mental or physical’. They defined degrading treatment as treatment that ‘grossly humiliates the individual before others or drives him to act against his will or conscience’. This has the potential for a narrow interpretation. In Republic of Ireland v. UK51 acts of sensory deprivation, deprivation of food, water and sleep amounted to inhumane and degrading treatment. It leads to mental and physical suffering and humiliation. Tapper52 argues that the requirement of use or threat of violence must be more than a mere battery and involve a substantial use of force. But other types of behaviour could possibly be included such as shouting and threats. S.78 (8) lists other forms of oppression. In relation to oppressive questioning the courts require that the police use extreme conduct. To be fair the police would have a hard time resolving crime if a low threshold was applied. In Prager53 CA held that questioning that took over 14 ¼ hours did not amount to oppression. By contrast in the case of Hudson54 it was held that it was oppression when a suspect was taken to a police station many miles away from home, early in the morning and questioned on and off for five days. There was no oppression where as in Fulling55 the suspect made an admission after being told by the police that her lover had been having an affair. In Miller56 it was held that there was no rule that stated that the prosecution had to prove that the suspect had a free choice whether or not to confess. Therefore there is a high threshold for the defendant to prove oppression. In Paris, Abdullahi, Miller57 a murder conviction was quashed due to police oppression. This involved interviews taking place over five days using bullying and hectoring tactics, involving shouting and extreme repetition. Some argue that such evidence should not have been excluded, that the jury should have considered it in its circumstances. Oppression therefore is a matter of degree.58 For example in Heaton59 the suspect was interviewed over 75 minutes with repetition of questions. CA held that there was no shouting and distinguished from the case of Paris by holding that some repetition of questions was necessary. S.76(2) requires that there be some effect on the reliability of the evidence. In McGovern60 it was held that a confession must be excluded if the prosecution do not discharge the burden of proof requirement in s.76(2)(b), notwithstanding the confession may be true. S.76(2)(b) also requires that there be something said or done by an external influence to make the accused confess. In Goldberg61 the court stressed that the influence must be external. The fact that the suspect himself confessed in the hope of making bail was not sufficient. In the case of Delaney62 a conviction was quashed whereby the appellant confessed after the police suggested that he may need psychiatric help rather than punishment and there was a breach of recording procedures. There are other considerations to be taken into account. Fairness may be effected by breaches of other provisions of PACE, which cover cautions, interviews etc. For example in Everett63 a conviction was quashed because the trial judge failed to take into account medical evidence that the defendant has a mental age of 8. Even though he was forty two years old under Code C he should have been accompanied by a mature independent person. In Doolan64 the defendant made an admission but appealed against his conviction because the police officer had not cautioned him. CA held that interview evidence should have been excluded under s.78, but used the provision to uphold the conviction. In 2005 the House of Lords held that evidence against terror suspects by oppression would not be admissible. This is so even if the oppression is applied in other countries in order to extract evidence. Application of s.78 depends on the facts of the case. In R v. Roberts65 CA stated that ‘The true test is whether, having regard to the circumstances of the case as a whole, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice: and we consider that the proper adjudicator of this question is the trial judge himself, who has seen the witness, and who has a wide margin of discretion under section 78 which should only be disturbed in this Court if it can be shown that he erred in principle or was plainly wrong.’ This leads little certainty but allows the judge a wide discretion without the rigidity of rules. In R v. Looseley; Atty. Gen.’s Reference66 it was held that every court has the power to prevent abuse of its process. This helps ensure police officers do not misuse their powers. Lord Nicholls said the question is “whether the conduct of the police…was so seriously improper as to bring the administration of justice into disrepute” In reality, procedural issues are relevant in deciding whether a confession is admissible. In Thongjai v. R,67 it was held that there were two questions that the judge had to ask himself. Firstly, whether such evidence of an admission is inadmissible as a matter of law, and secondly, whether such an admission by the defendant was in fact made. There are other considerations to be taken into account. Fairness may be effected by breaches of other provisions of PACE, which cover cautions, interviews etc. In conclusion some people should be given protection against improper police practices. Some people may confess to something they did not do because they have a young mental age, or are given the impression by the police that there is a lot of evidence against them, and confess for a more lenient sentence. It has been asserted that it is better for a guilty person to walk free, than an innocent person to be locked up.68 CONCLUSION In general, no court or magistrate will automatically accept the use of trickery and deception in gathering evidence to be used for the conviction of the accused. However, it must be understood that in the real world, there are cases and circumstances that call for some exceptions. There can be no hard and fast rule in this aspect of criminal procedure. It must be admitted that there are really some people, which cannot be brought to trial simply because of absence of legitimate process of collecting evidence against them. There is no strict list of what evidence is admissible and what is not. As can be observed, the tendency now is to reject the exclusionary principle and rely on the intelligent and fair exercise of discretion by the magistrates. Relative hereto is the statement by the Home Secretary, Charles Clarke which states that, “[The Law Lords] held that there is an ‘exclusionary’ rule precluding the use of evidence obtained by torture. However, they held it was perfectly lawful for such information to be relied on operationally, and also by the Home Secretary in making executive decisions.69” RECOMMENDATION The discretion enunciated by S. 78 of the PACE 1984 justifies the flexibility and leeway given to the magistrates by taking into account the relevant factors peculiar in each case. However, it must be accompanied by firm guidelines as to what the proper police conduct is. Such guidelines would help facilitate the reasonable exercise of discretion by the judges in a logical and informed manner. In short, judges should understand when the questioned police conduct is grossly improper as to affect the fairness of the trial and whether it amounts to a minimal circumvention of the law that is insufficient to reverse an otherwise guilty conviction of the accused. A more detailed enumeration with sufficient elaboration of each circumstance must be issued by the legislature in order to limit the exercise of discretion of the judges and at the same time, guide the police authorities in their investigation and examination of suspected criminals so that any and all relevant evidence that they produce by virtue of their persistent efforts would not become futile and nugatory. BIBLIOGRAPHY BOOKS Birch, D (1994) “Excluding Evidence from Entrapment: What is a ‘Fair Cop?’ 47 Current Legal Problems 73 Bradley, C M (1993) The Failure of the Criminal Procedure Revolution . Philadelphia: University of Pennsylvania Press Choo, A L-T (1993) Abuse of Process and Judicial Stays of Criminal Proceedings. Oxford. Clarendon Press Criminal Evidence, Oxford, Oxford University Press, pp. 150-160 (2004) Dennis, I.H. The Law of Evidence (2002) London, Sweet & Maxwell, p.251 Feldman, D (1990) “Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act 1984 (1990) Criminal Law Review 452 Freeman S. and Booth, J. “Former British envoy releases ‘torture’ documents on web.” 30 December 2005. Times Online Gudjonsson, G H (1992) The Psychology of Interrogations, Confessions and Testimony. Chichester. 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[1994] 4 All ER 426 [1997] 1 Cr App R 217, CA [1997] AC 558, HL [1997] 1 Cr App R 217, CA [1997] 3 WLR 667 [1998] 2 All E.R. 155. (1998) 28 EHRR 101. Op.Cit 4 Op.Cit 16 Op.Cit 19 Op.Cit 23 (L.No. 3 of 2000) [2001] UKHL 53; [2001] 1 WLR 2060, H Op.Cit 4 p.197 (1969) 12 Yearbook of the European Convention on Human Rights 186. (No. 3 of 2000) [2001] UKHL 53; [2001] 1 WLR 2060, HL. WEBSITE SOURCES http://legal-dictionary.thefreedictionary.com/Admissibility+of+Evidence. Retrieved 17 August 2006. http://www.thefreedictionary.com/evidence. Retrieved 17August 2006 http://www.answers.com/topic/exclusionary-rule. Retrieved 17 August 2006 http://en.wikipedia.org/wiki/Police_and_Criminal_Evidence_Act_1984. Retrieved 17 August 2006 http://webicli.ncl.ac.uk/articles2/choo2.html. Retrieved 19 August 2006. Read More