Abstract
If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations.
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Notes
E.g., R v. Nikolovski [1996] 3 S.C.R. 1197, 1206 (‘The ultimate aim of any trial … must be to seek and to ascertain the truth’); Tehan v. U.S. 383 U.S. 406, 416 (1966) (‘The basic purpose of a trial is the determination of truth’).
For an overview of the different theories, see Ashworth and Redmayne (2010, 342–362).
The discussion will be general in a number of senses. First, it is addressed to legal systems that aspire to the rule of law and is not specific to any particular jurisdiction. Secondly, whereas in many jurisdictions, a separate regime of exclusion is created specifically for confessions obtained from the accused, the theory that is offered here applies to evidence generally, including but is not limited to confession evidence. Indeed, the situation that renders most salient the central problem involves unlawfully obtained physical objects, the reliability of which is not in doubt.
According to the classic and influential definition of Stephen (1886, 2), one fact is relevant to another where they are so related to each other that ‘according to the common course of events’ one (taken by itself or with other facts) ‘proves or renders probable’ the other. Similarly, Rule 401(a) of the United States’ Federal Rules of Evidence defines relevancy as the ‘tendency to make one fact more or less probable than it would be without the evidence.’
R v. Sang [1980] A.C. 402; Muhammad bin Kadar v. P.P. [2011] S.G.C.A. 32, [2011] 3 Singapore Law Reports 1205.
Cf. Laudan (2006, 19–26).
Confession evidence is a common law exception to this rule.
(1861) 8 Cox C.C. 498.
E.g., Kuruma v. R [1955] A.C. 197, 204, Callis v. Gunn [1964] 1 Q.B. 495, 502, Jeffrey v. Black [1978] Q.B. 490, 498.
[1980] A.C. 402. In his answer to the certified question, Lord Diplock stated (ibid., 437): ‘Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, [the trial judge] has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.’ All of the judges agreed with this answer. However, some expressed broader views. Lord Salmon, for instance, stated that the trial judge ‘has a discretion to exclude legally admissible evidence if justice so requires’ (ibid., 444–445) and Lord Scarman would not ‘lightly reject’ the recognition in earlier cases of the discretion to exclude evidence obtained from an accused by deception or a trick (ibid., 456). Be that as it may, Sang is generally regarded as having narrowed the scope of the discretion.
Cf. the position in Singapore: Ho (2012b).
R v. Looseley [2001] U.K.H.L. 53, [2001] W.L.R. 2060 at [11], per Lord Nicholls. (It should be noted that the common law discretion is preserved under s. 82 of the same Act; Sang is ‘reversed’ only in the sense s. 78 allows exclusion on grounds beyond those recognised in Sang). In addition, there are three ‘automatic exclusionary rules’ which apply respectively to evidence obtained by torture, communications intercepted in violation of the Regulation of Investigatory Powers Act 2000, and confessions obtained under certain circumstances: Choo (2013, 331).
For a detailed study, see Tomkovicz (2011).
In a recent collection of country studies, the editor remarked that ‘exclusionary rules are part and parcel of nearly all criminal procedure systems in Europe and are also becoming more prevalent in other parts of the world’: Thaman (2013, xii). A ‘global profusion of exclusionary rules’ is reported by another writer: Lewis (2011, 633, 636).
Pearse v. Pearse 1 De G. & Sm. 12, 28–29; 63 Eng. Rep. 950, 957 (Ch. 1846).
Wigmore (1961, vol. 3, §2175).
Deterrence is the modern rationale for exclusion in the U.S. See, e.g., Illinois v. Krull 480 U.S. 340, 347 (1987), quoting from U.S. v. Calandra 414 U.S. 338, 347 (1974): the ‘prime purpose’ of the exclusionary rule is to deter ‘future unlawful police conduct’; see also Pennsylvania Board of Probation and Parole v. Scott 524 U.S. 357, 363 (1998), where the exclusionary rule was described as ‘a judicially created means of deterring illegal searches and seizures’.
Ashworth (1977, 733): ‘where a legal system lays down certain standards or procedures for criminal investigation, it is both appropriate and desirable to protect defendants from any disadvantage resulting from the breach of a declared standard or procedure by excluding the evidence obtained as a result of that breach.’ For an in-depth commentary on Ashworth’s thesis, see Roberts (2012, 171).
Canadian Charter of Rights and Freedoms, s. 24(2).
Constitution of the Republic of South Africa, s. 35(5).
Article 69(7) of the Rome Statute of the International Criminal Court. See also Rule 63(3) of the Rules of Procedure and Evidence of the International Criminal Court. For discussion on ‘integrity’-based arguments, see Ashworth (2003, 107); Duff, Farmer, Marshall and Tadros (2007, ch. 8); Taslitz (2013); Bloom and Fentin (2010).
Judicial independence is necessary ‘not so much to ensure judicial rectitude and public confidence, as to prevent the executive and its many agents from imposing their powers, interests, and persecutive inclinations upon the judiciary.’ It is only with such independence that the criminal court can ‘be perceived as the citizen’s most necessary, and also likely, protector’: Shklar (1987, 1, 5).
The Code for Crown Prosecutors (2013) at [2.2] (issued by the Director of Public Prosecutions under s. 10 of the Prosecution of Offences Act 1985 of England and Wales).
The main prosecuting body comes under different names—e.g., the Attorney-General’s Chambers in Singapore and the Crown Prosecution Service in England and Wales. In Singapore, the prosecution of some minor cases at State Courts are delegated to the Police Prosecution Branch and other government departments (such as the Inland Revenue Authority) and the investigation and prosecution of certain commercial offences are done by the Commercial Affairs Department. For the position in England, see Sanders, Young and Burton (2010, 2–3).
Unless that person acted under coercion or inducement by X: Kutz (2000, 3–4).
See the ‘separation thesis’ propounded by Ashworth (2003, 112–113). See also Duff, Farmer, Marshall and Tadros (2007, 236) (explaining the ‘separation thesis’ as ‘the thesis that each part of the criminal justice process can be considered independently….[F]aults at one stage of the process need not infect decisions taken at later stages as long as there are independent remedies for those earlier faults’).
Other options include bringing civil or criminal proceedings against the officers, subjecting them to disciplinary proceedings and having the matter investigated by an external body such as the Independent Police Complaints Commission in England and Wales.
See e.g., cases discussed in Sect. 4.2.4.
[1980] A.C. 402, 437B. In Singapore, the Court of Appeal has similarly remarked: ‘It is not the province of the court to consider whether the [investigating body] should have proceeded about its work in one way or the other. The court can only be concerned with the evidence before it’: How Poh Sun v. P.P. [1991] S.G.C.A. 22; [1991] 2 Singapore Law Reports (Reissue) 270 at [21].
[1980] A.C. 402, 454–455.
This is only one of the many functions of the Police; others include ‘social service,’ ‘order maintenance’ and ‘risk information-brokering’: Reiner (2010, 141–147). And not all investigative activities of the Police are aimed at supporting a prosecution. For instance, communication may be intercepted for the purpose of gathering intelligence. English law allows such interception but does not permit the intercepted materials to be used as evidence in court proceedings; in contrast, such use is allowed in Australia: Blackbourn and McGarrity (2012).
List and Pettit (2011, 42).
Ibid., 24.
Kutz (2000) (‘the musician’s intention to participate in a collective act, playing the symphony, both causes and rationalizes the viola playing, and so licenses our redescription’).
List and Pettit (2011, 34).
Ibid., 40.
Ibid., 32, 34.
Kutz (2000).
List and Pettit (2011, 194).
In England and Wales, while the Crown Prosecution Service ‘play an increasing role in the decision to charge’, its role ‘stops short of overseeing the investigation and prosecutors have no authority over the police’: Hodgson (2011, 636). The co-operation between the Police and the Prosecution is described thus in The Code for Crown Prosecutors (2013, [3.2]) (emphasis added): ‘Prosecutors often advise the police… about possible lines of inquiry and evidential requirements, and assist with pre-charge procedures. In large scale investigations the prosecutor may be asked to advise on the overall investigation strategy, including decisions to refine or narrow the scope of the criminal conduct and the number of suspects under investigation. This is to assist the police… to complete the investigation within a reasonable period of time and to build the most effective prosecution case. However, prosecutors cannot direct the police’.
Ashworth (2003, 113–114): ‘[T]he trial is not simply a sealed component, not one of a row of separate boxes that go to make up the criminal process. The point becomes stronger if one reflects on the purpose of many of the pre-trial activities of state officials such as the police, other investigative agencies, and prosecutors. The purpose is largely to obtain evidence, or “leads” that may produce evidence, with a view to constructing a case against the suspect. Whether it is a matter of searching for real evidence, obtaining forensic science, or questioning the suspect and witnesses, the goal is to put together a case that will either yield sufficient evidence for a prosecution or lead the defendant to plead guilty…. [T]he very motivation for almost all pre-trial activities is to prepare the ground for the trial.’
Above, n. 18.
Ashworth and Redmayne (2010, 24).
Teixeira de Castro v. Portugal (1998) 28 E.H.R.R. 101 at [34]. See also Jackson and Summers (2012, 194): noting that the European Court of Human Rights ‘has clearly recognized that the manner in which the evidence is obtained in the investigation phrase has the potential to impact on the fairness of subsequent proceedings’.
Duff, Farmer, Marshall and Tadros (2007, 237).
List and Pettit (2011, 39).
See the strong criticism of Judge Loucaides in Khan v. U.K. (2001) 31 E.H.R.R. 45, 1032 (‘Breaking the law, in order to enforce it, is a contradiction in terms and an absurd proposition’.).
Postema (forthcoming a and b).
Ibid., 5.
Tamanaha (2012). This understanding of the rule of law has medieval roots, traceable to ‘the Germanic customary law proposition that the king is under the law’ and to the Magna Carta (Tamanaha (2004, 23, 27)). It has recently been argued that the rights protected under the Magna Charter are connected to the separation powers and ‘best understood not as a guarantee of a certain definition of liberty or property, or of abstract principle of “fairness”… but as a guarantee of judgment by an independent institution according to procedures designed to take the case out of the hands of the King.… This is how the principle that evolved into modern separation of powers entered English law: the Crown could deprive subjects of rights only through institutional coordination’: Chapman and McConnell (2012, 1683).
Tamanaha (2012, 240).
Ibid., 239.
Ibid.
Cf The World Justice Project Rule of Law Index (2012–2013): one measuring factor is ‘the extent to which those who govern are bound by the law. It comprises the means… by which the powers of government and its officials and agents are limited and by which they are held accountable under the law’.
See e.g., Ong Ah Chuan v. P.P. [1980] S.G.P.C. 6, [1979–1980] Singapore Law Reports (Reissue) 710 at [26] where the Privy Council held that constitutional ‘references to "law" in such contexts as "in accordance with law"…and the like… refer to a system of law which incorporates… fundamental rules of natural justice’.
This requirement has been read into article 8(2) of the European Convention of Human Rights which provides that any interference with the right of privacy must be ‘in accordance with law’. Secret surveillance by public authorities is subject to this condition: see e.g., Malone v. UK [1984] E.C.H.R. 10, (1985) 7 E.H.H.R. 14 at [67]–[68]; Khan v. UK (2001) 31 E.H.R.R. 45 at [26]–[27]; PG and JH v. UK [2002] Crim. L.R. 308, application no. 44787/98, judgment of the European Court of Human Rights of 25 September 2001, at [61]–[63].
Ho (2006).
[1994] 1 A.C. 42.
These facts were assumed by the House of Lords in deciding the case. But they may not be accurate: Warren v. Attorney General for Jersey [2011] U.K.P.C. 10, [2012] 1 A.C. 22 at [66]–[68], per Lord Hope.
[1994] 1 A.C. 42 at 61-61, per Lord Griffiths.
Panday v. Virgil [2008] U.K.P.C. 24, [2008] 1 A.C. 1386 at [33] (describing ‘entrapment cases as an example of the Bennett principle in action’).
Above, n. 13.
Ibid., [19].
Ibid., [1].
R v. Looseley, above n. 13 at [40], per Lord Hoffmann.
In Panday v. Virgil (Senior Superintendent of Police) (above n. 67) at [33], the Privy Council took the view that the trial court should itself decide whether to grant a stay rather than adjourn the proceedings for a judicial review application to be made. The issue should ‘be resolved within the criminal process itself rather than by way of a judicial review challenge’ (ibid, at [34]). Cf Ex. p. Bennett above n. 64 at 64 (per Lord Griffiths).
Panday v. Virgil (Senior Superintendent of Police) (above, n. 67) at [28]: ‘the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the court at all.’ But it has been held that whether a stay will be granted does not turn solely on the ‘but for’ test: R v. Maxwell [2010] U.K.S.C. 48, [2011] 1 W.L.R. 1837 at [26] (Lord Dyson), cf. [102], [108] (Lord Brown); Warren v. Attorney General for Jersey (above, n. 65) at [30] (Lord Dyson), [83] (Lord Kerr), cf. [74]–[76] (Lord Brown).
For other theories that defend exclusion of unlawfully obtained evidence on ‘rule of law’ and ‘separation of powers’ reasoning, see: Schrock and Welsh (1974), Grant (1991), Lynch (2000). In a similar vein, other writers have sought to defend the exclusionary rule as a dictate of due process (Sunderland 1978, 1980) or as a form of judicial review (Cloud 1999).
Cf. Warren v. Attorney General for Jersey (above, n. 65) at [77], per Lord Brown: ‘The admission of unlawfully obtained evidence raises, of course, distinct, albeit to some extent related considerations to those arising on abuse of process applications’.
Panday v. Virgil (Senior Superintendent of Police) (above, n. 67) at [28].
The willingness of the judiciary to step up to this role depends on and is reflective of the broader political climate. In Germany, Russia and Taiwan, ‘the exclusionary rule… came about at a time that the new government was distancing itself from the previous government’s perceived abuse of power’: Lewis (2011, 648).
Thaman (2013, 441).
In the United States, the exclusionary rule applies to ‘fruits of the poisonous tree’. See Cammack (2013, 80). Similarly, the judicial duty in section 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence obtained in breach of a right or freedom protected under the Charter extends to derivative evidence, such as ‘physical evidence discovered as a result of an unlawfully obtained statement’ (R v. Grant [2009] 2 S.C.R. 353 at [116]). In England, the exclusionary rule does not extend to evidence discovered in consequence of the improperly obtained evidence: R v. Warickshall (1783) 1 Leach 263, 168 E.R. 234; A v. Home Secretary (No. 2) [2005] U.K.H.L. 71, [2006] 2 A.C. 221, at [16], [48], [88], [120], [161]; s. 76(4)(a) of the Police and Criminal Evidence Act 1984.
See discussion of the independent source doctrine, the inevitable discovery doctrine and the attenuation doctrine in Cammack (2013, 15–18). The ‘fruit of the poisonous tree’ doctrine is not widely accepted outside of the U.S. In Germany, this doctrine ‘can be relied upon, providing that the authorities could have been able to obtain the evidence properly had they not resorted to employing improper methods’: Jackson and Summers (2012, 189).
On the use of deception, see Ashworth (1998). In the case of entrapment, the entrapper is often himself or herself in breach of the law.
New Zealand Evidence Act 2006, s. 30(5)(c).
Uniform Evidence Act of Australia, s. 138(1).
As was the situation in A v. Home Secretary (No 2) (above, n. 80).
Ashworth and Redmayne (2010, 342–362).
Ashworth (1977).
R v. Grant (above, n. 80) at [68].
E.g., R v. P [2002] 1 A.C. 146.
Ashworth and Redmayne (2010, 352).
R v. Grant (above, n. 80) at [79].
E.g., U.S. v. Leon 468 U.S. 897 (1984) (good faith exception to the U.S. exclusionary rule).
The first two factors correspond to the first two lines of enquiries undertaken in deciding on the exclusion of evidence under s. 24 (2) of the Canadian Charter of Rights and Freedoms: R v. Grant (above, n. 80) at [124], [125]; R v. Harrison [2009] 2 S.C.R. 494 at [21]; R v. Aucoin [2012] 3 S.C.R. 408 at [99].
In Ireland, evidence obtained in breach of constitutional rights is excluded under a mandatory rule whereas evidence obtained in breach of other rights is excluded on a discretionary basis: People (A.G.) v. O’Brien [1965] I.R. 142; People (D.P.P.) v. Kenny [1990] 2 I.R. 110. See also s. 138(3)(f) of the Uniform Evidence Act of Australia (making it a pertinent consideration that ‘the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights’).
Evidence Act 2006, s. 30(3)(h).
Evidence Act 2006, s. 30(3)(g).
Anderson, Williams and Clegg (2009, 664); Presser (2001, 762-3). Prior to the decision of the Court of Appeal in R v. Shaheed [2002] 2 N.Z.L.R. 377, a ‘prima facie exclusionary rule’ applied in New Zealand. That rule ‘tended to lead automatically and inevitably to the exclusion of real or confessional evidence once a New Zealand judge determined that police had improperly obtained such proof’: Optican (2011, 231).
Lawrie v. Muir (1950) J.C. 19 at 27 (decision of the full bench of the Scottish Court of Criminal Appeal): ‘Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed.’
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Acknowledgments
Different versions of this paper were presented at the 2013 symposium of the Law Faculties of the National University of Singapore, Singapore Management University and Hong Kong University and at the legal philosophy department of the University of Girona. I thank the participants for their comments and especially Professor Jordi Ferrer and Miss Carmen Vázquez for hosting my visit to Girona.
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Ho, H.L. The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence. Criminal Law, Philosophy 10, 109–131 (2016). https://doi.org/10.1007/s11572-014-9304-7
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DOI: https://doi.org/10.1007/s11572-014-9304-7