Evidence: The admissibility of improperly obtained evidence

(Abstract taken from my own dissertation)

The admissibility of improperly obtained evidence

It is well established that the courts have the power to throw cases out of court based on some infraction. Whether a police officer denied the suspect the right to legal advice,[1] or failed to note his name and station on arrest,[2] the courts may use such reasoning to justify acquittal. Whilst in principle it is arguably a fine moral standard to ensure misconduct is punished, one must question whether the UK has the correct approach or whether more could be done to ensure justice is achieved on a range of levels. Sanders and Young state that ‘excluding reliable evidence at trial – or worse, halting the trial altogether – so that a guilty person walks free, punishes the innocent public along with the guilty police.’[3] This essay submits that our system has a worrying view of what ‘justice’ is and if we are going to start achieving it, changes must be made.

The provision under which the exclusion of improperly obtained evidence is made possible is found in the Police and Criminal Evidence Act 1984 (PACE) s.78. The section is based upon the supposed ‘adverse effects on the fairness of the proceedings’[4] if evidence is admitted which gives the prosecution an unfair advantage, or of which the opposition have little or no chance at responding to. Although this relatively new provision under PACE appears to empower the judiciary with abundant discretion, Watkins LJ in Mason pointed out that the section actually ‘does no more than to restate the power which judges had at common law before the 1984 Act was passed’.[5]  Issues of admissibility are thus potentially rooted in historical thought, which perhaps explains the system’s reluctance to reform. Nonetheless, there is certainly evidence of some change over the years, given that the historical common law ‘was at the crime control end of the spectrum’ whilst PACE demonstrates clear movement towards due process.[6]

All the same, the issues are as confused now as they have always been. Indeed in R v Sang [1980][7] ‘all the members of the Lords...were prepared to recognise that there should be the possibility of excluding evidence on the basis of unfairness, but did not present any uniform view as to what circumstances might justify this’.[8] It is probably fair to submit, given the ever-widening scope of s.78, that there is still a vital lack of clarity as to what may or may not be excluded. The new provision must, however, be extolled for the extensive scope inherent within it. The term ‘improper evidence’ may be applied in respect of ‘illegal search; identification evidence; suspects being wrongly denied access to solicitors; confessions; alibi notices; breaches of PACE codes.’[9] This means that whilst there may still be some confusion as to when evidence will be excluded, the circumstances under which such a debate might arise will undoubtedly fall within the provision.

It is not entirely apparent whether s.78 is rooted in due process or crime control rationale. Judicial discretion here, similarly, is neither prima facie advantageous nor detrimental to the defendant’s case as it tends to produce anomalous results; this is perhaps a flaw in its own right. The plethora of case law that has arisen in this area gives very little guidance as to what the outcome of any given trial may be. The notion of precedents has been partially, if not entirely, abandoned.

One of the most recent examples of rights going above and beyond their original purpose is that of Abu Qatada and the Courts’ decision to retain him in the UK. The saga has been described as ‘a very expensive and very embarrassing headache for the British Government’[10] as the suspected terrorist from Jordan has been detained in the UK for the past 7 years, for fears that deporting him to his native country would result in a criminal trial where evidence obtained by torture – which is not permitted under the European Convention on Human Rights[11] - is used to convict him. Taking such a due process stand has also highlighted the fundamental quandary in attempting to find the ‘correct’ outcome - assuming that one exists. As one human rights blog states: ‘On the one hand, we have national security. On the other, due process and the rule of law. All three are vital components of the public interest, and often they conflict.’[12]

There are a plethora of issues which arise in the on-going Abu Qatada debate, which will not be discussed here as the basis for this discussion is predominantly centred on exclusion of evidence, linking to the wider issue of whether criminals have too many human rights. However, it is important to note that making such deeply due process-rooted decisions regarding evidence exclusion means that not only in this case are public funds being spent on maintaining an immigrant and giving him a luxurious lifestyle[13] – it has been estimated that when calculating the legal aid, jail fees, government bill, security, housing and benefits, Abu Qatada will cost the UK approximately £6million in 2013[14] - but the suspected terrorist is not being prosecuted in this country either. Theresa May has voiced her concerns and told the Commons that the Government will continue to do everything it can to get rid of Abu Qatada;[15] the problem is finding a law that will permit such action, in a country which is notoriously due process.

However, exclusion of evidence dilemmas do not always arise in such high profile cases. Take for example, Attorney General’s Reference (No.3 of 1999)[16] in which the defendant was acquitted after DNA evidence, proving his guilt, was deemed inadmissible. The saliva sample taken on suspicion of burglary months earlier – of which he was later acquitted – was not destroyed in accordance with legislative provisions requiring destruction of samples.[17] When swabs were taken some 9 months later from a rape victim, which matched the defendant’s DNA profile, he was arrested and a hair sample was taken, proving further evidence of his guilt. It is worth noting that although the suspect was acquitted, the House of Lords disapproved of the result; this perhaps demonstrates the need for acquittals to be challenged. This will be discussed in the double jeopardy section below.

So why are we so hell-bent on excluding evidence which is known to be reliable? How can we be so blasé about acquitting a known-rapist? The issue remains unclear, although it is thought to be rooted in the moral, or not-so-moral standards, we are endorsing when we permit the state to benefit from misconduct. Sanders and Young point out the fundamental impasse: ‘What discredits the criminal justice system more: ignoring apparently reliable evidence and allowing the apparently guilty to go free, or using illegally obtained evidence and, by doing so, condoning illegal police behaviour which may not be subject to any other sanction?’[18]

The writers also highlight the crime control view that ‘legal niceties should not obstruct the search for the truth’[19] – with which this essay is inclined to agree. The issue of admissible or inadmissible evidence is ripe for reform. Although adjudicators now lean towards an arguably more attractive ‘reliability’ stance, if judicial discretion is indeed the way forward, there is a need for clearer guidelines and more consistent precedents; otherwise the justice system becomes a shambles of incomprehensible decisions, supposedly founded on little more than simply good sense.

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[1] Samuel [1988] 2 All E.R. 135

[2] Osman v Southwalk Crown Court [The Times 28 Sept 1999]

[3] Andrew Sanders & Richard Young, Criminal Justice (4^th edn, OUP 2010) 700

[4] Police and Criminal Evidence Act 1984, s.78(1)

[5] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774

[6] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 701-2

[7] [1980] AC 402

[8] Richard Stone, Civil Liberties & Human Rights (8^th edn, OUP 2010) 168

[9] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774-5

[10] Online constitutional law blog: Tom Hickman, ‘The Return of Abu Qatada (to the streets of London)’ (2012) - http://ukconstitutionallaw.org/2012/11/14/tom-hickman-the-return-of-abu-qatada-to-the-streets-of-london/

[11] European Convention on Human Rights, Article 3

[12] Online human rights blog: Adam Wagner, ‘Abu Qatada: in the public interest’ (2012) - http://ukhumanrightsblog.com/2012/11/16/abu-qatada-in-the-public-interest/

[13] For example, the £400,000 house in Wembley, as reported by Tom Peck, ‘Abu Qatada is moved to secret address after protesters target his home’ (2012) The Independent

[14] Online article: Richard Moriarty & Luke Heighton, ‘Abu Qatada will cost UK taxpayers £6m this year’ (2013) The Sun - http://www.thesun.co.uk/sol/homepage/news/4765055/Abu-Qatada-will-cost-UK-taxpayers-6m-this-year.html

[15] Online article: unknown author, ‘Abu Qatada wins appeal against deportation’ (2012) BBC News - http://www.bbc.co.uk/news/uk-20295754

[16] [2001] 2 A.C. 91

[17] Police and Criminal Evidence Act 1984, s.64(1)

[18] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

[19] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700