Are Defendants in Criminal Trials Sufficiently Protected against the Use of Improperly Obtained Evidence - Coursework Example

Are defendants in criminal trials sufficiently protected against the use of improperly obtained evidence? This question requires the discussion of whether the present state of the English law with its recent developments and the effect of the European Union Law provides the defendant in a criminal trial with adequate protection against procedural loopholes allowing the authorities and third parties to obtain evidence unfairly. This topic is also related to confessions which are also largely utilised as part of evidence and often raise the issues of the integrity of the defendant’s basic human rights. Previously this area was dominated by the common law rules, following the rather inclusionary practice of admitting any kind of relevant evidence no matter where it was sourced from. The leading case in this area was R v Leatham 1where Crompton J famously remarked it matters not how you get it, if you steal it even, it would be admissible in evidence.2 There were common law rules which allowed the judges to have the discretion to exclude evidence3 at a criminal trial, if this would jeopardise the position of the defendant.4.The standard of reasonableness to be exercised in this regard was that of the “Wednesbury” criteria.5 .Thus the position under common law was that illegally obtained evidence was admissible, given that it was credible, relevant and did not cause adverse inferences to be drawn against the accused.6 The Police and Criminal Evidence Act 1984(PACE 1984) The PACE 1984 came into effect in January 1986 and brought changes to the common law position. The main section 78 7of PACE 1984 codified and consolidated the previous common law position.8 However the later body of case law that developed tended to discard the common law approach and develop an entirely new approach to the section, yet the court has not yet given an exhaustive set of guidelines for the section due to the different facts of each case.9Most of the early case law in this regard involved the exclusion of unfairly procured confessions although the position before the PACE 1984 had been very much the same.10 The position in the cases of real evidence was always that they would be decided against the defendant, mainly because there was little chance of any misconduct by the police authorities in the cases of real evidence.11However the court showed some caution in cases involving Alcohol and DNA tests as there was a likelihood of the rigging of such evidence.12In the very controversial case of R v Nathaniel13 the court excluded the evidence of a blood sample of rapist taken four years ago which was promised by the police to be destroyed given that he was not convicted. They tried to use the sample again to convict him four years later but the court excluded this evidence and Lord Taylor CJ made it clear for the court, To allow that blood sample to be used in evidence at a trial four years after the alleged offences when the sample had been retained in breach of statutory duty and in breach of the undertakings to the defendant must, in our view, have had an adverse effect on the fairness of the trial. It should not in our view have been admitted. This case has been followed wherever evidence has been retained in breach of s 64 (3B) of PACE in later cases of rape, murder and theft. For example in the case of Regina v Weir14 the accused was being charged of brutal murder on the basis of very convincing DNA samples which were obtained in breach of s64 (3B) of PACE and thereby the conviction of the defendant was quashed.. Recently however, in the Attorney Generals Reference No. 3 of 199915 the House of Lords expressed dissatisfaction with this judgement and regretted not having convicted the accused despite the heavy amount of evidence involved. The Court said that “ It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.16” The courts were faced with the dilemma of including self incriminating evidence on behalf of the accused despite the reliability and genuineness of the evidence. This may seem like a good protection for the victims for having had unfairly deduced evidence against them but the House of Lords is correct to point out the unfairness this would bring to the witnesses and the victims. This approach is in line with the American and Canadian approach to unfairly obtained evidence.17Section 78 may have widened the discretion already present in the case of R v Sang ,but their general attitude still remains of reluctance to exclude reliable evidence against the accused. Even while using Section 78 the court will be very cautious and take all the circumstances into account which would mean, how and when the evidence was actually obtained and whether it would adversely impact upon the trial. 18. The only way this discretion can thus be invoked by the accused is if there is evidence or doubt of unfairness. What is unfair or fair in this regard has been a cause of considerable litigation. 19 Recent case law shows that in the light of the recent post PACE decisions, the concept of fair and unfair has become rather vague and it seems that the court does not have a consistent approach in this regard. Many academics have even tried to point towards a public policy oriented approach here. One writer Professor Richard Stone has argued that this term in its judicial context indicates fair play which is the main aim of the protection afforded by section 7820 The criticism that often emanates from this proposition is whether this would take the concept of fair play or procedural correctness too far and ultimately damage the ideals of justice.21All these procedural hurdles have at times been accused of letting the accused get away with a clean record and also delay and hinder justice. Academics like Choo (1989,. Zuckerman(1989), Ashworth(1977)and Hunter(1994) have all identified a threefold criteria which can justify protection for a defendant and it can be explained under the three broad principles of i.e. deterrence, reliability, and protection. As far as the notions of Deterrence are concerned the court is not prepared to advance a theory of “punishing” the police, but it has been made very clear that the court will exclude evidence obtained in deliberate breach of the procedure.22 Therefore the attitude of the judges in this regard as can be seen from the cases like R v Sang where it can be seen that they have been willing to exclude illegally obtained evidence, in the interests of fairness to the defendant. However research has shown that section 78 has indeed widened the scope of this discretion for the defendants, the question remains whether this should remain as an umbrella section for the criminals to escape using this as a loophole in the law.23 The concept of “Reliability” can be seen from the case of R v Sang where it was made very clear that under the common law it was fair to admit reliable but illegally obtained evidence. The third rationale as it is recalled was “Protection”, where the judicial attitude can be seen as very much restrictive with the exception of cases involving the utmost bad faith on the part of the police. The Courts have pointed towards other means of redressal other than exclusion of evidence for the accused for example the Police Complaints Authority has the power under sections 83-104 of PACE to investigate complaints against police officers and fine or punish them with dismissal or cautions for misconduct. Also sections 90-104 allow for their criminal prosecution. There can also be a possible action in tort by the offender who had to face such procedural misconduct and damages will accordingly be paid out of the police fund under the provisions in the Police Act 1996 . An example of the above mentioned attitude is the House of Lords case of R v Khan24 which says that if the conduct of the police amounts to a breach of the procedural law or some other rules the accused may look to other provisions for redressal.In this case the accused appealed on the basis that the evidence obtained against him by police officers acting without a warrant, violated his right to privacy protected by Article 8 of the European Convention on Human Rights (ECHR). His appeal was not allowed and The House of Lords said that although evidence obtained in circumstances involving an apparent breach of Privacy under the Article 8 may invoke the protection under the section 78 power, the admission of such evidence would not affect Khan’s right to fair trial under Article 6 at all because the national law provided him with a remedy to challenge the admissibility of such evidence. The court was following the ECJ decision of Schenk v Switzerland 25 and it is yet unseen how the Human Rights Act 1998 will treat this issue, even a decade after its inception into the common law. A more jurisprudential analysis of the attitude of the courts in this regard would suggest the utilitarian approach of the achieving the greater good for the society as put forward by Mc Kee (2000) who believes that the good of the society is based on trial judges or juries returning fair verdicts after looking at all the evidence available. The English approach has come under a lot of criticism within the past few years, this is because it is believed that the discretion afforded to judges might cause an infringement of the fundamental rights the offender because for the sake of public policy the judge might feel more inclined to let the evidence be heard. According to Railcard (1986) the police complaints authority does nothing to compensate the offenders but merely disciplines its own staff so there is not much of a remedy available for the defendant in this case. But it should also be seen that the victim of such an unfair police search can always initiate a successful tort action against the Police and gain a sizeable compensation. 26 Confessions and the rights of the accused Confessions and real evidence obtained by duress or violence, are unfair to the public interest as well as the interest of the accused. In recognition of the inherent danger of an extorted confession to the ends if justice, confessions are regulated by 76 of PACE and it would seem that the rationale for excluding them would be to exclude evidence obtained with the compelled assistance of the accused. Confessions are defined by Section 82 PACE 1984 as including any “Statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”. With regard to protection section 76 PACE provides that, “In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.” The main barriers to admissibility of confessions in order to safeguard the interests of the accused are found in S 76(2) and include oppression and the courts own discretion in the exclusion of such confessions. The common law provides certain rules in this regard to protect the accused. For example the law requires; The confession to be based on the knowledge of facts known to the accused who makes it (R v Hubert 27). The confession made by one defendant to not to be taken as evidence against the co-defendant.(R v Rudd 281948 32 Cr App R 138 The confession will be excluded under section 76 where its voluntariness is in doubt.(Adjodha v The State29) The confession if obtained by oppression to be excluded and the meaning of oppression being “torture ,inhuman or degrading treatment”.(S 76(8) and see R v Fulling 30where it was held by Lord Lane to be given its ordinary dictionary meaning.However it should be noted that Article 3 if the ECHR does not refer to the meaning of torture in itself and there is no comprehensive definition in PACE.The area of oppression has generated a vast amount of case law .For example in the case of R v Paris (1992) the defendant was protected by the court holding that the fact that he had a solicitor present did not make the interview any less oppressive because he was constantly shouted at and made a mockery of even when he denied the charges 300 times.Similiarly in R v Miller 1986 1 WLR 1191 Watkins LJ said that might be oppressive to put questions against the accused who was mentally ill to “skilfully and deliberately” induce a delusionary state within him. However it also has to be noted that just because a confession is excluded it does not mean that the facts discovered as a result of this confession are inadmissible. The court or the prosecution can use these facts without saying that these facts were a part of the interview under the provisions of s 76(2).However there is a relationship between s 76 and s 78 in that if the confession is labelled as improperly obtained under s 78 the court will not be to use those facts at all and the whole confession will have to be excluded.Therefore it would seem that the accused has sufficient protection against oppressive or unfairly procured confessions, although the effect of the Human Rights Act 1998 is still developing in this area.31 Conclusion In conclusion it can be said that the English position on evidence obtained by unfair means is discretionary and subject to the fairness of the situation. There have been massive influences of recent legislation particularly the Human Rights Act 1998 and its notions of a right to a fair trial. The system distinguishes clearly between d real and confessional evidence. Real evidence has a lesser chance of exclusion under the law though.32Also whenever real evidence is excluded it will be case of either a breach of the rule of against self incrimination or an exclusion under the common law or statutory discretions for gross and deliberate misconduct by the police as in the case of R v Payne 33where the defendant was induced into providing a specimen which was then used to show that he was unfit to drive. Today the position is that the defendant is not entitled to have unlawfully obtained evidence excluded simply because it has been so obtained, as shown by the case of R v P34and the Regulation of Investigatory Powers Act 2000. Recent Case law has also reviewed the area of entrapment and in the case of R v Smurthwaite;R v Gill(1994)35 the court held that entrapment itself did not result in the exclusion of the accused but a number of criteria was laid out to be followed by the Police in this regard.One of the most important of these factors was whether the police officer enticed the defendant to commit an offence he would not have otherwise committed.In another fairly recent case of R v Loosely:Attorney Generals Reference36 the issue of entrapment was reviewed with Lord Hoffman stating that a much better remedy in entrapment cases would be staying the prosecution of the defendant as an abuse of the process rather than excluding the evidence .This view was also accepted in the cases of R v Latif;R v Shahzad 37.The trial judges are still using the criteria of the Wednesbury standard of reasonableness however and the decision whether to allow an appeal would be taking into account the criteria of fairness and reliability of the evidence. The whole judicial approach unlike its Canadian and American Counterparts stresses on the finding of truth, yet there is a chance of damaging the interests of the defendant. However in the light of the compensation schemes available it is hard to say whether or not the law affords adequate protection to the defendant. This has less to do with statute and more with the case law and the attitude of the English judge who would rather have the public hear the whole truth rather than a potentially misleading half truth. However attitudes are changing in the wake of the European purposive approach and very soon there will be more globalised attitude on behalf of the English laws treatment of the evidence obtained against the accused. References 1. Ashworth - “Excluding Evidence as Protecting Rights”[1977] Crim LR 732 2. Andrew Choo and Susan Nash- "Whats the matter with section 78?" [1999] Crim LR 929 3. Ormerod and Birch-The Evolution of the Discretionary Exclusion of Evidence-[2004] Crim LR 767 4. Andrew Sanders - “Constructing the case for the prosecution” - Journal of Law and Society 14 1987 5. Ashworth-Should the police be allowed to use deceptive practices? [1998] 114 LQR 108 6. Di Birch - “The PACE Hots Up” [1989] Crim LR 95 7. Article 6 and the Fairness of Trials-Andrew Ashworth [1999] Crim LR 261. 8. Covert Surveillance and the European Convention on Human Rights- Steve Uglow [1999] Crim LR 287 9. Simon McKay: Entrapment: competing views on the effect of the Human Rights Act on English criminal law (2002) No 6 Pages 764-774 10. David Ormerod: ECHR and the exclusion of evidence: trial remedies for Article 8 breaches? [2003] Criminal Law Review 6 11. Birch, D- excluding evidence from entrapment: what is a fair cop 1994 12. Carter P.B- Evidence obtained by use of covert listening device 1997 113 LQR 468 Robertson, G- entrapment evidence: Manna from heaven or fruit of the poisoned tree? 1993 13. Self-incrimination and the European Court of Human Rights: Procedural issues in the enforcement of the right to silence, E.H.R.L.R. 2007, 5, 514-533 14. Rethinking the privilege against self-incrimination, O.J.L.S. 2007, 27(2), 209-232 15. The criminal jury in England and Scotland: the confidentiality principle and the investigation of impropriety,.: E. & P. 2006, 10(3), 180-211 16. Lost and destroyed evidence: the search for a principled approach to abuse of process,.: E. & P. 2005, 9(3), 158-182 Subject: Criminal evidence 17. ECHR and the exclusion of evidence: trial remedies for Article 8 breaches?, Crim. L.R. 2003, Feb, 61-80 18. The protection of commercial trade secrets,.: E.I.P.R. 2003, 25(10), 462-471 19. Evidence law in England and Wales: the impact of the Human Rights Act 1998,.: E. & P. 2002/03, 7(1), 31-61 20. The Law Lords and human rights: the experience of the Privy Council in interpreting Bills of Rights, E.H.R.L.R. 2000, 2, 147-180 21. Hansard invitations and confessions in the criminal trial, E. & P. 2000, 4(3), 147-176   22. Remedies for violations of Convention rights under the Human Rights Act, E.H.R.L.R. 1998, 6, 691-711 23. Silence: Lord Taylors legacy,.: E. & P. 1998, 2(3), 141-165 24. Civil asset recovery procedures: how equity deters fraud,.: Comp. Law. 1992, 13(3), 44-51 25. Recording witness statements,.: Crim. L.R. 1992, Mar, 160-172 26. The American exclusionary rule and defendants changing rights, Crim. L.R. 1989, Feb, 117-128 27. Stone, Richard "Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles" (1995) 3 Web JCL1. 28. May, Richard, "Fair Play at Trial: An Interim Assessment of Section 78 of the Police and Criminal Evidence Act 1984" [1988] Crim L.R. 722 at 730. 29. Choo, Andrew "Improperly Obtained Evidence: a Reconsideration" (1989) 9 Legal Studies at 261. 30. Zuckerman, A.A, Principles of Criminal Evidence (Oxford: Clarendon, 1989) at 346. 31. Ashworth, Andrew "Excluding Evidence a Protecting Rights" [1977] Crim LR at 723. 32. Hunter, Mary, "Judicial Discretion: Section 78 in Practice" [1994] Crim LR 33. Robertson, Bernard, "The Looking-Glass World of Section 78" (1989) 139:6423 New Law Journal 1223 34. Robilliard J and McEwan J, Police Power and the Individual (1986) 247 35. Hirschel, "What Can We Learn From the English Approach to the Problem of Illegally Seized Evidence?" (1984) 67 Judicature 424 at 432. 36. Robinson, Paul H, "Moral Credibility and Crime" The Atlantic Monthly, March 1995 at 72-78 37. McKee, Adam J., "Protecting Civil Liberties in Police Interviews: A Comparative Analysis of the United States, England and Wales" http://ocean.otr.usm.edu/-ajmckee/police_interviews.html (2 January 2000) 38. Bradley, Craig M., "Two Models of the Fourth Amendment" (1985) 83 Mich. L. Rev, 1468 39. Kamisar, Yale, "Remembering the "Old World" of Criminal Procedure: A Reply to Professor Grano" (1990) 23 University of Michigan Journal of Law 537 at 562. 40. Amar, Akhil Reed, "Fourth Amendment First Principles" (1994) 107 Harv. L. Rev. 757, 797 41. Barnett, Randy E. "Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice" (1983) 32 42. Emory L.J. 937, 942 43. Rader, Randall R, "Legislating a Remedy for the Fourth Amendment" (1982) 23 S. Tex. L.J. 585, 613 (analyzing various damages alternatives to exclusion) all in 44. Dalsass, Alan, "Options: An Alternative Perspective on Fourth Amendment Remedies" (1998) 50 Rutgers L. Rev. 2297, 2308 45. Lynch, Timothy, "Unreasonable Searches: Reassessing the Exclusionary Rule", (1998) The Champion, (December 1998) [http://www.criminaljustice.org] (18 December 1999). Read More