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Missdressed -> RE: Your Right to Remain Silent Means You’re Guilty (7/1/2013 12:33:09 PM)
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OK ...
Under the common law in R v Christie “it is desirable in certain circumstances to relax the strict application of the law of evidence”
Also
“….whether in the light of the considerations ……the evidence, if admitted, would undermine the justice of the trial…. For the conviction of the guilty is a public interest as is the acquittal of the innocent”
As Per Lord Scarman Sang [1979] at 456
Again,
“… the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of the judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them”
Per Lord Diplock Sang [1979] at 436
Sang - Affirmed judicial discretion to exclude evidence if prejudicial effect outweighed its probative value
Not concerned with how evidence obtained but how used by the prosecution at trial
Refers to evidence collected after the commission of the offence is completed
Leatham (1861) 8 Cox C.C. 498 at 501
“It matters not how you get it, if you steal it even, it would be admissible in evidence” - still good law today
R v Christie [1914] AC 545 at 546
R v Payne (1963) 1 All ER 848 is the only example of the common law being used to exclude evidence
S 82 (3) PACE 1984 preserves common law discretion of the judge to exclude if he deems it appropriate
I'm most familiar with PACE NI Order, but the provisions are mirrored in the UK order, just the Section Nos are different - Art 70 (3) of PACE NI Order states Nothing in this Part shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.
The statement in PACE is
In any criminal 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.
You will note, it's only whether it would be fair or not for the evidence to be admitted, and not a duty to exclude if improperly obtained.
It can be excluded as a breach of PACE but this is at the discretion of the judge, it is anything but automatic.
Entrapment is covered in PACE, but I'm losing the will to live, basically In deciding whether to exclude evidence the court will consider
Whether the officer was enticing the defendant to commit an offence
The nature of the entrapment
How active or passive the officers role was
Under City Council v Amin [2001] 1 W.L.R 1071
The accused ‘should not be incited, instigated, persuaded, pressurised or wheedled into committing the offence.’
But remember entrapment is not a defence at law to a criminal charge.
The improper searches cases are
R v Leatham (1861)
Jones v Owen (1865) 8 Cox CC 498 at 501
Mc Cleod v UK [1999] 27 EHRR 493
The Sang case was confirmed in Morgans v DPP as follows :
”As a general rule evidence is admissible irrespective of the means used to obtain that evidence: Reg. v. Sang [1980] A.C. 402. The question whether or not an offence was committed in the course of obtaining evidence by intercepting a communication by post or by means of a public telephone system is, in the absence of a statutory provision to the contrary, irrelevant to the admissibility of that evidence. “
Also, there may be a challenge under the Wednesbury unreasonable test, and also the defendant would be entitled to ask questions of the police as to how the evidence was obtained and ask in a voir dire if the court would exclude it. If it were included, the defendant would be entitled to have the police officers questioned in open court.
That's just from brief notes, I can be more comprehensive if required.
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