Improperly Obtained Evidence

JONES V OWENS (1870)

Principle: it would be a dangerous obstrtion of justice if, because evidence was obtained by illegal means, it could not be used in trial

S78 Police & Criminal Evidence Act 1984

There are circmstances which improper action by police may lead to objection

LATIF [1996]

Principle: Court should use discretion to stay proceedings involving entrapment

Judicial discretion to exclude relevant evidence

Because ev is relevant does not always mean it is admissible

Judge has residual discretion

Improperly obtained evidence is legally admissible whether it is by pros or defence

Confessions & evidence obtained by torture

Confession may be admissible unless can be provied it was obtained by oppression

S76(5) PACE 1984

A V SECRETARY OF STATE FOR HOME DEPARTMENT (NO 2) [2005]

Principle: ev is inadmissible if obtained by torture

Specimens in drink-driving cases

Unlawfully obtained specimens show exception to general rule

S15(5) & (4) Road Traffic Act 1988

MURRAY V DPP [1993]

Facts: M's specimen inadmissible - not proved M was warned he would be prosecuted if he did not give it

Held: warning should have been given under S7 RTA

Common law position

Judges have discretion if they feel prejudicial effects exceed probative value

SANG [1980]

Principle: for fair trial judge may refuse to admit ev

• Ev may deceive tribunal

Court can exclude grusome ev due to prejudicial effect

SHANKLY [2004]

Facts: concern jury may be skewed - full horror of ev - revealed in child sexual offence cases

Suitable description of photo can be given - as neutral as possible

Adverse effect on fairness of proceedings

Must be read with Art 6(1) ECHR - right to fair trial 

A-G REF (NO 3 0F 1999)

Principle: admission of unfairly obtained ev could be assumed to deprive D of fair trial

Defence ev may be admissible even if stolen or fraudulent - even if unfairly prejudices accused

CAMPBELL V WILLIAMS [1993]

Facts: C tricked into incriminating himself & W - co-accused father secretly recorded conversation

Held: ev can be adduced in chief or put to co-accused in cross-exam

MYERS [1998]

Principle: if pros has unfairly obtained b legally admissible ev against D, must disclose it to D - would be able to use as defence

KHAN (SULTAN) [1997]

Facts: HL dismissed argument - inviolability of D's home should be upheld by exclusion of ev - gained by illegal bugging devices

KURUMA V R [1955]

Principle: test to see whether ev is admissible is whether it is relevant to matter in issue

If concluded that breach of conduct is 'significant & substantial' ev will be excluded

What is 'fairness'?

Court consider whether serious breaches have deprived D of his rights - HRA 1998

What is 'discretion'?

BEGHAL V DPP [2015]

Principle: S78 power is matter of judgement rather than discretion

Court's power to stay proceedings

LATIF [1996]

Principle: abuse of power arises where circumstances which prosecution has come to be brought amount to 'affront of public conscience' 

MAXWELL [2011]

Principle: Court can stay proceedings:

(a) where it will be impossible to give fair trial

(b) where it offends court sense of justice

WARREN AG FOR JERSEY [2012]

Facts: Ev obtained from unauthorised listing device - correctly admitted for D's drug smuggling

Failure by police to keep record of interview may prejudice D's position - disputing what is said in interview

CHALKLEY [1998]

Principle: judge must exclude improperly obtained ev once concluded that admission would have adverse effect on fairness of proceedings

Wednesbury principles

MASON [1987]

Facts: judge failed considering - deception of D's solicitor - aggravating feature

Held: CA overturned ruling

Court must attempt balancing copeting interest of pros and defence.

If admission of ev would only have limited degree of unfairness - court may reason that interests of justice would be better served if ev was admitted

Art 6 ECHR - right to fair trial