Improperly obtained evidence

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Evidence Law

This article discusses the circumstances in which the courts have shown themselves willing to exclude evidence that has been obtained unfairly or improperly. The discretion to do this existed at common law, although it was rarely exercised, and was reinforced by s.78 of Pace. In many cases, the evidence obtained will take the form of a Confession; the special considerations that apply to confessions as a result of s.76 of PACE are discussed in the article Improperly obtained confession; this article deals with confessions only to the extent the s.78 might apply to them.

Improperly obtained evidence at common law

The starting point for understanding the courts' view of improperly obtained evidence is the case of R v leatham 1861. Here the court made it clear that evidence did not lose its prima facie admissibility just because it was obtained improperly, or even illegally: matters not how you get it, if you steal it even, it would be admissible in evidence.

The basic test for admissibility is relevance, and evidence does not lose its relevance by being obtained improperly. The courts have made it clear on many occasions that it is not a court's job to discipline the police.

Over the years, however, various judges did hint that there might be circumstances in which improperly obtained evidence might be excluded. The uncertainty in this area was cleared up by the House of lords in R v sang 1980, which confirmed that there was a discretion to exclude evidence whose 'prejudicial effect exceeded its probative value', and a very limited discretion to exclude evidence obtained illegally. It was stated in particular that evidence obtained before the commission of an offence would not fall within the exclusionary discretion, which meant that evidence obtained by Entrapment could not be excluded. In R v christou 1992, it was pointed out that there was only one reported case in which the common-law exclusionary discretion had been exercised to exclude evidence obtained illegally.

Scope of s.78

s.78 of PACE is somewhat broader than the common law, in that it allows evidence to be excluded even if it would be significantly probative; evidence may be excluded where:

...having regard to all the circumstances, including the manner in which the evidence was obtained, admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not admit it.

The key notion here is 'fairness', rather than 'predjudice'.

Note that s.78 creates a discretion, not a duty, and in practice the courts have exercised the discretion under s.78 only slightly more readily than the common-law discretion. To engage s.78, the manner in which the evidence was obtained must make it unfair to the defendant. However, even if it accepted that the evidence leads to a loss of fairness, the court still has to balance the defendant's right to a fair trial, with the public interest in seeing offenders convicted.

In Christou, the Court of Appeal held that evidence obtained by trickery and deception might fall within the scope of s.78, but in that particular case it did not. Christou concerned an undercover operation by police in which a fake jewellery shop had been set up with the intention of eliciting information about stolen jewellery. This was a thorough and comprehensive deception, and it has to be wondered what levels of trickery will be sufficient to engage s.78, if that one would not. The answer seems to be that s.78 will be engaged if the operation to obtain the evidence amounts to a deliberate attempt to circumvent the PACE Codes of Practice. After all, if R v park 1994 is an authority for the proposition that s.78 is engaged if a suspect is interviewed without caution, it must be engaged a foritiori if the suspect is questioned covertly. In R v bryce 1992, the Court of Appeal held that evidence obtained by covert recording of a conversation between a suspect and an undercover policeman should have been excluded, because the conversation concerned a key fact in issue in the case (the suspect's knowledge of a stolen car). Similarly, in R v forbes 2001 the House of lords held that where a suspect had been identified without an identification parade, in circumstances which Code D made a parade mandatory, the evidence was too unreliable to admit, and had to be excluded.

In summary, it appears that although the courts have stated repeatedly that they are prepared to use s.78 to exclude improperly obtained evidence, they rarely do so. This section seems only to be engaged where evidence is obtained in a cynical attempt to evade the Codes of Practice, or in entrapment (see below). A striking recent case is R v chalkley 1998, in which covert tape recordings were deemed to be rightly admitted, even though they were obtained in flagrant breach of Art. 9 of the Echr and by means of Trespass. Perhaps oddly, this approach to covertly-obtained evidence was held not to amount to a breach of Art. 6 in Khan v united kingdom 1998.

s.78 and entrapment

Entrapment is the investigative technique of offering a person the opportunity to commit a crime, in the hope that the opportunity will be taken. Obtaining evidence by entrapment is going a step further than obtaining it by trickery or deception, because it amounts to a 'state created crime'. Without the entrapment, most likely the crime would never have been committed.

However, unlike the situation in many other jurisdictions, under English common law entrapment -- even when it amounts to an offence by the police -- did not prevent a successful prosection (Sang)]. Although the discretion under s.78 is broader than at common law, the courts have not, in general, been prepared to use it more than the common-law discretion. Consequently, although the courts have repeatedly suggested that they would be prepared to use s.78 in entrapment cases, until recently they rarely did so.

For example, in R v smurthwaite 1994, the two defendants had attempted to hire contract killers to dispose of their spouses, and in both cases the 'contract killers' were, in fact, undercover policemen. The court held that, in principle, evidence obtained by entrapment could be excluded under s.78, and the crucial question was whether the police had been active or passive in the criminal acts of the defendant. In Smurthwaite the police had acted passively -- they had not attempted to encourage the defendants to solicit muders -- and the evidence was admitted.

In RVStagg1994, evidence was excluded after a particular abhorrent entrapment operation -- a woman police officer had seduced the defendant and persuaded him to confess to a murder which he did not commit. Nevertheless, until recently the courts have been reluctant to exclude evidence from entrapment operations much less reprehensible than this one.

Although the European Court of Human Rights has generally upheld the UK's position on improperly-obtained evidence, it has treated entrapment more robustly. Inteixeira de castro vportugal 1999, the Court stated that

...the use of undercover agents must be restricted and safeguards put in place ... the right to a fair administration of justice ... cannot be sacrificed for the sake of expediency.

Although the Court of Appeal held in RVShannon2001 that Smurthwaite was in line with Teixeira, the influence of that case was more apparent in the House of lords' decision in R v loosely 2000. In that case, an undercover policeman posing as a seller of stolen cigarettes asked a customer whether the customer would be prepared to obtain heroin for him. The customer was reluctant at first, but eventually agreed. The customer was then arrested and prosecuted for involvment in a conspiracy to supply heroin. The trial judge stayed the proceedings as an abuse of process, but the Court of Appeal ruled that the judge had no discretion to do so (following the restrictive approach to exclusion of evidence in Christou, Chalkley_, etc). The House of lords held that the law had moved on since Sang, and that it was entirely proper to stay proceedings where there is a clear case of abuse of power by the state. Issues for consideration in deciding whether there had been an entrapment were to include:

  1. the severity of the offence;
  2. the nature (active or passive) of the entrapment;
  3. whether the conduct of the police was such that it would generally be condoned by the public, or whether it was sufficiently improper that it would bring the criminal justice system into disrepute
  4. whether the police had grounds to suspect the entrapped defendant was guilty of other, related offences


Where evidence is obtained improperly, there is no doubt that the courts have a discretion to exclude it. However, there seem to be only two circumstances in which this discretion has been exercised: first, where the evidence was obtained in a way that was clearly intended to circumvent the PACE Codes of Practice; second, where there has been entrapment following a gross abuse of police powers.