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EXCLUDING EVIDENCE AS PROTECTING RIGHTS

NCJ Number
46126
Journal
Criminal Law Review Volume: 3 Dated: (DECEMBER 1977) Pages: 723-735
Author(s)
A J ASHWORTH
Date Published
1977
Length
13 pages
Annotation
PROTECTIVE AND RELIABILITY PRINCIPLES UNDERLYING THE ADMISSIBILITY OF EVIDENCE UNDER ENGLISH LAW ARE EXAMINED, PARTICULARLY AS THEY APPLY TO CONFESSIONS AND IMPROPERLY OBTAINED EVIDENCE.
Abstract
UNDER ENGLISH LAW ONLY A CONFESSION OF GUILT UTTERED INVOLUNTARILY IS EXCLUDED FROM ADMISSION AS EVIDENCE. THE ADMISSIBILITY OF ALL OTHER EVIDENCE OBTAINED IMPROPERLY OR UNFAIRLY IS SUBJECT TO THE DISCRETION OF THE TRIAL JUDGE. GIVEN SUCH BROAD DISCRETIONARY POWERS, PRINCIPLES UNDERLYING SUCH DECISIONS ARE OF GREAT IMPORTANCE. THE RELIABILITY PRINCIPLE FOR EXCLUSIONARY DECISIONS CONTENDS THAT RELIABILITY OF THE EVIDENCE, RATHER THAN THE MEANS BY WHICH IT WAS OBTAINED, IS THE PRIMARY CONSIDERATION OF THE COURT; TO EXCLUDE EVIDENCE BECAUSE OF IRREGULARITIES IN EVIDENCE-GATHERING IS NOT IN THE INTERESTS OF JUSTICE OR THE PUBLIC. A COROLLARY OF THE RELIABILITY PRINCIPLE IS THE DISCIPLINARY PRINCIPLE, WHICH SUGGESTS IRREGULARITIES SHOULD BE PUNISHED BUT THAT ADMISSIBILITY SHOULD NOT BE AN ISSUE. THE PROTECTIVE PRINCIPLE ARGUES THAT AS IT IS THE RESPONSIBILITY OF A SYSTEM OF JUSTICE TO PROTECT THE RIGHTS OF INDIVIDUALS, AND THAT THE INFRINGEMENT OF RIGHTS DURING EVIDENCE-GATHERING EFFORTS SUPPLIES A PRIMA FACIE JUSTIFICATION FOR THE EXCLUSION OF SUCH EVIDENCE. THIS IS NOT TO SAY THAT ALL SUCH IMPROPERLY OBTAINED EVIDENCE IS TO BE PEREMPTORILY EXCLUDED. THERE ARE AT LEAST FOUR METHODS FOR PROTECTING THE RIGHTS OF THE DEFENDANT: BY A COMPLETE DEFENSE TO CRIMINAL LIABILITY; BY AN EXCLUSIONARY RULE; BY EXCLUSIONARY DISCRETION; AND BY MITIGATION OF SENTENCE. THE SPHERE OF OPERATION OF A PROTECTIVE PRINCIPLE IS CLEARER IN A LEGAL SYSTEM WHICH HAS A CONSTITUTIONAL OR CODIFIED DECLARATION OF INDIVIDUAL RIGHTS OR STANDARDS OF CRIMINAL INVESTIGATION. WHILE ENGLAND LACKS SUCH A DECLARATION, JUDICIAL PRECEDENTS SUPPLY SUCH RIGHTS AND STANDARDS. A REVIEW OF ENGLISH JUDICIAL DECISIONS RELEVANT TO THE RIGHTS OF THE ACCUSED INDICATES THAT THE EXERCISE OF THE GENERAL UNFAIRNESS PRINCIPLE AS A BASIS FOR DISCRETIONARY EXCLUSION FOLLOWS THE REASONING OF A PROTECTIVE PRINCIPLE. IT IS FURTHER ARGUED THAT SUCH DISCRETIONARY EXCLUSION WILL ALLOW FOR THE ADMISSIBILITY OF EVIDENCE OBTAINED IMPROPERLY BUT NOT NECESSARILY AT THE EXPENSE OF THE SUSPECT'S RIGHTS AND IN CASES WHERE URGENT ACTION WAS NECESSARY IN THE INTERESTS OF THE PUBLIC AND LAW ENFORCEMENT. AN EXCLUSIONARY RULE WOULD EXCLUDE TOO MUCH AND RESULT IN TECHNICAL ACQUITTALS. ENTRAPMENT IS BRIEFLY DISCUSSED; IT IS SUGGESTED THAT SHOULD A CODIFIED STANDARD OF INVESTIGATION OR BILL OF RIGHTS BE PROPOSED IN ENGLAND, SUCH A PROPOSAL WOULD BE MERE PRETENCE UNLESS BASED ON A PROTECTIVE PRINCIPLE OF LAW. EXTENSIVE NOTES ARE INCLUDED. (JAP)