Judicial Responses to Pre-Trial Procedural Violations in England and Wales

Pitcher, Kelly

doi:10.1007/978-94-6265-219-4_4

Kelly Pitcher⁴

Part of the book series: International Criminal Justice Series ((ICJS,volume 16))

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Abstract

This chapter sets out the law and practice with respect to the question of how to address procedural violations committed in the pre-trial phase of criminal proceedings in England and Wales. It does so by means of an overview of the consequences that the judge may attach to such procedural violations. Consideration is given to the extent to which the determination of whether to attach legal consequences to established procedural violations entails the exercise of judgement, whereby the judge has due regard to the particular circumstances of the case, i.e. the extent to which it should be discretionary in nature (which may be contrasted to an approach whereby the judicial response is more or less automatic), and also to how courts respond to procedural violations committed in an international context. The examination in this chapter is not limited to a description of the relevant law and practice, however; it also includes a description of the (possible) theoretical accounts thereof, as well as an evaluation of the law and practice in light of such accounts.

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Notes

1.
As stated in Chap. 1, in this book the term ‘procedural violations committed in the pre-trial phase of international criminal proceedings’ encompasses those procedural violations that at the national level would be described as police illegality or unlawfulness. However, at the international level, this term—‘police illegality’ or ‘unlawfulness’—is apt to mislead, since the ICTs do not have their own enforcement agencies, i.e. police forces (and are reliant on state cooperation for such activities as the apprehension of persons suspected or accused of crimes falling within their jurisdiction and for the carrying out of investigations). It also encompasses the violation by the prosecution of its pre-trial obligations.
2.
Of course, the answer to the question of how to address pre-trial procedural violations encompasses more than just the judicial response within the criminal trial to such violations. After all, the question implies that such violations could be addressed outside of the criminal trial. It is beyond the scope of this book to explore in any meaningful way other (possible) mechanisms for addressing such violations, and the choice to limit the legal framework to the judicial response to pre-trial procedural violations may be justified on the basis that that response will invariably shed light on the broader question of how to address procedural violations committed in the pre-trial phase of criminal proceedings. Thus, a restrictive response within the criminal trial suggests that such violations should be dealt with elsewhere than in the criminal trial, i.e. through other mechanisms.
3.
See Blackburn R, ‘Britain’s unwritten constitution’, https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution Accessed 1 March 2017.
4.
See s 6(1) HRA.
5.
Ashworth and Redmayne 2010, 323.
6.
Ibid., 323.
7.
s 43 Criminal Justice Act 2003.
8.
Ashworth and Redmayne 2010, 339.
9.
Choo 2015, 11.
10.
Ashworth and Redmayne 2010, 339.
11.
Ibid., 339.
12.
s 108 Magistrates’ Courts Act 1980.
13.
s 1 Criminal Appeal Act 1968.
14.
Ashworth and Redmayne 2010, 371.
15.
s 33 Criminal Appeal Act 1968.
16.
The Supreme Court was established by the Constitutional Reform Act 2005 to assume the judicial functions of the House of Lords. It commenced work on 1 October 2009.
17.
See s 59 Senior Courts Act 1981.
18.
See e.g. Ashworth 1977; Zuckerman 1987; Dennis 1989, 28; Zuckerman 1989, 343‒360; Mirfield 1997, 6‒33; Duff 2004; Ormerod and Birch 2004, 778‒784; Ashworth and Redmayne 2010, 344‒348 and 357‒362; Roberts 2012a; Dennis 2013; Keane and McKeown 2014, 56−57; and Choo 2015, 171‒172 and 185‒191.
19.
See e.g. Choo 2008, 106‒113; and Martin 2005, 158.
20.
See e.g. Grevling 1997, 676; Mirfield 1997, 23; Ormerod and Birch 2004, 778; Ashworth and Redmayne 2010, 357; Roberts 2012a, 172, 183‒184.
21.
Ashworth 1977, 723. See also Duff 2004, 159.
22.
See e.g. Keane and McKeown 2014, 57.
23.
Ashworth 1977, 723.
24.
As a principle for exclusion, the reliability principle would better be described as the ‘unreliability principle’. See e.g. Keane and McKeown 2014, 56.
25.
Ashworth and Redmayne 2010, 347.
26.
Roberts 2012a, 172.
27.
Ashworth 1977, 725.
28.
Ashworth and Redmayne 2010, 347 (emphasis added).
29.
See Ashworth 1977, 724 (emphasis added). See also Roberts 2012a, 172: ‘For reliabilists, impropriety in criminal investigations (no matter how serious) is one thing and the admissibility of reliable evidence at trial is quite another.’
30.
See e.g. Ashworth and Redmayne 2010, 347. See also Mirfield 1997, 22‒23; and Ormerod 2003.
31.
Ashworth 2003, 112‒115.
32.
Ibid., 112‒113. See also Ashworth and Redmayne 2010, 361.
33.
Redmayne 2009, 305.
34.
Ashworth 2003, 113‒114.
35.
See Ashworth 2003; and Redmayne 2009, 305‒310.
36.
Ashworth and Redmayne 2010, 362.
37.
Ashworth 1977, 729.
38.
Dennis 1989, 30. See also Ormerod and Birch 2004, 782.
39.
Choo 2008, 107. Regarding the exclusion of unlawfully obtained evidence, see Mirfield 1997, 20.
40.
Ibid., 107. Regarding the exclusion of unlawfully obtained evidence, see Mirfield 1997, 20.
41.
Ashworth and Redmayne 2010, 344.
42.
Mirfield 1997, 20.
43.
Ashworth 1977, 723 n 2 (emphasis added).
44.
Roberts 2012b, 172.
45.
See e.g. Ashworth 1977, 725: ‘Advocates of the reliability principle … are surely right in their assertion that the discipline of officers who act improperly is not a proper function of the trial court and should be treated as a separate matter for separate prosecution.’ See also Mirfield 1997, 22‒23.
46.
Mirfield 1997, 21‒22.
47.
Ashworth and Redmayne 2010, 344.
48.
See Zuckerman 1987, 59; Dennis 1989, 29.
49.
Roberts 2012a, 173.
50.
Roberts 2012a, 171.
51.
Ashworth 1977, 725. See also 733: ‘A legal system must reach a decision on an acceptable demarcation between permissible and impermissible methods … once agreement has been reached the rights which flow from it should be respected and protected. An essential part of taking such an agreement seriously is to protect suspects and accused persons from any disadvantage which results from an infringement of the rights declared or implied. … where a legal system lays down certain standards or procedures for criminal investigation, it is both appropriate and desirable to protect defendants from any disadvantage resulting from the breach of a declared standard or procedure by excluding the evidence obtained as a result of that breach.’ Ashworth continues to favour the protective rationale: see e.g. Ashworth 2003; and Ashworth and Redmayne 2010.
Zuckerman summarizes the argument based on the protective rationale (which he refers to as the ‘vindication or remedial theory)’ as follows: ‘A person has a right not to have his person and premises illegally searched , not to have his possessions illegally seized and not to be unlawfully arrested. It is suggested that by imposing these restrictions the state has staked out the boundaries for lawful access to evidence and has indicated that beyond these limits it is willing to forego evidence of crime in defence to individual freedom. Consequently, it is said, exclusion of evidence secured through illegal search, seizure and arrest puts the prosecution back in the position where the constitution, or the legislature, meant to put it when it imposed those restrictions: without the evidence.’ See Zuckerman 1987, 57.
52.
Ashworth 1977, 735.
53.
Ibid., 731. Ashworth refers to ‘the need for a protective principle if a legal system accepts that suspects have rights and that those rights should be taken seriously’.
54.
Ibid., 725.
55.
Ibid., 729.
56.
Ibid., 729. See also 731: ‘On a protective principle … [t]he triviality or seriousness of the breach is measured according to its consequences for the accused, and the reason behind the particular procedure must be examined. If the procedure was intended not to safeguard individual liberty but rather to ensure the accuracy of the evidence collected, the protective principle does not require the exclusion of evidence obtained in contravention of the procedure: its admissibility should depend purely on its reliability.’).
57.
Ibid., 729 (emphasis added). See also 725: ‘The protective principle does not necessarily lead to the view that all improperly obtained evidence should be peremptorily excluded.’). See also Ashworth and Redmayne 2010, 347: ‘Under the protective rationale the courts will have considerable leeway in deciding whether the evidence in question was obtained as a result of police wrongdoing’.
58.
Ibid., 725: ‘by “disadvantage” is meant, here and throughout the article, that evidence obtained by the investigators as a result of the infringement should not be used against the suspect’.
59.
See Roberts 2012a, 179. Giannoulopoulos speaks of the ‘evidentiary impact of the rights violation’ in this regard. See Giannoulopoulos 2007, 206.
60.
See n 68 and accompanying text.
61.
Roberts 2012a, 179. Other examples are where the evidence fails to withstand cross-examination, where other evidence reliably proves the same point, or where the case as a whole against the accused is overwhelming. Thanks to Professor Paul Roberts for his clarification of this point.
62.
Ashworth and Redmayne 2010, 345. However, see Choo 2015, 103−104, who warns that such reasoning may open the door to ‘post hoc rationalization of events’. See also Giannoulopoulos 2007, 206.
63.
Ashworth 1977, 732. However, courts should not ‘readily’ apply the concept of urgency , since ‘the declared rights would stand for less and less’.
64.
Later on in the article Ashworth cites both the concepts of ‘no disadvantage/prejudice’ and ‘urgency ’ as reasons not to exercise the exclusionary discretion based on the protective principle. See Ashworth 1977, 733.
65.
Ashworth 1977, 733.
66.
See e.g. Dennis 1989, 30. See also Roberts 2012a, critically reflecting on the definition of ‘rights’ under Ashworth’s protective principle.
In England and Wales this appears to be complicated by the fact that Britain does not have a constitutional or codified declaration of individual rights or of standards for the conduct of criminal investigation. See Ashworth 1977, 726; Roberts 2012a, 184.
67.
Ashworth 2003, n 84. At the very least, the protective rationale applies to breaches of criminal process rights and, in particular, those provided for under PACE. See Ashworth and Redmayne 2010, 360. See also Redmayne 2009, 309−310.
68.
See Roberts 2012a, 180.
69.
See Giannoulopoulos, 206, referring to Choo 2006, 44. See also Choo 2015, 104.
70.
Dennis 1989, 30.
71.
Ibid., 30 and 39. See also Dennis 2013, 204−205.
72.
Zuckerman 1987, 58. See also Dennis 1989, 30.
73.
Mirfield 1997, 24‒25.
74.
Ibid., 24.
75.
Ibid., 27.
76.
Ibid., 24. Mirfield himself seems to favour this variation of the integrity rationale over the others. See ibid., 369−370.
77.
See in this regard Ashworth 2003, 108, where the author refers to ‘two varieties of the integrity principle’.
78.
Mirfield 1997, 25.
79.
Ibid., 25.
80.
Ibid., 27.
Ashworth and Redmayne argue that, accordingly, the public attitude variation of the integrity rationale takes ‘comparative reprehensibility’ as its central element. See Ashworth and Redmayne 2010, 345‒346) referring to Kamisar 1987.
81.
Zuckerman 1987, 59. Indeed, as Mirfield points out, Zuckerman appears to favour the public attitude variation of the integrity rationale, as does Dennis. See Mirfield 1997, 27‒28.
82.
See generally Mirfield 1997, 33, 368‒370.
83.
Dennis 2013, 108. Similarly Zuckerman argues that in relation to ‘considerations such as the likely effect of admissibility or inadmissibility on public sentiment … the courts will have to make a judgment that combines social and moral considerations. They will have to consider what, in a society with high moral standards, should be the public reaction to institutional violations. In other words, decisions will be taken by reference to a normative model as well as a factual one.’ See Zuckerman 1987, 64. However, see Ashworth 2003, 110‒111; Ashworth and Redmayne 2010, 346.
84.
Dennis 2013, 108.
85.
Mirfield 1997, 369.
86.
Choo 2008, 111.
87.
Ibid., 113.
88.
Choo 2008, 190. Ashworth himself appears to accept that the court-centred variation of the integrity rationale allows for rights to be taken sufficiently seriously. See Ashworth 2003 and also Ashworth and Redmayne 2010, 358. Nevertheless, he favours the protective principle, ‘because it chimes better with the notion of human rights’.
89.
Choo 2008, 190. Choo makes a similar argument in the context of the exclusionary discretion under s 78(1) PACE. See Choo 2015, 189−190.
90.
Choo 2008, 190.
91.
Ibid., 110−111. Regarding the breach of a third party’s rights, see Ashworth and Redmayne 2010, 347; Redmayne 2009, 310. See also Roberts 2012a, 185.
92.
It is in fact more complicated than this (see Mirfield 1997, 29)
93.
Mirfield 1997, 29.
94.
It is in fact more complicated this (see Mirfield 1997, 32−33).
95.
Zuckerman 1987, 62‒63.
96.
Mirfield 1997, 31.
97.
Choo 2008, 11.
98.
See Choo 2008, 1. The question of what it means to say that the abuse of process involves the exercise of judicial discretion is addressed below, in Sect. 4.4.1.2.
99.
See e.g. Choo 2008, 12. In Beckford, the Court of Appeal said that: ‘The constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions.’ R v Beckford [1996] 1 Cr App R 94, 100.
100.
Choo 2008, 9.
101.
Ibid., 11.
102.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 74.
103.
Ibid., 76 (Lord Lowry).
104.
See e.g. R v Beckford [1996] 1 Cr App R 94, 101; R v Latif; R v Shahzad [1996] 1 WLR 104, 113 (Lord Steyn); R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 [18]‒[24]; R v Maxwell [2011] 1 WLR 1837 [13] (Lord Dyson), [91] (Lord Brown). It is also widely recognised in the literature. See e.g. Choo 2008; and Rogers 2008.
105.
Choo 2008, 18. See also Dennis 2003, 227, 230−233: the author describes the first category of case under the abuse of process doctrine as being concerned with ‘the equities of the adversarial relationship between prosecution and defendant’, ‘prejudice to the defence’, ‘hampering the defendant in the conduct of the defence’ and ‘prejudice to the defendants in the conduct of their defence’.
106.
Choo 2008, 18.
107.
According to Rogers, it is unfortunate that the first category has been labelled a subspecies of ‘abuse of process’: ‘Sometimes the laws of evidence cannot provide an adequate protection against some prejudice which affects the accused. For example, crucial evidence which defendant A could have used in her defence might have vanished, or defendant B might no longer be able to effectively cross-examine the key witnesses against him, or there might have been such adverse publicity that the defendant cannot get a fair trial anytime or anywhere in the country. The jurisdiction to stay such cases appeals to the values that underpin our broader commitment to factual accuracy, equality of arms in the criminal trial, and to the appearances that a case has been heard by an impartial tribunal. We will always want to recognize this jurisdiction, if not through respect for the importance of fair trials, then at least for the pragmatic reason that stopping the trial before it inevitably leads to an unsafe conviction spares the expense of the trial and appeal process. But it would seem better to conceptualize this as a separate ‘jurisdiction to prevent an unsafe conviction’. Then we would more readily recognize it as being nothing more than the weapon of last resort available to all judges and magistrates at all stages of the trial when no lesser means of ensuring a fair trial is sufficient.’ See Rogers 2008, 290−291.
108.
Choo 2008, 16 and 109. See also Zuckerman 1989, 344.
109.
See O’Connor 2012, 674. See also Choo 2008, 186: ‘courts are not … consistent in their use of the term ‘abuse of process’. While it is typically used as a label for proceedings which should be stayed, courts have on occasion used it as a label for particular pre-trial actions of the executive which should lead to stay’.
110.
Choo 2008, 18.
111.
Ibid., 16 and 109.
112.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42 at 74.
113.
Dennis 2013, 229.
114.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42 at 74. See also R v Looseley [2001] 1 WLR 2060 [17] (Lord Nicholls).
115.
O’Connor 2012, 674.
116.
See e.g. R v Mullen [2000] QB 520 at 535‒536. See also Choo 2008, 109: ‘deterrence is not to be regarded as the rationale, or at least the primary rationale, for a stay’. See also Lord Dyson’s comments in Warren and Others v Attorney General for Jersey [2012] 1 AC 22 [37].
117.
Dennis 2013, 227, 229–230.
118.
See O’Connor 2012, 673.
119.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42 at 74 (emphasis added).
120.
R v Latif; R v Shahzad [1996] 1 WLR 104 at 112 (emphasis added).
121.
R v Looseley [2001] 1 WLR 2060 at 25 (emphasis added).
122.
In Sect. 4.4.1.2 and in Sect. 4.5.
123.
R v Grant [2006] QB 60. See the following works discussing this (fascinating) case: Choo 2008, 127−129; O’Connor 2012, 674; and Dennis 2013, 344−346.
124.
R v Grant [2006] QB 60 [57].
125.
See Warren and others v Attorney General for Jersey [2012] 1 AC 22 [27], where Lord Dyson refers to Lord Brown’s judgment in Panday v Virgil (Senior Superintendent of Police) [2008] AC 1386.
126.
R v Mullen [2000] QB 520 at 536 (emphasis added).
127.
Ibid., 535.
128.
Warren and others v Attorney General for Jersey [2012] 1 AC 22.
129.
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for many current and former Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies (including Jersey), and military sovereign base areas. See https://www.jcpc.uk/about/role-of-the-jcpc.html. Accessed 1 March 2017. Judgments of the JCPC are not generally binding on courts in England, although they do have significant persuasive authority. See Ward and Akhtar 2011, 79.
130.
R v Grant [2006] QB 60. Lord Dyson had already done so in R v Maxwell [2011] 1 WLR 1837 [28].
131.
Warren and others v Attorney General for Jersey [2012] 1 AC 22 [36] (Lord Dyson).
132.
Ibid., [30] (Lord Dyson).
133.
Ibid., [30], [46] (Lord Dyson).
134.
Rogers is critical in this regard. See Rogers 2011, 7−8.
135.
Warren and others v Attorney General for Jersey [2012] 1 AC 22 [26], [36] (Lord Dyson).
136.
See Choo 2008, 18.
137.
R v Beckford [1996] 1 Cr App R 94 at 100‒101. See also R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 [20].
138.
The ‘fairness to try ’ terminology has been subject to criticism. See in this regard Choo 2008, 187): ‘It is confusing, to say the least, to use the term ‘unfair trial’ to connote a trial that has the potential to result in a factually incorrect guilty verdict, and to say that it would be ‘unfair to try’ a defendant in circumstances where, even if a ‘fair trial’ can be held, it will nevertheless be inappropriate to try the defendant because of considerations of moral integrity . To make matters even more confusing, the courts sometimes display lack of care in their use of these terms.’ In Warren, Lord Dyson was similarly critical: ‘It is unhelpful and confusing to say that this category [the second category of case under the abuse of process doctrine] is founded on the imperative of avoiding unfairness to the accused. It is unhelpful because it focuses attention on what is fair to the accused, rather than on whether the court’s sense of justice and propriety is offended or public confidence in the criminal justice system would be undermined by the trial. It is confusing because fairness to the accused should be the focus of the first category of case.’ See Warren and others v Attorney General for Jersey [2012] 1 AC 22 [35].
139.
Dennis 2013, 341.
140.
See n 322‒323 and accompanying text.
141.
Dennis 2013, 341−342. See also Ormerod and Birch 2004, 782−784.
142.
See e.g. R v Maxwell [2011] 1 WLR 1837 [11] (Lord Dyson). See also Mirfield 1997, 152.
143.
See Dennis 2013, 341, referring to R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.
144.
See e.g. R v F [2011] 2 Cr App R 13, in which it was held that the delay in question meant that a fair trial had not been possible. See further Choo 2008, 90−91. Nevertheless, it is important to note that delay may also raise issues under the second limb. See Choo, ibid., 93.
145.
See e.g. R v Davis, Rowe and Johnson [2001] 1 Cr App R 8.
146.
See e.g. R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42 and R v Mullen [2000] QB 520. See further Choo 2008, 113−123.
147.
R v Looseley [2001] 1 WLR 2060 [41] (Lord Hoffmann). See also R v Latif; R v Shahzad [1996] 1 WLR 104, 112 (Lord Steyn).
148.
This list is not intended to be exhaustive. For an overview of the situations that may give rise to the need to stay the proceedings on the grounds of abuse of process, see e.g. Choo 2008.
149.
See e.g. R v Beckford [1996] 1 Cr App R 94 at 101 and R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 [18].
150.
On the practice of ‘mixing’ the considerations applicable under each category in the context of lost and destroyed evidence, see Martin 2005.
151.
R v Latif; R v Shahzad [1996] 1 WLR 104, 112‒113 (Lord Steyn) (emphasis added).
152.
Choo 2008, 140.
153.
See e.g. R v Mullen [2000] QB 520 and Warren and others v Attorney General for Jersey [2012] 1 AC 22 [25]‒[26]. See also R v Maxwell [2011] 1 WLR 1837. The balancing approach for entrapment was refined in R v Looseley [2001] 1 WLR 2060. See also Choo 2008, 140−141.
154.
In Sect. 4.4.1.2.
155.
See also O’Connor 2012, 673.
156.
Choo 2008, 186−187, 188−189.
157.
R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 [26].
158.
Keane and McKeown 2014, 28. See also Choo 2015, 2 and 13.
159.
See e.g. Dennis 2013, 64.
160.
See e.g. Mirfield 1997, 122; and Choo 2015, 13.
161.
In Sect. 4.4.1.2.
162.
See Dennis 2013, 88. See also A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [15] (Lord Bingham). Speaking of the common law exclusionary rule in respect of confessions, His Lordship said that: ‘[I]t is in my opinion of significance that the common law has refused to accept that oppression or inducement should go to weight rather than the admissibility of confession. The common law has insisted on an exclusionary rule.’
163.
See e.g. Keane and McKeown 2014, 57; Dennis 2013, 304; and Mirfield 1997, 109.
164.
See Keane and McKeown 2014, 57–58, referring to R v Leatham [1861] Cox CC 498 at 501. See also Dennis 2013, 304.
165.
See e.g. Keane and McKeown 2014, 58–59; and Dennis 2013, 307–309.
166.
s 76(2) PACE enacts, in a general sense, a rule established at common law, which was set out as follows in the Judges’ Rules, [1964] 1 WLR 152 at 153: ‘it is a fundamental condition of the admissibility in evidence against any person, equally of an oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from here by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression .’ Mirfield describes the relationship between s 76(2) and the (old) common law exclusionary rule as follows: ‘Briefly put, the oppression head of the common law rule remains, though … its substantive content may have changed. But there has ceased to be any magic in the fear of prejudice or the hope of advantage. That threat or promise element of the old rule is replaced by an unreliability head which requires the court to look directly to the issue of whether or not any confession which the accused might have made in the prevailing circumstances was likely to be rendered unreliable.’ See Mirfield 1997, 77.
167.
See A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [51]–[52] (Lord Bingham).
168.
See Tapper 2010, 191.
169.
This ‘head’ of the common law exclusionary discretion has been recognised since at least the case of R v Christie [1914] AC 545. See also Mirfield 1997, 112) and Dennis 2013, 90−91 and 310.
170.
It appears that this head of the exclusionary discretion was first recognized in Kuruma v R [1955] AC 197. See in this regard Mirfield 1997, 112; and Dennis 2013, 90−91 and 310−311. See also Keane and McKeown 2014, 60 n 30.
171.
s 76(3) PACE.
172.
See e.g. Choo 2015, 110.
173.
See e.g. Choo 2015, 100.
174.
See e.g. Choo 2015, 109; and Mirfield 1997, 81.
175.
See Ashworth and Redmayne 2010, n 164.
176.
See e.g. Dennis 2013, 229; and Tapper 2010, 630.
177.
Dennis 2013, 229.
178.
R v Fulling (1987) 85 Cr App R 136 at 142.
179.
Ibid., 142.
180.
Ibid., 142. Nevertheless, questions remain as to how this definition of ‘oppression’ relates to the partial definition provided for in s 76(8), especially because the Court of Appeal in Fulling made no reference whatsoever to the partial definition provided for in s 76(8), a fact that has not gone unnoticed in the literature: see e.g. Keane and McKeown 2014, 386; Dennis 2013, 231; Tapper 2010, 639; and Mirfield 1997, 78.
181.
Mirfield 1997, 82−83. See also Dennis 2013, 232.
182.
Mirfield 1997, 83. Thus the word ‘wrongful’ in the Oxford Dictionary definition (see n 178 and accompanying text) ‘should be understood in the context of the rest of the definition, particularly the words “burdensome” and “harsh” which preceded it and “unjust or cruel treatment” which followed. Otherwise, any breaches of the Code, which might be said to be wrongful, could be said to amount to oppression, which clearly was not so.’ See R v Parker [1995] Crim LR 1995 233. See also Dennis 2013, 232.
183.
See e.g. Choo 2015, 97; Keane and McKeown 2014, 387; and Dennis 2013, 232.
184.
Dennis 2013, 232.
185.
R v Emmerson (1991) 92 Cr App R 284.
186.
Ibid., 287.
187.
R v Paris (1993) 97 Cr App R 99.
188.
Ibid., 103.
189.
Accordingly, the ‘physical and temporal’ circumstances may also come into it. See in this regard Mirfield 1997, 84−85.
190.
See Keane and McKeown 2014, 387; and also Mirfield 1997, 85, referring to R v Paris (1993) 97 Cr App R 99 and R v Seelig [1992] 1 WLR 148.
191.
Interestingly, while Choo says that it has been interpreted strictly (see Choo 2015, 98, 109), Keane and McKeown say that it has been interpreted widely (see Keane and McKeown 2014, 389).
192.
R v Goldenberg (1989) 88 Cr App R 285 at 290 (emphasis added).
193.
R v Goldenberg (1989) 88 Cr App R 285.
194.
Mirfield is critical in this regard, although he concedes that Goldenberg does ‘establish the proposition that self-induced confessions are not caught by Section 76(2)(b)’. See Mirfield 1997, 90.
195.
R v Crampton (1991) 92 Cr App R 369 at 372.
196.
See e.g. Mirfield 1997, 88; Dennis 2013, 238; and Keane and McKeown 2014, 389.
197.
See R v McGovern (1991) 92 Cr App R 228.
198.
See e.g. R v Fulling (1987) 85 Cr App R 136 at 142: ‘What however it abundantly clear is that a confession may be invalidated under Section 76(2)(b) where there is no suspicion of impropriety’. See also Mirfield 1997, 91−93; Keane and McKeown 2014, 393; and Dennis 2013, 236.
199.
See e.g. Dennis 2013, 236.
200.
Mirfield 1997, 91. See however Dennis 2013, 238−239.
201.
See e.g. Mirfield 1997, 105.
202.
See R v Barry [1992] 95 Cr App R 384. See also Mirfield 1997, 105, where the author discusses this case, and see also Ashworth and Redmayne 2010, 110‒111.
203.
Such reasoning appears to underlie the decision in R v Crampton (1991) 92 Cr App R 369. See also Mirfield 1997, 104.
204.
See e.g. R v McGovern (1991) 92 Cr App R 228. See also Mirfield 1997, 93−95; Keane and McKeown 2014, 392−393; and Choo 2015, 99.
205.
R v Crampton (1991) 92 Cr App R 369 at 372 (emphasis added).
206.
See e.g. Dennis 2013, 234. The Court of Appeal has clarified this in a number of cases. See e.g. R v Barry [1992] 95 Cr App R 384 at 389.
207.
Ashworth and Redmayne 2010, 109.
208.
Dennis 2013, 234−235. See also Ashworth and Redmayne 2010, 109‒110, where the authors suggest that the reason for being concerned with hypothetical unreliability ‘is presumably that the provision is intended to sanction bad questioning practices, even if they produce a confession which can proven to be reliable, for example, by evidence corroborating it or even a further admission by the defendant’.
209.
R v Glaves [1993] Crim LR 685 at 686.
210.
See also Dennis 2013, 227: The decision in Glaves suggests that it will be ‘a question of fact in each case whether earlier oppression continues to operate on the defendant’s mind’.
211.
R v McGovern (1991) 92 Cr App R 228.
212.
Ibid., 234.
213.
For a discussion of Glaves and McGovern, see Mirfield 1997, 106−107.
214.
See e.g. R v Ismail [1990] Crim LR 109. See in this regard Mirfield 1997, 107−108.
215.
Dennis 2013, 250.
216.
The defence may, though.
217.
See n 158 and accompanying text.
218.
Dennis 2013, 250. This was the principle established in R v Warickshall (1783) 1 Leach CC 263. Regarding Warickshall and the position at common law with respect to facts discovered in consequence of an inadmissible confession, see also Keane and McKeown 2014, 420; and Choo 2015, 114.
219.
Choo 2015, 115−116. See also Keane and McKeown 2014, 421: ‘proof that the stolen goods were hidden in a particular place, without reference to the confession, will do little or nothing to advance the prosecution case unless, as it happens, there is some link between the accused and the goods, because, for example, they were found at a place frequented by him, such as his house or place of work, or bore his fingerprints’.
220.
See Choo 2015, 116; and Mirfield 1997, 225.
221.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [51] (Lord Bingham). For a detailed discussion of the case, see e.g. Roberts 2012b, 169−177.
222.
However, their Lordships were divided on the issue of the burden of proof that should apply in proceedings before the Special Immigration Appeals Commission.
223.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [52].
224.
Ibid., [52] (Lord Bingham).
225.
According to Lord Hoffmann, that was not the question in this case: ‘We are concerned with the admissibility of the raw product of interrogation under torture.’ A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [88].
226.
Warickshall (1783) 1 Leach 263.
227.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249, [16], [87]−[88].
228.
See also Dennis 2013, 308−309. See however Loof 2011, 52.
229.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [87].
230.
Ibid., [88].
231.
Ibid., [53]. See also [97] (Lord Hoffmann).
232.
Dennis 2013, 91.
233.
Keane and McKeown 2014, 48.
234.
R v Sang [1980] AC 402 HL, 436–437 (Lord Diplock). See also Dennis 2013, 90 and 312.
235.
See e.g. Mirfield 1997, 131; and Dennis 2013, 90–92.
236.
It also suggests that the discretion at common law to exclude evidence is not restricted in its scope of application to unlawfully obtained evidence. See in this regard Dennis 2013, 90−91.
237.
Dennis 2013, 310. In fact, this head is ‘almost exclusively concerned with evidence obtained by illegal or unfair means’. See ibid., 91.
That the common law exclusionary discretion has two ‘heads’ is widely recognized. See (also) Mirfield 1997, 111–114; Ormerod and Birch 2004, 770; Tapper 2010, 196‒198; and Keane and McKeown 2014, 395.
238.
See n 170 and accompanying text.
239.
R v Sang [1980] AC 402, 424.
240.
Ibid., 437 (Lord Diplock). Two points should be made here. First, although all members of the House approved of this formulation, ‘the actual speeches of their Lordships added significant glosses thereto which are inconsistent with each other’. See Mirfield 1997, 116. Second, this formulation is, strictly speaking, obiter dictum. Nevertheless, ‘it has had a very powerfully persuasive effect’. See Tapper 2010, 196.
241.
See e.g. Grevling 1997, 668; Ormerod and Birch 2004, 771–772; Tapper 2010, 202; Dennis 2013, 91–92 and 317; and Choo 2015, 101.
242.
R v Sang [1980] AC 402, 435 and 436 (Lord Diplock).
243.
Indeed, Lord Diplock expressly linked the unavailability of the discretion in cases involving evidence obtained by an unlawful search to what in his view was the underlying rationale for exclusion on the grounds of unfairness: that of the privilege against self-incrimination. See R v Sang [1980] AC 402, 436.
244.
Dennis 2013, 92.
245.
The relevant parts of their Lordships’ opinions are not easy to reconcile and subsequent cases did not clarify the ruling on the unfairness head. See e.g. Grevling 1997, 668–669; Mirfield 1997, 116–120; Ormerod and Birch 2004, 771–772; Tapper 2010, 202; and Dennis 2013, 92 and 311–316. According to Mirfield, ‘[o]n balance, it seems right to conclude that the unfairness discretion at common law is reasoned in the way suggested by Lord Diplock in Sang’, who, it should be recalled, identified as the underlying rationale of the unfairness discretion that of the privilege against self-incrimination. See Mirfield, Ibid., 119.
246.
See e.g. Keane and McKeown 2014, 51 and 65; and Mirfield 1997, 120 n 68 and 121.
247.
See e.g. Dennis 2013, 93 and 316. See also Mirfield 1997, 120 n 68; and Choo 2015, 101.
248.
According to Dennis, it is ‘unclear after PACE whether this head of the discretion [the unreliability head, pursuant to which evidence should be excluded if its probative value is outweighed by its prejudicial effect on the minds of the jury] has been absorbed by the general discretion under s. 78, or whether it has been preserved as a separate head of discretion by s. 82(3)’. By contrast, it seems ‘to have been generally assumed that the discretion discussed in Sang, founded on fairness to the accused, has been absorbed into the discretion under s. 78 to safeguard the fairness of the proceedings.’ See Dennis 2013, 73, 100 n 163 and 316; and Keane and McKeown 2014, 402.
249.
See e.g. Dennis 2013, 316. See also Ormerod and Birch 2004, 775.
250.
See n 236 and accompanying text.
251.
This is confirmed in the case law: see e.g. R v Samuel [1988] QB 615 at 630: ‘It is undesirable to attempt any general guidance as to the way in which a judge’s discretion under Section 78 or his inherent powers should be exercised. Circumstances vary infinitely. … Mr. Jones has made the extreme submission that, in the absence of impropriety, the discretion should never be exercised to exclude admissible evidence. We have no hesitation in rejecting that submission, although the propriety or otherwise of the way in which the evidence was obtained is something which a court is, in terms, enjoined by the section to take into account.’ See also Dennis 2013, 89, 98−99; and Keane and McKeown 2014, 51 and 402.
252.
See e.g. R v Horncastle [2009] UKSC 14 [28]. See also Dennis 2013, 98−99; and Keane and McKeown 2014, 64.
253.
See e.g. Dennis 2013, 318.
254.
See e.g. R v Keenan [1990] 2 QB 54 at 62. See also Mirfield 1997, 121, referring to the earlier cases of R v Mason [1988] 1 WLR 139 and R v Samuel [1988] QB 615.
255.
See e.g. Dennis 2013, 103, 318; and Keane and McKeown 2014, 64.
256.
See e.g. Keane and McKeown 2014, 63. See also Dennis 2013, 103 and 318.
257.
R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134 [52].
258.
Ibid., [52]. See also Dennis 2013, 318.
259.
See Dennis 2013, 103−104, 318. See also Keane and McKeown 2014, 65; and Mirfield 1997, 123−124.
260.
In Sect. 4.4.1.2.
261.
See s 6(1) HRA
262.
See e.g. R v Delaney (1989) 88 Cr App R 338 at 341, and also R v Parris (1989) 89 Cr App R 68 at 72: ‘A breach of the Act or Codes does not mean that any statement made by a defendant after such a breach will necessarily be ruled out. Every case has to be determined on its own merits.’ See also R v Stewart [1995] Crim LR 499 and R v Gill [2004] 1 WLR 469 [41]. See also Ashworth and Redmayne 2010, 348; and Dennis 2013, 320.
263.
See in particular R v Keenan [1990] 2 QB 54 and R v Gill [2004] 1 WLR 469 [41]. See also e.g. Ashworth and Redmayne 2010, 348; Dennis 2013, 240−241, 320; and Choo 2015, 101 and 173.
264.
See e.g. R v Walsh [1990] 91 Cr App R 161. See also R v Samuel [1988] QB 615 at 630, where the Court of Appeal emphasizes the fundamental nature of the right, although it does not adopt the significant and substantial terminology. And see Parris, in which the Court of Appeal ruled that in the circumstances, the breach of the right of access to legal advice had such an adverse effect on the fairness of the proceedings that the interview obtained thereby should have been excluded. See R v Parris (1989) 89 Cr App R 68 at 73.
265.
R v Absolam (1989) 88 Cr App R 332.
266.
See e.g. R v Keenan [1990] 2 QB 54 and R v Canale (1990) 91 Cr App R 1.
267.
See e.g. R v Nelson [1998] 2 Cr App R 399 and R v Kirk [2000] 1 WLR 567. See also Dennis 2013, 248; and Keane and McKeown 2014, 69.
268.
R v Blackwell [1995] 2 Cr App R 625 at 641.
269.
R v Walsh [1990] 91 Cr App R 161 at 163 (emphasis added).
270.
Dennis 2013, 242. See also Choo 2015, 103.
271.
See e.g. R v Mason [1988] 1 WLR 139 at 144 and R v Hughes [1994] 1 WLR 876 at 879.
272.
R v Alladice (1988) 87 Cr App R 380 at 386. See also R v Delaney (1989) 88 Cr App R 338 at 342−343 where the Court of Appeal refers to bad faith in the context of s 76 PACE but later on states that these principles also apply to S. 78. at 343. See also R v Canale (1990) 91 Cr App R 1 at 6.
273.
R v Walsh [1990] 91 Cr App R 161 at 163. See also Choo 2015, 102 and 173.
274.
See e.g. R v Alladice (1988) 87 Cr App R 380 at 386. See also Dennis 2013, 241−243, 279−282, 320; and Choo 2015, 102. Where there is bad faith , the court may also enquire into how far the defendant was prejudiced by the breach; while prejudice is not a requirement in such cases, ‘[a]n element of prejudice will provide further support for exclusion.’ See ibid., 242−243.
275.
R v Samuel [1988] QB 615 at 630.
276.
R v Alladice (1988) 87 Cr App R 380 at 386−387.
Causing the accused to produce incriminating evidence is one form of prejudice (see in this regard also Grevling 1997, 677−678; another is where the effect of the breach is to make it more difficult for the accused to challenge incriminating evidence. See Dennis 2013, 320. Regarding the latter form of prejudice, see e.g. R v Keenan [1990] 2 QB 54 at 70. See further Mirfield 1997, 133−135; and Grevling 1997, 678−679.
277.
See also Dennis 2013, 320; and Choo 2015, 103−104: ‘Only if the breach could have ‘made a difference’ in the case would exclusion appear to be justified’. Choo notes that this is problematic: ‘The notion that a confession will not be excluded from evidence under Section 78(1) if it is determined that the presence of a legal advisor would have ‘made no difference’, since the defendant would have made the confession in any event, is a problematic one. It is clear that such a determination can involve courts in a certain amount of post hoc rationalization of events. The desirability of this may be questioned.’ Dennis is similarly critical; see ibid., 243.
278.
See in this regard Mirfield 1997, 189−199.
279.
Dennis observes that in such cases the ‘significant and substantial’ formula is not always adopted. See Dennis 2013, 279.
280.
Mirfield 1997, 189.
281.
R v Nagah (1991) 92 Cr App R 344. See also R v Finley [1993] Crim LR 50. Other deliberate breaches of Code D than the failure to hold an identification parade are also likely to result in the exclusion of evidence.
282.
See e.g. R v Tiplady [1995] Crim LR 65.
283.
R v Ryan [1992] Crim LR 187. See also H v DPP [2007] EWHC 2192 (Admin) [16]. Mirfield observes that whereas in Ryan the Court of Appeal had focused on actual prejudice, i.e. actual contamination, in other cases concerning identification evidence, the ‘appearance of unfairness’ has sufficed for exclusion (see e.g. R v Gall [1990] 90 Cr App R 64). Mirfield 1997, 195.
284.
This was because the witness had seen the two suspects being arrested from quite close up and there was therefore a substantial chance that during the video procedure the witness would simply pick out the two suspects who he had seen being arrested.
285.
R v Preddie [2011] EWCA Crim 312 [30]−[53].
286.
R v Nathaniel [1995] 2 Cr App R 565.
287.
Specifically, it constituted a breach of s 64(1) PACE, as it read then.
288.
R v Nathaniel [1995] 2 Cr App R 565 at 571. See Dennis 2013, 322.
289.
R v Nathaniel [1995] 2 Cr App R 565 at 571. See Mirfield 1997, 136; and Ashworth and Redmayne 2010, 353, where the authors remark that this may have been crucial to the decision to exclude. According to Keane and McKeown, this constituted bad faith on the part of police. See Keane and McKeown 2014, 66. However, according to Dennis, the Court of Appeal’s decision can be explained by the fact that the accused had suffered prejudice as a result of the breach. See Dennis 2013, 319−320.
290.
R v Cooke [1995] 1 Cr App R 318.
291.
Ibid., 328−329.
292.
For one such case, see R v Fennelly [1989] Crim LR 142.
293.
However, this need not to be the case. As Mirfield explains, referring to Kuruma v R [1955] AC 197: ‘The tendency is to assume that, particularly in the case of real evidence, the mode of acquisition is irrelevant to its reliability. Superficially, this assumption is true; it is what it says it is. However, we often depend upon oral evidence for details of its provenance. Thus a person illegally searched may say that nothing was found in his possession and that the police are simply lying when they say that they found upon him the drugs which they now produce in court. Usually, this will come down to a question of who is believed by the trier of fact, a difficulty which may equally be faced where the search itself was utterly lawful. Sometimes, though, as in Kuruma itself, there may be a connection between the illegality and the allegation that evidence had been ‘planted’. The relevant regulation, under Kenyan emergency legislation, allowed the police to exercise stop and search powers, but only if the officer involved was of a rank of assistant inspector or above. Kuruma had been searched by officers below that rank. They claimed that they had found ammunition in his possession, but he flatly denied that allegation. It seems highly likely that the requirement of rank was designed to ensure that the officer would not ‘plant’ evidence. Hence, there would seem to have been a strong argument for exclusion of the ammunition evidence even in terms of unreliability.’ Mirfield 1997, 109−110.
294.
See R v Stewart [1995] Crim LR 499.
295.
See R v Stewart [1995] Crim LR 499 at 500.
296.
See e.g. R v McCarthy [1996] Crim LR 818, R v Wright [1994] Crim LR 55 and R v Sanghera [2001] 1 Cr App R 20.
297.
R v Sanghera [2001] 1 Cr App R 20 [16].
298.
This was particularly so prior to the enactment of the Regulation of Investigatory Powers Act 2000 and the Police Act 1997. Prior to this, interferences with privacy could not be said to be in accordance with the law, as required under Article 8(2) ECHR.
299.
R v Khan [1997] AC 558.
300.
Ibid., 577−578. This was the first issue that needed to be resolved. According to Lord Nolan ‘[t]he evidence of the taped conversation was clearly admissible as a matter of law.’
301.
Ibid., 582.
302.
Ibid., 582.
303.
Ibid., 582.
304.
R v Hardy [2003] 1 Cr App R 30.
305.
R v Hardy [2003] 1 Cr App R 30 [19]. See also [18]: ‘the Court’s powers to regulate the admission of evidence, pursuant inter alia to s. 78 and its inherent jurisdiction, represent means of ensuring that Article 6 is not infringed’.
306.
Choo 2015, 182 and 203.
307.
R v Mason [2002] 2 Cr App R 38.
308.
Ibid., [73].
309.
Ibid., [75].
310.
Ibid., [74]. See also R v Loveridge [2001] 2 Cr App R 29 [33].
311.
R v Bailey [1993] 97 Cr App R 365.
312.
Ibid., 375.
313.
R v Chalkley [1998] QB 848.
314.
Ibid., 876.
315.
R v Mason [1988] 1 WLR 139.
316.
Ibid., 144.
317.
R v Christou [1992] QB 979.
318.
Ibid., 991. In Bryce, the officers had done just that: [1992] 95 Cr App R 320.
319.
R v Smurthwaite (1994) 98 Cr App R 437 at 440-441.
320.
See e.g. Mirfield 1997, 201; Keane and McKeown 2014, 77; and Choo 2015, 197.
321.
R v Looseley [2001] 1 WLR 2060.
322.
Ibid., [16]. See also [36], [42] (Lord Hoffmann).
323.
Ibid., [17] (Lord Nicholls).
324.
Ibid., [44].
325.
Ibid., [43], where Lord Hoffmann refers to R v Shannon [2001] 1 WLR 51. In referring to Shannon, Lord Hoffmann (and Lord Hutton) appear to understand s 78 as being concerned with reliability . See Choo 2015, 203.
326.
R v Neil [1994] Crim LR 441. In the circumstances, it was held that the judge should have exercised his discretion to exclude the evidence, since the accused ‘would have considered himself bound to the admissions in the first statement’, and because ‘[t]he circumstances of the second interview were insufficient to provide him with a safe and confident opportunity of withdrawing the admissions.’ See, for a critical discussion of the case law on this point, Mirfield 1997, 146−148.
327.
See n 216 and accompanying text.
328.
This has not gone unnoticed in the literature. According to Choo: ‘Surely consistency requires … that an analogous principle to that in Section 76(5) should apply in relation to confessions excluded from evidence in the exercise of discretion under Section 78(1). This result can be achieved by using Section 78(1) itself to exclude evidence that the fact which was discovered was discovered as a result of the statement already excluded from evidence under Section 78(1).’ See Choo 2015, 116.
329.
See e.g. Mirfield 1997, 143, 209. However, even if it is accepted that the rationale for exclusion under the unfairness head of the common law exclusionary discretion is that of the privilege against self-incrimination, Mirfield argues that it is ‘not at all clear’ why the accused’s will should ‘have been engaged any the less where the evidence was eventually obtained from his surroundings or his house, rather than from his person’ (ibid., 143).
330.
Dennis 2013, 95. See also Zander 1985, 115−116.
331.
Dennis 2013, 95, 101 and 317. See also Choo 2015, 173.
332.
See R v Cooke [1995] 1 Cr App R 318 at 328: the Court of Appeal said that ‘it is now clear that Section 78 has given the courts a substantially wider discretion to refuse to admit evidence improperly obtained’ immediately after observing that, prior to PACE entering into force, the discretion to exclude improperly obtained evidence that was relevant and admissible was strictly circumscribed (thereby referring to House of Lords’ decision in R v Sang [1980] AC 402).
333.
See n 319 and accompanying text.
334.
See e.g. R v Khan, Sakkaravej and Pamarapa [1997] Crim LR 508; R v Stewart [1995] Crim LR 499; R v McCarthy [1996] Crim LR 818; and R v Wright [1994] Crim LR 55.
335.
In other words, self-incrimination is no longer ‘the key’. See Mirfield 1997, 143−144.
336.
See n 242 and accompanying text.
337.
See e.g. R v Mason [1988] 1 WLR 139 at 144. See also Dennis 2013, 99‒103.
338.
R v Chalkley [1998] QB 848, 874−875.
339.
Ibid., 875.
340.
Dennis 2013, 101 n 167.
341.
In Chalkley, the Court of Appeal was called to rule on s 78(1); in its view, s 78(1) does not widen the common law exclusionary discretion, such that its considerations in relation to the common law discretion also apply to s 78(1).
342.
This is certainly how the Court of Appeal’s decision in Chalkley has been interpreted in the literature. See e.g. Choo 2015, 177 and 186; Dennis 2013, 102 and 343; and Ashworth and Redmayne 2010, 351.
343.
R v Chalkley [1998] QB 848 at 876.
344.
See also R v Shannon [2001] 1 WLR 51. For a (critical) discussion of this case, see Choo 2015, 196−197. See also Dennis 2013, 102.
345.
See e.g. Dennis 2013, 101−103, 343; and Choo 2015, 177 and 186.
346.
Ashworth and Redmayne 2010, 351. Presumably the same would apply to the decision in Shannon. See n 344 and accompanying text.
347.
See e.g. Dennis 2013, 102; and Keane and McKeown 2014, 64.
348.
See Mirfield 1997, 213.
349.
In Sect. 4.5.
350.
See n 322‒323 and accompanying text.
351.
See in this regard R v Looseley [2001] 1 WLR 2060 [7]‒[9] (Lord Nicholls). See also Ashworth 1999 and Ashworth 2002.
352.
For an example of a case in which the Court of Appeal held that the entrapment should have been taken into account in imposing the sentence, see R v Tonnessen [1998] 2 Cr App R (S) 328.
353.
See Ashworth 2002, 164.
In academic discussions also, it has been acknowledged that sentence reduction may be an appropriate response to procedural violations committed in the pre-trial phase of criminal proceedings, although often it is argued that such a response is only appropriate when a more far-reaching response is, for one reason or another, not called for. See e.g. Ashworth 1977, 725−726; Ormerod 2003, 69; and Choo 2008, 186−187.
354.
A-G’s Reference (No 2 of 2001) [2001] 1 WLR 1869.
355.
Ibid., [20].
356.
See e.g. R v Mason [2002] 2 Cr App R 38 [75]. While in Warren and others v Attorney General for Jersey [2012] 1 AC 22 the Board does not explicitly say this, according to O’Connor, it ‘relied heavily upon verbal condemnations of the misconduct and warnings for the future, even suggesting that they alone would dispel any “integrity” issue’. See O’Connor 2012, 676.
357.
In Chap. 1, ‘balancing ’ was defined as an approach to the question of how to address pre-trial procedural violations whereby the court (also) takes into account factors that seemingly have nothing to do with that which warranted the court’s attention in the first place, and which militate against a (potentially) far-reaching response thereto.
358.
Choo 2008, 156.
359.
Ibid., 156−157. For these two interpretations, Choo draws on Dworkin’s Taking Rights Seriously, in which a distinction is drawn between ‘discretion’ in a weak sense and ‘discretion’ in a strong sense. See Dworkin 1977, 31−32.
360.
Dennis 2013, 89. Dennis also draws on Dworkin’s Taking Rights Seriously. See in this regard n 359. See also Tapper 2010, 191−196; and Choo 2015, 14.
361.
Choo 2008, 157.
362.
See generally Dennis 2013, 89−90.
363.
See e.g. R v Chalkley [1998] QB 848, 874, where the Court of Appeal said that if the court is of the view that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted ‘it cannot logically “exercise a discretion” to admit the evidence, despite the use of the permissive formula in the opening words of the provision that it “may refuse” to admit the evidence in that event’. See also e.g. Keane and McKeown 2014, 51 and 63; Dennis 2013, 89−90; Ormerod and Birch 2004, 780 n 101; and Mirfield 1997, 122−123.
364.
Choo 2015, 14−15. See also Choo 2008, 156−157, drawing on Pound’s Jurisprudence. Pound defines a rule as ‘a legal precept attaching a definite detailed legal consequence to a definite detailed state of fact’. Pound 1959, 124.
365.
See n 360 and accompanying text.
366.
See also Ormerod and Birch 2004, 780.
367.
Choo 2015, 14.
368.
Ibid., 14.
369.
See e.g. Dennis 2013, 103−104, 318; Mirfield 1997, 123−124; and Keane and McKeown 2014, 65.
370.
Mirfield 1997, 123.
371.
Choo 2008, 163.
372.
Ibid., 164−165. O’Connor also calls for a more structured approach in context of the abuse of process doctrine. See O’Connor 2012, 685.
373.
Choo 2008, 190−191. For a discussion of the distinction between structuring and confining in the context of the exercise of judicial discretion, see ibid., 162−165.
374.
Ormerod and Birch 2004, 785.
375.
Ibid., 786.
376.
See e.g. Ormerod and Birch 2004, 786.
377.
See e.g. Choo 2015, 189−191. See also Ormerod 2003.
378.
Ormerod and Birch 2004, 785−786.
379.
Dennis 2003, 227.
380.
See in this regard O’Connor 2012, 685.
381.
R v Latif; R v Shahzad [1996] 1 WLR 104 at 112‒113 (emphasis added). O’Connor is critical of this formulation of the balancing exercise: ‘“impression” … can be dispelled by mere words of condemnation . It must be doubted whether Lord Steyn will have intended, or even foreseen, that, by this choice of words, “intervention” by the court could, in future, be reduced to “finger-wagging”. See O’Connor 2012, 676.
382.
R v Latif; R v Shahzad [1996] 1 WLR 104, 112 (Lord Steyn) (emphasis added).
383.
Ibid., 113.
384.
Ibid., 113. See also n 80 and accompanying text.
385.
See also Mirfield 1997, 26−27 and 151−153. Regarding the public attitude variation of the integrity rationale, see n 79‒81 and accompanying text.
386.
See in this respect also R v Mullen [2000] QB 520.
387.
Rogers 2011, 8.
388.
R v Looseley [2001] 1 WLR 2060 [25]‒[29].
389.
Ibid., [26].
390.
Rogers 2011, 8. Mirfield is also mindful of the different ways in which the ‘seriousness of the offence’ may enter the analysis under the integrity rationale. See Mirfield 1997, 32−33.
391.
O’Connor 2012, 683.
392.
Warren and others v Attorney General for Jersey [2012] 1 AC 22 [47] (Lord Dyson). See also Rogers 2011, 8.
393.
Warren and others v Attorney General for Jersey [2012] 1 AC 22 [50] (Lord Dyson).
394.
Rogers 2011, 8.
395.
See n 120 and 385 and accompanying text.
396.
See n 119 and accompanying text.
397.
See n 94 and accompanying text.
398.
See e.g. Rogers 2011, 8. While of the view that the seriousness of the offence should not be taken into account as a standalone factor under the second limb of the abuse of process doctrine, Rogers takes a different view in the context of s 78 PACE. See ibid., 9.
399.
R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293.
400.
Ibid., [19], [23]. See also Martin 2005, 158).
401.
Choo 2008, 189−190 (emphasis added). See also 94–95, 102 and 132. Nevertheless, courts do not always get it right. See in this regard Martin 2005.
402.
Martin 2005, 181 (emphasis in original).
403.
Ibid., 181 (emphasis in original).
404.
Dennis 2003, 228.
405.
Yet another factor appears to be the ‘state of the other evidence’. See Dennis 2013, 249, in this regard.
406.
A-G’s Reference (No 3 of 1999) [2001] 2 AC 91.
407.
Ibid., 124−125 (Lord Hutton). See also Dennis 2013, 323; and Ashworth and Redmayne 2010, 353−354, where the authors discuss this case. Ashworth remarks, regretfully, that consideration of whether the offence charged is a serious one is a ‘judicial favourite’. See Ashworth 2003, 120. For other cases that suggest that courts may, in the context of s 78 PACE, take into the seriousness of the offence , see e.g. R v Bailey [1993] 97 Cr App R 365, 375; R v Khan [1997] AC 558, 582 (Lord Nolan: ‘I confess that I have reached this conclusion not only quite firmly as a matter of law, but also with relief. It would be a strange reflection on our law if a man who has admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded.’); R v McLeod [2002] EWCA Crim 989, [31]; and R v Plunkett [2013] 1 WLR 3121, [58].
408.
R v Plunkett [2013] 1 WLR 3121 [58].
409.
R v Plunkett [2013] 1 WLR 3121 [60].
410.
See e.g. R v Cooke [1995] 1 Cr App R 318, 328 and R v Sanghera [2001] 1 Cr App R 20 [17]. See in this regard e.g. Mirfield 1997, 141; Grevling 1997, 680; Ormerod and Birch 2004, 784; and Dennis 2013, 318.
411.
Rogers argues that, unlike in the context of the second limb of the abuse of process doctrine, in the context of the exclusionary discretion under s 78 PACE, the seriousness of the offence should be an independent factor. See Rogers 2011, 9.
412.
See also Mirfield 1997, 141, explaining how the prosecution may come to represent ‘an element of the public interest’.
413.
Grevling 1997, 681.
414.
Ormerod and Birch 2004, 780.
415.
Grevling 1997, 681.
416.
Ashworth and Redmayne 2010, 354.
417.
R v Chalkley [1998] QB 848, 874−876.
418.
See n 248, 251‒252 and accompanying text.
419.
See Mirfield 1997, 141.
420.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.
421.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 52 (Lord Griffiths), delivering the main speech in the House of Lords.
422.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 61−62 (Lord Griffiths).
423.
R v Mullen [2000] QB 520.
424.
Ibid., 535. The insulation of the defendant from any legal advice was a vital element in the operation because it meant that he was effectively prevented from requesting that he be deported to Ireland or to some other jurisdiction.
425.
Ibid., 536.
426.
R v Quinn [1990] Crim LR 581.
427.
Ibid., 582.
428.
Ibid., 582.
429.
R v Konscol 1993 WL 965659.
430.
Ibid.
431.
It is worth noting that this case was decided prior to the Grand Chamber’s leading decision in Salduz v Turkey (App no 36391/02 (ECtHR, 27 November 2008)).
432.
R v McNab and Others [2002] 1 Cr App R (S.) 72.
433.
R v P [2002] 1 AC 146.
434.
Ibid., 165.
435.
Loof 2011, 54.
436.
Ibid., 54.
437.
R v Redmond [2009] 1 Cr App R 25, 342 (emphasis added).
438.
Ibid., 342.
439.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 [51] (Lord Bingham).
440.
See n 114‒116 and accompanying text.
441.
See n 73‒96 and accompanying text.
442.
See n 118 and accompanying text.
443.
See n 395‒396 and accompanying text.
444.
Warren and others v Attorney General for Jersey [2012] 1 AC 22 [26]. This was a Privy Council case. It should be recalled that while judgements of the Judicial Committee of the Privy Council are not generally binding on courts in England, they do have significant persuasive authority. See in this regard n 129 and accompanying text.
445.
Ibid., [26].
446.
See n 95 and accompanying text.
447.
Rogers 2011, 8.
448.
Ibid., 8. This suggests that Rogers favours an approach to the second limb of the abuse of process doctrine based on the court-centred variation of the integrity rationale.
449.
See n 387‒394 and accompanying text.
450.
See e.g. Ashworth and Redmayne 2010, 357; and also Keane and McKeown 2014, 67.
451.
R v Samuel [1988] QB 615 at 630.
452.
See Ashworth and Redmayne 2010, 357.
453.
See n 57‒62 and accompanying text.
454.
See Ashworth and Redmayne 2010, 358.
455.
Nevertheless, according to Ashworth and Redmayne, ‘although several cases make this point, it may be less significant when it comes to actual decisions made by the courts. We are not aware of any decision under s 78 where evidence is obtained in breach of a PACE right but is admitted owing to the absence of bad faith .’ See Ashworth and Redmayne 2010, 358.
456.
See e.g. Mirfield 1997, 32: ‘One’s rights are no less damnified by the blundering police officer than by the malevolent one.’
457.
See e.g. R v Mason [1988] 1 WLR 139 and R v Hughes [1994] 1 WLR 876.
458.
Choo 2015, 187.
459.
R v Chalkley [1998] QB 848.
460.
See n 348 and accompanying text.
461.
Mirfield 1997, 109 (emphasis added).
462.
In Chalkley the Court of Appeal interpreted the relevant passage of Lord Diplock’s judgment in Sang as saying that the rationale underlying the unfairness head of the common law exclusionary discretion is that of reliability , but this reading of the passage is questionable. See n 339−340 and accompanying text.
463.
See Choo 2015, 177. See also Nash and Choo 1999, 936.
464.
See Nash and Choo 1999, 936.
465.
R v Khan [1997] AC 558.
466.
See Nash and Choo 1999, 936.
467.
R v Cooke [1995] 1 Cr App R 318.
468.
R v McCarthy [1996] Crim LR 818.
469.
R v Khan, Sakkaravej and Pamarapa [1997] Crim LR 508.
470.
R v Sanghera [2001] 1 Cr App R 20.
471.
See however n 293 and accompanying text.
472.
See e.g. Dennis 2013, 97. See also Mirfield 1997, 110: ‘That the rule of inclusion for non-confession evidence has survived the enactment of the Police and Criminal Evidence Act 1984 … has been categorically confirmed by Lord Nolan in Khan.’
473.
Dennis 2013, 97.
474.
Nash and Choo 1999, 936.
475.
Ibid., 933. See also Choo 2015, 175.
476.
R v Cooke [1995] 1 Cr App R 318, 328−329.
477.
R v Sanghera [2001] 1 Cr App R 20 [15]. See also R v Khan, Sakkaravej and Pamarapa [1997] Crim LR 508; and R v McCarthy [1996] Crim LR 818.
478.
See e.g. Mirfield 1997, 109−110; and Nash and Choo 1999, 936.
479.
See e.g. Choo 2015, 186; Nash and Choo 1999, 935, 936 and 937; Ormerod and Birch 2004; and Keane and McKeown 2014, 65−66.
480.
R v Looseley [2001] 1 WLR 2060 [12]. As to the commentators, see e.g. Keane and McKeown 2014, 66) and Ormerod and Birch 2004, 779−780.
481.
See e.g. R v Shannon [2001] 1 WLR 51; and see Choo 2015, 196−197; and Dennis 2013, 102, where this case is discussed.
482.
Ormerod and Birch 2004, 780.
483.
See e.g. R v Hardy [2003] 1 Cr App R 30 [18]‒[19].
484.
Ormerod and Birch 2004, 780.
485.
See e.g. R v Hardy [2003] 1 Cr App R 30 [19]. See also R v Rosenberg [2006] Crim LR 540.
486.
In this regard it should be noted that the Court of Appeal’s attempts to do so (see e.g. R v Chalkley [1998] QB 848) have been subject to robust criticism in the literature. See e.g. Choo 2015, 186.
487.
See also e.g. Ormerod and Birch 2004, 775−776.
488.
Ormerod and Birch 2004, 781.
489.
Thanks to Professor Andrew Choo for drawing my attention to this point.
490.
See n 370 and accompanying text.
491.
R v Mason [2002] 2 Cr App R 38 [83].
492.
R v Cooke [1995] 1 Cr App R 318, 328−329.
493.
R v Sanghera [2001] 1 Cr App R 20 [17].
494.
Dennis 2013, 227 n 87. See also Choo 2015, 186.
495.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249.
496.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 at 130. See also Roberts 2012b, 172.
497.
See e.g. Nash and Choo 1999; Ormerod and Birch 2004; and Choo 2015, 186.
498.
Ormerod and Birch 2004, 782.
499.
Ibid., 785.
500.
See n 80 and accompanying text.
501.
See e.g. R v Plunkett [2013] 1 WLR 3121 [58]−[60].

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Pitcher, K. (2018). Judicial Responses to Pre-Trial Procedural Violations in England and Wales. In: Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings. International Criminal Justice Series, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-219-4_4

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