Excluding Evidence

In criminal proceedings there are a number of rules, both common law and statu­tory, that prevent certain pieces of evidence being admitted into the proceedings. This means they cannot be heard by the judge/jury at trial.

In addition, breaches of the Codes of Practice to the Police and Criminal Evidence Act 1984 may lead to the exclusion of evidence obtained as a result of those breaches. A criminal advocate should familiarise themselves with all the different codes of prac­tice of PACE (A-H) and these can be found on the government website www.gov.uk.

As we will see when discussing appeals, if a judicial discretion is used to exclude evi­dence (or in limited cases to include evidence) it is very hard to challenge this decision through an appeal, unless it can be shown that the exercise of the discretion was so perverse that no other judge would have made the same decision (this is known as ‘Wednesbury unreasonableness’).

In a criminal court the judge normally hears legal argument about issues of admis­sibility in the absence of the jury either before trial or during the trial in a procedure known as a ^,voirdire’ (a trial within a trial when the jury is temporarily asked to leave the courtroom). The reason for the absence of the jury is so that if the judge makes a ruling that the disputed evidence is inadmissible the jury will not have heard the evidence and therefore cannot rely upon it when deciding the verdict.

Illegal searches, confessions and character evidence are types of evidence that would be subject to a voir dire to determine issues of admissibility.

5.2.1 Illegally or Improperly Obtained Evidence

This is evidence that has been obtained in a questionable or wrong way and has breached normal rules and procedures. Unlike the other categories of evidence that we will consider in this section, there is not a general exclusionary rule against evi­dence that has been obtained in an illegal or improper way; if the evidence is rel­evant, it is potentially admissible. However, there are rules to be found in legislation and common law that exclude certain types of improperly obtained evidence such as

confessions or evidence obtained by torture. Generally, the court will exercise discre­tion in deciding admissibility.

Improperly obtained evidence may also involve breaches of the Police and Criminal Evidence Act (‘PACE’) 1984. For example, searches by the police (whether of a per­son or property) should be conducted in accordance with Code A and B of PACE 1984. Where evidence has been obtained illegally or unlawfully (such as a confes­sion obtained by force or an illegal search or manufactured evidence by the police) the court has a discretion to exclude the evidence from trial and this is usually done through the discretion found under s. 78 PACE 1984. This section provides that “where in all the circumstances of the case the evidence would have an adverse effect on the fairness in the proceedings it ought not to be admitted”. It is a statutory provision commonly used to exclude prosecution evidence.

Police trickery is false or misleading information and/or action that takes place after the crime has already been committed. The trickery may be used to obtain evi­dence against the defendant, for example, by illegally bugging the defendant’s cell or falsely telling the defendant that his fingerprints were found at the scene of the crime.

Evidence that has been obtained by police trickery may also lead to the evidence being excluded using s. 78. The judge also has an alternative exclusionary discretion that can be found under s. 82(3) PACE which is the courts’ general power to exclude evidence in any form.

As stated by Viscount Dilhorne in R v Sang [1979] UKHL 3:

evidence may be obtained unfairly but not illegally but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it [10].

This principle is thought to have been preserved by the judicial discretion in s. 82(3) PACE 1984.

However, the availability of judicial discretion to exclude evidence does not mean it will always lead to evidence being excluded. For example, in Khan v UK (2000) 31 EHRR 45 secretly taped surveillance material was not considered to have been admitted in breach of Article 6 of the European Convention on Human Rights (right to a fair trial) because of the Sang principle and the voir dire all of which afforded a defendant an opportunity to challenge the material before a judge made a decision as to whether or not to exercise the judicial discretion to exclude.

Whilst evidence obtained by police trickery might escape exclusion if it is relevant and not so prejudicial as to outweigh its usefulness in proving an issue at trial, the same cannot be said of evidence obtained by ‘entrapment’.

Entrapment can also be regarded as a type of trickery, but it takes place before the crime has been committed. It requires the police or their agents to incite a suspect to commit a crime they would not otherwise have committed (sometimes called ‘state-created crime’). Entrapment is not a defence but is used as a mitigat­ing factor that can lead to the complete cessation of the trial or the exclusion of evidence.

In R v Smurthwaite: R v Gill (1994) 98 Cr App R 437 in the Court of Appeal Lord Taylor gave some helpful guidelines in identifying when trickery might fall into the category of entrapment. The court listed questions that a court should ask itself when con­sidering how the evidence was obtained such as, was the officer acting as an agent provocateur in the sense of enticing the accused to commit an offence he would not otherwise have committed? What was the nature of the entrapment? Does the evidence consist of admissions to a completed offence or the offence itself? How active or passive was the officer’s role in obtaining the evidence? Did the officer abuse his/her role by asking questions which ought properly to have been asked as a police officer in accordance with Code C PACE? Whilst these guidelines have been criticised as too simplistic in later cases such as R vLooseley [2001] UKHL 53, they do provide a starting point for considering whether the extent of any police trickery might amount to entrapment.

Entrapment is regarded as so serious that according to R v Looseley [2001] UKHL 53 the appropriate remedy is to stop the criminal trial altogether. In criminal proceed­ings this is known as a ‘stay of proceedings’.

However, an abuse of process requires the defence to make an application at the beginning of the trial and this may not always be possible if evidence of entrapment only comes out during the trial itself. In this situation it might be appropriate instead to exclude the evidence under s. 78 and this could exclude all prosecution evidence (for example, following a ‘submission of no case to answer’) so that the end result would be the same as a stay of proceedings. The trial however would have been brought to an end on wider considerations of the integrity of the justice system rather than because the proceedings were an abuse of process.

Equally, if the actions of the police or their agents simply created what Lord Nicholls in Loosely described as “an unexceptional opportunity to commit a crime” rather than being “so seriously improper as to bring the administration of justice into disre­pute” (for example because the state had lured the defendant to commit the crime), then a consideration of the use of the s.

In such situations the court would be assisted by applying Lord Steyn's balancing test in R v Latif [1996] UKHL 16 to decide whether the opportunity was an excep­tional or unexceptional one and therefore whether to exercise judicial discretion or stay the proceedings. This test was expressed by Lord Steyn as “the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies the means”. Using the s. 78 discretion in these circumstances would mean that evidence obtained by entrapment could be excluded if its admission would have such an adverse effect on the fairness in the proceedings it ought not to be admitted but the trial could still continue using the other available evidence. Lord Steyn recognised that there was some overlap between the court's jurisdiction to stay proceedings and the power to exclude evidence.

A court will have to consider all the factors in the case including the reason for the police operation and whether the intrusive nature of the investigation could be justi­fied. The case of R vSyed [2018] EWCA Crim 2809 left open the question of whether the burden of proving that the defendant was lured into committing the crime should be on the defendant to prove.

5.2.2 Confessions

Confession evidence is defined by the Police and Criminal Evidence Act 1984 (‘PACE'), s. 82(1) as including “any statements wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”.

A confession will usually be produced at court in documentary form as a written transcript from a recorded interview whilst the defendant was in police custody.

Special exclusionary rules apply to the admission of confessions in a criminal trial.

A defendant's confession is only admissible at trial if the prosecution can establish beyond reasonable doubt that it has not been obtained either by oppression (see s. 76(2)(a) of PACE 1984) or things said and done which would make the confession unreliable (see s. 76(2)(b) of PACE 1984). There must be a link between what was said

and done and the confession subsequently being made by the defendant for s. 76(2) (b) to apply.

For the purposes of defining ‘oppression’ under s. 76(2)(a) the 1984 Act provides a partial definition as including “torture, inhuman or degrading treatment, and the use or threat of violence”. However, conduct can be oppressive without involving vio­lence as was seen in cases such as R vMiller (1993) 97 Cr App R 99 where the inter­rogation methods fell short of violence but were contrary to the spirit of PACE in that the questioning was oppressive, threatening and insulting and only just fell short of violent.

As such, police interrogation methods will be under the spotlight, in particular, whether Code C of PACE has been followed (requirements for the detention, treat­ment and questioning of suspects in police custody). Code H (requirements for the detention, treatment and questioning of suspects in police custody on terrorism offences) may also be relevant. Other relevant PACE codes of practice will be Code D (Identification procedure), Code E (audio recording of interviews with suspects at a police station) and Code F (visual recording with sound of interviews of suspects at a police station).

A suspect at a police station also has a right to consult a solicitor in private (see s. 58 of PACE 1984), this right can be delayed but not withdrawn completely. A suspect also has a right to inform someone of their whereabouts when they are taken to a police station (see s. 56 of PACE 1984). In addition, vulnerable suspects must have an independent person present when they are interviewed (see s. 77 of PACE 1984).

An advocate will need to read interview transcripts carefully to assess whether there has been a breach of any of the codes of practice of PACE. Breaches of PACE will not always amount to ‘oppression’ or ‘things said and done’ and it will very much depend on the seriousness of the breaches and whether, in the case of s. 76(2)(b) a causal connection can be found.

However, even if the prosecution can show that the confession was not obtained in a way that breached either s. 76(2)(a) or (b) it is still possible for a defence advocate to argue that the court should exercise its discretion under s. 78 of PACE on the basis that admitting the confession “would have such an adverse effect on the fairness in the proceedings” that it would be wrong to allow it to be admitted and heard by the jury. As established in cases such as R v Walsh (1989) 91 Cr App R 161 the breach of PACE must be “significant and substantial” for the court to exercise its discretion under s. 78 where a confession has not fallen foul of s. 76.

Lying to a suspect’s legal representative has also been considered as a breach of PACE that will lead to the court using its discretion under s. 78 to exclude a confession which would otherwise have been admissible. For example, in R vMason [1987] 3 All

ER 481 the police tricked the defendant into believing that his fingerprints had been found at the scene of the crime and repeated this lie to his solicitor. In R vMcGovern (1991) 92 Cr App R 228 the police interviewed a pregnant and vulnerable suspect in the absence of a solicitor during which she made a confession. When the solici­tor arrived, the police interviewed her a second time without revealing to the solici­tor that an earlier interview had occurred. A second confession was obtained. The court exercised its discretion to exclude both confessions on the basis that the earlier breach of PACE tainted the second confession too.

If the weight of the evidence points to the confession being admissible under s. 76(2) (a) or (b) then the evidence must be excluded and a failure by the judge to exclude the evidence could provide the basis for an appeal if the defendant is subsequently convicted.

A court will usually hold a voir dire (a hearing in the absence of the jury) to deter­mine whether or not the confession is admissible and not in breach of s. 76 or s. 78. However, if the only issue is whether the confession is true then that is a matter that can be left to the jury to decide (see s. 76(2) of PACE 1984).

It is important to note that even if a confession is excluded (by using a discretion) or ruled inadmissible (because of the rule of law under s. 76), any facts or other evidence discovered as a result of the confession may still be admissible even if the confession itself is not. Under s. 76(4)(a) any facts discovered as a result of a confession are admis­sible. Therefore, if for example, a defendant makes a confession that leads the police to the whereabouts of a murder weapon, the murder weapon will still be admissi­ble as real evidence even though the prosecution cannot refer to the confession in explaining how they found the murder weapon. Under s. 76(4)(b) if the confession was useful in showing that a defendant spoke or wrote in a certain way that is important to a matter in issue in the trial, then those parts of the confession can be admitted. For example, in a case of rape where the complainant has not seen the perpetrator because she was blindfolded but can remember that the perpetrator pronounced a particular word in an unusual way, then any evidence from a recorded interview that would show the defendant pronounced words in the same way would be admissible even if it is part of a confession that is inadmissible or has been excluded.

Finally, it is important to note that where a case involves more than one defendant, an advocate may have to deal with a confession that has come from a co-defend- ant who is not the client. The confession however may help the defendant’s case in terms of reducing their involvement or eliminating it altogether. Under s. 76A of PACE 1984 it is possible for a defendant to rely on a confession that has been made by a co-defendant. If the defendant wishes to admit a co-defendant’s confession into evi­dence, they must still show that the confession was not obtained in breach of s. 76(2) (a) or (b) but the standard of proof will be on a balance of probabilities rather than the higher criminal standard that the prosecution would have to meet.

Whilst a confession is usually only admissible as evidence against the person who made it, in some very limited circumstances it can be used against other joint defendants and so an advocate will need to carefully consider whether they want to invoke s. 76A. In R v Hayter [2005] UKHL 6 the House of Lords held that once a jury was satisfied in a joint trial of two or more defendants that the confession of D1 has established D1's guilt, they could go on to look at whether D2 might also be guilty. Whilst D1's confession was not proof of D2's guilt it could be used in a limited way as evidence to consider D2's guilt once the jury was satisfied that D1 was guilty.

5.2.3 Criminal Justice Act Provisions on Hearsay

The next exclusionary rule to consider is that relating to hearsay evidence. The gen­eral principle on oral and documentary testimony is that the evidence should be original rather than second hand or copies. However, it is appreciated that this is not always possible and so exceptions have developed to the exclusionary rule.

Hearsay is defined in s. 114(1) of the Criminal Justice Act ('CJA^,) 2003 as “a statement not made in oral evidence in the proceedings” but which is to be admitted as "evi­dence of any matter stated”. It is therefore statements made out of court, but which are to be used in court to prove the truth of the matters contained in the statement. Section115 of the 2003 Act defines a statement as "any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form”.

Therefore, if an advocate wishes to use a witness statement made by a witness who cannot attend court or to use maps or diagrams without calling the maker of those documents, then the advocate will need to make a formal application to admit the evidence as hearsay. This is only necessary if it is intended to rely on the truth of the information contained in the documents or witness statement. A formal application should be made in accordance with CrimPR Part 20 which involves a written notice to the other party and to the court identifying the evidence that is to be regarded as hearsay evidence.

If, however, the intention is simply to show that the statements were made but no reliance is being placed on its truth or importance it will simply be regarded as ordi­nary evidence subject to a judge or jury deciding how much weight to place upon it in determining the disputed issues.

5.2.3.1 Exceptions to the Hearsay Exclusionary Rule

Hearsay evidence is admissible if it falls into one of the exceptions set out in s. 116 of the CJA 2003 (unavailability of the witness), s. 117 (business documents and criminal

investigation documents), s. 118 (certain common law exceptions), s. 119 (previous inconsistent statements) and s. 120 (previous consistent statements).

Even if hearsay evidence falls into one of the exceptions, it can still be excluded by the judge exercising judicial discretion under s. 126 of the CJA 2003. This section gives the judge an exclusionary discretion if “the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.

In addition, just like other evidence, the general discretionary powers under s. 78 and s. 82(3) that we have discussed earlier in this chapter, can be used to exclude hearsay evidence based on the fairness principle.

Hearsay is the only exclusionary rule that provides a judicial discretion to also include the evidence even where it would normally be inadmissible. This special discretion is found in s. 114(1)(d) and can be used if the court is satisfied that it is in the interests of justice to do so. This route to admissibility was described by the Law Commission (1997) as “a measure of last resort” at the time of their report into the proposed changes to hearsay which were subsequently included in the 2003 Act. However, it has been used to include otherwise inadmissible confession evidence (see R v Y [2008] EWCA Crim 10) and bad character evidence (see R v Isichei 2006] EWCA Crim 815).

According to cases such as R vMusone [2007] EWCA Crim 1237 the inclusionary dis­cretion under s. 114(1)(d) can only be challenged on appeal if the decision to use it is 'Wednesbury unreasonable’ in the sense that the judge’s decision is considered to be perverse and no other judge would have made the same decision. The judge should look at, e.g. the probative value of the statement, what other evidence could be called, its importance to the case as a whole, the reliability of the maker, the extent of prejudice to the other party, etc (see s. 114(2)). Therefore, even if the hearsay evi­dence is not admissible because it does not fall into one of the exceptions provided for by the 2003 Act, an advocate should consider whether it is appropriate to call upon the judge to exercise his/her judicial discretion to include the evidence under s. 114(1)(d).

Refer to the useful table to understand when hearsay evidence can be admitted. An advocate can admit hearsay evidence if it falls into one of the exceptions identified in the CJA 2003 as set out in the table. Any admission is still subject to the judicial discretion to exclude.

(Continued)

An Introduction to Criminal Litigation

An advocate will need to be clear about what is to be proved in a trial in order to understand whether any out of court statements count as hearsay because they are intended to be used as evidence of ‘any matter stated' within those statements.

Section 116(2)(e) is the only ground that requires leave of the court and the court will apply the ‘interests of justice' test. An inquiry into the existence of ‘fear' may take place first by the court considering any available evidence on fear and this can include the fearful witness being called to give oral evidence before the interests of justice test is applied. Fear is widely construed and includes fear of death or injury to another or financial loss and does not have to be directly attributable to the defend­ant (see R v Horncastle [2009] EWCA 964).

In Al Khawaja and Tahery v United Kingdom (2011) 54 EHRR 23 the court held that where fear is proven to be attributable to the defendant or those acting on his behalf, the defendant is taken to have waived his right to question witnesses and it is appropriate to allow the evidence of that witness to be read to the court, even if it is the sole or decisive evidence. In all other cases every effort should be made for the witness to give evidence and prosecutors should therefore apply for special measures or witness anonymity unless inappropriate or impracticable. According to Al Khawaja it would be a breach of Article 6(3)(d) for a witness who claims to be in fear to then be permitted to be both absent from court and to remain anonymous. This would offend the accused's right under this Convention “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. Equally, anonymous hearsay should not be admitted under s. 114(1)(d) for the same reasons.

If hearsay evidence is admitted, the jury should be given a reminder during the judge's summing-up of where the burden of proof lies, the fact the hearsay evidence is dis­puted and the dangers of convicting solely upon such evidence. It is important that a jury is given a warning because of the potential unreliability of hearsay evidence. For example, if a witness does not give evidence the judge or jury will not have had an opportunity to see the demeanour of the witness to assess the truthfulness of their account. Much can be learnt about a witness by watching their body language. Also, a witness would ordinarily swear an oath before giving evidence, but hearsay evidence is not subject to an oath. A witness would also have their evidence tested in cross-examination if they appeared in court, but this opportunity is lost when hear­say evidence is admitted.

The judicial warning may vary slightly depending on the facts of the case and the type of hearsay evidence that has been admitted. For example, in respect of the admission of a previous consistent statement under s. 120, the judge might refer to the fact that having part of the evidence in writing might unintendedly give the evi­dence more prominence in the jury's mind. The Crown Court Compendium sets out examples of suggested wordings for a judge's warning to the jury following admis­sion of each category of hearsay evidence.

It can sometimes to be difficult to assess when hearsay evidence might potentially be admissible as res gestae evidence under s. 118(4). Res gestae can be loosely trans­lated as ‘part of the matter'. It forms part of a witness's account even though it may relate to reported speech which is being used to prove the truth of the matter stated. There are three categories of res gestae that are potentially admissible under s. 118(4):

1. Statements made by a person “so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded” - see R vAndrews [1987] AC 281.

2. Statements that accompany an act and the act can only be properly evaluated as evidence if considered in conjunction with the statement.

3. Statements that relate to a physical sensation or a mental state.

According to Lord Ackner's guidelines in the case of R vAndrews, a judge should con­sider whether there is an absence of concoction and that there is sufficient sponta­neity and contemporaneity between the acts/events and the statement that would rule out the possibility of error or malice on the part of the declarant.

The admissibility of previous inconsistent statements is governed by s. 119 of the Criminal Justice Act 2003 (which applies to criminal proceedings only) and ss. 4 and 5 of the Criminal Procedure Act 1865 (which applies to civil as well as criminal proceedings).

Section 4 of the 1865 Act covers any oral statement made by a witness which is inconsistent with his/her present oral testimony (so does not have to be in writing) so long as the witness is told about the circumstances of the statement and asked whether he/she made it.

Section 5 relates to previous statements made by the witness in writing - the wit­ness must first be allowed to see those parts which will be used to contradict their evidence (the judge then has a discretion as to whether to let the jury see the entire statement or just those parts).

An advocate should be particularly wary of attempts to introduce multiple hear­say (where the information has passed through more than one person before it is recorded). Section 121 of the Criminal Justice Act states that multiple hearsay is only admissible if it is hearsay evidence relating to business or criminal investigation doc­uments (s. 117) or previous inconsistent statements (s. 119) or previous consistent

statements (s. 120) or all parties agree (s. 114(1)(c)) or the court is satisfied that it should be admitted in the interests of justice (s. 114(1)(d)).

Even if hearsay evidence is admitted it is subject to additional safeguards under ss. 123 and 124 of the 2003 Act. Hearsay evidence is not admissible, according to s. 123, unless the person making or supplying the statement would have had the capability to give evidence under the normal principles of witness competency (see discussion in 4.5.1 below). Section 124 provides that the other party may ask the court to take into account any evidence as to the credibility of the maker or supplier of the state­ment. In addition, if after the prosecution evidence has closed, the hearsay evidence is considered to be so unconvincing that it would render a conviction unsafe then the trial can be stopped (s. 125). This involves an appraisal of the case as a whole includ­ing looking at the reliability of the hearsay evidence and its importance in the con­text of other evidence in the case. It therefore has the same function as a ‘submission of no case to answer' but with a different test applied.