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Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

Published online by Cambridge University Press:  16 January 2009

C.J.W. Allen
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Extract

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

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Articles
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The Cambridge Law Journal , Volume 49 , Issue 1 , March 1990 , pp. 80 - 90
Copyright
Copyright © Cambridge Law Journal and Contributors 1990

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References

1 Quoted in Twining, William, Karl Llewellyn and the Realist Movement (1973), pp. 493–494Google Scholar.

2 Cross on Evidence (6th. edn., 1985), p. 177.

3 Bevan, V. & Lidstone, K., A Guide to the Police and Criminal Evidence Act 1984 (1985), p. 31Google Scholar; Mason (1988) 86 Cr.App.R. 349, 354; Cross on Evidence (6th ed., 1985), p. 433.

4 Fulling (1987) 85 Cr.App.R. 136, 141; O'Leary (1988) 87 Cr.App.R. 387, 391.

5 Mason, supra n. 3; Samuel [1988] 1 Q.B. 615, 629; Alladice (1988) 87 Cr.App.R. 380, 386; Delaney [1989] Crim.L.R. 139; Sat-Bhambra (1989) 88 Cr.App.R. 55, 62.

6 Samuel, supra n. 5, p. 630; O'Leary, supra n. 4, p. 391.

7 See, e.g., Mason, supra n. 3, p. 354; D.P.P. v. Marshall [1988] 3 All E.R. 683, 688.

8 See also May, Richard, “Fair Play at Trial” [1988]Google Scholar Crim.L.R. 722, 725–726.

9 (1987) 85 Cr.App.R. 255.

10 (1987) 85 Cr.App.R. 298.

11 (1987) 85 Cr.App.R. 157.

12 Selvey v. D.P.P. [1970] A.C. 304; Sang [1980] A.C. 402.

13 For a contrary view see May, supra n. 8, p. 726. But see also Birch, [1989] Crim.L.R. 95.

14 Supra n. 3; see also Fulling, supra n. 4.

15 Supra n. 6.

16 [1989] Crim.L.R. 141.

17 [1989] Crim.L.R. 720.

18 Sang, supra n. 12.

19 Cf. the report of Walsh and commentary in [1989] Crim.L.R. 822–825.

20 Quoted in Pattenden, R., The Judge, Discretion, and the Criminal Trial (1982), p. 172Google Scholar.

21 Supra, n. 5, p. 630.

22 (1989) 88 Cr.App.R. 71, 77.

23 Gallie, W.B., “Essentially Contested Concepts” (1955–1956) Proceedings of the Aristotelian Society, p. 167Google Scholar.

24 The fact that the exercise of judicial discretion can be reviewed by the Court of Appeal does not make for any greater degree of accountability. That Court will operate under the same disadvantages as the trial judge, for it too must deal with an essentially contested concept. Furthermore, the cases indicate that in relation to section 78(1) the Court of Appeal will not readily interfere with the exercise of discretion by the trial judge. His decision will stand unless either he failed to take relevant matters into account (or, presumably, took into account irrelevant matters) or he reached a decision which was perverse in the legal sense of being one to which no reasonable judge could have come. See, e.g., O'Leary, supra n. 4; Mason, supra n. 5.

25 (1970) 126C.L.R. 321, 335.

26 Bunning v. Cross (1978) 141 C.L.R. 54, 74–75, per Stephen and Aickin JJ. In the case of confessions there is a separate discretion which allows the court to reject the evidence where it has been obtained in circumstances which have made it unfair to use it against the defendant. See Cross on Evidence (3rd. Australian edn., 1986), pp. 693–696; 879–881.

27 Supra.

28 See p. 71 and pp. 78–80.

29 (1983) 43 A.L.R. 619.

30 See e.g., per Murphy J. at 631; per Deane J. at 633.

31 Cleland v. R., supra n. 29, per Gibbs C.J. at 624.

32 At 644–645.

33 See n. 4 supra.

34 (1987) 85 Cr.App.R. 157, 163.

35 R. v. Ireland (1970) 126 C.L.R. 321, 335.

36 At n. 8.

37 At p. 729.

38 See Dworkin, Ronald, Law's Empire (1986)Google Scholar, chap. 9 and n. 2 supra.

39 Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation (ed. Burns, J.H. and Hart, H.L.A., 1970)Google Scholar, chap. II.

40 The question is especially pertinent because the Bunning v. Cross criteria appear at first sight to support different objectives: some seem designed to protect the defendant; others seem designed to secure reliability of testimony or to discipline the police.

41 The best introduction to Bentham's concept of security is in Postema, Gerald, Bentham and the Common Law Tradition (1986)Google Scholar, chap. 5, “Utilitarian Justice and the Tasks of Law”.

42 Bentham's overall aim is often said to have been “the greatest happiness of the greatest number”. There were periods during his life when he used this expression but it ultimately seemed to him to be unsatisfactory and it did not find a place in his final thinking on utilitarianism. See Goldworth, (1969) 7 Journal of the History of Philosophy, 315CrossRefGoogle Scholar; Shackleton, (1972) XC Studies on Voltaire and the Eighteenth Century, 1461Google Scholar; Werner, (1973) 11 Journal of the History of Philosophy, 237CrossRefGoogle Scholar; Milo, (1973–1974) 84 Ethics, 128CrossRefGoogle Scholar.

43 Works of Jeremy Bentham (ed. Bowring, John, 1843), Vol. I, p. 558Google Scholar.

44 It is assumed that there are other sanctions against illegal searches and that the exclusion of evidence is part of a consistent approach on the part of the legislature, judiciary and executive. It is assumed also that citizens would believe their property to be at greater risk if judges were not to show disapproval of illegal searches in this way, even though the exclusion of evidence might in fact prove to be only a feeble sanction. The object of the example is to illustrate the way in which Bentham's principle might be applied; it is not intended to suggest that these assumptions would be correct if they were made today about UK citizens.

45 See n. 16 and text, supra.

46 See n. 9 – n. 13 and text, supra.