No CrossRef data available.
Article contents
Judicial Discretion to Exclude Prejudicial Evidence
Published online by Cambridge University Press: 16 January 2009
Extract
The concern of this article is twofold. In the first place it seeks to question the weight and value of the authority upon which the House of Lords in Selvey v. Director of Public Prosecutions purported to found the existence of a judicial discretion to exclude, in a criminal trial, evidence which is both relevant and admissible, on the ground that it is prejudicial to the accused. Secondly, it seeks to evaluate the contribution which such a discretion has made and is likely to make to the theory and practice of the law of evidence.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge Law Journal and Contributors 1968
References
1 [1968] 2 W.L.R. 1494.
2 [1967] 3 W.L.R. 1637.
3 [1963] 1 Q.B. 729.
4 [1968] 2 W.L.R. at 1510F.
5 Ibid. at 1512A.
6 Ibid. at 1518A.
7 Ibid. at 1524C.
8 Ibid. at 1524A.
9 Ibid. at 1533F.
10 Per Bankes, J. in R. v. Fletcher (1913) 9 Cr.App.R. 53 at 56Google Scholar; R. v. Christie (1914) 10 Cr.App.R. 141 at 160Google Scholarper Lord Moulton, at 164–165 per Lord Reading; Harris v. D.P.P. [1952]Google Scholar A.C. 694 at 707 per Viscount Simon.
11 See, e.g., per Viscount Sankey, L.C. in Maxwell v. D.P.P. [1935]Google Scholar A.C. 309 at 321; per Viscount Simon, L.C. in Stirland v. D.P.P. [1944]Google Scholar A.C. 319 at 324; per Devlin, J. in R. v. Cook [1959] 2 Q.B. 340 at 346.Google Scholar
12 R. v. Court [1962]Google Scholar Crim.L.R. 697 (CCA.); R. v. Payne [1963] 1 W.L.R. 637 at 639.Google Scholar And see p. 309, infra.
13 Pace Lord Denning M.R. in the Court of Appeal where he says: “[The importation of a ‘general rule’ such as to control the judge's discretion] would be an unwarranted gloss on the words of the statute which gives the judge a discretion to permit such cross-examination…” at [1967] 3 W.L.R. 1642D.
14 (1913) 8 Cr.App.R. 249.
15 [1968] 2 W.L.R. 1494 at 1533F
16 Jones v. D.P.P. [1962]Google Scholar A.C. 635 at 662, per Lord Reid.
17 [1968] 2 W.L.R. 1494 at 1533F.
18 Ibid. at 1524D.
19 See notes 11, 12, supra.
20 [1968] 2 W.L.R. 1494 at 1524A.
21 (1913) 8 Cr.App.R. 249
22 [1962] Crim.L.R. 697.
23 [1966] 1 W.L.R. 1234.
24 [1935] A.C. 309.
25 [1966] A.C. 591.
26 [1966] A.C. 591 at 627F, per Lord Gardiner L.C.
27 [1912] 2 K.B. 464 (C.C.A.).
28 [1968] 2 W.L.R. 1494 at 1522C.
29 (1913) 8 Cr.App.R. 249 at 254.
30 (1913) 8 Cr.App.R. 224.
31 Ibid. at 229.
32 (1913) 9 Cr.App.R. 53. Counsel for the appellant, when challenged for his authority for the proposition that there was a discretion, delivered a very smooth reply: “Such matters are in the discretion of the judge and so are not reported.”
33 Ibid. at 56.
34 Reported only in (1914) 10 Cr.App.R. 141 at 149 from a transcript of the argument supplied by the Director of Public Prosecutions.
35 [1914] A.C. 545 at 559; (1914) 10 Cr.App.R. 141 at 160. See also per Lord Reading C.J. to the same effect, ibid. at 164–165.
36 Gooderson, R. N., Previous Consistent Statements [1968]Google Scholar C.L.J. 64 at 67.
37 Infra, p. 304.
38 [1968] 2 W.L.R. 1494 at 1518H.
39 Ibid. at 1531E.
40 [1935] A.C. 309.
41 [1968] 2 W.L.R. 1494 at 1529F.
42 [1933] A.C. 309 at 319.
43 Argument reported only at (1934) 24 Cr.App.R. 152.
44 [1944] A.C. 319.
45 Ibid. at 324.
46 Whether Mr. Justice So-and-So exercised his discretion or performed his duty to exclude evidence “is not merely a matter of the application of a name, or if we choose to say that it is then we must remember that with this name a game is lost and won, and a game with very heavy stakes.” See per Professor Wisdom in Gods, reprinted in Logic and Language, ed. Flew.
47 R. v. Jenkins (1945) 31 Cr.App.R. 1 at 14Google Scholar, per Singleton J.; Stirland cited to the court; discretion not argued.
Noor Mohamed v. D.P.P. [1949]Google Scholar A.C. 182 at 192, per Lord du Parcq; no authority cited; but Maxwell was before the court; discretion not argued; ratio concerned relevance.
Harris v. D.P.P. [1952]Google Scholar A.C. 694 at 707, per Viscount Simon relying on Noor Mohamed and Christie; discretion not argued; ratio concerned relevance; N.B. that this dictum is a return to the first formulation.
Kuruma v. The Queen [1955]Google Scholar A.C. 197 at 204, per Lord Goddard relying on Noor Mohamed and Harris. The appellant submitted that the court had a discretion; no contrary submission by the respondent.
R. v. Clark [1955] 2 Q.B. 467 at 478Google Scholar, per Lord Goddard C.J.; no authority cited; discretion not argued.
R. v. Cook [1959] 2 Q.B. 340 at 346Google Scholar, per Devlin J. relying on Maxwell, Stirland and Jenkins.
R. v. Coombes (1960) 45 Cr.App.R. 36 at 39Google Scholar, per Lord Parker C.J.; no authority cited.
Jones v. D.P.P. [1962]Google Scholar A.C. 635 at 671, per Lord Denning; and at 697, 714, per Lord Devlin; discretion not argued, no authority cited.
R. v. McLintoch [1962]Google Scholar Crim.L.R. 549; noted in 1962 C.L.J. 11.
R. v. Court [1962]Google Scholar Crim.L.R. 697.
R. v. Payne [1963] 1 W.L.R. 637 at 639Google Scholar, per Lord Parker C.J. relying on Court.
R. v. Flynn [1963] 1 Q.B. 729 at 737Google Scholar, per Slade J. relying on Cook.
Callis v. Gunn [1964] 1 Q.B. 495 at 501Google Scholar, per Lord Parker C.J.
R. v. Murphy [1965]Google Scholar N.I. 138 at 142–143, relying on Noor Mohamed, Harris, Kuruma and Callis v. Gunn.
Murdoch v. Taylor [1965]Google Scholar A.C. 574, passim. The House of Lords here held that there was no discretion under s. 1 (f) (iii), despite similar wording. It was assumed in argument that there was a discretion under s. 1 (f) (ii).
R. v. List [1966] 1 W.L.R. 9 at 12Google Scholar, per Roskill, J. at York Assizes, relying on Murdoch v. Taylor.Google Scholar
R. v. Herron [1966] 2 All E.R. 26Google Scholar, per Roskill J.
48 It is only right to notice that the authority of one of these cases, Stirland, has not gone unimpeached in respect of matters other than the discretion point. “[In Stirland Lord Simon enunciated six propositions. Two of them merely repeated statutory provisions. Of the others, one was said to mean completely different things by two members of the House of Lords in Jones's case, another has been ignored or explained away by subsequent decisions, and a third has not escaped what appears to be well-founded criticism.“ Per Professor Cross, The Criminal Evidence Act 1898, and the House of Lords as a Court of Criminal Appeal, in 78 L.Q.R. 407 at 415. Footnotes omitted.
49 (1914) 10 Cr.App.R. 141 at 144.
50 [1968] 2 W.L.R. 1494 at 1523F: surely this dictum gives the whole game away
51 Ibid at 1524G.
52 Ibid at 1531E-G.
53 Ibid at 1533G.
54 Ibid at 1534A-B.
55 [1914] A.C. 545; (1914) 10 Cr.App.R. 141.
56 See headnote, ibid. 141.
57 Per Lord Moulton, ibid. at 160.
58 Ibid.
59 Compare the function of the trial judge in deciding the preliminary facts upon which the admissibility of a confession depends.
60 “… It is now settled that the question for the judge (subject of course to review) is… not whether there is literally no evidence but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.” Per Willes J. in Ryder v. Wombwell (1868) L.R. 4 Exch. 32 at 39. See also per Lord Blackburn in Metropolitan Ry. v. Jackson (1877) 3 App.Cas. 193 at 207.
61 (1914) 10 Cr.App.R. 141 at 160.
63 Strictly, what a prisoner says is not admissible “for” himself: R. v. Roberts [1942] 1 All E.R. 187 at 191.Google Scholar But see R. N. Gooderson, supra, note 36.
64 Per Simon Att.-Gen. at (1914) 10 Cr.App.R. 141, 144: per Dickens K.C. ibid.
66 See note 36.
67 Cross, Evidence, 3rd ed. at p. 436.
68 (1914) 10 Cr.App.R. 141 at 166.
70 The linguistic idea which one has of a confession is the idea of an explicit acknowledgment by the accused of his guilt, in express terms. It seems linguistically odd to consider as a confession, e.g., the act of running away when the accused is charged or arrested (and, of course, in such a case it would generally not be necessary to inquire whether the accused was induced to run away by a person in authority); but, juridically speaking, the idea is the same as that of a confession. The prosecution cannot be allowed to dispense with the necessity of proving that a confession is voluntary by classifying it as an “admission in a criminal case”: see R. v. Harz and Power [1967]Google Scholar A.C. 760.
71 Viscount Sankey L.C. in Maxwell thought that the convictions under s. 1 (f) (ii) went to credibility: see also per Singleton J. in R. v. Jenkins. However, Professor Julius Stone in his article on “Further Problems in the Interpretation of the Criminal Evidence Act 1898, s. 1 (f)” in 58 L.Q.R. 369 argues strongly that they go to probability. And see R. v. Richardson [1968] 3 W.L.R. 15Google Scholar, where counsel tried to argue a third possibility.
72 [1967] 3 W.L.R. 1637 at 1640. Emphasis supplied.
73 R. v. Grondkowski [1946]Google Scholar K.B. 369, where the question concerned the discretion of the trial judge to grant separate trials to persons jointly indicted.
74 (1926) 19 Cr.App.R. 78.
75 Ibid. at 83.
76 [1968] 2 W.L.R. 1494 at 1534A.
77 Ibid, at 1524G.
78 Per Devlin, J. in R. v. Cook [1959] 2 Q.B. 340 at 348.Google Scholar
79 [1963] 1 Q.B. 729 at 737.
80 Per Viscount Dilhorne [1968] 2 W.L.R. 1494 at 1512E.
81 [1955] A.C. 197.
82 Ibid. at 204, emphasis supplied.
83 [1962] Crim.L.R. 697.
84 [1963] 1 W.L.R. 637.
85 See note 11, supra.
86 Over 30 years ago Professor Julius Stone advocated such a course in 51 L.Q.R. 443 at 464. It was a course with which Wigmore agreed: ibid. 467.