1 [1980] AC 402.

2 See, eg, P.G. Polyviou, ‘Illegally Obtained Evidence and R v Sang’ in C.F.H. Tapper (ed), Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (1981).

3 See generally R v Warickshall (l783) 1 Leach 263; R v Griffin (1809) Russ & Ry 151; R v Could (1840) 9 Car & P 364; R v Berriman (1854) 6 Cox CC 388; R v Leatham (1861) 8 Cox CC 498.

4 Kuruma v R [1955] AC 197.

5 This provision provides that evidence may be excluded ‘if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

6 R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.

7 (1970) 11 DLR(3d) 673.

8 Ibid, 695 per Judson J.

9 As my purpose here is not to provide a detailed description of the West German position in relation to improperly obtained evidence, only secondary sources have been relied upon for the material presented here. The following have been consulted: P. Arenella, ‘Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts' Competing Ideologies’ (1983) 72 Georgetown LJ 185; C.M. Bradley, ‘The Exclusionary Rule in Germany’ (1983) 96 Harvard LR 1032; Y.-M. Morissette, ‘The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What To Do and What Not To Do’ (1984) 29 McGill LJ 521; W. Pakter, ‘Exclusionary Rules in France, Germany, and Italy’ (1985) 9 Hastings ICLR I; B.F. Shanks, ‘Comparative Analysis of the Exclusionary Rule and its Alternatives’ (1983) 57 Tulane LR 648; J.H. Langbein, Comparative Criminal Procedure: Germany (1977); H. Niebler (transl), The German Code of CriVina1 Procedure (1965).

See also M. Damaška, ‘Evidentiary Barriers to Conviction and Two Models of criminal Procedure: A Comparative Study’ (1973) 121 v Pa LR 506.

10 P. Arenella, ibid, 206. See also M.R. Damaška, The Faces of Justice and state Authority: A Comparative Approach to the Legal Process (1986) 68: ‘Continental judges are ideally still expected to anchor their decisions in a network of outcome-determinative rules; they are reluctant to “politicize” or “moralize” matters that come before them.… By contrast,… [t]he American professional judiciary is notoriously politicized and expected to consider “the equities” of cases so that the door remains open to the consideration of various extralegal factors. Even in England, where professional judges are much more technically oriented than in America, Continental lawyers register their surprise at the apparent flexibility of the judiciary to respond to contours of individual cases in commonsensical ways.

11 cf The prosecution systems of Denmark, Sweden and the Netherlands: see generally L.H. Leigh and J.E. Hall Williams, The Management of the Prosecution Process in Denmark, Sweden and the Netherlands (1981).

12 Section 152(II) of the German Code of Criminal Procedure provides: ‘Except as otherwise provided by law, [t]he prosecution] is obliged to take action in case of all acts which are punishable by a court and capable of prosecution, so far as there is a sufficient factual basis.’ W. Pakter, note 9 supra, 39 points out that ‘[t]he “rule of compulsory prosecution” was itself a reflection of the “theory of absolute punishment” embodied in Kant's famous dictum requiring execution of the last murderer in prison as a duty of a society before that society disbands.

13 Emphasis added.

14 B.F. Shanks, note 9 supra, 666.

15 Ibid, 667.

16 C.M. Bradley, note 9 supra, 1042.

17 Ibid, 1034, 1041.

18 Y.-M. Morissette, note 9 supra, 530.

19 See generally C.M. Bradley, note 9 supra, 1044ff.

20 See ibid, 1046–7.

21 See generally W. Pakter, note 9 supra.

22 232 US 383 (1914).

23 367 US 643 (1961).

24 Stone v Powell 428 US 465, 496 (1976) per Burger CJ.

25 US v Calandra 414 US 338 (1974). It was said (ibid, 351) that ‘[a]ny incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation’.

26 Stone v Powell 428 US 465, 494–5 (1976).

27 US v Leon 104 S Ct 3405 (1984); Massachusetts v Sheppard 104 S Ct 3424 (1984); Illinois v Krull 107 S Ct 1160(1987).

28 Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 US 388, 419 (1971).

29 Dr AJ. Ashworth has called this the ‘reliability principle’: see A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim LR 723, 723–4.

30 C. Nesson, ‘The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts’ (1985) 98 Harvard LR 1357.

31 Ibid, 1360.

32 J.H. Wigmore, ‘Using Evidence Obtained by Illegal Search and Seizure’ (1922) 8 ABAJ 479, 479.

33 J.A. Andrews, ‘Involuntary Confessions and Illegally Obtained Evidence in Criminal Cases - I’ [1963] Crim LR 15, 17.

34 Note 32 supra.

35 W.T. Plumb, Jr, ‘Illegal Enforcement of the Law’ (1939) 24 Cornell LQ 337, 378.

36 Note 32 supra.

37 See generally H.L. Packer, The Limits of the Criminal Sanction (1969) 199. See also A.S. Goldstein, ‘Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure’ (1974) 26 Stanford LR 1009 and J. Griffiths, ‘Ideology in Criminal Procedure or A Third “Model” of the Criminal Process’ (1970) 79 Yale LJ 359.

38 T.S. Schrock and R.C. Welsh, ‘Up from Calandra: The Exclusionary Rule as a Constitutional Requirement’ (1974) 59 Minn LR 251, 258.

39 A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim LR 723, 725.

40 J.H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980).

41 Ibid, 64.

42 Ibid, 68.

43 Ibid, 69.

44 Ibid, 68.

45 Dr Ashworth has called this the ‘protective principle’: A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim LR 723.

46 See generally ibid.

47 See Australian Law Reform Commission, Evidence (Vol 1) (Report No 26: Interim) (1985) par 959; E.W. Cleary (ed), McCormick on Evidence (3rd edn(1984) 462–3.

48 E.W. Cleary (ed), ibid, 463.

49 A.A.S. Zuckerman, ‘Illegally-Obtained Evidence-Discretion as a Guardian of Legitimacy’ (1987) 40 Current Legal Problems 55, 58.

50 ‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or Causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

51 See Bradford v Lefkowitz 240 F Supp 969,975 (SDNY 1965) (‘[t]he plea of guilty and the service of the sentence imposed effectively bar an action of false imprisonment or of malicious prosecution’); Pouncey v Ryan 396 F Supp 126 (D Conn 1975); Raffone v Sullivan 436 F Supp 939 (D Conn 1977); Griffen v City of Mount Vernon 553 F Supp 1047,1049 (SDNY 1983) (‘[ilt is well settled that a plea of guilty is an effective bar to a subsequent s 1983 action based on a claim of false arrest and false imprisonment’).

52 Pouncey v Ryan 396 F Supp 126, 127 (D Conn (1975).

53 Harper and James write of ‘immunity as a premium for getting the right man or telling the right thing. The defendant in all of these cases is right. Regardless of the general questionable or even unjustifiable character of his conduct, the defendant has done for society a good turn in the particular case. He took the risk of arresting or prosecuting an innocent person or making a false statement; but he was successful. Thus, although he arrests upon no reasonable grounds whatever or prosecutes not only without cause but even maliciously or states what he believes, even upon reasonable grounds, to be a lie, if it so turns out that he arrests or prosecutes a guilty person or unwittingly tells the truth, he is not liable. The law is practical business. No need for going into such questions as reasonable or probable cause or such subjective matters as motive or purpose. If the end accomplished does not justify the means, the success of the defendant's conduct at least justifies the law in ignoring the means of its accomplishment. The policy of apprehending and prosecuting offenders against the criminal law and of obtaining accurate information about persons is a strong one - so strong that he who purports to advance these policies takes, at most, only the risk of failure.

54 US v Calandra 414 US 338, 348 (1974). See also, eg, Stone v Powell 428 US 465, 486 (1976): ‘The primary justification for the exclusionary rule … is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal consitutional right.

55 D.H. Oaks, ‘Studying the Exclusionary Rule in Search and Seizure’ 37 v Chi LR 665 (1970).

56 Ibid, 702.

57 Ibid, 702–5.

58 Y.-M. Morissette, ‘The Exclusion of Evidence under the Canadian Charter of Rights and Freedom: What To Do and What Not To Do’ (1984) 29 McGill LJ 521, 535. See also D.V. Macdougall, ‘The Exclusionary Rule and Its Alternatives - Remedies for Constitutional Violations in Canada and the United States’ (1985) 76 J Crim L & Criminol 608, 639: ‘[T]he Canadian circumstances provide a unique opportunity for comparison of pre- and post–1982 practices, or even to note changes in police behavior as the Supreme Court provides definitions of the rights’.

59 See generally D.H. Oaks, ‘Studying the Exclusionary Rule in Search and Seizure’ (1970) 37 v Chi LR 665.

60 For a more detailed treatment, see ibid, 720–34, which is the source of much of the information presented in this paragraph.

61 As was put by Burger CJ in Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 US 388, 417 (1971): ‘Whatever educational effect the rule conceivably might have in theory is greatly diminished in fact by the realities of law enforcement work. Policemen do not have the time, inclination, or training to read and grasp the nuances of the appellate opinions that ultimately define the standards of conduct they are to follow. The issues that these decisions resolve often admit of neither easy nor obvious answers, as sharply divided courts on what is or is not “reasonable” amply demonstrate. Nor can judges, in all candor, forget that opinions sometimes lack helpful clarity’.

62 Note 59 supra, 730. Kaplan states (J. Kaplan, ‘The Limits of the Exclusionary Rule’ (1974) 26 Stanford LR 1027, 1033): ‘The crucial assumption of feedback to the police is simply belied by experience in most, if not all, police departments’.

63 Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 US 388, 417 (1971) per Burger CJ.

64 D.H. Oaks, ‘Studying the Exclusionary Rule in Search and Seizure’ (1970) 37 v Chi LR 665.

65 Ibid, 755.

66 Ibid, 706–7.

67 J.E. Spiotto, ‘Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives’ (1973) 2 J Leg Studies 243, 276.

68 B.C. Canon, ‘Is the Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion’ (1974) 62 Kentucky LJ 681, 718.

69 Ibid, 720.

70 Ibid, 721.

71 Note 64 supra, 707.

72 Note 68 Supra, 7044.

73 428 US 433 (1976).

74 Ibid, 450n 22.

75 428 US 465 (1976).

76 Ibid, 492.

77 104 S Ct 3405 (1984). See also Massachusetts v Sheppard 104 S Ct 3424 (1984) and Illinois v Krull 107 S Ct 1160 (1987).

78 It is to be noted that the Supreme Court cited approvingly (104 S Ct 3405, 3419 (1984)) an earlier statement of the Court that ‘[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.’ (Emphasis added.).

79 Ibid, 3420.

80 Ibid, 3421.

81 Ibid.

82 Ibid, 3422.

83 Ibid, 3423.

84 Illinois v Krull 107 S Ct 1160 (1987).

85 US v Leon 104 S Ct 3430, 3432 (1984).

86 H. Schwartz, ‘Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin’ (1966) 33 v Chi LR 719, 752.

87 Terry v Ohio 392 US 1, 13 (1968). See also Elkins v US 364 US 206, 223 (1960).

88 Terry v Ohio 392 US 1, 13 (1968).

89 People v Cahan 282 P 2d 905, 912 (1955) per Traynor J.

90 277 US 438 (1928).

91 Ibid, 485.

92 Pearse v Pearse (1846) L De G & Sm 12, 28–9; quoted in Bunning v cross (1978) 141 CLR 54, 72 per Stephen and Aickin JJ.

93 A judge of the Irish Supreme Court has stated: ‘There are many kinds of evidence which require a collateral inquiry before their admissibility can be decided. I instance but one- the question whether a statement which would otherwise transgress the hearsay rule, was made by a deceased man in the course of his duty. I do not think that the necessity of a collateral inquiry is an adequate reason for establishing a general rule that all relevant evidence is admissible notwithstanding the illegality of the means used to prove it’: The People (AC) v O'Brien [1965] IR 142, 162 per Kingsmill Moore J.

94 People v Defore 150 NE 585, 587 (1926) per Cardozo J.

95 See M.H. Yeo, ‘The Discretion to Exclude Illegally and Improperly Obtained Evidence: A Choice of Approaches’ (1981) 13 MULR 31, 41.

96 J.H. Wigmore, ‘Using Evidence Obtained by Illegal Search and Seizure’ (1922) 8 ABAJ 479, 482.

97 J. Kaplan, ‘The Limits of the Exclusionary Rule’ (1974) 26 Stanford LR 1027, 1036.

98 See generally ibid; Australian Law Reform Commission, Criminal Investigation (1975) par 295.

99 See generally J.D. Heydon, ‘Illegally Obtained Evidence (2)’ [1973] Crim LR 690, 694; note 97 supra, 1032; Australian Law Reform Commission, ibid, par 295, par 297; Australian Law Reform Commission, Evidence (Vol I) (Report No 26: Interim) (1985) par 961.

100 Note 97 supra, 1038.

101 367 US 643 (1961).

102 For a more detailed account of the research and results, see ‘Effect of Mapp v Ohio on Police Search-and-Seizure Practices in Narcotics Cases’ (1968) 4 Columbia J of Law and Social Problems 87, 94–5 See also People v McMurty 314 NYS 2d 194, 196 (1970).

103 Thus M. Kelman, A Guide to Critical Legal Studies (1987) is correct in his observation that ‘as results become more visibly unjust, the rule system may grow more complex in order to accommodate exceptions’: ibid, 44.

104 Note, however, that the US Supreme Court has decided that the deterrent rationale, too, does not require the exclusion of evidence obtained as a result of the infringement of the rights of a third party: Alderman v US 394 US 165 (1969).

105 Olmstead v US 277 US 438, 470 (1928).

106 Firman v Ellis [1978] QB 886, 911per Ormrod LJ.

107 I need only use the word ‘discretion’ here to denote that the trial judge is not compelled either to admit or to exclude improperly obtained evidence, but has to make a choice between the two courses of action.

108 K.C. Davis, Discretionary Justice: A Preliminary Inquiry (1971) 17.

109 Lord Justice James, ‘A Judicial Note on the Control of Discretion in the Administration of Criminal Justice’ in R. Hood (ed), Crime, Criminology and Public Policy: Essays in Honour of Sir Leon Radzinowicz (1974) 157.

110 R. Pound, Jurisprudence (Vol 2) (1959) 367–8.