A Question of ‘Desirability’: Balancing and Improperly Obtained Evidence in Comparative Perspective

Debates about improperly obtained evidence continue to arise in common law appellate courts on a surprisingly regular basis. In 2015, the Irish Supreme Court handed down a decision on the topic which ran to over 155,000 words. Among the major common law jurisdictions outside the United States, Australia can be regarded as something of a pioneer in its approach to the admissibility of illegally or otherwise improperly obtained evidence. In 1978 the High Court of Australia in Bunning v Cross, building on its earlier decision in R v Ireland, established the existence of a discretion to exclude such evidence that was distinct from the discretion to exclude evidence to ensure fairness to a defendant at trial. Section 138 of the UEL, the focus of this chapter, was closely modelled on this common law jurisprudence. At the time of Bunning, the law in England and Wales was characterised by little judicial analysis of the issue of improperly obtained evidence, and Canada was still some years away from introducing the Canadian Charter of Rights and Freedoms with its well-known provision on evidence obtained in consequence of Charter violations. In the light of major continuing developments in the common law world in this area of evidence law, this chapter seeks to provide a searching and timely analysis of selected aspects of section 138, as viewed from the perspective of an evidence scholar working in England and Wales, with the aim of asking what lessons may be learnt from a contemporary comparison of section 138 with the approaches taken to improperly obtained evidence in other common law jurisdictions. The chief focus will be on the particular species of evidence that can be considered to highlight most clearly the relevant theoretical and practical issues raised by improperly obtained evidence—evidence that was not brought into fruition by any interaction between a member, or agent, of the executive and a suspect. In other words, the improprieties that will be the primary concern of this chapter are those that do not contribute in some way to the generation of the evidence in question; the situations are such that there is no suspicion that evidence of doubtful reliability or veracity has been produced by the impropriety. So, for example, within the primary scope of the chapter will be evidence obtained as a result of an illegal search, or evidence obtained by improper means of ‘spontaneous’ conversations that were not in some way induced by the conduct of the executive. Outside the primary scope of the chapter will be evidence obtained improperly during formal police interrogations, or ‘informal’ interrogations involving the covert questioning of a suspect by a police agent

Year in Review 2014: England and Wales

This case contains an important discussion of the scope of section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts the admissibility of sexual history evidence

Criminal Hearsay in England and Wales: Pragmatism, Comparativism, and Human Rights

The law of criminal hearsay in England and Wales has undergone substantial evolution in recent times. This article offers an analysis of these developments, undertaken against the background of a consideration of the reforms of hearsay doctrine that had taken place some years earlier in Canada. The relevant law in England and Wales appears highly regulated, being governed by detailed statutory provisions and subject further to an express “confrontation” guarantee contained in the European Convention on Human Rights. The Canadian law, by contrast, developed in a more piecemeal fashion and is not subject to any express “confrontation” guarantee. Comparisons of the law of criminal hearsay in England and Wales with that in Canada having largely been ignored in the academic literature,this article fills the gap and asks whether scholars and practitioners in each jurisdiction may gain valuable insights from the experiences of their counterparts across the Atlantic

Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men

This article presents a comparative study of the 20th-century exclusion of women from participation on juries. It explains that until the 1970s, and in some cases even the 1990s, substantial formal limitations on jury franchise were placed on women in Ireland, Canada, the United States, New Zealand and Australia. This situation existed notwithstanding women’s equality of political franchise through the vote and despite judicial references to the centrality of the jury. While in England and Wales women were not treated differently from men in formal terms after the 1920s, property qualifications denied them substantive equality and informal limitations excluded women disproportionately. We highlight some distinctive features of the English experience as compared and contrasted with the laws and policies on jury composition operating in other jurisdictions, and ask whether the legacies left by the traditionally unrepresentative jury and the battles for gender equality offer lessons relevant to understanding jury trials in contemporary times

The "witness anonymity" and "investigation anonymity" provisions

This article offers an analysis of the creation of statutory powers to allow witnesses to give evidence anonymously. The latest provisions are those in the Coroners and Justice Act 2009 replacing the emergency temporary legislation: Criminal Evidence (Witness Anonymity) Act 2008. Consideration is given to that Act, its legislative history and case law. Examination of the new powers for investigation anonymity orders suggests that these are likely to be of symbolic rather than practical significance