Courts of Appeal

Published date01 October 1979
Date01 October 1979
DOIhttp://doi.org/10.1177/002201837904300404
Subject MatterArticle
Courts
of
Appeal
Comments
on
Cases
JUDICIAL DISCRETION TO EXCLUDE EVIDENCE OBTAINED
BY ENTRAPMENT
R. v.Sangand
Mangan
In the present case ( 1979,2 W.L.R. 439), the defendants were
jointly indicted at the Old Bailey on counts alleging (1) conspiracy
between them and others to utter forged United States banknotes,
and (2) unlawful possession of the forged notes. To both those counts
each defendant initially pleaded not guilty. After arraignment, but
before counsel for the Crown began to open the case for the prosecu-
tion, defence counsel invited the trial judge to allow a trial within
a trial to take place to determine whether the activities referred to in
the indictment came about as a result of the activities of an agent
provocateur (i.e, someone who actually causes offences to be com-
mitted which otherwise would not be committed at all). Defence
counsel hoped that, having established the facts, he would persuade
the judge to exercisehis discretion to exclude any prosecution evidence
of the commission
of
offences incited by the agent provocateur, with
the consequence that a verdict
of
not guilty would be inevitable and
would have to be directed by the judge. The trial judge, doubting the
existence of any such discretion, invited counsel to argue the point
on the. assumption that the required facts had been established namely,
that the defendants' offences would not have been committed but
for police incitement. Following such argument, the judge ruled as a
matter
of
law he did not possess the discretion in question, whereupon,
the defendants changed their pleas: each pleaded guilty to one count
and was sentenced.
The defendants unsuccessfully appealed against the trial judge's
ruling to the Court of Appeal where several important points con-
cerning the admissibility and exclusion of evidence in criminal cases
were made.
191
The
court
stated
that
there is a virtually absolute rule
that
all evid-
ence which is relevant to the issue before the
court
is admissible, how-
ever
that
evidence has been
obtained
and
whether
illegally, unfairly
by trick or
other
misrepresentation. As was
stated
in
the
case
of
Kuruma
v. The Queen (1955, AC197), by Lord
Goddard
at
p.203
"
...
the test
to be applied in considering
whether
evidence is admissible is
whether
it is relevant to the
matters
in issue. If it is, it is admissible and the
court
is
not
concerned
with
how the evidence was
obtained."
However,
the
Court
of
Appeal in the present case
noted
that
there
is a principle qualifying the above general rule to the effect
that
the
courts
have a power to exclude evidence which is
of
little probative
value
but
of
ahighly prejudicial
nature,
"
...
since it is always the
duty
of
the
court
to safeguard an accused person against the risk
of
wrongful conviction in consequence
of
the admission
of
evidence
of
that
kind,
as it is in
the
case
of
confessions seemingly improperly
obtained".
Support
for this qualification
of
the general rule can be
found in the case
of
Noor Mohamed v. The King (1949 AC 182) where
Lord du Parcqsaid at
p.192:
"
...
the judge
ought
to consider
whether
the evidence which it is proposed to adduce is sufficiently substantial,
having regard to the purpose to which it is professedly directed, to
make it desirable in
the
interest
of
justice
that
it should be
admitted.
If, so far as
that
purpose is
concerned,
it can in the circumstances
of
the case have only trifling weight, the judge will be right to exclude
it. To say this is
not
to confuse weight
with
admissibility. The distinc-
tion
is plain
but
cases must
occur
in which it would be unjust to
admit
evidence
of
acharacter gravely prejudicial to the accused even
though
there
may
be some
tenuous
ground for holding it technically admissible.
The decision must
then
be left to
the
discretion and sense
of
fairness
of
the
judge".
(cf
D P P v. Christie
(1914,10
Cr
App
R141) per Lords,
Moulton and Reading at pp. 159 and
164;
Lawton LJin R. v. Willis
(1976 Crim. L R 127).
But,
in
the
court's
opinion,
this qualification does
not
justify
ajudge
in refusing to admit evidence
of
obvious probative value because it has
been
obtained
through
the activities
of
apolice officer or an informer
or because the offence charged would not or might
not
have been
committed
but
for these activities, and a judge has no discretion to
refuse to admit such evidence.
The
court
found particularly persuasive
the words to this
effect
of
Lord MacDermott CJin
the
case
of
R. v.
Murphy (1965, N I 138 at p.
147),
and also
noted
that
in Sneddon v.
Stevenson ( 1967, 1 W LR 1051) Lord Parker CJsaid at
p.1057:
"No
doubt
action
of
this sort should not be employed unless it is
192

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