Criminal Evidence and Computer Technology

AuthorMatthew Richardson

Chapter 8

Criminal Evidence and Computer Technology


The rules of criminal evidence, for manifest reasons, are generally more restrictive than the rules of civil evidence. The rules have been greatly refined both in legislation and in common law, and the increasing reliance on evidence derived from computer technologies in criminal cases over recent years has presented the courts with nuanced issues regarding its admissibility. This chapter does not seek to give an exhaustive explication of the law of criminal evidence, which is deserving of a publication in its own right, but instead gives a brief overview before going on to discuss a number of discrete points regarding criminal evidence and computer technology.

8.1.1 Default position on admissibility

In general, all evidence starts from a point of prima facie admissibility unless it falls within a category of evidence which either must or may be excluded. Although it seems trite, the most fundamental test for admissibility of evidence is whether it is relevant to a matter in issue in the proceedings. Lord Goddard CJ, in the decision of the Privy Council in Kuruma v The Queen [1955] AC 197, stated the following:

In their Lordships’ opinion 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. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.1

1Kuruma v the Queen [1955] AC 197, per Lord Goddard CJ at 203.

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Even where it is maintained that evidence is obtained in a manner that is unlawful, improper or unfair, the default position of admissibility was restated by the Administrative Division in Jeffrey v Black [1978] QB 490 as follows:

It is firmly established according to English law that the mere fact that evidence is obtained in an irregular fashion does not of itself prevent that evidence from being relevant and acceptable to a court. The authority for that is Kuruma v the Queen [1955] AC 197 […] There one has that pronouncement from the Privy Council, and I have not the least doubt that we must firmly accept the proposition that an irregularity in obtaining evidence does not render the evidence inadmissible. Whether or not the evidence is admissible depends on whether or not it is relevant to the issues in respect of which it is called.2

8.1.2 Stay of proceedings

In some circumstances where the prosecution intends to rely on evidence which has been obtained unlawfully, improperly or unfairly, the defence may apply to have the proceedings stayed as an abuse of process. The courts have an inherent jurisdiction to stay proceedings where a fair trial would be impossible (e.g. in cases involving prejudicial reporting). The courts also have an inherent jurisdiction to stay proceedings on a number of other grounds, including where there has been an abuse of executive power or where justice may be brought into disrepute – both of which may encompass objections to the improper obtaining of evidence.

The leading case on whether a stay should be granted on the basis that justice had been brought into disrepute is the case of R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42. The appellant, a New Zealand National, was wanted for offences involving the fraudulent purchase of a helicopter in the United Kingdom. He was traced to South Africa but could not be extradited due to the lack of an extradition agreement between the countries. The appellant was also wanted for offences in his native New Zealand. The South African authorities apparently colluded with the United Kingdom authorities to procure the appellant’s delivery to the United Kingdom in breach of international law and in breach of an order from the South African courts barring his removal from the country. South African authorities placed the appellant on a flight to New Zealand via Taipei but he was prevented from disembarking the aeroplane in Taipei by South African officials. He was flown back to South Africa and the South African authorities purported to extradite the appellant to New Zealand via London. The appellant was arrested when he arrived in London. The appellant had initially applied to the Administrative Division for judicial review of the magistrates’ court decision to refuse an adjournment and to commit the appellant to the Crown

2Jeffrey v Black [1978] QB 490, per Lord Widgery CJ at 496–497.

Court for trial, arguing that the English courts had no jurisdiction to try him, given that his appearance before the English courts had been procured as part of an unlawful conspiracy between the United Kingdom and South African authorities. The Administrative Division had turned down the initial application, holding that it had no power to look behind the appearance of the appellant at court. On successful appeal to the House of Lords, it was held that the High Court had the power to look into the circumstances which resulted in a defendant appearing before it in exercise of its supervisory jurisdiction. The House of Lords went on to hold that, where it is clear that there has been a disregard of extradition procedures, a stay of prosecution may be ordered on the basis that there was an affront to justice. The House of Lords3stated the following:

Whether the proposed trial will be an unfair trial is not the only test for abuse of process. The proof of a previous conviction or acquittal on the same charges means that it will be unfair to try the accused but not that he is not about to receive a fair trial. […] It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial, although the trial itself could be fairly conducted, and to proceed in respect of a nonextraditable offence against an accused who has with the connivance of our authorities been unlawfully brought within the jurisdiction from a country with which we do not have an extradition treaty need not involve an unfair trial, but this consideration would not in my opinion be an answer to an application to stay the proceedings on the ground of abuse of process.

This last example, though admittedly not based on authority, foreshadows my conclusion that a court would have power to stay the present proceedings against the appellant, assuming the facts alleged to be proved, because I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.4

In R v Latif and Shahzad [1996] 1 WLR 104, the appellants had been convicted on indictment of one count of being knowingly concerned in the fraudulent evasion of the prohibition of a controlled drug (heroin), contrary to section 170(2) of the Customs and Excise Management Act 1979. The first appellant had agreed

3Comprised of Lord Griffiths, Lord Bridge, Lord Lowry, Lord Oliver and Lord Slynn.

4R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, per Lord Lowry at 74.

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with another man to import the drugs but, unbeknownst to the appellant, the other man was an informant for the United States Drug Enforcement Administration (USDEA). The informant told the USDEA of the agreement. The first appellant supplied the drugs to the informant, who passed it on to the USDEA, which in turn passed it to the British authorities. A member of the British authorities in fact imported the drugs into the United Kingdom, but did not have a licence to do so (although he was acting on the instructions of his superiors). The informant persuaded the first appellant to come to the United Kingdom to take delivery of the shipment. The first appellant and the second appellant discussed the delivery and eventually both of them met with the informant in a London hotel room to collect the delivery from the informant. In fact, the British authorities had switched the drugs with Horlicks powder and, when the handover was made, both the first and second appellants were arrested. In the course of its judgment, the House of Lords5was asked to rule on whether the proceedings should have been stayed as an abuse of process either because the appellant’s criminal activity had been in some way procured by the authorities and/or that the authorities had acted illegally themselves in importing the drugs. Their Lordships stated:

It is now necessary to consider the legal framework in which the issue of abuse of process must be considered. The starting point is that entrapment is not a defence under English law. That is, however, not the end of the matter. Given that [the first appellant] would probably not have committed the particular offence of which he was convicted, but for the conduct of [the...

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