Due Process and Dirty Harry Dilemmas: Criminal Appeals and the Human Rights Act
| Published date | 01 November 2001 |
| Author | Richard Nobles,David Schiff |
| Date | 01 November 2001 |
| DOI | http://doi.org/10.1111/1468-2230.00359 |
CASES
Due Process and Dirty Harry Dilemmas: Criminal
Appeals and the Human Rights Act
Richard Nobles and David Schiff*
Balancing truth and fairness
In the Film ‘Dirty Harry’,1a detective obtains a confession from a suspect through
torture, or at least inhuman and degrading treatment. The suspect confesses to
where he buried a girl he had kidnapped. Later he is released on the basis that the
evidence of his confession, the truth of which is not in doubt (only the kidnapper
could have known the location of the girl’s body) is inadmissible evidence.2This is
a victory for due process but, for Harry and most of the audience, who expect the
suspect to kill again, it is just insane. The situation in Dirty Harry is a stark
illustration of the problem facing appeal courts, which have to decide whether a
conviction is ‘unsafe’.3As judges and lawyers they accept the need for due
process, and that such processes are not justified simply as a means to an end, with
that end being to establish the factual guilt of the accused. However, the value
identified in due process other than its contribution to truth is elusive.4Sometimes
it is articulated in terms of suspects’ rights. At other times it is seen as a general
right to fairness, requiring that a person be subjected only to fair procedures and
treatment.5And at its most general level it is associated with the theme of the rule
of law. If detectives like Harry can go around torturing suspects then in the general
run of cases, if not the particular case in question, we might not only lose truth and
fairness, but lose control of the police and prosecuting authorities as well.6
Dirty Harry dilemmas occur when judges at trial are asked to exclude evidence
obtained illegally or unfairly,7and when defendants apply for a stay of proceedings
on the basis that the prosecution, taken as a whole, amounts to an abuse of
ßThe Modern Law Review Limited 2001 (MLR 64:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 911
* Law Department, London School of Economics. We would like to thank Mike Redmayne for
commenting on a draft of this case note.
1 1971, starring Clint Eastwood.
2 It is only in modern times in the Western world that such evidence, to the extent that it proved the
guilt of the accused, has been deemed to be inadmissible. See J.H. Langbein, Torture and the Law of
Proof (Chicago: University of Chicago Press, 1977), ch 1.
3 Criminal Appeal Act 1968, s 2(1) as amended by the Criminal Appeal Act 1995, s 2.
4 See generally D.J. Galligan, Due Process and Fair Procedures (Oxford: Clarendon Press, 1996) Pt 1,
especially the summary of Ch 1, at 48–51.
5 Fairness may go beyond trial, to the relationship between those responsible for enforcing the criminal
law and the citizen, in circumstances such as entrapment. See A. Ashworth, ‘Testing Fidelity to Legal
Values: Official Involvement and Criminal Justice’ (2000) 63 MLR 633.
6 When fairness goes beyond trial, it overlaps with rule of law concerns. See Ashworth, ibid.
7
Most commonly when considering section 78(1) of the Police and Evidence Act 1984, the discretion to
exclude evidence where ‘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.’ Apart from this most general provision there are a
range of other specific provisions, whether in statutes, codes or in the common law that give judges
discretion to exclude evidence usually after hearing argument on a voir dire (a trial within a trial). See
generally S. Sharpe, Judicial Discretion and Criminal Investigation (London: Sweet & Maxwell, 1998).
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