Evidence Unfairly Obtained: Home Thoughts from Abroad
| Author | Frank Bates |
| Published date | 01 February 1982 |
| Date | 01 February 1982 |
| DOI | http://doi.org/10.1177/002201838204600107 |
| Subject Matter | Article |
Evidence
unfairly
obtained:
Home
thoughts
from
abroad
Frank Bates*
In the light of the decision of the House of Lordsin R. v. Sang [1979]
2
All
E. R. 1222; [1980] 44 J. C. L. 38, which, for the present at
least, seems to have disposed of the notion thata defence approximating
to that of entrapment exists in English law, some considerarion of
relevant Commonwealth authorities would seem to be appropriate.
In Sang, the House
of
Lords had refused to hold that evidence ought to
be excluded where the accused have been able to show, through cross-
examination, that they would not have committed the crime without
the persuasion of a police officer. The essence of the principle laid
down in Sang was expressed by Lord Diplock (ibid, at p. 1227) that,
'. . . this submission goes far beyond the claim to a judicial discretion
to exclude evidence that has been obtained unfairly or by trickery;
nor in any of the English cases on agents provocateurs that have come
before appellate courts has it been suggested that it exists. What it
really involves is a claim to a judicial discretion to acquit an accused
of any offences in connection with which the conduct of the police
incurs the disapproval
of
the judge. The conduct
of
the police where it
has involved the use of an agent provocateur may well be a matter to
be taken into consideration in imigation
of
sentence;
but
under the
English system of criminal justice it does not give rise to any discretion
on the part of the judge himself to acquit the accused or to direct the
jury to do so, notwithstanding that he is guilty of the offence'. Earlier
in his judgment, Lord Diplock (ibid, at 1226) had commented that the
prior Court of Appeal decisions in R. v. McEvilly and Lee (1973) Cr.
*Reader in Law, University of Tasmania, Australia.
49
D'
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