Improperly Obtained Evidence in the Commonwealth: Lessons for England and Wales?
| DOI | 10.1350/ijep.2007.11.2.75 |
| Author | Susan Nash,Andrew L.-T. Choo |
| Published date | 01 May 2007 |
| Date | 01 May 2007 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2007) 11 E&P 75–105 75
IMPROPERLY OBTAINED EVIDENCE IN THE COMMONWEALTH
Improperly obtained
evidence in the
Commonwealth:
lessons for England and
Wales?
By Andrew L.-T. Choo*and
Professor of Law, University of Warwick; Barrister, Matrix Chambers
Susan Nash†
Professor of Law, University of Westminster; Barrister, Tooks
Chambers
Abstract English law’s traditional approach to the admissibility of improperly
obtained evidence is currently being rethought in response to a range of
domestic and international pressures. With the position in England and Wales
following the House of Lords’ decision in A and Others (2005) firmly in mind, this
article undertakes a selective review of comparative approaches to the admissi-
bility of improperly obtained evidence in Australia, Canada and New Zealand.
Having analysed relevant legislation and case law in each jurisdiction, general
principles are derived to guide future developments in English law, in
conformity with the European Convention on Human Rights.
n this article we offer, from the perspective of academic lawyers in
England and Wales, some thoughts on recent developments in Common-
wealth jurisdictions on the treatment of evidence that has been
I
* Email: A.L-T.Choo@warwick.ac.uk.
† Email: S.Nash@westminster.ac.uk.
obtained illegally or otherwise improperly, but the reliability of which is not
disputed.1Rules regulating evidence-gathering are an acknowledgement that the
need to protect the public from crime should be balanced against a general
principle of procedural fairness.2Once relevant, reliable evidence has been
uncovered as a result of official rule-breaking, there will be a fundamental shift in
this balance. The general theory of procedural rights, which guarantees
protection to suspects from improper treatment, will now be in conflict with the
public interest in convicting the guilty and in preventing crime. Resolving sucha
conflict amounts to ‘a choice of policy about the protection of civil liberties’.3
Our discussion of recent developments in the Commonwealth will be selective
rather than comprehensive, focusing on issues which in some way illuminate the
debate on improperly obtained evidence in England and Wales. An examination of
developments in Commonwealth jurisdictions is particularly timely for two
reasons. First, the debate on improperly obtained evidence has recently resurfaced
in England and Wales as a result of the decision of the House of Lords on evidence
obtained by torture.4Secondly, as will be demonstrated below, English law has
become increasingly reliant, for its approach to improperly obtained evidence, on
the guarantee of the right to a ‘fair trial’ in Article 6 of the European Convention
on Human Rights, and the associated jurisprudence of the European Court of
Human Rights. Developments in the other major Commonwealth jurisdictions in
relation to improperly obtained evidence have attracted somewhat limited
judicial and academic attention in England and Wales, resulting in the failure to
learn a number of valuable lessons from these developments, not least for the
interpretation of Article 6 itself.
1. The position in England and Wales: where are we now?
The House of Lords in A and Others vSecretary of State for the Home Department5appears
to have accepted that in appropriate circumstances the manner in which evidence
is obtained could render it inadmissible in judicial proceedings, notwithstanding
76 E & P
IMPROPERLY OBTAINED EVIDENCE IN THE COMMONWEALTH
1 We are grateful for the helpful comments of participants at the Matrix Chambers seminar, where
an earlier version of this article was first presented in December 2003.
2 It may be argued ‘that by imposing these restrictions the state has staked out the boundaries for
lawful access to evidence and has indicated that beyond these limits it is willing to forego evidence
of crime in deference to individual freedom’: A. A. S. Zuckerman, The Principles of Criminal Evidence
(Clarendon Press: Oxford, 1989) 346.
3 Ibid. at 347.
4A and Others vSecretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221, discussed
below.
5 Ibid. See N. Grief, ‘The Exclusion of Foreign Torture Evidence: A Qualified Victory for the Rule of
Law’ [2006] European Human Rights Law Review 201; N. Rasiah, ‘A v Secretary of State for the Home
Department (No. 2): Occupying the Moral High Ground?’ (2006) 69 MLR 995.
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