R v F includes reference to a House of Lords decision, re S (a child)  3 WLR 1129 (HL) which was mentioned in this blog on Monday November 1, 2004. The Court of Appeal in R v F at para 23 treated this as support, by analogy, for holding that competing public interests can’t be dealt with at a general level, and that close investigation of the facts and evaluation of factors is required. That approach is, no doubt, appropriate where, as in re S (a child), there was a conflict between the right (of the child, not a party to the criminal proceedings) to privacy, and the right of the news media to exercise freedom of speech. But is this approach appropriate to the Shaheed balancing exercise?
Three fundamental points support the precedent approach:
- The police are entitled to guidance from the courts as to the likely consequences, as far as the admissibility of evidence is concerned, of any of the forms of misconduct that may occur in the purported exercise of search powers.
- The accused is also entitled to know what are the prospects of success for a contemplated challenge to the admissibility of evidence. Both the prosecution and the defence are only informed by the law if decisions have precedent value.
- Precedents should help to isolate the material facts. Precedents should also guide the reasoning process. It would be wrong to interpret R v F as a call for a new beginning in each case.
Some aspects of the reasoning in R v F are, with respect, unsatisfactory. These will be considered further below, but first, it should be noted that these were all obiter, as the Court accepted the Crown’s indication that it did not seek to oppose the appeal being allowed. This indication came in response to a potentially controversial step taken by the Court before the hearing: The grounds for the stopping and search of the appellant’s car seemed rather sparse, and indeed the lower court, the High Court, had ruled that the search was illegal and unreasonable, but nevertheless under the Shaheed balancing of interests, the evidence should be admissible. The Court of Appeal, by Memorandum to the Crown, invited the Crown to advance further information as to the grounds for the search, indicating that if disclosure of these to the defence would compromise the Crown’s position (such as, for example, by betraying a promise of confidentiality to an informer), then arrangements might be made to accommodate that concern.
It should be noted that the search in question was carried out without warrant. If there had been an application for a warrant (not at all practical in this case) then any secrecy concerns could have been met, so the extension of this similar offer to the Crown here was not as bizarre as it might otherwise have seemed. Nevertheless, the warrantless search powers are designed for occasions where the necessary grounds for their exercise arise ex improviso, and should be capable of being stated clearly when the challenge arises. Should there be a need to protect the identity of an informer, the relevant police witness would raise that in the course of his evidence and the Court would take the necessary steps to determine an issue of public interest immunity. Therefore the opportunity held out by the Court of Appeal to the Crown came at an inappropriately late stage in the proceedings, and accordingly the appropriateness of the Court of Appeal’s Memorandum procedure in R v F can be doubted.
Having said that, it may nevertheless be conceded that now the court of final appeal, the Supreme Court (which has replaced the Privy Council in this role), is within the reach of ordinary litigants, the Court of Appeal may well take a more activist role in raising issues that could prompt changes in the law.
So, what are the unsatisfactory aspects of the reasoning of the Court in R v F as far as the Shaheed balancing exercise is concerned? The Court referred, para 27, to public attitudes, saying that public opinion would be against exclusion of the evidence. That, with respect, is not a true reflection of the relevant point. Public attitudes that are ill-informed are immaterial. The Court referred separately, para 28, to the nature of the criminal conduct. This is not really separate from the first point, the public interest. The Court did, however, correctly refer to the likely sentence in this case as being the indicator of the weight to be given to the public interest in the bringing of suspects to trial.
Also unsatisfactory is the Court’s reference to the accused’s privacy interests, para 24 – 26. Certainly, privacy in a car is less than in a home, and the Court acknowledged that the accused’s interests, expressed in BORA s 21, 22, and s 18 MDA 1975, were "in general terms significant". The reference in para 26 to the serious social harm that can arise from the offending, coming as it does immediately after these references to the accused’s privacy interests, appears to be a suggestion that the privacy interests are diminished by the seriousness of the offending. That, of course, would be wrong. The privacy interests are those that everyone enjoys. They have weight reflecting the value that the ordinary person attaches to not being subject to arbitrary official search. This weight may well be outweighed by competing interests, but that would be because those competing interests are stronger, not because the privacy interests are diminished.
In para 25 there is reference to the powers to stop the vehicle that could have been relied upon in this case. The suggestion seems to be that because the police could have lawfully stopped the vehicle, that diminishes the wrongfulness of their stopping the vehicle improperly. That would be a misapplication of authority, which is to the effect that the police are expected to obey the law, so that failure to take available lawful steps counts against admissibility of the wrongfully obtained evidence: R v H 9/11/04, CA61/04 at para 46.