Public policy exclusion of evidence is sometimes still spoken of by courts as if it was a means of protecting the accused’s right to a fair trial. This was done yesterday by the Privy Council in Williams v R (Jamaica) [2006] UKPC 21 (25 April 2006). A statement had been obtained from the accused when he was aged 12, in breach of the procedures laid down for the interviewing of young suspects (para 27). The Board concluded, at para 28:
"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."
While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".
My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.
One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.
What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.
There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.
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