Exculpatory statements ... and trials in the fullness of time

A brief note on two Privy Council decisions from last week:

Gordon v R (Belize) [2010] UKPC 18 (21 July 2010) is an interesting little reminder that there are times when the prosecution is, in the interests of fairness to the accused, obliged to lead evidence of his exculpatory statement, applying R v Sharp [1988] 1 WLR 7 and R v Aziz [1996] 1 AC 41.

The case also illustrates a misdirection on provocation.

In Maraj-Naraynsingh v Attorney-General of Trinidad and Tobago [2010] UKPC 19 (21 July 2010) we are given a glimpse of what seems to be a relaxed attitude to work in the tropics: the case highlights an absence in that jurisdiction of a constitutional right to a trial within a reasonable time; the right to be brought before a court "promptly" after arrest cannot be extended to include a right to be tried promptly after committal.

Res gestae lives again! And implied assertions are statements.

The majority in Rongonui v R [2010] NZSC 92 did not share the Chief Justice's view that "res gestae" is an outmoded term (see Hart v R [2010] NZSC 91 at 17, noted below).

In Rongonui, Blanchard, Tipping, McGrath and Wilson JJ held jointly that res gestae statements are not within the scope of s 35 Evidence Act 2006 (prior consistent statements) [46]. Terminology might be in doubt, as the judgment refers to "what used to be called" res gestae evidence [47], and at [46] the phrase "words spoken in the course of the events in issue" is used – but that could hardly have been intended to be a convenient substitute for the term "res gestae".

Res gestae statements therefore continue to be admissible in the same circumstances in which they were admissible at common law.

The joint judgment in Rongonui also tidied up what was becoming a needlessly contentious issue: a spurious exclusion of implied statements from the scope of "statements" (see the definition of "statement" in s 4 Evidence Act 2006), especially in relation to the statutory hearsay rule. A statement is an assertion, and an assertion may be express or implied [33]. The Crown in Rongonui could not argue that evidence that the complainant told someone "what had happened" was not an assertion that she had given the same account of events as she was giving in court. Those words carried the implication of consistency, and were accordingly an assertion of consistency, and in the circumstances of this case were an inadmissible prior consistent statement.

There is much overlap between Rongonui and the Court's other decision of today, Hart (see below), especially on the incorporation of what used to be called recent complaint evidence in sex cases into s 35 so that they no longer need to be "recent" in the common law sense, they are admissible as proof of the truth of their assertions, but they are only admissible when the conditions in s 35 are met. That is not a formidable obstacle, as usually the defence in such cases will be alleging recent invention.

It seems to me that if the defence specifies when it claims invention first occurred, consistent statements before that will have a relevance that is more likely to be obvious than consistent statements made after that date, although generalisation is dangerous and the circumstances of each case will need consideration in assessing the probative value of the challenged consistent statement. That there will be difficulties is signaled by the Chief Justice's dissent in Rongonui on the s 35 point.

Barlien got a drubbing today. It has up to now been cited by the Court of Appeal mainly for the point on which it was approved: that when the prior consistent statement is admissible it is admissible as proof of what it asserts. In two cases Barlien has been noted uncritically on other points now corrected by the Supreme Court: in Ringi v R [2008] NZCA 293 it was mentioned as showing the difficulties of s 35, and in a case which carried a suppression order so I only cite its number, CA529/2008, Barlien was mentioned as authority for the proposition that res gestae evidence is no longer admissible. Another aspect of Barlien - observations on potential difficulties concerning identification evidence - has been called into question by the Chief Justice in footnote 29 of Hart; the Court of Appeal cited Barlien uncritically on that point in CA108/2009.

All judges in Rongonui agreed that the trial had involved breaches of s 90(5) Evidence Act 2006, and the joint judgment, with which Elias CJ agreed, contains some comments on deciding when a record is capable of refreshing a witness's memory.

Prior consistent statements

Hart v R [2010] NZSC 91 (23 July 2010) addresses the law of the admissibility of prior consistent statements in the context of a claim of recent invention under s 35 Evidence Act 2006.

The Court was unanimous, and the reasoning in the two judgments is consistent. Blanchard, Tipping, McGrath and Wilson JJ jointly held that the essence of an admissible prior consistent statement is its tendency to respond to a challenge to the witness's veracity or accuracy based on a claim of recent invention [50]. An "invention" is a deliberately misleading statement [51]. It is not always possible to identify exactly when a motive to fabricate arose [52, and Elias CJ at 20]. Therefore it is not necessary that the prior consistent statement was made before the occasion or motive for the claimed invention [53, and Elias CJ at 20]. This is a departure from the position that had prevailed at common law.

The prior statement is admissible as proof of the truth of its assertion [54-57]. This too is a departure from the common law rule that prior statements were only admissible as proof of the witness's consistency.

Elias CJ held that prior statements admissible under s 35 can include what the common law called "recent complaint" allegations of sexual offending [14]. It is now not necessary that such complaints be "recent" in relation to the alleged incident, but their admission does need to be "necessary" to rebut the allegation of recent invention [15].

She also held that a recent invention in terms of s 35 is one that occurred after the events described [16].

Elias CJ disagreed with the Court of Appeal's judgment in R v Barlien [2008] NZCA 180 on several points (I have commented on this case on 8 July 2008): recent complaints are within s 35, and speech that is part of the events (formerly called res gestae – a term that is now to be avoided [17]) can also be admissible "in themselves" [17]. She also doubted that Barlien was correct to exclude from s 35 previous statements by identifying witnesses [footnote 29]. Nor did she consider the legislation would disrupt the course of evidence, as defence counsel would usually indicate the basis for a defence in opening remarks, or would agree that the Crown could lead evidence of the prior statement in examination in chief [19].

Barlien was therefore needlessly alarmist.

Of critical importance will be the necessity requirement: when is admission of evidence of the prior consistent statement "necessary" under s 35? [Elias CJ at 11, joint judgment at 51.] The joint judgment says that judicial experience with the common law will assist in judging the tendency of the statement to rebut the allegation of recent invention. Elias CJ refers to the requirements of relevance in s 7.

Much to rejoice about here, if clarity is what you want. I am a little uneasy about the joint judgment's apparent limitation of "recent invention" to statements that are deliberately misleading [51], because s 35 allows them to be admitted to respond to a challenge to the witnesses "accuracy", not just "veracity".

Collateral attack, witness immunity, and abuse of process

An orthodox application of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL), prohibiting the use of civil proceedings to mount a collateral attack on a decision in a criminal case, is Hurnam v Bholah (Mauritius) [2010] UKPC 12 (12 July 2010).

Issues that have been decided to have reached the standard of beyond reasonable doubt cannot be taken to be capable of having a different outcome if they were to be decided on the balance of probabilities. The exception is where fresh evidence passes a "rigorous test" (per Lord Diplock in Hunter at 545).

In Hunter, the Birmingham Six case, the accused were held beyond reasonable doubt at voir dire not to have been subjected to violence before they made statements which were therefore admissible at trial, so subsequent civil proceedings by the accused against the officials for alleged assault were stayed as an abuse of process.

Ultimately the Birmingham Six were shown to have been wrongly convicted – even wrongly accused – and they received compensation.

An interesting aspect of Hurnam v Bholah is its reference (37-38) to French law on issue estoppel. In Mauritius the substantive law is based mainly on the French Napoleonic Code, whereas procedural law is mainly English. In English common law the position was that neither an acquittal nor a conviction was admissible on the same issue in civil proceedings: Hollington v F Hewthorn & Co Ltd [1943] KB 587. This was the applicable law in Mauritius. The position in the UK was changed by statute (s 11 Civil Evidence Act 1968) so that a conviction is prima facie evidence in civil proceedings that the person did commit the offence. But French law permits the results of criminal cases, whether convictions or acquittals, to be used in evidence in civil cases. However this has been held not to be part of the procedural law of Mauritius.

There is an obvious irony in Hunter being authority for preventing civil proceedings being used to undermine a criminal conviction, as the convictions there were unsound. But the point is that a conviction is a matter of criminal law and it can only be challenged on appeal or on prerogative review.

In the present case the Board held (31) that Mr Hurnam was seeking to use civil proceedings, not to obtain damages, but to restore his reputation by calling into question the guilty verdict in the criminal proceedings. He had been found guilty of conspiring to fabricate an alibi, and his civil proceedings claimed that the allegation that he had conspired to fabricate the alibi was false.

Lord Brown agreed with the judgment of the Board delivered by Lord Rodger, and added that witness immunity protected the witness whose evidence supported the allegation of conspiracy to fabricate the alibi from subsequent suit (Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435), the policy being that witnesses should not, for fear of being sued for something they say, be afraid to tell the truth (citing Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208). There was no issue of witness immunity in Hunter and Lord Brown considered that Hunter was a weaker case for striking out than was the present case.

Stubborn beliefs and the elusive truth

On how we let our beliefs get in the way of the facts, and on how contrary facts merely entrench our preconceived beliefs, see this article from the Boston Globe, 11 July 2010, "How facts backfire" by Joe Keohane. 

While that article is not concerned with forensic fact finding, it does have fundamental implications for trial procedure.

The article mentions research that indicates that persuasion requires an adjustment of the other person's (fact-finder's) belief about the issue, not by presenting facts that threaten the person by putting them in the position of being wrong, but by interactively presenting evidence that directly confronts preconceived beliefs. To lawyers this implies that jurors or fact-finding judges should be able to question witnesses directly. Another suggestion is that increasing the "reputational cost" of error could discourage people from adhering to false beliefs. This could be done by making jurors answerable for their decisions, for example by exposing them to media questioning after their verdicts.

Current practice could hardly be more different. Our trial procedure may discourage accurate fact finding.

It takes all sorts ...

I have previously noted Lord Rodger's dark humour. Unless he is one of those chaps who seems funnier the further away one gets from him, here he goes again:

" ... just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. ...".

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010), at para 78. I suspect he was assisted in writing that passage by what Lady Hale has called "the extremely bright young Judicial Assistants in the Supreme Court": opening address in 'Ten years on': A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010 (4-5 June 2010).

HJ isn't a criminal case, so I don't need to comment on it here.

I was surprised to hear, when she was interviewed on a radio programme during her recent visit to New Zealand, that Lady Hale sounds much different from what her somewhat tousled ra-ra-hockey-sticks appearance might suggest. She was incredibly patient with some rather mundane questions.

For discussion of HJ, see Aidan O'Neill QC, "Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31" at UKSC blog 12 July 2010.

Free speech and foolishness

Once again our passionate little nation is in thrall to the Bain case (see my comments posted 8 June 2009). Last night a television documentary tried to persuade us that the acquitted David Bain should not receive compensation. At least that was its import; ostensibly it merely suggested that there was no case to be made against one of the five murdered victims, Robin Bain. At trial the defence had suggested that Robin was the killer.

There will always be differences of opinion over who was the murderer. People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue. Even people who sat through the whole case disagree on its outcome. If people can't agree on whether there was a reasonable doubt, how can they agree on whether on the balance of probabilities the acquitted David Bain should receive compensation?

The case has almost left the law behind. It is now a form of entertainment, as is the expression of all ill-informed opinion. My own views are just as likely to be silly as those of anyone else who was not at the trial. I can argue either side, and in fact do, depending on who I wish to irritate. The tragedy has become a farce.

Multiple judgment cases: an illusory paradox

Sometimes multi-judgment cases challenge the analytical powers of readers. Especially when there is no headnote, and also when they seem to be of only marginal interest.

Thanks to David Cohen's interesting comments on McDonald v Chicago [2010] USSC No 08-1521 (28 June 2010) I can mention that state and local anti-gun laws might be unconstitutional. A headnote is provided for this case, but it is so complex that only students of US constitutional law would be motivated to study it.

What I do find interesting is Professor Cohen's point that this case is an example of a paradox. It seems (I rely on his analysis) that the reasons for holding the relevant law constitutional were accepted by more judges than those who found reasons to hold it unconstitutional, yet the outcome of the case was that the law was unconstitutional.

The "paradox" of there being an excess of judges supporting some of the reasons for what turns out to be the minority conclusion is illusory because the total judicial support for those reasons consists of dissenting judges who regard them as adequate, and majority judges who do not. The decision in the case is supported by reasons held to be adequate by the majority of judges. If any of the majority judges indicate support for reasons relied on by the minority, those judges are not thereby lending support to the dissenters' conclusion.

Was the relevant law in McDonald unconstitutional? Four justices held yes, because it infringed the due process part of the Fourteenth Amendment, and one justice held yes, because it infringed the privileges and immunities clause of that Amendment. So, five justices held the relevant law unconstitutional. That being the majority, that was the decision.

It is true, but irrelevant, that in some respects these majority justices recognised reasons that would have been insufficient to support their conclusion. Their partial agreement with reasons relied on by minority justices does not add to the tally of dissenting justices.

What matters for the result is how many justices found at least one reason to hold the relevant law unconstitutional. Five. The number of justices who found no reason to hold the law unconstitutional was four. It is a fallacy to say that a justice who finds only one reason to hold the law constitutional should vote constitutional.

The reasons for the decision of the Court are not the same as the reasons for the individual judgments. When asking what the case is authority for, one looks at the reasons for the decision of the Court: McDonald is (again, relying on Professor Cohen's summary) authority for the proposition that the due process requirements of the Fourteenth Amendment render unconstitutional the laws considered in that case.

Professor Cohen's "paradox" is not really a paradox. It is a mundane result of what is sufficient reason for a decision.

Now that you are in the mood for analysing multi-judge cases, have a look at R(Smith) v Secretary of State for Defence [2010] UKSC 29 (helpfully discussed by Alex Bailin QC and also by Aidan O'Neill QC). It deals with the extra-territorial effect of the European Convention on Human Rights, and American readers who see the big picture might compare it to Boumedeine v Bush, noted here 13 June 2008.

Drug discovery in liquor ban searches

One of the knotty little problems that crops up in the lower courts is whether a police search for alcohol in a person's possession in a liquor ban area can properly extend to a search for drugs, even if the initial search had been carried out illegally. I was reminded of this on reading R v Nolet [2010] SCC 24 (25 June 2010). This involved initial vehicle stoppage for transport regulation compliance, the discovery of a large amount of money, arrest for possession of proceeds of crime, a further search of the vehicle revealing a large quantity of cannabis, impounding of the vehicle and a later inventory search yielding evidence of transport licencing infringements.

What is of interest in the wider context is the treatment, by Binnie J delivering the judgment of the Supreme Court, of so-called mixed-purpose searches. One approach to this sort of problem is to argue that the regulatory search was really a sham and that the real purpose was to search for evidence of the more serious offending even though there were no grounds for such a search. At para 39 Binnie J rejects the predominant purpose inquiry and prefers a focus on whether the defendant's Charter rights have been breached.

Nolet also illustrates the proper approach to these problems which is to proceed by a step-by-step analysis of the facts.

As I began by mentioning liquor searches, I should say a bit more about them. Section 169 of the Local Government Act 2002 provides for police powers to search for liquor in the possession of a person in a liquor ban area. Important limitations on that search power are in s 170. The s 169 power does not contain a requirement that an officer must have reasonable grounds to believe that liquor will be found. Local bylaws, for example those enacted by Auckland City, do not restrict these searches to occasions where such reasonable grounds exist. But s 21 New Zealand Bill of Rights Act 1990 gives everyone the right to be secure against unreasonable search and seizure. On the Nolet approach, the question in any given case would be whether the particular search was a breach of s 21. The argument would be that lawful powers must be exercised reasonably.

If sufficient grounds for a liquor search existed, the search might be unlawful because of breach of s 170. For example, because of failure to give the person an opportunity to remove the liquor from the ban area. What would be the relevance of that illegality if the police had discovered drugs after completion of the search for liquor and after the illegality arose?

In deciding whether a search that yielded drugs was unreasonable, the grounds for the search would be assessed but by ignoring unlawfully obtained information. In the absence of any reason to believe that drugs would be found, the search that discovered them would be unreasonable. Whether evidence of the finding of the drugs would be admissible would then have to be determined by a balancing exercise (analogous to, but not the same as, that carried out in Nolet pursuant to Grant in relation to the evidence of licencing breach discovered during the final inventory search), pursuant to s 30 Evidence Act 2006. I would expect, in the light of case law, that if the drug offending was of such seriousness as to attract a starting point for sentencing of under four years' imprisonment, and if the improper search involved search of the defendant, a bag he carried, or the vehicle he was in, that the court would exclude the evidence.

But I may be wrong. Don't rely on my views.

Outsmarting the smart

With my 3 July 2008 comments on Gafgen v Germany still at the forefront of your consciousness, you will be surprised that I have let a few days slip by before referring to the Grand Chamber's decision in the same case: Gafgen v Germany [2010] ECHR 759 (1 June 2010). The Court held 11 to 6 that although there had been a breach of Mr Gafgen's article 3 right not to be subjected to inhumane treatment (para 131), there was no breach of his fair trial rights under article 6 (para 187-188). Mr Gafgen had not sought a monetary award for the breach of article 3, merely a retrial, but this was not awarded as he had received a fair trial (190-191).

The Grand Chamber reiterated the law on article 3 (para 87-93), and applied it to this case (107):

"In this connection, the Court accepts the motivation for the police officers' conduct and that they acted in an attempt to save a child's life. However, it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case-law (see paragraph 87 above), the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult. The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue."

And, a remedy for breach of article 3 cannot be confined merely to compensation (119):

"In cases of wilful ill-treatment the breach of Article 3 cannot be remedied only by an award of compensation to the victim. This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see, among many other authorities, Krastanov, cited above, § 60; Çamdereli, cited above, § 29; and Vladimir Romanov, cited above, § 78)."

This means that the fairness of the trial must be examined, because Mr Gafgen had exhausted his domestic remedies (146). It is a quirk of Strasbourg jurisdiction that the Court assesses fairness without reference to the admissibility of evidence, which is a matter for domestic courts (162-163), although this limitation is obscured by the importance of article 3 (165):

" ... However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction ... ."

For example, confessions obtained in breach of article 3 have led to trials being held to be unfair irrespective of the role of such confessions in prosecution cases (166), and violence in the nature of torture leading to the discovery of real evidence will also result in trial unfairness (167). Similarly, breach of the right to silence and the privilege against self-incrimination also lie at the heart of the right to a fair trial (168). The article 3 rights are absolute (176):

"While having regard to the above interests at stake in the context of Article 6, the Court cannot but take note of the fact that Article 3 of the Convention enshrines an absolute right. Being absolute, there can be no weighing of other interests against it, such as the seriousness of the offence under investigation or the public interest in effective criminal prosecution, for to do so would undermine its absolute nature (compare also, mutatis mutandis, Saadi v. Italy, cited above, §§ 138-39). In the Court's view, neither the protection of human life nor the securing of a criminal conviction may be obtained at the cost of compromising the protection of the absolute right not to be subjected to ill-treatment proscribed by Article 3, as this would sacrifice those values and discredit the administration of justice."

The Court then noted that the article 6 right is not absolute (178):

"However, contrary to Article 3, Article 6 does not enshrine an absolute right. The Court must therefore determine what measures are to be considered both necessary and sufficient in criminal proceedings concerning evidence secured as the result of a breach of Article 3 in order to secure effective protection of the rights guaranteed by Article 6. As established in its case-law (see paragraphs 165-167 above), the use of such evidence raises serious issues as to the fairness of the proceedings. Admittedly, in the context of Article 6, the admission of evidence obtained by conduct absolutely prohibited by Article 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition. The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole is rendered unfair. However, the Court considers that both a criminal trial's fairness and the effective protection of the absolute prohibition under Article 3 in that context are only at stake if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence."

I pause here to comment that treating the article 6 right as "not absolute" must be done with care. Article 6 does not contain one right only. The right to a "fair and public hearing" is not subject to limitations, but it is "derogable" in times of "war or other public emergency threatening the life of the nation" (article 15). That is the sense in which the right to a fair hearing is not an absolute right. The first sentence of para 178 did not need to refer to the non-absolute nature of the right to a fair hearing, as the second sentence makes it plain that effective protection of this right must be secured.

As noted in my earlier comment on this case, events at trial eclipsed the breach of article 3, and the admission at trial of the challenged evidence did not affect the fairness of the hearing.

Here, Mr Gafgen had made two confessions at trial, the second of which was crucial to his conviction (34-35,184). There is a little judicial sleight of hand on this (183):

"Moreover, the applicant, who was represented by defence counsel, stressed in his statements on the second day and at the end of the trial that he was confessing freely out of remorse and in order to take responsibility for his offence despite the events of 1 October 2002 (see paragraph 32 above). He did so notwithstanding the fact that he had previously failed in his attempt to have the impugned real evidence excluded. There is no reason, therefore, for the Court to assume that the applicant did not tell the truth and would not have confessed if the Regional Court had decided at the outset of the trial to exclude the impugned real evidence and that his confession should thus be regarded as a consequence of measures which extinguished the essence of his defence rights." [emphasis added]

The non sequitur in the italicised passage is obvious. A "free" and "remorseful" confession after a ruling that real evidence is admissible is not really "free" and "remorseful" – to be such it would need to have been given before the admissibility ruling.

Gafgen illustrates how an accused person's legal manoeuvring at trial can ultimately produce a result that he didn't want. The final appellate court makes the final legal manoeuvre.

I do not think that the issue of trial fairness should come down to the glib bluff-calling that occurred here. The Strasbourg Court needs to decide whether trial fairness means the same thing for all member states. It needs to define what trial fairness means, and to avoid irrelevant references to derogation. It needs to decide whether admissibility of improperly obtained evidence is a question that is relevant to the determination of trial fairness, and whether deference to local decisions on admissibility is necessarily appropriate. The Court needs to sort out the relationship between exclusion of evidence for reasons of public policy and exclusion of evidence to protect trial fairness. A ruling on trial fairness requires detailed consideration of the critical decisions made at trial in order to determine when they are a product of impropriety.

My suggestions: If all people are equally deserving of the protection of rights then the right to a fair trial must mean the same thing for everyone. Recognising that laws differ does not mean that trial fairness differs. A fair trial is one in which the law, whatever it may be, is applied correctly to facts that are determined impartially. Impartially means without bias and without an error that affects the proper assessment of what is admissible evidence and what is the true probative value of the admissible evidence. The admissibility of improperly obtained evidence is governed by judgment involving a balancing of policy values. If that balancing judgment is done incorrectly, there can be an impact on trial fairness through the creation of partiality in the determination of the facts. Deference to local decisions is not appropriate because a decision about trial fairness requires assessment of the correctness of admissibility decisions. An admissibility decision can affect the tactical decisions made by an accused in the course of conducting a defence, so if evidence has been wrongly admitted it is necessary to ask whether that could have affected the proper determination of the facts.

The trial fairness question in this case comes down to whether the trial court was correct to admit the real evidence. This is an issue of whether the real evidence is "fruit of the poisoned tree", and that, in the German court, was decided by a balancing of values: see the passage quoted in para 27 of the Chamber judgment Gafgen v Germany [2008] ECHR 565. In other jurisdictions this issue may be treated as a question of causation: whether there remains a causal link between the improper official conduct and the finding of the real evidence. Sometimes it is treated as a question of time and context. Notwithstanding the varied approaches to the admissibility of downstream evidence, the question here is whether the German approach is wrong. It would be difficult to show that it is. The Grand Chamber avoided dealing with this interesting problem; vile facts do not present a good opportunity for development of the law on trial fairness.