A Question of ‘Desirability’: Balancing and Improperly Obtained Evidence in Comparative Perspective

Debates about improperly obtained evidence continue to arise in common law appellate courts on a surprisingly regular basis. In 2015, the Irish Supreme Court handed down a decision on the topic which ran to over 155,000 words. Among the major common law jurisdictions outside the United States, Australia can be regarded as something of a pioneer in its approach to the admissibility of illegally or otherwise improperly obtained evidence. In 1978 the High Court of Australia in Bunning v Cross, building on its earlier decision in R v Ireland, established the existence of a discretion to exclude such evidence that was distinct from the discretion to exclude evidence to ensure fairness to a defendant at trial. Section 138 of the UEL, the focus of this chapter, was closely modelled on this common law jurisprudence. At the time of Bunning, the law in England and Wales was characterised by little judicial analysis of the issue of improperly obtained evidence, and Canada was still some years away from introducing the Canadian Charter of Rights and Freedoms with its well-known provision on evidence obtained in consequence of Charter violations. In the light of major continuing developments in the common law world in this area of evidence law, this chapter seeks to provide a searching and timely analysis of selected aspects of section 138, as viewed from the perspective of an evidence scholar working in England and Wales, with the aim of asking what lessons may be learnt from a contemporary comparison of section 138 with the approaches taken to improperly obtained evidence in other common law jurisdictions. The chief focus will be on the particular species of evidence that can be considered to highlight most clearly the relevant theoretical and practical issues raised by improperly obtained evidence—evidence that was not brought into fruition by any interaction between a member, or agent, of the executive and a suspect. In other words, the improprieties that will be the primary concern of this chapter are those that do not contribute in some way to the generation of the evidence in question; the situations are such that there is no suspicion that evidence of doubtful reliability or veracity has been produced by the impropriety. So, for example, within the primary scope of the chapter will be evidence obtained as a result of an illegal search, or evidence obtained by improper means of ‘spontaneous’ conversations that were not in some way induced by the conduct of the executive. Outside the primary scope of the chapter will be evidence obtained improperly during formal police interrogations, or ‘informal’ interrogations involving the covert questioning of a suspect by a police agent.

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