Improperly Obtained Evidence in the Commonwealth: Lessons for England and Wales?

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 admissibility 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 Commonwealth jurisdictions on the treatment of evidence that has been

Stop and Search, Terrorism and the Human Rights Deficit

“…In fact it might be argued that in practice the strictness of the exclusionary rule fails to provide adequate protection of Convention rights. Not only is the infrequently exercised judicial discretion to exclude evidence on the basis of unfairness a narrow one, 291 it has been rightly described as somewhat weak. 292 In these circumstances it is not unreasonable to argue that in the context of ss.…”

Police accountability and the Irish law of evidence

“…3 While this perception may seem outdated when applied to the investigation of ordinary offences, it continues to resonate in the context of extraordinary offences which threaten the security of the Irish State. 4 Judicial economy provides a further justification for divorcing the investigative process from the trial process. According to this argument, the conduct of law enforcement officers in the gathering of evidence is secondary at best to the primary issue of the accused"s guilt or innocence.…”

“…What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained but with how it is used by the prosecution at the trial." R v Sang [1980] The strongest argument in favour of judicial intervention in the face of investigative misconduct lies in the constitutional duty of the courts to ensure that the personal rights of the accused are respected and vindicated [2,4,16]. 7 If the police infringe a suspect's protected rights, in all likelihood the prosecution will pay an evidentiary price: the evidence may be excluded at trial or, if admitted and relied upon, may render the conviction susceptible to challenge on appeal.…”

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