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Common Law – Evidence Law – Amissibility of Evidence Essays – Free Law Essays

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Free Law Essays – Common Law

Is the law relating to admissibility of evidence obtained
by entrapment in a satisfactory state now?

The mere fact that evidence is
relevant does not guarantee its admissibility. At common law it was long
established that trial judges enjoy a general discretion to order the exclusion
of technically admissible evidence if they feel that its prejudicial effect
exceeds its probative value (see e.g., Christie [1914] AC 545).
In Sang [1980] AC 402 the House of Lords unanimously held that in
order to fulfil the overarching duty to ensure that an accused receives a fair
trial a trial judge may refuse to admit technically relevant evidence.

S 78 PACE 1984 expressly preserves
the common law discretion. The statutory provision however permits a court to
exclude improperly obtained evidence. Potter LJ in Hardwicke [2000] All
ER (D) 1776 acknowledged that in cases where a party applies to have
evidence excluded under s 78 on the ground that he was entrapped, although the
principal focus of the court will be the procedural fairness of the
proceedings, the opportunity the defendant has had to deal with the prosecution
evidence and the reliability of the Crown evidence, the court will also take
into account the facts and circumstances of the entrapment. Thus, if there was
a good reason to doubt the credibility of the agent provocateur and these
doubts were not susceptible to being properly or fairly resolved in the course
of the proceedings from available admissible, untainted evidence, the judge
would in likelihood feel impelled to exclude the agent’s evidence. Merely
feeling that it was just unfair that the evidence had been obtained in that
particular way, however, would not be sufficient on its own to justify
exclusion under s 78. The case law has developed sufficiently to cater for

The leading authority on the
application of the PACE 1984, s 78 (1), to a prosecution founded on entrapment
is the decision of the House of Lords in Loosely [2001] 1 WLR 2060.
In deciding whether conduct amounts to state-created crime, the existence or
absence of a predisposition on the part of the accused to commit the crime is
not the criterion by which the acceptability of police conduct is to be
decided, because predisposition does not make acceptable what would otherwise
be unacceptable conduct on the part of the police or other law enforcement

The case law has developed
considerably in this area and it is fair to say that it has developed to make
room for fairness and prevent miscarriages of justice. A useful guide in
determining application of the issues surrounding entrapment is to consider
whether the police did no more than present the defendant with an unexceptional
opportunity to commit a crime. The yardstick for the purposes of this test is,
in general, whether the police conduct preceding the commission of the offence
was no more than might have been expected from others in the circumstances. The
greater the degree of intrusiveness, the closer will the courts scrutinize the
reason for using it. On this, proportionality has a role to play.

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Whether a police officer can be
said can be said to have caused the commission of the offence, rather than
merely providing an opportunity for the accused to commit it with a police
officer rather than in secrecy with someone else, will usually be a most
important factor, but not necessarily decisive. Ultimately, the overall
consideration is always whether the conduct of the police or other law
enforcement agency was so seriously improper as to bring the administration of
justice into disrepute. In applying this test, the court has regard to all the
circumstances of the case, such as the nature of the offence. The use of
proactive techniques is more appropriate in the case of some offences, e.g.,
dealing in unlawful substances, offences with no immediate victim (such as
bribery), offences which victims are reluctant to report and conspiracies. The
secrecy and result of detection, and the manner in which the particular
criminal activity is carried on, are relevant considerations. The reason for
the particular police operation and supervision is another factor.

To allow police officers or
controlled informers to undertake entrapment activities unsupervised carries
great danger, not merely that they will try to improve their performances in
court, but of oppression, extortion and corruption. The need for reasonable
suspicion and proper supervision are both stressed in the Undercover
Operations Code of Practice issued jointly by all UK police authorities and
HM Customs and Excise in response to the Human Rights Act 1998. These
provisions have arguably contributed significantly to regulating the law
relating to entrapment. The police must act in good faith. It is not normally
considered a legitimate use of police power to provide people not suspected of
being engaged in any criminal activity with the opportunity to commit crimes.

In Sang [1980] AC 402,
the House of Lords held that whatever the ambit of the judicial discretion to
exclude admissible evidence, it does not extend to excluding evidence on the
grounds that it was instigated by an agent provocateur, because if it did so
extend it would amount to a procedural device whereby the trial judge could
avoid the substantive law, under which it is clearly established that there is
no defence of entrapment. The test under s 78 remains as whether any
impropriety affects the fairness of the proceedings: the court cannot exclude
evidence under the section simply as a mark of its disapproval of the way in
which it was obtained.


Would Jessie’s confession be
admissible in court and why?

Tight restrictions have been
imposed on the conditions under which evidence of a confession may be admitted
in a criminal trial. In particular, the prosecution may be required to prove
that a confession it wishes to adduce was not obtained in a manner that might
cast doubt on its reliability. The most important rules governing confessions
are to be found in PACE. Under s 76(1) of PACE a confession may be given in
evidence against an accused only ‘in so far as it is relevant to any matter in
issue in the proceedings and it is not excluded by the courting pursuance of
this section’.

It will be for Jessie’s counsel to
contest the admissibility of a confession. Once the issue has been raised, s
76(2) then lays down that a court must exclude a confession if the prosecution
fails to prove beyond reasonable doubt that it has not been obtained either (i)
by oppression or (ii) as a consequence of things said or done which might
render a confession unreliable. Oppression is defined as torture, inhuman or
degrading treatment as well as the use or threat of violence. In Jessie’s case,
there is no ground for arguing oppression, as there is nothing in the facts
that satisfy the criteria laid down in its definition.

There is the second limb of the
test, which provides that a confession must be excluded if it has been made in
consequence of things said and done which might render it unreliable. The test
refers to ‘anything said or done’, which poses the question of by whom must
theses things have been said and done? It was held in Goldenberg (1988)
88 Cr A R 285, that what was needed was ‘something external, something
likely to have influence on the defendant’. In relation to Jessie, there is no
indication that anything was said or done by the officers that caused her to
make her confession. According to Jessie, the reason for her confession was to
get to her mother, this came directly from within herself and as such is not
covered in this provision. The section’s use of the expression ‘in consequence
of’ showed that a causal link had to be established between what was said or
done and the subsequent confession.

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In conclusion, Jessie’s confession
is unlikely to be excluded and in the circumstances there is no evidence to
suggest that she confessed neither as a consequence of being ‘oppressed’ by the
police nor as a result of ‘something done or said’.


Section 77 of PACE provides that
where the prosecution case against a mentally handicapped person relies wholly
or substantially on a confession that was not made in the presence of an
independent person, the court shall warn the jury of the special need for
caution before convicting the accused in reliance on the confession. The sort
of independent person envisaged by this section includes solicitors instructed
by the suspect, but expressly excludes police officers and those employed for
or engaged on ‘police purposes’ within the meaning of the Police Act 1996 (s
77(3)). As was indicated in Bailey [1995] 2 Cr App R 262, ‘what is required
in summing up in such cases is a full and proper statement of the mentally
handicapped defendant’s case against the confession’s being accepted by the
jury as true and accurate’

Section 78 of PACE is most commonly
used in cases where evidence has been obtained in breach of PACE codes of
practice, which notably regulate the way in which the police question suspects
and so on. It is well established that a judge, as part of his inherent power
and overriding duty in every case to ensure that the accused receives a fair
trial, always has a discretion to exclude otherwise admissible prosecution
evidence if, in his opinion, its prejudicial effect on the minds of the jury
outweighs its true probative value.

In the case against Jessie there
have undoubtedly been some breaches by the police officer conducting the
interview. In exercising his/her discretion as laid down above and as provided
for by s78 PACE, the trial judge can exclude the entire interview. In
particular, the police officers conducting Jessie’s interview have ignored the
provisions laid down in Code C of PACE. PACE code C relates to rules and
procedures governing the detention, treatment and questioning of persons by
police officers. It will then be for the trial judge having considered the
breaches cumulatively whether to allow evidence to be excluded under s.78 PACE.

The breaches identified in Jessie’s
case include the right not be held incommunicado (Any person arrested may on
request have one person known to them or likely to take interest in their
welfare be informed at public expense of their whereabouts as soon as practicable);
Right to legal advice (all detainees must be informed that they may at anytime
consult and communicate privately with a solicitor);
Right to at least two light meals and one main meal should be offered in any
24hr period (Drinks should be provided at meal times and upon reasonable
request between meals.
Paragraph 11.15 expressly states that a juvenile or person who is mentally
disordered or vulnerable must not be interviewed regarding their involvement or
suspected involvement in a criminal offence in the absence of an appropriate
adult. Paragraph 1.4 of Code C which states that If an officer has any
suspicion, or is told in good faith, that a person of any age may be mentally
disordered or otherwise mentally vulnerable, in the absence of clear evidence
to dispel that suspicion, the person shall be treated as such for the purpose
of this code
. As regards the situation with strip search, paragraph 10 of
Annex A of Code C PACE provides that ‘a strip search may take place only if it
is considered necessary to remove an article which a detainee would not be
allowed to keep, and the officer reasonably considers the detainee might have
concealed such an article.

Due to all the above breaches taken
together, I would submit that a trial judge acting reasonably and exercising
his discretion to exclude Jessie’s interview and confession evidence will in
fact exclude the evidence in order to facilitate fairness.


  • Mirfield, Silence, Confessions and Improperly Obtained
    (1997) Oxford Publishing Press
  • Munday R, Evidence, Butterworths 2001
  • Murray P, Blackstone’s Criminal Practice 2004, Oxford
    Publishing Press
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