Evidence & Advocacy Law

TITLE IS THE ENGLISH’S LAW APPROACH TO CONFESSIONS AND IMPROPERLY OBTAINED EVIDENCE SUFFICIENTLY BALANCED OR SHOULD AN EXCLUSIONARY RULE EXTENDED TO INCLUDE THE FRUIT OF THE POISONOUS TREE PRINCIPLE BE APPLIED? ABSTRACT The issue in relation to the admissibility of confessions and improperly obtained evidence in the English criminal law has been the subject of substantial debate. The focus of the controversy is on the reason why the English law cases appear to stick to the principle of inclusion of improperly obtained evidence. The court in R v Leatham [1861] 8 Cox CC 498, 501. for example, demonstrated their desire to include any evidence even if it were stolen. Although the coming of the Police and Criminal Evidence Act (PACE) in 1984 was an opportunity to change the approach, the courts chose not to take it; this approach has been subjected to intense scrutiny and criticisms by legal scholars. Professor David Ormerod, for example, has argued that in admitting evidence the need to protect the ‘’public from crime ought to be balanced against a general principle of procedural fairness.’’ David O., & David B., ‘The Evolution of the Discretionary Exclusion of Evidence’ [2004] Crim. L.R. 767 The controversies surrounding how evidence is admitted in the English courts and its concomitant effects on the fairness of the proceedings have triggered the interest of the writer in this area of law. Allowing the inclusion of improperly obtained evidence by the English court, the question that readily comes to mind is: to what extent is the method to improperly obtained evidence sufficiently balanced in the English law, or should an exclusionary rule extended to include the fruit of the poisonous tree principle be adopted? To aid understanding of this dissertation, this work will be divided into three chapters. The first chapter will be a general introduction to confessions and improperly obtained evidence and the rules regarding their admissibility. This will involve the admissibility rules of common law; the statutory rules of admissibility like the Police and Criminal Evidence Act 1984 (PACE), and the impact of the European Convention of Human Rights (ECHR). The second chapter will involve a detailed study of the USA’s exclusionary rules of evidence including their offshoot, fruit of the poisonous tree principle. The exclusionary rule recommends that evidence that is obtained from an illegal arrest, unreasonable search or forced interrogation must be excluded from the trial. Under the fruit of the poisonous tree principle, evidence can be excluded from trial if it was obtained through evidence uncovered in an illegal arrest, unreasonable search, or forced interrogation. The principle was developed, essentially, to deter law enforcement from violating rights against unreasonable searches and seizures. In this chapter, the writer intends to trace the history of the fruits of the poisonous tree principle to understand and analyse its significance. Chapter three will make a comparative assessment of both the English and US jurisprudence in relation to admissibility of evidence obtained by improper means. The upshot of this assessment will be to evaluate whether or not the US model of the exclusionary rule is to be applied in the English law. CHAPTER 1 1.1 GENERAL INTRODUCTION Confession is defined in most jurisdictions, as a statement made by an accused person, which is considered adverse to that person. In the English law, confession is defined as ‘’ [A]ny statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’’ Police and Criminal Evidence Act 1984, s82 (1). Given the absence of a written constitution in the United Kingdom (in contrast to the US Constitution), the exclusionary rules are governed mostly by PACE as well as the common law. In s 76(1) PACE it is stated that ‘’in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.’’ Ibid s76 (1). Confessions may be inadmissible for a variety of reasons but, generally, these are related to their voluntariness. The court always consider if or whether the confession was voluntary in nature. If it is voluntary, then it may be admissible. If on the other hand, it was obtained involuntarily, then it should be inadmissible because it is inherently unreliable. Section 76 directs the court to exclude from the trial process, confession evidence that has been obtained either as a result of oppression, or in circumstances, which were likely to make the confession unreliable. 1.2 ADMISSIBILITY OF CONFESSIONS UNDER COMMON LAW One of the earliest judicial authorities in the common law admissibility of confession evidence was R v Warickshall. R v Warickshall (1783) 1 Leach 263,168 ER 234. The stolen goods were found under the bed of the accused as evidence was admitted in spite of the fact that the discovery was made in consequence of her inadmissible confession. The court rejected the claim that the evidence regarding the stolen property in her custody should be excluded since it was obtained in consequence of the confession which was inadmissible. The court held that the evidence could be admitted even if it was obtained by oppression, but statements obtained involuntary are inherently unreliable. "A confession forced from the mind by the flattery of hope, or by the torture of fear comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected." Ibid.  It further stated that ‘’the rejection of an improperly obtained confession is not based only upon possible unreliability…Accordingly, it is also based upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.’’ Chi-Ming v The Queen [1991] 2 AC 212. The court in Ibrahim v R stated that for confessions to be admitted under common law, the prosecution must show that ‘’it has not been obtained from the defendant either by fear of prejudice or hope of advantage exercised or held out by a person in authority’’ Ibrahim v R [1914] AC 599. . The general approach to the exclusion of confession evidence was put more succinctly by Lord Parker in Callis v Gunn where he stated that: ‘’…as is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person’’ and if it had been ‘’obtained oppressively, by false representations, by a trick, by threats, by bribes.’’ Callis v Gunn [1964] 1 Q. B. 495 at 501. 1.3 ADMISSIBILTY OF CONFESSION UNDER STATUTORY LAW The provision of the statutes that regulates the admissibility of confessions is in section 76 of PACE. Challenges in relation to admissibility of confessions are determined on the voir dire where the judge is not concerned with the truthfulness of the confession and the jury is not present. It means that if the confession were excluded, then the jury would not know of its existence. Under s 76(2)(a) of PACE, it stated that in order to establish that a confession was not gained by oppression, the prosecution must prove, to the criminal standard of proof, either that the accused did not confess in consequence of the oppression to which he was subjected or that he was not subjected to oppression. Under s76 (2) (b) the prosecution must establish that a confession was not gained as a result of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which the accused might have made in consequence of the thing said or done. Police and Criminal Evidence Act 1984, s76(2)(b) In R v Goldenberg, R v Goldenberg [1989] 88 Cr App R 285. the question before the court was whether section 76 (2) (b) requires the exclusion of all confessions which, from whatever cause, are likely to be unreliable, or whether only those which are likely to be unreliable as a result of something said or done or mutatis mutandis not said or not done by the police. The court ruled that there must (a) be a causal link between what was "said or done" and the subsequent confession, and (b) the thing "said or done" must be external to the person making the confession and likely to have had some influence on him. It is implicit that the fact of interrogation per se is not a "thing said or done." Ibid. An interpretation of Oppression was given in the court of Appeal in R v Fulling as having Oxford English Dictionary meaning of ‘’exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subject, inferiors etc; the imposition of unreasonable or unjust burdens’’ R v Fulling [1987] 2 All ER 65.. The court recognise that ‘’oppression is a matter of degree and what may be perceived as oppressive for one person may not be for another therefore, personal characteristics as well as mental strength and weaknesses will be taken into account.’’ Ibid. In R v Paris Abdullah and Miller R v Paris Abdullah and Miller [1992] 97 Cr App R 99., the defendants appealed against their conviction for murder because Miller was interviewed for 13 hours over 5 days. He did not have legal representation for the first two gruelling interviews. All the interviews were tape-recorded on 19 tapes. His lawyer was present from the third interview. The accused denied both participation and presence at the murder scene well over 300 times on tapes 1-7. In tapes 8 and 9, he accepted he was present, and later made three admissions that he stabbed the victim. The court accepted the appeal on the ground that this constituted a hostile, intimidating and degrading environment and that the conduct of the police towards Miller was oppressive within the meaning s76 (2) (b) PACE as there was clear evidence of deliberate and serious misconduct on the part of the law enforcement. The significance of this case therefore, is that even in the absence of physical violence, the conduct of the police could still be oppressive; and that brainwashing the defendant into accepting their words that he was present at the time of killing could amount to oppression. In R v Delaney R v Delaney [1988] CR App R 18 , the accused was convicted of indecent assault and the only evidence against him was his confession. He was interviewed without a solicitor at 17 years of age with low intelligent quotient (IQ) and learning difficulties. Expert evidence from a psychologist demonstrated that the defendant was a vulnerable suspect. The nature of questioning and the vulnerability of the suspect suggested that the risk of a false confession was too high. The court stated that the matter was not whether the confession was true, but whether it was obtained in such reliable circumstances. The English judges are not bothered whether the confession made was truthful or not. However, ‘’whether whatever was said or done was, in the circumstances existing as at the time of the confession, likely to have rendered such a confession unreliable, whether or not it may be seen subsequently (with hindsight, and in the light of all the material available at trial) that it did or did not actually do so.’’ R v Proulx, Governor of HM Prison Brixton [2000] EWHR Admin 381. On the other hand, where a confession does not infringe s 76 of PACE, the court has additional discretion to exclude it under s 78 of PACE. This section provides that the court may refuse to allow the prosecution to adduce evidence ‘’if it appears to the court that having regard to all circumstances, including the circumstance in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not admit it.’’ Police and Criminal Evidence Act, 1984, s 76(2). Section 82(3) preserves the discretion to exclude prosecution evidence which the criminal courts possessed prior to the enactment of PACE in 1984. However, case law confirms that s78 is at least as broad in scope as the common law, so the retention of the common law discretion is of little importance in practice R v Walsh; R v Samuel and R v Mason.. In R v Walsh R v Walsh [1989] 91 Cr App Rep 161. for example, the appellant was refused access to his solicitor in breach of s58 PACE and Code C. The Appeal Court ruled that the trial judge should have excluded the evidence under s78 (1) since the breaches of Code C and PACE meant that the admission of the confessions made by the accused person would have an adverse effect on the fairness of the proceedings. Saville J stated that there was no evidence that the police had acted in bad faith and that ‘’although bad faith may make substantial or significant that which might not otherwise be so, the contrary does not follow breaches, which are in themselves significant and substantial are not rendered otherwise by good faith of the officers concerned.’’ Ibid. At 163. In R v Samuel, R v Samuel [1988] 1 QB 615 the appellant was spotted by a cashier of a Building Society as a member of a gang that had previously robbed the Building Society when he came to deposit money. After his first and second requests to see his solicitor were denied, the appellant confessed to the robbery and was convicted. He appealed on the grounds that the confession should have been excluded under s78(1), because there were no ‘reasonable grounds for believing’ that the appellant’s solicitor would deliberately or intentionally alert other suspects or hinder the recovery of property. The Appeal Court held that access to legal advice was one of the fundamental rights of a citizen and that the circumstances in which the court would uphold a refusal of access to a solicitor would be rare. There would have to be evidence, which relates to a specific solicitor, rather than to solicitors generally. In R v Mason, R v Mason [1987] 3 All AR 481. the police falsely told the accused and his solicitor that the appellant’s fingerprints were found on a piece of glass bottle that had been used as a petrol bomb. The revelation made the solicitor advice the appellant to co-operate with the police and he confessed to the crime. The Appeal Court held that in accepting the confession evidence, the trial judge had failed to take into account the deception practised on the solicitor. By deceiving a solicitor, who is an officer of the court, the police had deceived the court itself and the confession should have been excluded under s78 (1). 1.4 ADMISSIBILITY OF IMPROPERLY OBTAINED EVIDENCE: COMMON LAW APPROACH English law is firmly on the side of the admissibility of evidence obtained illegally or improperly. This view seems to arise because the administration of justice will be obstructed otherwise where relevant evidence would not be admissible. There is therefore no rule of law that such evidence must be excluded simply because it had been obtained illegally or improperly. One of the earliest authorities in this line of cases was R v Leatham where Crompton J stated that ‘’it matters not how you get it; if you steal it even, it would be admissible in evidence’’. R v Leatham [1861] 8 Cox CC 498 p 501. In R v Voisin, R v Voisin [1918] 82 J P 96. the body of the murder victim was found in a parcel with a label bearing the words ‘Bladie Belgiam.’ When interrogated, the police asked the accused to write down the words that were on the label. When he eventually consented, his writing was subsequently put in evidence. He appealed against his conviction on the ground that the caution was not administered to him and therefore the writing was inadmissible. His appeal was rejected as it was decided that he had written the words voluntarily and that no inducements, threats, or trickery were used to make him write the words. The court emphasised that judges have discretionary power to exclude or include evidence if they consider that the evidence was not obtained freely. In Kuruma v R, the defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him. Lord Goddard LJ stated that ‘’in their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle’’ Kuruma v The Queen [1955] A.C. 197, 203. In R v Maqsud Ali and R v Ashiq Hussain R v Maqsud Ali [1975] 2 All E.R. 464 and R.V. where tape recordings of incriminating conversations were tendered in evidence, the appeals were dismissed because the probative value of the evidence tendered in each case outweighed their prejudicial effects. In Fox v Chief Constable of Gwent, Lord Fraser of Tullybelton ruled that: ‘’It is a well established rule of English law, which was recognised in Reg. v. Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally’’ [Fox v Chief Constable of Gwent [1986] A C 281 292. In R v Barker R v Barker [1941] 2 KB 381. where incriminating books of account of impeccable reliability were obtained by deception, the evidence was excluded. Although this is, an isolated authority as it was likened the evidence to an involuntary confession. The basis for the exclusion the records was not based on reliability, as the records were apparently reliable. The court did not qualify the evidence as being prejudicial. In R v Sang, in what looked like entrapment scenario (although the legal principles set out were not limited to entrapment alone), the appellant was indicted for his involvement in counterfeiting of American bank notes. On his arraignment, he pleaded not guilty to the charge and, in the absence of the jury, alleged, through his counsel, that he had been induced to commit the offence by an informer acting on the instruction of the police, and that, but for such persuasion, he would not have committed the offence. In upholding the views of the lower courts and giving the leading judgement, Lord Diplock summarised their decision as follows: ‘’A trial judge in a criminal trial has always discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. That a judge does not have a discretionary power to exclude relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur.’’ R v Sang [1980] 2 AC 402 HL. This decision in Sang as we shall see, contributed much in shaping the subsequent Police and Criminal Evidence Act legislation. 1.5 ADMISSIBILITY OF IMPROPERLY OBTAINED EVIDENCE: STATUTORY LAW APPROACH The admissibility or otherwise of improperly obtained evidence has been placed on a statutory footing under s 78(1) PACE, 1984. Section 78 of PACE was legislated only five years later based on a view that the judiciary should be concerned with how evidence is obtained. It was stated in the Court of Appeal in R v Cooke that s78 discretion is wider than the common law discretion, as it stated: ‘’The discretion of the court not to admit evidence which was improperly obtained was previously strictly circumscribed, R v Sang (1980) A.C. 402. Despite some expressions of opinion to the contrary it is clear that Section 78 has given the courts a substantially wider discretion.’’ R v Cooke [1995] 1 Cr App Rep 318 It is important to add that the question of exclusion under s78 is a matter for the discretion of the trial judge. The Court of Appeal will only interfere if the judge has not exercised the discretion under s 78 at all, or has done so in a Wednesbury unreasonable manner, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and where the Court of Appeal does intervene, it will exercise its own discretion. R v Christou [1992] QB 979 Reference by the Court of Appeal in R v Cooke to ‘’some expressions of the opinion to the contrary’’ was made in R v Mason where Lord Watkins L.J. submitted that s78 merely re-states the common law discretion One classic example was in the case of R v Mason Ibid... where the Court of Appeal held that deceit practiced on Mason and his solicitor was reprehensible and that the trial judge should have excluded the confession in the exercise of his discretion. PACE appear to represent a politically negotiated attempt to balance two conflicting divide i.e. the community interest in granting the police extra powers to detect and investigate crime and the community interest in ensuring that the powers are not misused. The equilibrium of ‘’fairness of the proceedings’’ could be upset by breach, especially where there is deliberate breach of proper procedures laid down in the statutes for investigating crime. R v Stagg R v Stagg [1994] 9 Arch News, 4., a case of murder, suggests that whatever the nature of the offence there are certain police methods which remain unacceptable to the judiciary and invite discretion to exclude evidence under s78 of PACE. In this case, the prosecution argued that the undercover operation was the only route available in order to test the defendant’s capacity to fantasize in a way that was consistent with a psychological profile that was compiled on the murderer. The trial judge nevertheless held that if the route led the police into the area of impropriety the evidence was inadmissible. 1.6 ADMISSIBILITY OF IMPROPERLY OBTAINED EVIDENCE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR) The discretionary powers of the trial judge to exclude evidence are exercised in tandem with Article 6(1) of the European Convention. In R v Khan R v Khan (Sultan) [1997] A.C. 558., the House of Lords upheld the Court of Appeal decision that evidence obtained by a bugging device, attached by the police to a private house without the knowledge of the owner or occupiers, was admissible and should not have been excluded under s 78 PACE. Lord Nolan commented that: ‘’It would be a strange reflection on our law if a man who had admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the ground that his privacy had been invaded.’’ R v Khan [1996] All ER 289 H.L. at p.433. It was suggested that evidence obtained in consequence of violation of Article 8 of the European Convention on Human Rights (ECHR) should be admitted, and the admission of such evidence will be unlikely to give rise to a violation of Art 6. In Khan (Sultan) v UK Khan (Sultan) v UK [2001] 31 E H R R 1016., the European Court of Human Rights (ECHR) approved the House of Lords ruling in Khan that there had been no violation of the defendant’s right to a fair trial under Article 6, despite finding that the fact that the evidence was obtained in violation of Article 8. At each level of jurisdiction the domestic courts had assessed the effect of admission of the evidence on the fairness of the trial by reference to s 78 PACE, and as it was clear that had those courts been of the view that the admission would have led to substantive unfairness, they would have had a discretion to exclude it, the proceedings as a whole were not unfair. In summary, the position of the English law in relation to improperly obtained evidence (other than confessions) is that it is not generally excluded based on how it was obtained; unsurprisingly there is no ‘fruit of the poisoned tree’ principle even where evidence e.g. a confession is excluded. The issues discussed above appear to be inconsistent with how evidence is admitted in other jurisdictions such as the USA where, as we shall see in the next chapter, the unconstitutional behaviour of police leads to an outright exclusion of evidence, however relevant. CHAPTER 2 2.1 EXCLUSIONARY RULE Under United States law, the exclusion of illegally obtained evidence at a criminal trial can be justified by one of two principles. Under the first principle, ‘’evidence is excluded because the police have unconstitutionally obtained the evidence and exclusion is thought desirable to deter such police behaviour in the future by precluding a substantial benefit from such misconduct. Under the second principle, evidence is excluded because the constitution guarantees the defendant a procedural right to exclude the evidence.’’ M. Wiseman, ’’Derivative Imperative: An Analysis of Derivative Evidence in Canada’’ (1997) Criminal Law Quarterly 435, 491. The former principle therefore, focuses on the constitutional impropriety of obtaining the evidence, while the latter principle looks at the constitutional impropriety of using that evidence at trial. This chapter therefore will consider how evidence obtained by police is admitted in the US Law. Attention will be focused on evidence that breaches the Fourth Amendment rights under the ‘fruit of the poisonous tree’’ doctrine. Much as the author would like to mention that knowledge of the ‘Exclusionary Rule’ is important in understanding how the ‘fruit’ has become ‘poisonous’, exclusionary rule shall not be given detailed analysis here. 2.2 THE EXCLUSIONARY RULE AND THE ‘’FRUIT OF THE POISONOUS TREE’’ PRINCIPLE For ease of understanding, the terms ‘fruit of the poisonous tree’ and ‘derivative evidence’ are used interchangeably in this work. Derivative evidence is an aspect of illegally or improperly obtained evidence under the Exclusionary Rule. In order to understand the way in which US courts approach derivative evidence it is necessary to have an understanding of the principles through which exclusionary powers are underpinned. This, arguably, is based on the idea that the way in which an exclusionary rule is exercised is dependent on the principle(s), which underlie it. The prohibition of the use of evidence uncovered as a result of initial unlawful police conduct is known in the United States as the doctrine of the ‘’fruit of the poisonous tree’’, a description used by Frankfurter J in Nardone v United States. Nardone v United States 308 US 338 [1939] In this case, His Honour excluded evidence found in consequence of conversations, which had been heard through the illegal use of listening devices. The ‘’poisonous tree’’ in the ‘’fruit of the poisonous tree’’ doctrine denotes the investigative conduct which is in breach of the Fourth Amendment. The ‘’fruit’’ refers to both primary and derivative evidence located as a result of that illegal conduct. For example, if financial records were located during an illegal search, the search is regarded as the ‘’poisonous tree’’ and the ‘’financial records’’ are regarded as its fruit. If those financial records were then used by the police to conduct investigations, which result in further evidence, that further derivative evidence is also referred to as the ‘’fruit’’ of the illegality K. Mellifont, Fruit of the Poisonous Tree: Evidence derived from illegally or improperly derived evidence (Federation Press 1st edn, 2010). . The doctrine of the ‘fruit of the poisonous tree’ was first announced in the case of Weeks v. United States. Weeks v United States 232 U S 383 [1910]  In this case, the police officers had entered the defendant’s house in his absence without a search warrant and had seized some papers and documents, which were later produced during trial. The court held that this was a violation of the ‘Fourth Amendment’ which emphasized the principle that ‘every man’s house is his castle’, and hence unreasonable searches and seizures are prohibited. Sanctioning the scheme used in this case would go a long way toward nullifying the exclusionary rule and, as Justice Holmes indicated, ‘’it reduces the Fourth Amendment to a form of words.’’ Silverthorne Lumber Co. v United States 251 U.S. 385, 40 S. Ct. 182, 64 L: Ed. 319  Justice Day further said that the Fourth Amendment intended to secure the citizens and property against unlawful invasion of their homes by officers of law.  We can understand, from both cases, that the courts classified the instances as coming within the phrase ‘unreasonable searches and seizures’. However, they have not laid down what amounts to a reasonable seizure. The term ‘unreasonable’ mentioned in the Statute appears to have been left to the subjective interpretation of the courts. In Silverthorne Lumber Company v. United States, Ibid. the accused was arrested on suspicion of federal violation in connection with his business. Government agents conducted warrantless and illegal searches on the accused’s offices. The prosecution requested more documents based on the evidence discovered in the search. The court ordered the accused to produce the documents. On refusal to produce the documents, the accused was convicted and jailed for contempt of court. The Supreme Court reversed the contempt judgement on appeal. In its argument to the high Court, the government agent conceded that the search was illegal and that the prosecution was not entitled to keep the documents obtained in it. However, the government argued that it was entitled to copy the documents and use knowledge gained from the documents for future prosecution. The Court rejected the argument. The Supreme Court held that the essence of forbidding the acquisition of evidence in a certain way is that it shall not be used at all. The principle derived from this case is that it concerns only evidence gained in the initial illegal search or seizure. However, the specific wording paved the way for the exclusion of evidence gained in subsequent searches and seizures. The doctrine of the fruit of the poisonous tree was further considered in Wong Sun v. United States. Wong Sun v United States 371 U S 471 [1963]  This case represents the most comprehensive Supreme Court decision concerning the "fruit of the poisonous tree." In that case, A, shortly after being illegally arrested, informed federal agents that B possessed narcotics. When confronted by the agents, B surrendered some heroin. Moreover, B, when arrested, made statements implicating C in the narcotics racket. Several days after being lawfully arraigned and released on his own recognizance, C voluntarily returned to make his statement. The federal agents conceded at trial that they would never have found the drugs without A's assistance. The Court held that the narcotics were the "fruit of the poisonous tree" The Court further indicated that evidence is not the "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Ibid [487]-[488] The controlling question therefore becomes, ‘’whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’’ Ibid 489 In determining whether evidence is fruit of a poisonous tree, the trial court judge must examine all the facts surrounding the initial seizure of evidence and the subsequent gathering of evidence. This determination is usually made by the judge in a suppression hearing (application to exclude evidence) held before trial. In this hearing, the judge must first determine that an illegal search or seizure occurred and then decide whether the evidence was obtained as a result of the illegal search or seizure. The Supreme Court found such a causal connection lacking in United States v. Ceccolini. United States v Ceccollini 435 U S 268 [1979] The accused was found guilty of perjury by a district court in New York. However, the court set aside the verdict after it threw out testimony by Lois Hennessey against Ceccolini. According to the District Court Hennessey's testimony was tied to an illegal search conducted a year earlier. The case went up to the US Supreme Court. In approving the High Court’s decision, the Supreme Court stated that the exclusion of Hennessey's testimony was an error because sufficient time had elapsed to separate the illegal search from the testimony. Furthermore, Hennessey's testimony was not coerced by law enforcement officials as a result of the illegal search. Considering the above cases, therefore, Silverthorne Lumber Company v. United States seem to have accorded much protection to the people against evidence obtained in breach of the Fourth and Fifth Amendment rules. Given the latitudes of reliefs and protection against the use of improperly obtained evidence, it is rather surprising to see that one of several attenuating factors may prevent the illegally seized evidence from being treated as “fruit.” This includes an act of free will by the defendant, a lengthy causal chain between the illegality and seizure of the evidence or a long period between the illegality and seizure of the evidence. Given the enormous advantages intrinsic in the exclusionary rules of evidence in the US jurisprudence, the crucial question that demands rational answer is whether the English law approach to confessions and improperly obtained evidence is sufficiently balanced or should an exclusionary rule extended to include the fruit of the poisonous tree doctrine be applied? These questions will be analysed carefully in chapter three, including the views of academic writers, journal articles and judicial pronouncements and the writer’s contributions by way of conclusion. In determining whether evidence is fruit of a poisonous tree, therefore, the above cases established that courts must examine all the facts surrounding the initial seizure of evidence and the subsequent gathering of evidence. This determination is often made in suppression hearing. In this hearing, there must be a determination by the judge that an illegal search or seizure has occurred and then a decision whether the evidence was obtained as a result of the illegal search or seizure. As we noticed from the application of the doctrine, the doctrine has a long tortured history. It is perceived as one of the prime doctrines that the courts should follow to protect the rights of the people. It was also developed and nurtured as a doctrine whose sole purpose was to deter police conduct. Prof Anthony Amsterdam argued that the doctrine was ‘’needed but grudgingly taken medicament, no more should be swallowed than is needed to combat the disease.’’ And also ‘’granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity, inflicts gratuitous harm on the public interest.’’ A. Amsterdam, Search, Seizure and Section 2255: A Comment, 122 U. PA. L: 378, 389 (1964) There is a temptation to think that the doctrine may be flawed in its approach, as it never really deterred police misconduct because it was not much of a disincentive. However, it may be fair to say that the ‘fruit of the poisonous tree’ is not a doctrine that is applied according to the facts and circumstances of the case and the gravity of the crime. As, I have argued in the concluding part of my paper, this doctrine should be limited to those circumstances where the misconduct is so grave that it influences the conscience of the court when making decisions. This would ensure that the criminal does not go free and that there is no gross violation of the right guaranteed in the Fourth Amendment CHAPTER 3 3.1 EVALUATING THE ENGLISH DOCTRINE Historically the exclusionary rule was rooted in the English and United States experiences. In the 17th century, around 1604 where the police broke into Semayne’s house and seized his property in England, Sir Edward Coke declared that ‘’[t]he house of everyone to him is his castle and fortress.’’ Semayne’s Case, [1558 – 1774] ALL E.R. 62, 63 (K.B. 1604). In 1761, there was a widespread objection against writs of assistance throughout the length and breadth of some Commonwealth countries. These writs were search warrants that allowed the police and other government agents to search anybody and anywhere they deem necessary to search without any reason and without probable cause. The Conference was on a discussion on ‘’The History and Legacy of the Writs of Assistance,’’ on February 7th 1993, sponsored by the American Bar Association. The communiqué went viral via C-SPAN, as part of its ‘’America & the Courts’’ series, in late summer, 1993. The police or other officials could conduct search without specific suspicions about any person in any place. Section 52(2) of Act of Frauds 1662 provides: ‘’And it shall be lawful to, or for any person or persons, authorised by Writ of Assistance under the Seal of His Majesty’s Court of Exchequer, to take a constable or other public Officer inhibiting near unto place, and in the day-time to enter…house…or other Place…break open Doors, Chests, Trunks and…and other Package, there to seize, and from thence to bring, any Kind of Goods or Merchandise whatsoever, prohibited, and to put and secure the same in his majesty’s Store-house.’’ J.W. Hall, Jr., Search and Seizure (2nd edn, Michie, Charlottesville 1991) 7. A group of merchant traders from Boston employed one Attorney James Otis to challenge the legality of the writs of assistance for the first time. In attacking the writs, Otis declared: ‘’…It appears to me the worst instrument of arbitrary power in the English history… One of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle, and whilst he is quiet, he is well guarded as a prince in his castle…’’ M.H. Smith, The Writs of Assistance Case (University of California Press, Berkeley 1978) 344 Two famous related English cases, which were decided by Lord Charles Camden concerning the exercise of writs, were heard. The first case was Wilkes v Wood. Wilkes v Wood 98 Eng. Rep. 489 (CD 1763). Wilkes was a parliamentarian who printed and distributed anonymous pamphlets criticizing the King. General warrant was issued by the King to fish out the originator of the pamphlets. Wood was given the responsibility of executing the warrant. In this case, the court found in favour of Wilkes on the ground that general warrants is ‘’totally subversive of the subject… [And] of the most dangerous consequences.’’ J. W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation (Baltimore, Johns Hopkins University Press, 1966) 20. General warrants were used frequently to clamp down the infamous Star Chamber. Potter Stewart, ‘’The Road to Mapp v Ohio and Beyond: The Origins, development and Future of the Exclusionary Rule in Search and Seizure’’ (1983) Columbia Law Review 1365, 1369. The second was Entick v Carrington. Entick v Carrington [1765] EWHC KB J98. This was a case where executive warrant was issued by the Earl of Halifax the Secretary of State. The defendants and others forcefully entered John Entick’s home, searched his place and took away valuable documents. The jury found that the defendants committed a trespass and Entick was awarded £300 in damages. The judgement elicited much publicity both in England and in the United States. By this judgement, Lord Camden dismissed the precedent long established under Star Chamber and condemned the invasion of homes, while finding the warrant wholly illegal and void. The United States’ courts described the judgement as ‘’one of the landmarks of English liberty’’ and also ‘’one of the permanent monuments of English liberty.’’ Boyd v United States, 116 U.S. 616, 626 (1886). During the late eighteenth and early nineteenth century, things began to fall apart in terms of how the English and the American courts assess evidence resulting from searches and seizures, which violated the maxim that ‘’a man’s house is his castle.’’ The United States and England share the same common law tradition from England. M.R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press, New haven 1986) 8 – 15. The judges in England had often seen themselves as protectors of rights of citizens. David Dixon, Law in Policing: Legal Regulation and Police Practices (Clarendon Press, Oxford 1997) 70. The similarities, at first, were particularly obvious in many ways. First, the emphasis on the adversary system, the presumption of innocence, and the fundamental fairness required for a just procedure. Equally striking, however, are the sharp contrasts between the two jurisprudences. This work will, therefore, discuss the differences in their approach to improperly obtained evidence and make suggestions as to way forward. One of the most puzzling things about the exclusionary rule of evidence is lack of clear understanding of what it is. Although the exclusionary rule is widely acknowledged as the hallmark of the United States criminal evidence, some courts and scholars have not truly given a widely acceptable definition of the rule. For the purpose of this work, the writer considers the exclusionary rule as a rule that excludes evidence that has been obtained by unlawful or unfair means such as illegal search or torture. This work argues that the hallmark of the rule is to regulate state intrusions whilst constraining every species of arbitrary or oppressive rule. Three marked differences between the exclusionary rule in the English and American criminal justice systems have been historically analysed. In the middle of the twentieth century, especially from 1960s through 1978, the English judges were very reluctant to exercise discretion to exclude illegally or improperly obtained evidence. In R v Houghton and Franciosy, R v Houghton and Franciosy [1979] 68 Cr.App.R. the court decided that the judge was right not to exclude a confession even though the accused had been unlawfully arrested, detained, and was kept incommunicado for five days and questioned without caution. The above case reflected how the English judges, at the time under review, became increasingly accommodating to police demands for additional power: they retreated from control of police, while senior judges in America (in the 1960s) attempted to advance it. David Dixon, Law I Policing: Legal Regulation and Police Practices (Clarendon Press, Oxford 1997) 142. Lord Diplock made it very clear in R v Sang R v Sang [1980] AC 402. that: ‘’the trial judge has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.’’ Ibid. Under the United States exclusionary rule, evidence, which was obtained through an unlawful search and seizure, is excluded from admissibility in line with the Fourth Amendment to the US Constitution. ‘’The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation.’’ Fourth Amendment to the United States Constitution. In Weeks v United States, the court stated that ‘’in a federal prosecution, the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.’’ Weeks v United States 232 U.S. 383, 398 81914) One of the leading judges in this case, Justice Day stated: ‘’The effect of the Fourth Amendment is to put the courts of the United States…against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not.’’ Ibid. at page 391 – 2 (1914) Again, the English courts have jettisoned the idea of using exclusion of illegally obtained evidence as a deterrent against the illegal conduct of the police. The notion had been that it was not the duty of the judges to reprimand or discipline police officers in courts. In R v Sang, Lord Diplock stated that ‘’it was not the role of the courts to discipline the police, rather there is a civil law remedy which should be used where the police break the law.’’ R v Sang [1980] 2 AC 402, HL. This outcome of Sang seems to give rise to anomaly; while the courts strongly disapprove of improper or illegal conducts by the police or prosecution, they will not automatically exclude evidence merely in order to discipline the police. In contrast, the US Supreme Court in Weeks (supra), first recognised that the only effective way to deter police misconduct was to exclude evidence that was illegally obtained. ‘ibid. More so, from the early 1960s, the US courts systematically ignored all but the deterrence rationale for the exclusionary rule. The underpinning rationale behind it was that it allows the courts to control the activities of the police and dissuade them from unjustifiably encroaching on the civil liberties of citizens. For instance, in United States v Calandra, Justice Powell noted that the exclusionary rule is ‘’A judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.’’ United States v Calandra, 414 U.S. 338, 348 (1974) The third factor, which makes a significant difference, concerns the admissibility of derivative evidence from improperly obtained real evidence and inadmissible confessions. It is important to state here that derivative evidence or the ‘fruit of the poisonous tree’ is an offshoot of the exclusionary rule. Under the English law, evidence derived from an illegal confession is admissible. In the case of R v Warickshall, R v Warickshall [1783] 1 Leach 263. where a full confession was made after the accused was promised that she would not be prosecuted if she confessed, her confession was excluded as evidence, but the real evidence was included. Ibid. The judgement, in this case, was broadly accepted in the whole of the English law. In 1972, the Criminal Law Revision Committee (CLRC) accepted this practice. They recommended that the fact that evidence of a confession is inadmissible under the clause should not affect the admissibility in evidence any facts discovered as a result of the confession. The Criminal Law Review Committee, ‘’Eleventh Report, Evidence (General)’’ (CM4991 1972) [56] [68]. Clause 5 of the Draft Criminal Bill further provides: ‘’The fact that a confession is wholly or partly excluded in pursuance of section (2) or (3) shall not affect the admissibility in evidence (a) of any facts discovered as a result as a result of the confession. Or (b) as regards any fact so discovered as a result a statement made by the accused; or (c) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, so much of the confession as is necessary to show this about him.’’ The Criminal Law Review Committee, ‘’Eleventh Report, Evidence (General)’’ (CM4991 1972) draft bill cl2 (5). The Committee submitted that it is illogical not to apply fully one or other of the reliability and disciplinary principles – either, first to apply the reliability principle and admit all the evidence, or, secondly, to apply the disciplinary principle and exclude the evidence derived from it. In analysing the argument, therefore, it merely stated that ‘’there are sufficient practical reasons for accepting the mixture of the two principles as the basis of the law.’’ The Criminal Law Review Committee, ‘’Eleventh Report, Evidence (General)’’ (CM4991 1972) [56]. The writer will argue that the Committee does not appear to provide any practical or workable reason nor give explanation as to why derivative evidence was included. Maybe the logical reason is that it may be too dangerous to exclude derivative evidence. The Committee recommendation was implemented in the Police and Criminal Evidence Act, s76 (4) Police and Criminal Evidence Act 1984, s76 (4). which explicitly require the admissibility of derivative evidence. Contrasting the English law approach, in the US law derivative evidence in is excluded if there is close connection between the initial illegality and subsequently discovered evidence. Justice Frankfurter, the architect of the ‘’fruit of the poisonous tree’’ doctrine stated in Nardone v United States Nardone v United States, 308 U.S. 338 (1939) that: ‘’To forbid the direct use of methods [but] to put no curb on their full indirect use would only invite the very methods deemed inconsistent with ethical standards and destructive of personal liberty.’’ Ibid. at 340. Again, the uncertainty surrounding the meaning and scope of fairness under s78 PACE has prevented English courts from evaluating the public policy considerations, which inevitably underlie the exercise of the discretion. In exercising discretion, the trial judge must necessarily decide whether the public interest of crime control or that of protecting individual rights against official impropriety should hold sway. Professor Adrian Zuckerman argues that Section 78 of PACE empowers the court to exclude prosecution evidence if its admission "would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. However, so far, there has been little inclination to elucidate the principles, which should govern the exercise of this discretion.’’ Paul Roberts & Adrian Zuckerman, ‘’Principles of Criminal Evidence’’ (Oxford University Press, 2nd Edition 2010). In the light of recent post PACE decisions, 'fairness' in the English context has become an elusive concept, making it difficult to predict when a court might detect its presence and exclude evidence. In the absence of specific guidelines set down by the judges, some authors have attempted to fill the vacuum created by seeking to identify the policy behind the discretion in a bid to predict with more certainty when fairness will demand that evidence be excluded. Professor Richard Stone argues that 'fairness' as interpreted by English judges means 'fair play' and that 'the dominant policy behind the application of section 78 is simply to prevent the prosecution gaining an advantage in a particular case as a result of impropriety Stone Richard, ‘’Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles’’ (1995) 3 Web JCL1. See also May Richard, ‘’Fair Play at Trial: An Interim Assessment of Section 78 of the Police and Criminal Evidence Act 1984’’ [1988] Criminal Law Review. 722 p.730. Andrew Choo has suggested three possible rationales behind the exclusion of illegally obtained evidence on the grounds of unfairness – deterrence, compensation and repute. Choo Andrew, ‘’ Improperly Obtained Evidence: a Recommendation’’ (1989) 9 Legal studies, p 261. A.A. Zuckerman preferred to separate them into three theories, the deterrent theory, the remedial or vindication theory and the legitimacy theory. Zuckerman A.A. ‘’Principles of criminal Evidence’’ (Oxford: Clarendon, 1989), p 346. Prof. Stone argued that ‘other academic writers like Andrew Ashworth Ashworth Andrew, ‘’Excluding Evidence as Protecting Rights’’ (1977) Criminal Law Review, Vol. 3, p723. and Mary Hunter have identified rationales of discipline, reliability and protection.’ R. Stone, ‘Police and Criminal Evidence Act: Practice and Principles. While each author defines the rationales in a slightly different way, the principles are not dissimilar and can be integrated into the three broad rationales of deterrence (which also incorporates discipline), reliability and protection (which include compensation of the victim and broader considerations of judicial integrity. Hunter Mary, ‘’Judicial Discretion: Section 78 in Practice’’ (1994) Criminal law Review, p558. The English courts have maintained that s78 discretion should not be exercised in order to penalise or discipline the police. ‘’It has been said more than once in this court that the object of a judge in considering the application of section 78 is not to discipline or punish police officers or customs officers for breaches of the code. There are other procedures for doing that.’’ R v Hughes [1994]1 WLR 876, p 879 (Lord Taylor) See also R v Mason; R v Delaney (1989) 88 Cr. R. 338, (C.A.); R v Sang. Yet, R v Quinn R v Quinn [1990] Criminal Law Review 581 (Lord Lane CJ). established the proposition that a deliberate breach of procedures laid down in an official code of practice might result in the proceedings becoming unfair thereby requiring the evidence to be excluded. While English judges have no discretion to exclude reliable evidence simply because it was improperly obtained, they have shown a willingness to exclude it in the interest of fairness in cases where it was obtained by the police in bad faith. Choo is of the opinion that improperly obtained evidence in the English law, is to a considerable extent, marked by a one-dimensional preoccupation with the pursuit of truth (intrinsic public policy considerations). A. Choo, Evidence (Oxford University Press: Oxford, 2006) 19–20. To Parker, ‘’it seems more in tune with ‘crime control’ than ‘due process’ values’’ H. Packer, The Limits of Criminal Sanction (Stanford University Press: Stanford, 1968) 149–73. and ‘’it appears to be underpinned on a consequentialist basis which allows rights considerations to be sidestepped in pursuit of accurate fact-finding and the conviction of the guilty.’’ A. Ashworth and M. Redmayne, The Criminal Process, 3rd edn (Oxford University Press: Oxford, 2005) 35–7 In marked contrast, an approach is much more compatible with the exclusion of evidence on ‘broader considerations of the integrity of the criminal justice system’ R v and Shahzad [1996] 1 WLR 104 at 112. than finding abuse of process. Choo and Nash have argued that ‘the narrowness of the discretion to exclude an item of “tainted” prosecution evidence rests uneasily alongside the width of the discretion to discontinue a “tainted” prosecution.’ A. Choo and S. Nash, ‘Evidence Law in England and Wales: The Impact of the Human Rights Act 1998’ (2003) 7 E & P 31 at 49. The gap between the two doctrines appears to be narrowing down. Choo and Nash acknowledged that the judgment in A and Others v Secretary of State for the Home Department A and Others v Secretary of State for the Home Department [2006] 2 AC 221; [2005] UKHL 71; was a very important decision as it ‘represents an acknowledgment that there may be circumstances in which a court should be prepared “on moral grounds”, to exclude reliable evidence because of the way in which it was obtained.’’ Choo and Nash, above n. 71 at 86. The decision in A and Others above suggests an inclination towards the US exclusionary rule of evidence especially as it pulled towards the wider exclusionary orbit of abuse of process. However, this is a narrow exception for torture and recent case law does not seem to extend the decision beyond those extreme circumstances. 3.2 CONCLUSION This work has looked at both sides of the trajectory in terms of evaluating the US and English rules of evidence and their applicability. There is no doubt that every jurisdiction has its own share of imperfections save that others may have adequately dealt with their problems through development of case laws. On the one hand, some scholars have argued that the exclusionary rule appears to be one of the most difficult and controversial and even complex doctrines in the rule of criminal evidence and procedure law. Rose and Chalmers stated that ‘’when it has been established that a piece of evidence has been obtained illegally or irregularly, the question as to whether in a particular case it is admissible or inadmissible is frequently one of the difficulty.’’ Margaret Rose and James Chalmers, Walker and Walker: The Law of Evidence in Scotland (Tottel, Edinbergh 2006). Ashworth and Redmayne noted that ‘’where the police have evidence against a suspect by unfair or illegally means, the courts face a difficult question: whether or not to admit the evidence…The issues involved here are complex…The exclusion on improperly obtained evidence is a difficult topic.’’ Andrew Ashworth and Mike Redmayne, The Criminal Process (3rd edn, Oxford University Press, Oxford 2005) 314, 332. Orfield noted in the Chicago law Review that ‘’the exclusionary rule is one of the most controversial and divisive issues in American constitutional law.’’ Myron Orfield, Jr., ‘’the Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers.’’ (1987) 54 University of Chicago Law Review 1026. Shanks also observed that ‘’few court-made rules have endured so much criticism or provoked so many attacks.’’ B.F. Shanks, ‘’The Comparative analysis of the Exclusionary Rule and Its Alternatives’’ (1983) 57 Tulane Law Review 648, 651. Finally, Damaska noted that ‘’despite intense scholarly efforts to provide clarity in this area, the precise scope of rules whose violation may lead to exclusion remains uncertain everywhere and highly controversial.’’ M.R. Damaska, Evidence Law Adrift (Yale University Press, New Haven 1997) 23 According to the outcome of this research, the writer submits that there are endless problems inherent in the two jurisdictions with regard to how evidence is admitted in criminal trials. However, the worrisome area is the conduct of police in evidence gathering. The writer will firmly argue that the police system will not seriously discipline their ‘colleagues’ who go beyond permissible limits in their eagerness to secure valuable evidence against recalcitrant colleagues. The Scarman report in respect of the Brixton riots of 1981 led to more demands for reform. The Scarman report, which described the event as “a widespread and dangerous lack of public confidence in the existing police complaints system…that “if public confidence in the complaints procedure is to be achieved any system falling short of independent investigation…is unlikely to be successful.’’ Scarman Report 1982, paragraph 5.43. This work still contends, in spite of criticisms, that the exclusionary rule reveals some fundamental tension between the social need for order and the citizen’s desire for privacy and liberty. The question one needs to ask is this: Is it possible for both ideologies (social needs and citizens’ desire for privacy), to be pursued together without compromise? In Lawrie v Muir Lord Justice Cooper submitted that ‘’the law must strive to reconcile two highly important interests which are liable to come into conflict: (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities. And (b) the interest of the State to secure that bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground.’’ Lawrie v Muir [1050] J.C. 19, 27. The fundamental question that has arisen from the above judgement is, how far can one balance the two conflicting interests? The dilemma here seems to be underpinned by the gravity of serious crimes, which may by definition, exceed the gravity of almost any illegal or irregular invasions of peoples’ liberties. In assessing the admissibility under Article 8 of ECHR, and how far it has provided protection of Human and Fundamental Rights, the English Parliament was under obligation to ensure that peoples’ privacy and right to family life was not compromised when assessing the overriding public interest. The Act places an obligation of the domestic law to act in accordance with rights protected by the Convention. Art 3, which guarantees freedom torture degrading and inhuman treatment, is relevant grounds for exclusion of evidence from confession. Article 6, the most highly litigated provision of the ECHR in the ECtHR, Paul Roberts, ‘’Does Article 6 of the European Convention on Human Rights Require Reasoned Verdits in Criminal Trials?’’ (2011) Human Rights Law Review 213, 214. offers sophisticated protections for the rights to fair trial. Many intrusive and covert intelligent methods employed by police authorities have violated suspects’ rights under Art 8, right to respect for private life. The decision Khan v UK discussed earlier in the chapter, however, raises two important but separate issues: first, does it really make a trial fair where evidence relied upon was obtained in flagrant breach of the human rights guaranteed by the Convention? The second issue is whether such evidence is, in any way, admissible. The writer argues that a person’s privacy against governmental intrusion cannot be negotiated and it is inseparable from the concept of fair trial. The writer further submits that some of the decisions of the Strasbourg are sometimes, couched in controversy. For example, since the adoption of Art 3, 6 and 8 respectively into the English law, which covers some of the most crucial areas of criminal procedure, bring into sharp focus the unending drama between order and liberty. 3.3 RECOMMENDATION The writer therefore, will recommend an inclusion of the ‘fruit of the poisonous tree doctrine’ into the English law jurisprudence for many reasons. The ‘fruit of the poisonous tree doctrine’ or derivative evidence principle have been rigorously applied under the exclusionary rule, not because it was intended to fill the gap in the rule of evidence, but as a form of judicial rebuke against violation of citizens’ rights. The doctrine gives the idea that wrongful conviction of defendants is intolerable where evidence derived from the tainted source is flawed by police misconduct. The derivative evidence under the exclusionary rule is symbolic of the due process model as judges will be more proactive in protecting rights violation rather than trying to discover the truth. This is necessary because, the police abuse of process can be checkmated by the increased powers of the courts. Instead of focusing on the real or factual guilt, the courts and the prosecutor should invest their energy into establishing legal guilt beyond reasonable doubt on the basis of properly obtained evidence. Confessions and derivative evidence obtained by improper means should be excluded because they infringe the fundamental rights of the accused, especially where they were obtained through police misconduct. It is not morally right to punish an accused for a breach of the law whilst at the same time condoning breaches by the police by admitting evidence obtained by those breaches. Justice Traynor stated in People v Cahanexpress that, ‘’it is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law.’’ People v Cahanexpress 282 P 2d 905 912 [1955] The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence. Under the exclusionary rule, a judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. Without the evidence, the prosecutor may lose the case or drop the charges for lack of proof. This rule provides some substantive protection against illegal search and seizure. In terms of derivative evidence, the writer submits that USA treats derivative evidence in a way that is consistent with the treatment of primary evidence. The English law does not seem to recognise derivative evidence. By not recognising derivative evidence, that would create a major gap in the English law jurisprudence. The question that arises therefore is how can the English courts overcome ‘tainted’ evidence derived from a tainted primary source? The consistency of approach between primary and secondary evidence does not mean that the derivative evidence should be excluded when primary evidence is excluded or that derivative evidence will always be admitted when primary evidence is admitted. Rather, consistency requires that the principles underpinning the exclusion be applied to derivative evidence in a way which upholds them, not undermines them. This means that the principles underpinning the exclusionary regime are applied uniformly. A model which strives for such consistency means there can be some predictability about the reasoning process to be applied under the exclusionary power. The ‘fruit of the poisonous tree’ is a due process doctrine that represents a human rights approach to the criminal process. This doctrine has a predominant goal of regulating the intrusion of government in individual rights and protection of the rights of the accused person, and ultimately safeguards the rights of the individual. The doctrine is based on the supremacy of the rights of the individual in relation to state, and emphasised protection of accused, from official oppression or state power. This doctrine is concerned with state power, the possibilities of abuse inherent in official power, the primacy of the individual, the protection of individual rights, the rights of the defendant, fairness to the defendant, and quality control. This fruit of the poisonous tree doctrine places high emphasis on quality and thoroughness. The idea underlying this doctrine is a desire to ‘’minimise mistakes in ascertaining guilt. Convicting those people who are totally innocent is totally unacceptable and should be avoided. This doctrine, however, will not be without challenges as it is considered as an ‘’obstacle course’’ Herbert Packer, The Limits of the Criminal Sanction (Stanford University Press, Stanford 1968) 163. in which barristers argue before the court that prosecution may be rejected because of the violation of the defendant’s rights. The doctrine sees criminal process as conforming to the rule of law…emphasising guilt over factual guilt. It is the writer’ possible steps should be employed to prevent abuses of state power. The model tries to prevent abuse of state power and as Blackstone stated, ‘’ [I]t is better that ten guilty persons escape, than one innocent suffer.’’ William Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford 1769) 352. BIBLIOGRAPHY EUROPEAN LEGISLATIONS European Convention on Human Rights (ECHR) Art 8 Anti-Terrorism, Crime and Security Act (ATCSA) 2001, s23 TABLE OF STATUTES/CONSTITUTIONS Human Rights Act 1998 s 4 Interception of Communications Act 1985 Police and Criminal Evidence Act, 1984, s 82(1 Regulation of Investigatory Powers Act 2000 The Constitution of the United States, 1787 Fourth Amendment The Independent Police Complaints Authority 2004 Police Act 1996 c (16) TABLE OF CASES Allan [2002] All ER (D) 38 Arizona v Fulminate 499 U S 931 955 [1988] A and Others v Secretary of State for the Home Department [2006] 2 AC 221; [2005] UKHL 71 Barker [1941] 2 KB 381 Bond v United States 529 U S 334 [2000] Boyd v United States 116 U S 616 [1886] Bram v United States 168 U S 532 [1897] Brown v Mississippi 297 U S 278 [1936] Callis v Gunn [1964] 1 Q B 495 p 501 Delaney [1988] CR App R 18 Entick v Carrington [1765] EWHC KB J98 Fox v Chief Constable of Gwent [1986] A.C. 281, at 292 Fulling [1987] 2 All ER 65 Goldenberg [1989] 88 Cr App R 285 Hopt v Utah 110 U S 574 [1884] Houghton and Franciosy [1979] 68 Cr. 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Rep. 489 (CD 1763) Wong Sun v United States 371 U S 471 [1963] LAW REPORTS The Criminal Law Review Committee, ‘’Eleventh Report, Evidence (General)’’ (CM4991 1972) [56] [68] BOOKS Ashworth, A. and Redmayne, M. The Criminal Process, 3rd edn (Oxford University Press: Oxford, 2005) Choo, A. Evidence (Oxford University Press: Oxford, 2006) 19–20 Damaska, M.R. Evidence Law Adrift (Yale University Press, New Haven 1997) Damaska, M.R. The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press, New haven 1991) Blackstone, W. Commentaries on the Laws of England (Clarendon Press, Oxford 1769) 352 Dixon, D. Law I Policing: Legal Regulation and Police Practices (Clarendon Press, Oxford 1997) 142 Dressler J, Understanding Criminal Procedure (3rd edn, 2002) Hall, J.W. Jr., Search and Seizure (2nd edn, Michie, Charlottesville 1991) 7 Margaret Rose and James Chalmers, Walker and Walker: The Law of Evidence in Scotland (Tottel, Edinbergh 2006). Mirfield P, Silence, Confession and Improperly Obtained Evidence (Clarendon Press: Oxford, 1997) Munday R, Evidence (7 edn, Oxford University Press 2013) Packer, H. The Limits of Criminal Sanction (Stanford University Press: Stanford, 1968) 149–73 Roberts P & Zuckerman A, Principles of Criminal Evidence (Oxford University Press, 2nd Edition 2010) Smith, M.H. The Writs of Assistance Case (University of California Press, Berkeley 1978) 344 Wigmore D J, Evidence (Little, Brown & Company, 2dn edn, 1995) Zuckerman A A, Principles of criminal Evidence (Oxford: Clarendon, 1989) JOURNALS/ARTICLES Amsterdam, A.G. 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