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The argument by Professor Ian Dennis that a decision may be factually correct and yet lack the moral justification usually served by a verdict is based on the existence of convictions reached despite apparent procedural irregularities in obtaining the evidence. Three major areas where this occurs are in the areas of confessions, illegally or improperly obtained evidence and silence of the accused as evidence. This represents a battle to maintain the crux of criminal law found in the presumption of innocence and the maxim, “It is better to let a hundred guilty men go free than hang one innocent man”. On the other hand, it may be thought that to exclude such improper evidence would, in some cases, result in injustice such as the acquittal of the guilty.
As a result, English law contains some compromises in some of these areas. This is in order to satisfy the two extreme views. Three cases are analyzed below in order to determine the truth or not of Professor Dennis’ argument.
Generally, confessions are admissible in evidence provided they are made voluntarily. However, judges may exercise discretion to exclude confessions obtained by improper or unfair means or in breach of the Judges’ Rules or on grounds that its prejudicial effect outweighed its probative value. These principles are also found in Section 76 of the Police and Criminal Evidence Act 1984 (PACE Act). Professor Dennis’ argument lacks support in the case of properly admitted confessions. In most cases, in order to maintain fairness and morality towards the accused, judges exclude confessions once it is shown that the rules were breached. His argument is upheld only where a confession is admitted and applied to ground a conviction despite being obtained in unfair circumstances. It would then appear that the usual practice does not support the argument above but the exceptional case illustrates the point of Professor Dennis’ statement.
In R v. Fulling, the appellant was convicted of obtaining property by deception. Her conviction was grounded on a confession which she claimed to have made under oppressive circumstances. While in custody the appellant was interviewed twice on the first day and once on the following day when she made a confession which she later claimed was the result of being told by an officer that her lover had been having an affair with the woman in the next cell for the last three years. She said that these revelations so distressed her that she could not stand being in the cells any longer and made a statement in the hope that she would be released. The appeal was dismissed on the ground that the confession was admissible since it was not oppressive (characterized by impropriety) under S. 76(2)(a) of the PACE Act or rendered unreliable under S. 76(2)(b). The degree of oppression and impropriety sufficient to exclude the confession was determined by the court to be absent.
The decision in this case was factually correct because earlier evidence given by a witness was corroborated by Fuller’s confession. However, if the moral justification for founding conviction were that the degree of impropriety was lower than required, then the verdict would be regarded as morally weak.
ILLEGALLY OR IMPROPERLY OBTAINED EVIDENCE – R V. SANG (1980) AC 402
The general position of the law is that evidence, which is relevant and otherwise admissible, should not be excluded only because of the manner in which it was obtained. The judge may exclude such evidence only as a matter of discretion. Therefore, the use of such evidence to found a conviction, although factually correct, can be seen as lacking in moral authority where improper means are alleged. This common law position has been influenced by Section 78 of the Police and Criminal Evidence Act 1984 which grants the court discretion to refuse to allow evidence which would have an adverse effect on the fairness of the proceedings because of the circumstances in which it was obtained.
In R v. Sang the appellant sought the exclusion of the evidence upon which the accused was later convicted because the accused had been induced to commit the offence by an agent provocateur. It was held on appeal that the court is not concerned with how the evidence was obtained provided it was relevant and admissible. The reasoning was based on Kuruma Son of Kaniu v. R  that remedies may be sought in civil law for illegality but the judge at trial is only concerned with how such unfairly obtained evidence is used by the prosecution and not how it was obtained.
This case strongly illustrates how moral legitimacy of a guilty verdict can be compromised where the court overlooks its power of discretion and the unfair circumstances in which the accused is found, choosing instead to apply the facts heedlessly.
The accused’ right to silence formerly entitled the accused not to have inferences drawn from his silence as evidence of his guilt. This right has been curtailed by Section 35 of the Criminal Justice and Public Order Act 1994 which provides in subsections (2) and (3) that inferences may be drawn from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. This position was upheld in the case of R v. Cowan & ors. although Cowan’s appeal was allowed only on the ground that such inference should not be the sole ground for conviction. Thus in this case the court rejected the argument that adverse inference under S. 35 should be restricted to exceptional cases where there is no innocent explanation for the silence. Consequently, the right to silence when exercised by the accused leaves him in danger of being convicted based on the inference drawn by the jury about his silence and other available circumstantial evidence. Innocent reasons or good reasons for silence outside those stipulated by the law are insufficient to protect an accused person. The accused must fit the exceptions in order to be excluded where the court has satisfied itself that other requirements have been met.
The use of this kind of evidence strongly supports Professor Dennis’ argument because the decision may be factually correct when other circumstantial evidence is added but the moral justification for finding a person guilty because of his silence is weak.
In conclusion, as Professor Dennis notes, apparently reliable evidence may need to be excluded altogether if it risks impairing the moral and expressive authority of the verdict. Trials may be fact-finding missions to ascertain the truth but public interest demands total legitimacy both in accuracy of facts and moral authority (based on respect in the procedure and treatment of the defendant). These rights are also recognized in the provisions of the European Convention on Human Rights and the Human Rights Act 1998 based on the maxim of fairness, “Justice must not only be done but must be seen to be done”.
- Heydon J. D. and Ockelton M., 1996. Evidence: Cases and Materials, 4th ed., Butterworths London
- Huxley P. and O’Connell M., 2004. Blackstone’s Statutes on Evidence, 8th ed., Oxford University Press London
- Keane A., 2006. The Modern Law of Evidence, 6th ed., Oxford University Press London
- The Common Law Library, 2005. Phipson on Evidence, Sweet & Maxwell London
- LexisNexis Butterworth, All England Reports http://lexisnexis.com/uk/
- Dennis I. H., 2002. The Law of Evidence, 2nd ed., Sweet & Maxwell London
 A strong illustration is the case of R v. Mushtaq (2005) 3 All ER 885 where the trial judge was held to have breached the defendant’s privilege when he misdirected the jury by stating that a confession had probative weight so long as they thought it was true even if it was obtained by oppression. The appeal was dismissed though because the defence never proved the oppression.
 This can also be seen in R v. Goldenberg (1988) 88 Cr App Rep 285, CA where the admission of a confession made in the hope of getting bail was found correct despite the accused person’s state of mind at the time. See also Heydon and Ockelton, 1996. Evidence: Cases and Materials. p.159
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