Illegally evidence Case Study Example | Topics and Well Written Essays - 2500 words

Illegally evidence - Case Study Example Within this framework consideration will be given of the factors that judges have taken into account when deciding whether or not to exclude such evidence. This will involve looking at policy issues in relation to the use of illegally obtained evidence in order to reach a conclusion as to whether in general terms the courts will opt to include or exclude such evidence. In reaching a decision as to the uniformity of the application of this discretion consideration will be given to whether changes that have occurred with regard to the rights of the suspect under the Criminal Justice and Public Order Act 1994 have impacted on the admissibility of such evidence. Although there have been many changes in the law with regard to the use of evidence that has been illegally obtained many judges still use the case of R v Sang [1980]1 as a yardstick by which to measure whether evidence such be excluded. In this case Lord Diplock commented that "(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means."(at p 437) In this case In this case the court following the comments made by Lord Diplock concluded that the judge would have no power to exclude the evidence on the basis that it had been obtained through the use of an agent provocateur2. In many ways the decision whether or not to exclude illegally obtained evidence seems to centre on fairness. Sang remains as an authority of the rules on the exclusion of evidence as was demonstrated in the case of R v Nadir [1993]3 where Lord Taylor CJ said that if a judge "considers evidence the Crown wish to lead would have an adverse effect on the fairness of the trial, he can exclude it under s 78 of the Police and Criminal Evidence Act 1984....He also has a general discretion to exclude evidence which was preserved by s.82(3) of the 1984 Act which would allow the judge to exclude evidence he considers more prejudicial than probative." In the later case of R v Khan [1994] 4 All ER 4264, Lord Taylor seemed to change his opinion of the use of Sang as an authority stating that "Since, on any view, the discretion conferred on the judge by s 78 is at least as wide as that identified in R v Sang it is only necessary to consider the question of the exercise of discretion under s 78 - which is what the judge did." In general terms although the judge has the discretion to be able to rule the evidence as inadmissible it is more common for the courts to allow the evidence to be adduced. Many judges are of the opinion that the effect of s78 does not make very much difference to the cases brought before the court as most judges seem to decide in favour of inclusion rather then exclusion of such evidence as was the case of R v Mason [1987]5 and in the subsequent case of R v Samuel [1988]6. Mason was later quashed on appeal when it was discovered that the only real evidence against the defendant was the confession and that this had been obtained by telling the defendant that his fingerprints had been found