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	Murdoch University Electronic Journal of Law

Suppressing the Truth: Judicial Exclusion of Illegally Obtained Evidence in the United States, Canada, England and Australia

Author:	Debra Osborn Murdoch University School of Law
Issue:	Volume 7, Number 4 (December 2000)

Contents

• Introduction
• The United States Exclusionary Rule
• The History of the Rule
• The Expansion of the Rule
• The Narrowing of the Application of the Exclusionary Rule
• Recent Legislative Attempts to Limit or Abolish the Rule
• Criticism of the United States Exclusionary Rule
• The Canadian Duty
• The Position at Common Law
• The Impact of Section 24(2) of the Charter of Rights and Freedoms
• Circumstances Favouring Exclusion
• Circumstances Favouring Inclusion
• Criticism of the Canadian Duty
• The English "Fairness" Discretion
• The Common Law Rule
• The Impact of the Police and Criminal Evidence Act 1984
• The Rationale for the Discretion
• Deterrence
• Reliability
• Protection
• Criticism of the English 'Fairness' Discretion
• The Australian Public Policy Discretion
• Criticism of the Australian 'Pubic Policy' Discretion
• Is Exclusion An Effective Remedy?
• The Costs of Excluding Illegally Obtained Evidence
• The Effectiveness of Excluding Illegally Obtained Evidence
• Does Exclusion Deter Police Misconduct?
• Does Exclusion Prevent Trial Unfairness?
• Does Exclusion Preserve Judicial Integrity and Repute?
• The Verdict
• Alternatives to Exclusion
• Existing Alternatives
• Disciplinary Measures
• Criminal Sanctions
• Civil Remedies
• Proposed Alternatives to Exclusion
• Statutory Liquidated Damages
• Civil Administrative Remedy
• Miscellaneous alternatives
• A Better Way
• The Author's Agency Model
• The Model in Practice
• Conclusion
• Bibliography
• Cases
• Statutes and Regulations
• Notes

Introduction

And judgement is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter.[1]

1. This paper will examine how the United States, Canadian, English and Australian criminal justice systems address the problem of illegally obtained evidence. It will show that to a greater or lesser extent, all systems permit illegally obtained but otherwise reliable evidence to be excluded at trial to further certain policy objectives particular to each jurisdiction. This paper will identify those policy objectives and evaluate how well each exclusionary practice has met its stated objectives. It will contend that in each case, the rationale underlying each rule, duty or discretion to exclude illegally obtained evidence has failed to deliver its promised benefits, and in at least one jurisdiction, the practice itself has led to a crisis of confidence in the criminal justice system. In light of this finding, a number of the suggested alternatives to exclusion will be examined and evaluated. Finally, the writer will propose a transnational solution to the problem of illegally obtained evidence which meets the policy objectives of each jurisdiction without sacrificing justice or suppressing the truth.

   The United States Exclusionary Rule

2. The United States of America is the birthplace of the 'Exclusionary Rule', an absolute rule of evidence which, with a few exceptions, forbids illegally obtained evidence from being admitted in a criminal trial. However the rule is not an independent entity existing for its own sake.[2] It exists solely as a means of enforcing the people's right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution.[3] While other means of enforcing the right have been suggested from time to time, the United States Supreme Court has decided (amidst strong dissent) that the exclusion of unconstitutionally seized evidence in subsequent criminal trials is the only effective means of enforcement.

   The History of the Rule

3. The Exclusionary Rule found its beginnings in Boyd v United States, a civil case which involved a defendant being forced to produce potentially self-incriminating business records.[4] The Court found that the defendant's Fifth Amendment right against self incrimination had been violated and held that the evidence should be excluded as a result of the constitutional violation.[5] However the rule only gained acceptance as a remedy for Fourth Amendment violations in 1914 in the landmark case of Weeks v United States[6] when the Court ruled that evidence seized as a result of an illegal search and seizure was inadmissible in federal criminal proceedings.[7] As Justice Day stated in his majority opinion,

   to sanction such proceedings [the illegal conduct by allowing use of the evidence] would be to affirm by judicial decision a manifest neglect, if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.[8]

4. Weeks thus read an exclusionary rule into the Fourth Amendment. The rationale for this result was expressed in terms of judicial integrity, although the decision also implies a deterrent purpose.[9] However, as it was also expressed in terms of the Federal Constitution, it did not extend the rule to the states. This was remedied by two later cases.

   The Expansion of the Rule

5. In 1949, Wolf v Colorado[10] extended the Fourth Amendment's right of privacy to the states via the due process clause of the Fourteenth Amendment and in 1961 Mapp v Ohio[11] found it 'logically and constitutionally necessary' that the exclusionary rule also apply to the states through the due process clause because it was an 'essential part of the right to privacy'.[12] In addition, the Court in Mapp extended the rationale beyond that of 'judicial integrity', by reasoning that the rule was an implicit constitutional privilege necessary for the deterrence of police misconduct.[13]

   Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and to the courts, that judicial integrity so necessary in the true administration of justice.[14]

6. The Exclusionary Rule was now the mandatory remedy for all Fourth Amendment violations throughout the United States.

   The Narrowing of the Application of the Exclusionary Rule

7. Mapp proved to be the zenith of the rule as by the mid 1970's the Court had redefined the purpose of the rule and in doing so laid the groundwork for a narrower application. Following an extensive analysis in U.S. v Calandra[15] the Court rejected the idea that the rule was a 'personal constitutional right of an accused', declaring it to be a 'judicially created remedy' aimed exclusively at deterring police misconduct.[16] Numerous cases have since confirmed Calandra in rejecting all doctrinal basis for the rule save that of police deterrence.[17]

8. A further limitation on the Exclusionary Rule came in 1984 in the decision of Nix v Williams.[18] In this case the Court found that an 'inevitable discovery' exception to the rule should apply in cases where the Court could be convinced that the evidence would have ultimately been discovered without the constitutional violation.[19] Although this exception made some inroads into the rule, it was the other significant case of 1984, United States v Leon[20] that had the greater impact. The Court in Leon found that police officers who carried out a search in reasonable reliance on a warrant later found to be defective due to a Magistrate's error, should not be denied the fruits of their search. The Court explained the deterrent purpose and rationale of the Fourth Amendment Exclusionary Rule as follows

9. The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to install in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.[21]

10. This became known as the 'good faith exception'[22] and was to be the first of several good faith exceptions that were to follow.[23] Later, further limitations were placed on the rule when it was excluded from operation in both probation hearings[24] and sentencing hearings. [25]

11. It is important to understand that the application of the Exclusionary Rule results in the mandatory exclusion of all tainted evidence, both real and confessional. In addition to this, any evidence, whether physical or verbal, which is directly or indirectly derived from an illegal search and seizure, is also excluded under the 'Fruit of the Poisonous Tree Doctrine'.[26] A trial judge has no discretion to admit evidence if it has been established that the search or confession that led to its discovery was illegal. If a trial judge fails to exclude such evidence, the admission will be overturned on appeal.[27]

    Recent Legislative Attempts to Limit or Abolish the Rule

12. On 8 February 1995 the House of Representatives passed the Exclusionary Rule Reform Act (H.R. 666). The Act created a statutory good faith exception to the Exclusionary Rule in addition to expanding the exception to certain federal searches without a warrant. In March 1995, the Senate introduced its own Violent Crime Control and Law Enforcement Improvement Act of 1995 which sought to eliminate the rule entirely and establish in its place, a civil tort remedy against the United States for use by those whose Fourth Amendment rights had been violated. By doing so it sought to solve one of the principal inadequacies of constitutional tort doctrine, the judgement-proof police officer.[28] Neither bill was passed by the other House.

    Criticism of the United States Exclusionary Rule

13. The drastic consequences of the Exclusionary Rule are obvious. The fact that excluded evidence would be likely to convince a jury beyond reasonable doubt of the defendant's guilt is not relevant to the issue of exclusion. As a result, harsh criticism has been leveled at the rule for as long as it has been in existence. In 1923, Dean Wigmore referred to the rule as 'misguided sentimentality'[29] saying

    ...it appears indifferent to the result of making justice inefficient, ... coddles the criminal classes of the population... and regards the zealous officer of the law as a greater danger to the community than the unpunished murderer or embezzler or panderer.[30]

14. Justice Cardozo criticized the rule as allowing "the criminal to go free because the constable has blundered".[31] More recent critics have called the rule 'a departure from common sense ... incomprehensible to the average citizen'[32] and 'a system less strongly committed to doing justice than to discouraging overreaching by the police'.[33] In March 1995, Professor Gangi of the Department of Government and Politics of St John's University told the Senate Judiciary Committee that the rule was

    ... a disgrace, which has not only failed to work the magic its proponents promised, but has eroded citizen confidence in the competency of government. And, in my opinion, it also has thoroughly undermined the nobility of the role once played by defence counsel.[34]

15. In summary, the general rule in the United States is that illegally obtained evidence is inadmissible in criminal proceedings. The rationale for exclusion is to discourage the investigative authorities from infringing upon the constitutional rights of its citizens, by denying them the fruits of their illegality. The fact that it is punitive in nature means that no consideration is given to the actual consequences of its application in any given case, although a growing number of exceptions have offered some relief from its harshness.

    The Canadian Duty

    The Position at Common Law

16. Until recently, the Canadian approach to dealing with illegally or unfairly obtained evidence was firmly 'inclusionary'. The leading case was R v Wray[35] where the Court held that a trial judge had no discretion to exclude evidence of substantial probative value because it was illegally or unfairly obtained. Any discretion to exclude admissible evidence was 'limited to evidence gravely prejudicial to the accused, the admission of which is tenuous and whose probative force in relation to the main issue before the court is trifling.' [36] Consequently, illegally or unfairly obtained evidence could only be excluded when its prejudicial effect outweighed its probative value or where it was either irrelevant or unreliable.[37]

17. However, the position changed significantly following the adoption by Canada of its Charter of Rights and Freedoms in 1982.[38] This is because the Charter did not follow the narrow view expressed by the majority in R v Wray, but instead adopted the wide view of judicial discretion favoured by the minority.

    The Impact of Section 24(2) of the Charter of Rights and Freedoms

18. The principal section dealing with illegally obtained evidence is s24 (2) which provides:

    If a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

19. The Charter rights which are most relevant to the gathering of evidence are s8 (unreasonable search and seizure), s9 (right not to be arbitrarily detained or imprisoned) and s10 (right to counsel) and it is for breaches of these rights that most applications to exclude evidence are brought.

20. The case which has interpreted s24 (2) and been most influential in developing the modern Canadian rule for dealing with illegally obtained evidence is the 1987 Supreme Court decision of R v Collins.[39] In Collins, Lamer J established the test for determining whether the admission of evidence obtained in violation of a Charter right would tend to 'bring the administration of justice into disrepute' by identifying the necessary policy considerations. Later in R v Jacoy[40] Dickson CJ assisted by grouping them into three categories: (1) those affecting the fairness of the trial;[41] (2) those relating to the seriousness of the violation;[42] and (3) those relating to the effect on the reputation of the administration of justice of excluding the evidence. [43]

21. The purpose of the Collins test was to oblige law enforcement authorities to respect the exigencies of the Charter and to preclude improperly obtained evidence from admission at trial when it impinges upon the fairness of the trial.[44] This suggests that Canada has sought to chart a middle ground between the United States Exclusionary Rule which generally excludes all evidence obtained in violation of the Bill of Rights, and the Canadian common law rule that all relevant evidence is admissible regardless of the means by which it is obtained.[45]

22. While misconduct of the police in the investigatory process often has some effect on the repute of the administration of justice, s24 (2) is not a remedy for police misconduct unless by that misconduct the administration of justice has been brought into disrepute so that to admit the tainted evidence would bring it into further disrepute.[46]

    Circumstances Favouring Exclusion

23. Since Collins, subsequent cases have decided that:
    (a) the reliability of the illegally obtained evidence will not save it from exclusion;[47]
    (b) all evidence (real and confessional) obtained as part of the 'chain of events' involving the Charter breach will fall within the scope of s24 (2);[48]
    (c) the seriousness of the crime does not militate in favour of including the unconstitutionally obtained evidence,[49]
    (d) bad faith[50] on the part of the police may strengthen the case for exclusion because it may show a blatant disregard for the Charter;[51] and
    (e) the admission of self-incriminatory derivative evidence will generally affect the fairness of the trial and thereby bring the administration of justice into disrepute.[52]

    Circumstances Favouring Inclusion

24. Since Collins, the Court has also established that good faith[53] on the part of the police officer may lessen the impact of what would otherwise be regarded as a serious violation. [54] However good faith cannot reduce the seriousness of the violation if admission of evidence will lead to unfairness.[55] Other instances where evidence was admitted on the basis that its admission would not bring the administration of justice into disrepute include
    (a) where evidence was seized in reliance on a search warrant containing typographical errors;[56]
    (b) where customs officers acted in accordance with existing statutory requirements;[57] and
    (c) where real evidence would have been found without relying on the illegal search or the compelled assistance of the accused.[58]

    Criticism of the Canadian Duty

25. One of the more vocal critics of the post-Charter move towards a more exclusionary rule of illegally obtained evidence can be found on the bench of the Canadian Supreme Court itself. In the 13 years since Collins, Justice L'Heureux-Dub, has been in frequent dissent in many of the decisions involving the exclusion of illegally obtained evidence, particularly in cases involving reliable real evidence necessary to establish the guilt of persons accused of serious crimes. [59] She also differs from her colleagues on the bench by her insistence that what may 'bring the administration of justice into disrepute' must be viewed from a community rather than a judicial perspective.[60] She charges the Supreme Court with 'fashioning what has proved, in at least a wide spectrum of cases, to be an extremely aggressive exclusionary remedy' in direct opposition to the original intent of the framers of the Charter who were attempting to fashion 'a cautious exclusionary rule where evidence would be refused only in relatively extreme cases'.[61]

26. In R v Burlingham, Justice L'Heureux-Dub, argued that what begun as 'fairness of the hearing' in Collins has been so expanded by the Court in subsequent decisions as to now:

    take the definition of 'trial unfairness' even one step further than ever before, moreover, by concluding as a matter of law that the 'fairness of the trial' is adversely affected as a result of a 'proximate connection' between the impugned evidence and the s.10(b) Charter violation.[62]

    Each time the terminology has changed, it has expanded the scope of the first branch of the Collins analysis, and thereby increased the likelihood that virtually absolute exclusionary consequences will follow from a s. 24(2) analysis.

27. Justice L'Heureux-Dube's concerns appear to be justified, as a systematic reading of post-Charter criminal cases involving illegally obtained evidence does reveal a consistent advance towards an exclusionary rule not unlike the United States rule in its application if not its rationale.

28. In summary, illegally obtained evidence is prima facie admissible in Canada, but trial judges have a duty[63] to exclude evidence that would[64] bring the administration of justice into disrepute based upon the criteria set down by Lamer J in Collins. However, as long as they apply the test reasonably, the Supreme Court has decreed that appellant courts should not disturb their findings.[65]

29. Case law following the enactment of the Canadian Charter identifies trial fairness, deterrence of police misconduct and judicial integrity as the policy objectives behind the Canadian duty of exclusion. But, while the Courts attach great weight to the degree of flagrancy of the relevant violation, they seem to have settled on 'fairness of the trial' or perhaps more accurately, 'fairness to the accused' as the determinative rationale against which all other considerations should be measured. In theory, the Canadian 'fairness' rationale is comparable to the English statutory discretion to exclude illegally obtained evidence that 'adversely impacts upon the fairness of the proceedings'. However as a consequence of vastly different interpretations of what 'fairness' requires of the court, the two countries remain at a significant distance in their application of the law, though an analysis of the English system will show a recent shift towards the Canadian interpretation.

    The English "Fairness" Discretion

    The Common Law Rule

30. Historically, the English position on illegally obtained evidence was the antithesis of the American position. Rather than adopting an exclusionary rule, England followed an inclusionary practice whereby relevant and reliable evidence was admissible, regardless of its source. The most frequently quoted authority was the 1861 decision of R v Leatham where Crompton J said 'it matters not how you get it, if you steal it even, it would be admissible in evidence'.[66] Later cases confirmed this stance[67] but also qualified it by explaining that a trial judge still had a discretion to exclude evidence in a criminal case, if to admit it would result in unfairness to the accused.[68] As long as the judge exercised the discretion in accordance with the Wednesbury[69] standard of reasonableness,[70] the decision would not be overruled.[71]

31. Accordingly, the common law treated illegally obtained evidence as admissible, if it was relevant and reliable and if its admission would not operate against the accused in such a way as to render the trial unfair. [72]

    The Impact of the Police and Criminal Evidence Act 1984

32. On 1 January 1986, the Police and Criminal Evidence Act 1984 ("PACE") came into force and modified the common law rule. Section 78 of PACE read as follows:

33. (a) In any proceedings the court may refuse to allow evidence on which the prosecution proposed to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances 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 to admit it.

    (b) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

    At first glance, the section appears to simply codify the common law, and certainly one of the first cases involving the section took this view.[73]

34. Subsequent decisions however have indicated that this is no longer the correct approach to the section, preferring that it be interpreted within its own terms, unfettered by the common law.[74] Unfortunately, the court has been unwilling to set down any strict guidelines for the interpretation of the section on the basis that 'circumstances vary infinitely'[75] and so we are left to analyse the case law in order to predict in what circumstances the discretion may arise.

35. Early cases where the court excluded evidence under section [78] invariably involved impugned confessions, which arguably would have been excluded at common law in any event, on account of their inherent unreliability.[76]

36. Cases involving real evidence were almost always decided against the accused.[77] The likely explanation for this is that real evidence was seen to be extremely reliable and to exist independently of any police misconduct, making it difficult to demonstrate how its admission could possibly operate unfairly against the accused.78 The only circumstances in which the court seemed prepared to consider excluding real evidence was when it was of a conscriptive nature. Such evidence required a conscious effort on the part of the accused to create it and unlike other real evidence, it did not exist independently of the impropriety preceding its acquisition.[79] Breathalyser tests had been excluded on this basis in several early section 78 cases,[80] but it was not until 1995 when the court excluded DNA evidence in a rape trial that the discretion was used to exclude real evidence in a case involving a serious crime. In R v Nathaniel[81] the accused had given a blood sample four years earlier when being investigated for two other rapes. The police had told him that the sample would be destroyed if he was found not guilty of those crimes. When due to an administrative error it was not, and was later used to convict him of a third unrelated rape, the Court of Appeal excluded the evidence.[82]

37. Since Nathaniel, English courts have continued to exclude DNA evidence retained in breach of s 64 (3B) of PACE in subsequent rapes cases and in at least one murder case. In the case of Regina v Weir [83] which was heard by the Court of Appeal, the appellant was convicted of a particularly brutal murder on what Lord Justice Swinton Thomas described as 'compelling DNA evidence'. Despite this, the Court of Appeal felt compelled to quash the conviction on account of the procedural breach of s64 (3B) of PACE. Recently however, the House of Lords was called to give its opinion on the Court of Appeal's concurrence with a trial judge's direction to a jury to return a not guilty verdict in a rape case following his exclusion of DNA evidence obtained in breach of s64(3B) of PACE. The Lords disagreed with the exclusionary position taken by the Court of Appeal in both the rape case and Weir saying

38. It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.[84]

39. Although the evidence in each of the cases cited was real and unquestionably reliable, it is arguable that its retention could be said to have involved a breach of an accused's right against self-incrimination.[85] While this may indeed be cold comfort to the victims, if the verdicts can be rationalised at all, it is on this basis.[86] For this reason, the view expressed by the House of Lords is to be welcomed, particularly given the recent willingness of the lower courts to depart from the historically inclusionary position of the common law. However, despite this shift, the English courts have yet to come close to emulating their American or Canadian counterparts who are much more likely to suppress highly probative illegally obtained evidence, even when it means clearly guilty persons will go free.

    The Rationale for the Discretion

40. There is no doubt that English judges are more reluctant than most to exclude reliable physical evidence which has been illegally obtained. R v Sang is still good law in England and if section 78 of PACE has widened the discretion, it has done so by placing it in a context. The court must have regard to all of the circumstances, including the means by which the evidence was obtained, but the factor which tips the scales in favour of excluding the evidence is when its admission is likely to adversely impact upon the fairness of the trial.[87]

41. If unfairness is not an issue, the discretion does not arise. In this respect, the discretion afforded English judges is not unlike that of Canadian judges under the Canadian Charter of Rights and Freedoms. While the English discretion is coaxed in terms of 'fairness of the proceedings', and the Canadian in terms of 'the impact of admission on the administration of justice', in applying the law, Canadian judges treat fairness to the accused as paramount. However it is in their respective interpretations of what 'fairness' demands of the court when it is confronted with illegally obtained but reliable real evidence, that the two judiciaries part company.[88]

42. In light of recent post PACE decisions, 'fairness' in the English context has become an elusive concept,[89] 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 gap 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'. [90]

43. If Professor Stone is correct, and the standard of fair play demanded on the cricket field has become the yardstick of fairness in the courtroom, then the English courts have taken the concept of fairness too far, not least of all because as Marshall J pointed out in R v Maqsud Ali, 'the criminal does not act according to Queensbury rules.'[91] And in any event, even if a game analogy was appropriate, a criminal trial is hardly 'fair' to the prosecution. They must take to what is a very uneven playing field not only bearing both the evidential and persuasive burdens of proof, but also ignorant of the opposing team's game plan, while having been required to reveal their own well before the match. Many years ago a famous judge on the other side of the Atlantic warned

    Under our criminal procedure the accused has every advantage. Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime. [92]

44. Equating a criminal trial to a sporting match which has no 'correct' outcome and only an 'actual' one, demeans the court process and necessitates forsaking the central purpose of the trial - the just determination of guilt or innocence.

45. Andrew Choo has suggested three possible rationales behind exclusion of illegally obtained evidence on the grounds of unfairness - deterrence, compensation and repute.[93] A.A. Zuckerman preferred to separate them into three theories, the deterrent theory, the remedial or vindication theory and the legitimacy theory.[94] Others such as Andrew Ashworth[95] and Mary Hunter[96] have identified rationales of discipline, reliability and protection. 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 includes compensation of the victim and broader considerations of judicial integrity).[97]

    Deterrence

46. It is true that the English courts have constantly stated that the section 78 discretion should not be exercised in order to penalise or discipline the police.[98] Yet there is authority for the proposition that a deliberate breach of procedures laid down in an official code of practice may result in the proceedings becoming unfair thereby requiring the evidence to be excluded.[99]

47. So, while English judges have no discretion to exclude reliable evidence simply because it was illegally obtained, they have shown a willingness to exclude it in the interests of fairness in cases where it was obtained by the police in bad faith.[100] In light of this, Lord Diplock's assertion in R v Sang, that

    apart from Payne[101] the appellate courts had never come across a case in which conduct of the police was so unfair, so tricky and so oppressive, as to justify those courts holding that the discretion ought to have been exercised in favour of exclusion.[102]

48. This no longer holds true. Mary Hunter claims that a search of LEXIS reveals that between January 1986 and May 1992, there were 106 such cases,[103] giving credence to the claim that PACE has indeed widened the scope of the common law discretion. However as early as 1989, Bernard Robertson was warning that section 78 had created a virtual 'looking-glass world' of 'bizarre' decisions where judges ignored the wording and intent of the section. [104] Instead they excluded all types of evidence, (most predominantly confessional which should be excluded under section 76), on grounds which had nothing at all to do with the fairness of the proceedings. If this is true and section 78 is being used as an umbrella section for discretions that are found elsewhere in the Act or at common law, it goes some way to explaining the large numbers of section 78 actions, even if it does not adequately explain the dramatic increase in judicial willingness to entertain them. In summary, while police misconduct, particularly in circumstances of bad faith may trigger the discretion, the discretion itself is not intended to be a means of deterring police misconduct as is the United States Exclusionary Rule.

    Reliability

49. R v Sang made it clear that under the common law it is fair to admit illegally obtained evidence, provided it is reliable, and the majority of cases involving section 78 have generally maintained this position. This is because the English Courts recognise that exclusion rather than admission of highly probative illegally obtained evidence is more likely to render the proceedings unfair, given that 'fairness of the proceedings involves a consideration not only of fairness to the accused, but also of fairness to the public.'[105]

50. It is when evidence is obtained in such a manner as to cast doubt on its reliability that it is most likely to be excluded. This includes confessions induced by violence or threats of violence, and real evidence the probative value of which is outweighed by its prejudicial effect. Although both types of evidence are regularly excluded by the court under the section 78 discretion, the first should have been excluded under section 76 of PACE,[106] and the second under the judge's general common law discretion to exclude evidence. The only anomaly in the reliability rationale is the willingness of the court to exclude real evidence obtained with the compelled assistance of the accused.[107] In such cases, the reliability of the evidence will not save it from exclusion.

    Protection

51. While the American courts exclude illegally obtained evidence as a means of deterring police misconduct, they also deliver a windfall to the accused, often in the form of an unsafe 'not guilty' verdict. But with the exception of cases involving the utmost bad faith on the part of the police (and usually involving some sort of conscription), the English courts have declined to compensate the accused in this manner, preferring that aggrieved persons seek redress by other means.[108]

52. The House of Lords made this clear when it held in R v Khan that if the behaviour of the police amounts to a breach of some relevant law or convention,[109]

    common sense dictates that this is simply a consideration which may be taken into account for what it is worth. However only those human rights violations which impinge on the accused's right to a fair trial are relevant to the exercise of the statutory discretion to exclude evidence.[110]

    This is because English judges believe that their primary role is to determine the guilt or innocence of the accused and that they should not abrogate this in pursuit of broader public policy objectives which conflict with their primary duty.[111]

53. This corresponds with the view of the Home Secretary who, following rejection by the House of a clause proposing a wider exclusionary rule, proposed the amendment which eventually became section 78 saying '[under section 78] evidence will not be excluded purely for some reason lying outside the question of the guilt or innocent of the accused'.[112]

54. There is also another explanation for the English reluctance to give pre-eminence to broad public policy objectives aimed primarily at upholding the rights of the individual. Unlike the American system which holds the rights of the individual paramount, the English justice system places the greater good of society above an individual's rights,[113] believing that society can best be served when trial judges or juries return verdicts consistent with all the evidence. When confronted with reliable evidence gained illegally, they usually prefer to admit the evidence, leaving the accused to pursue compensation by other available means. These include filing a complaint with the Police Complaints Authority or suing the individual officer or his or her chief officer in tort.[114]

    Criticism of the English 'Fairness' Discretion

55. Critics of the English discretion claim that although recognised in theory, in practice the fundamental values of upholding and protecting human rights during criminal investigations are lost in a discretionary framework 'heavily weighted towards the interests of crime control'.[115] Zuckerman describes it as having 'a proclivity towards announcing a healthy principle, while at the same time, proceeding to disregard it under a camouflage of legal niceties'.[116]

56. Others have criticised the mechanism of the Police Complaints Authority saying that its purpose is only to discipline police officers not to compensate the victims of unreasonable searches.[117] However this criticism fails to recognise that England has a 'long and rich history' of tort actions against police officers[118] and so affected persons have a means available to obtain compensation in the appropriate circumstances.[119]

57. In summing up the English position on illegally obtained evidence, certain conclusions can be reached. First, English judges have a discretion to exclude illegally obtained evidence but only when to admit it would cause the trial to become unfair. Second, as trial fairness is unlikely to be compromised by the method by which real evidence is obtained, English case law does distinguish between illegally obtained real and confessional evidence, with real evidence rarely being excluded under either the common law or statutory discretions. Third, when real evidence has been excluded, in the vast majority of cases it is linked to either a breach of a suspect's right against self incrimination or it occurs in circumstances of gross and deliberate police misconduct. Fourth, a trial judge who exercises the discretion will only be overruled if he or she fails to satisfy the Wednesbury standard of reasonableness. Fifth, although the rationale behind the fairness discretion is not easy to identify, case law suggests that reliability plays the largest role, with deterrence also being a factor even though the court has been unwilling to publicly concede it a place. Lastly, English judges appear to place a high value on truth, choosing to see themselves as determiners of guilt or innocence rather than as supervisors of police procedural integrity or guardians of the civil or human rights of individuals.

    The Australian Public Policy Discretion

58. Neither the Exclusionary Rule of the United States, nor the 'fairness' centred Canadian or English doctrines is the law of Australia. In Australia, the various public policy objectives of the other justice systems collectively underlay the discretion to exclude illegally obtained evidence. In Bunning v Cross[120] the Australian High Court ruled that trial judges have a discretion to reject illegally or unfairly obtained evidence after considering these competing public policy requirements and weighing them against each other.[121] In doing so, the majority affirmed that the statement of Barwick CJ in R v Ireland represented the law of Australia[122]

59. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[123]

60. Stephen and Aickin JJ went on to specifically deny that fairness to the accused was the aim of the discretion, rather it was

    to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law.

61. Their Honours then set out factors that are relevant to the exercise of the discretion. [124] These include:
    (a) the seriousness of the offence;
    (b) the cogency of the evidence;
    (c) the nature of the criminality,
    (d) the ease with which the evidence could have been obtained legally; and
    (e) whether an examination of the legislation indicates a deliberate intent on the part of the legislature to circumscribe the power of the police in the interests of the public.

62. Trial judges in Australia have the discretion to weigh up the merits of each case without fear of being overturned on appeal unless they fail to consider the relevant criteria in exercising the discretion.[125] They are able to give consideration to competing public policy objectives in light of the facts of individual cases and reach a decision on those facts. The Bunning v Cross discretion applies to confessional evidence[126] as well as evidence procured in consequence of illegal searches and unlawful acts.

63. There is also a statutory discretion to exclude illegally or improperly obtained evidence in the Commonwealth, the Australian Capital Territory, New South Wales and Victoria.[127] However the Commonwealth and NSW Acts also contain a codified public policy discretion designed to presumptively exclude evidence obtained illegally or improperly unless the desirability of admitting it outweighs the undesirability of not admitting it. A list of non-exclusive factors to be taken into account is included which incorporate those set out in Bunning v Cross. This is a clear departure from the common law position in that both Acts place the burden of justifying admitting illegally or improperly obtained evidence on the prosecution in a way which moves those jurisdictions uncomfortably close to a prima facie exclusionary rule.[128] The Evidence Acts of the other states including Western Australia have no equivalent provision.

    Criticism of the Australian 'Pubic Policy' Discretion

64. Although its discretionary model by its very nature is superior to the exclusionary models of the United States and Canada, like all three models, it too is fundamentally flawed. In common with the others, it also treats the causal connection between the crime under investigation and the illegal investigatory act as justification in some cases for excluding tainted but otherwise reliable evidence. Although it is the most flexible of the four, nevertheless the Australian model endorses the illogical principle that somehow society must (and can) make amends for the conduct of the errant police officer by deliberately ignoring the guilt of the accused. Unfortunately, this operates to absolve both the accused and the police officer from the consequences of their illegal acts and amounts to a denial of justice in both cases.

    Is Exclusion An Effective Remedy?

65. So far, this analysis has revealed that all four jurisdictions exclude illegally obtained evidence in some circumstances, in order to meet one or more public policy objectives. Therefore, before a verdict can be entered on whether exclusion is a justifiable cure for the problem of illegally obtained evidence, it is necessary to make two preliminary determinations. First, it is important to ascertain the social and economic costs of exclusion and second, it is important to determine whether exclusion actually achieves all or any of these policy objectives.

    The Costs of Excluding Illegally Obtained Evidence

66. There have been many empirical studies conducted concerning the cost and/or effectiveness of the United States Exclusionary Rule. Fourteen of the major ones have recently been analysed by Timothy Perrin and others at Pepperdine University in California.[129] As well as analysing past studies, the Pepperdine academics conducted their own extensive empirical study of the rule by surveying over 450 officers from six law enforcement agencies in Ventura Country California in 1997.[130] The Pepperdine study found the costs of the rule to include
    (a) lost prosecutions and convictions and forced plea bargains;[131]
    (b) a loss of judicial integrity as judges strain the law to avoid excluding evidence;[132]
    (c) an increase in the monetary cost of criminal prosecutions;[133]
    (d) a loss of police officer integrity;[134] and
    (e) an increased rate of recidivism.[135]

67. In addition to these, a 1999 study on the effects of Mapp v Ohio revealed a significant and sustained increase in the crime rate.[136] Judge Kane, Senior District Judge of the United States Court of Appeals Tenth Circuit summed up the costs of exclusion succinctly in the case of United States v Cusumano; United States v Porco[137] when he said

    The Exclusionary Rule has harmful effects on society. Guilty defendants are freed, the truth finding process is distorted, aberrant results subject the courts to public scorn and ridicule, the focus of the trial shifts from guilt or innocence to procedural niceties, court costs increase through delay and perjury becomes tempting to the very people supposed to be examples of the law and order.

68. According to Professor William Gangi, what has resulted has been a crisis of public confidence in the American criminal justice system.

    I see Americans growing increasingly cynical about our criminal justice system, making derogatory references to 'technicalities' or to criminals having more rights than their victims. And we have to ask ourselves, why?[138]

69. In the light of the evidence elicited by the studies, there is little point in denying that the judicial exclusion of illegally obtained evidence exacts a high price in terms of social and economic costs in the United States. While its actual cost in terms of number of lost prosecutions or convictions etc may be less in the other jurisdictions which do not follow a strict exclusionary rule, other important social costs exacted by exclusion are common to all jurisdictions. However, cost itself is not determinative if it can be shown that excluding evidence achieves other goals judged to be worthier or more important than the search for truth and the just determination of guilt or innocence. Leaving aside whether any policy objective could ever be worthier or more important, the next step is to discover whether excluding evidence actually achieves those desired policy objectives. Does excluding illegally obtained evidence actually deter police misconduct, prevent unfairness at trial or preserve judicial integrity and repute?

    The Effectiveness of Excluding Illegally Obtained Evidence

70. Proponents of the United States Exclusionary Rule argue that it keeps lawmen honest and that it is the best way to protect the public from police abuses,[139] while its opponents argue that it lets criminals go free, punishing society rather than the officers.[140] Chief Justice Burger of the United States Supreme Court called it 'a costly, inflexible remedy which sacrifices important social values for little affirmative gain'.[141] While the cost of exclusion is acknowledged to some extent by commentators on both sides of the fence, there is still no consensus about its effectiveness.[142]

71. However given that the rationale underlying the exclusion of illegally obtained evidence is not singular, it is necessary to judge its effectiveness by examining how well it achieves its objectives of police deterrence, trial fairness and judicial integrity or repute.

    Does Exclusion Deter Police Misconduct?

72. Deterring police misconduct is the sole rationale of the United States Exclusionary Rule[143] and a significant, if underacknowledged component of the discretionary rules in Canada, England and Australia, yet there is almost no evidence that it is effective.[144] In fact since Mapp, the prevalence of suppression hearings suggests that illegal searches have increased rather than decreased.[145]

73. After gathering information direct from over 450 officers, the Pepperdine study found among the participants 'a widespread inability to apply the law of search and seizure or police interrogation'.[146] In fact police officers who had prior violations of the law actually performed worse than the officers who had never had their evidence excluded.[147]

74. The other matter of concern was that Mapp has led to an increase in 'preventative patrols' where officers deliberately engaged in illegal searches and seizures in order to confiscate dangerous weapons and drugs.[148] The Pepperdine academics concluded

    Our study confirms what previous studies revealed: the Exclusionary Rule does not effectively deter police misconduct. Indeed, in the area of police deception, it has fostered misconduct. This troubling conclusion, coupled with the exceedingly high costs of the rule, mandate a search for a workable solution.[149]

75. A further study conducted from a law and economics perspective in 1999 by Professor Evan Osborne of Wright State University[150] reached a similar conclusion finding that 'the rule is questionable, not just because of any costs associated with lost convictions but because it does not sufficiently deter law-enforcement violations'.[151]

76. Why then does the United States cling to the rule with such tenacity? Perhaps the answer can be found not in the rule's ability to effectively deter police misconduct, which it clearly doesn't, but in its punitive nature. When the police conduct search and seizures without judicial approval they usurp the power of the judiciary. By refusing to admit the fruits of the search and seizure at trial, the judiciary finds its means of retaliation. Timothy Lynch calls withholding such 'aid', 'a measured response to executive branch encroachment'.[152] If this is truly the reason for the retention of the rule, then truth is indeed the first casualty of war.

    Does Exclusion Prevent Trial Unfairness?

77. Trial fairness is the rationale of the English discretion to exclude illegally obtained evidence and is also one of the three considerations relevant to the Canadian judicial integrity and repute rationale. 'Fairness' in both jurisdictions has been interpreted along similar lines and equates to a concept of 'fair play'. Under both rationales, real evidence is usually not excluded unless it is of a 'conscriptive' nature although in Canada it may also be excluded if it involves a serious violation of the accused's civil rights. In these cases, it is excluded on the grounds that its admission would render the trial unfair.[153]

78. This means that a voluntary confession obtained during an unlawful detention, real evidence discovered as a result of that confession or real evidence taken from the accused without his or her lawful consent may all be excluded on the grounds of unfairness. This reasoning is flawed because it assumes that if evidence is obtained unfairly, it follows that its admission at trial is also unfair.[154] This is consistent with an interpretation of fairness as 'fair play' but wholly inconsistent with the concept of a 'fair' or 'just' trial. In R v Sang, Viscount Dilhorne observed

    Evidence may be obtained unfairly ... but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it.[155]

79. If the purpose of a criminal trial is to determine the guilt or innocence of the accused, then unfairness will only arise if the court is in danger of being misled by the admission of unreliable or overly prejudicial evidence. It cannot arise purely as a result of procedural misconduct at the pre-trial stage, unless by that misconduct the evidence itself is unreliable. To exclude reliable and probative evidence itself renders a trial unfair as the law cannot be justly administered if evidence relevant to the facts in dispute is deliberately withheld from the jury.[156]

80. Fairness then, in a legal sense should equate to 'justice' and its interpretation as 'fair play' denigrates the entire judicial process. It is an unfortunate side effect of the adversarial system, which has turned the criminal trial into what one judge calls 'an arena of competition between the prosecution and the defence rather than a search for truth'.[157] Excluding illegally obtained evidence in the interests of 'fair play' does not advance the cause of trial fairness but rather distorts the truth and impedes the administration of justice.

    Does Exclusion Preserve Judicial Integrity and Repute?

81. In Canada, judges have a duty to exclude evidence if having regard to all the circumstances, its admission could bring the administration of justice into disrepute. In Australia, the principal rationale for exclusion is the preservation of public confidence in the executive and judiciary. Judges in both countries must decide whether to admit the unlawfully gained evidence and risk being seen as accomplices to the act, or exclude the evidence and risk allowing a guilty person to go free. Both actions have the potential to negatively impact upon the reputation of the court and the administration of justice and so the exercise calls for a weighing of public policy interests.[158]

82. Therefore, when judges do exclude illegally obtained evidence under this rationale, they do so in the belief that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion. However, it is only when the community concurs with their decision that the reputation of the justice system is truly preserved. If it does not, then the exclusion actually brings the administration of justice into further disrepute. Justice L'Heureux-Dub, of the Canadian Supreme Court recognised this when she warned that the court needed to undertake a 'periodic reality check' to ensure that it exercises its discretion to exclude evidence under s 24(2) of the Charter in conformity with 'long-term community values'.[159]

83. That the courts have failed to do this has been made abundantly clear by the public outcries following some of the more recent decisions where evidence was excluded and the accused subsequently released.[160] The late New York State Supreme Court Justice Harold J Rothwax put it this way.

    Citizens are rightfully shocked when they see the courts acting in seemingly arbitrary and unfair ways. They don't understand how credible evidence can be withheld from a jury, and they are shocked when admitted criminals are released back into society.[161]

84. This has resulted in what Steven Wagner of Luntz Research, a Republican polling firm calls

    a widespread feeling that the criminal justice system has broken down and that the breakdown is the most visible symbol of the declining moral character of American society.[162]

85. Perhaps of all the rationales used to justify exclusion, the judicial integrity/repute rationale is the most misguided. It relies on public support to justify its existence yet that support is almost non-existent outside the legal profession.[163] As United States Solicitor-General Lee said 'for the overwhelming majority of people in America, the thief, the rapist, and the kidnapper pose a significantly greater threat than the policeman and the jailor'.[164] There is no reason to believe that the people of Canada, England and Australia feel any differently.

    The Verdict

86. The above analysis leads to four conclusions. Firstly, excluding illegally obtained evidence does not deter police misconduct and may in fact increase misconduct. Secondly, admitting reliable and probative evidence, irrespective of the unfairness of the method used to gather it, does not itself make the trial unfair. Thirdly, excluding rather than admitting reliable illegally obtained evidence is more likely to bring the administration into disrepute if viewed from a community perspective. Fourthly, given the high social cost of exclusion and its inability to justify its existence by effectively achieving any of its stated policy objectives, the exclusionary rule in all its forms should be abandoned and a viable alternative found.

    Alternatives to Exclusion

    Existing Alternatives

87. Various alternatives to exclusion have been proposed for as long as exclusionary practices have been in existence, the most frequently mentioned being disciplinary, criminal or civil tort proceedings against the police officers, prosecutors, or relevant state or federal governments. Law and Economics Professor Osborne argues that the missing link in exclusionary rule jurisprudence has always been the relation between the expulsion of illegally obtained evidence and law-enforcement incentives. He concludes that unless erring officers are forced to 'internalise the social costs of improper conduct' by either suffering a reduction in compensation for poor performance or an increase in compensation for efficient effort, they have no incentive to obey the rules.[165]

88. This paper will not attempt to analyse each alternative remedy in depth but will simply describe its present operation and discuss its potential as an alternative to exclusion.

    Disciplinary Measures

89. Police forces in all four jurisdictions have internal affairs departments to which complaints of police conduct can be made. In addition to this, some counties in the United States have set up independent police review boards who have the power to dismiss or suspend offending officers or require them to take further training to prevent future violations.[166]

90. Similarly, in England a supervisory body composed of public citizens has been set up under the Police and Criminal Evidence Act of 1984. The Police Complaints Authority has power to investigate complaints against police officers and to impose sanctions including dismissal, reduction in rank or pay, a fine, reprimand or caution.[167]

91. In Australia, various independent investigative or disciplinary bodies have been set up in individual states.[168] In Western Australia, the Anti-Corruption Commission was established in 1994 to receive or initiate allegations of corrupt conduct, criminal conduct, criminal involvement or serious improper conduct about police officers and other public officers. The Commission itself may take action in relation to allegations if it is appropriate for it to do so, or it may refer allegations to other authorities for further action.[169]

    Criminal Sanctions

92. In all jurisdictions, police officers who commit criminal acts can be tried under the criminal law.[170] The fact that they are not prosecuted more frequently is arguably another cost of exclusion and sends the message to both the police officer and the community that criminal conduct by police officers should be tolerated. As long as the exclusion of evidence is seen as a suitable substitute for personal accountability, police officers will continue to avoid responsibility for their actions, resulting in two crimes rather than one going unpunished.

    Civil Remedies

93. In all jurisdictions, police officers can be sued in tort by the victims of their illegal acts. In Canada, the Canadian Charter, s24(1) gives explicit authority to the court to grant 'such remedy as the court considers appropriate and just in the circumstances.'[171] In the United States, the Federal Tort Claims Act 28 U.S.C. gives victims a cause of action in state or federal court for deprivation of federal constitutional rights in cases where the police officer knew or should have known that he or she was violating the rights of the victim.[172] In addition to tort actions under the Federal Torts Act, in the United States, Title 42 U.S.C.  1983 allows plaintiffs to sue state officials for damages in federal court for violating their constitutional rights, while a Bivens action can be brought against federal officials who commit violations. However provided the officials acted in good faith, they are immune from both actions and as the United States Government is protected from vicarious liability by sovereign immunity, the plaintiff has no cause of action.[173]

94. In England, plaintiffs can sue the offending officer as well as the chief officer of the department in tort with damages being paid out of the police fund.[174] A similar structure now exists in Western Australia following the passing on 25 November 1999 of the Acts Amendment (Police Immunity) Act 1999. The act amends the Police Act 1892 so as to grant police officers immunity from civil actions arising out of the performance of their duties, providing they were not acting corruptly or maliciously. Aggrieved third parties will be now able to seek compensation by taking civil action against the Crown. However, even where the police officer did act corruptly or maliciously and so forfeit his or her immunity, a plaintiff may still sue the officer personally. If damages are awarded, but the plaintiff can demonstrate that he or she will be unlikely to be able to recover them from the officer, the plaintiff may petition the Treasurer to pay the damages (except exemplary or punitive damages) and seek reimbursement from the officer.[175]

95. This legislation is superior to legislation in any of the other jurisdictions not only because it offers a solution to the long-standing problem of the judgement-proof police officer, but because it also gives plaintiffs a means of recovery where that officer has acted in bad faith.

    Proposed Alternatives to Exclusion

    Statutory Liquidated Damages

96. Proponents of exclusion dismiss the existing remedies as ineffective[176] and it is quite true that each does have its limitations, one of the main ones being the problem of how to quantify the measure of damages for tort or civil rights actions.[177] For this reason some commentators have called for a liquidated damages remedy which would see victims of police illegality awarded a quantum assessment of monetary damages. Although there is no consensus as to the details, this remedy is supported by a growing number of academics and judges,[178] who despite their methodological differences, concur in at least one respect - monetary fines will deter police misconduct as least as effectively as exclusion while allowing reliable evidence of guilt to go to the jury.[179]

    Civil Administrative Remedy

97. An acknowledged stumbling block to achieving an effective civil remedy is the difficulty and cost of the proceedings. Litigation is an expensive, stressful business and many victims of illegal police acts have neither the financial or emotional resources to pursue it. The academics at Pepperdine have given consideration to these difficulties and proposed a civil administrative remedy for victims of reckless, negligent or innocent police illegalities that were not committed in objective good faith.[180]

98. Plaintiffs would file a claim with a government agency, which would investigate the claim and upon finding a prima face case, refer the matter to lawyers employed by the agency. The lawyers would then represent the plaintiff before a judge at a streamlined expedited hearing at which the officer and/or agencies would also be represented. A finding against the officer would see the judgement enforced by the government agency. To address possible difficulties in quantifying damages, the administrative process would provide for a liquidated damages remedy, similar to that proposed by Amar. Colb believes that this would motivate people to 'come forward and complain of Fourth Amendment harms and would make non compliance more expensive for the government'.[181]

99. Neither the existing nor proposed alternative remedies to exclusion are free from defect, but all have a clear advantage over an exclusionary remedy. Excluding reliable evidence of guilt offers no protection to innocent victims of illegal searches as it compensates only the guilty and is useless to all but those with damning evidence to exclude. The alternative remedies all go some way to addressing this inequity.

    Miscellaneous alternatives

100. Other alternatives to exclusion that have been mooted include:
     (i) a serious crimes exemption;[182]
     
     (ii) A statutory good faith or 'honest and reasonable mistake' exemption.[183]
     (iii) A discount on sentences handed down to convicted persons who were illegally searched or detained.[184]
     (iv) A licensing system for police officers;[185]

101. Each of these proposals has merit although apart from (iv) they all seek to merely modify the impact of exclusion while leaving its unsound doctrinal basis intact.

     A Better Way

102. If this paper has proven anything conclusively, it is that there is no easy answer to the problem of illegally obtained evidence. Each one of the alternative remedies discussed is deserving of consideration and sheds a little more light on the issues, leading to the conclusion that perhaps the answer is not in one of the alternatives, but in a combination of them. No paper examining the rules of illegally obtained evidence would be complete without the author proposing yet another alternative to exclusion. So at the risk of adding to an extremely long list, this paper offers yet another model for consideration, with the following caveat. No viable alternative to such a judicially entrenched concept as the exclusion of illegally obtained evidence can hope to be exhaustively covered in this limited forum, and while acknowledging that it is true that the devil is often in the detail, this paper will nevertheless go on to suggest the following composite remedy in place of the Exclusionary Rule and all its derivatives.

     The Author's Agency Model

103. This suggested statutory remedy would repeal any inconsistent statutes and override any common law rules to the extent that they conflict with the new Act. The legislation would then provide that
     1. all illegally obtained real evidence is admissible at trial provided its probative value outweighs its prejudicial effect;
     2. confessional evidence that is acquired in such a way as to cast doubt on its reliability should be excluded, unless its authenticity is corroborated by real evidence which passes the reliability test in 1. above;
     3. confessional evidence where reliability is not in doubt is admissible at trial;
     4. if there is sufficient evidence to suggest that a police officer committed a crime during an investigatory process, he or she should be charged with that crime and tried in the same manner as any other citizen where the usual defences of accident and honest and reasonable mistake etc are open to them.
     5. If there is sufficient evidence to suggest that a police officer breached a code of conduct or practice, or committed a tort, the aggrieved party may file a complaint with an administrative agency, especially established for the purpose of investigating and prosecuting instances of misconduct by police officers.

     The Model in Practice

104. Using Western Australia as an example jurisdiction, the proposed agency could either be fully independent of all existing executive or judicial authorities or alternatively contained within the Ministry of Justice, yet independent of the office of the Director of Public Prosecutions and the Police Department. Its mission would be to investigate complaints of police misconduct, impose disciplinary sanctions on guilty officers and recover monetary damages for innocent[186] victims. Legislation would require that a complaint be filed within 12 months of the alleged misconduct occurring.[187]

105. Judges and prosecutors who during the trial process become aware that police officers may have acted improperly, may also refer matters to the agency for investigation. This would allow a trial judge or prosecutor to register his or her disapproval of any police misconduct they encounter, yet at the same time ensure that the reliable evidence is put before the court.

106. The agency would conduct its own investigation to decide whether there is a prima facie case of police misconduct. It would be required to report its finding to the complainant (victim, judge or prosecutor) within 90 days of receiving the complaint.[188] If the complainant is not satisfied with the finding, they may have the decision reviewed by an independent review board set up in a similar manner to that of the Police Complaints Authority in England.[189]

107. Complainants must apply for review within 30 days of being notified of the agency's decision. In the event that a prima face case of misconduct is established by the agency or review board, the case would then be referred to the agency's lawyers to prepare a case for compensation. Legal costs would be met from the agency's legal aid fund. In addition to this, the agency or review board may also issue a directive to the Commissioner of Police that certain separate disciplinary action be taken against the officer.[190] If the agency (or subsequent review board) is unable to establish a prima facie case against the officer, the matter comes to an end.[191]

108. Having established a prima facie case, the agency's lawyers would represent the victim before a judge at a streamlined expedited hearing at which the officer would be represented by an independent, publicly funded lawyer. To avoid difficulties in quantifying damages, the legislation would provide for a liquidated damages remedy, similar to that recommended by Perrin and Slobogin.[192] However, in cases involving corrupt or malicious conduct, exemplary damages could be awarded at the discretion of the judge. Both the agency and the officer would retain a right of appeal from the judge's decision, although further legal funding for the officer would be at the discretion of the review board.

109. Officers who have judgements awarded against them, but who were found to have not acted corruptly or maliciously would have the liquidated damages paid by the Crown.[193] However, in cases where the officer was found to have acted corruptly or maliciously, but where the victim is unable to recover the damages after having used all reasonable means, the victim may petition the Treasurer (or his or her equivalent in other jurisdictions) to pay the liquidated damages on behalf of the officer.[194] The Crown may then recover the damages from the officer either by court action or by salary garnishment, perhaps in a similar way as the Child Support Agency recovers child support.

110. All victims of alleged police misconduct may file complaints, regardless of whether or not incriminating evidence was actually uncovered as a result of the police illegality. However, persons who refuse to assist with the investigation or prosecution of complaints referred by judges or prosecutors will be prevented from receiving damages. Also, persons ultimately found guilty of the crime for which they were being investigated at the time of the police misconduct, will only receive damages equivalent to the value of the actual loss or damage (if any) suffered as a result of the misconduct. In both of these cases, damages or the balance thereof will be awarded to the agency to be credited to its legal aid fund.[195] In the first case, because the party obstructed or at least impeded justice, and in the second, because criminals should not be permitted to profit from their own crimes.[196] Further, if at the time an award of damages[197] is made, the victim's guilt or innocence concerning the original crime has not been determined, the agency will hold the damages in escrow, pending the outcome of the trial.

111. An officer may also have criminal charges filed against him or her as a result of alleged misconduct, and so it is necessary to give consideration to how these two possibly concurrent actions should be handled. If as a result of the alleged misconduct, a police officer is charged with a crime either before a complaint is filed with the agency, or during the course of the agency's investigation or prosecution of a complaint, all action would be suspended until the outcome of the officer's criminal trial is known.[198] If the officer is found guilty of the crime, the agency may then bypass the investigatory stage and immediately proceed to prosecute the claim for damages.[199] If the officer is found not guilty of the crime, the agency may still choose to continue with its investigation notwithstanding the acquittal.[200] Further, if the civil damages action uncovers sufficient evidence to substantiate a criminal charge, the agency or the judge may suspend or adjourn the case and refer the matter to the Director of Public Prosecutions for consideration. Alternatively, they may proceed to a determination and thereafter refer matters involving criminal conduct to the D.P.P. The legislation would also contain a double jeopardy provision ensuring that officers prosecuted under the agency model but absolved of misconduct by a judge, would not be able to be sued again privately by the aggrieved party over the same incident. Further, any compensation paid to a victim under the agency model would be reduced by any amount already received by the victim under the Criminal Injuries Compensation Act 1985 and vice versa.

112. Replacing the judicial exclusion of illegally obtained evidence with an action for monetary compensation does mean that the community will pay, however they will pay with money and not with their personal safety.[201] More importantly however, the trial process will be left unmolested as the illegalities of both parties are separately but fully addressed.

     Conclusion

113. Excluding reliable evidence for reasons unrelated to the guilt or innocence of the accused is bad law. It denies justice and sacrifices truth in pursuit of ideals far less noble. If truth is indeed fallen in the street, it is because it was first evicted from the courtroom. And if truth has no place in the courtroom, then what hope is there for it in the boardroom or the schoolroom? The writer's agency model is not perfect yet it is superior to any exclusionary remedy. It is superior because it may actually deter police misconduct by making officers accountable for their actions both to the persons they have wronged and to the community they were entrusted to serve. It is superior because it gives fairness back its true meaning by allowing the guilt or innocence of the accused to rise or fall on the facts - all of the facts. And most importantly, it is superior because it makes the courtroom a more honourable place, where the innocent are more likely to be freed, the guilty more likely to be convicted and where judgement, justice and equity once again have preeminence.

114. This paper began with an admonition from an Old Testament biblical prophet. It will end with an appeal from a nineteenth century judicial one. We, the legal thinkers of the 21st century would do well to heed the counsel of both.

     Now and then, it is true, one error may be driven out, for a time, by an opposite error: one piece of nonsense by another piece of nonsense: but for barring the door effectually and forever against all error and all nonsense, there is nothing like the simple truth.[202]

Bibliography

Cases

Statutes and Regulations

Notes

[1] Isaiah 59:14, King James Version of the Bible.

[2] Devine, F.E, "American Exclusion of Unlawfully Obtained Evidence with Australian Comparison", (1989) 13 Crim LJ 188.

[3] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[4] Boyd v United States 116 UA 616 (1886).

[5] The subsequent decision in of Adams v New York 192 US 616 (1904) rejected an exclusionary rule based on a Fourth Amendment violation holding that evidence was admissible however it was acquired.

[6] Weeks v United States 232 US 383 (1914)

[7] Id, 398.

[8] Id at 394.

[9] Fleissner, J.P, "Glide Path to an Inclusionary Rule': How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule" (1997) 48 Mercer LR 1023

[10] Wolf v Colarado 338 US 25 (1949) overruled by Mapp v Ohio 357 US 643 (1961).

[11] Mapp v Ohio, above n10.

[12] Id at 656.

[13] Ibid.

[14] Id at 660.

[15] US v Calandra 414 US 338 (1974).

[16] Id 347-48. The exclusive purpose of the rule is to deter police (or other officials') misconduct regarding search and seizure and compel respect for the Fourth Amendment by depriving police of the use of the products of illegal searches. Many academic writers have refused to accept this narrow basis for the rule. Terrence M Messonnier argues that the rule is justified under the theory of popular sovereignty or agency. See "Neo-Federalism, Popular Sovereignty and the Criminal Law" Akron Law Review. [http://www.uakron.edu/lawrev/messonn1.html] (17 December 1999).

[17] E.g. Stone v Powell, 428 US 465, 485, 486 (1976) explicitly limits the rationale for the exclusionary rule's application to the deterrence of unlawful police conduct while simultaneously rejecting any notion that the rule acted as a personal constitutional right of an aggrieved party. US v Janis, 428 US 433, 466 (1976) "Deterrence is the prime purpose of the rule if not the sole purpose;" Michigan v DeFillippo, 443 US 31, 38 n.3 (1979) "Thus, admission of the fruits of an unlawful search or seizure works no new Fourth amendment wrong, the wrong being fully accomplished by the unlawful search or seizure itself." See also US v Peltier, 422 US 531, 536-39 (1975); Rakas v Illinois, 439 US 128, 134 n.3, 137-38; Michigan v Tucker, 4

[17] US 433, 450 n.25 (1974).

[18] Nix v Williams 467 US 831 (1984)

[19] The Court reached its conclusion by weighing what it saw as the minimal deterrent value of excluding the evidence against the cost of letting obviously guilty people go free. Id at 444-47 (Burger CJ)

[20] US v Leon 468 US 897 (1984).

[21] Szymanski, Steven, M, "Exclusionary Rule - Good-Faith Exception: New Limitations on the Suppression of Illegally Obtained Evidence- Arizona v Evans, 116 s. CT. 1185 (1995)" (1996) 79 Marquette L R 1086, n28.

[22] U.S v Leon, above n20 at 9

[22] White J emphasized that the exclusionary rule is designed to deter police misconduct and not to punish the errors of judges and magistrates. Under circumstances where police officers act in good faith, the deterrent benefit of exclusion would be "marginal or nonexistent".

[23] US v Krull 480 US 300 (1987), 359-350. The Court extended the good faith exception of Leon to include evidence seized from a search conducted pursuant to a statute later found to be unconstitutional, provided the police had reasonably relied upon the statute. The Court reasoned that there would be little deterrent value in suppressing the evidence, as it was the legislature not the police officer who had committed the constitutional violation. The most recent good faith exception was adopted by the Court in Arizona v Evans 115 CT 1185 (1995),1194. In this case the Court held that the Exclusionary Rule did not apply to evidence gathered in circumstances where a police officer arrested a suspect in objectively reasonable reliance on a court generated computer record which later turned out to be erroneous.

[24] Pennsylvania Board of Probation and Parole v Scott, 5

[24] US 357 (1998).

[25] Pryor V US 98-7046 (1999).

[26] While Weeks only excluded evidence directly resulting from an illegal search, the rule was extended to include physical evidence directly or indirectly resulting from the illegal search in Silverthorn Lumber Co v US, 251 US 385 (1920). It was named 'Fruit of the Poisonous Tree' in Nardone v US, 308 US 338 (1939) and extended again to exclude verbal evidence resulting from an illegal search in Wong Sun v US, 371 US 471 at 485 (1963). The doctrine operates independently of the common law rule which prohibits the admission of involuntary confessions.

[27] Devine, above n2 at 193 and 195.

[28] Walker, C.T., 'A Critique of the Prima Facie Exclusionary Rule' (1996) 17(1) NZU LR 94.

[29] Wigmore, D.J, Evidence, (2nd ed, 1923).

[30] Ibid.

[31] People v Defore, 242 N.Y. 13, 21, 150 N.E. 585, 598 (1926).

[32] Dorning, Mike, "Judicial System Under Fire" The Chicago Tribune, 29 March 1996, 14 quoted in Maginnis, Robert L, "Modern Justice: Civil Liberties, Freed Criminals, Rogue Police", Family Research Council, Insight (April 1996) http://www.frc.org (1 September 1999).

[33] Robinson, Paul H, "Moral Credibility and Crime", The Atlantic Monthly, March 1995, 72-78 quoted by Dorning in Maginnis, above n32.

[34] Gangi, William, testimony before the Senate Judiciary Committee, Washington, D.C. Federal News Service, 7 March 1995, 12 quoted by Dorning in Maginnis, above n32.

[35] R v Wray (1970) 11 DLR (3d) 673.

[36] Id at 690-691.

[37] This test is similar to the general discretion given to Australian trial judges to exclude otherwise admissible evidence in any criminal trial on the grounds of disproportionate prejudice.

[38] The Canadian Charter of Rights and Freedoms was enacted by the Canada Act 1982 (Eng).

[39] R v Collins [1987] 1 S.C.R. 265.

[40] R v Jacoy [1988] 2 S.C.R. 548 at558.

[41] "The trial is a key part of the administration of justice, and the fairness of Canadian trials is a major source of the repute of the system and is now a right guaranteed by s. 11(d) of the Charter. If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded." R v Collins, above n39 at 284.

[42] The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, willful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence. Finally, if other investigatory techniques had been available or if the evidence could have been obtained in a manner which would not have infringed the Charter, the violation would tend to be construed as more serious. Id at 285.

[43] "The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding evidence despite the fact that it was obtained in a manner that infringed the Charter. The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other. In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will bring the administration of justice into disrepute. This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter violation." Id at 285.

[44] R v Burlingham [1995] 2 S.C.R. 206 (Iacobucci J) [http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1995/vol2/html/1995scr2_0206.html] par 25 (30 August 1999).

[45] As Lamer J. noted in R. v. Collins, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, and Mapp v. Ohio). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray,). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute." R. v. Simmons, [1988] 2 S.C.R. 495 at 532 (Dickson CJ).

[46] In applying s24 (2), Collins requires that "the reasonable man, dispassionate and fully apprised of the circumstances of the case" is the judge of whether the admission of the evidence would bring the administration of justice into further disrepute. R v Collins, above n39 at 282 (Lamer J).

[47] R v Hebert [1990] 2 S.C.R. 151, 178. Even if the improperly obtained evidence were reliable, considerations of reliability are no longer determinative given that the Charter has made the rights of the individual and the fairness and integrity of the judicial system paramount

[48] R v Bartle [1994] 3 S.C.R. 173 208-9. See also R v Mellentin [1992] 3 S.C.R. 615; R v Acciavatti (1993) 80 C.C.C. (3d) 109.

[49] R v Burlingham, above n44 at par 51 quoting Lamer J in R v Collins, above n39 at 286.

[50] Bad faith has been found in situations where there has been a blatant disregard for the Charter rights of an accused or where more than one Charter right has been violated. R. v. Wise, [1992] 1 S.C.R. 527. Note also that "an absence of good faith does not necessarily mean that there was bad faith." R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.).

[51] R v Elshaw [1991] 3 S.C.R. 24.

[52] R v Burlingham, above n44 at par 48.

[53] Good faith is a concept which embraces a spectrum ranging from an absence of malicious or wilful intention to an objective, reasonable belief that the police conduct was legal. Note also that "good faith" as a factor under s.24(2) is not limited to an objectively reasonable belief that a search warrant is valid, which is necessary under the American jurisprudence to bring into operation the good faith exception to the exclusionary rule. To confine the factor of good faith under s.24(2) as an inflexible rule to an objectively reasonable belief in the validity of a search warrant, in cases such as this, would in effect amount to the adoption of the United States Exclusionary Rule with respect to searches or seizures under an invalid warrant, which clearly was not the intention of those who drafted the Charter. R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.); leave to appeal refused (S.C.C., December 7, 1987); Jones v. R., (B.C.C.A., February 26, 1988); R. v. Makwaychuk (1993), 22 C.R. (4th) 103 (Man. C.A.). Department of Justice Canada, Canadian Charter of Rights Decisions Digest, Section 24(2) [http://canada.justice.gc.ca/en/dept/pub/ccrdd/section24ss2.htm#[3] Criteria for Exclusion] (23 January 2000).

[54] R v Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.).

[55] R v Broyles [1991} 3 S.C.R. 595; Hamill v R [1987] 1 S.C.R. 301; Sieben v R [1987] 1 S.C.R. 295.

[56] Where the warrant was not obtained by deceit or fraud on the part of the police. R v Harris (1987) 35 C.C.C. (3d) 1 (Ont. C.A.); leave to appeal refused (S.C.C. 7 December, 1987)

[57] Simmons v R [1988] 2 S.C.R. 495.

[58] R v Ross [1989] 1 S.C.R. 3, 16; R v Colarusso [1994] 1 S.C.R. 20, 74; R v Mellenthin [1992] 3 S.C.R, 615; Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at 555.

[59] For example, R v Burlingham, above n44; R v Duguay [1989] 1 S.C.R. 93.

[60] R v Burlingham, above n 44 at par 72-74.

[61] Id at par 73-74.

[62] This 'proximate connection' test is similar to the 'real and substantial connection' test of the New Zealand exclusionary rule. See R v Te Kira [1993] NZLR 257at 272 (Richardson J) and 276 (Hardie Boys J).

[63] Section 24(2) does not confer a discretion on the judge but a duty to admit or exclude as a result of his finding. R v Collins, above n 39, 275 (Lamer J). Also quoted by Heureux-Dube` J in her dissenting opinion in R v Burlingham, above n44 at par 68.

[64] Note that the French version of the Charter says 'could' rather than 'would'.

[65] 'It is not the proper function of this Court, though it has jurisdiction to do so, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of the courts below under s. 24(2) of the Charter and substitute its opinion of the matter for that arrived at by the Court of Appeal.' R v Duguay, above n59 at 93 (Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and Sopinka JJ).

[66] R v Leatham (1861) 8 Cox CC 498 at 501.

[67] "The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. It if is, it is admissible and the court is not concerned with how the evidence was obtained." Kumura v R [1955] AC 197 at 203 (Lord Goddard.); "There is 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." R v Sang [1980] AC 402 at 437

[68] 'A judge always had a discretion to reject evidence on the ground that it would make the trial unfair' R v Sang, above n67 at 445 (Lord Salmon); "..judges should be left to exercise their discretion in accordance with their individual views of what is unfair or oppressive or morally reprehensible" R v Sang, above n67 at 456 (Lord Fraser). Note however that the discretion to exclude unfairly obtained evidence was confined to evidence obtained after the crime from the accused. R v Sang, above n67 at 437 (Lord Diplock) See also Kumura v R, above n 67, 204. Collis v Gunn [1964] 1 Q.B. 495 at 501; King v R [1969] AC 304 at 319; Jeffrey v Black [1978] Q.B. 490 at 498; R v Houghton (1978)

[68] Cr. App.R. 197; R v Smurthwaite; R v Gill [1994] 1 All ER 898 at 902.

[69] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[70] An exercise of power that is so unreasonable that no reasonable person could have so exercised the power. Associated Provincial Picture Houses Ltd v Wednesbury Corporation, above n69

[71] R v O' Leary (1988) 87 Cr. App. R. 387 at 391; R v Christou [1992] Q.B. 979 at 989.

[72] A judge in a civil trial has no discretion to exclude evidence of the ground that it was illegally obtained. See Helliwell v Piggott-Sims [1980] FSR 582.

[73] 'SECTION 78 does not more than to restate the power which judges had at common law before the 1984 Act was passed' R v Mason [1987] 3 All ER 481 at 484 (Watkins LJ).

[74] R v Samuel [1988] Q.B. 615; R v O'Leary, above n 71, 391. R v Khan [1994] 4 All ER 289. Note also that section 78 does not limit the exclusion to evidence against the accused obtained after the crime as per Lord Diplock in R v Sang, above n67.

[75] R v Samuel, above n74 at 630 (Hodgon J speaking for the court)

[76] R v Mason, above n73; R v Samuel; R v Hughes [1988] Crim L.R. 519 (C.A.); R v Alladice (1988) 87 Cr. Ap. R. 380 (C.A.); R v Absolam [1988] Crim L.R. 748 (C.A.); and R v Parris [1989] Crim L.R. 214 (C.A.).

[77] R v Apicella (1985) 82 Cr. App.R. 295; R v Cooke (1995) 1 Cr. App.R. 456.

[78] This mirrors the view taken by certain past and present members of the Canadian Supreme Court. In R v Wray (above n35) Martland J said (at 293) 'the allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly.' This reasoning was followed by L'Heureux-Dub, J in dissent in R v Duguay, (above n59) where at 93 speaking of impugned confessional evidence she said 'admission of evidence of this latter sort detracts from the fairness of the trial process, real evidence does not.'

[79] Gelowitz, Mark O., "Section 78 of the Police and Criminal Evidence Act 1984 : Middle Ground or No Man's Land?" (1990) 106 LQR 327 at 333.

[80] For example see Matto v DPP [1987] Crim LR 641.

[81] R v Nathaniel [1995] 2 Cr. App. R. 565.

[82] 'To allow that blood sample to be used in evidence at a trial four years after the alleged offences when the sample had been retained in breach of statutory duty and in breach of the undertakings to the defendant must, in our view, have had an adverse effect on the fairness of the trial. It should not in our view have been admitted.' (Lord Taylor CJ speaking for the court). Ibid.

[83] Regina v Weir (unreported, 26 May 2000), Court of Appeal

[84] Attorney General's Reference No. 3 of 1999 [2000] UKHL 63 (14th December, 2000) (Lord Steyn at par 25)

[85] This was also the view of the Canadian Supreme Court in R v Collins where Lamer J said at 284-2

[85] 'Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.'

[86] It is difficult to reconcile the decision of the Nathaniel court if 'fairness' means preventing an unsafe verdict, which the writer contends is the real objective behind both the common law and section 78 fairness discretion. If a 'fair' trial is a trial which delivers a safe verdict concerning the guilt or innocence of the accused, then the Nathaniel court erred in its decision to exclude the evidence on the basis of unfairness.

[87] Compare with section 24(2) of the Canadian Charter of Rights and Freedoms which also requires the court to have regard to all of the circumstances but to exclude evidence only when its admission would bring the administration of justice into disrepute. Hence at least in their wording, the English discretion turns upon trial fairness while the Canadian discretion turns upon judicial integrity and repute.

[88] This paper asserts that English judges are far more likely to admit reliable illegally obtained real evidence on the grounds that its reliability and pre-existence to the illegality renders it fair, while Canadian judges are more likely to exclude the same evidence on the grounds that the method used to obtain it renders it unfair and so to admit it would bring the administration of justice into disrepute.

[89] Note that the writer contends in n86 above that the correct interpretation of 'fairness' in the English context is that which renders a safe verdict, consistent with the guilt or innocence of the accused.

[90] 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] Crim L.R. 722 at 730.

[91] R v Maqsud Ali, R v Ashiq Hussain [1966] 1 Q.B. 688. Stephen and Aicken JJ in the Australian High Court decision of Bunning v Cross (1978) 141 CLR 54 at 75 also rejected a 'fair play' rationale saying ""Fair" or "unfair" is largely meaningless when considering fingerprint evidence obtained by force or a trick or even the evidence of possession of, say, explosives or weapons obtained by an unlawful search of body or baggage, aided by electronic scanners. There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry".

[92] United States v Garsson, 291 F. 646, 649 (2nd Cir, 1923) (Learned Hand J)

[93] Choo, Andrew "Improperly Obtained Evidence: a Reconsideration" (1989) 9 Legal Studies at 261.

[94] Zuckerman, A.A, Principles of Criminal Evidence (Oxford: Clarendon, 1989) at 346.

[95] Ashworth, Andrew "Excluding Evidence a Protecting Rights" [1977] Crim LR at 723.

[96] Hunter, Mary, "Judicial Discretion: Section 78 in Practice" [1994] Crim LR at 558.

[97] It is interesting to note that when Mary Hunter interviewed four Crown Court judges and one High Court judge for her article, all but the High Court judge expressed disdain for or ignorance of the academics' proposed rationales. Only the High Court judge recognised the principles and said that the reliability rationale was the most important. The other four judges re-iterated that the only consideration was trial fairness.

[98] "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 at 879 (Lord Taylor). See also R v Mason; R v Delaney (1989) 88 Cr. App. R. 338, (C.A.); R v Sang).

[99] R v Quinn [1990] Crim L. R. 581 (Lord Lane CJ).

[100] However bad faith has been judicially narrowed to cover wilfully or knowingly exceeding powers (Matto v DPP) or failing to meet the requirements of PACE and its Codes (R v Alladice). See also R v Mason, above n76.

[101] R v Payne [1963] 1 W.L.R. 637.

[102] R v Sang, above n67 at 435.

[103] Hunter, above n96 at 558.

[104] Robertson, Bernard, "The Looking-Glass World of Section 78" (1989) 139:6423 New Law Journal 1223. In particular Robertson claims that in R v Samuel and R v Alladice, the court did not turn their minds to the question of the fairness of the proceedings at all.

[105] R v Smurthwaite [1994] 1 All ER 898 at 902-903. Compare with the Canadian decisions R v Wray, above n35 at 690-91 and also R v Burlingham, above n44 at par 68 where Heureux-Dube' J expresses a similar view in her dissenting opinion.

[106] Section 76 of PACE sets out requirements in relation to the admissibility of confessional evidence.

[107] R v Nathaniel, above n81.

[108] The Police Complaints Authority has power pursuant to sections 83-104 of PACE to investigate complaints against police officers and to impose sanctions including dismissal, reduction in rank or pay, a fine, reprimand or caution. Sections 90-104 also allows for the criminal prosecution of police officers. Aggrieved persons can also sue an officer (and the chief officer of the department) in tort with damages being paid out of the police fund. See Police Act 1996 c(16).

[109] Note that in R v Khan on appeal the accused argued that evidence obtained against him by police officers acting without authority, violated his right to privacy protected by Article 8 of the European Convention on Human Rights (ECHR). The House of Lords in denying the appeal conceded that although evidence obtained in circumstances involving an apparent breach of Article 8 may be relevant to the exercise of the section 78 power, its admission did not per se infringe the right to a fair trial under Article 6 of the ECHR as the accused had the right under national law to challenge its admissibility. In so ruling they followed the decision of the European Court in Schenk v Switzerland (1988) 13 EHRR 242 at paras 46 and 47. It remains to be seen whether the recent incorporation by Britain of the European Convention on Human Rights into domestic law will alter the position taken by the House of Lords. The Human Rights Act 1998 was enacted on 2 October 2000.

[110] R v Khan, above n74 at 301. Note that in R v Burlingham, above n44, the Canadian Supreme Court used almost identical language. See also Bronitt, Simon "Police Illegality and Impropriety" Australian National University law lecture, (18 December 1999).

[111] Bronitt, Ibid.

[112] H.C. Deb., 6th series, vol 65, col. 1012 (October 29, 1984) in Gelowitz, above n79 at 334.

[113] McKee, Adam J., "Protecting Civil Liberties in Police Interviews: A Comparative Analysis of the United States, England and Wales" http://ocean.otr.usm.edu/-ajmckee/police_interviews.html (2 January 2000)

[114] Above n108.

[115] Bronitt, above n110.

[116] Zuckerman, above n94.

[117] Robilliard J and McEwan J, Police Power and the Individual (1986) 247

[118] Hirschel, "What Can We Learn From the English Approach to the Problem of Illegally Seized Evidence?" (1984) 67 Judicature 424 at 432.

[119] Robilliard and McEwan, above n117. Complainants can sue in an action for trespass or other tortious acts under the Police Act 1996 and in some cases obtain punitive damages.

[120] Bunning v Cross (1978 141 CLR 54.

[121] See also Ridgeway v The Queen (1995) 184 CLR 19

[122] R v Ireland (1970) 126 CLR 321.

[123] Id at 335. It should be noted that this public policy discretion operates in addition to the discretion the trial judge has to exclude evidence whose probative value is outweighed by its prejudicial value as well as the discretion to exclude a confession obtained in circumstances which render it unfair to use it against the accused. McDermott v R (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133.

[124] Bunning v Cross, above n120 at 74 and 75.

[125] In the United States, the trial judge has no discretion whatsoever and must simply exclude the evidence unless it falls within one of the narrowly defined exceptions. In Canada, while the exclusion of illegally obtained evidence is subject to judicial discretion, post-Charter jurisprudence has severely curtailed the discretion so that in practice, it is more exclusionary that discretionary. In England, judges are not normally overruled on appeal unless they fail to exercise the discretion reasonably.

[126] The public interest discretion articulated in Bunning v Cross was extended to voluntary confessional evidence by the High Court in Cleland v The Queen (1982) 151 CLR 1,9 where the court said that a voluntary and fairly obtained confession which was made during unlawful detention should only be excluded in the most exceptional circumstances. (Gibbs CJ)

[127] Cwth and ACT - Cwth - Evidence Act 1995 s138; NSW - Evidence Act 1995 s138; VIC - Evidence Act 1958 s5.

[128] s138 Evidence Act 1995 (Cwth and NSW). Note also that Bronitt claims that the Cwth Act clearly imposes an obligation on judges and practitioners to acquaint themselves with the provisions and jurisprudence of international human rights law. Bronitt, above n110.

[129] Perrin, L. T et al, "If it's Broken, Fix it: Moving Beyond the Exclusionary Rule - A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule" (1998) 83 Iowa L Rev 669.

[130] Officers of varying rank came from the Sheriff's Department and five police departments.

[131] Estimates vary between studies. The American Bar Association Special Committee on Criminal Justice in a Free Society, "Criminal Justice in Crisis", 21,844 (1998) asserts that between .6 and 2.35 percent of all prosecutions are lost due to the exclusion of illegally obtained evidence. The National Institute of Justice study "The Effects of the Exclusionary Rule: A Study in California 2 (1982) put the figure at 4.8%.

[132] Perrin, above n129, 677 quoting Caldwell H.M. and Chase, Carol A., "The Unruly Exclusionary Rule: Heeding Justice Blackmun's Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom". (1994) 78 Marq. L. Rev 45 at 53-54.

[133] This is as a result of the enormous number of suppression hearings (or voir dire in other jurisdictions) and the dramatic increase in the number of not guilty pleas since Mapp which in for example in the New York City Narcotics Bureau dropped from 86% to 29.5% in 1966. See Comment, "The Effect of Mapp v Ohio on Police Search-and Seizure Practices in Narcotics Cases" (1968) 4 Colum, J.L. & Soc, Probs, 98 at 102. See also Coons, Robert, University of Texas Department of Philosophy who claims that between 20-35% of court time is spent on motions to suppress evidence. "The Exclusionary Rule" [http:/www.utexas.edu/courses/pH2347/lectures/lec8.html] (31 August 1999)

[134] Police officers "have an incentive to commit perjury or ... to carefully tailor the description of their investigative activities in order to uphold the legality of their searches and seizures". Perrin, above n125 at 677 quoting Caldwell and Chase, above n132 at 52-53.

[135] The National Institute of Justice study found that 46% of individuals freed in California in 1976 and 1977 as a result of the exclusionary rule went on to commit additional crimes within 24 months of their release. (quoted in Perrin, above n129 at 676).

[136] 'The evidence reveals a significant impact on crime rates following the involuntary adoption of an exclusionary rule as the penalty for an unlawful search and seizure. This finding is dramatically at odds with current academic and judicial beliefs regarding the impact of the exclusionary rule". Atkins, Raymond, A. & Rubin, Paul H., "Effects of Criminal Procedure On Crime Rates: Mapping Out the Consequences of the Exclusionary Rule" Emory University Department of Economics, Working Papers November 1998 [http://moe.cc.emory.edu/~cozden/rubin_98_03_cover.html] (18 December 1999).

[137] US v Cusumano No. 94-8056 (10/4/95); US v Porco, No. 94-8057 (10/4/95)

[138] Dorning, above n32.

[139] Dershowtiz, Alan, Harvard law professor quoted in Dorning, above n32.

[140] Robinson, Paul H, "Moral Credibility and Crime" The Atlantic Monthly, March 1995 at 72-78.

[141] Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971), 416.

[142] American Civil Liberties Union, "Adoption of Legislation Gutting the Fourth Amendment" In Congress - American Civil Liberties Union Freedom Network, 10 February 1995 [http://www.aclu.org/congress/gut4th.html] (1 September 1999) compare with Prepared Remarks by Akhil Reed Amar, Southmayd Professor of Law, Yale Law School, on the Crime Bill and the Exclusionary Rule Reform Act 1995 before the Senate Judiciary Committee, Federal News Service, 7 March 1995 quoted in Dorning, above n32.

[143] US v Caloundra, above n15.

[144] Prepared Statement of Senator Orrin Hatch, Chairman, US Senate Committee on the Judiciary. Hearing on the Jury and the Search for Truth, Federal News Service, 7 March 1995 in Dorning, above n32. Also, as the effectiveness of the United States Exclusionary Rule is usually judged by its capacity to deter police misconduct alone, the arguably weightier question of its negative impact on the truth-seeking mission of the courts is left unanswered.

[145] Spiotto, James E., "Search and Seizure: An Empirical Study of the Exclusionary Rule and its Alternatives" (1973) 2:1 Journal of Legal Studies 243. Also Robert Coons of the University of Texas Department of Philosophy claims that between 20-35% of court time is spent on motions to suppress evidence. Coons, Robert, "The Exclusionary Rule" [http:/www.utexas.edu/courses/pH2347/lectures/lec8.html] (31 August 1999)

[146] "Surveys indicate that police knowledge about search and seizure law is quite poor, despite the exclusionary rule. One relatively recent study even found that the percentage of current answers by the police on a test about search and seizure law was barely above the chance level." See Slobogin, Chris & O'Connell, Stephen C., Police Interviewing, Confessions, Guilty Pleas (USA), paper presented to the Dublin Trial - Adversarial v Inquisitorial, Dublin 1999.

[147] Perrin, above n129 at 724-275.

[148] Id at 693.

[149] Ibid

[150] Osborne, Evan, "Is the Exclusionary Rule Worthwhile?" (1999) 17:3 Contemporary Economic Policy, 381.

[151] Ibid.

[152] Lynch, Timothy, "Unreasonable Searches: Reassessing the Exclusionary Rule", (1998) The Champion, (December 1998) [http://www.criminaljustice.org] (18 December 1999).

[153] For example R v Collins, above, n39, 284-85; R v Burlingham, above n 44, par 29; R v Samuel, above n74; R v Mason, above n73.

[154] "Unfairness in the manner certain evidence was obtained, or in the fact that certain evidence was obtained, does not necessarily render the trial unfair." L'Heureux-Dube' J in dissent in R v Burlingham quoting her own judgement in R v Dersch [1993] 3 S.C.R. 768 at 784. See also Mapp v Ohio, above n10 where dissenting judge Harlan J reasoned "I do not see how it can be said that a trial becomes unfair simply because a State determines that evidence may be considered by the trier of fact, regardless of how it was obtained, if it is relevant to the one issue with which the trial is concerned, the guilt or innocence of the accused. [The Exclusionary Rule is] an incidental means of pursuing other ends than the correct resolution of the controversies before it."

[155] R v Sang, above n68 at 276.

[156] State v Aime, 220 P.2d, 704, 707 (Utah 1923).

[157] State v Jurrell, 608 P.2d 218, 224 (Utah 1980).

[158] The author contends that the potential negative impact of admission on the reputation of the court is abrogated if appropriate disciplinary actions is taken against the offending officer.

[159] R v Burlingham, above n44 at par 74.

[160] For example there was a "overwhelming public reaction" to the Canadian decision of R v Feeney S.C.C. File no 24752 (22/5/97) where the court excluded evidence of a bloody shirt and shoes along with fingerprint evidence which conclusively confirm that the accused had committed a particularly gruesome murder. See article by Lex View, "Charter Violations and the Exclusion of Evidence: Bringing the Administration of Justice into Disrepute" http://www.centreforrenewal.ca/lex-8.html (23 August 1999). In the United States, a similar reaction followed the acquittal of an "obviously guilty" defendant in the case of United States v Bayless, 913 F. Supp 232 (S.D.M.Y.), vacated, 921 F Supp, 211 (S.D.N.Y. 1996) leading to the court reversing its ruling in the light of public outrage. See Perrin, above n 129. For a series of cases involving the release of murderers as a result of appeals on the grounds of illegal searches, see Rothwax, Harold J. "Why Criminals Go Free" USA Today, 20 March 1996, A-11.

[161] Ibid.

[162] Maginnis, above n32.

[163] "It might be added that, as an empirical matter, the rule probably does more damage to public respect for the courts than virtually any other single judicial mechanism, because it makes courts look oblivious to violations of the criminal law and involves prosecutors, defense attorneys and judges in charade trials in which they all know the defendant is guilty." Slobogin, Christopher, "Why Liberals Should Chuck the Exclusionary Rule" (1999) U. Ill. L. Rev. 363 at 437.

[164] Lee, Rex E., "The Supreme Court's 1983 Term: Individual Rights, Freedom, and the Statue of Liberty," (1984) 19:1 Georgia Law Review 6.

[165] Osborne, above n150 at 384; Slobogin, above n163 at 442.

[166] For example the Code of Winston-Salem provides for such a board. See also concurring opinion of Judge Kane in United Sates v Cusumo;United States v Porco where he says that the fact that such independent disciplinary review boards are consistently opposed by police organizations suggest their use should be more seriously considered.

[167] Robilliard and McEwan, above n117 at 247.

[168] For example, New South Wales (NSW) Crime Commission, NSW Independent Commission against Corruption (ICAC), NSW Police Integrity Commission, the Queensland Criminal Justice Commission (CJC) and the Queensland Crime Commission.

[169] Section 12(1) Anti-Corruption Commission Act 1988.

[170] For example in the United States, under 18 USC.  242 (1982).

[171] That section does not seem to create any remedies, but does acknowledge that all the traditional ones are available. MacDougall, Donald V., "The Exclusionary Rule and Its Alternatives -- Remedies for Constitutional Violations in Canada and the United States" (1985) 76 J. Crim. L. & Criminology 608 at 641.

[172] The Federal Tort Claims Act (28 USC.) 1291, 1346, 1402, 2401, 2402, 2411, 2412, and 2671 through 2680) prescribes a uniform procedure for handling of claims against the United States, for money only, on account of damage to or loss of property, or on account of personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or employment, under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.

[173] Compare with recent amendments to the Police Act 1892 (Western Australia) below n175.

[174] See Police Act 1996 c(16).

[175] S138 Police Act 1892 as amended by Acts Amendment (Police Immunity) Act 1999.

[176] Kamisar, Yale, "Remembering the "Old World" of Criminal Procedure: A Reply to Professor Grano" (1990) 23 University of Michigan Journal of Law 537 at 562.

[177] Even if a jury decides in favour of the innocent victim, damages may be so minimal as to discourage legal action by innocent persons. See Colb, Sherry F., "Innocence, Privacy and Targeting in Fourth Amendment Jurisprudence" (1996) 96 Colum. L. Rev. 1456.

[178] For example Bivens, 403 US, 420-24 (Burger, C.J., dissenting) (arguing for the creation of a monetary remedy against the government instead of exclusion); Amar, Akhil Reed, "Fourth Amendment First Principles" (1994) 107 Harv. L. Rev. 757, 797 (discussing a damages remedy); Barnett, Randy E. "Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice" (1983) 32 Emory L.J. 937, 942 (discussing a monetary system for restitution of damages); Rader, Randall R, "Legislating a Remedy for the Fourth Amendment" (1982) 23 S. Tex. L.J. 585, 613 (analyzing various damages alternatives to exclusion) all in Dalsass, Alan, "Options: An Alternative Perspective on Fourth Amendment Remedies" (1998) 50 Rutgers L. Rev. 2297, 2308; Colb, above n177, "One possible solution to the under enforcement problem would be to create a statutory entitlement to a non-trivial sum of money for any individual who can demonstrate that she has suffered undeserved privacy invasions or targeting harms".

[179] Dalsass, above n178 at 2310.

[180] Note that the Pepperdine study also recommends retaining the exclusionary rule for intentional or willful police misconduct, which in this author's opinion greatly undermines the study's conclusions and sits uncomfortably with its criticism of the rule's effectiveness to deter police misconduct.

[181] Colb, above n177.

[182] "abolition of the exclusionary rule may be desirable only for those categories of crimes where individual rights violations have unquestionably occurred, e.g., rape, robbery, murder, property offenses, preserving it in all other instances". Slobogin, Christopher, "Reform : The Police : Testilying : Police Perjury and What to Do About it" (1996) 67 U. Colo. L. Rev. 1037; "...the rule not apply in the most serious cases -- treason, espionage, murder, [*634] armed robbery, and kidnapping by organized groups." Kaplan, "The Limits of the Exclusionary Rule" (1974) 26 Stan. L. Rev. 1027. See also Kamisar, "Comparative Reprehensibility" and the Fourth Amendment Exclusionary Rule (1987) 86 Michigan Law Revue 1.

[183] Amar, above n178, 800-811; Bradley, Craig M., "Two Models of the Fourth Amendment" (1985) 83 Mich. L. Rev, 1468.

[184] Amar, above n178 at 817-818. Both authors suggest that a small sentence reduction could be seen as an equivalent to monetary compensation for victims of illegal searches who are subsequently convicted of their crime.

[185] United States v Cusumo;United States v Porco, above n137 "... as Congress has legislated schemes that license stevedores, interstate truck drivers and airplane pilots, it could establish an effective licensing system for those charged with law enforcement responsibilities."

[186] Note that guilty victims can still recover damages limited to the actual loss they have suffered. See discussion on page 51.

[187] See page 51 for instances where this may be extended.

[188] If the complaint originated with the prosecutor or judge, a copy would be served on the victim of the misconduct. If the claim is to be prosecuted, they should be asked to participate in the process. If they refuse to participate, the agency may still proceed to prosecute the officer (if a case can be made without the cooperation of the injured party) but any damages would be forfeited by that party.

[189] The board would be made up of public citizens who have been invited to sit on the board.

[190] Disciplinary action for trivial or innocent breaches may involve the officers being counselled or undertaking further education or training, while repeated or serious breaches are punished by demotion, transfer or ultimately dismissal.

[191] Although the alleged victim could still choose to sue the officer privately in tort.

[192] Perrin, above n129; Slobogin, above n163.

[193] Subject to them having cooperated throughout the court process and any appeal the Crown may wish to pursue.

[194] See a similar provision in the Western Australian legislation, above n175.

[195] It is worth also considering whether successful innocent plaintiffs should have a designated percentage of their damages award diverted to the agency legal aid fund as a contribution towards the action. This would also ensure that sufficient monies are available for future actions.

[196] Colb claims that the criminal uses his privacy to obstruct justice and so lacks a reasonable expectation of privacy in the place where she hides evidence of crime. See Colb above n177. This is also the situation in Germany. See Neumann who says "providing a civil remedy only to those persons ultimately proven to be non-culpable is progressive. It displays judicial concern for the victims of official misconduct where the victim's right to privacy is not overborne by any legitimate official investigatory purpose". Neumann, Criminal Procedure, in Foreign Office [of the United Kingdom] (1952) II Manual of German Law 141 at 147.

[197] damages to which the victim is entitled.

[198] subject to any appeal.

[199] Statements made by parties in the criminal proceedings can be used in later civil proceedings. However to use the conviction as conclusive evidence of guilt, the rule in Hollington v Hewthorn & Co Ltd [1943] 1 KB 587 will need to be overruled in some Australian jurisdictions. Note that the Full Court of Western Australia recently refused to follow Hollington in the case of Mickelberg v Director of Perth Mint [1986] WAR 365.

[200] This is because a higher standard of proof is required in a criminal case and the lower standard required in a civil case may still allow for a positive outcome. However this depends upon the factual findings of the criminal court. Note also Hunter v Chief Constable and Australian Federal Police v Hatfield (1992) 106 ALR 335 where in certain circumstances pursuing civil action following criminal acquittal could be an abuse of process.

[201] Barnett, above, n178 at 975

[202] Jeremy Bentham