Keeping Criminal Trials Fair

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Judicial staying of criminal proceedings is an exceptional course for the trial judge to take and usually the trial process itself including appropriate judicial directions to the jury, is adequate to ensure that a criminal trial remains fair at common law and Article 6 of the European Convention on Human Rights, as given effect to in the Human Rights Act 1998. Critically evaluate this comment in the light of appropriate case law. The fundamental issue being raised is the fairness of criminal trials. The remedies that are used by criminal courts when the judge decides that there has been some unfairness in the proceedings include staying of proceedings, quashing of indictments and excluding evidence. Exclusion of evidence can be made during the trial process, by means of the trial judge directing that the jury ignore that evidence, and staying of proceedings stops the trial process, and is only exercised when there has been an abuse of the process. English fair trial jurisprudence commenced from domestic common law, then developed via section 78 of Police and Criminal Evidence Act 1984, and thereafter via international human rights law, in particular Article 6 of the European Convention on Human Rights (ECHR) incorporated into domestic legislation by the Human Rights Act 1988 (HRA 1988), as discussed below.

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Regarding the exclusion of evidence, the original common law rule from the mid-eighteenth century to early twentieth century, was that the admissibility of evidence at trial was wholly unaffected by the circumstances in which it was obtained 1, and also reaffirmed in 1955 by the Court of Appeal. 2 The trial judge’s discretion at common law to exclude relevant evidence was provided in Sang, 3 which laid down two principles that evidence could be excluded, firstly if it was to have a prejudicial effect outweighing its potential value, and secondly to exclude improperly or unfairly obtained evidence. In Sang the trial judge ruled that he had no discretion to exclude evidence relating to the commission of an offence to conspire to utter forged banknotes on the basis that it had been initiated by an agent provocateur, that is, an agent enticing the defendant to commit the crime, being the defence of entrapment.

This was reaffirmed by the House of Lords, in which the existence of the discretion to exclude improperly or unfairly obtained evidence was recognised, but that this was limited to evidence obtained after the commission of the offence. 41 R v Warwickshall [1783] 1 Leach 263; R v Griffin [1809] Russ & Ry 151 2 Kuruma – v – R [1955] A.C. 197 3 R v Sang [1980] AC 402 HL 4 Brannan – v – Peek [1948] 1 K.B. 68 The trial judge’s discretion to exclude evidence was only exercised in exceptional circumstances. In Apicella 5, a sample of bodily fluid taken from the defendant in a routine examination and used to verify that he had passed on a venereal disease to the victims was not held to be an unfair use of prosecution evidence. Furthermore, even illegality of police procedures could not render such evidence inadmissible as in Fox – v – Chief Constable of Gwent 6, where although it was held that the actions of police officers in unlawfully entering the defendant’s property to arrest and take him to the police station to provide a breath sample, instrumental in securing a conviction for drunk driving, the sample itself as evidence was still admissible evidence. Since the mid 1980s, the common law approach was radically altered by the development of the exclusionary discretion under section 78 PACE 1984, which provides:-

  1. In any proceedings, the court may refuse to allow evidence on which the prosecution proposes 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.

The landmark case of Mason 7 showed that the Court of Appeal was prepared to interpret section 78 broadly and marked the departure from the common law approach. The Court of Appeal allowed the appeal and quashed the conviction of the defendant, as his confession had been obtained after being falsely informed by police officers that his fingerprint had been found at the scene of the crime. As stated above, the defence of entrapment, (Sang, ibid), was not considered a valid defence at common law. However, in Smurthwaite; Gill 8 the trial judge took into account such allegations when exercising his discretion under section 78, though the evidence was admitted as the trial judge decided that the police officer, though posing as an undercover hit man, was not acting as an agent provocateur when he recorded the secret conversations of a husband and wife hiring him to kill each other, as the defendants made their own efforts and were not enticed.

In the case of identification evidence, the trial judge is required to warn the jury of the need for caution and explain the reasons for it, particularly the particular dangers attached to the evidence. This is the Turnbull direction, in which the judge asks the jury to carefully consider the circumstances in which the witness saw the offender and a reminder that even a confident witness can be wrong. 9 5 Apicella [1985] Cr App R 295 6 [1986] 1 AC 281, HL 7 R – v – Mason [1988] 1 WLR 139 CA 8 R v Smurthwaite; R v Gill [1994] 98 Cr App R 437 CA 9 R – v – Turnbull [1976] 3 All ER 549 In Boardman – v – DPP 10 Lord Hailsham laid down further guidelines in identification cases, that if the only evidence the prosecution has is a history of a pattern of similar offences, this would be weak and prejudicial evidence, and a ‘hallmark’ or ‘signature’ is required, as demonstrated in Mullen 11, in which the ‘signature’ was the use of a torch to crack the window glass by means of a blow to gain entry. Identification evidence reduces the need to establish such a ‘signature’, but an identification parade has been deemed to be unnecessary if the witness knows the defendant. 12 In Beckford 13 such a warning was deemed necessary even though the witness knew the defendants and the main issue at hand was not accuracy.

The prosecution is required to demonstrate that the circumstances of the identification are of good quality to avoid a submission of no case, in which the judge withdraws the case from the jury. However, in cases involving an abnormal or perverted personality, such as in cases of sexual offences, the jury may attach excessive weight to the pattern of previous convictions in making a decision about the defendant’s guilt, the ‘similar facts principle’, as in West 14, in which Rosemary West was accused of complicity in her husband Frederick West’s abduction, torture, rape and murder of young girls, and all evidence relating to her sexual history was laid bare.

The justification for the admission of such evidence was to demonstrate that she had such a perverted personality that she was capable of anything, and the Court of Appeal dismissed any prejudice. In such cases, it is for the trial judge to make the appropriate directions to the jury and to consider whether to exclude such evidence, but as the Criminal Law Revision Committee suggested 15, this problem does not exist in France where the defendant’s criminal record is read out at the commencement of the trial. In any event, the law is inclined to ban evidence which shows that the defendant has the disposition or propensity to behave in a certain way if the probative value of the evidence is exceeded by its prejudicial effect. However, in Kray and others 16, it was held that a number of offences of a similar character could constitute a series of offences, in which the evidence relating to one could be admissible in the trial of another. In such cases the judge can exercise his discretion to direct that counts be severed and order separate trials, to avoid joining of the charges, it he considers that this would affect fairness of the proceedings.

10 [1990] 90 Cr App R 325 11 R – v – Mullen [1992] Crim L R 735 12 R – v- Reid [1994] Crim LR 442 13 R – v – Beckford [1993] Crim LR 944 14 The Times, 3 Apr 1996 15 Evidence (General) Eleventh Report (1972) 16 R – v – Kray and others [1969] 53 Cr App R 569 In Sawoniuk 17, regarding the admission of evidence of multiple instances of the defendant’s mistreatment of Jewish prisoners in a war crimes prosecution, the Court of Appeal permitted the presentation of this evidence but as background evidence than under the ‘similar facts principle’. Following on from section 78, the HRA 1988 enabled the direct application of the European Convention on Human Rights into English law. Article 6(1) of the ECHR provides that “everyone is entitled to a fair and public hearing….by an independent and impartial tribunal established by law”. The main impact of the application of the ECHR is that the trial judge was given considerable discretion to ascertain whether the proceedings as a whole, including the way evidence was taken, was fair. In Shannon 18, entrapment was a key consideration for the trial judge in deciding whether to rule evidence as inadmissible, but did not justify exclusion of the evidence.

The agent provocateur, in this instance, was a journalist who posed as an Arab Sheikh and the defendant supplied him with drugs, but the appeal that this evidence was unfairly obtained and thereby the defendant was denied a fair trial with regard to Article 6 of the ECHR was unsuccessful. The trial judge, in exercising his discretion whether to exclude the evidence, had to consider whether admission would compromise the fairness of the trial as if the evidence was unreliable or tainted. In considering this, the Court of Appeal looked at the European Court’s judgement in Texeira 19. The Court decided that there had been a violation of Article 6(1) as the defendant had been denied a fair trial from the outset.

Two undercover police officers asked to buy heroin from the defendant, who bought the drugs for them, but the court had regard to the lack of evidence that he was predisposed to crime and the offence would not have been committed but for the officers’ intervention. The Court of Appeal distinguished Shannon from Texiera on the basis that there was not an actual incitement by the agent provocateur to commit the offence in the former case. The House of Lords, looking at Shannon, decided that the Texiera judgement did not intend to state that there was a breach of Article 6 every time police officers provided an opportunity to commit an offence and the person took advantage of it. 20 17 R – v – Sawoniuk [2000] 2 Cr A R 220 CA 18 [2001] 1 Cr App R 168 19 Texiera de Castro – v – Portugal [1999] 28 EHRR 313 para 74; Att-Gen’s Reference (No 2 of 2001) 1 WLR 1869 [2001] 20 R – v – Looseley: Att-Gen’s Reference (No 3 of 2000) [2002] 1 Cr App R 29 Regarding the exercise of the trial judge’s discretion to stay proceedings for abuse of process, the case of Latif 21 considered whether illegality in the investigation process could lead to a prosecution being stayed for abuse of process. The House of Lords considered that such illegality could have this effect but that this would not necessarily lead to a stay of proceedings.

Lord Steyn set a test: “the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies the means.” In Chalkley 22, the scope of section 78 in exclusion of evidence was regarded as entirely distinct from the question of whether a prosecution should be stayed for abuse of process. In Looseley, the trial judge exercised his discretion to stay the proceedings. In this case, undercover police officers cajoled a defendant into selling them heroin by plying him with cigarettes and making repeated requests, when the defendant had actually disclaimed any interest in drug dealing. The trial judge decided that the officers had solicited the offence and ordered a stay of the proceedings for an abuse of the process. The Court of Appeal overturned this decision and decided that the defendant had voluntarily provided the drugs to the officers and had had previous convictions for drug dealing.

The House of Lords issued monumental directives regarding the importance of maintaining fairness and integrity of criminal proceedings. The House of Lords allowed this defendant’s appeal and Lord Nicholls stated:- “Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of law…It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment.” The House of Lords agreed that a stay of proceedings on the grounds that there had been an abuse of process was the only acceptable remedy. However, it was also considered that section 78 would be applicable where tainted evidence could be excluded from the trial process without having to stop it. A clear distinction has been drawn between a willing defendant ready to supply drugs and someone who was coerced into this via a campaign of repeated requests and encouragements. 

21 R – v – Latif [1996] 1 All ER 353 22 R – v – Chalkley [1998] 2 Cr App R 79 Lord Hoffman laid down five criteria for the admissibility of evidence, having had regard to the guidance of trial judges in previous cases. These criteria have refined the Court of Appeal’s approach to the jurisprudence on entrapment and have established a framework for trial judges to follow when deciding when to exercise their discretion to exclude evidence or stay proceedings. Staying of proceedings is obviously considered to be the only remedy where there has been a clear abuse of process, but this must be decided upon with regard to the facts of the case. Fairness of proceedings can also be affected by whether the prosecution chooses to withhold disclosure on the grounds of public interest, but this must be on the basis of an informed decision after consulting the Treasury Solicitor 23. Public interests include the protection of police operations, though this obviously conflicts with cases where entrapment has been used. Recommendations have been provided by the Royal Commission on Criminal Justice that trial judges be given the power to exclude repetitious or conflicting evidence 24, an attempt to avoid time-wasting in this respect.

Recommendations have also been provided by the Auld Review of the Criminal Courts, which highlighted the problems that may occur when evidence obtained through deception or otherwise, is excluded, even if it is potentially reliable, and looked at the overlap between the courts’ power to stay proceedings as an abuse of its process and its powers to exclude evidence. The Review called for simplification of the jurisprudence regarding the exclusion of unfairly obtained evidence and that of staying a prosecution on the ground of an abuse of process. In fact, the Review called for more trust to be given to the trial judge’s discretion, as stated:- “The English law of criminal evidence should, in general, move away from technical rules of inadmissibility to trusting judicial and lay fact finders to give relevant evidence the weight it deserves”. In conclusion, it is submitted that the trial judge’s present powers to exclude evidence are sufficient.

The trial judge has an extremely wide discretion to exclude unfairly obtained evidence and to stay proceedings if he or she considers there has been an abuse of the process. The exercise of staying of proceedings is only rarely exercised, as there has to be a clear abuse of process, as in Looseley, otherwise the judge can just direct the exclusion of such evidence. The guidelines provided from section 78 and thereafter the human rights law incorporated after 1988 have further refined and developed the original common law approach into a fairer system of the administration of criminal justice. As stated in Montgomery and Coultier 25, the Scots law requirement is to balance the interests of the defendant as opposed to the public interest in ensuring that a serious crime is prosecuted, and this should be the main consideration in English law. 23 R – v – Horseferry Road Magistrates Court, ex parte Bennett (No. 2) [1994] 1 All ER 289 24 Cm 2263, para 8.13 25 Montgomery – v – Coultier – v – HM Advocate [2001] 2 WLR 779


  1. A Guide to The Police and Criminal Evidence Act 1984: TC Walters & MA O’Connell (Financial Training Publications) pp 103-104
  2. Criminal Evidence (5th edition): Richard May & Steven Powles 5th edition (Sweet and Maxwell) pp10-02 – 10-33
  3. Criminal Evidence: Paul Roberts & Adrian Zuckerman (Oxford) pp147 – 175
  4. Criminal Evidence & Procedure: The Essential Framework (2nd edition):
  5. Stephen Seabrooke & John Sprack (Blackstone) Evidence and the Adversarial Process – The Modern Law (2nd edition): Jenny McEwan (Hart Publishing) pp 197 – 221
  6. Human Rights, Serious Crimes and Criminal Procedure: The Hamlyn Lectures: Andrew Ashworth QC (Sweet & Maxwell) pp 52 – 87
  7. Police and Criminal Evidence Act 1984: A Practical Guide: Greg Powell & Chris Magrath (Oyez) pp 192-206
  8. The Police and Criminal Evidence Act 1984 (3rd edition): Michael Zander (Sweet & Maxwell) pp 172 – 251  
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Keeping criminal trials fair. (2017, Jun 26). Retrieved January 29, 2023 , from

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