"It matters not how you get it; if you steal it even, it would be admissible in evidence" (per Justice Crompton in R v Leatham [1861]) Discuss

This is a much debated and analysed quote. Does it mean that the police and the Crown Prosecution Service in England and Wales can source information by any means necessary and in spite of the method it will be admissible in a court of law? Or does it mean that a message is being sent to criminals, that if they commit a crime they must not assume that all methods of obtaining evidence to prosecute them are limited? Does it condone the theft of evidence for the purpose of using it to convict a defendant? If it does surely this is at odds with criminal law and in particular s.1 of the Theft Act of 1968, s.7 of which prescribes a maximum of seven years prison on conviction on indictment. Regardless of the specific reason or meaning (which in any case presumably there are many), the impact of this statement by Justice Crompton is far reaching. The Criminal Justice Act of 2003 even extends the range of evidence that is admissible, so defendants definitely have little to hide behind. I will structure this discussion by looking at how this statement affects the evidence that has been improperly obtained. I will then look at is relevance with reference to confession evidence. I will then look at hearsay evidence under the Criminal Justice Act. Firstly however, I will look at the background of R v Leatham [1861] and the context of Justice Crompton’s statement. By the end of this analysis we will have a full understanding of the impact of this statement in light of the English law relating to Criminal Procedure and Evidence.

R v Leatham was a case concerning whether illegally admitted evidence should be admitted. The It matters not how you get it; if you steal it even, it would be admissible in evidence formed the essence of the dicta in the case. If one looks at this statement ratioally the conclusion is that it reflects that if any evidence obtained is not admitted the potential unfairness to victims and otherwise is not something that could necessarily justified or mitigated. Also if the evidence were excluded, it could result in limiting the material, a jury or judge could peruse, when seeking a basis for their verdict in a case. In Fox v Chief Constable of Gwent [1985] 3 All ER 392, 397 Lord Fraser said:
‘The duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police for exceeding their powers.’

The ratio in both Fox v Chief Constable of Gwent and R v Leatham do give a hypocritical pronouncement in the law of evidence. Arguably the law of evidence is meant to protect all parties in a prosecution from procedural unfairness, but defendant citizens appear to be most disadvantaged, whereas the police seem to get away, for the most part, scotch free.
This as can be seen, is one view an observer can form on the matter. On the other hand is the justification for excluding the evidence under the discretion that exists under the common law from R v Sang [1980] AC 402 and also s.82 (3) of the Police and Criminal Evidence Act 1984 which preserves it. There is also discretion under s.78 of the Police and Criminal Evidence Act 1984. I will first look at the position under the common law. R v Sang held that the way the prosecution propose to use the evidence at trial is determinative of whether it should be excluded and only evidence obtained after the commission of the offence could be excluded. R v Sang also held that a judge is not allowed to refuse to admit relevant evidence merely on the basis of the way in which it was obtained. Further the court held that the discretion to exclude mainly applied to confession evidence (which we shall discuss later) and entrapment is no defence.
S.78 of the Police and Criminal Evidence Act 1984 reinforces the position under the common law at the same time as giving statutory recognition to the discretion to exclude. S.78 says:

(1) In any proceedings the court may refuse to allow evidence
The main point coming from subsection (1) of s.78 is that it is discretionary. The use of may highlights this assessment. Surely, for fairness sake all round, the word shall should be substituted for may? This is not however the route the legislators have sought to take and in the English law of Evidence this discretion formulated in 1984, still holds true. Although not going as far as author George Orwell’s totalitarian themed literary piece 1984, arguably the court, from a defendant’s point of view has been left with too much power. The use of may also lends to the argument that as there are no guarantees to the exclusion of evidence, even if it is stolen, it would still be admissible.

One can also see from (3) that if a defendant appears before magistrates, all evidence will be available to them, which obviously is a disadvantage. The judge must look at illegality and impropriety when exercising his or her discretion however this does not mean that the evidence should be excluded in these circumstances. R v Khan (sultan) [1996] 3 WLR 162 was a case that proved this point. In a case decided in the House of Lords, the lords held the trial judge was not wrong when he did not exclude a tape recording, which placed the accused as responsible for importing heroin. The police had obtained the tape by using a hidden electronic recording device, which had been attached, on the outside of the house without the owner’s awareness or consent. The police had also not acted pursuant to the Interception of Communications Act 1985, in spite following the required Home Office guidelines. The evidence was held to be admissible. This case fulfilled the premise behind Justice Crompton’s ratio. This principle does not however apply to the case of R v Mason [1988] 1 WLR 139. Here the Court of Appeal said the trial judge had been incorrect to exclude a confession under s.78. Lord Watkins in the case said the evidence should have been excluded in the interests of justice but not to discipline the police. There was also a like ratio in R v Chalkley & Jeffries [1998] 2 All ER 155, where the police refused a defendant access to a solicitor and also in R v Alladice [1988] 87 Cr App R 380, the Court of Appeal held that the trial judge should not have excluded the evidence but it would be easier to do so if the police had shown bad faith. Arguably bad faith could be demonstrated by theft so this recent case law disputes the statement from R v Leatham. R v Walsh [1990] 91 Cr App R 161 held that for s.78 to be activated there would have to be founded significant and substantial breaches of the Police and Criminal Evidence Act 1984.

One can see why for the most part judges will not exclude evidence improperly obtained and this is because of the need for fairness to the proceedings, which can be associated with fairness to the public. The Court of Appeal made reference to this in R v Smurthwaite [1994] 1 All ER 898. Here the defendant had been convicted of soliciting to murder. The defendant had solicited an undercover officer and the defendant appealed on the basis that the trial judge should have excluded the officer’s evidence. In the Court of Appeal it was held that the entrapment did not require the judge to exclude it. It was also held that enticement and also whether a defendant would commit an offence anyway should be taken into account as to whether the evidence should be included. In this case the following questions were deemed important:

(a) Was the officer enticing the defendant to commit a crime which he would not otherwise commit?
(b) What is the nature of the entrapment?
(c) Does the evidence consist of admissions to a completed offence or the actual commission of an offence?
(d) How active or passive was the officer’s role in obtaining the evidence?
(e) Was there an unassailable record of what occurred or was it strongly corrobated?
(f) Had the officer abused his role by asking questions which ought properly to be asked at the police station and in accordance with the codes?

R v Latiff [1995] 1 Cr App R 270 added the following question:
What is the seriousness of the offence charged?
R v Loosely [2001] UJHL53 defined entrapment as follows:
Entrapment occurs when an agent of the state usually a law enforcement officer or a controlled informer causes someone to commit an offence in order that he should be prosecuted
In this case the court looked at the relationship between s.78 of the Police and Criminal Evidence Act 1984 and the power of staying a trial. It was held that an entrapped defendant would not be arguing about admissibility but that he or she should not be tried at all and therefore a stay was the required remedy.

One can see that police officers and the prosecution should think carefully as to whether they should ask for evidence obtained improperly to be admitted. However also in R v Loosely Lord Hoffman and Nichols said entrapment could be justified.

1. Reasonable suspicion arbitary investigations to citizens selected at random is considered an unworthy form of state abuse
2. Supervision considered a critical factor if the operatio is to be considered acceptable particularly:
(a) Were appropriate authorities obtained under relevant statutory framework?
(b) Was the conduct of the under covering officers monitored during the course of the operatio for example were meetings between the officers and targets recorded?

The European decision in Teixeira and also Kopp v Switzerland [1998] 27 EHRR 91 should be taken into account.
3. The nature and extent of state participation in the criminal act
Factors which the Court takes into account are:
Pro-active conduct by officers may be acceptable in relation to consensual crimes which otherwise will be difficult to prosecute.

The greater decree of intrusiveness the more demanding it will be for justification for resort to this matter.
Did the state do no more than give the accused the opportunity to break the law did he or she freely take advantage in the circumstances in which it appears that if the opportunity had been presented by someone who was not an agent the accused would have acted similarly.
In spite of the various checks the police would have to make on this list, providing these requirements are carried out the evidence would be admissible.

R v Cristou [1992] 4 All ER 559 concerned a defendant who had been filmed selling stolen goods in a shop where undercover officers were the staff. The trial judge, it was held, was not wrong to not exclude the evidence, as the defendants would have committed the offence anyway. In this case Lord Diplock highlighted that the only case where evidence was excluded because of a trick was, R v Payne [1963] 1 WLR 637. The fact that there is only one such case and the existence of the shared ratio in these other cases, suggest the R v Leatham statement is generally supported. R v Samuel held that there are so many types of examples that it is inappropriate to form a general guidance as to when evidence should be excluded. R v Parris illustrated this point as well. The result appears to be that R v Leatham is followed by the courts and the majority of evidence appears to be admitted.

The approach of the courts to the admissibility of improperly obtained evidence has been subject to criticism. It is important to highlight this criticism, as it is not surprising to see why some think the courts have applied the R v Leatham ratio too extensively. Without checks and balances on the court system and a resulting lack of debate amongst academics, those who are affected by the decisions of the court will suffer. The list of those potentially affected include innocent defendants, members of the public and victims, when guilty defendants are not punished for a crime because of an abuse of process and finally a system of law and order necessary in a democratic state. Barrister Professor Susan Nash in her seminal lecture at the University of Westminster in 2004, referred to the approach of the courts as using s.78 like a sledgehammer to crack a nut. She also referred to the wide admissibility of evidence under the provision as a challenge to the right to a fair trial, under article 6 of the European convention on Human Rights. Robertson sees the position of the statute and the courts as too exclusionary. Ashworth proposes that there should be a principle of value to legal values, which should guide the courts exercise of its discretion. He sees the principle of integrity as a guiding factor in that those who enforce the law should obey it. So where police officers steal evidence as suggested by Justice Crompton, this is very contrary to the principle of integrity.

This is also grounds for a finding of an abuse of process as suggested by Sharpe. Osbourne outlines why critics exist at 55 she says:
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' 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'.
She defends the position in English law by saying the criticisms
fail to recognise that England has a 'long and rich history' of tort actions against police officers and so affected persons have a means available to obtain compensation in the appropriate circumstances.

This argument is welcome, however the extent to which police abuse the regulations under which they collect evidence is highly questionable. Mitigated against this is the need for a variety of ways of collecting evidence in light or recent terrorism attacks and also limiting the options guilty criminals have when defending themselves. Arguably these criticisms are all founded, however the case law and statute appear to be reflecting the necessity to protect the public essentially by any means necessary.

The Police often obtain evidence from defendants haven given promises. These promises include not to prosecute, offer no evidence and on acceptable pleas. For promises not to prosecute in R v Townsley, Dearsley and Bretscher [1997] 2 Cr App R 540 it was held by Lord Justice Rose:
Where a defendant has been induced to believe that he would not be prosecuted this is capable of finding a stay for abuse but such breach of promise did not necessarily Ipso Facto give rights for abuse

We can see that if this is found the relevance of the evidence being admissible is less because there would be no trial.
For a promise to offer no evidence which would mean no evidence against a defendant would be put forward, in Bloomfield [1997] 1 Cr App R 135 it was held:
It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the Courts as if it were at its beck and call, for it to say one day that it was not going to prosecute and the other day it was.

From this we can see that the courts are not quick to treat such promises seriously and a defendant would not be able to rely on such a promise. The implication is that, any evidence s/he provides to the prosecution or police on the basis of such a promise could still be admissible. This would demonstrate the extremes the CPS and police can go to and corresponds with the view in R v Leatham. In terms of promises on acceptable pleas although in England and Wales there is not a plea bargaining system like the one in the United States, a defendant may rely on such a promise. Lord Justice Shyman in DPP v Edgar [2000] 164 JP 471 stated why as follows:
It is important in principle that such compromises should generally be stuck to and that the integrity of the criminal process requires that they should be.

Thankfully for defendants, compared to the unstructured approach applied to other improperly obtained evidence, confessions are subject to more arguably fairer legislation. S.76 with reference to the admissibility of confession evidence says:
(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any a matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained
by oppression of the person who made it; or
in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

We can see from s.76 that the general rule is that all confessions made will be admissible but this is subject to whether they have been obtained by oppression or the influence of others. A defendant is substantially protected by s.76 and can even use it as sword in highlighting to the court (it is represented), they would not have said what they had, if they had not been subject to oppression or any other influence. The standard of beyond reasonable doubt, the prosecution has to prove, in order to get this confession evidence admitted, is extremely high. Having looked at the standard of proof required, one can identify a crucial difference that exists between s.78 and s.76. Whereas the power of the court in s.78 is discretionary regarding the exclusion of improperly obtained evidence, in s.76 the power of the court is mandatory providing the prosecution have not proved the confession evidence was obtained in accordance with the act. This is another factor that aids defendants and gives little credence to the statement in R v Leatham.
R v Timothy West [1988] unreported held that oppression included:

The police officer interrupting the defendant on a large number of occasions before the defendant had finished his replies;
The officer interrupting the defendant vigorously and with a raised voice; and
Using obscenity to interrupt the defendant to demonstrate that he was lying.

We can see from s.76 and this case that the confession will be excluded if there has been oppression or the defendant has been promised or put in circumstances, which would persuade him to confess. The quality of the confession would be affected by these situations so the exclusion arguably is justified. This legislation definitely does not back up the R v Leatham statement as there are restrictions placed on this evidence being admissible as in this situation it would matter how the evidence is obtained. In R v Delaney [1988] 88 Cr App R 338 the court held that not recording the interview did not amount to a breach but deprived the court of knowledge of the polices’ questions, therefore the confession was inadmissible. Regarding s.76 (2)(b) R v Goldenberg [1988] 88 Cr App R 285 held that things said or done should come from a third party not internally. In this case the defendant was a heroin addict. These case provided clarity to the law in this area.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
This ability of the court to require the prosecution to prove the confession was properly obtained puts another restriction on the police and the prosecution.
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence
of any facts discovered as a result of the confession; or
where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
Subsection (a) appears to support the R v Leatham statement, as in spite of how the confession was obtained as a result the information in it can still indirectly be used against a defendant even though the directly the confession cannot. (b) does appear to be a reasonable proposition however.
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by the accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession

This is contrary to R v Leatham and would assist a defendant.
Other evidence has been admissible in recent times because of the introduction of the Criminal Justice Act 2003. S.114 which represents, the current position regarding hearsay evidence, provides an area suitable for a brief analysis. The section covers statements not made in oral evidence, which would be admissible if they proved something in relation to the case. The exceptions to this under subsections (1)(a) to (d) include whether the parties agree to the evidence being admissible (which would be unlikely to occur when the police have appropriated evidentially damaging evidence about a defendants involvement in an offence) to court (d) being satisfied that it is in the interests of justice to admit the evidence. The court is given, under s.114 (2), guidelines as to when hearsay evidence should be admissible and these include probative value, the reliability of the evidence and its maker and the amount of difficulty in challenging the statement. Although like s.78 of Pace and unlike s.76, the power of the court is discretionary, the court has been given an adequate bundle of criteria with which to base its decision on. This is welcome, however the application of this section of the Criminal Justice Act 2003 is likely to vary form case to case due to the multiple possibilities of presenting hearsay evidence. The existence of the extensive criteria does however restrict the scope of the statement in R v Leatham. This legislation supports the statement in R v Leatham also, as it goes against the general principle that hearsay evidence in criminal law is generally excluded. What we are beginning to see in this crime control state, as described by Zuckerman above, is that the courts will admit most evidence. The central theme in all of the case law and legislation discussed in this paper is that, the interest of justice is a primary consideration as to whether the courts will admit evidence. As far as hearsay is concerned the admissibility extends to (s.115) statements and matters stated, (s.116) cases where a witness is unavailable, (s.117) business and other documents, (s.118) res gestae statements made when a person is emotionally overpowered, (s.119) inconsistent statements and even other previous statements of witnesses (see s.120). The list is so extensive that a defendant will be put in an invidious position if a substantial amount of evidence such as this does not support his or her case.
Luckily for defendants similar to s.78 of the Police and Criminal Evidence Act, s.126 of the Criminal Justice Act 2003 also gives the court the discretion to exclude hearsay evidence however regard is given to s.78. s.126 says:
(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if-
(a) the statement was made otherwise than in oral evidence in the proceedings, and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

(2) Nothing in this Chapter prejudices-
(a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or
(b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).

Although again this legislation is welcome, it should be noted that this is a discretionary power and the courts are not necessarily required to exercise it unless the conditions outlined above are established.
In conclusion, it is clear from the evidence presented that It matters not how you get it; if you steal it even, it would be admissible in evidence, with a few caveats, rings true today still. In spite of the restrictions the court in cases such as R v Smurthwaite and R v Loosely have put on the exercise of the discretion under s.78 evidence obtained improperly and otherwise generally appears to be admissible. With that said there are some notable exceptions, particularly under s.76 regarding confession evidence. This however provides little comfort, as there are still many types of evidence, which will still be admissible. Indeed, if a defendant can prove that the prosecution and/or police have carried out an abuse of process, s/he may be entitled and given a stay of proceedings on this basis. This is however a rare occurrence and unlikely to occur if a defendant is charged with a serious crime such as rape or murder. One can understand the reason for what might be seen as draconian approach to this area of law by the courts, but if one were to ask any victim of a crime or the general public, they would expect that defendants be prosecuted for crimes by a system that utilises every measure open to it within reason. This idea of ‘reasonable measure’ is where the problem lies and the scope for abuse can be too wide. Regardless of this, Justice Crompton’s 1861 ratio appears to have lasted the test of time.

Bibliography

Articles
Ashworth, A, ‘Testing Fidelity to Legal Values: Official Involvement and Criminal Justice’ [2000] 63 Modern Law Review 633
Barrister Professor Susan Nash Inaugural lecture: Is a fair cop always fair: Using improperly obtained evidence to secure a conviction: S.78: Using a sledgehammer to crack a nut? University of Westminster 2004, Debut as a Professor (leading expert in this area)
Osbourne, D Suppressing the Truth: Judicial Exclusion of Illegally Obtained Evidence in the United States, Canada, England and Australia http://www.murdoch.edu.au/elaw/issues/v7n4/osborn74_text.html#Criticism%20of%20the%20English%20'Fairness'%20Discretion_T
Robertson, G in his article ‘Entrapment Evidence: Manna from Heaven or Fruit of the Poisoned Tree? [1993] Crim LR 806
Sharpe, S, Covert Police Operatios and Discretionary Exclusions of Evidence’ [1994] Crim LR 793

Legislation

Criminal Justice Act of 2003
Interception of Communications Act 1985
Police and Criminal Evidence Act 1984
Theft Act 1968
Cases
Bloomfield [1997] 1 Cr App R 135
DPP v Edgar [2000] 164 JP 471
Fox v Chief Constable of Gwent [1985] 3 All ER 392, 397
Kopp v Switzerland [1998] 27 EHRR 91
R v Alladice [1988] 87 Cr App R 380
R v Chalkley & Jeffries [1998] 2 All ER 155
R v Cristou [1992] 4 All ER 559
R v Delaney [1988] 88 Cr App R 338
R v Goldenberg [1988] 88 Cr App R 285
R v Khan (sultan) [1996] 3 WLR 162
R v Latiff [1995] 1 Cr App R 270
R v Loosely [2001] UJHL53
R v Mason [1988] 1 WLR 139
R v Sang [1980] AC 402
R v Smurthwaite [1994] 1 All ER 898
R v Timothy West [1988] unreported
R v Townsley, Dearsley and Bretscher [1997] 2 Cr App R 540
R v Walsh [1990] 91 Cr App R 161
R v Payne [1963] 1 WLR 637

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