In a witty piece of legal scholarship published in the November 1997 issue of the University of Pennsylvania Law Review, Alexander Volokh reviewed – across jurisdictions and throughout history – how many guilty men lawyers, judges and others involved in the criminal law would suffer to walk free in preference to the conviction of a single innocent. Volokh found no numeric consistency, although one (Justinian), ten (Blackstone) and 100 (Benjamin Franklin) were all popular. N guilty men, then, for what it’s worth.
It was Robert Nozick – in Anarchy, State and Utopia – who observed that any criminal justice system unwilling to confine N would be one that had no system of punishment at all. This recognises a tradeoff, a balancing act, and the impossibility of perfection. It recognises, too, that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve. Yet, in certain circles – as a libertarian, I’m reasonably familiar with the type – just to utter this unassailable proposition is almost heresy. Judicial discretion with respect to the admission of illegally obtained evidence is, in a sense, all about confining N.
Different jurisdictions have confined N each in their own way, although there is a persuasive argument that they are moving closer together. There is still considerable confusion over entrapment, which is a narrow but substantive defence in the US, but not in Australia or the UK. In Australia, the question involves a sophisticated weighing of the factors that go to define N: the public interest in convicting the guilty against the public interest in the fair administration of justice.
Illegally obtained evidence falls into two rough groupings. First, there is evidence that comes to light thanks to illegal searches and recordings. Second, there is evidence in the production of which the police have played a material part. The latter is often called ‘entrapment’, and even in jurisdictions where it is more readily tolerated, it arouses strong responses. Since it involves – at the very least – sharp practice on the part of the police, it makes people uncomfortable. Broadly speaking, evidence of the first type is dealt with under section 78 of the Police and Criminal Evidence Act, which is a statutory combination of the (narrow) discretion at common law and a wider ‘unfairness’ discretion imported under the aegis of the 1998 Human Rights Act and the European Convention on Human Rights.
By contrast, the English courts’ response to entrapment is the deployment of a stay in egregious cases, particularly where the police actions have led to the commission of a crime that would otherwise never have come about. In this, the House of Lords follows McHugh J’s dissenting judgment in Ridgeway closely. If we imagine N as a continuum rather than a discrete figure, England was traditionally at the lower end of the line. She has remained there, despite EU modifications. In Ridgeway, the appellant was undoubtedly engaged in criminal activity. The Australian Federal Police facilitated the heroin importation in question, however, in a highly active way. The centrality of the state’s involvement pushed the case over the line for the majority. Like his English counterparts, however, McHugh J was more concerned with whether – in proffering the inducement – the authorities had reasonable grounds for suspecting that the accused was likely to commit either the particular offence or one that was similar to that offence.
In Looseley, both Lord Nicholls and Lord Hutton noted (following McHugh J) that the difficulty lies in identifying conduct that is caught by such imprecise words as “lure” or “incite” or “entice” or “instigate”. Lord Nicholls noted:
If police officers acted only as detectives and passive observers, there would be little problem in identifying the boundary between permissible and impermissible police conduct. But that would not be a satisfactory place for the boundary line. Detection and prosecution of consensual crimes committed in private would be extremely difficult. Trafficking in drugs is one instance. With such crimes there is usually no victim to report the matter to the police. And sometimes victims or witnesses are unwilling to give evidence.
If entrapment – when egregious – is best managed by means of a stay, that leaves section 78 and its precise role to one side. The judicial discretion to exclude in England strikes me as narrower than in Australia, where Bunning v Cross invites explicit public policy considerations. That said, both Lord Hoffmann and Lord Hutton admitted to considerable overlap. A pre-trial stay granted to avert abuse of process and ‘a later application to exclude evidence under section 78 is, in substance, an application to stay on the ground of entrapment’. Courts should therefore ‘apply the principles applicable to the grant of a stay’.
It is only slowly that English courts have come to move away from the Kuruma doctrine, that is, evidence – no matter how obtained – if relevant, was admissible. It seemed that only evidence received by means of torture was prohibited – to use Colin Tapper’s phrase – with the status of a ‘constitutional principle’. The discretion to exclude in other circumstances undoubtedly exists, but it seems very difficult to persuade any court to exercise it. Sometimes the circumstances of its receipt go to weight, and in the civil case of Jones v University of Warwick, the illegal gathering of evidence by the respondent’s insurance company became important when it came to the question of costs. That said, for all its clarity, Australia’s Bunning v Cross doesn’t tell judges how to use the elements detailed in the decision, and a smart trial judge will simply tick all the boxes and so insulate himself from appeal on traditional Wednesbury grounds.
We are left, then, with the tradeoff between sharp policing and allowing the guilty to walk free. In a sense, there are two possible extremes: totally targeted policing, or totally targetless testing of the general public. Both are objectionable, and both intersect with excessively bureaucratic state controls in unpleasant ways. Think, for example, of Nottingham City Council v Amin, which involved police officers deliberately flagging down a cabdriver with his ‘for hire’ light switched off while he was outside his licence zone. Amin – which went all the way to the House of Lords – throws just about everything wrong with the modern juridical state into sharp relief, from entrapment to taxi medallions.
And the story of N.