Chapter 11 Selected guidance on approaching questions

Evidence obtained by illegal or unfair means


The evidential issues likely to arise at the trial (and the way in which they are likely to be resolved) are as follows.

  1. Whether the proceedings should be stayed as an abuse of process
  2. The test is whether in all the circumstances a trial would offend the court’s sense of justice and propriety or undermine public confidence in the criminal justice system and bring it into disrepute: see per Dyson SCJ in R v Maxwell [2011] 1 WLR 1837, The Modern Law of Evidence (‘MLE’) 13th ed p322.

    The leading authority in cases of entrapment is R v Looseley and Attorney General’s Reference (No 3 of 2000) [2001] 1 WLR 2060, MLE 13th ed at pp339-343: where an accused can show entrapment, the court may stay the proceedings as an abuse of the court’s process or may exclude evidence under s 78, PACE 1984, but a stay should be the normal remedy because state-created crime is unacceptable and improper and a prosecution in such circumstances would affront the public conscience.

    A useful guide is to consider whether the police merely presented the accused with an unexceptional opportunity to commit a crime and did no more than might have been expected from others in the circumstances. The application of this guide to the facts of this case does not provide a clear answer: Pete did not act like an ordinary member of the public, but ordinary people do not get involved in providing or hiring assassins, so some active behaviour by Pete was permissible. However, three other relevant factors point to entrapment. First, initially Pete has no reasonable grounds to suspect that Dave wanted his wife murdered. Second, there is no evidence that Pete was supervised. Third, the extent to which Pete participated in the crime. Dave turned up for the 7pm meeting, thereby indicating that he did want to get rid of his wife and her lover, and also offered to provide a gun. However, it was Pete who made the running, initially volunteering to get rid of Dave’s wife and her lover and, on the next day, asking for a relevant address and suggesting that Dave should deflect any suspicion from himself by being a long way away at the time of the killing in the presence of both the public and a lot of his friends.

  3. Whether to exclude under s 78, PACE 1984
  4. If a stay is not granted, the court may exclude the tape-recording under s 78, PACE 1984. The test under s 78(1) is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. The relevant authority is R v Smurthwaite and Gill [1994] 1 ALL ER 898, CA, MLE 13th ed p343. The tape-recording is most likely to be an accurate and unchallenged record, but the first meeting was not recorded and it was Pete, not Dave, who made the running and took the main part in the planning.

  5. Whether to admit the confession
  6. It looks as if the confession was obtained in consequence of an improper denial of access to a solicitor in breach of s 58, PACE 1984, but even if this is the case, whether the confession should be excluded on this basis under s 76(2)(b), PACE 1984 (unreliability) or s 78, PACE 1984 (adverse effect on fairness of proceedings) will turn on Dave’s personal characteristics and what knowledge he had of his rights: see R v Alladice (1988) 87 Cr App R 380, CA and generally MLE, 12th ed Ch 15.

  7. Whether to admit evidence of the finding of the shotgun and the piece of paper in its barrel

Evidence of Dave’s possession of the shotgun is relevant to show that his offer to supply a gun for the purposes of disposing of his wife and her lover was genuine. If it can be proved that the words on the piece of paper are in Dave’s handwriting, the prosecution will argue that it is open to the jury to conclude that the ‘you’ referred to Dave’s wife and that overall the message meant that the wife would get nothing from Dave (and thus no maintenance payments) apart from a bullet. The statement is unlikely to be treated as inadmissible hearsay, because it is not a statement of the matter sought to be proved: see R v Twist [2011] 2 Cr App R 189 (17), CA and generally under Implied assertions in Ch 12, MLE 13th ed.

If the finding of the shotgun and the piece of paper are treated as being relevant, then they will be admissible even if Dave’s confession as to the possession of his gun – which, as we have seen, can be regarded as adverse to Dave – is ruled inadmissible under s 76(2), PACE 1984: see s 76(4)-(6), PACE 1984 and generally Facts discovered in consequence of inadmissible confessions, Ch 15, MLE 13th ed.

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