Summary

This presentation discusses illegally obtained evidence, including the reasons for excluding it and some cases on the topic. It covers the legal framework and rationales behind the exclusion of such evidence.

Full Transcript

ILLEGALLY OBTAINED EVIDENCE 20TH & 21ST NOVEMBER 2024 EVIDENCE OBTAINED BY ILLEGAL OR UNFAIR MEANS This is evidence obtained illegally, ie, by a crime, tort or in contravention of any constitutional or statutory provisions governing the powers and duties of the bodies/ persons involved in i...

ILLEGALLY OBTAINED EVIDENCE 20TH & 21ST NOVEMBER 2024 EVIDENCE OBTAINED BY ILLEGAL OR UNFAIR MEANS This is evidence obtained illegally, ie, by a crime, tort or in contravention of any constitutional or statutory provisions governing the powers and duties of the bodies/ persons involved in investigating crime. It may also be obtained by other improper or unfair means such as trickery, deception, threats, inducements, entrapment etc There are two divergent views regarding the admissibility of evidence obtained through such means. DIVERGENT THOUGHTS ON ILLEGALLY OBTAINED EVIDENCE FOR AGAINST Evidence that is relevant Illegally obtained and otherwise admissible evidence should always be should not be excluded excluded, even if it means because of the means by occasioning an injustice, which it was obtained – guilty going free since excluding it will in Its admission may bring some cases result in the administration of injustice, including justice into disrepute. acquittal of the accused. TRADITIONAL POSITION AT COMMON LAW R v Leatham (1861) 8 Cox CC 498 at 501 “It matters not how you get it; if you steal it even, it would be admissible in evidence.” Crompton J. Kuruma S/O Kaniu v R AC 197 “The test to be applied both in civil and criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.” TRADITIONAL POSITION AT COMMON LAW R v Sang AC 402 The court was not concerned with how evidence was obtained but merely with how it was used by the prosecution at trial. A judge had no discretion, except in cases of admissions, confessions and evidence obtained from accused after commission of offence, to refuse to admit relevant admissible evidence merely because it had been obtained by improper means. A defence of Entrapment (had no place in English law) could not be accepted. EXCEPTIONS TO THE TRADITIONAL RULE (COMMON LAW RULE) Evidence obtained by torture A v Secretary of State for the Home Department (No 2) 3 WLR 1249, HL – as a matter of constitutional principle evidence obtained by torture may not lawfully be admitted against a party in a British Court, irrespective of where, or by whom, or on whose authority the torture was inflicted. Improperly obtained confessions Theft of privileged documents in courts EXAMPLES OF ILLEGAL MEANS OF OBTAINING EVIDENCE Torture, cruel and degrading treatment Covert recording and filming Search of premises without warrants Entrapment - Mohamed Koriow Nur v Attorney General eKLR JOIN AT MENTI.COM | USE CODE 23137750 Task RATIONALES FOR EXCLUDING ILLEGALLY OBTAINED EVIDENCE – RIGHTS PROTECTION RATIONALE Protection of rights and the exclusion of evidence are intertwined. Infringement of an individual’s right provides a prima facie justification for exclusion of evidence obtained as a result of the infringement. A right that is not protected should not be proclaimed…recognition of a right without any protection would be pretence. Where evidence has been obtained in breach of an accused person’s right, the only sure means of ensuring that no disadvantage is suffered by the accused is to place him/ her in the same position as though there had been no breach. FAIR TRIAL RATIONALE Evidence is excluded in order to ensure that the accused person receives a fair trial. This involves considering whether the proceedings as a whole, including the procurement of evidence was fair. It is premised on the theory that the use of evidence procured in breach of rights render the proceedings unfair. It is unfair for the state to profit from its own wrongdoing. The procurement of evidence by violation of entrenched rights renders the trial unfair as it circumvents and undermines the accused person’s right to defend himself in criminal proceedings. For purposes of trial unfairness, the term “proceedings” must mean the entire proceedings from the institution of investigations to the conclusion of the criminal case. RELIABILITY RATIONALE It is better referred to as the unreliability principle. Evidence should be excluded where its reliability has been impaired, or the accused’s ability to test its reliability has been impaired based on how it was obtained. Evidence procured in violation of human right is excluded if the manner of its procurement rendered it unreliable (so questionable that no credit ought to be given to it). DETERRENCE RATIONALE Deterrence of police misconduct/ other investigatory authorities. Exclusion thus deprives an officer of the fruits of his misconduct, and this operates to discourage future misconducts. It is meant to deter future breaches and not redress past violations. Court excludes evidence obtained illegally to ‘discipline’ the police and discourage them from obtaining evidence in such a way. JUDICIAL INTEGRITY RATIONALE Evidence procured in violation of human rights should be excluded if its admission will undermine the integrity/ legitimacy of the justice system. Administration of justice loses moral legitimacy when it punishes the accused for violating the law while at the same time rewarding a police officer for violating another law by admitting and using evidence procured through misconducts. While deterrence is violator-centric, this rationale is court-centric and focuses on the justice system. COMPENSATION RATIONALE Anchored on the value that rights have value and consequently any breach of a right can be compensated through some means. The appropriate compensation takes the form of exclusion of evidence of the evidence that is collected in consequence of that breach. The only way to set the clock back is to treat the parties as though the violation never occurred. Deprives the state of its wrongful gain and leaves the accused to face the case he would have faced if his right had never been violated = compensation. CONSTITUTIONAL DUTY Exclusion of tainted evidence may be based on common law, statutory or constitutional provisions. Where the rule is housed within the constitution, then different considerations apply to it. Constitutions impose special duties on courts which are obligatory in nature. Article 50 (4) of the CoK is located within the Bill of Rights, which has unique interpretation requirements – article 19, 20, 24, 25 of CoK. This rationale is also subsumed within the rights protection rationale. DOCTRINE OF LEGAL GUILT An accused person should not be held guilty of a crime merely upon a showing that, in all probabilities, and based on reliable evidence, he did what he is alleged to have done. He can only be held guilty if those factual determinations are made in the procedurally regular fashion by the authorities, acting within their legally endowed powers. This rationale is subsumed within rights protection rationale. ARGUMENTS IN FAVOUR OF ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE Public safety – exclusion of such evidence may allow dangerous criminals to walk free, and this undermines public safety. Proportionality arguments – exclusion of evidence is a disproportionate remedy to a ‘minor’ breach Efficiency – exclusion is an inefficient remedy because it generates only a marginal value (exclusion), but an excessive cost (suspect walking free). Epistemic – The pursuit of truth should never be sacrificed because to do so delegitimizes the judicial system. CURRENT POSITION - KENYA Article 50 (4) of the CoK 2010 “Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.” JOIN AT MENTI.COM |56917889 Task CONSIDERATIONS UNDER “…TO RENDER THE TRIAL UNFAIR” 1. Whether tainted evidence renders the trial unfair on account of the manner it was obtained or its impact on the proceedings or both. 2. Whether the unfairness of the trial is judged from the perspective of one party or both? Criminal cases – accused person, Civil cases – rights trump pursuit of truth 3. Whether admission of evidence procured through violation of rights of third parties can render the trial unfair? No logical sense to exclude tainted evidence when the rights violated belong to the Accused and admit when it is a third party – deterrence rationale CONSIDERATIONS UNDER “…TO RENDER THE TRIAL UNFAIR” 4. Whether admission of tainted evidence provided by private individuals can render the trial unfair – art 20(1) of the CoK 2010 5. Whether admission of tainted evidence favourable to the accused person can render a trial unfair – compensated or ameliorated by cross-examination 6. Whether admission of evidence obtained in violation of articles 49 (1) (a) (b) (c) (d), 50 (2) (g) (h) (i) & (l) of the CoK as well as other fair trial rights render the trial unfair CONTOURS OF THE PHRASE “…DETRIMENTAL TO THE ADMINISTRATION OF JUSTICE” An unfair trial is always detrimental to the administration of justice. Criteria used to determine whether the admission of any tainted evidence would be detrimental to the administration of justice. 1. The importance of evidence 2. Good faith 3. The seriousness of the crime 4. Nature and extent of the violation 5. Public opinion 6. Urgency CASES Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others eKLR Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) eKLR

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