There is both common law and statutory

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1 The Exclusinary Rule in Criminal Prcedure: a cmparative study f the English, American, and Japanese appraches by Ry Ogis Althugh England and Wales d nt have 'the exclusinary rule' adpted by the United States Supreme Curt, s.78 f the Plice and Criminal Evidence Act 1984 allws the judge t exclude certain evidence based n unfairness in all the circumstances, including the illegality f the investigative prcedures (Hungerfrd-Welch, Criminal Litigatin &^_ Sentencing, 5th ed., Cavendish Publishing (2000), p ; Davis, Crall, Tyrer, Criminal Justice, 2nd ed., Lngman (1999), p.208). As the Human Rights Act 1998 came int frce, the pssibility that the defence challenge the admissibility f prsecutin evidence alleging the breach f the Eurpean Cnventin f Human Rights seems t increase (Cheney, Dicksn, Fitzpatrick, Uglw, Criminal Justice and The Human Rights Act 1998, Jrdans (1999), p.24). The aim f this article is t cmpare the reasning f and appraches t the exclusin f certain evidence in criminal litigatin in England, in the United States, and in Japan. 28 EXCLUSIONARY DISCRETION IN ENGLAND AND WALES There is bth cmmn law and statutry exclusinary discretin in England. In 1963, the Curt f Appeal already held in R v Payne [1963] 1 WLR 637, where fllwing a car cllisin the accused was induced int prviding a specimen f bld by the pretence that it was required t determine whether he was ill, whereas in reality the reasn fr btaining it was t shw that the accused had been drinking alchl, that the 7 evidence shuld have been excluded because if the accused had realised that the specimen wuld be used against him, he might have refused t subject himself t examinatin. Hwever, the leading case n cmmn law exclusinary discretin was R v Sang [1980] AC 402, where the accused cntended that he had been induced t cmmit the ffence by an infrmer acting n the instructin f the plice, and that therefre the trial judge shuld exclude any evidence f the cmmissin f the ffence thus induced. Their Lrdships held that the judge's functin at a criminal trial was t ensure a fair trial accrding t the law, and therefre the judge had a discretin t exclude prsecutin evidence t ensure the accused a fair trial when the judge finds that the evidence's 'prejudicial effect utweighs its prbative value'. Hwever, because a curt is nt cncerned with hw evidence was btained but merely with hw it is used at the trial, a judge has n discretin t refuse t admit relevant admissible evidence merely because it has been btained by imprper r unfair means. If an infrmer induced the accused t cmmit the alleged crime and therefre evidence against the accused had been imprperly btained by the plice, it culd be a factr in mitigating the sentence impsed n the accused, and might als be a matter fr civil r disciplinary actin against the plice, but it was nt a grund n which the judge culd exercise his discretin t exclude the evidence. The Huse f Lrds seems t hld that a judge may exclude the evidence t the extent that it disturbs the sund fact-finding capacity f the jury, r t the extent that it prevents the jury frm finding the truth (see, Evidence, Inns f Curt Schl f Law, 2000/2001, pp ). This means that the Lrds handled the matter within the evidential principle. On the ther hand, s.78 f PACE 1984 prvides that a judge may exclude evidence when

2 'having regard t all the circumstances, including the circumstances in which the evidence was btained, the admissin f the evidence wuld have such an adverse effect n the fairness f the prceedings that the curt ught nt t admit it.' The sectin verlaps with the cmmn law exclusin, but the exclusin under s.78 might g beynd that because it is unfair if a curt admits unreliable evidence, but the 'fairness f the prceedings' can als be challenged even if the evidence has ample prbative value. Then what is the 'fairness f the prceedings'? Befre studying the English cases, it is wrth lking at American and Japanese appraches. AMERICAN APPROACH In 1914, the Supreme Curt f the United States held in Weeks v United States, 232 US 383 (1914), where a gvernment fficer searched a defendant's rm and seized certain letters withut a warrant, that the evidence btained withut a warrant in vilatin f the 4th Amendment t the Cnstitutin f the United States culd nt be used as evidence against the defendant. The Curt held that: The effect f the 4th Amendment is t put the curts f the United States and Federal fficials, in the exercise f their pwer and authrity, under limitatins and restraints as t the exercise f such pwer and authrity, and tjbrever secure the peple, their persns, huses, papers, and effects, against all unreasnable searches and seizures under the guise f law.'... 'The tendency f thse wh execute the criminal laws f the cuntry t btain cnvictin by means f unlawful seizures... shuld find n sanctin in the judgments jthe curts...'... 'If letters and private dcuments can thus be seized and held and used in evidence against a citizen accused f an ffence, the prtectin f the Furth Amendment, declaring his right t be secure against such searches and seizures, is f n value...' It was the first case in which the pinin f the Curt annunced the exclusinary rule, but because it was based n n explicit requirement f the Amendment itself nr n Cngressinal legislatin, and because the effect f the rule is, in a sense, shcking, in that, as Justice Cardz nce put it, '[The] criminal... g free because the cnstable had blundered (Peple v Defre, 242 NY 13, 2 1, 150 NE 585,587 (1926);,' The raisn d'etre f the rule has been vigrusly debated (see, fr example, Alien, Kuhns, Stuntz, Cnstitutinal Criminal Prcedure, 3rd. ed. (1995), p. 902). Since Weeks was a federal prsecutin case interpreting the United States Cnstitutin, the Curt later addressed the questin whether the exclusinary rule is inherently implicit in the 4th Amendment and is therefre binding n the states thrugh the 14th Amendment Due Prcess Clause in Wlfv Clrad, 338 US 252 (1949). In that case, the Curt held that the 'Security f ne's privacy against arbitrary intrusin by the plice... which is at the cre f the Furth Amendment... is basic t ajree sciety. [And] it is therefre... enfrceable against the States thrugh the Due Prcess Clause.... But the ways f enfrcing such a basic right raise questins f a different rder.... [The Weeks ruling] was nt derived frm the explicit requirements f the Furth Amendment; it was nt based n legislatin expressing Cngressinal plicy in the enfrcement f the Cnstitutin. The decisin was a matter f judicial implicatin. [W] E must hesitate t treat [the exclusinary rule] as an essential ingredient f the right.' Then the Supreme Curt recnsidered Wlf and verruled it in 1961 (Mapp v Ohi, 367 US 643 (1961)). The Curt held that: 'The admissin f the right [t privacy] culd nt cnsistently tlerate denial f its mst imprtant cnstitutinal privilege, namely, the exclusin f the evidence which an accused had beenjrced t give by reasn f the unlawful seizure. T hld therwise is t grant the right, but in reality t withhld its privilege and enjyment.' There, the Curt recgnised the exclusinary rule was 'an essential part f the right t privacy (Mapp v Ohi, supra at 657).' The Curt als pinted ut, in replying t the 'criminal ges free' criticism, that: 'There is anther cnsideratin... the imperative f judicial integrity. The criminal ges free, if he must, but it is the law that sets him free.'... 'Nthing can destry a gvernment mre quickly than itsjailure t bserve its wn laws, r wrse, its disregard f the charter f its wn existence. If the Gvernment becmes a lawbreaker, it breeds cntempt f law (Mapp v Ohi, supra at 660). ' Grwing cncern abut crime must have had influence n the interpretatin f the rule. The Supreme Curt held in 1984 that: "The substantial scial csts exacted by the exclusinary rule fr the vindicatin f Furth Amendment rights have lng been a surce f cncern (United States v Len, 468 US 897, at 907 (1984))". 'The Furth Amendment cntains n prvisin expressly precluding the use f evidence btained in vilatin f its cmmands... The wrng cndemned by the Amendment is fully accmplished by the unlawful search r seizure itself, and the exclusinary rule is neither intended nr able t cure the invasin f the defendant's rights which he has already suffered. The rule thus perates as a judicially created remedy designed t safeguard Furth Amendment rights generally thrugh its deterrent effect, rather than a persnal cnstitutinal right f the party aggrieved.... Whether the exclusinary sanctin is apprpriately impsed in a particular case... is an issue separate frm the questin whether the Furth Amendment rights f the party seeking t invke the rule were vilated by plice cnduct. Only the frmer questin is currently befre us, and it must be reslved by weighing the csts and benefits f preventing the use in the prsecutin's case-in-chief f inherently trustwrthy tangible evidence... (United States v Len, supra, at 906, 901).' 29

3 30 Hence the exclusinary rule is derived frm the prtectin f privacy, and we see three ratinales f the rule indicated in these cases. The first ne says that the rule is an implicit part f the Furth Amendment. The secnd ne says that the purpse f the rule is t maintain judicial integrity, while the third ne claims the deterrent effect f the rule. The thery best based n principle is the first ne because it states that the rule is a cnstitutinal imperative. Accrding t the secnd thery, a curt wuld suppress the evidence t the extent that the suppressin f the evidence is useful t maintain public cnfidence in the justice system, while the third ne claims the suppressin f the evidence nly when the curt can expect the deterrent effect f the suppressin n future plice cnduct. JAPANESE APPROACH In Japan, the Cnstitutin f Japan and the Cde f Criminal Prcedure, bth f which are strngly influenced by Angl-American law, regulate arrests, searches and seizures. Art. 3 5 f the Cnstitutin f Japan, mdelled n the Furth Amendment f the United States Cnstitutin, prvides that the right f all persns t be secure in their hmes, and their papers and effects against entries, searches and seizures shall nt be impaired except upn warrant issued fr prbable cause, and describing the particular place t be searched and items t be seized. Apart frm the pwers f search and seizure, a plice fficer has the pwer f stp and inspectin (nt search), being allwed t stp a persn suspected f being invlved in a crime, t questin him, and t inspect his/her persnal belngings if it is necessary t clear the suspicin. This pwer must be executed upn reasnable grunds fr suspecting that a persn is abut t cmmit r has cmmitted an ffence, r that a persn has sme knwledge abut an ffence which is ging t be cmmitted r has been cmmitted. The inspectin f a persn's belngings cannt be made withut the cnsent f that particular persn being questined. In 1978, the Supreme Curt f Japan annunced that illegally btained evidence had t be excluded frm the prsecutin evidence in certain circumstances, even thugh there is n prvisin f an exclusinary rule f tangible evidence. In that case, a plice fficer stpped a persn fr a suspicin f sliciting and drug dealing n the street. Having questined him fr a certain time, the fficer frisked the persn and felt smething hard in an inside cat pcket. The fficer requested him t shw his belngings, which the persn refused t d. After unsuccessfully trying t persuade him t d s, the fficer put his hand int the pcket withut his cnsent, and pulled ut a metal case, which cntained a hypdermic syringe and sme white pwder, which turned ut t be meta-amphetamine. Referring t arts. 35 and 31 (Due Prcess Clause) f the Cnstitutin, the Supreme Curt held that a curt had t exclude the prsecutin evidence when the breach f the la\v is s serius that the exclusin wuld be apprpriate t prevent future plice miscnduct. T determine if the exclusin f specific evidence is apprpriate r nt, a curt shuld take all the circumstances int accunt, e.g., seriusness f the ffence, seriusness f the illegality f the plice fficer's cnduct, the effect f the exclusin f evidence, the strength f prsecutin's case, etc. (Saihan S , Keishu ). Nt surprisingly, we see the influence f the American precedents here. The questin that a curt has t address is twfld. Firstly, shuld the individual right t privacy be vilated by plice cnduct, and, if the answer is psitive, then secndly, is the exclusin f evidence apprpriate r nt. Accrdingly, even if the right t privacy is vilated, evidence might nt be excluded. As a matter f fact, the 7 Supreme Curt f Japan held in that particular case that althugh die plice fficer's cnduct (taking persnal belngings ut frm pcket withut cnsent) amunted t unlawful search withut warrant r cnsent, taking all the circumstances int accunt, the illegality was nt serius enugh t exclude the crucial evidence f drug-related crime. Since then, althugh there are many lwer curt cases where the prsecutin evidence was excluded because f the illegality f the investigatin prcedure, there is n Supreme Curt case where the Curt has actually excluded the prsecutin evidence. The cnvictin rate is very high in Japan partly because the prsecutin scrutinises cases and chses serius nes backed up by strng evidence t indict. This might lead the Supreme Curt t find that the strength f the prsecutin case and the seriusness f crime predminate ver the seriusness f the plice miscnduct and therefre nt t exclude the evidence. KEY UK JUDGMENTS AND IMPACT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS In 1992, the Curt f Appeal held that t admit the evidence btained by unwarranted interceptin f crdless telephne cnversatins was nt unfair because there was n deliberate cntraventin f the law by the plice, and prbably because the ffences charged were serius enugh t utweigh the unfairness dne t the defendants (R v Effik, RvMitchell [1992] Crim LR 580). In R v Khan [1996] 3 All ER 289, the appellant visited the hme f anther man t which the plice, unknwn t either f them, had attached a listening device, whereby the plice btained a tape recrding f a cnversatin which shwed that the appellant was invlved in the imprtatin f cntrlled drugs. The appellant cntended, inter alia, that the admissin f the tape recrding wuld breach the right t respect fr private life prtected under art. 8 f the Eurpean Cnventin f Human Rights, and the judge shuld exercise his discretin t exclude it under s.78 f PACE 1984 because f that breach.

4 The Huse f Lrds held that: (1) under English law, there was in general nthing unlawful abut a breach f privacy, therefre even if the right t privacy existed, the tape recrding was admissible as matter f law, (2) the fact that the evidence was btained in circumstances, which amunted t a breach f art. 8 f the Cnventin, was relevant t, but nt determinative f, the judge's discretin t admit r exclude such evidence under s.78. The judge's discretin had t be exercised accrding t J whether the admissin f the evidence wuld render the trial unfair, and the use f material btained in breach f rights f privacy did nt itself mean that the trial wuld be unfair. 'It wuld be a strange reflectin n ur law if a man wh has admitted his participatin in the illegal imprtatin f a large quantity f herin shuld have his cnvictin set aside n the grunds that his privacy has been invaded. (R. v Khan supra, at 302).' Article 8 f the Eurpean Cnventin as regards English law, and apart frm the pssible change f significance which may cme alng with the Human Rights Act 1998, it is interesting t see hw die English apprach t privacy differs frm the American ne (cmpare Katz v United States, 389 US 347 (1967)). The breach f individual privacy des nt necessarily trigger the judge's discretinal pwer either under cmmn-law r under s.78. Then, when is the trial cnsidered t be unfair? In general, R v Quinn [1990] Crim LR 581 held that the functin f the judge is t prtect the fairness f the prceedings, and that the prceedings may becme unfair, fr example, where there has been an abuse f prcess, where evidence has been btained in deliberate breach f prcedures laid dwn in an fficial cde f practice. But 'The merejact that there has been a breach f the Cdes f Practice des nt f itself mean that evidence has t be rejected. It is n part f the duty f the curt t rule a [piece f evidence] inadmissible simply in rder t punish the plicejbrjailure t bserve the Cdes f Practice (R. v. Delaney [1988] 153 JP 103, at 106).' In Matt v DTP [1987] Crim LR 641, where the plice fficers knwingly tk a breath sample frm a driver n his private prperty, the Divisinal Curt quashed the Crwn Curt cnvictin based n the illegality f the investigative prcedure. The curt fund that the s.78 required the curt t have regard t die way the evidence was btained, and that at the breath test, the plice were acting malajides in that they knew they were acting in excess f their pwers. In R v Masn [1988] 86 Cr App R 349, the Curt f Appeal held inadmissible under s.78 the cnfessin btained after the accused and his slicitr were falsely tld by the plice that the fingerprints f the accused had been fund n the scene f crime. In R v Samuel [1988] 2 All ER 135 it was held that the refusal f access t the appellant's slicitr befre the interview withut reasnable grunds was the denial f ne f the mst imprtant and fundamental rights f a citizen, and therefre the admissin f evidence f the interview was nt allwed. In R v Canale [ 1990] 91 Cr App R 1, where the plice fficers did nt take a cntempraneus nte f the interviews, the curt quashed the cnvictin because there were 'flagrant', 'deliberate' and 'cynical' breaches f the Cde f Practice, and because the mst imprtant evidence in the shape f a cntempraneus nte was nt available t the judge. And in R v Nathaniel [1995] 2 Cr App R 565, where the appellant's DNA prfile was retained in breach f s. 64(1) f PACE and he was, in effect, misled in cnsenting t give 77 the bld sample, the Curt f Appeal fund that t allw the bld sample t be used in evidence at a trial wuld have had an adverse effect n the fairness f the trial. On the ther hand, it was held in the fllwing situatins that the evidence shuld nt be excluded. The appellant had been arrested n suspicin f the theft f a mtrcycle. After he was cleared frm that suspicin, the plice fficer went thrugh the breath specimen's prcedure withut telling the appellant that he was n lnger under suspicin fr the theft r diat he was under arrest fr anther ffence. The appellant failed t prvide the specimens and was fund guilty f refusing t prvide the specimens withut reasnable grunds. The curt fund diat there was neidier malajides nr imprpriety t admit the evidence f breath specimen's prcedure (Daniels v DPP [1992] 156 JP 543). When the plice devised a subterfuge t arrest drug smugglers, and jewellery thieves and handlers, the evidence was admissible if the accused, unprvked, acted under his wn free will n the assumptin that the facts were as he believed them t be (R v MacLean and Ksten [1993] Crim LR 687; R v Christu (1992) 95 Cr App R 264). The accused was suspected f tw different rapes. While he was under arrest fr the secnd ffence, n which he was later tried and acquitted, a sample f his hair was taken n die basis f an assurance given t the accused and his slicitrs that the sample wuld nly be used in cnnectin with the secnd ffence. Instead f making a cmparisn with the hair fund at the scene f secnd ffence, the plice made a cmparisn with a bdy sample f die first ffence and the result shwed a match. Being uncertain abut the admissibility f this evidence, the plice requested the accused t give a further hair sample, which he initially refused t d, but after he was tld that the plice wuld take a sample by frce and three fficers entered the cell in rit headgear, he finally cnsented t give it. The curt held diat the fairness f prceedings invlves fairness t the public gd as well as t the defence, and that the DNA prfile prvided very strng evidence f the ffence. Even if the taking f the sample was nt authrised by statute, this did nt cast dubt n the accuracy r strength f the evidence and the evidence shuld nt be excluded (R v Cke [1995] Crim LR 497). 31

5 32 The accused was suspected f stealing gas and electricity. Having been denied entry int his hme, ne f the fficers f the electricity cmpany, accmpanied by plice fficers and armed with a warrant, kicked and kncked n the dr s as t indicate his intentin t frcibly enter if it was necessary, at which pint the accused pened the dr and was fund t have used mechanical apparatus t bypass the gas and electricity supply recrdings. The curt held that even if there have been breaches f Cde f Practice as t the entry, the admissin f the evidence did nt have any effect at all n the fairness f the prceedings. The apparatus was there fr all t see, ntwithstanding whether the entry was effectuated prperly r nt. Its existence was such that n pssible injustice t the accused culd have been ccasined (R v Stewart [1995] Crim LR 500). A drug curier was intercepted at an airprt and persuaded t make a call t the accused. The cnversatin was recrded and a transcript was presented befre the curt as evidence. The accused appealed, cntending that the evidence shuld be excluded. The curt held that the mere fact that the evidence was btained by subterfuge did nt necessarily lead t its exclusin. The curts had nt gne s far as t say that all was fair in tackling with rganised drug crimes, but they ' J had nt sught t limit the general cmmn law principle that evidence might be, and usually was, admissible regardless ' J ' b f the surce frm which it came and the means by which it was btained. There was n special reasn fr unfairness in the present case (R v Cadette [1995] Crim LR 229). JUDICIAL ATTITUDES TO EXCLUSION IN ENGLAND AND WALES, US AND JAPAN Accrding t the ruling f R v Latif[\996] 1 All ER 353 at 361, in deciding whether t exclude illegally btained evidence, the judge must weigh bth the balance f the public interest in ensuring that thse that are charged with serius crimes shuld be tried, as well as the cmpeting public interest in nt cnveying the impressin that the curt will adpt the apprach that the end justifies any means. In the end, the curts in England, in the United States, and in Japan adpt the same apprach when facing the exclusin prblem, i.e., by taking all the circumstances int accunt and weighing the csts and benefits f the exclusin. It is exclusin n a case-by-case basis, and as the cmmentary trv Cke nted, the curts seems t be reluctant t exclude evidence which clearly shws that an accused persn has cmmitted a serius ffence (R v Cke, supra, at 499). Hwever, the reasning f the exclusin differs frm cuntry t cuntry. American and Japanese curts seem t adhere t the deterrent thery. The rule's prime purpse is t deter future unlawful plice cnduct and thereby effectuate the guarantee f the Cnstitutin against unreasnable searches and seizures. It is designed t safeguard Furth Amendment rights thrugh its general deterrent effect by remving the incentive t disregard it, rather than a persnal cnstitutinal right f the party aggrieved (Elkins v United States, 364 US 206 at 217 (1960); United States v Calandra, 414 US 338 at 348, 349 (1974)). Hwever, shuld a trial curt predict r evaluate the deterrent effect f exclusin f evidence n future plice cnduct? Accrding t that thery, a curt, facing an exclusin submissin frm the defence, may exclude the evidence when the exclusin f certain evidence in that specific case might have a general deterrence effect n juture plice miscnduct. Is this the functin f a criminal trial? Are trial curts capable f estimating the effect? It is true that ne f the functins f the higher curt is t establish a legal standard f the practice f the executive branch thrugh its decisins. The exclusinary discretin exercised by the highest curt may have a deterrent effect n future plice cnduct t the extent that it draws a legal line between what is lawful and what is nt. But the curts d s in rder t state what the law is, and nt t supervise the executive. As t this pint, the English curts' stance stated in R v Masn is clear: 'This is nt the place t discipline the plice... we are cncerned with the applicatin f the prper law. The law is... that a trial judge has a discretin t be exercised, f curse, upn right principles t reject admissible evidence in the interests f a defendant having a fair trial (R v Masn, supra at 354).' Althugh the cases quted abve are nt cmprehensive, the English curts seem t exclude evidence under s.78 when (1) plice miscnduct casts dubt n the reliability f the evidence, and (2) plice miscnduct is s serius in the nature r in the way f breach that the admissin f the evidence renders the judicial prcess unfair. Finding the truth and punishing the criminals/acquitting the inncent is the primary cncern f a criminal trial. But there is anther imprtant functin: the prtectin f human rights. In a free sciety, where cnstitutinal law guarantees fundamental human rights, the plice pwers als have t be subject t the cnstitutinal law. If plice practice exceeds the pwer vested by the cnstitutinal law, r the practice breaches the fundamental principles, which are designed t prtect fundamental human rights, the prsecutin must nt enjy the fruit f that practice. The curt des nt punish r discipline the plice, but the curt shuld nt use the evidence, which wuld nt exist if the plice have fllwed the fundamental principle. Cnvicting a defendant with the evidence, which culd nt 7 have lawfully existed, wuld be Ry Ogis I specially thank Valeric Sykes, B.A. (Hns), LL.Dip., Dip.Lib., Cert.TEFL, Cert.TEB, and Dr Peter Smith f University f Exeter, wh have read this article and given me precius advice.