Some Afterthoughts on the Royal Commission on Criminal Justice in England and Wales

Letters

Vol. 16 No. 24 · 22 December 1994

From Stephen Sedley

I believe that W.G. Runciman (LRB, 10 November) has misunderstood why, reviewing the Report of his Royal Commission on Criminal Justice in the LRB (23 September 1993), I offered support for the minority view on what he calls the fruit of the poisoned tree. This is the problem of what is to be done by the courts when a case comes before them in which the prosecution has been guilty of malpractice at one stage or another, a problem which he now dismisses with a simple illustration: a policeman thumps the accused in a vain attempt to extract a confession – should the whole prosecution be stopped?

Of course, as he says, if evidence has been improperly obtained, the courts have adequate powers to knock it out, and the prosecution must then stand or (if it is a critical piece of evidence) fall without it. But my argument is not, as Garry Runciman suggests, that in such cases the whole prosecution should instead automatically fall as a kind of penalty for playing offside whether the attempt to secure evidence by oppression has succeeded or – as in his example – failed. It is that there can be forms of malpractice which are not manifested in elements of evidence at all but without which the prosecution could not have been brought. In the face of these the power to exclude improperly obtained evidence has no bearing.

The case I mentioned in my review of the Report, that of a man who alleged that he had been kidnapped by the South African authorities in order to be handed over to the jurisdiction of the English courts, had at that stage been decided on principle by the House of Lords upon its assumed facts. The court has now heard the evidence and has established the factuality of the allegations. There is nothing that the court of trial could have done on the basis of them to exclude any evidence, for the malpractice lay not in the obtaining of evidence but in the means by which the accused had been brought before the courts of this country. The critical point in the House of Lords’ reasoning was that there was a simple choice: either to let the prosecution go ahead on what was perfectly admissible evidence, or to hold that, since there could have been no prosecution in the first place but for the unconstitutional acts of the authorities, the legal system would not endorse such acts by allowing the prosecution to proceed at all.

This is a limited doctrine, perhaps more limited than the minority’s position, but it is the one I support. Thus where, as in Garry Runciman’s illustration, the malpractice has not infected the prosecution, there is no poisoned fruit. Where pieces of fruit are poisoned, they can, as he suggests, be discarded. But in the rare case where the tree itself is poisoned, the Commission’s minority now has the support of the House of Lords in proposing that the only principled option is to cut the tree down.

Stephen Sedley
Royal Courts of Justice