Judicial discretion to exclude

Historically, at common law, judges are reluctant to exclude ‘Improperly obtained’ evidence. Traditionally, in criminal proceedings excluding improperly obtained evidence as a notion of judicial discretion was not an accepted approach. John Bradley Thayer, an evidence scholar supported the idea that courts should be encouraged to use discretion[13]. This was later reconfirmed in Jeffrey v Black (1978)[14]. This was a case about a police arrest over theft of a sandwich in a pub but then searched his flat without a warrant and found cannabis.

Widgery LJ stated that if the evidence is relevant and reliable, the court is not concerned about provenance. However, we are now concerned about how it was obtained. In Kuruma v The Queen (1955)[15] the judge has the power to exclude evidence if the law and enforcement agencies have acted in an improper way. The judge has a general supervisory function in that they have the power to exclude any evidence but also has the discretionary power to exclude evidence that would otherwise be admissible, to ensure a fair trial.

At common law, it is now possible under s114 (1) (d) Criminal Justice Act 2003 for judges to admit otherwise inadmissible hearsay evidence if it is in the interest of justice (Sang 1980)[16]). This discretion has been retained within s82 (3) of PACE 1984. Previously the notion of fair trial as a concept was ignored; it concentrated more on probative value. However, sang has been overridden by s78 PACE 1984, this section requires all circumstances such as how the evidence was obtained, to be taken into account, in order to determine whether admission would have “an adverse effect on the fairness of the proceedings”.

Discretion in civil cases is found under Rule 32 of the Civil Procedure Rule 1998. There is some confusion as to what constitutes discretion; the admissibility rules concern the worthiness of the evidence whereas exclusionary discretion centres on the notion of relevance and whether that conforms with fairness. There is clear indication as to the strength of judicial power. Ormerod and Birch[17], state that if the judge uses there power to exclude evidence which otherwise admissible, keeping in mind the ‘Wednesbury reasonableness’ then the courts intervention would be unlikely.

However when it comes to deciding what is and isn’t relevant, where do we draw the line? One judge may well have a different opinion than another. It is contradictory that the defendants are protected whist the case is at trial not when the evidence is being put together[18]. Even though law enforcement agencies have to conform to the code of practise, it is for the judge to ensure that evidence was collected fairly and properly. Whether the evidence was relevant and weighty would not hold highly with the judge if he/she feels that it was unfairly obtained and so the requirement of s78 is crucial.

When deciding on discretion consideration has to be taken in accordance with Article 6 of the ECHR (right to a fair trial). Directing jury: A significant role for the judge would be directing the jury. When both parties have presented their version of the case, it is the judge’s role to sum up the case for the jury whilst maintaining a position of fairness (Whitehorn (1983)[19]). The jury will be reminded of their responsibility to decide upon the facts and weigh up the evidence as well as clarifying the function of the judge[20].

As the prosecution bears the burden of proof beyond reasonable doubt, this would require the judge to clarify the standard of proof (Edwards (1975)[21]). However, it is important for the judge not to confuse the jury with complicated analysis, “Summing up should contain only such directions on the law as is essential in order to enable the jury to carry out their task”[22], it is vital to keep juries from being drawn into matters that only professionals in the legal world would comprehend. The judge must caution the jury to treat both parties and the indictment separately.

In a situation of submissions of ‘no case to answer’ it is for the judge to decide whether the case should be left for the tier of fact (jury) to decide. In civil matters, it is unlikely for the judge to sit with a jury. When the claimant has presented their case, if the defendant decides to submit ‘no case to answer’ and decides not to call evidence, then the judge will generally not rule on this (Alexander v Rayson (1936)[23]). In civil proceedings the judge is a tier of law and of fact and so should not be expected to express an opinion on the evidence pending its completion.

In criminal proceedings, it is common for the defence to put forward a ‘no case to answer’ submission because the prosecution has unsuccessful produced insufficient evidence. It is for the judge to consider what issues should be left to the jury and which should be excluded (R v Cohen and Bateman (1909)[24]). As in the case Turnbull (1977)[25] where the judge in a case of disputed identification had to decide whether the identification was sufficient enough for the jury to decide upon it.

The judge has the power to withdraw issues form the jury which may impact at the end of a case, but not necessarily (Jackson[26]). Under Lord Lane’s test in R v Galbraith (1981)[27], states that a judge is entitled to refuse the issue to be dealt by a jury, if the defence has produced tenuous evidence, on the basis that a reasonable jury, when properly directed, cannot convict[28]. There has been criticism as to the lack of judicial intervention sanctioned by Galbraith because cases that are unmeritorious can be disregarded in the Magistrate’s Court.

As the judge is the final arbiter of the law, it is for him to clarify all the elements of the offence charged (McVey (1988)[29]). The judge would mention any necessary aspects of evidence, whether it would be the circumstances the evidence was obtained in and its reliability when coming to a conclusion (McGeevy v DPP (1973)[30]), also how to deal with good/bad character and the consequences of convicting for identification evidence. These are common misconceptions that form the basis for appeal when there is misdirection in evidence or on the point of law.

There is no obligation for the judge to sum up the evidence for the jury, as it is not the judge’s duty to argue the case any more than it is there duty to argue for the Crown (Perks (1986)[31]). However, according to Gregory (1993), it is the judge’s role to provide a clear and concise summary of the evidence presented by the prosecution and the defence. Therefore it would not be inadequate for the judge failing to mention all the evidence and arguments put forward, the only requirement is the principle of ‘ex improviso’ the idea that the judge needs to improvise to maintain fairness.

Summing up: Summing up the facts can be difficult as it is impossible for it to be entirely neutral and it must inevitably convey the judge’s opinion (Cunningham v Ryan (1919)[32]). The comments about the facts may well be moulded in effect to influence the jury from one direction to another[33]. However, there is danger that if an absolutely neutral account was given, then the judge may be at risk of under-weighting or over-weighting a party’s case (Ali Ali (1981)).

Nonetheless, caution must be taken when exercising their view, if they are expressed to forceful or do not qualify by pre-cautionary directives that the jury is not bound to accept or reject the opinions[34], the case may miscarry (Broadhurst (1964)[35]). It is clear that there has been a drastic decline as to the extent to which a negative comment can be made by a trial judge[36]. Judicial commentary has increased in sexual offences cases, in R v Breeze (2009)[37], the defendant, many years earlier, had been sexually abusing his daughter, the case was quashed because the jury was directed by the judge that there was no reason to lie.

It has been argued that the judiciary should have some authority to make comments, although it is difficult to determine where to draw the line between providing direction to the jury based on their judicial expertise and evidence given by judges. Nevertheless, it is invertible that judge’s opinions bear heavily with juries and so must be implied with care. It is possible for the judge to direct the jury to acquit when there is insufficient evidence for the jury to convict but cannot direct the jury to bring the verdict of guilty (DPP v Stonehouse (1978)[38]).

Conclusion: It is clear that a judge plays a significant role within a trial, whether it is to assess the applicability of admissible evidence or to maintain composure when giving an opinion. It seems to centres around judicial neutrality. There is fine line between judges who are helpful to ones who push their own opinion on the jury. A judge who is able to conduct his role in a way that in keeps justice and legality is one who will be in support of our adversarial system.