"The public interest demands not only that the guilty are brought to conviction, but also that they are brought to conviction in a civilised and publicly acceptable manner. In other words, the public has an interest not only in the conviction of the guilty, but also in the moral integrity, or to put it more simply, the quality, of criminal proceedings".
The above statement signifies the irrefutable principle of fair trial. One of the devices invented for ensuring a fair trial are exclusionary rules for evidence. An exclusionary rule is a rule which governs the admissibility of evidence on the basis of it being procured unlawfully. It can be created by judicial precedent or legislating statutes depending on the importance attached to human rights by the respective country.
The purpose of this essay is to study the past, present and future of exclusionary rules of evidence in the USA, England & Wales and India using a comparative study. The above three countries have been chosen in order to study the appropriate approach to excluding evidence between the extreme positions of USA and India on the one hand and England & Wales on the other hand. The essay begins by retracing the historical development of the exclusionary rules to their present status in each of the above jurisdictions, with primary focus on rules related to illegal searches/seizures and illegal interception with respect to cellular technology. It then looks into the relevant literature on the effects of those exclusionary rules and whether they achieve the intended purpose. Finally, it assesses the need for these rules and whether there are other ways to deal with police illegalities and indiscipline.
A Brief History of Exclusionary Rules
USA
The exclusion of illegally procured evidence was first accepted in Boyd v United States
[2] where an order to produce certain incriminating documents was held amounting to violation of the right against self-incrimination of the accused. The doctrine of 'Fruit of the Poisonous Tree' was first described in
Silverthorne Lumber Co. v United States[3] with the explanation that if the source or the evidence itself is tainted then anything derived from it would also be tainted, though this was applicable to federal authorities only. Finally, in
Mapp v Ohio,
[4] citing the principles of judicial integrity and police deterrence, the Supreme Court of United States extended the exclusionary principle of 'Fruit of the Poisonous Tree' to all state trials as well.
However, the courts quickly realised that considering the significant social costs that accompany exclusion of an otherwise highly relevant and admissible evidence, it would be prudent to restrict the scope of exclusion. In Warden v Hayden,
[5] the court laid out the 'Exigent circumstances' where warrantless searches are lawful. In
Nix v Williams,
[6] the court introduced an exception called 'Inevitable Discovery' where in due time the police officials would have recovered the evidence despite the illegality; rendering the violation inconsequential.
In United States v Leon,
[7] the court held that officers working in 'Good Faith' should not be punished for minor errors. The Supreme Court in
United States v Calandra held that the exclusionary rule is not 'a personal constitutional right of an aggrieved party but a judicially created remedy designed to safeguard the Fourth Amendment rights through a deterrent effect'.
[8] The idea was to remove excessive emphasis on procedure. Further in
Hudson v Michigan, the court held that exclusionary rules should be the 'last resort, not the impulse of judges.'
[9]
Illegal Interception was first excluded in Massiah v United States,
[10] where evidence gathered from an eavesdropping device was excluded for the first time, in recognition of the 'Right to Privacy'. The court established the test of 'Reasonable Expectation of Privacy' where the court considers interception of electronic communication tantamount to search and seizure within the confines of the Fourth Amendment rights, hence it is bound by its restrictions. Relying on the above tests, courts have repeatedly excluded evidence obtained illegally over the years starting with
Katz v United States,
[11] United States v US District Court for Eastern Division[12] and later in
United States v Jones.
[13] Following
Katz,
[14] in
Carpenter v United States,
[15] illegal interception was excluded. However, narrow interpretation of the rule will continue.
England & Wales
Compared to the USA, in England & Wales, the taint in evidence procurement is more of a procedural issue. Courts prefer to concern themselves with determination of guilt of the accused and not with disciplining policing agencies. The prayer to exclude illegally procured evidence was first raised in R v Leatham where the court held that '[I]t matters not how you get it even if you steal it even, it would be admissible in evidence'.
[16] In
Selvey v DPP[17], the court held that the trial court has unfettered discretion to exclude evidence, but it is not the job of the judiciary to discipline the police.
In the case of R v Sang,
[18] the court held that the trial judge has the discretion to exclude evidence if its prejudicial effect outweighs its probative value. The events following this decision led the parliament to take a balanced approach due to scandals such as Guildford Four, Maguire Seven, Birmingham Six etc. where innocent men were convicted for indulging in terrorist activities based on unreliable evidences. These acquittals tarnished the image of police forces in the United Kingdom and eventually led to the enactment of procedural safeguards in the Police and Criminal Evidence Act, 1984. Three sections, namely, 76(2), 78 and 82(3) allowed the judge to exclude evidence depending on relevant circumstances. The enactment of these sections changed the test of admissibility to proportional balancing of interests.
In R v Stewart
[19] and later in
R v Colchester Magistrates Court,
[20] evidence seized through an illegal search in violation of Police Codes of Practise and an irregular arrest warrant was admitted in trial on the grounds that the illegalities did not unfairly prejudice the accused`s case. In
R v Khan (Sultan)[21], the House of Appeals rejected an application for exclusion of evidence based on illegal interception and violation of right to privacy asserting that no right to privacy existed at that time and the balance of interest test in Section 78
[22] was satisfied in admitting evidence. However, when the appeal
[23] reached the European Court of Human Rights (ECHR), it was accepted and the government was directed to compensate the accused for violation of his right to family life and privacy according to Article 8 of the convention.
One can therefore conclude that the exclusion of illegal evidence with respect to search/seizure and interception in United Kingdom is sporadic, whimsical and adheres to no set principles of exclusion. The only settled principle is the balancing test of prejudicial effect against probative value which provides wide discretion in the hands of trial judges.
India
The Indian position on exclusionary rules is at the opposite end of the spectrum as compared to the USA. The subject of evidence in India is governed by the Indian Evidence Act, 1872. However, the Act only concerns itself with relevancy of evidence and not its procurement. Further Section 166
[24] prohibits any trial or judgment from being vitiated on grounds of improper admission or rejection of evidence.
The prayer for exclusion of illegally procured evidence was first raised in Pandit Ukha Kolhe v. State of Maharashtra
[25] where an accused was held guilty of liquor consumption in defiance of the prevailing state liquor ban, though the blood sample taken by the police disregarded procedural safeguards outlined in the act. The majority held such evidence to be admissible. In
Harikisandas Gulabdas & Sons v. The State of Mysore[26], the Supreme Court quashed the proceedings by the Income Tax Department because the materials seized by the Income Tax Officer were a result of an illegal search. The Income Tax and other acts use provisions like 'reason to believe' and 'recording of reasons' in writing as safeguards against arbitrary power before conducting searches. However, these were held to be directory in nature in
Dr Pratap Singh v. Director of Enforcement[27] and non-compliance of them would not render any search illegal.
In Director General of Income Tax v. Spacewood Furnishers Pvt. Ltd
[28], the Supreme Court held that the procedural safeguards in the department manual were disregarded with respect to searches and seizures and that the accused would receive benefit to that extent only. In drug recovery cases, the general tendency of trials courts is to admit evidence but in cases where it can be shown that the accused was not informed of his rights (
State of Punjab v. Baldev Singh[29] and
State of Delhi v. Ram Avtar[30]) or if there has been a violation of procedures in seizing articles under the act then the trial stands vitiated.
[31]
The prayer for exclusion of evidence procured from illegal interception was first raised in RM Malkani v. State of Maharashtra
[32] where the court while rejecting the prayer held that '[a] document which is procured by improper or even by illegal means cannot bar its admissibility provided its relevance or genuineness is proved'. Nonetheless, the 94
th report of the Law Commission of India recommended enacting section 166A in the Indian Evidence Act where evidence can be excluded in certain circumstances if they unfairly prejudice the accused or bring disrepute to the judicial process. This recommendation was disregarded by the government. In
PUCL v Union of India,
[33] the Hon`ble Supreme Court recognized the right to privacy as a legal right and directed the government to frame rules to safeguard the rights of citizens against unlawful interception. However, the fact remains that illegal evidence is admissible even though Right to Privacy has been recognised as a Fundamental right by the Supreme Court in
Justice KS Puttaswamy (retired) v. Union of India.
[34]
Effect of Exclusionary Rules on Administration of Justice
USA
The effect of Exclusionary rule has been assessed and reflected upon in various studies by academicians but the most influencing and extensive is the article
[35] by Tonya Jacobi in 2011. The article exposes a lot of fundamental issues with the presumption and deterrence rationales of exclusionary rules. Some of those limitations are:
Effect on Police/Policing- The fundamental flaw here is that the exclusionary rule does not punish the police officer. Moreover, considering the fact that police performance is measured by the number of arrests made and not convictions, the police has an incentive to engage in aggressive policing even at the cost of individual rights. Also, a study found out that police officers' ability to assess the lawfulness of search is largely based on chance.
[36] There is also risk of police perjury as was pointed out in one study which showed that after the decision in Mapp v Ohio[37] the number of arrests in narcotic cases where drugs were found on person decreased.[38] But the number of cases where the officers claimed that drugs were found on the person`s hand or dropped on the ground increased. Since there was no particular reason why there was an increase in such cases, the authors concluded that it was the effect of the decision.
Juror Resistance takes place due to differences in moral values and lack of dispassionate assessment of the situation. In cases involving narcotic substances where the jury has been advised to disregard evidence due it being rendered inadmissible; the jurors resist such a move. A study suggests that jurors prefer to take the higher moral ground and punish an accused if they feel that the accused is guilty.
[40] Another form of juror bias comes in the form of presumption against prior convicts resulting in jury members assuming that the likelihood of the accused having committed the crime is greater.
[41]
England & Wales
The points raised in the Jacobi article
[44] above on jury bias, juror resistance, and judicial bias apply to England & Wales as well. With respect to section 78
[45] and judicial precedents till date, it appears evident that exclusion of illegal evidence is seldom exercised. Courts are reluctant to explain objectively the criteria, or provide any guidance as to how discretion should be exercised,
[46] and have a proclivity to interpret the language in favour of the prosecution often. Moreover, the police officers have started using tricks and deception to circumvent the law. For instance, lying about finding incriminating evidence against the accused (
R v Mason[47]), placing bugging devices in police vans (
R v Plunkett[48]) or even denying legal advice to an accused (
R v Hughes[49]). Thus, it can be reasonably established with respect to police deterrence that exclusionary rules have hardly any effect on policing.
The wide discretion available to trial judges without any guidance leads to a chaotic and uncertain situation, as May argued 'That the concept of "fairness" is so vague and notions of fairness may vary so much that the discretion under section 78 will be difficult to exercise with any consistency.
[50] Ormerod and Birch contended that the ambiguous wording of the section coupled with its haphazard interpretation makes it wholly unreliable to safeguard the interests of accused persons.
[51]
With regard to Interception, the situation is even more grim. Even after the revelations of illegal mass state surveillance by Edward Snowden, the government does not seem concerned with privacy violations. The Regulation of Investigatory Powers Act, 2000(RIPA) that governs lawful interception is often misused to conduct mass surveillances without checks or balances by any external agency. In 2010, a family reported to the Investigatory Powers Tribunal that the Poole Borough Council was unfairly spying on their family for suspected violations in school admissions.
[52] A 2016 report found: '372 local authorities in Great Britain have conducted RIPA surveillance operations in 8,575 cases in the past two years.'
[53]
This reflects the extent to which the state disregards privacy rights despite enacting a Human Rights Act in 1998. As was mentioned by the ECHR in Khan v United Kingdom,
[54] the domestic protections having no penal consequences for the state. Further, the act does not stop courts from admitting evidence from illegal interception done by another country`s policing agency (
R v Aujla).
[55] Hence, one can effectively conclude that even the supposedly balanced approach taken by the English Courts does not help achieve its goals of ensuring police deterrence, judicial integrity etc.
India
In India, subsequent to the ratio in Malkani
[56] case, policing authorities received a free hand in procurement of evidence because the judiciary considers procurement a collateral issue. Relevancy and tamper-ability are the cornerstones which are used to assess the admissibility of evidence. Unless the law provides a statutory bar against admission of such evidence such as confession
[57] or privilege
[58], no evidence is excluded. Thus, the question of sanctity of evidence due to dubious procurement methods is dealt with in each individual case. Often acquittals are given when the conviction seems unsafe due to either fabrication of documents by police officials or the accused not having been informed of their rights. In Narcotic cases, failure to inform the accused of his rights to search and seizure has resulted in conviction being deemed unsustainable. (
Baldev Singh[59] &
Ram Avtar[60]).
In cases where fabrication of documents seemed apparent, the courts have reversed conviction of accused persons.
[61] In cases where the First Information Report recorded was shown to be manipulated by ante-timing
[62], Section 154 and Section 157 of the Code of Criminal Procedure, 1973 require the police officer to send a report to the magistrate after registering the FIR to ensure no manipulation takes place. This is also routinely flouted with no consequences for the delinquent officer.
[63] If articles were seized from the accused person but were not deposited with the department storage unit with an official diary entry, then the entire story of the prosecution becomes doubtful.
[64]
The hon`ble Supreme Court in PUCL
[65] directed the government to frame procedures
[66] for lawful interception in recognition of Right to Privacy. But the legal right has no remedy or accountability. Courts have repeatedly frustrated attempts at asserting this right by refusing inspection of the interception order to remove any doubts of privacy violation.
[67] Thus, the policing bodies function with no accountability for any violation undertaken by them and the existing procedural safeguards are ineffective as they come with no consequences.
Alternatives if any are they reliable?
USA
In the USA, the judicial precedents have suggested civil remedies or departmental inquiries to deal with illegal searches or illegal interception. Both the remedies lack the teeth needed to curb aggressive policing. Under civil remedies, 42 U.S.C. 1983 allows citizens to file tort claims for constitutional violations against illegal search & seizure and illegal interception as well.
The 18 USC section 1983 litigation has enjoyed considerable success in changing policing behaviour with respect to illegal search and seizure. This can be attributed to the directives given by insurance companies to policing agencies who were being insured against such lawsuits, to train police officers to avoid such charges. As Candace McCoy noted, the combined effect of Monell v Department of Social Service
[68] followed by
Owen v City of Independence[69] and the 1983 litigation was that it coerced the justice department to implement and regulate policing behaviour on an unprecedented scale. The compensation rewarded therein provided high incentives for police to change their inherent behaviour at the fundamental level.
[70]
The situation is relatively better with respect to illegal interception, as the courts have time and again upheld that unauthorised interception would be considered violative of a person's Fourth amendment rights and any evidence gathered therein inadmissible. The revelations of the unauthorised mass surveillance by the National Security Agency (NSA) hanged the entire landscape of privacy protection in the United States. The US and EU governments signed an umbrella agreement to preserve data integrity and prohibit further unauthorised intrusive surveillance. This resulted in various domestic changes in US law in terms of civil and criminal remedies.
Statues like Judicial Redress Act, 2015 now allows not only the USA but even EU citizens the right to sue the individual as well as US agencies in court for warrantless interceptions.
[71] The Wiretap Act provides warrant for communication interception approved by the highest authorities in the Department of Justice before being authorised by a judge, thus keeping an external check.
[72] Under the Foreign Intrusive Surveillance Act, if an individual officer conducts surveillance of a data subject without first obtaining statutory or Presidential authorization, misuses surveillance information, or unlawfully discloses surveillance information, that officer can be sued by the data subject in the US court. Further each of the above acts allow criminal prosecutions for tort sanctions against an individual or an agency.
[73] In the landmark EU privacy case
[74] in the Irish High Court, Professor Peter Swire, a world-renowned privacy expert testified about the current status of privacy safeguards in the USA and made certain recommendations. He submitted that though the USA has sufficient safeguards in place enhancements could be made.
[75]
England & Wales
In England & Wales, the judiciary recommended alternative remedies which were civil in nature just like in the United States but it failed to yield any result. Civil remedies and departmental action have been recommended since Sang
[76] but there is hardly any action taken on a large scale to change policing behaviour. This view has been cemented by the observations of the ECHR in
Khan v. United Kingdom[77] and via pronouncements in judgments like
Khan (Imran)[78] and
Plunkett[79]. The pronouncements indicate the vehement reluctance on the part of the government to demand accountability from policing agencies. Further, the view of Justice Hardiman of the Ireland Supreme Court in
DPP v JC is thus:
'Though no such mechanisms exist, no public official has been prosecuted for breach of citizen`s rights.'
[80]
The above line aptly sums up the reality of suggestions often made by the state regarding pursuance of alternative remedies in response to breaches of citizens' rights. The establishment of Criminal Cases Review Commission does review miscarriages of justice but it can only be approached post-conviction in trial courts. Moreover, it demands a higher innocence threshold and usually reliefs are given in indictable offences only.
[81] Though Section 78 claims to be of balance of rights, in reality, the scales of justice are heavily loaded in favour of the state.
India
With respect to India, we have a really long way to go as the traditional mindset of all the three branches of the democracy reflect the maxim "The King can do no wrong" in practise. Hence, the procedural safeguards in practise do not bring any punitive measures for their violations. There is an imperative need to incorporate substantive due process in Indian law. The need to compensate wrongful prosecution in India has been recently assessed with measures recommended by the latest Law Commission of India Report.
[82]
One method of attempting accountability is to introduce a system of promotion in police forces where points would be added or deducted based on lawful or unlawful behaviour. If an arrest would give one point in the tally then illegal collection of evidence would deduct five points for such behaviour of an officer. This may initially lead to some amount of defensive policing in the short run but with proper training, such incidents can be curbed. In any case, any violation based on exigent circumstances would be constitutionally protected though it would depend on facts and circumstances of each individual case.
Is there even any need for these rules?
The answer to this lies in the words of Sir William Blackstone-
'It is better that ten guilty persons escape then one innocent suffer'
A derivative of this ratio is the due process clause. Functioning in accordance with the law and constitutional principles lies at the very core of a democratic society and strikes at the very roots of most common law based legal systems. To compromise on such a sacred principle could result in giving a free hand to rogue powers. Democracy has to be careful preserved and it survives when the enforcers of law adhere to constitutional principles by holding themselves accountable for their violations. As Justice Bryer contends, if adhering to constitutional principles leads to harmful consequences then the courts must "face those fears" and not counter argue that adherence is required but enforcement not so much.
[83]
A legal right with no or ineffective remedy is of no consequence in law. It would be grossly inappropriate to leave the liberty of every common person at the mercy of a petty officer. Stating the immortal words of Justice Louis Brandeis of the US Supreme Court seems apt-
"Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face."
[84]
India has the most catching up to do, it must not only legislate the 94th and 277th Law Commission of India reports by setting up civil and criminal remedies for constitutional violations of citizens` rights by police but must also train them to perform effectively within the confines of law. The traditional approach of political comatose shouldn't be opted lest we want to risk an Indian Watergate or an NSA surveillance scandal.
Conclusion
All three jurisdiction have different ways of dealing with the dilemma of procedural illegality in evidence gathering. However, whether one deals with such impropriety as constitutional violations, principle of proportionality with balancing of rights or sparely addressing it the fundamental problem persists. The only ideal that can be firmly established is that rule of law and democracy can only be preserved when state officials are held to the same if not higher standards of behaviour.
There is no denying that there is some weight in the argument of the judiciary in refraining itself from reviewing police behaviour either under the principle of judicial restraint or separation of powers. However, if such a restricted interpretation is accepted then we need to also wave goodbye to the principles of Judicial Review, Judicial Activism, Public Interest Litigation because they also involve some form of interference by the judiciary in the interest of justice.
The practise of the Indian Judiciary to engage itself only at the highest levels and in rare occasions is an obsolete outlook. The law must function considering the vulnerability of an ordinary person and not expect every litigant to have the resources or opportunity to approach the highest court of the land. There is an impending need to introduce civil remedies and criminal remedies in police illegalities to uphold the spirit of democracy. As Lord Justice Heward said:
"a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
[85]Nikunj Kulshreshtha is an advocate currently pursuing LLM in Criminal Justice from Queen Mary University of London.
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[8] 414 U.S. 338,348 (1974).
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[10] 377 U.S. 201 (1964).
[11] 389 U.S. 347 (1967).
[12] 407 U.S. 297 (1972).
[13] 565 U.S. 400 (2012).
[15] 138 S.Ct. 2206 (2018).
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[22] Police and Criminal Evidence Act, 1984.
[24] Indian Evidence Act, 1872.
[26] [1971] 27 STC 434 (Kar).
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[36] William C. Heffernan & Richard W. Lovely, 'Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law' (1991) 24 U. MICH. J.L. REFORM 311, 333.
[38] 'Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases' (1968) 4 COLUM. J.L. & Soc. PROBS. 87, 100.
[39] Neil Vidmar & Shari S. Diamond, 'Jury Room Ruminations on Forbidden Topics' (2001) 87 Virginia Law Review 1857-1915.
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[45] Police and Criminal Evidence Act, 1984.
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[47] (1988) 86 Cr.App.R. 349.
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[55] [1998] 2 Cr. App. R. 16.
[57] Section 24 of the Indian Evidence Act, 1872.
[58] Section 125 of the Indian Evidence Act, 1872.
[61] Pradeep Singh and Ors v. State, 2009 SCC Online Del 2803, State v. Raj Kumar @ Dhanwant, 2013 SCC Online Del 3390, Naresh @ Chhotu v. State, 2009 SCC Online Del 3523 and Zofar v. State, 1995 SCC Online Del 966.
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[67] 2016 SCC Online Del 3709.
[68] 436 U.S. 658 (1978).
[69] 445 U.S. 622 (1980).
[70] Candace McCoy(ed), 'How Civil Rights Lawsuits Have Improved American Policing?' in Holding Police Accountable (Rowman & Littlefield Publishers Inc., 2010).
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[83] Justice Bryer in Hudson v Michigan 547 U.S. 586 (2006) at 625.
[84] Olmstead v. U.S., 277 U.S. 438 (1928) at 485.
[85] [1923] All ER Rep 233.