R. v Sang [1979] UKHL 3

House of Lords

Between

R.Appellant

SangRespondent

Before

Lord Diplock

LORD DIPLOCK

My Lords,

Lord Diplock Viscount Dilhorne Lord Salmon Lord Fraser of Tullybelton Lord Scarman

The appellant was indicted at the Old Bailey before Judge Buzzard and a jury for conspiracy to utter counterfeit American bank notes. On his arraign- ment he pleaded not guilty to the charge and, in the absence of the jury, alleged, through his counsel, that he had been induced to commit the offence by an informer acting on the instructions of the police, and that, but for such per- suasion, he would not have committed any crime of the kind with which he was charged. Faced, as he was, by recent decisions of the Criminal Division of the Court of Appeal that "entrapment" is no defence in English law (Reg. v. McEvilly & Lee [1974] Crim.L.R. 239; Reg. v. Mealey & Sheridan

[1974] 60 Cr.App.R. 59

), counsel for the appellant sought to achieve by a different means the same effect as if it were. He submitted that if the judge were satisfied at a "trial within a trial" that the offence was instigated by an agent provocateur acting on the instructions of the police and, but for this, would not have been committed by the accused, the judge had a discretion to refuse to allow the prosecution to prove its case by evidence.

In support of this submission counsel was able to cite a number of dicta from impressive sources which, on the face of them, suggest that judges have a very wide discretion in criminal cases to exclude evidence tendered by the prosecution on the ground that it has been unfairly obtained. In addition there is one actual decision of the Court of Criminal Appeal in Reg. v. Payne [1963] 1 All.E.R. 848 where a conviction was quashed upon the ground that the judge ought to have exercised his discretion to exclude admissible evidence upon that ground—though this was not a case of entrapment. Moreover there had also been a recent decision at the Central Criminal Court (Reg. v. Ameer & Lucas [1977] Crim.L.R. 104) in a case which did involve an agent provocateur where Judge Gilles, after a lengthy trial within a trial, had exercised his discretion by refusing to allow the prosecution to call any evidence to prove the commission of the offence by the accused.

In order to avoid what promised to be a lengthy "trial within a trial", which would be fruitless if Judge Buzzard were to rule as a matter of law that he had no discretion to exclude relevant evidence tendered by the prosecution to prove the commission of the offence, even though it had been instigated by an agent provocateur and was one which the accused would never have committed but for such inducement, the judge first heard legal submissions on this question. He ruled that even upon that assumption he had no discretion to exclude the prosecution's evidence. In consequence of this ruling the appellant withdrew his plea of not guilty and pleaded guilty.

It is only fair to the police to point out that there never was a trial within a trial. The judge's ruling made it unnecessary to go into the facts relating to the appellant's claim that he was induced by a police informer to commit a crime of a kind which but for such persuasion he would never have committed; so no evidence was ever called to prove that there had been any improper conduct on the part of the police or of the prosecution.

The appeal to the Criminal Division of the Court of Appeal (Roskill and Ormrod L.JJ. and Park J.) was dismissed. Their judgment which was delivered

by Roskill L.J. includes a helpful and wide-ranging review of the previous cases, embracing not only those in which agents provocateurs had been involved but also those in which the existence of a wide discretion in the judge to exclude any evidence tendered by the prosecution which he considered had been unfairly obtained, had been acknowledged in obiter dicta by courts of high authority. As a result of their examination of these authorities they certified as the point of law of general importance involved in their decision, a much wider question than is involved in the use of agents provocateurs. It is:

" Does a trial judge have a discretion to refuse to allow evidence—being " evidence other than evidence of admission—to be given in any circum- " stances in which such evidence is relevant and of more than minimal " probative value?"

I understand this question as inquiring what are the circumstances, if there be any, in which such a discretion arises; and as not being confined to trials by jury. That the discretion, whatever be its limits, extended to whoever presides in a judicial capacity over a criminal trial, whether it be held in the Crown Court or in a magistrates' court was expressly stated by Lord Widgery C.J. in Jeffrey v. Black [1977] 3 W.L.R. 895, an appeal by the prosecution to a Divisional Court by way of case stated from magistrates who had exercised their discretion to exclude evidence of possession of drugs that had been obtained by an illegal search of the accused's room by the police. The Divisional Court held that the magistrates had exercised their discretion wrongly in the particular case; but Lord Widgery C.J., while stressing that the occasions on which the discretion ought to be exercised in favour of excluding admissible evidence would be exceptional, nevertheless referred to it as applying to "all " he evidence tendered by the prosecution" and described its ambit in the widest terms: "If the case is such that not only have the police officers entered " without authority but they have been guilty of trickery, or they have misled " someone, or they have been oppressive, or they have been unfair, or in other " respects they have behaved in a manner which is morally reprehensible, " then it is open to the justices to apply their discretion and decline to allow the " particular evidence to be let in as part of the trial".

One or other of the various dyslogistic terms which Lord Widgery uses to describe the kind of conduct on the part of the police that gives rise to a judicial discretion to exclude particular pieces of evidence tendered by the prosecution can be found in earlier pronouncements by his predecessor Lord Parker of Waddington, notably in Callis v. Gunn [1964] 1 Q.B. 495 at 502, where he adds to them false representations, threats and bribes; while unfairness and trickery are referred to in dicta to be found in a judgment of the Privy Council in Kuruma v. The Queen

[1955] AC 197

at 204, the case which is generally regarded as having first suggested the existence of a wide judicial discretion of this kind. What is unfair, what is trickery in the context of the detection and prevention of crime, are questions which are liable to attract highly subjective answers. It will not have come as any great surprise to your Lordships to learn that those who preside over or appear as advocates in criminal trials are anxious for guidance as to whether the discretion really is so wide as these imprecise expressions would seem to suggest and, if not, what are its limits. So, although it may not be strictly necessary to answer the certified question in its full breadth in order to dispose of the instant appeal I think that your Lordships should endeavour to do so.

Before turning to that wider question however, I will deal with the narrower point of law upon which this appeal actually turns. I can do so briefly. The decisions in McEvilly and Lee and Mealey and Sheridan that there is no defence of "entrapment" known to English law are clearly right. Many crimes are committed by one person at the instigation of others. From earliest times at common law those who counsel and procure the commission of the offence by the person by whom the actus reus itself is done have been guilty themselves of an offence, and since the abolition by the Criminal Law Act 1967 of the distinction between felonies and misdemeanours, can be tried, indicted and punished as principal offenders. The fact that the counsellor and procurer is a

policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender; both the physical element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in his case.

My Lords,

this being the substantive law upon the matter, the suggestion that it can be evaded by the procedural device of preventing the prosecution from adducing evidence of the commission of the offence, does not bear examination. Let me take first the summary offence prosecuted before magistrates where there is no practical distinction between a trial and a "trial "within a trial". There are three examples of these in the books, Brannan v. Peek [1948] 1 K.B. 68; Browning v. Watson [1953] 2 All.E.R. 775; Reg. v. Sneddon [1967] 1 W.L.R. 1051. Here the magistrates in order to decide whether the crime had in fact been instigated by an agent provocateur acting upon police instructions would first have to hear evidence which ex hypothesi would involve proving that the crime had been committed by the accused. If they decided that it had been so instigated, then, despite the fact that they had already heard evidence which satisfied them that it had been committed, they would have a discretion to prevent the prosecution from relying on that evidence as proof of its commission. How does this differ from recognising entrapment as a defence—but a defence available only at the discretion of the magistrates ?

Where the accused is charged upon indictment and there is a practical distinction between the trial and a "trial within a trial", the position, as it seems to me, would be even more anomalous if the judge were to have a discretion to prevent the prosecution from adducing evidence before the jury to prove the commission of the offence by the accused. If he exercised the discretion in favour of the accused he would then have to direct the jury to acquit. How does this differ from recognising entrapment as a defence—but a defence for which the necessary factual foundation is to be found not by the jury but by the judge and even where the factual foundation is so found, the defence is available only at the judge's discretion.

My Lords,

this submission goes far beyond a claim to a judicial discretion to exclude evidence that has been obtained unfairly or by trickery; nor in any of the English cases on agents provocateurs that have come before appellate courts has it been suggested that it exists. What it really involves is a claim to a judicial discretion to acquit an accused of any offences in connection with which the conduct of the police incurs the disapproval of the judge. The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence; but under the English system of criminal justice, it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence. Nevertheless the existence of such a discretion to exclude the evidence of an agent provocateur does appear to have been acknowledged by the Courts-Martial Appeal Court of Northern Ireland in Reg. v. Murphy [1965] N.I. 138. That was before the rejection of "entrapment" as a defence by the Court of Appeal in England; and Lord McDermott C.J. in delivering the judgment of the court relied upon the dicta as to the existence of a wide discretion which appeared in cases that did not involve an agent provocateur. In the result he held that the court-martial had been right in exercising its discretion in such a way as to admit the evidence.

I understand your Lordships to be agreed that whatever be the ambit of the judicial discretion to exclude admissible evidence it does not extend to excluding evidence of a crime because the crime was instigated by an agent provocateur. In so far as Reg. v. Murphy suggests the contrary it should no longer be regarded as good law.

I turn now to the wider question that has been certified. It does not purport to be concerned with self incriminatory admissions made by the accused himself after commission of the crime though in dealing with the question I will find it necessary to say something about these. What the question is concerned with is the discretion of the trial judge to exclude all other kinds of evidence that are of more than minimal probative value.

Recognition that there may be circumstances in which in a jury trial the judge has a discretion to prevent particular kinds of evidence that is admissible from being adduced before the jury, has grown up piecemeal. It appears first in cases arising under section 1 proviso (f) of the Criminal Evidence Act 1898, which sets out the circumstances in which an accused may be cross-examined as to his previous convictions or bad character. The relevant cases starting in 1913 with R. v. Watson 8 Cr.App.R. 249 are conveniently cited in the speech of Lord Hodson in Selvey v. D.P.P. [1970] A.C. 304, a case in which this House accepted that in such cases the trial judge had a discretion to prevent such cross-examination, notwithstanding that it was strictly admissible under the statute, if he was of opinion that its prejudicial effect upon the jury was likely to outweigh its probative value.

Next the existence of a judicial discretion to exclude evidence of "similar "facts", even where it was technically admissible, was recognised by Lord du Parq delivering the opinion of the Privy Council in Noor Mohamed v. The King [1949] A.C. 182 at p. 192. He put the grounds which justified its exercise rather more narrowly than they had been put in the "previous conviction" cases to which I have been referring; but in Harris v. D.P.P. [1952] A.C. 694 Viscount Simon with whose speech the other members of this House agreed, said that the dis- cretion to exclude "similar facts" evidence should be exercised where "the "probable effect" [sc. prejudicial to the accused] "would be out of proportion "to the true evidential value".

That phrase was borrowed from the speech of Lord Moulton in Rex v. Christie

[1914] AC 545

at p.559. That was neither a "previous conviction" nor a "similar facts" case, but was one involving evidence of an accusation made in the presence of the accused by the child victim of an alleged indecent assault and the accused's failure to answer it, from which the prosecution sought to infer an admission by the accused that it was true. Lord Moulton's statement was not confined to evidence of inferential confessions but was general in its scope and has frequently been cited as applicable in cases of cross- examination as to bad character or previous convictions under the Criminal Evidence Act 1898 and in "similar facts" cases. So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value.

Ought your Lordships to go further and to hold that the discretion extends more widely than this, as the comparatively recent dicta to which I have already referred suggest? What has been regarded as the fountain head of all subsequent dicta on this topic is the statement by Lord Goddard delivering advice of the Privy Council in Kuruma v. The Queen (ubi sup. at p.204). That was a case in which the evidence of unlawful possession of ammunition by the accused was obtained as a result of an illegal search of his person. The Board held that this evidence was admissible and had rightly been admitted; but Lord Goddard although he had earlier said that if evidence is admissible "the court is not "concerned with how the evidence was obtained", nevertheless went on to say:

"No doubt in a criminal case the judge always has a discretion to disallow "evidence if the strict rules of admissibility would operate unfairly against "the accused. This was emphasised in the case before this Board of Noor "Mohamed v. The King, and in the recent case in the House of Lords of "Harris v. D.P.P. If, for instance, some admission of some piece of evidence, "e.g., a document, had been obtained from a defendant by a trick, no doubt "the judge might properly rule it out".

Up to the sentence that I have italicised there is nothing in this passage to suggest that when Lord Goddard spoke of admissible evidence operating "unfairly" against the accused he intended to refer to any wider aspect of unfairness than the probable prejudicial effect of the evidence upon the minds of the jury outweighing its true evidential value; though he no doubt also had in mind the discretion that had long been exercised in England under the

Judges' Rules to refuse to admit confessions by the accused made after the crime even though strictly they may be admissible. The instance given in the passage I have italicised appears to me to deal with a case which falls within the latter category since the document "obtained from a defendant "by a trick" is clearly analogous to a confession which the defendant has been unfairly induced to make, and had, indeed, been so treated in R. v. Barker [1941] 2 K.B. 381 where an incriminating document obtained from the defendant by a promise of favours was held to be inadmissible.

It is interesting in this connection to observe that the only case that has been brought to your Lordships' attention in which an appellate court has actually excluded evidence on the ground that it had been unfairly obtained (Reg. v. Payne ubi sup.) would appear to fall into this category. The defendant, charged with drunken driving, had been induced to submit himself to examination by a doctor to see if he was suffering from any illness or disability, upon the under- standing that the doctor would not examine him for the purpose of seeing whether he were fit to drive. The doctor in fact gave evidence of the defendant's unfitness to drive based upon his symptoms and behaviour in the course of that examination. The Court of Criminal Appeal quashed the conviction on the ground that the trial judge ought to have exercised his discretion to exclude the doctor's evidence. This again, as it seems to me, is analogous to unfairly inducing a defendant to confess to an offence, and the short judgment of the Court of Criminal Appeal is clearly based upon the maxim nemo debet prodere se ipsum.

In no other case to which your Lordships' attention has been drawn has either the Court of Criminal Appeal or the Court of Appeal allowed an appeal upon the ground that either magistrates in summary proceedings or the judge in a trial upon indictment ought to have exercised a discretion to exclude admissible evidence upon the ground that it had been obtained unfairly or by trickery or in some other way that is morally reprehensible; though they cover a wide gamut of apparent improprieties from illegal searches, as in Kuruma v. Reg. itself and in Jeffrey v. Black [1977] 3 W.L.R. 895 (which must be the high water mark of this kind of illegality) to the clearest cases of evidence obtained by the use of agents provocateurs. Of the latter an outstanding example is to be found in Browning v. J. H. Watson (ubi sup.) where Lord Goddard remitted the case to the magistrates with a direction that the offence had been proved, but pointedly reminded them that it was open to them to give the defendant an absolute discharge and to award no costs to the prosecution.

Nevertheless it has to be recognised that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been "obtained" unfairly or by trickery or oppressively, although except in Reg. v. Payne, there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion. In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded had been obtained has been the defendant himself or (in some of the search cases) premises occupied by him; and the dicta can be traced to a common ancestor in Lord Goddard's statement in Kuruma v. Regina which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude(1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and

(2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self-incriminating effect. As a matter of language, although not as a matter of application, the subsequent dicta go much further than this; but in so far as they do so they have never yet been considered by this House.

My Lords,

I propose to exclude, as the certified question does, detailed consideration of the role of the trial judge in relation to confessions and

evidence obtained from the defendant after commission of the offence that is tantamount to a confession. It has a long history dating back to the days before the existence of a disciplined police force, when a prisoner on a charge of felony could not be represented by counsel and was not entitled to give evidence in his own defence either to deny that he had made the confession, which was generally oral, or to deny that its contents were true. The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation "the right to silence". That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.

Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.

A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and, as a corrollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason. If your Lordships so hold you will be reverting to the law as it was laid down by Lord Moulton in Christie, Lord du Parq in Noor Mohamed and Viscount Simon in Harris before the growth of what I believe to have been a misunderstanding of Lord Goddard's dictum in Kuruma.

I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case.

A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.

Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is

no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur.

I would dismiss this appeal.

Viscount Dilhorne

My Lords,

The Court of Appeal (Criminal Division) (Roskill & Ormrod L.JJ. and Park J.) when dismissing the appellant's appeal from the ruling of H. H. Judge Buzzard, certified that the following point of law of general public importance was involved:—

"Does a trial judge have a discretion to refuse to allow evidence—being "evidence other than evidence of admission—to be given in any circum- " stances" (my emphasis) "in which such evidence is relevant and of more "than minimal probative value?"

Judge Buzzard had ruled that, if he had discretion to refuse to admit evidence for the prosecution to prove the offences charged which, he was prepared to assume for the purpose of the submissions made to him, the appellant had been induced to commit by an agent provocateur and which would not otherwise have been committed, it would be inappropriate to exercise it in this case. He doubted whether he had discretion to refuse to admit relevant admissible evidence on the ground that it had been unfairly obtained.

So if the question certified is answered in the affirmative, it would have made no difference to Judge Buzzard's decision. On his rejection of the submissions the appellant pleaded guilty to the first count of the indictment charging him with conspiracy to utter counterfeit bank notes and was sentenced to 18 months imprisonment, a sentence which, we were told, he has now served.

In Reg. v. Ameer & Lucas [1977] Crim.L.R. 104 Judge Gillis held that he had a discretion to exclude evidence which had been obtained as a result of the activities of an agent provocateur; and in the exercise of that discretion, he ruled that the evidence for the prosecution was inadmissible with the result that the accused were acquitted of serious charges. A similar course was taken in Reg. v. Foulder, Foulkes and Johns [1973] Crim.L.R. 45 and in Reg. v. Burnett & Lee [1973] Crim.L.R. 748.

One of the questions to be decided in this appeal is whether these cases were rightly decided. If they were, it means, to quote from Judge Buzzard's ruling that

"facts which afford no defence to the charge should nevertheless require "the judge to secure the defendant's acquittal before any evidence is "heard by the jury".

If the answer to the question certified is that a judge has not a general and unfettered discretion to exclude relevant admissible evidence, has he discretion to do so in some circumstances; and, if so, what are those circumstances and what are the criteria on which the exercise of that discretion should be based ? These appear to me to be the questions to be resolved in this appeal.

That a judge has such a discretion in some circumstances is now established beyond all doubt. He can refuse to allow the cross-examination of an accused as to character when the provisions of the Criminal Evidence Act 1898 would permit it and he can refuse to allow the prosecution to call evidence tending to prove the commission of offences other than those charged. In my opinion these are not the only cases in which he has that discretion. He can in my opinion disallow the use in any trial of admissible relevant evidence if in his opinion its use would be accompanied by effects prejudicial to the accused which would outweigh its probative value.

In Reg. v. Selvey [1970] A.C. 304, a decision of this House which somehow escaped the attention of the Court of Appeal and of counsel, the Crown contended that a judge had no discretion to refuse to permit cross-examination as to character when the Criminal Evidence Act 1898 sanctioned it. Dealing with this contention, I said after reviewing a number of cases (at p.341):—

"In the light of what was said in all these cases by judges of great eminence, "one is tempted to say, as Lord Hewart said in Dunkley [1927] 1 K.B. 323 "that it is far too late in the day even to consider the argument that a judge "has no such discretion. Let it suffice for me to say that in my opinion the "existence of such a discretion is now clearly established".

Lord Hodson in the same case at p.346 said that there were two answers to the argument that a

judge had no such discretion:

"First, there is a long line of authority to support the opinion that there is "such a discretion to be exercised under this subsection. In the second "place, what is, I think, more significant, there is abundant authority "that in criminal cases, there is discretion to exclude evidence, admissible "in law, of which the prejudicial effect against the accused outweighs its "probative value in the opinion of the trial judge".

and Lord Pearce at p.360 said the discretion came:

"from the inherent power of the courts to secure a fair trial for the accused, "or, to use the words of Viscount Simon" (in Harris v. Director of Public "Prosecutions) [1952] A.C. 694, 707 the duty of a judge when trying a "charge of crime to set the essentials of justice above the technical rule if "the strict application of the latter would operate unfairly against the "accused".

In the "similar fact" cases of which Noor Mohamed v. The King [1949] A.C. 182 and Harris v. Director of Public Prosecutions are examples, a similar conclusion was reached. That the use of evidence of which the probative value is outweighed by its prejudicial effect should not occur appears first to have been clearly staled in R. v. Christie

[1914] AC 545

in the speeches of Lord Moulton and Lord Reading. That was a case in which the admissibility of a statement made in the presence of the accused had to be considered and the fact that their statements were made in that case is a strong indication that the exercise of this power by a judge is not limited to "character" and "similar fact" cases.

I referred in Selvey to the overriding duty of the judge to ensure that a trial is fair. His discretion to control the use of relevant admissible evidence is exercised in the discharge of this duty. It is the use of the evidence, not, save in relation to confessions and admissions by the accused, the manner in which it has been obtained with which he is concerned.

Support for this conclusion is to be found in the judgment of Lord Goddard in Kuruma v. The Queen [1955] A.C.197 where it was contended that evidence illegally obtained was inadmissible. He rejected this contention, saying:—

"the test to be applied 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 the evidence was obtained. "(My emphasis)

He went on to say:

"No doubt in a criminal case the judge always has a discretion to disallow "evidence if the strict rules of admissibility would operate unfairly against "an accused".

and then referred to Noor Mohamed and Harris. Pausing here, in view of his reference to those cases one might conclude that when he said "operate unfairly against the accused", he meant unfairly in the sense that the prejudicial effect of the evidence outweighed its probative value; but he went on to say:—

"If, for instance, some admission of some piece of evidence, e.g., a docu- "ment, had been obtained from a defendant by a trick, no doubt the "judge might properly rule it out".

This instance is not an instance of evidence which a judge can exclude on account of its prejudicial effect as compared with its probative value and is not easily reconcilable with his statement that the court is not concerned with how evidence was obtained. Perhaps when he said this, Lord Goddard was thinking of admissions and confessions when the court is concerned with the manner in which they were obtained, and of the decision in Rex v. Barker [1941] 2 K.B.381 where it was held that fraudulently prepared documents produced to a tax inspector stood

"on precisely the same footing as an oral or a written confession . . . "brought into existence as a result of... a promise, inducement or threat".

In Brannan v. Peek [1948] 1 K.B.68 Lord Goddard strongly criticised the conduct of a police officer in tricking the accused into the commission of an offence and in Browning v. Watson (Rochester) Ltd. [1953] 2 All.E.R. 775 after saying

"No court in England has ever liked action by what are called agents " provocateurs resulting in imposing criminal liability."

and sending the case back, holding that the offence was proved, he reminded the magistrates that they could grant an absolute discharge without making any order as to costs. If he had thought that the magistrates in their discretion could have refused to admit evidence on the ground that it was unfairly obtained and that the accused had been tricked into its commission, there can be little doubt that he would have said so in this case and also have referred to it in Brannan v. Peek.

In Reg. v. Payne [1963] 1 W.L.R. 637 the accused was persuaded to allow himself to be examined by a doctor on being told that it was no part of the doctor's duty to examine him in order to give an opinion as to his fitness to drive. The doctor gave evidence that the accused was unfit to drive. Lord Parker C.J. held that in the exercise of discretion his evidence ought not to have been admitted

"on the basis that if the [defendant] realised that the doctor was likely to "give evidence on that matter, he might refuse to subject himself to "examination".

The accused was tricked into allowing the examination and the ratio of this decision appears to be that evidence of the result of the examination should not have been admitted without the accused's consent to an examination for that purpose. It is not, I think necessary to decide whether that case was rightly decided. If Lord Parker based his conclusion on the reasons he gave in Callis v. Gunn [1964] 1 Q.B. 495, then I think it was wrongly decided. In Callis v. Gunn after citing Lord Goddard's statement in Kuruma that in every case a judge has a discretion to disallow evidence if its admission would operate unfairly against the accused, Lord Parker said :—

"in considering whether admissibility would operate unfairly against a "defendant, one would certainly consider whether it had been obtained "in an oppressive manner, by force or against the wishes of an accused "person. That is the general principle".

and that the overriding discretion

"would certainly be exercised by excluding the evidence if there was any "suggestion of it having been obtained oppressively, by false representa- "tions, by a trick, by threats, by bribes, anything of that sort".

In Jeffrey v. Black [1977] 3 W.L.R. 895 Lord Widgery C.J. expressed the same view, saying that it was open to justices to apply their discretion and to decline to allow evidence to be given if it had been obtained by police officers by trickery, oppressive conduct, unfairly or as a result of behaviour which was morally reprehensible. With great respect I do not think that these observa- tions were correct. I have not been able to find any authority for the general

principle enunciated by Lord Parker or for these statements by him and by Lord Widgery. If there is any authority for it, it conflicts with Lord Goddard's statement in Kuruma that the court is not concerned with how evidence is obtained. If obtained in one of the ways referred to, its credibility may be impaired. That will be a matter for the jury to consider. It cannot be said that in addition to the probative value of evidence so obtained, it has a prejudicial effect such as to render the trial unfair to the accused if it is admitted.

It has been held, rightly in my opinion, that entrapment does not constitute a defence to a charge (Reg. v. McEvilly

[1974] 60 Cr.App.R. 150

: Reg. v. Mealey & Sheridan

[1974] 60 Cr.App.R. 59

). It would indeed be odd if, although proof that he was incited to commit an offence which he would not otherwise have done is no defence to a charge, he could not be convicted of the offence as a result of the exclusion of admissible evidence in the exercise of judicial discretion. In Kuruma evidence was not held to be inadmissible because it was illegally obtained. Evidence so obtained must surely be regarded as unfairly obtained. Evidence may be obtained unfairly though not illegally but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it.

Where the trial is with a jury, the judge can hear argument and decide whether or not to exercise his discretion in the absence of the jury. In a trial in a magistrates' court, that is not possible. When considering the admissibility of any evidence, the magistrates must know what evidence it is proposed to tender. If they decide that it is inadmissible, they will ignore it in reaching their conclusion. In the same way, it falls upon them to decide whether on account of its prejudicial effect outweighing its probative value, certain evidence should not be given. Again they will be informed of the nature of the evidence and if they rule that it should not be admitted, they no doubt will ignore it in reaching their conclusion.

I do not think that it is possible just to give an affirmative or negative answer to the question certified. My answer to it has with my consent been incorporated by my noble and learned friend Lord Diplock in his speech and so I need not repeat it.

In my opinion Reg. v. Ameer & Lucas, Reg. v. Foulder, Foulkes and Johns and Reg. v. Burnett & Lee were wrongly decided and this appeal should be dismissed.

Lord Salmon

My Lords,

This is a strange appeal which plainly has no hope of succeeding.

The appellant was convicted at the Central Criminal Court of conspiring with others to utter counterfeit U.S.A. banknotes knowing them to be forged and with intent to defraud.

Before the case for the Crown was opened, counsel for the accused adopted the rather strange course of applying to the trial judge to have a "trial within a "trial" before the trial itself began. He asserted that if he succeeded on "the "trial within the trial", the judge would be obliged to rule that the Crown could adduce no evidence against the accused and the jury would then be directed to bring in a verdict of not guilty. Counsel then explained to the judge the facts upon which he proposed to rely. They were as follows:— Whilst the accused had been a prisoner in Brixton Prison, he met a fellow prisoner called Scippo who, unbeknown to the accused, was alleged to be a police informer and an agent provocateur. Shortly before the accused was about to be released, Scippo who seemed to think (rightly) that the accused's business, or part of it, was to

deal in forged banknotes, told the accused that he knew of a safe buyer of forged banknotes and that he would arrange for this buyer to get in touch with the accused by telephone. Soon after the accused left prison he was telephoned by a man who posed as a keen buyer of forged banknotes and enquired whether the accused would sell him any. The accused said that he would, and a rendezvous was arranged at which the deal was to be completed. The accused had no idea that the man with whom he had been speaking may, in fact, have been a sergeant in the police force.

The accused and some of his associates went to the rendezvous carrying with them a large number of forged $U.S.A. banknotes and walked straight into a police trap. The forged notes were confiscated and the accused and his comrades were arrested.

Counsel for the accused hoped to prove the facts which he had opened by the evidence of the police sergeant and Scippo during "the trial within the trial" for which he was asking. Counsel submitted that if these facts were proved:(1) they would establish that the accused had been induced by an agent provocateur, i.e., the sergeant or Scippo or both, to commit the crime with which he was charged and which, but for the inducement, he would never have committed, and that accordingly the law required the judge to disallow any evidence of the accused's guilt to be called by the Crown; alternatively

(2) (a) the trial judge had a discretion to reject any evidence of the offence because it had been unfairly obtained and (b) he was bound by the authorities to exercise that discretion in the accused's favour.

The judge held, rightly, in my view, that he had no such discretion and rejected the submissions made on behalf of the accused. The accused then withdrew his plea of not guilty, pleaded guilty and was sentenced to 18 months imprisonment.

The Court of Appeal (Criminal Division) dismissed the appellant's appeal from the trial judge's findings and the appellant now appeals to your Lord- ship's House.

My Lords,

it is now well settled that the defence called entrapment does not exist in English law. Reg. v. McEvilly and Lee [1974] Crim.L.R. 239; Reg. v. Mealey and Sheridan [1975] 60 C.A.R. 59. A man who intends to commit a crime and actually commits it is guilty of the offence whether or not he has been persuaded or induced to commit it, no matter by whom. This being the law, it is inconceivable that, in such circumstances, the judge could have a discretion to prevent the Crown from adducing evidence of the accused's guilt—for this would amount to giving the judge the power of changing or disregarding the law. It would moreover be seriously detrimental to public safety and to law and order, if in such circumstances, the law immunised an accused from conviction. There are, however, circumstances in which an accused's punishment in such a case might be mitigated, and sometimes greatly mitigated.

It is only fair to observe that in the present case there was not a shred of evidence that the police sergeant was an agent provocateur. Even if he had been told by an informer that the accused was a hardened dealer in forged bank notes, it would, I think, have been his duty to carry out a test to discover whether this information was correct—which events show that it obviously was. No doubt, the accused would not have committed the crime of trying to sell forged bank notes to the police had he known it was the police. There can, however, be little doubt that he would have tried to sell the forged notes to anyone else whom he "considered safe".

I would now refer to what is, I believe, and hope the unusual case, in which a dishonest policeman, anxious to improve his detection record, tries very hard with the help of an agent provocateur to induce a young man with no criminal tendencies to commit a serious crime; and ultimately the young man reluctantly succumbs to the inducement. In such a case, the judge has no discretion to

exclude the evidence which proves that the young man has committed the offence. He may, however, according to the circumstances of the case, impose a mild punishment upon him or even give him an absolute or conditional discharge and refuse to make any order for costs against him. The policeman and the informer who had acted together in inciting him to commit the crime should however both be prosecuted and suitably punished. This would be a far safer and more effective way of preventing such inducements to commit crimes from being made, than a rule that no evidence should be allowed to prove that the crime in fact had been committed.

At common law the person who successfully persuades or induces ("counsels "or procures") another to commit an offence has always himself been guilty of a criminal offence and, since the Criminal Law Act 1967, he can be indicted and punished as a principal offender. He is regarded as being as guilty as the man he has incited to commit the crime—and often far more culpable.

It is perhaps worth observing that the law relating to crimes caused by duress is quite different from the law relating to crimes caused by incitement. As the law now stands, a man who commits any offence under duress except murder in the 1st degree is entitled to a clear acquittal. I think that serious consideration should be given to reforming this branch of the law particularly in view of the mounting wave of terrorism; but this could only be done by statute. I respectfully agree with that great criminal lawyer Sir James Fitzjames Stephen when he wrote:

". . . compulsion by threats ought in no case whatever "to be admitted as an excuse for crime, though it may and ought to operate in "mitigation of punishment in most though not in all cases"

. The punishment would certainly vary according to the circumstances of the case; sometimes it might be minimal. See the majority judgment in Abbott v. The Queen [1977] A.C. 755.

It follows that Reg. v. Ameer and Lucas [1977] Crim.L.R. 104 which laid down that a trial judge has a discretion to exclude evidence of the accused's guilt called by the Crown because it had been improperly obtained by the activities of an agent provocateur was wrongly decided and should be overruled.

There remains the point of law which has been certified to be of general public importance thus:—

"Does a trial judge have a discretion to refuse to allow evidence—being "evidence other than evidence of admission—to be given in any cir- "cumstances in which such evidence is relevant and of more than minimal "probative value?"

This question relates no doubt to an interesting and important branch of the criminal law about which a learned treatise might well be written. But, so far as this appeal is concerned, the answer to this question can only be obiter. I very much doubt the value of obiter dicta, but out of respect for your Lordships and for the Court of Appeal which has posed the question, I will deal with it shortly, without reciting in detail the authorities which your Lordships have already so thoroughly analysed.

I do not propose to comment upon the obiter dicta in Callis v. Gunn [1964] 1 Q.B. at p.501 or in Jeffrey v. Black [1978] 1 Q.B. at p.498 or in any of the many other cases which attempt to define the nature of the prosecution's evidence and the circumstances in which it may be excluded in order to preserve the fairness of the trial. In my opinion, the decision as to whether evidence may be excluded depends entirely upon the particular facts of each case and the circumstances surrounding it—which are infinitely variable.

I consider that it is a clear principle of the law that a trial judge has the power and the duty to ensure that the accused has a fair trial. Accordingly, amongst other things, he has a discretion to exclude legally admissible evidence if justice so requires. See Lord Reid's speech at p.1024 in Myers v. D.P.P. [1965] A.C.1001.

It follows that—

An accused cannot be convicted unless the prosecution proves his guilt beyond a reasonable doubt. To allow an accused to be convicted when there is no evidence before the court capable of proving his guilt beyond a reasonable doubt would obviously be unfair.

A confession by an accused which has been obtained by threats or promises is inadmissible as evidence against him, because to admit it would be unfair.

The judge has a discretion to exclude evidence procured, after the com- mission of the alleged offence, which although technically admissible appears to the judge to be unfair. The classical example of such a case is where the pre- judicial effect of such evidence would be out of proportion to its evidential value. Harris v. D.P.P. [1952] A.C. 694, 707; Kuruma v. Regina

[1955] AC 197

Regina v. Selvey [1970] A.C. 304.

Very recently, at "a trial within a trial" an accused gave evidence (accepted as true by the judge) that a confession upon which the Crown wished to rely was forced out of him; but nevertheless the accused admitted in cross-examina- tion that the confession was true. The Privy Council ruled that when the trial was resumed the Crown could not offer evidence or cross-examine the accused about anything he had said at the "trial within a trial". To allow the Crown to do so would have been unfair. See Wong Kam-ming v. The Queen [1979] 2 W.L.R. 81.

I recognise that there may have been no categories of cases, other than those to which I have referred, in which technically admissible evidence proffered by the Crown has been rejected by the court on the ground that it would make the trial unfair. I cannot, however, accept that a judge's undoubted duty to ensure that the accused has a fair trial is confined to such cases. In my opinion the category of such cases is not and never can be closed except by statute. I understand that the answer given by my noble and learned friend Lord Diplock to the certified question accepts the proposition which I have just stated. On that basis, I respectfully agree with that answer.

My Lords,

I would dismiss the appeal.

Lord Fraser of Tullybelton

My Lords,

The appellant was charged with conspiring to utter forged U.S. dollar notes. He alleged that he had been induced by an agent provocateur to commit the offence and that he would not have committed it if he had not been so induced. The appellant accepts that the doctrine commonly known as entrapment has no place in English law and therefore that his allegations, if proved, would not constitute a defence to the charge against him. The law to that effect is well established by decisions—see Regina v. McEvilly & Lee [1974] Crim.L.R. 239 and Regina v. Mealey & Sheridan

[1974] 60 Cr.App.R. 59

—the correctness of which is not challenged in this appeal. These decisions appear to me to be right in principle. The assertion by an accused person that he has been induced by some other person to commit a crime necessarily involves admitting that he has in fact committed the crime. Ex hypothesi he must have done the necessary act and have done it intentionally in response to the inducement. All the elements, factual and mental, of guilt are thus present and no finding other than guilty would logically be possible. The degree of guilt may be modified by the in- ducement and that can appropriately be reflected in the sentence—see Reg. v. Birtles

[1969] 53 Cr.App.R. 469

and Browning v. Watson [1953] 1 W.L.R. 1172 where Lord Goddard C.J. pointed out that the court could even grant an absolute discharge in such circumstances. That is, I believe, in accordance with common understanding; so when Eve, taxed with having eaten the forbidden fruit, replied "the serpent beguiled me", her excuse was, at most, a plea in mitigation and not a complete defence.

Nevertheless, although entrapment is not a defence and therefore not a matter for the jury to consider on the facts, it is argued for the appellant that the same result can be achieved by the judge, in the exercise of a discretion, excluding all evidence of an offence which has been procured by an agent provocateur. If that were the law, it would be very remarkable, but I am satisfied that it is not so. In my opinion there is no doubt that, whatever discre- tion the judge may have in his conduct of a criminal trial, it could not extend so as to allow him to exclude the evidence in a case such as the present. I reach that opinion on two grounds. First, there are several reported cases in which the courts have expressed strong disapproval of the activities of agents provo- cateurs without suggesting that their evidence should be excluded—see for example Brannan v. Peak [1948] 1 K.B. 68 and Browning v. Watson supra. Secondly, the relevant discretion of the judge is a discretion to exclude evidence because the evidence itself is objectionable on certain grounds. But the present case does not truly raise a question of evidence at all. On the assumed facts here, the evidence against the accused would not have been obtained improperly and would not be open to any objection as evidence. The objection to admitting it would be that the accused had been unfairly induced to commit the offence which the evidence tended to prove, and that would be in effect letting in the defence of entrapment. Accordingly I am of opinion that the evidence was rightly admitted by the learned judge in this case.

The certified question raises a much more general question as to what discretion to exclude legally admissible evidence is enjoyed by the judge at a criminal trial in England. The starting point is, in my opinion, that by the law of England all evidence which is relevant is also admissible—see Kuruma v. Regina

[1955] AC 197

Lord Goddard at p.203. Nevertheless evidence that is admissible in law may, in certain cases, be excluded by the judge in the exercise of a discretion which he undoubtedly possesses. One such case is where evidence of "similar facts" would be admissible, for example to prove guilty intent or to exclude a defence of accident, but where the judge considers that its effect in prejudicing the jury against the accused would exceed its value in tending to prove his guilt. The judge in these circumstances has a discretion to exclude the evidence not only if its probative weight is "trifling"—see Noor Mohamed v. The King [1949] A.C. 182-192—but whenever its prejudicial effect would be "out of proportion to [its] true evidential value"—see Harris v. D.P.P. [1952] A.C. 694, 707, Viscount Simon quoting Lord Moulton in D.P.P. v. Christie

[1914] AC 545

. I read the latter expression as meaning that the discretion can be exercised where the prejudicial value of the evidence would greatly exceed its probative value. Another such case is that a judge has a discretion to admit or exclude evidence of the previous record or character of the accused and to allow him to be cross-examined as to his character notwithstanding that such evidence or cross-examination may be legally admissible under the Criminal Evidence Act 1898 section l(f)(ii). In Regina v. Selvey [1970] A.C. 304, Viscount Dilhorne at p.341 said that the existence of such a discretion was "now clearly "established".

These cases are in my opinion examples of the exercise of a single discretion founded upon the duty of the judge to ensure that every accused person has a fair trial. That is the basis upon which it was put by Lord Goddard in Kuruma supra, where he said (at p.204):

"No doubt in a criminal case the judge always has a discretion to disallow "evidence if the strict rules of admissibility would operate unfairly against "an accused."

If there were not some underlying discretionary power it would be difficult to explain how the judges were able, when the Criminal Evidence Act 1898 came into force, to exclude legally admissible evidence of the type to which I have referred. The statute does not in terms confer a discretion.

The important question is whether the discretion (a) is limited to excluding evidence which is likely to have prejudicial value out of proportion to its

evidential value or (b) extends to excluding other evidence which might operate unfairly against the accused and, if so, how far it extends. On the best con- sideration that I can give to the authorities, I have reached the opinion that the discretion is not limited to excluding evidence which is likely to have prejudicial effects out of proportion to its evidential value. I take first the judgment of Lord Goddard in Kuruma, from which I have already quoted. It is true that im- mediately after saying the judge has discretion to disallow evidence if the strict rules "would operate unfairly against the accused", Lord Goddard referred to the cases of Noor Mohamed and Harris, and might therefore seem to have had in mind only cases that would fall within alternative (a) above. But he went on as follows:

"If, for instance, some admission or some piece of evidence, e.g., a docu- "ment, had been obtained from a defendant by a trick, no doubt the judge "might properly rule it out. It was this discretion that lay at the root of "the ruling of Lord Guthrie in H.M. Advocate v. Turnbull 1951 J.C. 96. The "other cases from Scotland to which their Lordships' attention was drawn, "Rattray v. Rattray [1897] 25 R 315 , Lawrie v. Muir 1950 JC 19 , and "Fairley v. Fishmongers of London 1951 J.C. 14, all support the view that if "the evidence is relevant it is admissible and the court is not concerned "with how it is obtained. No doubt their Lordships in the Court of Justic- "iary appear at least to some extent to consider the question from the "point of view whether the alleged illegality in the obtaining of the evidence "could properly be excused . . ."

I find this passage difficult to follow. The case of Lawrie v. Muir was one in which the court held that evidence obtained by an illegal search of the accused's business premises was not admissible, because the illegality could not be excused. With the greatest respect, the case does not seem to me to support the proposition, for which it was cited by Lord Goddard, that if the evidence is relevant it is admissible. On the contrary, I think it is an application of the principle, well established in Scots criminal law, that "An irregularity in the "obtaining of evidence does not necessarily make that evidence inadmissible", see Lord Justice-General Cooper at p.27 quoting from Lord Justice Clerk Aitchison in M'Guigan 1936 J.C. 16, 18. A few lines lower down Lord Cooper said "Irregularities require to be excused, and infringements of the formalities "of the law in relation to these matters are not lightly to be condoned". Nor can I agree that what lay at the root of Lord Guthrie's decision in H.M. Advocate v. Turnbull to exclude documentary evidence was that the evidence had been obtained from the accused by a trick. The case is in my opinion another example of evidence obtained from premises occupied by an accused person, by an irregularity which could not be excused. Lord Guthrie's final reason at p.103 was that it was unfair to the accused to admit the evidence. He said this:

"If such important evidence upon a number of charges is tainted by the "method by which it was deliberately secured, I am of opinion that a fair "trial upon these charges is rendered impossible".

The decision in Turnbull may be contrasted with the decision in Jeffrey v. Black [1978] 1 Q.B. 490, where it was held that the Justices would not have been entitled to exclude evidence "simply because the evidence in question had "been obtained by police officers who had entered [the accused's residence] "without the appropriate authority". It is not particularly surprising that the two decisions may not be easily reconcilable because the law on this matter is not the same in Scotland as it is in England, as has been judicially recognised on both sides of the border—see King v. The Queen

[1969] AC 304

, 315 per Lord Hodson and H.M. Advocate v. Chalmers 1954 J.C. 66 per Lord Justice- General Cooper at 77, 78. In Chalmers Lord Cooper referred to "the English "courts being in use to admit certain evidence which would fall to be rejected "in Scotland". But the principle of fairness to the accused applied by Lord Guthrie in Turnbull seems to be the same as that stated by Lord Widgery C.J. in Jeffrey supra, where he said this at 497;

"... the justices sitting in this case, like any other tribunal dealing with "criminal matters in England and sitting under the English law, have a

"general discretion to decline to allow any evidence to be called by the "prosecution if they think that it would be unfair or oppressive to allow "that to be done."

That was the principle that seems to have been recognised by Lord Goddard in his reference to Turnbull and treated by him as applicable in England.

Lord Goddard's opinion in Kuruma supra was accepted by Lord Parker of Waddington C.J. in Callis v. Gunn [1964] 1 Q.B. 495, 501, who said that "as "Lord Goddard C.J. points out, and indeed as is well known, in every criminal "case a judge has a discretion to disallow evidence, even if in law relevant and, "therefore, admissible, if admissibility would operate unfairly against a "defendant. I would add that in considering whether admissibility would "operate unfairly against a defendant, one would certainly consider whether "it had been obtained in an oppressive manner by force or against the wishes "of an accused person. That is the general principle." Later in his judgment Lord Parker referred to the judge's "overriding discretion".

Essentially the same principle was stated in King v. The Queen supra, where Lord Hodson, giving the judgment of the Judicial Committee said this:

"Having considered the evidence and the submissions advanced, their "Lordships hold that there is no ground for interfering with the way in "which the discretion has been exercised in this case.

"This is not in their opinion a case in which evidence has been obtained "by conduct of which the Crown ought not to take advantage. If they had "thought otherwise they would have excluded the evidence even though "tendered for the suppression of crime."

I recognise that there does not appear to be any decision by an appellate court in England clearly based upon an exercise of the discretion except when the excluded evidence either(1) is more prejudicial than probative or

(2) relates to an admission or confession. I do not regard the case of Regina v. Payne [1963] 47 Cr.App.R. as an authority in favour of such a discretion. The Court of Criminal Appeal held that evidence described by Lord Parker as "clearly admissible" ought to have been excluded and the conviction was quashed on that ground. The evidence in question was that of a doctor relating to a medical examination of an accused person who was charged with driving a motor car under the influence of drink. The accused had been induced by a trick to permit (and, I would suppose, co-operate in) a medical examination of himself and thus to provide material for incriminating evidence by the doctor who examined him and I regard the decision as being based, at least in part, on the maxim nemo tenetur se ipsum accusare. But notwithstanding the absence of direct decision on the point, the dicta are so numerous and so authoritative that I do not think it would be right to disregard them, or to treat them as applicable only to cases where the prejudicial effect of the evidence would outweigh its probative value. If they had been intended to have such a limited application, the references to the Scottish cases would be inexplicable. In any event, I would be against cutting down their application to that extent.

On the other hand, I doubt whether they were ever intended to apply to evidence obtained from sources other than the accused himself or from premises occupied by him. Indeed it is not easy to see how evidence obtained from other sources, even if the means for obtaining it were improper, could lead to the accused being denied a fair trial. I accordingly agree with my noble and learned friends that the various statements with regard to the discretion to which I have referred should be treated as applying only to evidence and documents obtained from an accused person or from premises occupied by him. That is enough to preserve the important principle that the judge has an overriding discretion to exclude evidence, the admission of which would prevent the accused from having a fair trial. That discretion will be preserved if the question in this appeal is answered in the way proposed in paragraph (2) at the end of the speech of my noble and learned friend, Lord Diplock, with which I agree.

The result will be to leave judges with a discretion to be exercised in accor- dance with their individual views of what is unfair or oppressive or morally reprehensible. These adjectives do undoubtedly describe standards which are largely subjective and which are therefore liable to variation. But I do not think there is any cause for anxiety in that. Judges of all courts are accustomed to deciding what is reasonable and to applying other standards containing a large subjective element. In exercising the discretion with which this appeal is concerned, judges will have the benefit of the decision of this House fixing certain limits beyond which they should not go and they will also have valuable guidance of a more general nature in the opinion of Lord Widgery in Jeffrey v. Black supra. I do not think it would be practicable to attempt to lay down any more precise rules because the purpose of the discretion is that it should be sufficiently wide and flexible to be capable of being exercised in a variety of circumstances that may occur from time to time but which cannot be foreseen.

I have referred throughout to evidence being excluded by the judge from consideration by the jury, but it follows of course that the same evidence ought to be excluded by magistrates from their own consideration in cases where they are the judges both of law and of fact.

I would dismiss the appeal, and answer the question in the way proposed by my noble and learned friend Lord Diplock.

Lord Scarman

My Lords,

The certified question, though superficially concerned with the exercise of a criminal judge's discretion as to the admission of evidence, raises profound issues in the administration of criminal justice. What is the role of the judge? How far does his control of the criminal process extend? It is his duty, as we all know, to ensure that an accused has a fair trial: but what does "fair" mean in this context? And does not the prosecution also have rights which the judge may not by the exercise of his discretion override? These problems lie at the root of the criminal justice of a free society.

The drama of the common law wears two faces. The first, and sterner, face is that subject to exceptions, of which hearsay evidence is far the most import- ant, evidence which a judge rules relevant is admissible, however obtained. "It matters not how you get it; if you steal it even, it would be admissible"- this was the stark assertion of principle by Crompton J. in R. v. Leatham [1861] 8 Cox 498 at 501. The modern formulation of the principle is to be found in the opinion of the Judicial Committee of the Privy Council prepared by Lord Goddard C.J. in Kuruma v. The Queen

[1955] AC 197

at p.203:-

"In their Lordships' opinion the test to be applied 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 the evidence "was obtained."

Consistently with this general rule of evidence the courts have resisted all attempts to introduce into English substantive law a defence of entrapment: Reg. v. McEvilly and Lee [1974] Crim. L. R. 239. In Reg. v. Mealey and Sheridan

[1974] 60 Cr.App.R. 59

at p.62, Lord Widgery C.J. said bluntly:-

"It is abundantly clear on the authorities, which are uncontradicted on "this point, that if a crime is brought about by the activities of someone "who can be described as an agent provocateur, although that may be an "important matter in regard to sentence, it does not affect the question of "guilty or not guilty."

Brannan v. Peek in 1948 [1948] 1 K.B. 68, Browning v. Watson in 1953, [1953] 1 W.L.R. 1172, Reg. v. Birtles in 1969

[1969] 1 WLR 1047

, illustrate that this is the practice of the courts, even when strongly critical of police methods in the obtaining of evidence. The authorities are, my Lords, soundly based. It would be wrong in principle to import into our law a defence of entrapment. Incitement is no defence in law for the person incited to crime, even though the inciter is himself guilty of crime and may be far the more culpable. It would confuse the law and create unjust distinctions if incitement by a policeman or an official exculpated him whom they incited to crime whereas incitement by others—perhaps exercising much greater influence—did not. There are other more direct, less anomalous, ways of controlling police and official activity than by introducing so dubious a defence into the law. The true relevance of official entrapment into the commission of crime is upon the question of sentence when its mitigating value may be high: see Birtles supra.

The second, and merciful, face of the law is the criminal judge's discretion to exclude admissible evidence if the strict application of the law would operate unfairly against the accused. Viscount Simon so described the discretion in Harris v. D.P.P. [1952] A.C. 694 at 707, but immediately proceeded to limit its scope. He said:—

"If such a case arose, the judge may intimate to the prosecution that "evidence of 'similar facts' affecting the accused, though admissible, "should not be pressed because its probable effect 'would be out of propor- "'tion to its true evidential value' (per Lord Moulton in Director of "Public Prosecutions v. Christie). Such an intimation rests entirely within "the discretion of the judge."

In this passage Lord Simon was certainly not envisaging a power in the judge to stop the prosecution prosecuting, or presenting admissible evidence in support of its case. He was speaking not of judicial power but of judicial influence; of a judicial practice, not a rule of law. In so limiting the discretion he was agree- ing with the views expressed by this House in D.P.P. v. Christie

[1914] AC 545

, and in no way differing from the famous interjection of Lord Halsbury L.C. (reported only in the Criminal Appeal Reports

(1914) 10 CrAppR 141

at 149) that he

"must protest against the suggestion that any judge has the right to exclude "evidence which is in law admissible, on the ground of prudence or "discretion, and so on."

I do not review the authorities as to the existence and scope of the discretion: for the task has already been done by others of your Lordships and by the Court of Appeal. There is also a valuable review of the law by the Law Com- mission: Law Com. 83, paragraphs 5.7 to 5.20. The problem is however complex. Is there one discretion or are there several? What is the scope of it (or each of them)? Upon what principles should the discretion be exercised in modern conditions?

In my judgment, certain broad conclusions emerge from a study of the case law. They are:—

that there is one general discretion, not several specific or limited discre- tions ;

that the discretion now extends further than was contemplated by Lord Halsbury, and Lord Moulton in Christie's case, or even by Lord Simon in Harris' case: it is now the law that "a judge has a discretion to exclude legally "admissible evidence if justice so requires" (Lord Reid in Myers v. D.P.P [1965]A.C. 1001 at p. 1024);

that the formula of prejudical effect outweighing probative value which has been developed in the "similar fact" cases, is not a complete statement of the range or the principle of the discretion;

(4) that the discretion is, however, limited to what my noble and learned friend Viscount Dilhorne, calls the "unfair use" of evidence at trial: it does not confer any judicial power of veto upon the right of the prosecution to prosecute or to present in support of the prosecution's case admissible evidence, however obtained.

These broad conclusions leave unresolved the critical question as to the limits of the discretion and the principle upon which it is founded. It may be, as Lord MacDermott C.J. said in Reg. v. Murphy [1965] N.I. 138 at p.149 that unfairness, which will be found to be its modern justification, cannot be closely defined. One must, however, emerge from that last refuge of legal thought- thai each case depends on its facts—and attempt some analysis of principle.

It is tempting to accept that there are several discretions specific to certain situations. Certainly the law has developed by reference to specific situations in which admissible evidence has been either excluded or said to be liable, at the judge's discretion, to be excluded.

A discretion has been recognised to exclude "similar fact" evidence where its prejudicial effect would outweigh its probative value: Noor Mohamed v. The King [1949] A.C. 182. A discretion to refuse to permit a cross-examination of the accused to his record, though permissible under the Criminal Evidence Act 1898, was recognised by this House in Selvey v. D.P.P. [1970] A.C. 304. Other relevant evidence may also be excluded. Examples are:— a voluntary confession obtained in breach of the Judges' Rules: evidence obtained where the defendant has been misled into providing it (Reg. v. Payne [1963] 1 W.L.R.637); evidence obtained illegally after the commission of the offence (Kuruma's case, supra). The instances of actual exclusion are rare: but too many distinguished judges have said that the discretion exists for there to be any doubt that it does.

Notwithstanding its development case by case, I have no doubt that the discretion is now a general one in the sense that it is to be exercised whenever a judge considers it necessary in order to ensure the accused a fair trial. Selvey's case can be seen to be of critical importance. Viscount Dilhorne, though he was directing his attention to the specific situation in that case (cross-examina- tion of the accused to his record) referred to cases concerned with other situa- tions, e.g. Christie, Noor Mohamed, Harris and Kuruma, and concluded by saying (pp.341-342):—

"It [i.e. its exercise] must depend on the circumstances of each case "and the overriding duty of the judge to ensure that a trial is fair" (my emphasis).

Lord Hodson, Lord Guest and Lord Pearce, with whom Lord Wilberforce agreed, were clearly of the opinion that the discretion was a general one. Lord Hodson said (p.349):—

"Discretion ought not to be confined save by the limits of fairness."

Lord Guest (p.352) said the discretion "springs from the inherent power of the "judge to control the trial before him and to see that justice is done in fairness "to the accused": and Lord Pearce echoed his words (at p.360F).

The review of the authorities by this House in Selvey's case reveals how com- paratively recent a judicial development this discretion is. Its history is associated with the recognition of the admissibility of "similar fact" evidence. As this rule of evidence became established, judges were alert to prevent its abuse where probative value was slight and prejudicial effect upon a jury likely to be great. But other more basic matters contributed to the development: in parti- cular, the common law principle against self-incrimination, and the side- effects of the Criminal Law Evidence Act 1898 which by conferring upon the accused the right to give evidence on his own behalf exposed him to the perils of cross-examination. Against this comparatively modern background the judges have had to discharge their duty of ensuring the accused a fair trial.

Long before 1898, however, the courts were faced with the problem of re- conciling fairness at trial with the admissibility of evidence obtained as a consequence of an inadmissible confession. The problem was resolved in R. v. Warickshall [1783] 1 Leach 263 by the court declaring, p.264:—

"Facts thus obtained, however, must be fully and satisfactorily proved, "without calling in the aid of any part of the confession from which they "may have been derived."

The discovery of the stolen goods in that case, or (as in Reg. v. Berriman (1854) 6 Cox 388) the finding of the remains of the corpse, is the best possible evidence of the truth of the confession (compare and contrast the Canadian approach in the Supreme Court decision R. v. Wray, 11 D.L.R. 673): but in English law the confession is inadmissible, not because it is unreliable (its reliability is established by what has been found), but because to admit it would be unfair. Similar considerations influenced the judges after 1898 in protecting an accused from a permissible cross-examination to his record or in excluding admissible "similar fact" evidence. At first, the judge would be expected to use his influence (Christie's case, supra) to dissuade the prosecution from doing what the statute or the common law allowed: but by the time Reg. v. Kuruma supra was decided influence had become power. Lord Goddard C.J. was able to say, at p.204, in that case:—

"No doubt in a criminal case the judge always has a discretion to disallow "evidence if the strict rules of admissibility would operate unfairly against "an accused."

Christie's case is, therefore, only a staging-post in the development of the law. The modern discretion is a general one to be exercised where fairness to the accused requires its exercise.

Authority therefore, strongly suggests that the discretion is based upon, and is co-extensive with, the judge's duty to ensure that the accused has a fair trial according to law. The two faces of the law reveal the nature and limits of this duty. The accused is to be tried according to law. The law, not the judge's discretion, determines what is admissible evidence. The law, not the judge, determines what defences are available to the accused. It is the law that, subject to certain recognised exceptions, evidence which is relevant is admiss- ible. It is the law that there is no defence of entrapment. The judge may not use his discretion to prevent a prosecution being brought merely because he disapproves of the way in which legally admissible evidence has been obtained. The judge may not by the exercise of his discretion to exclude admissible evidence secure to the accused the benefit of a defence unknown to the law. Judges are not responsible for the bringing or abandonment of prosecutions: nor have they the right to adjudicate in a way which indirectly usurps the functions of the legislature or jury. For legislation would be needed to intro- duce a defence of entrapment: and, if it were to be introduced, it would be for the jury to decide whether in the particular case effect should be given to it.

I can now answer the questions posed at the beginning of this opinion. The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority. He neither initiates nor stifles a prosecu- tion. Save in the very rare situation, which is not this case, of an abuse of the process of the court (against which every court is in duty bound to protect itself), the judge is concerned only with the conduct of the trial. The Judges' Rules, for example, are not a judicial control of police interrogation, but notice that, if certain steps are not taken, certain evidence, otherwise admissible, may be excluded at the trial. The judge's control of the criminal process begins and ends with trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. Of course when the prosecutor reaches court, he becomes subject to the directions as to the conduct of the trial by the judge, whose duty it then is to see that the accused has a fair trial according to law.

What does "fair" mean in this context? It relates to the process of trial. No man is to be compelled to incriminate himself; "nemo tenetur se ipsum "prodere". No man is to be convicted save upon the probative effect of legally admissible evidence. No admission or confession is to be received in evidence unless voluntary. If legally admissible evidence be tendered which endangers these principles (as, for example, in Reg, v. Payne, supra), the judge may exercise his discretion to exclude it, thus ensuring that the accused has the benefit of principles which exist in the law to secure him a fair trial: but he has no power to exclude admissible evidence of the commission of a crime, unless in his judgment these principles are endangered.

In the light of these principles this appeal presents no difficulty. The learned trial judge dealt with the case upon certain assumptions: he said:—

"For the purposes of these submissions I am prepared to assume that "Sang was induced by an agent provocateur to commit these crimes, "and that he would not have committed them if he had not been so "induced".

The crimes were conspiracy to utter counterfeit bank notes (U.S. dollars) and unlawful possession of forged notes. After a full and illuminating review of the case law the judge drew a distinction between "evidence being unfairly "obtained and activity being unfairly induced". He held that the discretion arose only in the case of evidence unfairly obtained. The distinction is a genuine one; it does not, however, answer the question which the judge must ask himself. That question is whether the use of the evidence at the trial would be fair or unfair to the accused. And fairness has to be determined in the light of the principles to which I have referred and in the context of the particular facts. In the present case, the (assumed) evidence of crime was clear. The fact that the criminal conduct was (upon the assumptions made) incited by an "agent "provocateur" did not, as a matter of law, diminish its criminality or weaken the probative value of the evidence. There was, therefore, no justification for the exercise of the discretion to exclude the evidence. Had the evidence of crime which was legally admissible, been excluded, the judge would have made prosecution impossible for a crime of which there was available unimpeachable and credible evidence: and, in so doing, would have exceeded his function. I would, therefore, dismiss the appeal.

My Lords,

I am acutely aware that the rest of my speech is "obiter". I trespass upon your Lordships' time only because unless I do so, I am unable to answer the question certified by the Court of Appeal.

The development of the discretion has, of necessity, been largely associated with jury trial. In the result, legal discussion of it is apt to proceed in terms of the distinctive functions of judge and jury. No harm arises from such traditional habits of thought, provided always it be borne in mind that the principles of the criminal law and its administration are the same, whether trial be (as in more than 90 per cent of the cases it is) in the magistrates' court or upon indictment before judge and jury. The magistrates are bound, as is the judge in a jury trial, to ensure that the accused has a fair trial according to law; and have the same discretion as he has in the interests of a fair trial to exclude legally admissible evidence. No doubt, it will be rarely exercised. And certainly magistrates would be wise not to rule until the evidence is tendered and objection is taken. Assumptions, such as Judge Buzzard made in this case, should never be made by magistrates. They must wait and see what is tendered; and only then, if objection be taken, rule. When asked to rule, they should bear in mind that it is their duty to have regard to legally admissible evidence, unless in their judgment the use of the evidence would make the trial unfair. The test of unfairness is not that of a game: it is whether in the light of the considerations to which I have referred the evidence, if admitted, would undermine the justice of the trial. Any closer definition would fetter the sense of justice, upon which in the last resort all judges have to rely: but any extension of the discretion, such as occurred in Reg. v. Ameer and Lucas [1977] Crim.L.R. 104—to which

my noble and learned friends, Lord Diplock and Viscount Dilhorne, have referred with disapproval—would also undermine the justice of the trial. For the conviction of the guilty is a public interest, as is the acquittal of the innocent. In a just society both are needed.

The question remains whether evidence obtained from an accused by deception, or a trick, may be excluded at the discretion of the trial judge. Lord Goddard C.J. thought it could be: Kuruma at p.204. Lord Parker CJ. and Lord Widgery C.J. thought so too: see Callis v. Gunn [1964] 1 Q.B. 495 at 502 and Jeffrey v. Black [1977] 3 W.L.R. 895. The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary, for the purposes of this appeal, to express a conclusion upon them. But, always provided that these dicta are treated as relating exclusively to the obtaining of evidence from the accused, I would not necessarily dissent from them. If an accused is misled or tricked into providing evidence (whether it be an admission or the provision of finger-prints or medical evidence or some other evidence), the rule against self-incrimination— "nemo tenetur se ipsum prodere" —is likely to be infringed. Each case must, of course, depend on its circumstances. All I would say is that the principle of fairness, though concerned exclusively with the use of evidence at trial, is not susceptible to categorisation or classification, and is wide enough in some circumstances to embrace the way in which, after the crime, evidence has been obtained from the accused.

For these reasons I agree with the answer to the certified question in the terms proposed by my noble and learned friends. Lord Diplock and Viscount Dilhorne.

In reaching my conclusion that the discretion is a general one designed to ensure the accused a fair trial, I am encouraged by what I understand to be the Scots law. Such research as I have been able to make makes clear that the Scots judges recognise such a discretion. Indeed, I think they go further than the English law, the Scots principle being that evidence illegally or unfairly obtained is inadmissible unless in the exercise of its discretion the court allows it to be given. Sheriff MacPhail in his massive research paper on the law of evidence in Scotland (April 1979) describes the existing law in these terms (para. 21.01):-

"In criminal cases, on the other hand, evidence illegally or irregularly "obtained is inadmissible unless the illegality or irregularity associated "with its procurement can be excused by the court".

It would appear that the principal authority is the Full Bench case of Lawrie v. Muir [1950] JC 19 , in which Lord Justice-General Cooper, after saying that irregularities require to be excused, continued (pages 26-27):—

"In particular, the case may bring into play the discretionary principle of "fairness to the accused which has been developed so fully in our law "in relation to the admission in evidence of confessions or admissions by "a person suspected or charged with crime. That principle would obviously "require consideration in any case in which the departure from the strict "procedure had been adopted deliberately with a view to securing the "admission of evidence obtained by an unfair trick".

How far the Scots judges have extended "the discretionary principle of "fairness to the accused" I am not qualified to say. It is, however, plain that by the law of Scotland it may be invoked in a case where, after the commission of the crime, illegal or irregular methods have been used to obtain evidence from the accused: see also H.M. Advocate v. Turnbull [1951] J.C. 96 per Lord Guthrie at p. 103. Though differences of emphasis and scope are acceptable, it would be, I think, unfortunate if the "discretionary principle of fairness to "the accused" was not recognised in all the criminal jurisdictions of the United Kingdom. Indeed, it must be a fundamental principle in all British criminal jurisdictions that the court is under the duty to ensure the accused a fair trial: and I do not believe that a judge can effectually discharge his duty without, at the very least, the availability of the discretion I have endeavoured to describe.