Report No. 94
4.2. Decision in R. v. Sang.-
It should be mentioned that in the comparative recent English decision of R. v. Sang,1 the statement about the discretion of the Court appears in terms somewhat different from earlier cases. The general question certified in that case by the Court of Appeal as fit for consideration by the House of Lords was: "does a trial judge have a discretion to refuse to allow evidence-being evidence other than evidence of admissions-to be given in any circumstances in which such evidence is relevant and of more than minimal probative value?" To this question, the following answer was given by four out of the five members of the House of Lords:-
"(1) A trial judge at a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative.
(2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after his commission of the offence, he (the trial judge) 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."
The formulation of the law by Lord Salmon (in the above case of R. v. Sang) was in terms different from that of the other law Lords. But Lord Salmon did not disagree with the rest of the House.
1. R. v. Sang, (1979) 3 WLR 263 (288) (HL); see analysis in Rosemary Pattenden The Exclusion of Unfairly Obtained Evidence in England, (1980) 29 ICL, 666-686.
4.3. R. v. Sang, referred to above, is a recent case and it is not possible to make any comment as to how far, if at all, it has modified the earlier understanding of the position in England as to evidence illegally obtained. It should however, be mentioned that1 copies improperly obtained may be excluded to prevent documents brought into court for a limited purpose from being stolen.
1. I.T.C. Films v. Video Exchange, (1982) 1 All ER 241 (247).