Abstract:
The current state of the law governing the court’s discretion to exclude evidence consists of two statutory provisions governing hearsay and expert evidence (introduced in 2012), in addition to a judicially developed discretion to exclude evidence, the prejudicial effect of which overrides its probative value. The latter “exclusionary discretion” was confirmed by the Court of Appeal in 2011 in a criminal case (involving the reliability of admissible statements) despite a series of judicial pronouncements over the preceding four years which entirely rejected it. This year (2015), the Court of Appeal took the view that an “inherent discretion” to exclude evidence might be exercised in civil proceedings. As this case was directly concerned with an action for breach of confidence, the Court of Appeal pointed out that its observations were tentative in the absence of full argument and that this area of law would have to be fully considered at a subsequent time. Nevertheless, the comments of the Court of Appeal are a critical starting point in civil proceedings and, as will be contended, may have a significant impact on the evolution of the law in the criminal sphere. The purpose of this article is twofold. First, it considers what the scope of the discretion ought to be in civil cases given the multiple issues which might arise. Second, it will be argued that the principle of exclusion in criminal cases is not limited to the prejudicial effect of evidence at trial but may extend to circumstances in which the manner of obtaining evidence is so improper that reliance on it by a court would detrimentally compromise the integrity of the judicial process. For this purpose, an important 2008 case which was regarded for some time as closing the door to the discretion to exclude evidence will be revisited for its observations on a balancing test involving the administration of justice, which might now have validity in the light of recent developments. It will be shown that a violet thread was sewn into the fabric of justice more than 50 years ago and that, despite its severing at various points in time, has re-emerged for fuller consideration.