The "overarching requirement" of fairness

The interrelationship between the requirements that statements be made voluntarily, and that trials be fair, was central to the unanimous decision of the Judicial Committee in Shabadine Peart v R (Jamaica) [2006] UKPC 5 (14 February 2006).

Which is the dominant requirement? If a confession was made voluntarily, should it always be admissible? If it was obtained wrongfully, but still given voluntarily, should it always be admissible? Obtaining a statement wrongfully can result in lies being told which unfairly diminish the credibility of the defence. This was the position in Shabadine Peart. Should such a statement be admissible, because it was made voluntarily, even though it could result in unfairness at trial? Is it necessary that the effect of the misconduct in obtaining the statement would be to make the trial unfair, or can exclusion of the wrongfully obtained statement be justified on broader grounds of public policy?

I should note, at this point, that this case focuses on the effect of admission of the wrongfully obtained statement on trial fairness, when that matter would not arise unless the statement should have been excluded on public policy grounds. If there were no public policy grounds to exclude the statement, there could be no trial fairness objection to its admission. Yet, once there were sufficient public policy grounds to exclude it, the appellate court had to deal with the fair trial implications of the error.

Well, aside from that matter, what does Shabadine Peart decide about trial fairness? It follows a line of cases, not cited in the judgment but referred to frequently in these blogs, that puts fairness as the overarching criterion (para 23). The most important facet of fairness is the voluntariness of the statement by the accused, and also relevant are factors such as his youth, and whether he received legal advice before making the statement.

The case involved breaches of Rule 3(b) of the Judges’ Rules, which concerns restrictions on questions that may be put to the accused after he has been arrested. The Privy Council doubted that in the circumstances the statement could be regarded as voluntary, but, even if voluntary, it was unfair to admit the statement in evidence (para 29). This was because it contradicted some of the evidence given or called by the accused at trial, and could therefore be used by the prosecution to diminish the credibility of the defence.

Well, it would only be wrong to admit such a statement if it had been wrongfully obtained in such a way as to give rise to public policy concerns over disrepute to the administration of justice. In my view, as stated above, the Board’s comments on trial fairness were unnecessary and misleading.

At this point in the judgment it was necessary to consider the application of the proviso – itself an interesting topic, considered in these blogs. It was held that if the statement had been excluded, the course of the trial may have been very different and the defence may have succeeded (para 30). This is recognisable as the criterion of whether the error at trial had resulted in the loss of a real chance of acquittal. That was sufficient to prevent application of the proviso. It should be noted that the Board is not, here, relying on the trial fairness aspect of application of the proviso, but instead is, properly, determining whether the error at trial had had significance for its result. Inconsequential errors in the application of the public policy discretion do not, by definition, matter.

Some aspects of Rule 3(b) are also mentioned. These include the history and rationale for the Rule, the distinction between the suspicion and accusation phases of the police inquiry, and judicial experience of the tendency of those who have told the truth to tell lies to avoid pressure (paras 18 – 20).

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