obtained”. He referred to a remark of Crompton J in R v Leathem
(1861) 8 Cox CC 498, 501, overruling an objection to production of a
letter which had been discovered in consequence of an inadmissible
statement made by the accused: “It matters not how you get it; if you
steal it even, it would be admissible.”
86.
It is true that there are no cases in which statements from third
parties have been held inadmissible on the ground that they had been
obtained by torture. But the reason is not because such statements have
been admitted in an ordinary English court. That has never happened. It
is because ever since the late 17th century, any statements made by
persons not testifying before the court have been excluded, whatever the
circumstances in which they were made. There was no need to consider
whether they had been obtained by torture. They were simply rejected as
hearsay. One must therefore try to imagine what the judges would have
said if there had been no hearsay rule. Is it credible that, while rejecting
a confession obtained by torture from the accused, they would have
admitted a confession incriminating the accused which had been
obtained by torturing an accomplice? Such a proceeding was precisely
what had been held to be unlawful in the case of Felton. It is absurd to
suppose that the judges would have said that the torture was illegal but
that a statement so obtained would nevertheless be admissible.
87.
As is shown by cases like Kuruma, not all evidence unlawfully
obtained is inadmissible. Still less is evidence inadmissible only because
it was discovered in consequence of statements which would not
themselves be admissible, as in Leathem and the leading case of R v
Warickshall (1783) 1 Leach 263, in which evidence that stolen goods
were found under the bed of the accused was admitted notwithstanding
that the discovery was made in consequence of her inadmissible
confession. But the illegalities with which the courts were concerned in
Kuruma and Leathem were fairly technical. Lord Goddard was not
considering torture. In any case, since Kuruma the law has moved on.
English law has developed a principle, illustrated by cases like R v
Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, that
the courts will not shut their eyes to the way the accused was brought
before the court or the evidence of his guilt was obtained. Those
methods may be such that it would compromise the integrity of the
judicial process, dishonour the administration of justice, if the
proceedings were to be entertained or the evidence admitted. In such a
case the proceedings may be stayed or the evidence rejected on the
ground that there would otherwise be an abuse of the processes of the
court.
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