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6 Oxford U. Commw. L.J. 1 (2006)

handle is hein.journals/oxuclwj6 and id is 1 raw text is: SUMMER 2006 Oxford niversiD (ommoneealti Law Journal 1 ARTICLES FAIRNESS AND EQUALITY IN THE CRIMINAL PROCESS ERIC COLVIN* A INTRODUCTION It is sometimes contended that evidence obtained in an unfair way should be liable to exclusion, even if it is reliable, in order to protect the accused's right to a fair trial. This paper examines two main questions. First, what kind of thery of inves- tigative fairness might underlie claims that evidence has been obtained unfairly and that this investigatixe unfairness could lead to adjudicative unfairness? Secondly, which factors will make claims for investigatixe unfairness stronger or weaker? The paper does not seek to resolxe the questions of whether and when exvidence should be excluded because of investigative unfairness. Questions respecting the exclusion of evidence haxve generated the paper. Its primary focus, howexver, is on dimensions of the law of criminal investigation rather than the law of evidence itself. A preliminary distinction might be drawn between two different types of argu- ment for excluding reliable evidence because of how it was obtained. One is that exclusion will adxvance the general public interest in criminal investigation being conducted in certain ways; the other is that exclusion will vindicate some right of the particular accused such as a right to fair treatment. A utilitarian calculation of the public interest might sometimes call for the exclusion of evidence of acceptable probatixe value because it was obtained in an unlawful or improper way. That, howexver, would be a different matter from recognising any claim that the accused deserxes to haxe the evidence excluded. When evidence is excluded on grounds of public policy, the accused is merely an incidental beneficiary of the way in which the public interest is pursued. In contrast, what the accused actually deserxes is at stake when exclusion is sought in order to vindicate that accused's rights.' Professor oi'Law, Bond IJniversity, 0juensland. Early wcrsions ofthis paper wcrc wriltcn during periods as Visiting Fellow, Centre for Crimninological Research, University of Oxford, and as Visiting Profcessor, Facu1y o Law, Uniwcrsiry ol British Columbia. T am gratelul for helpul comments from Andrew Ashworth, Victoria Colvin, Steven Penney, Tim Quigley and anonymous reli ces. 1 See R Dworkrn, 'Principle, Polky, Procedure' i A Matter ofinciple (Harvard University Press, Cambridge 1\assachusets 1985) 72 103, on the prevention olmoral harm' in thc law of criminal procedure.

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