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traced to a common ancestor in Kuruma v. R. which I have already cited. That statement was not, in
my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1)
admissible evidence which would probably have a prejudicial influence upon the minds of the jury
that would be out of proportion to its true evidential value; (2) evidence tantamount to a self-
incriminatory admission which was obtained from the defendant, after the offence had been
committed, by means which would justify a judge in excluding an actual confession which had the
like self-incriminating effect.
The function of the judge at a criminal trial as respects the admission of evidence is to ensure that the
accused has a fair trial according to law. It is no part of the judge’s function to exercise disciplinary
My Lord, if one comes further down the page it starts;
“The test of unfairness is not that of a game: it is whether in the light of the considerations to which I
have referred the evidence, if admitted, would undermine the justice of the trial … For the conviction
of the guilty is in the public interest, as is the acquittal of the innocent.”
Lord Scarman went on:
“The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary for
the purposes of this appeal to express a conclusion upon them. But, always provided that these dicta
are treated as relating exclusively to the obtaining of evidence from the accused, I would not
necessarily dissent from them. If an accused is misled or tricked into providing evidence (whether it
be an admission or the provision of fingerprints or medical evidence or some other evidence), the
rule against self- incrimination is likely to be infringed. Each case must, of course, depend on its
circumstances. All I would say is that the principle of fairness, though concerned exclusively with the
use of evidence at trial, is not susceptible to categorisation or classification and is wide enough in
some circumstances to embrace the way in which, after the crime, evidence has been obtained from
the accused.”
My Lord, when, therefore, the court was dealing with the facts of this particular case your Lordship
will see, if you look at the paragraph beginning:
“In the result, the learned judge concluded that to admit the challenged evidence would not have an
adverse effect on the fairness of the trial. Nobody was forcing the defendants to do what they did.
They were not persuaded or encouraged to do what they did.”
Well, they were in this case, in the facts of Smith.
“They were doing in that shop exactly what they intended to do and in all probability what they
intended to do from the moment they got up that morning. They were dishonestly disposing of
dishonest goods. If the police had never set up the jewellers shop, they would, in my judgement,
have been doing the same thing, though of course they would not be doing it in that shop, at that
time. They were not tricked into doing what they would not otherwise have done, they were tricked
into doing what they wanted to do in that place and before witnesses and devices who can now
speak of what happened.
Putting it in different words, the trick was not applied to the appellants; they voluntarily applied
themselves to the trick.”