Public Interest in the Balance: Does the Public Policy Discretion work?

Abstract

The issue of police malpractice is one of historic interest and contemporary importance. It is a thorn in the side of criminal justice that potentially may infiltrate a criminal prosecution to the extent of occasioning a miscarriage of justice and in so doing undermine the fabric of the criminal justice system. The law has responded to this challenge by the declaration of a judicial discretion to exclude evidence improperly or unlawfully obtained where the balance of the public interest requires it. The focus of the public policy discretion is the deliberate or reckless disregard of the law by those charged to enforce it. Despite the articulation and refinement of the public policy discretion, research suggests that exclusion of evidence is largely confined to instances of flagrant breaches of the law. Its objective will continue to be impeded unless the court can receive evidence of past malpractice to determine if there is a pattern of misconduct and whether an alleged breach was intentional, reckless or accidental. This paper will critically examine the public policy discretion, both in its common law and statutory forms, and propose reform of the current law to enhance its effectiveness.