In addition to the public policy discretion (Bunning v Cross), criminal courts possess a general unfairness discretion to exclude admissible evidence on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. This discretion is not dependent on the conduct of law enforcement authorities and applies to any evidence. The public policy discretion is confined to circumstances where evidence was obtained by unlawful or improper conduct and does not extend to circumstances where lawfully obtained evidence is subsequently unlawfully destroyed. The Swaffield overall discretion should, until the High Court determines otherwise, be regarded as limited to confessional evidence.
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