Law notes on admissions evidence, Lecture notes of Law of Evidence

Download Law notes on admissions evidence and more Lecture notes Law of Evidence in PDF only on Docsity! Nanima, R.D. (2017). Admission of confessions in Uganda: unpacking the theoretical, substantive and procedural considerations of the Supreme Court. East African Journal of Peace and Human Rights, 23(1): 105 - 125 University of the Western Cape Research Repository manima@gmail.com Admission of confessions in Uganda: Unpacking the theoretical, substantive and procedural considerations of the Supreme Court Robert Doya Nanima Abstract The Uganda legal regime relies on the discretion of the courts in dealing with improperly obtained evidence. While various theories explain the need to exclude evidence, understanding their rationales sheds light on evaluating why the courts deal with this kind of evidence in the way they do. This article offers an assessment of selected decisions handed down by Uganda’s Supreme Court between 1995 and 2015 with regard to evidence improperly obtained through confessions. It seeks to establish the underlying theoretical considerations of the decisions, how the courts address aspects of procedural and substantive justice, and whether there is a consistent developed jurisprudence. This analysis, therefore, supports the need for reform. I. Introduction The investigative function of law enforcement officers is as important to the criminal process as the criminal trial because their improprieties in obtaining evidence may taint the functioning of the courts.1 The investigative function may be abused and, as a consequence, lead to improperly obtained evidence. This kind of evidence may be as a result of human rights violations or procedural impropriety. For purposes of this article, improperly obtained evidence refers to the latter, with no taint of human rights violations.2 This improperly obtained evidence may exist as a result of deceit, improper or unfair means without any additional illegality.3 Instances include a non-designated officer obtaining a confession4 or obtaining evidence in the course of an inadmissible confession.5 Other scenarios which are beyond the scope of this article include evidence obtained 1 C. Fai, Illegally obtained evidence, 15 SINGAPORE LAW REVIEW (1994), at 98. 2 D.T. ZEFFERT AND A.P. PAIZES, THE SOUTH AFRICA LAW OF EVIDENCE 2 (2009) 711; see also, Fai id., at 99. 3 A. Skeen, Admissibility of Improperly Obtained Evidence in Criminal Trials, 1 SAJCJ (1988), at 389. 4 Nashaba v. Uganda (Criminal Appeal No.39 of 2000) [2002] UGSC 17 (15 April 2002). 5 A. Choo, Evidence Obtained in Consequence of an Inadmissible Confession, 57 JOURNAL OF CRIMINAL LAW (1993), at 195- 198. 2 through illegal searches and seizures,6 entrapments,7 and the use of undercover police investigations to obtain confessions.8 This article limits its scope to confessions obtained through improper means. First, it seeks to establish the theoretical considerations that may be used to understand the rationales of the decisions; secondly, it examines how the Supreme Court has applied the concepts of procedural and substantive justice; and thirdly, it assesses whether there is a consistent jurisprudence dealing with improperly obtained evidence. II. Concept of improperly obtained evidence Different jurisdictions attach different meanings to the term ‘improperly obtained evidence.’ This may be due to the existence of statutory law or judicial interpretation.9 Some jurisdictions use the terms ‘illegally’ and ‘improperly obtained evidence’ interchangeably subject to proof of violation of the rights of an accused.10 Other jurisdictions require that where procedural rules are not followed, a court may decline to admit the evidence.11 In South Africa, for example, the constitutional directive refers to improperly or illegally obtained evidence and requires that it should be subjected to the constitutional test before it is excluded.12 The relevant section thus provides as follows: Evidence obtained in a manner that violates any right in the bill of rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.13 This section requires that before the evidence is excluded there should be a violation of a constitutional right.14 In interpreting the above section, the South African courts have referred to this evidence as ‘improperly obtained evidence.’15 Notwithstanding the above, the South African courts still have the discretion under the common law to exclude improperly obtained evidence. The exclusion can be done in instances where there has been no violation of human rights in the course of obtaining the evidence.16 6 Fai, supra note 1, at 98. 7 S. Darren and W. Nicci, The Exclusion of Evidence obtained by Entrapment: Un Update, THE ORBITER (2011), at 634. 8 B. Murphy and J.L. Anderson, Confessions to Mr. Big A new rule of evidence?, 20 INTERNATIONAL JOURNAL OF EVIDENCE AND PROOF (2016), at 29-48. 9 See, section 35(5) of the Constitution of the Republic of South Africa 1996 (South African Constitution) and section 359a of the Dutch Code of criminal procedure (Nederlandse Wetboek van Strafvordering (Sv) to be discussed below. 10 See the subsequent discussion on South Africa. 11 See the subsequent discussion on the Netherlands. 12 For instance, section 35(5) of the South African Constitution; and S v. Mthembu [2008] ZASCA 51 where Cachalia J referred to the requirement to exclude improperly obtained evidence in terms of section 35(5). See also, Cameron J in S v. Tandwa [2007] SCA 34 (RSA) para. 116. See further section 24(2) of the Canadian Charter on Human Rights and Fundamental Freedoms 13 Section 35(5) of the South African Constitution 1996. 14 For a discussion of section 35(5) of the South African Constitution, see Zeffert & Paizes, supra note 2, at 721-775. 15 Zeffert & Paizes id., at 721- 775. 16 For a discussion on the exclusionary rule in South Africa, see Van der Merwe Unconstitutionally Obtained Evidence: Towards Compromise between the Common Law and the Exclusionary Rule, 3 STELLEN L.R (1992), at 173-206. http://repository.uwc.ac.za 5 This section requires that for evidence to be admitted it has to be relevant to a fact in issue or it should relate to a fact in issue. The relevance of evidence depends on its ability to address a substantive issue of the case or a question in dispute.32 The failure of any piece of evidence to do the former is a yardstick for its non-admission. With regard to the admissibility of relevant evidence, a court has to deal with two questions. First, it deals with the question of relevance to a substantive fact in issue. The second question relates to relevance to the credibility of the evidence.33 In Uganda v. David Kamugisha,34 the accused sought to admit a letter into evidence that was purportedly signed by a prosecution witness and written to the accused. The admission of this evidence was supposed to rebut the evidence of the witness who had testified that: first, she could not write anything other than her name; secondly, she was not a girlfriend of the accused; and thirdly, she held a grudge against the accused. The Court held that the admissibility of a piece of evidence depended on whether it was relevant to an issue before a court, otherwise the court record would be filled with evidence which was not sufficiently relevant and which had the effect of prolonging the trial because of immaterial matters. The letter turned out to be irrelevant to the substantive issues before the Court. The evidence sought to be admitted failed to pass the initial relevance test. If it had passed the test, then the relevance to the credibility of the evidence would have been put into consideration. Furthermore, with regard to the requirement that the evidence must relate to a fact in issue, failure to prove this relationship is detrimental to any attempts to admit that piece of evidence. In Struggle (U) Ltd v. Pan African Insurance Company Ltd,35 at the commencement of trial, counsel for the plaintiff laid evidence to show that the defendant’s company did not exist. The defendant objected to this evidence on the ground that the pertinent issue before the Court was whether the defendant’s company owned the premises and that therefore evidence to prove the non-existence of the defendant’s company was irrelevant. The Court held that the issue of whether the defendant’s company had ceased to exist was not a fact in issue as it was not pleaded and that therefore evidence to prove its non-existence was not admissible. The lack of a connection or failure by the plaintiff to show a connection between the evidence that the plaintiff sought to be admitted and the facts in issue was the reason why the evidence was not admitted. If evidence is admissible, the manner of its procurement does not matter. It is on the basis of this rule that the exclusionary rule may be used. In Kuruma s/o Kairu v. R,36 the appellant was convicted on a charge of being in unlawful possession of ammunition 32 J. Wanga, Evidence Obtained from Remote- Electronic Traffic Devices: An Argument for Admissibility in Civil and Criminal Contexts, 46 THE JOURNAL OF THE AMERICAN JUDGES ASSOCIATION (2010), at 102- 109. 33 A. TERENCE, D. SCHUM AND W. TWINING, ANALYSIS OF EVIDENCE 2 (2006) 96. 34 (1988 – 90) HCB 77. 35 (1990-91) KARL 46. 36 Kuruma s/o Kairu v. R (1955) AC 197, 203; A. Choo & S. Nash, Improperly Obtained Evidence in the Commonwealth; lessons for England and Wales?, 11 INTERNATIONAL JOURNAL OF EVIDENCE AND PROOF (2007), at 78. http://repository.uwc.ac.za 6 contrary to the Emergency Regulations.37 The ammunition was found as a result of a search carried out by two police officers who were below the designated rank of assistant inspector of police. Although the officers had no power to search the appellant,38 the evidence recovered was nevertheless admitted.39 The ground of leave to appeal was that the evidence proving that the appellant was in possession of the ammunition had been illegally obtained and should not have been admitted.40 The Court held that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and a court is not concerned with how the evidence was obtained.41 The only exception to the rule was that a court has the discretion not to admit improperly obtained evidence if the strict rules of admissibility will operate unfairly against the accused.42 The rationale for this holding was that all relevant evidence was admissible, regardless of the manner in which it was obtained.43 The Court stated that when it was a question of the admission of evidence, it was not about whether the mode of obtaining the evidence was tortuous but excusable; it was about whether the evidence obtained was relevant to the issue being tried.44 Therefore, all evidence is admissible until an accused seeks to rebut this presumption. B. Substantive and Procedural Justice Substantive justice refers to justice that emerges out of a given process45 which involves a value judgment about the content of law and its consequences.46 For instance, where a criminal statute provides for imprisonment for life for the offence of defilement, substantive justice is used to find value through other circumstances, externalities such as morality, religion or culture,47 and it evaluates the need to impose punishment which is proportionate to the crime to ensure that there is retribution or rehabilitation. On the other hand, procedural justice finds value internally in the regular and consistent application of law. The judicial officer weighs the evidence, the circumstances relating to the commission of the offence, before deciding on liability for the commission of the offence and the sentence. In the same way, where factual issues arise about voluntariness in the recording of a confession, he has to weigh up the probative value of the evidence in the light of other corroborative evidence before making a decision on the admission of the confession.48 Furthermore, a system of criminal law may dictate that punishment is 37 Kuruma v R, id., at 198. 38 Regulation 29 of the Emergency Regulations. 39 Kuruma v R, supra note 36, at 198. 40 Id. 41 Id., at 203. 42 Id., at 204. The Court referred to Noor Mohamed v. The King [1919] AC 182 191-192 and Harris v. The Director of Public Prosecutions [1952] AC 694 707. 43 Kuruma v. R, supra note 36, at 204. 44 Id. The court referred to Regina v. Leatham (1861) 8 Cox CC 498 501 where Crompton J said: ‘It matters not how you get it; if you steal it even, it would be "admissible". 45 W. SADURSKI, GIVING DESERT ITS DUE: SOCIAL JUSTICE AND LEGAL THEORY (1985), at 49. 46 N. Faso, Civil disobedience in the Supreme Court: Retroactivity between compromise and formal Justice, 75 ALBANY LAW REVIEW (2012), at 1614 47 Id. 48 See the analysis of the decisions of the Supreme Court below. http://repository.uwc.ac.za 7 proportionate to the crime, or that punishment serves ends, such as retribution or rehabilitation. These are substantive goals and substantive justice would be achieved if these ends were met. Accordingly, substantive justice is achieved after an objective assessment and not a subjective assessment. While substantive justice is referred to as the justice of the outcome, procedural justice is referred to as the justice of the process that brings about the outcome.49 Procedural justice requires that all cases should be treated in the same way in accordance with the law, regardless of the circumstances of a particular case, without regard to the defects or virtues of the case.50 In procedural law, therefore, justice is seen to be found in the form of the law and not in its content, and is delivered through adherence to its form.51 This is an indication that procedural justice may form part of substantive justice. Therefore, where a given law provides for the procedure to follow in recording confessions,52 the procedure is supposed to be followed if the evidence is to be admitted. It follows that if a police procedure is required to obtain particular evidence, it has to be shown to the satisfaction of the court that it has been followed before it is admitted.53 By its nature, procedural justice imposes restraints on processes through which an outcome of substantive justice is obtained.54 It is, therefore, expected that as courts adjudicate cases, they should ensure that the processes leading to the obtaining of evidence and filing of cases are followed to the letter. Substantive and procedural justice are interrelated in a way that the latter is required for the existence of the former.55 The major question that arises out of this relationship is whether it can be said that where substantive and procedural rules are followed, one can attain the former. Consider a hypothetical case where all the rules are followed in obtaining a confession but the interpreter misinterprets the story of the accused in the process of recording it, which becomes evident when it is read back to the accused before he appends his signature. A similar hypothetical case may arise where in the course of recording a confession, the procedure is not followed but the accused is identified as the person responsible for the acts that constitute part of the offence. In the first hypothetical example, justice may not be seen to be served if the accused is convicted: but, justice may still not be seen to be done in the second scenario, if the accused is convicted on the basis of a flawed process. The two hypothetical situations raise the question of whether a system of procedural justice on its own produces substantive 49 Sadurski, supra note 45. 50 D. Lyons, On Formal Justice, 58 CORNELL LAW REVIEW (1973), at 833. 51 Id. 52 Festo Androa Asenua v. Uganda, Unreported Supreme Court case 1 of 1998 2 October 1998, at 26-30. 53 See, Ssewankambo Francis, Kiwanuka Paul, Mutaya Muzairu v. Uganda Unreported case 33 of 2001 20 February 2003 and Walugembe Henry, Ssali Paul and Kamanzi Joseph v Uganda unreported case 39 of 2003 1 November 2005. 54 Sadurski, supra note 45. 55 Id. http://repository.uwc.ac.za 10 to as the Rules) regarding the procedure of recording confessions.77 The Court also noted that rule 7(a) of the Rules was repealed by the Evidence (Amendment) Decree 25 of 1971. Instead of relying on the improprieties, the Court laboured to justify the admission of the confession on the basis of the fact that the rights of the accused had not been violated. Therefore, to a great extent, the confession was admitted because the appellant’s rights were not violated and not notwithstanding the irregularities.78 The Court set a precedent which upheld the notion of substantive justice over that of procedural justice. This is so because it used a proportionality test to determine the use of a confession that was recorded with a lot of glaring irregularities which could be explained as not being fatal to the final outcome. With the confession on the one side of the scale, the other side contained the facts that the appellant had been asked about the content of the confession and did not object thereto and also did not complain about the recording procedure. In addition, the appellant at the time of his arrest had cooperated with the police in recovering evidence that pointed to his role in the commission of the murder. He had in his possession items belonging to the victim. Furthermore, the procedural law upon which the appellant relied to justify his claims had been repealed. These facts outweighed any rationale that the Court would have had to prefer procedural justice over substantive justice, or to use procedural law in obtaining the confession, to arrive at substantive justice. The court viewed the facts surrounding the recording of the confession in the light of other circumstances, such as the existence of other evidence, and the appellant’s role in the investigation process, and held that the admission of the confession would not cause an injustice to the accused. While the Court handled a delicate matter properly, it ought to have denied the admission on grounds of failure to follow procedural laws by the police. The Court condoned the excesses of the police because there was no law to stop them, and the appellant had co-operated with the police in the investigation. Although the accused was represented, his ignorance of the guidelines should not have been used as a ground to hold that there was no injustice occasioned to him. The Court was more interested in ensuring that any failure to meet procedural safeguards in recording confessions could be justified if no injustice was occasioned to the accused. This precedent that encouraged the admission of improperly obtained evidence when it did not occasion an injustice to the accused was wrong. It caused procedural injustice to the appellant. Four months later, the Supreme Court, in Festo Androa Asenua v. Uganda,79 reproduced the rules passed for the recording of confessions. They require, firstly, that an accused be cautioned before a statement is made. Secondly, if the recording of the statement is made by a police officer, then he should be at the level of an Assistant Inspector of Police or higher. Thirdly, the confession should be recorded by the officer in a language that the accused understands, in a 77 Id., Rule 4. 78 Id. 79 Festo Androa Asenua and Kakooza Dennis v. Uganda Unreported Supreme Court case 1 of 1998 2 October 1998, at 26-30. 11 room which should have only two people unless an interpreter is required.80 These rules set a standard which the Court hoped would reduce the improper recording of confessions by the police. In Nashaba Paddy v. Uganda,81 the appellant and three others were involved in the commission of a robbery. When the appellant was arrested, he gave incriminating information to an inspector of police about himself and two other persons in the commission of the crime.82 After police had recovered the evidence on the basis of the information given, the appellant was taken to a Magistrate where he recorded an extra-judicial statement.83 On appeal, the appellant claimed that the confession should not have been admitted because of irregularities and human rights violations in the recording of the statement. In reference to irregularities, it was contended that the appellant was not informed of the charges against him before the Magistrate, that the statement was not recorded in a language that the appellant spoke, and that the holding that the confession of the appellant was obtained voluntarily was not supported by evidence.84 The recording of the confession was done by the Magistrate’s clerk, and it was not recorded in the language the appellant spoke.85 The Court showed a willingness to admit a statement, if the impropriety was not a material departure from the rules for recording a statement. In Nashaba, the confession involved various improprieties. First, the appellant was not informed of the charge against him. Secondly, the confession was recorded in a language he did not understand. Thirdly, the statement purportedly recorded by the Magistrate was in fact recorded by his clerk.86 The Court held that the irregularities committed by the Magistrate were not prohibited by the law, and that the procedure adopted was not a material departure from the Guidelines for Recording Confessions.87 The Court stated further that although the only omission was that of the Magistrate in not certifying the charge and caution statement, it was cured by the confirmation by the appellant that the recording was accurate.88 The Court further held that the Chief Justice’ Rules on Recording Confessions were rules of practice and not law, and as such a contravention thereof would not render the recording to be bad if the confession was found to be voluntary.89 The rationale for the holding was the presence of voluntariness. If the Court could establish that the irregular recording of the confession was done voluntarily, it would admit it.90 This case reiterates the position adopted in Namulobi, that the Court was inclined to admit an improperly obtained statement if the irregularity was shrouded in a cloak of 80 Id., at 27. 81 Nashaba v. Uganda, supra note 4. 82 Id., at 2. 83 Id., at 3. 84 Id., at 4. 85 Id., at 6. The dialect the appellant understood was Runyakitara, which was not used in the recording of the confession. 86 Id., at 4-5. 87 Id., at 6. 88 Id., at 7. 89 Id.. 90 Id., at 8. 12 voluntariness. The Court used substantive justice to maintain the admission of a confession despite the procedural irregularities in recording it. The Court used a subjective test of whether the accused was made to sign the confession involuntarily, and it was established that he signed it voluntarily. In addition, the extent of the Magistrates’ non-adherence to the Rules of practice was not great enough to oust the voluntariness in the making of the confession. The Court gave the procedural rules a low grading because they were rules of practice and not rules of law. The admission of the confession was based on its subjective content with regard to the commission of the crime, and not on the procedural objective of following the rules. Despite the fact that the appellant sought to have the appeal allowed on the basis of the failure to follow the correct rules regarding the recording of confessions, unlike in Namulobi, the Court watered down the rules to mere rules of practice and not rules of law. This was an indication that substantive justice was more important that procedural justice. While substantive justice was upheld as long as it did not occasion injustice to the appellant, the yardstick for measuring the injustice was the ability to regard the demands of substantive justice as being greater than those of procedural justice. Just as in Namulobi, Nashaba develops the principle that improperly obtained evidence may be admitted if it does not cause injustice to the accused. The question of injustice is for the courts to decide according to the circumstances of each case. In addition, the Supreme Court seemed to concretise its stance of being objective in following the subjective content of the confession instead of being objective in following the objective rules of recording confessions. In Ssewankambo Francis, Kiwanuka Paul, Mutaya Muzairu v. Uganda,91 the appellants appealed to the Supreme Court, claiming that the Court of Appeal erred in law when it admitted their retracted confessions.92 The first and second appellants contended that their confessions were recorded by the same investigating officer, which was an irregularity.93 In addition, in the course of admitting the confession, the trial judge did not inquire from the defence as to whether it had any objection to the admission of the confessions, and his failure to do so was a failure of justice.94 The Court agreed with the appellants and held that it was improper to admit the confessions, because the trial judge did not give the defence an opportunity to say anything about the nature of the confessions before they were admitted.95 The High Court did not subject the admissibility of the confession to a trial within a trial, to test the voluntariness of the recording of the confessions.96 With respect to the confessions, they were not admitted in evidence because of the procedural 91 Ssewankambo Francis, Kiwanuka Paul, Mutaya Muzairu v. Uganda Unreported case 33 of 2001 20 February 2003. 92 Id., at 4. 93 Id. 94 Id. 95 Id., at 8. 96 Id., at 9-10. 15 rules to arrive at substantive justice. This is an indication that procedural justice need not be attained before substantive justice is achieved. The author differs from the view of the Court in this case and is of the view that the Court should have remained consistent in following the procedural aspects, and should have disregarded the confessions since they were not subjected to a trial within a trial or were not recorded in a language that an appellant understood. There was evidence that could be used to sustain the convictions. The identification of the first and second appellants in broad daylight at the scene of the crime by prosecution witnesses,112 the recovery of the gun,113 and the evidence of the first appellant about his role in the robbery. The Court could have followed the procedure to disregard the evidence of the confessions and still maintained the convictions of the accused persons. These pieces of evidence point to a subjective notion of justice which, if applied using the proportionality test, would still ensure that substantive justice was achieved. With regard to the theoretical considerations relating to the admission of evidence, the Court admitted the evidence on the basis of its reliability, despite the fact that it at the same time condoned the excesses of the police in recording the confessions. While the Court struck a balance between adducing reliable evidence at the cost of condoning improper police conduct,114 it created inconsistency in its jurisprudence dealing with evidence obtained through human rights violations. In Walugembe Henry, Ssali Paul Sande and Kamanzi Joseph v. Uganda (Walugembe),115 the appellants sought to have their confessions struck off the record because of the irregularities in their recording. The first and second appellants informed the Court that their confessions were recorded in English rather than in the language that they understood.116 In addition, the confessions were recorded by the same police officer117 and the confession of the second appellant was recorded in the presence of the officer in charge of the police station. Other facts that were vital to the Court in making its decision were that the third appellant cooperated with the police in recovering the stolen items from a certain swamp,118 and that the first and second appellants stated that their confessions were obtained through torture.119 The Court in allowing the appeal stated that it was a misdirection to admit confessions with these irregularities, and without testing the voluntariness of the confessions.120 The rationale for this holding was that where a police officer recorded a statement from an 112 Id., at 4 113 Id. 114 Eugene, supra note 21. See also, R v. Collins [1987] 1 SCR 265 para. 45. 115 Walugembe Henry, Ssali Paul Sande and Kamanzi Joseph v. Uganda Unreported case 39 of 2003 1 November 2005. 116 Id., at 5. 117 Id., at 6. 118 Id., at 2. 119 Id., at 5. 120 Id., at 6. 16 accused person and went on to record another from a second accused, he would be tempted to use the information from the confession of the first accused in the confession of the second confession.121 Just like in Ssewankambo, the Court made use of procedural rules to arrive at substantive justice. Secondly, the Court leaned to the deterrence theory in deciding whether to admit the confession in order to ensure that persons who engage in obtaining evidence improperly are discouraged from doing so.122 This case also involved human rights violations in the course of obtaining the confessions. IV. Conclusion At the outset, it should be noted that the cases of Namulobi, Nashaba, Ssewankambo, Mweru and Walugembe involved irregularities in recording confessions. With particular regard to the recording of confessions in a language that the accused could not understand, the Court dealt with this question in the cases of Nashaba, Ssewankambo, Mweru, and Walugembe. It attached little significance on this It attached little significance on this procedural issue in Nashaba and Mweru and upheld the admission of the confessions. Conversely, it placed emphasis on the need to follow this rule of practice in Ssewankambo and Walugembe and this emphasis led to the non-admission of the confessions. In Ssewankambo and Mweru, the Court had evidence that, in addition to the improperly obtained evidence, there were violations of human rights in the process of obtaining the confessions. This analysis identifies three points. First, that there is an inconsistent jurisprudence in dealing with evidence obtained through improper means. Secondly, the Court has not been consistent in following the procedural rules governing the recording of confessions and thereby has created the inconsistency. Thirdly, where the Court has insisted that procedural rules are followed in the recording of confessions, the confessions have not been admitted. Fourthly, where the Court has disregarded procedural rules, it has used substantive justice as a tool of proportionality and subjectivity in admitting the confessions. Where failure to follow the procedural rules would not change the outcome of the process of recording the confessions, the Court disregarded the procedure and maintained that the confessions were properly admitted. This was dependent on the presence of other evidence that corroborated the guilt of the accused, such as: cooperation with the police in the investigations; reading of the confession to the accused before he signed it; the decision not to contest the admission of the confession in the court of the first instance; and the existence of deceit and a desire to abuse the process relating the recording of confessions.123 121 Id., at 9-10. 122 Madden, supra note 19, at 448. 123 There is no recent decision of the Supreme Court after Walugembe. The most recent decisions where a Court reiterated that the 17 Conversely, where the failure to follow the procedural rules would greatly change the outcome of the process and the subsequent judgment, the Court would not allow the admission of the confession. In addition, the Court would not maintain the admission of the confession if the irregularities were marred by human rights violations. In all the circumstances stated above, the Court would then make a value judgment based on its decision on the confession and other relevant evidence. Thus, while the admission of the confessions was seen as a condonation of the excesses of the police, it was also taken to be a mode of ensuring that confessions with a high probative value are admitted, to enable the Court to arrive at a value judgment. The Courts seem to admit improperly obtained confessions if the probative value of the evidence is not impaired by the unlawful method used in acquiring such evidence, and if the relevance of such evidence cannot be affected by the mere fact that it was unlawfully procured.124 In the cases discussed involving impropriety in obtaining confessions, the Court states that it admits confessions if they do not occasion an injustice to the accused. A question arises whether it is substantive injustice or procedural injustice. While substantive justice may mean an accused person suffering the consequences of his actions, procedural justice may mean that the outcome of the process would not change, even where a few rules were not followed. The injustice referred to seems to be a procedural injustice, for instance, where the accused is read the contents of the confession before he or she signs it, does not complain about it to the court, and later seeks to manipulate a rule that was not followed because the evidence may be used to incriminate him. While the Court is trying to arrive at substantive justice, the law enforcement agencies ought to take responsibility to ensure that they follow the procedures to the letter so as to avoid placing the courts in an awkward position. In addition, the courts should be seen to be administering justice in a manner that is fair and consistent. The discretion should be exercised in a way that does not lead to an unfair trial or place the administration of justice into disrepute. It is for this reason that consistency is required to enable parties to have a fair idea of what the outcome of a case may be. In the author’s view, the varying reasons only buttress the effect of using discretion on a case-by-case basis to ensure justice. While discretion is paramount in ensuring that evidence admitted does not operate unfairly against the accused, consistency is also needed in the development of jurisprudence if procedural laws are to be used as handmaidens of justice. It follows, therefore, that a framework needs to be put in place to cater for evidence obtained through improper means to ensure that the accused is protected in deserving cases, and that a court is not seen to be condoning the excesses of the police. The courts should insist that the rules of practice for recording confessions are followed to the presence of substantive evidence other than the confession is instructive to sustain a conviction, was by the Court of Appeal in Baigana John Paul v. Uganda Unreported case 08 of 2010 25 May 2016. All the decisions of the Supreme Court were obtained from http://www.ulii.org/. 124 J.D. HEYDON, EVIDENCE: CASES AND MATERIALS 2ND EDN (1984), at 254; Kuruma, Son of Kaniu v R 1955 AC 197 203.