Hock Lai Ho

This essay evaluates the recent restatement in O’Brien v Chief Constable of South Wales Police of the law on similar facts in civil proceedings. The two-stage approach propounded in O’Brien contains a number of conceptual problems. Apparent simplicity was achieved by avoiding fundamental issues underlying this area. Prior to the Criminal Justice Act 2003, judges recognized that the common law similar facts rule had a role to play in both civil and criminal trials; but they gave the rule a wider exclusionary scope in criminal than in civil cases. Adoption of a moral perspective helps to explain this state of affairs. The rule, so it will be argued, protects the legitimacy of trial deliberation by forbidding reliance on an assumption that disrespects the moral autonomy of the person whose conduct is being judged. This moral objection can arise in civil cases; but it arises more frequently and usually with greater force in criminal proceedings. Hence, while there is a need to reserve some judicial power to disallow proof of similar incidents in the civil context, there is usually less reason for the exercise of that power in civil cases than at criminal trials.

This book explores the relevance of virtue theory to law from a variety of perspectives. The concept of virtue is central in both contemporary ethics and epistemology. In contrast, in law, there has not been a comparable trend toward explaining normativity on the model of virtue theory. In the last few years, however, there has been an increasing interest in virtue theory among legal scholars. 'Virtue jurisprudence' has emerged as a serious candidate for a theory of law and adjudication. Advocates of virtue jurisprudence put primary emphasis on aretaic concepts rather than on duties or consequences. Aretaic concepts are, on this view, crucial for explaining law and adjudication. This book is a collection of essays examining the role of virtue in general jurisprudence as well as in specific areas of the law. Part I puts together a number of papers discussing various philosophical aspects of an approach to law and adjudication based on the virtues. Part II discusses the relationship between law, virtue and character development, with some of the essays selected analysing this relationship by combining both eastern perspectives on virtue and character with western approaches. Parts III and IV examine problems of substantive areas of law, more specifically, criminal law and evidence law, from within a virtue-based framework. Last, Part V discusses the relevance of empathy to our understanding of justice and legal morality.

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations