A Comparative Analysis of the Criminal Exclusionary Rule in the People’s Republic of China with the United Kingdom

Conducting two original empirical studies analyzing appellate decisions for the years of 2015–18, this paper compares judicial practice of the recently implemented exclusionary rule in the People’s Republic of China (“PRC”) with exclusionary practices in the United Kingdom (“UK”). As its research question, this paper tests whether the PRC rule is an effective defense strategy by measuring it in accordance with the yardstick of established British legal practice. The twin studies include one in the PRC reviewing 589 relevant appellate cases and a study in the UK with 132 appellate cases. This paper considers general trends and scrutinizes the number of appeals filed each year, the percentage of successful claims, remedies and partial remedies, alleged error and harmless error, and the types of underlying crimes in both jurisdictions that attracted exclusion of the evidence. The raw data discloses that the PRC exclusionary rule measures up well with significantly more exclusion orders of police/prosecutorial misconduct evidence than in the UK. Notwithstanding these findings, this paper argues that the data suggests that there is a persistent judicial reluctance to name and shame illegal government conduct, opaque decision-making, compromise verdicts, and incoherence regarding fruits of the poisonous tree evidence in the PRC.¹ It also observes that even with the higher rate of exclusion in the PRC, this exclusion is likely attributable, in part, to greater problems with PRC law enforcement. Yet despite this, the exclusionary rule has emerged as a bona fide legal strategy yielding significant numbers of remedies. It exhibits a more sophisticated Chinese criminal justice scheme showcasing growing judicial autonomy.