Irregularly Obtained Real Evidence: The Scottish Solution?
| Author | Peter Duff |
| Published date | 01 March 2004 |
| Date | 01 March 2004 |
| DOI | http://doi.org/10.1350/ijep.8.2.77.36512 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 77
IRREGULARLY OBTAINED REAL EVIDENCE: THE SCOTTISH SOLUTION?
(2004) 8 E&P 77–99
T
Irregularly obtained real
evidence: The Scottish
solution?
By Peter Duff
School of Law, Aberdeen University
Abstract. In determining whether to admit improperly obtained real evidence,
the Scottish courts have engaged in a balancing act for over 50 years, weighing
the public interest in the conviction of the guilty against the rights of the
accused and the civil liberties of the citizenry. The Appeal Court’s approach to
this issue has not been particularly satisfactory and the result is an incoherent
mass of detailed and often almost irreconcilable case law, rather than a
principled framework to guide the trial courts in the exercise of this power.
he admissibility of improperly acquired real evidence is a difficult issue
in most jurisdictions. Solutions have ranged from almost always
admitting such evidence—the historical position in England—to almost
always excluding it—the approach in the United States throughout the latter half
of last century. More recently, most jurisdictions have attempted to find something
of a compromise between these two positions. This latter approach was adopted
in Scotland in the middle of last century as a result of the leading case of Lawrie
v Muir where, paraphrasing roughly, Lord Cooper stated that the court must
determine whether such evidence should be admitted depending on the balance
between the need to preserve civil liberties and the need to ensure that justice is
done.1 Until then in Scotland, real evidence which had been obtained irregularly
was always in practice admitted.2 At the time, Lawrie was perceived to be something
of a pioneering decision, both in Scotland and elsewhere. For instance, in 1955
Glanville Williams, after reviewing the competing English and American
positions, concluded:
As a compromise between the opposing considerations of policy the
Scottish doctrine has, it is submitted, much to commend it.3
1 1950 JC 19 at 26.
2 M. Ross, Walker and Walker: The Law of Evidence in Scotland (T & T Clark: Edinburgh, 2000) 7.
3 G. Williams, ‘Evidence Obtained by Illegal Means’ [1955] Crim LR 339 at 349.
78 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
IRREGULARLY OBTAINED REAL EVIDENCE: THE SCOTTISH SOLUTION?
Similarly, Cross, in the first edition of Evidence, quoted at length from Lawrie,
observing with a note of regret that there had been no such examination of the
relevant principles in England, despite the fact that these were of ‘the highest
significance’.4 He observed with approval that ‘recent Scots decisions have gone
far towards providing a compromise between the two conflicting interests by
according a large measure of discretion to the trial judge’, noting some pages
later that ‘the difference from English law is striking’.5 More recently, Yeo granted
‘full honours’ to the Scottish courts for their approach,6 and Dennis approvingly
notes that the Police and Criminal Evidence Act 1984 brought England into line
with the Scottish position.7 Mirfield observes that Lawrie has been ‘of great
influence’ in England and other common law jurisdictions and has been followed
in Australia.8 This approval has extended to the judiciary also, Lord Scarman, for
instance, in Sang, stating that in formulating his views, he was ‘encouraged’ by
the fact that Scots law recognised the ‘discretionary principle of fairness to the
accused’ (the latter phrase he quoted from Lord Cooper’s words in Lawrie).9
The purpose of this article is to trace the history of this judicial capacity to exclude
improperly obtained real evidence since its introduction, through the decision
in Lawrie, to the law of Scotland. I shall show that, unfortunately, for a number of
reasons, no clear framework has evolved to guide judges in this task. First, the
various, traditional rationales for excluding improperly obtained evidence have
all frequently been cited: the ‘reliability principle’ (i.e. ensuring the reliability of
the evidence); the ‘disciplinary principle’ (i.e. controlling the police and
prosecution authorities); the ‘vindicatory principle’ (i.e. protecting or vindicating
the rights of the accused).10 As is the situation elsewhere, it is not clear which of
these rationales motivates the decisions of the Scottish courts and this has led to
inconsistencies in the application of the law. As we shall see, in one case the
court will cite one of these three principles, leading to a particular result, and in
another similar case the court will cite another, leading to a different result.
Elsewhere, I have argued that the Scottish courts would be best advised to adopt
the ‘moral legitimacy principle’ (the need to maintain the legitimacy of the verdict
and legal system), identified by recent theorists,11 although, again, this does not
satisfactorily explain or justify all the Scottish decisions.12
4 R. Cross, Evidence (Butterworths: London, 1958) 259, 268.
5 Ibid. at 268. C. Tapper, Cross and Tapper on Evidence, 9th edn (Butterworths: London, 1999) 494–5
still introduces the topic of improperly obtained evidence with Lord Cooper’s dicta from Lawrie.
6 M. Yeo, ‘Inclusionary Discretion over Unfairly Obtained Evidence’ (1982) 31 ICLQ 392.
7 I. Dennis, The Law of Evidence, 2nd edn (Sweet & Maxwell: London, 2002) 76.
8 P. Mirfield, Silence, Confessions and Improperly Obtained Evidence (OUP: Oxford, 1997) 339, 354.
9R v Sang [1980] AC 402 at 457.
10 See Dennis, above n. 7 at ch. 8; and Tapper, above n. 5 at 495–509.
11 Ibid.
12 P. Duff, ‘Admissibility of Improperly Obtained Evidence in the Scottish Criminal Trial: The Search
for Principle’ 2004 ELR (forthcoming).
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