Lawrie v Muir
| Jurisdiction | Scotland |
| Judgment Date | 14 October 1953 |
| Date | 14 October 1953 |
| Docket Number | No. 4. |
| Court | High Court of Justiciary |
HIGH COURT. (Full Bench.)
Lord Justice-General. Lord Justice-Clerk. Lord Mackay. Lord Carmont. Lord Jamieson. Lord Russell. Lord Keith.
Evidence—Competency—Evidence improperly obtained—Evidence obtained by illegal search of premises—Dairy keeper convicted of illegally using milk bottles belonging to other persons—Milk (Control and Maximum Prices) (Great Britain) Order, 1947 (S. R. & O. 1947, No. 2032), art. 16 (a).
Held by a Full Bench that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution. There is no absolute rule governing the matter, the question whether any given irregularity ought or ought not to be excused depending in each case upon the nature of the irregularity and the circumstances in which it was committed, an important consideration always being whether the admission of the evidence will be fair to the accused. No distinction can be drawn in this matter between a prosecution for a statutory offence and a prosecution for a common law crime.
The keeper of a dairy was convicted of using, for the sale of her milk, bottles belonging to other persons in contravention of art. 16 (a) of the Milk (Control and Maximum Prices) (Great Britain) Order, 1947, the evidence against her being that of two inspectors of a limited company formed for the purpose of restoring milk bottles to their rightful owners. All contracts between the Milk Marketing Board and distributors of milk contained a condition that the company's inspectors, on production of their warrants, were entitled to inspect the distributors' premises and examine bottles. The accused had no contract with the Milk Marketing Board, but she permitted the inspectors, who produced their warrants, to make an inspection.
Held by a Full Bench that the inspectors, although acting in
good faith, had illegally obtained entry into the premises by a misrepresentation, and that their evidence was inadmissible; and conviction quashed.Jeanie Gunning or Nisbet or Lawrie, dairy keeper, 239 High Street, Portobello, Edinburgh, was charged in the Sheriff Court at Edinburgh on a complaint at the instance of Thomas Greenlees Muir, Procurator-fiscal, Edinburgh, which set forth "that on 23rd September 1948 in your dairy shop … you did use for the sale, supply and delivery of milk, twenty-four bottles, the property of the Edinburgh and Dumfriesshire Dairy Company, Limited, seven milk bottles, the property of St Cuthbert's Co-operative Society, Limited, without having, or having reasonable grounds for believing that you had, the consent of the aforesaid owners, or of any person authorised by them to give such consent: Contrary to Article 16 (a) of the Milk (Control and Maximum Prices) (Great Britain) Order, 19471…"
On 24th February 1949, after evidence had been led, the Sheriff-substitute (Macdonald, K.C.) found the accused guilty and fined her the sum of £3. At the request of the accused he stated a case for appeal to the High Court of Justiciary.
The case set forth that the following facts were admitted or proved:—"(1) The appellant is a dairy keeper and carries on the business of selling milk in the shop at 239 High Street, Portobello, Edinburgh. (2) On 23rd September 1948 two inspectors employed by Scottish Milk Bottle Exchange, Limited, 190 West George Street, Glasgow, called at the said shop. (3) The Scottish Milk Bottle Exchange, Limited, is a company formed primarily to collect and restore to their owners milk bottles which have come into the possession of other dealers. The company is approved by the Scottish Milk Marketing Board, and all contracts between the Board on one hand and producers and distributors on the other hand contain a condition that the inspectors appointed by the company shall be allowed on production of warrant cards, which are issued to them by the Scottish Milk Marketing Board, to inspect the premises of a producer or distributor who has a contract with the said Board to examine bottles and other vessels. (4) The said two inspectors, on calling at the said shop and having been asked by the appellant if they had authority to examine the shop, produced their warrant cards to the appellant, who examined the cards and allowed them to examine it. (5) The appellant has no contract with the Scottish Milk Marketing Board, and the inspectors were not authorised to search, and would not have been entitled to search, the appellant's shop if she had refused permission, although they believed themselves to be entitled to do so. (6) The inspectors found in the front part of the shop a number of crates containing bottles of milk. The crates contained
in all one hundred and sixteen bottles of milk, sealed with caps and ready for sale or delivery. (7) Twenty-four of the said bottles were the property of the Edinburgh and Dumfriesshire Dairy Company, and seven were the property of St Cuthbert's Co-operative Society. The names of the owners were embossed on these bottles. (8) The said thirty-one bottles were being used by the appellant for the sale, supply and delivery of milk and were carried from the shop to a van belonging to the appellant in the road outside the shop for the purpose of being delivered to customers while the inspectors were still in the premises. (9) The appellant had not, nor had she reasonable grounds for believing that she had, the consent of the owners, or of any person authorised by them to give consent, to her use of the bottles. (10) The inspectors before leaving the premises told the appellant that she was liable to be charged under the Order libelled in the complaint, and cautioned her. She replied, “Last week-end being a holiday, I lost a good many of my bottles.”"The case further set forth:—"In the course of the trial, when the inspectors were giving evidence, they were asked by the Procurator-fiscal-depute what they had found when they visited the appellant's shop. The question was objected to by the appellant's procurator on the ground that they had no legal right to examine the premises, that consent to the examination had been given them by the appellant as a result of her having been misled by their warrant cards, and that any evidence which they had obtained by the search was inadmissible because of the irregularity of the proceedings. The Procurator-fiscal-depute conceded that the inspectors had no right to search the premises, but I was satisfied from their evidence that they had acted in good faith. I did not consider that the inspectors' lack of authority justified the exclusion of the evidence, and I repelled the objection. The appellant did not give evidence, and I had therefore no grounds for finding either that she was not aware of her rights, or that she would have refused the inspectors permission to search if she had been aware of her right to do so. …"
The questions of law for the opinion of the Court were:—"(1) Was I right in repelling the objection to and holding as admissible the evidence as to what the inspectors found as a result of their search of the appellant's shop? (2) On the facts stated was I entitled to convict the appellant?"
After the case had been heard before the High Court of Justiciary (consisting of the Lord Justice-Clerk, Lord Mackay and Lord Jamieson) on 7th July 1949, it was ordered to be reheard before a Full Bench.
The case was heard before a Full Bench (consisting of the Lord Justice-General, the Lord Justice-Clerk, Lord Mackay, Lord Carmont, Lord Jamieson, Lord Russell and Lord Keith) on 1st and 2nd November 1949.
At advising on 23rd November 1949 the opinion of the Court was read by,—
LORD JUSTICE-GENERAL (Cooper).—The conviction obtained in this prosecution depends upon evidence given by two inspectors who in good faith conducted a search of the appellant's premises but who had no right to make that search. The Sheriff-substitute repelled an objection to the admissibility of the evidence thus illegally obtained, and the main question is whether he was right in so doing. The matter has been remitted to a larger Court because of the importance and difficulty of the widest submission offered by the appellant, viz., that evidence obtained as a result of illegal entry, illegal search, illegal seizure or other like unlawful or irregular act, cannot be admitted in a criminal prosecution.
On this major issue there is little direct authority. In Rattray v. RattrayUNKSC20 the question related to the admissibility in an action of divorce of a letter written by the defender to the co-defender which had been stolen from the post office by the pursuer, and it...
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Fairley v Fishmongers of London
... ... Held (1), applying Lawrie v. Muir , 1950 J. C. 19 , that the evidence objected to, although obtained irregularly, was admissible; (2), following Fishmongers of London v ... ...
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The People (Director of Public Prosecutions) v J.C.
...(p. 150) He then cited with approval the decisions of the Scottish Courts and in particular the judgment of the Lord Justice-General in Lawrie v. Muir (1950) J.C. 19: “From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which......
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(first) Kb And (second) Jg
...what was found during the search was admissible. Regard must be had to the principle to be derived from the leading case of Lawrie v Muir 1950 JC 19 at 26 to 27 that the court may excuse an irregularity in the method by which evidence has been obtained, thereby rendering that evidence admis......
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Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
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Subject Index
..........................................184Lavallee, Rackel & Heintz v Canada2002 SCC 61 ................................. 139Lawrie v Muir 1950 JC 19 ............ 77–99Lee v Illinois, 476 US 530 (1986) 2, 16,21, 23, 26, 28, 149Lilly v Virginia, 527 US 116 (1999) .. 2, 6,9, 15, 16, 18, 21, 2......
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Public policy and private illegality in the pursuit of evidence
...trial, could not be sued for trespass. Cf. Ghani vJones [1970] 1 QB 693.184. See Beattie, 1986: ch. 2.185. See, e.g., Lawrie vMuir [1950] SLT 37, which concerned an illegal search by inspectors of a milk-bottle collectionorganisation.186. See, e.g., Torres vState of Indiana, 442 N E 2d 1021......
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2018 index
...Police 200 SC (HL) 77 ... 414Ex parte Adan [1998] UKHL 15 .......................................................... 239Lawrie v Muir [1950] JC 19 .................................................................. 334R v Director of Public Prosecutions, Ex parte C [1995] 1 Cr App 136 (QBD) ......