Flashcards in Irregularly Obtained Evidence Deck (23):
What is the problem of irregularly obtained evidence?
This generally concerns a failure in some respect of some agent of the state[ So this is purely focussing on CRIMINAL PROCEEDINGS.] to comply with legal rules and then a subsequent finding or gathering or discovery of evidence.
⁃ Examples of illegal or irregular means of obtaining evidence: usually where a warrant or court order is required but has not been (properly) obtained or the terms of a warrant or order has been exceeded. The problem is that the resulting evidence may be highly relevant to the issues before the court. Should it be admitted?
What is the approach to irregularly obtained evidence taken in criminal cases?
The approach taken in criminal cases is relatively fluid. There are a few approaches however:
(a) the conflict of interests and balancing approach
(b) Variation and application of this approach from Lawrie v Muir
What is the conflict of interests and balancing approach?
Prior to the case of *Lawrie v Muir 1950 any real evidence which was irregularly obtained was still admitted. See the case description below.
*Lawrie v Muir 1950
⁃ In this case there was a woman who was a keeper of a dairy who had been convicted of using milk bottles belonging to someone else to sell her milk. The evidence against her was obtained by inspectors from the milk marketing board which was established with reconciling milk bottles with their true owners. There was a contract between this board and the distributors of milk whereby inspectors from the board could enter property with a warrant. The owner of this dairy had no such contract with the board. The inspectors arrived on the property, showed her the warrant and she allowed them to search the property. But since she had no contract with them, she had no legitimate reason to be there.
⁃ She was convicted but subsequently appealed on the grounds that the inspectors ought never to have been on her property and so any evidence gathered was irregularly obtained. The court held that although the inspectors were acting in good faith, they had illegally obtained entry into the premises by a misrepresentation. Consequently this evidence was inadmissible so the conviction had to be quashed.
⁃ [So this case demonstrates the competing principles:
⁃ 1) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities
⁃ 2) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from the Courts of law on any merely formal or technical ground.
⁃ The Court expressed a wariness about legitimising certain infringements of the law. But they also noted a discretionary principle of fairness in such circumstances ("to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained.")]
Lord Justice General Cooper at 26-27:
"From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict— (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps highhanded interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods."
"Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick. Again, there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases (of which the Sale of Food and Drugs Acts provide one example) it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution's case. On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained."
What is the variation and application from the approach in Lawrie v Muir?
One problem with the vague approach taken in Lawrie v Muir is that it might undermine consistency in the law. The following two cases reached different conclusions.
⁃ 1) Case in which improperly obtained evidence was admissible:
⁃ Fairley Fishmongers 1950
⁃ Prosecution for contravention of Salmon Fisheries Act. This was based on a discovery by an inspector who had not obtained a search warrant as was necessary. The accused was convicted and one of the grounds of appeal was that the evidence of the inspector was incompetent on the basis that the search procedure had taken place without a legal warrant.
⁃ It was held that although the evidence was obtained irregularly, it was nonetheless still admissible. The reason was that the inspector could have applied for a search warrant and if he had done so, he would have obtained one. Furthermore, there was no bad faith on the part of the inspectors.
⁃ 2) Case in which improperly obtained evidence was inadmissible
⁃ HMA v Turnbull 1951
⁃ Defendant was an accountant accused of making fraudulent tax returns on behalf of the client. A warrant was obtained and his premises were searched. Evidence was taken, but more files than was necessary / permitted were taken which concerned other clients. About six months later more charges were brought against the accused based on the material found in the first search.
⁃ He objected to the evidence that had been found under the first warrant but pertained to the subsequent client's who formed the focus of the later charges. This objection was sustained - the evidence was held to be inadmissible since the documents had been illegally obtained by the inspectors, they had no authority to take more than was permitted under the terms of the warrant. And although a second warrant had actually been issued in an attempt to retrospectively validate the improperly obtained evidence, the court held that this was not possible.
⁃ The court held that to reach the opposite conclusion would destroy the protection afforded to the citizen against invasions of his liberty.
What are the factors which are relevant to the courts in determining whether improperly obtained evidence is admissible?
There are a number of factors which seem to be relevant to the courts to determine whether improperly obtained evidence is admissible:
⁃ Whether or not the agents/police were acting in good faith.
⁃ Whether any authority was given at all (i.e. whether the agents had slightly exceeded the scope of their authority or there was no authorisation at all)
⁃ **Whether there was a sense of urgency.
⁃ Liberties of the citizen
⁃ Legal certainty/formality
⁃ Gravity of the offence
Bulloch v HMA 1980
1) Wrong date on search warrant - evidence not admissible (irregularity not excused)
⁃ Concerned the issue and use of search warrants in relation to suspected VAT evasion. While these warrants were issued the warrant was not precisely dated. The accused claimed that the warrant was invalid as a result.
⁃ The crown argued that verbal evidence could be given as to the time period to which the warrants applied.
⁃ The Court held that the lack of the precise date cannot be remedied by subsequent evidence. The court emphasised that the precision in terms of the date on the warrant is crucial to the validity of the warrant and that deficient cannot be made good by subsequent evidence.
Bell v Hogg 1967
2) Urgency of circumstances permitted improperly obtained evidence[ So the urgency of the circumstances will permit otherwise improperly obtained methods of obtaining evidence.] (irregularity excused)
⁃ A number of men were stopped after a suspected theft of copper wire from telegraph wires. The men had green hands from copper. They were taken to a police station and rubbings were taken from their hands to take the sample. At their trial objection was raised to the admissibility of this 'real evidence' about the state of their hands on the grounds that it had been irregularly obtained. But the police officer replied saying that had they not taken the evidence immediately, the men may have wiped their hands.
⁃ The court held that in light of the urgency of the circumstances the police officer was justified in taking the rubbings as and when he did. Moreover there had been no unfairness to the accused men. Thus the evidence was admissible.
⁃ [An interesting observation had been made that in some instances there is a balancing of fairness to the accused with fairness to the public.]
McHugh v HMA 1978
⁃Individual who had allegedly assaulted someone in a shop and robbed money. He was pursued by the police who then searched his house and his person and found evidence. The court held that not only was the search lawful, it was justified by the urgent nature of the search.
HM Advocate v Al Megrahi (No 3)
??– no objection to search
What if there is an irregularity or an illegality which leads to a subsequent discovery of useful or relevant evidence? Does the earlier irregularity taint the later evidence?
This is called "fruit of the poisoned tree".
See case law
Nature of the issue – cp Chalmers v HM Adv 1954
See *HM Adv v P  UKSC 44 below
Chalmers v HMA 1954
This case from 1954 suggested that real evidence obtained after an illegal interview is tainted and thus inadmissible:
⁃ A teenage boy was suspected of having been involved in a murder. He was brought to a police station, cautioned and interrogated about some information that he had previously given. He was then cautioned again and made another statement. As a result of the subsequent statement, he and the police went to a field where they found a bag belonging to the murdered man. He was then formally charged and at his subsequent trial for murder, evidence about his statement that had influenced the police to go to that field was not tendered by the Crown, but evidence was given about his subsequent actings in the field. He was convicted.
⁃ He argued that his interview was illegal on the ground that he hadn't been charged so that the real evidence was tainted by the initial illegality (fruit of the poisoned tree) and should not have been admitted.
⁃ The court held that evidence of the statement had not been given by the Crown but had it been relied upon by the Crown the court wouldn't have admitted it because it was illegal. Therefore the subsequent actings (going to the field) were part of the same transaction as this statement. So since the initial questioning had been illegal, the subsequent actings were fruits of the poisoned tree and thus equally inadmissible.
HMA v P 
⁃ P was suspected of rape and had been interviewed but was not given access to a lawyer (illegally). The court held that drawing both on Scottish case law and ECtHR case law, there is no absolute rule (so a less extreme position than Chalmers). If there is an Article 6 or 8 breach there is no necessity that the evidence be excluded: it may be but the critical question is one of fairness.
⁃ Look up paras 18 and 27.
What is 'entrapment'?
Related to the notion of illegally obtained evidence is 'entrapment'.
⁃ "Entrapment is a claim by the accused that he was induced by deception into committing a criminal offence. Most commonly, the deception is on the part of a police officer or other state official." (J Chalmers & F Leverick, Criminal Defences (2006), p 381.
Is entrapment a defence in Scots law?
Entrapment is not a defence in Scotland - it does not lead to the inadmissibility of evidence. What is does lead to is a plea in bar of trial[ So the trial itself does not take place if its proven that entrapment has occurred.].
HMA v Harper 1989
Harper was asked by police "have you got a couple of trips [drugs]?" Harper responded, "who sent you?" The police said "Wee Prunie" (the man on the street who would make the drug buying connection). Harper then responded "how many do you want?" Harper's argument was that by name dropping "wee prunie" this was an inducement / entrapment.
⁃ The court held that first of all entrapment was not a defence and secondly there was no inducement in this instance.
Weir v Jessop 1991
Court held that there was some deception but this didn't amount to inducement/entrapment, so the evidence was admissible. Subtle difference between deception and entrapment.
Brown v HMA 2002
Court held that entrapping an individual is a misuse of state power which is so fundamentally unacceptable that it gives rise to a plea in bar of trial.
*Jones v HMA 2010
Two accused charged with conspiracy to commit extortion in relation to a stolen painting. The court held that although there was involvement of undercover police officers, the notion of entrapment stands as a potential plea in bar of trial and that in this instance there was no question of instigation (i.e. the police had not instigated the conspiracy - they hadn't deceived the accused in such a way as to induce them to agree to a conspiracy that they otherwise wouldn't have done).
What is the approach taken to irregularly obtained evidence in civil actions?
In civil cases, the rule is that illegally obtained evidence is admissible but only against that particular defender
Rattray v Rattray (1897) [Leading, but unsatisfactory case]
In this case an individual was divorcing his wife on the grounds of adultery. He had found a letter written by his wife to her adulterous partner. He had obtained the letter from the post office by deception. The court held that while this was irregularly or illegally obtained evidence it was still admissible. Illegally obtained evidence admissible only against defender
Duke of Argyll v Duchess of Argyll 1963
(Stolen evidence is still admissible)
at para 42:
"Nevertheless, I am of opinion that the above statement of the law made by Lord Justice-General Cooper in Lawrie v Muir can properly be applied to a case like the present one. There is no absolute rule, it being a question of the particular circumstances of each case determining whether a particular piece of evidence should be admitted or not. Among the circumstances which may have to be taken into account are the nature of the evidence concerned, the purpose for which it is used in evidence, the manner in which it is obtained whether its introduction is fair to the party from whom it has been illegally obtained and whether its admission will in farness throw light on disputed facts and enable justice to be done."