Report No. 94
English and Scottish Law
4.1. Privy council case of Kuruma-Discretion regarding evidence obtained illegally.-
The classical statement of English law on the subject of evidence obtained illegally represented by the dicta to be found in the leading case of Kuruma.1 The actual decision in that case was in favour of admission of the evidence, and the case itself did not arise in England, but was decided by the Privy Council. But the observations of the Judicial Committee of the Privy Council in that case are of great interest, and are generally taken as the starting point of any inquiry on the subject that does not support to go too deeply into the history of the subject.
The Privy Council in that case held that evidence of the accused's unlawful possession of ammunition, discovered in consequence of an illegal search of his person, was admissible. The Privy Council acted on the principle, recognised in some earlier English decisions, that, provided real evidence is relevant, it is legally admissible, however improperly, it had been obtained. The person against whom such evidence is tendered may have a civil remedy against the person who obtained it and the latter may be liable to disciplinary, or even criminal, proceedings. But the law is that: "It matters not how you get it; if you steal it even, it would be admissible in evidence."2
However, in delivering the opinion of the Board, Lord Goddard, L.C.J., said:
"No doubt, in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused If, for instance, some piece of evidence had been obtained from a defendant by a trick, no doubt, the judge might properly rule it out."3
1. Kuruma v. R., (1955) 1 All ER 236 (PC).
2. K. v. Leathem, (1861) 8 Cox CC 408 (501) (per Crompton, J.).
3. For the Canadian Law, see Clayton Hutchins Discretion of A Trial Judge to Exclude Otherwise Admissible Evidence, (May 1981), Vol. 6, No. 3, Dalhousie, L.J. 690, 699.