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Report No. 94

II. Scotland

4.9. The Scottish approach.-

The law of Scotland on the subject of evidence obtained illegally has taken a different approach from that followed in England. The trial judge is not only granted a discretion to exclude evidence obtained illegally, but it would appear that the court initially acts upon the principle that the discretion is not to exclude, but to include, irregularly obtained evidence. While there is no absolute rule rendering evidence inadmissible because of irregularity, yet when such evidence is presented, which presumption the police may rebut by pointing to circumstances which excuse the irregularity and justify the admission of the evidence.1 In reaching a conclusion as to the exercise of the above discretion, the judge is to bear in mind the statement of Lord Justice General Cooper2 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".

In the case from which the above mentioned quotation is taken, a shopkeeper had been convicted of using, contrary to the Milk Order, milk bottles which had not belonged to her. The crucial evidence in the case was given by Inspectors of a milk-bottles collecting organisation, who found the bottles as a result of an unauthorised search of her premises. She appealed against the conviction on the ground, inter alia, that the evidence was inadmissible as having been obtained by an illegal search. The court held that while an irregularity in the obtaining of evidence will not necessarily render the evidence inadmissible, yet in this case the conviction must be quashed, because the Inspectors ought to have known that they were exceeding the limits of their authority.

1. J.B Dawson Exclusion of Unlawfully Obtained Evidence, (July 1982), Vol. 31, ICLQ 513, 537.

2. Lawrie v. Muir, 1950 Scotish Law Times 39 (40).

Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back

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