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Report No. 94

4.11. Examples of exercise of discretion.-

Examples of exercise of the discretion in Scotland are available in plenty. Evidence gained by scraping the fingernails of a suspect without his having been arrested and without his consent having first been obtained was excluded,1 as the conduct of the police was technically an assault. Documents obtained by illegal search were excluded in another case. Lord Guthrie wrote that their admission would "tend to nullify the protection afforded to a citizen by the requirements of a magistrate's warrant and would offer a positive inducement to the authorities to proceed by irregular methods.2

1. McGovern v. H.M. Advocate, 1950 SLT 133 (145).

2. H.M. Advocate v. Turnbull, 1951 SLT 409 (411).

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

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