Report No. 94
4.12. Guiding factor.-
The Scottish judges thus exercise a broad and subjective discretionary jurisdiction to include improperly obtained evidence. Since the 1950s, however, a number of informal criteria guiding its exercise have evolved:
(i) An irregularity may be more readily excused where the misconduct was not deliberate. The evidence was admitted in Fairly's case1 (for example), because the inspectors "acted in good faith, in a mistaken belief as to their powers and in an endeavour in the public interest to vindicate the law".
(ii) Evidence will be admitted if found by chance in the course of an 'otherwise legal search for another purpose.2
(iii) Evidence is less likely to be admitted if improperly obtained by private individuals rather than by public officials who may be held accountable to their superiors.3
(iv) Evidence may be excluded where there are no circumstances of urgency.4
(v) Where a specific procedure has been prescribed by statute5 failure to comply with it may result in exclusion.
(vi) Where the police could easily have complied with legal requirement,6 exclusion may be the result.
(vii) Where the illegality is a serious one, such as assault,7 the evidence may be excluded.
On the other hand, exclusion of evidence is less likely in Scotland where the accused is charged with a serious offence, or where the crime is of a kind which is very hard to detect and prosecute by regular means,8 such as in liquor offences or blackmail.
The major advantage of the Scottish approach is that it necessitates a continuing judicial scrutiny of police practices and shifts the burden of justifying improper action to where it belongs, namely, on the police themselves.
1. Fairley v. Fishmongers of London, 1951 SLT 54 (58).
2. H.M. Advocate v. Hepper, 958 JC 39.
3. Lawrie v. Muir, 1950 SLT 37.
4. Hay v. H.M. Advocate, 1968 SLT 334.
5. Lawrie v. Muir, 1950 SLT 37.
6. McGovern v. H.M. Advocate, 1950 SLT 133.
7. H.M. Advocate v. Turnbull, 1951 SLT 409.
8. Hopes v. H.M. Advocate, 1960 JC 104.