Report No. 94
The Differing Approaches
2.1. Differing approaches as to evidence illegally or improperly obtained.-
Broadly speaking, the common law world may be said to present four varying models1 as to the legal approach adopted on the question whether evidence that has been gathered illegally or improperly should, nevertheless, continue to be available for use at the trial for the offence, in the investigation whereof the evidence so gathered. The different approaches adopted by the various models reflect the varying degree of intensity of the law's concern for the observance of legal restrictions as to the methods to be employed for the gathering of evidence and for compliance with certain norms of propriety in the gathering of evidence.
Incidentally, the use, in the present discussion, of two separate expressions "illegal" and "improper" (and their adverbial counterparts) need not be taken as implying that the two situations represented by these two expressions always stand in water-tight compartments. Nor does the use of these expressions imply that every country which adopts a certain approach towards evidence obtained illegally necessarily maintains the same approach towards evidence obtained improperly, and vice versa. The two expressions have been employed in the discussion merely for the sake of convenience. If one were to go into minute details, one would find that the courts, in dealing with the problem, do not always articulate their thoughts on whether the decision in a particular case was influenced by the factor of illegality or by the factor of impropriety, or by both the factors.
1. Para. 2.3, infra.