Report No. 94
10.4. Alternative remedies.-
An assessment of the validity and force of the argument of deterrence naturally involves a consideration of the alternative remedies that are available under the general law against illegal conduct. Such alternative remedies are at present, principally the following:-
(a) Criminal sanctions for the conduct in question, where such sanctions are applicable in law;
(b) Tort remedies, where recognised in law for such conduct; and
(c) Departmental action against the enforcement agencies.
Theoretically, the sanctions mentioned above may be available, but there are certain practical difficulties which should not be overlooked. For example, as regards criminal sanctions, it is not easy for a victim of illegal search to pursue such sanctions effectively, since, with his own resources, he may not be able to muster sufficient evidence for the purpose. Again there are certain legal pre¬requisites, such as the need for a prior sanction for prosecution, which also must be fulfilled. In practice, it is not easy to cross these legal hurdles. Civil actions as a remedy for unlawful search and seizure present equally notorious practical difficulties. In a well-known English case, Lord Denning, M.R.1 wrote that when entering a house by stealth or force, the "police risk an action for trespass. It is not much risk."
Then, as regards disciplinary action, that also is a tardy process, for reasons which need not be gone into for the present purpose. Thus, there are many counter-balancing considerations which render the alternative remedies of little, practical consequence. One might then be confronted with the limits of current legal remedies and their inability to maintain the standards of legality.
1. Chani v. Janes, (1970) 1 QB 693 (705).