Report No. 94
10.5. The ethical arguments in the doctrine of "clean hands".-
So much as regards the element of deterrence. Then, there is what may be called the "ethical" argument. These who would favour some type of exclusionary rule argue in support that justice requires that the wrong must be denied the benefit of his wrongful act. One can call it the doctrine of "clean hands". Exclusion of evidence acquired illegally, it is believed, works as a sanction against the deriving of such benefit by a person who obtained the evidence illegally. No doubt, in a modern State, where the enforcement of law is a complete mechanism, this argument, in a force in which it concentrates on personal conduct, cannot be applied literally.
The particular enforcement officer who might have been personally guilty of the alleged wrong doing is merely a cog in the whole administrative wheel; moreover, that particular officer may have been transferred to another place and succeeded by another officer before the prosecution commences and before; the evidence alleged to have been obtained illegally is tendered. The result is, that though the wrong is committed by A, the benefit of the evidence gathered illegally may go to B, and the application of a doctrine of "clean hands" based on personal fault would be meaningless in such circumstances. However, it is possible to apply the doctrine of "clean hands" in an impersonal manner, by viewing the machinery of law enforcement as one undertaken by the State as an entity, and by applying the argument of clean hands against the State as an organisation, rather than against individuals personally.