A brief outline of inconsistencies in the law of improperly obtained evidence in Scotland

The court must determine which evidence(s) ought to be subject to scrutiny and which ones are inadmissible. To be admissible, evidence must be (a) relevant and (b) not prohibited. This essay will explore requirement (b). As per HMA v McGuinn (1936) at 18, improperly obtained evidence, is not automatically rendered as inadmissible. Instead, the admissibility of irregularly obtained evidence relies on a balancing exercise which is discussed below. Secondly, the regulation of irregularly obtained evidence in the civil jurisdiction will be outlined.

The leading Scottish authority on this topic is Lawrie v Muir, 1950 JC 19; decided by a ‘full bench’, which is convened either to overrule a previous decision or where the matter raised is very important. Lord Justice General Cooper explained on page 26 the basis for the approach –

‘the law must strive to reconcile two highly important interests which are liable to come into conflict – (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done’.

As per the quoted passage, the [criminal] court must balance the protection of citizens against the interest of the state to serve justice. This is an approach, away from strict legal principle; towards a practical approach determined by reference to the specific facts of each case. The court has to consider various factors in this balancing exercise which include: the urgency of the investigation; seriousness of the crime; the extent of the infringement of the accused rights; etc. The lack of a clear framework has given the judiciary discretion to pick and mix from the list of factors. Considering how fact-specific this balancing exercise is, a decision-maker has to seek a solution that is suitable to the specific facts of that case. Facts are never identical. Therefore different solutions based on different facts may at times be unpredictable and inconsistent.

An example of such inconsistency is highlighted by Lawrie v Muire and Fairley (1951) JC 14. Both cases involved inspectors discovering incriminating evidence through exceeding their [statutory] powers without intention and in good faith. However, in Lawrie, the evidence was held as inadmissible but in Fairley, the court admitted the evidence. Considering the similarity in the nature of the evidence obtained, the different result seems odd. It may be suggested that the crime in Lawrie was more serious; however it is hard to distinguish selling milk in bottles belonging to others as more serious than selling salmon caught out of season. Furthermore, this justification can be challenged by looking at McGovern v HMA (1950) JC 33; which involved extractions from the accused’s nails – just before he was arrested and charged with safe-blowing – that confirmed the presence of explosives. Despite the crime being more serious in comparison to selling salmon caught out of season, the court held the evidence as inadmissible. The three cases demonstrate the difficulty of applying Lord Cooper’s balancing test. The judiciary has failed to develop a clear framework on what renders a particular evidence as inadmissible which has resulted in unpredictable decisions.

In the civil sphere, the prevailing view has been a test of relevancy – If the evidence is relevant, then the courts are willing to admit it. However, the test of relevancy is open to doubt in light of recent cases [e.g. Martin v McGuinness 2003] in which the judges asserted a discretion to admit or exclude evidence based on fairness. The leading case is Rattray v Rattray (1897) which was criticised in Duke of Argyle v Duchess of Argyll (1963) – a case with very similar facts. Lord Wheatley confined Rattray to its facts and applied the test of fairness derived from the criminal jurisdiction. This approach has been approved in Baronetcy of Pringle of Stichil [2016] UKPC 16 at para 77. Therefore in the civil context, the decision maker appears to have discretion on which test to use. This is a more coherent approach which suggests that where the evidence is not directly relevant to the issue, the judge has the discretion to admit it where it is fair to do so.

The treatment of irregularly obtained evidence has proven to be an inconsistent area of the law. looking at this from a jurisprudential perspective it is up to discussion as to why the legal system labels certain evidence as irregular. A better approach may be to admit all relevant evidence regardless of the method of obtainment. The test applied in the civil jurisdiction has proven to result in a more consistent case-line. Despite the criticisms of Rattray in Duke of Argyle, the result was the same (evidence was admissible in both cases). On the other hand in the criminal jurisdiction the three cases (all of which the judgement was given by Lord Justice Cooper) suggest that a flip of a coin is an effective mode of deciding the matter. However, a justification, which suggests that these inconstancies are inevitable, is the adversary nature of our legal system. Different counsels may rely on and stress different factors on the balancing test and the judges form a conclusion based on whose argument they find more persuasive.

By Amir Taavoni