Exclusion of Evidence Flashcards
A v Secretary of State for the Home Department 2005
FACTS
- Appellants appealed against the decision of the Special Immigration Appeal Commission that evidence given by them which was procured by torture, or might have been procured by torture (without complicity of British authorities) did not render the evidence inadmissible, but rather the weight to be given to such evidence
HOL Decision
- Allowing the appeal
- Evidence obtained from witness or suspect by means of torture had long been regarded as inherently unreliable, unfair, offensive to ordinary standard of humanity and decency incompatible with the principle for which courts should administer justice
- Evidence obtained through torture may not lawfully be admitted in a UK Court, IRRESPECTIVE of where, by whom or whose authority the torture has been committed
- Where an inquiry leads to discovery of torture evidence should be excluded but in where doubtful of torture being used or not it should be admitted bearing in mind the doubt
Lawrie v Muir 1950
FACTS
- Accused was convicted of using bottles of others to sell milk
- The MMB in its contract with suppliers of milk had the right to allow inspectors to search the premises and examine bottles
- The accused had no such contract
HELD
-The evidence found by them was rendered inadmissible
- Evidence had been obtained by two inspectors working for a private company. So although in good faith, they had no valid warrant to enter her property and she had only allowed it because of a misrepresentation
- Irregularity in method of obtaining evidence DOES NOT always necessarily make that evidence inadmissible
- No absolute rule
- Q. should be whether the irregularity ought or ought not to be excused depending on nature of the irregularity and circumstances to which it was committed
- so they have to balance the civil liberties with public protection.
and balance the aspect of fairness to the accused with the severity of the offence.
HM Advocate v Turnbull 1951
ABUSE OF SEARCH WARRANT
FACTS
- During a search of the accused’s offices for evidence of fraud, police accompanied by Inland Revenue official removed large numbers of business files relating to named clients in the warrant, but a vast majority of files not named
- Files were not searched at the time and passed on to the Inland Revenue
- After information was investigated a second warrant was issued, authorising search for more documents relating to additional charges of fraud
- No further search took place as Inland Revenue already had all documents from first search
- Objection on basis of documents recovered from first search that were not stipulated in the search warrant
HELD
- Objection sustained on grounds documents had been illegally obtained as police had no authority to seize documents during the first search relating to charges brought about after apparent second warrant
- Introduction of documents in evidence would be unfair to accused since illegal action not justified by police in circumstances of urgency, but had been deliberately undertaken to obtain from accused’s private papers
HM Advocate v Hepper 1958
FACTS
- Hepper charged with theft of whisky and an attache case
- Crown sought to lead evidence from officer with reference to the attache case discovered during a search of the accused’s premise
- The search was consented to by the accused but the warrant did not give consent to search premises on the charge of theft in relation to the case
- Objection taken to have the evidence of the officer as being inadmissible
HELD
- Objection repelled
- Distinguished from case of HMA v Turnbull
- In this case police had accidentally stumbled upon the case and where not actively searching for it, but it was suspicious to the officer who removed it for further investigation as it had the name and address of another on it
- Lord Guthrie stated that the officer did not act improperly by removing the case to have it further investigated
- In the officers duties as police officer, charged with protection of the public, they were entitled to act in the way that they did
- Lord Guthrie stated that even if the evidence might be regarded as having been irregularly obtained, it was nevertheless admissible having regard to the interest of society in the detection of crime
Leckie v Milne 1981
SEARCH WARRANT DOES NOT JUSTIFY UNLIMITED SEARCH
FACTS
- Defence objected to admission of evidence on the ground that articles found were not referred to in original petition warrant
- Consent to an unlimited search was not authorised by householder at material time
- Officer were not aware of what possessions they were to search for, regarding the theft, they did not have the search warrant
HELD
- Officers were not authorised to carry out an unlimited search and therefore had exceeded their powers
- Consent cannot be given as to meaning unlimited consent
- Officers must have warrant on their person and produce it and know what they are searching for
Leckie v Milne 1981
SEARCH WARRANT DOES NOT JUSTIFY UNLIMITED SEARCH
FACTS
- Defence objected to admission of evidence on the ground that articles found were not referred to in original petition warrant
- Consent to an unlimited search was not authorised by householder at material time
HM Advocate v Bell 1984
- A search warrant which is not subscribed or signed is an irregularity which deems the warrant invalid
- It is fatal to the validity of the warrant for it to be signed
Lord Advocate’s Reference No 1 of 2002
FACTS
- Accused charged with possession of indecent images of children
- Objection from accused based on the fact that during a search of his premises a civilian employee, attached to the computer forensic unit, was actively involved but not authorised by the warrant
-Civillian had assisted head of unit in tagging and removing computing equipment
Accused acquitted
REFERALL TO HIGH COURT
- HELD, Sheriff erred in upholding objection
- Where warrant authorises search by police, others may assist police in the search
- Type of assistance which could be legitimately provided depends on circumstances of case
- Civillian employee did did not render search irregular as he was present to assist authorised officer by tagging and removing equipment
- Civillian acted under directions of officers and not personally conducting search
Singh and Singh v HM Advocate 2001
FACTS
- Appellants reasonably suspected of evading VAT
- Authorised search of their home took place
- The warrant was granted in favour of 4 authorised persons and other persons (not authorised) to search the home
- The defence objected to evidence submitted by the Crown on the basis that eight customs officers attended the house thus breaching terms of the warrant
- Appellants convicted
HELD
- Appeal allowed
- The search warrant had been unlawfully executed
- Legislation enabled the sheriff to place restrictions on the exercise of powers conferred by the search warrant in relation to the number of authorised persons who could carry out the search
- In this instance the warrant had allowed for 4 authorised persons when in fact there was 8
HM Advocate v Higgins 2006
UNAUTHORISED COVERT SURVEILLANCE IS A SERIOUS IRREGULARITY
FACTS
- Crown wished to lead evidence from two officers who heard conversations between the two accused
- Officers heard conversations whilst on duty outside cells
- Crown argued that statements had been obtained because of the seriousness of the crime and the fact large sums of money were missing
HELD
- Objection sustained
- Trap was conducted by officers
- Two accused had been deliberately placed in adjacent cells on an unoccupied floor with officers posted in certain position so that they would overhear conversations between the two
- the two accused would have chosen not to speak had they known officers were present
- the unauthorised covert surveillance had to be regarded as a serious irregularity that could not be condoned and which fundamentally goes against the rule of fairness
What does Duff believe the two main reasons are for excluding evidence?
(1) The reliability rationale - evidence which is inherently unreliable or even where factually accurate is likely to distort the decision making process thus affecting the reliability of the outcome
(2) Fear the admission may adversely affect the integrity of the criminal justice process in some way
What is an example of inherently unsafe evidence?
HEARSAY
- standard argument is that without the presence of the person who allegedly made the statement, its accuracy cannot satisfactorily be assessed, or challenged, through the process of cross-examination.
According to Duff what type of evidence is factually accurate but inadmissible as the decision maker may ascribe too much weight to it?
PREVIOUS CONVICTIONS OF ACCUSED
- Likely to have an adverse effect on proceedings as the decision maker may put too much weight on such evidence thereby adversely affecting the reliability of the outcome.
Give examples of evidence which would likely damage the integrity of the justice system if admitted
- Torture
- Phone tapping (breaching citizen’s right to privacy)
- Criminal behaviour committed by agents of the state
What does Dennis believe to be the purpose of the law of evidence?
To secure the legitimacy of verdicts and their legitimacy is derived from a combination of their factual accuracy and their “moral authority”
