Scottish High Court of Justiciary Decisons

At advising on 23rd November 1949 the opinion of the Court was read by,—

LORD JUSTICE-GENERAL (Cooper).—The conviction obtained in this prosecution depends upon evidence given by two inspectors who in good faith conducted a search of the appellant's premises but who had no right to make that search. The Sheriff-substitute repelled an objection to the admissibility of the evidence thus illegally obtained, and the main question is whether he was right in so doing. The matter has been remitted to a larger Court because of the importance and difficulty of the widest submission offered by the appellant, viz., that evidence obtained as a result of illegal entry, illegal search, illegal seizure or other like unlawful or irregular act, cannot be admitted in a criminal prosecution.

On this major issue there is little direct authority. In Rattray v. Rattray the question related to the admissibility in an action of divorce of a letter written by the defender to the co-defender which had been stolen from the post office by the pursuer, and it was held by Lord Trayner and Lord Moncreiff that the evidence was competent, and by Lord Young that it was not. Lord Trayner proceeded in part upon the ground that the theft of a letter in the hands of the postal authorities was only a statutory offence and not a crime—a distinction which I find unconvincing—and partly on the ground that the "policy of the law in later years (and I think a good policy) has been to admit almost all evidence which will throw light on disputed facts and enable justice to be done." Lord Moncreiff said (at p. 321):

"But I know of no case, and we have been referred to none, where the Court have refused to look at a document which instructed crime simply because it has been obtained without legal warrant."

So far as my own researches go, I respectfully confirm this statement. The Lord Justice-Clerk indicated no view on the matter. The point next came up in Crook v. Duncan, but only by way of obiter dicta.The argument for the appellant in a stated case following a conviction under the Salmon Fisheries (Scotland) Act, 1868, was that certain evidence founded upon by the prosecutor had been obtained in an illegal manner and was therefore incompetent. The Court found it unnecessary to deal specifically with this matter, dismissing the appeal on wider grounds. But the Lord Justice-Clerk (Macdonald), with whom Lord Trayner and Lord Moncreiff concurred, said (at p. 52):

"Now, I do not enter into the question of whether the actings of the deputy chief constable were legal or illegal. It is sufficient for this case to say that the evidence so obtained was perfectly competent as against the accused here."

I can only read this statement as meaning that, even assuming the evidence to have been illegally obtained, it was not on that account inadmissible. In Adair v. M'Garry a Full Bench of the High Court were concerned with the right of the police to take the finger-prints of a person apprehended but not committed to prison, and in order to obtain a decision on the question of police practice the Lord Advocate waived the rule derivable from Rattray and Crook v. Duncan . The Lord Justice-General said that in declining to stand upon this contention the Lord Advocate acted "very properly," but I am unable to read this as indicating any view on the part of Lord Clyde as to the validity or otherwise of that rule. The only specific reference to the matter was made by Lord Morison, who quoted from Rattray and Crook v. Duncan, and concluded as follows:—

"… I think it is quite immaterial whether the finger-prints were obtained by the regular procedure or not. If properly produced and proved as the fingerprints of the prisoner, they were, in my opinion, competent evidence. I do not see that the interest of justice should be prejudiced because a police officer, through either ignorance or negligence, failed to comply with the regulation."

In H. M. Advocate v. M'Guigan, a charge of murder and rape, the accused had been apprehended but no warrant to search the tent where he lived had been obtained. A search of the tent was conducted without a warrant, and certain articles necessary to the Crown case were seized. The Lord Justice-Clerk (Aitchison) held that, in view of the urgency of the matter, the police were entitled to search without a warrant, but he added this:—

"Even if I thought otherwise, and that the police had acted irregularly, it would not in the least follow that the evidence proposed to be led would be inadmissible. An irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible. … Rules as to search and warrant must, no doubt, be strictly observed and never lightly departed from; but, on the other hand, they must always be reasonably interpreted in the light of the circumstances of the particular case."

In MacColl v. MacColl Lord Moncrieff in a divorce case followed the majority view in Rattray with visible reluctance.

In order to complete the survey of judicial pronouncements it is necessary to refer to Pringle v. Bremner and Stirling, a decision on the relevancy of the pursuer's averments in an action of damages for illegal search and apprehension. In the course of his speech Lord Chancellor Chelmsford, with whom Lord Cranworth concurred, said (at p. 60):

"But supposing that in a search which might have been improper originally, there were matters discovered which showed the complicity of the pursuer in a crime, then I think the officers, I can hardly say would have been justified, but would have been excused by the result of their search."

Lord Colonsay, who dissented from the conclusion of the majority as to the disposal of the appeal, nevertheless went some distance in concurring with the obiter dicta of the Lord Chancellor. These dicta were used by Horridge, J., in Elias v. Pasmore as justifying the proposition which he put thus (at p. 173):

"It therefore seems to me that the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by any one, and that, so far as the documents in this case fall into this category, the seizure of them is excused."

As an indication of the views held by the profession, it is noteworthy that the passages to which I have referred (or some of them) have been relied upon in Lewis on Evidence, section 292, for the statement that it is not an objection to articles and documents put in evidence that they have been the subject of illegal seizure; and similar propositions will be found in Macdonald's Criminal Law, (5th ed.) p. 326; Archbold's Criminal Pleading, (32nd ed.) p. 1163; and Halsbury's Laws of England, (12th ed.) vol. xiii, p. 640.

From the standpoint of principle it seems to me that 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 shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps highhanded interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods. It is obvious that excessively rigid rules as to the exclusion of evidence bearing upon the commission of a crime might conceivably operate to the detriment and not the advantage of the accused, and might even lead to the conviction of the innocent; and extreme cases can easily be figured in which the exclusion of a vital piece of evidence from the knowledge of a jury because of some technical flaw in the conduct of the police would be an outrage upon common sense and a defiance of elementary justice. For these reasons, and in view of the expressions of judicial opinion to which I have referred, I find it quite impossible to affirm the appellant's extreme proposition. On the contrary, I adopt as a first approximation to the true rule the statement of Lord Justice-Clerk Aitchison that "an irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible."

It remains to consider the implications of the word "necessarily" which I have italicised. By using this word and by proceeding to the sentence which follows, Lord Aitchison seems to me to have indicated that there was, in his view, no absolute rule and that the question was one of circumstances. I respectfully agree. It would greatly facilitate the task of Judges were it possible to imprison the principle within the framework of a simple and unqualified maxim, but I do not think that it is feasible to do so. I attach weight to the fact that the word used by Lord Chancellor Chelmsford and by Horridge, J., when referring to the disregarding of an irregularity in the obtaining of evidence, was "excuse." Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick. Again, there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases (of which the Sale of Food and Drugs Acts provide one example) it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution's case. On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained.

There the general question must be left. To apply the law to the present relatively trivial case is not easy, for the circumstances combine to make it singularly unsuitable as a test case. Indeed I cannot but think that it is a pity that the Procurator-fiscal insisted in the prosecution, after the point of difficulty had arisen. I am unable to accept the suggestion that a distinction should be drawn between the statutory offence (the malum prohibitum) and the common law crime (the malum in se), for the interests of the State are as much involved in offences against penal statutes as in offences against the common law, and the former category has greatly expanded in recent times. In England, the former category is the larger of the two. Next, it was argued that in this case the whole of the evidence on which the conviction was obtained was tainted; but in practically every case in which this type of question is worth raising, the admission or exclusion of some piece of evidence must be vital to the conviction, otherwise the point would not be taken. It is specially to be noted that the two inspectors who, in this instance, exceeded their authority were not police officers enjoying a large residuum of common law discretionary powers, but the employees of a limited company acting in association with the Milk Marketing Board, whose only powers are derived from contracts between the Board and certain milk producers and distributors, of whom the appellant is not one. Though the matter is narrow, I am inclined to regard this last point as sufficient to tilt the balance against the prosecution, upon the view that persons in the special position of these inspectors ought to know the precise limits of their authority and should be held to exceed these limits at their peril. It is found that the inspectors acted in good faith, but it is incontrovertible that they obtained the assent of the appellant to the search of her shop by means of a positive misrepresentation made to her. I would therefore answer question 1 in the negative, upon which view question 2 also falls to be answered in the negative.