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Scotland: A Plea for Consistency

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Exclusionary Rules in Comparative Law

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 20))

Abstract

Scotland’s Appeal Court fashioned a test for exclusion of evidence gathered in violation of the law already in 1950 a landmark decision of Lawrie v. Muir. In the Scottish test, courts should balance the seriousness of the violation of statutes or the defendant’s rights on the one hand, against the need of the state to prove guilt in criminal cases and punish criminals. Technical, minor or “good faith” violations, especially in serious cases, should not lead to exclusion, whereas serious violations which impact on the fairness of the proceedings, should. This appears to be one of the earliest decisions articulating a “fairness” test for exclusion, and it was admired by prominent jurists in England and Wales. However, in this Chapter the authors thoroughly discuss the case law which has followed Lawrie, and show its inconsistency and failure to set out clear tests for exclusion of illegally gathered evidence. They feel that Scotland’s “fairness” test, now virtually identical to that of the European Court of Human Rights and England and Wales, is too malleable, and that, especially in the area of admissibility of evidence found as a result of unlawful confessions, the courts are too reticent to find a violation of the right to a fair trial.

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Notes

  1. 1.

    The approach of the Scottish courts with regard to illegally obtained evidence in civil cases is even less coherent than that adopted in criminal cases. For discussion, see Ross and Chalmers (2009, para. 1.7.8); and the cases cited there.

  2. 2.

    A group of Scottish academics has created a draft criminal code, but this is unlikely to be adopted as the law: Clive et al. (2003).

  3. 3.

    The most comprehensive piece of legislation is the Criminal Procedure (Scotland) Act 1995 (subsequently CP(S)A).

  4. 4.

    See the discussion of the Human Rights Act 1998 and the Scotland Act 1998 below in Sect. 3.2.

  5. 5.

    See, for example, HM Advocate v. Mahler (1857) 2 Irv 634, where a promise by the police not to prosecute the accused if he gave the police information about his cohorts (which was later broken) led to the exclusion of that evidence at trial.

  6. 6.

    Gray (1966, 92), Macdonald (1948, 326), and Lewis (1925, 292).

  7. 7.

    Davidson (2007, 349).

  8. 8.

    1950 JC 19.

  9. 9.

    The doctrine of precedent means that consideration of an earlier decision is only possible by a larger court. Most appeals are heard by three judges, so a Full Bench is generally comprised of five judges. In Lawrie, the court had to consider a decision of five judges (Adair v. McGarry, 1933 JC 72), necessitating the formation of a larger court.

  10. 10.

    It is widely recognised, however, that inquisitorial aspects are creeping into the Scots trial. See, for example: Duff (2004a, 29–50) and Gane (1999, 56–73).

  11. 11.

    Lawrie v. Muir 1950 JC 19, at 26.

  12. 12.

    Ibid, 27.

  13. 13.

    On the importance of representing both of these interests fairly, see Miln v. Cullen 1967 JC 21, 29–30, per Lord Wheatley.

  14. 14.

    A distinction is, however, made between oral statements by the accused and real and documentary evidence, although the ultimate test (one of fairness) remains the same. See the discussion of interrogations below in Sect. 3.3.

  15. 15.

    The Crown has, nevertheless, accepted that a civil action against the police is proper where there has been an irregularity: Lawrie v. Muir 1950 JC 19, 23.

  16. 16.

    See, for example, Yeo (1982, 395) (arguing that adopting the Scottish approach in an English context would “go a long way to enhancing the proper administration of criminal justice”). Cross used to open his discussion of irregularly obtained evidence by citing extensively from Lawrie: Cross (1958, 259–68). More recent editions of Cross’s text (now authored solely by Colin Tapper) argue that the Scottish approach could fall victim to an imagined “crude popular reaction”: Tapper (2007, 562).

  17. 17.

    Williams (1955, 349).

  18. 18.

    Chalmers (2007, 102).

  19. 19.

    Duff (2004b, 98), referring to Walker and Walker. Ross and Chalmers (2000, para. 1.7.5). The same approach is taken in the most recent edition: Ross and Chalmers (2009, para. 1.7.5).

  20. 20.

    The following points are all taken from Ross and Chalmers (2009, para. 1.7.5). Footnotes are omitted.

  21. 21.

    Ibid.

  22. 22.

    It is nevertheless possible that the court will consider a number of factors. For instance, in Edgley v. Barbour, 1995 SLT 711, the good faith of the police, the urgency of the situation and the public interest in prosecution were all expressly relied upon (see the Lord Justice-General (Hope)’s opinion at 715).

  23. 23.

    HM Advocate v. Milford 1973 SLT 12, 13 per Temporary Sheriff Macphail. Milford had refused to give a blood sample for the purposes of finding out his blood group, so the case concerned whether or not the Crown could obtain one without consent. It is not, therefore, a case where a past irregularity had to be excused.

  24. 24.

    HM Advocate v. Megrahi (No 3) 2000 SLT 1401 [13], per Lord Coulsfield.

  25. 25.

    See Lawrie v. Muir, 1950 JC 19, 28 per the Lord Justice-General (Cooper).

  26. 26.

    Gray (1966, 96).

  27. 27.

    Ibid. Although see Ashworth (1977), for an argument that it is more important to exclude illegally obtained evidence in relation to serious crimes, as the need to protect the accused’s rights is greater the more serious the potential consequences for him of a conviction. See, similarly, Ashworth (2003) and Choo (2008, 94).

  28. 28.

    Gray (1966, 99). For an attempt at crafting a more objective account of offense seriousness, see Ashworth (2005, 102–50).

  29. 29.

    Gray (1966, 103).

  30. 30.

    Edgley v. Barbour 1995 SLT 711.

  31. 31.

    HM Advocate v. Higgins 2006 SLT 946, discussed in more detail below.

  32. 32.

    Ibid, [26] per Lord MacPhail.

  33. 33.

    1950 JC 33.

  34. 34.

    The accused can voluntarily be searched before this point: Davidson v. Brown 1990 JC 324. Merely ceasing to resist demands to be searched does not constitute consent to be searched: Lucas v. Lockhart (1980) SCCR (Supp) 256. As always, the over-arching principle is fairness to the accused: Brown v. Glen 1998 JC 4, 7 per Lord Sutherland.

  35. 35.

    Adair v. McGarry 1933 JC 72, 89 per Lord Morison.

  36. 36.

    Duff (2004b, 84). The quoted section is from McGovern v. HM Advocate 1950 JC 33, 37 per the Lord Justice-General (Cooper).

  37. 37.

    1951 JC 14.

  38. 38.

    Ibid, 24, per the Lord Justice-General (Cooper).

  39. 39.

    Gray (1966, 99) and Duff (2004b, 85).

  40. 40.

    Duff (2004b, 85).

  41. 41.

    On the importance of the obviousness of incriminating evidence, see Mowbray v. Valentine 1992 SLT 416.

  42. 42.

    See, for example: HM Advocate v. Hepper 1958 JC 39; Burke v. Wilson 1988 SCCR 361; Tierney v. Allan 1990 SLT 178; Drummond v. HM Advocate 1992 JC 88.

  43. 43.

    Both of these terms appear in HM Advocate v. Hepper 1958 JC 39, 40, per Lord Guthrie.

  44. 44.

    1992 JC 88.

  45. 45.

    For examples of “fishing” for evidence, see: Jackson v. Stevenson (1897) 2 Adam 255; HM Advocate v. Turnbull 1951 JC 96; Leckie v. Miln 1982 SLT 177.

  46. 46.

    Bulloch v. HM Advocate 1980 SLT (Notes) 5; McAvoy v. Jessop 1988 SLT 621; Hepburn v. Brown; 1998 JC 63; Singh v. HM Advocate 2001 JC 186.

  47. 47.

    HM Advocate v. Foulis and Grant 2002 JC 262.

  48. 48.

    Other than the cases discussed individually below, urgency appears to have been important in: HM Advocate v. McGuigan 1936 JC 16; HM Advocate v. Hepper 1958 JC 39; McHugh v. HM Advocate 1978 JC 12; Walsh v. MacPhail 1978 SLT (Notes) 29; Webley v. Ritchie 1997 SLT 1241.

  49. 49.

    1967 JC 49.

  50. 50.

    Another example of real urgency is where a breath sample is required from a driver in order to establish whether or not she is over the legal alcohol limit: Cairns v. Keane 1983 SCCR 277. Furthermore, where drugs are involved, the ease of destroying evidence clearly plays an important role in the courts’ thinking: MacNeil v. HM Advocate 1986 SCCR 288.

  51. 51.

    1968 JC 40.

  52. 52.

    Finnie (1982, 291).

  53. 53.

    See: Bell v. Hogg 1967 JC 49, 61, per Lord Cameron.

  54. 54.

    HM Advocate v. Turnbull 1951 JC 96.

  55. 55.

    For example, where a warrant has been sought, urgency does not excuse errors in its form: HM Advocate v. Cumming 1983 SCCR 15.

  56. 56.

    1967 JC 49.

  57. 57.

    Ibid, 59.

  58. 58.

    1961 JC 47.

  59. 59.

    Ibid, 50.

  60. 60.

    See, for example, Jackson v. Stevenson (1897) 2 Adam 255.

  61. 61.

    Weir v. Jessop (No 2) 1991 SCCR 242; Cooper v. Buchanan 1997 SLT 54; Stark v. Brown 1997 JC 209; Houston v. Carnegie 1999 SCCR 605.

  62. 62.

    See, for example, Ireland v. Russell 1995 JC 169.

  63. 63.

    Where no force is used and the accused simply accedes to a request to hand over drugs to a steward, such evidence is, nevertheless, admissible: Mackintosh v. Stott 1999 SCCR 291. See, similarly, Devlin v. Normand 1992 SCCR 875.

  64. 64.

    Wilson v. Brown 1996 JC 141.

  65. 65.

    Wightman v. Lees 2000 SLT 111.

  66. 66.

    Howard v. HM Advocate 2006 SCCR 321.

  67. 67.

    Walsh v. MacPhail 1978 SLT (Notes) 29 (illegal warrant); Edgley v. Barbour 1995 SLT 711 (no warrant); Webley v. Ritchie 1997 SLT 1241 (no warrant); Hepburn v. Brown 1998 JC 63 (warrant’s terms exceeded); Henderson v. HM Advocate 2005 1 JC 301 (information gathering not authorised in statutory terms).

  68. 68.

    McAvoy v. Jessop 1988 SLT 621; Morrison v. O’Donnell 2001 SCCR 272.

  69. 69.

    See, for example, Baxter v. Scott 1992 SLT 1125.

  70. 70.

    See, similarly: HM Advocate v. McKay 1961 JC 47; Miln v. Cullen 1967 JC 21.

  71. 71.

    1951 JC 96.

  72. 72.

    See: HM Advocate v. Turnbull 1951 JC 96, per Lord Guthrie at 103–104.

  73. 73.

    See, for example: Weir v. Jessop (No 2) 1991 SCCR 636; Namyslak v. HM Advocate 1995 SLT 528.

  74. 74.

    Via the Human Rights Act 1998 and the Scotland Act 1998.

  75. 75.

    See the discussion below of: HM Advocate v. Robb 2000 JC 127; Hoekstra v. HM Advocate (No 5) 2002 SLT 599; HM Advocate v. Higgins 2006 SLT 946. See, further, McGibbon v. HM Advocate 2004 JC 60.

  76. 76.

    HM Advocate v. Higgins 2006 SLT 946.

  77. 77.

    Holland v. HM Advocate 2005 1 SC (PC) 3, [41], per Lord Rodger.

  78. 78.

    See Mowbray v. Valentine 1992 SLT 416, where the court held that, in order to establish whether proceedings were “fair,” all circumstances must be known.

  79. 79.

    Art. 1 ECHR (the obligation upon contracting States to secure the rights under the Convention) and Art. 13 ECHR (the provision of an effective remedy for breaches of human rights) were excluded because it was felt that the HRA fulfilled the same roles.

  80. 80.

    Since the HRA came into force, the courts have struggled with the question of whether the accused can still rely on the provisions of the SA. See: Jamieson (2007a, b). This has implications where the accused seeks damages, as such applications are time-restricted under the HRA, but not under the SA: Somerville v. Scottish Ministers 2007 SC (HL) 45. For claims arising after 2 November 2009, a time limit has been introduced into § 100(3B) of the SA.

  81. 81.

    SA, § 44(1).

  82. 82.

    There exists a limited right to private prosecution in solemn cases (i.e. proceedings before a jury), but not summary cases (where a judge sits alone): Criminal Justice (Scotland) Act 1995, § 63. This right requires the assent of the High Court and (at least) the acquiescence of the Lord Advocate. Accordingly, the right has been exercised twice in the last 100 years: J&P Coats Limited v. Brown 1909 JC 29; X v. Sweeney and Others 1983 SLT 48. It can thus be safely ignored for present purposes.

  83. 83.

    2000 JC 127.

  84. 84.

    This has since changed: see Sect. 3.3.2.2 below.

  85. 85.

    HM Advocate v. Robb 2000 JC 127, per Lord Penrose at 131.

  86. 86.

    2002 SLT 599.

  87. 87.

    Ibid, 32, per the Lord Justice-General (Cullen).

  88. 88.

    (2001) 31 E.H.R.R. 45.

  89. 89.

    Ibid, 38.

  90. 90.

    See, also, the Regulation of Investigatory Powers Act 2000, which regulates the procedure for covert surveillance in England and Wales. § 17 of RIPA applies to Scotland, and can result – in practice – in evidence of intercepted communications being declared inadmissible. This provision has not been explored meaningfully in any reported Scottish case, but see Spencer (2008).

  91. 91.

    See Art 8(2) ECHR.

  92. 92.

    2005 JC 34.

  93. 93.

    2005 JC 301.

  94. 94.

    Ibid, 9, per Lord Marnoch.

  95. 95.

    Ibid, 10.

  96. 96.

    Ibid, 11.

  97. 97.

    Ibid, 12.

  98. 98.

    Ibid, 16.

  99. 99.

    Ibid, 36.

  100. 100.

    2006 SLT 946.

  101. 101.

    Ibid, 13, per Lord MacPhail.

  102. 102.

    Ibid, 25.

  103. 103.

    Ibid, 29.

  104. 104.

    Raitt (2008, para. 10.19).

  105. 105.

    CP(S)A, §14(2), as amended by the 2010 Act.

  106. 106.

    CP(S)A, §14A, as inserted by the 2010 Act.

  107. 107.

    CP(S)A, § 15A(3), as inserted by the 2010 Act.

  108. 108.

    [2010] UKSC 43.

  109. 109.

    For discussion, see Leverick (2011a, b) and Stark (2011).

  110. 110.

    CP(S)A, §14(9).

  111. 111.

    Larkin v. HM Advocate 2005 SLT 1087.

  112. 112.

    Art. 6 ECHR itself provides only that everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law, but see, for example, Condron v. United Kingdom (2001) 31 E.H.R.R. 1.

  113. 113.

    1954 JC 66.

  114. 114.

    Ibid, 75, per the Lord Justice-General (Cooper).

  115. 115.

    Ibid, 79.

  116. 116.

    This test was confirmed in HM Advocate v. Aries [2009] HCJ 4, per Temporary Judge MacIver at [15]. See also Pennycuik v. Lees 1992 SLT 763; Williams v. Friel 1998 SCCR 649.

  117. 117.

    1981 JC 6.

  118. 118.

    Ibid, 9, per Lord Cowie.

  119. 119.

    1982 JC 130.

  120. 120.

    Ibid, 140, per the Lord Justice-General (Emslie).

  121. 121.

    1992 SLT 763.

  122. 122.

    Ibid, 765. See also HM Advocate v. Aries [2009] HCJ 4, [11] per Temporary Judge MacIver.

  123. 123.

    Pennycuick v. Lees 1992 SLT 764,765.

  124. 124.

    1999 JC 28.

  125. 125.

    1987 SCCR 389.

  126. 126.

    Tonge v. HM Advocate 1982 JC 130, 145–146, per the Lord Justice-General (Emslie).

  127. 127.

    See e.g. HM Advocate v. Robb 2000 JC 127; Paton v. Ritchie 2000 JC 271.

  128. 128.

    (2009) 49 E.H.R.R. 19, 421.

  129. 129.

    Ibid, 437, §55.

  130. 130.

    [2010] UKSC 43.

  131. 131.

    See Sect. 3.3.1 above.

  132. 132.

    [2011] UKSC 43.

  133. 133.

    Ibid. [63] per Lord Hope of Craighead. In Ambrose, for example, one accused was questioned by police in his car on suspicion of being in charge of a motor vehicle having consumed excess alcohol. Another was questioned in his house while it was being searched under a warrant relating to the possession of controlled drugs. Handcuffs had been applied to the suspect.

  134. 134.

    Ibid, [64] per Lord Hope of Craighead.

  135. 135.

    [2011] UKSC 44.

  136. 136.

    Ibid, [27] per Lord Hope of Craighead. For further discussion, see Sect. 3.3.2.4 below.

  137. 137.

    [2011] UKSC 54.

  138. 138.

    Ibid, [46] per Lord Hope of Craighead.

  139. 139.

    Chalmers v. HM Advocate 1954 JC 66.

  140. 140.

    Ibid, 82, per the Lord Justice-Clerk (Thomson). See also Manuel v. HM Advocate 1958 JC 41.

  141. 141.

    Chalmers v. HM Advocate 1954 JC 66, 81–82, per the Lord Justice-Clerk (Thomson).

  142. 142.

    Ibid, 83.

  143. 143.

    1984 JC 52.

  144. 144.

    Ibid, 58, per the Lord Justice-General (Emslie).

  145. 145.

    1966 SLT 105.

  146. 146.

    1996 SLT 1075.

  147. 147.

    [2009] HCJ 4.

  148. 148.

    Ibid, 4, per Temporary Judge MacIver. In the event his confession was admissible as it was not proved that such a threat had, in fact, been made by the police.

  149. 149.

    1997 SLT 442.

  150. 150.

    Ibid, 444, per the Lord Justice-General (Hope).

  151. 151.

    Chalmers v. HM Advocate 1954 JC 66, 76 per the Lord Justice-General (Cooper).

  152. 152.

    [2011] UKSC 44.

  153. 153.

    Ibid,[27], per Lord Hope of Craighead.

  154. 154.

    Ibid.

  155. 155.

    MacPhail (1987, para. 21.04).

  156. 156.

    Criminal Procedure in Scotland: Second Report (Cmnd 6218, 1975), para. 7.27.

  157. 157.

    The Law of Evidence (Scot Law Com Memo No 46, 1980), at para. U.02. Nb: this memorandum was meant to be read in conjunction with MacPhail (1987).

  158. 158.

    Another example is the Crown’s duty to disclose “material” evidence to the accused. See: Criminal Justice and Licensing (Scotland) Act 2010, pt 6.

  159. 159.

    Chalmers (2007, 102).

  160. 160.

    JTC (1969, 64). The use of initials indicates that the author was probably an advocate (a lawyer with right of audience in the High Court of Justiciary and the Court of Session).

  161. 161.

    Chalmers (2007, 102).

  162. 162.

    Duff (2004c).

  163. 163.

    Ibid, 176.

  164. 164.

    The Carloway Review (2011 para 7.0.10). For discussion of Cadder – the landmark case in which it was held that admitting confessions obtained where the suspect had not been offered legal assistance breached Article 6 of the ECHR – see Sect. 3.3.2.2 above.

  165. 165.

    Ibid, para. 7.0.10.

  166. 166.

    Ibid, para. 6.2.64.

  167. 167.

    Ibid, para. 4.0.14.

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  1. Faculty of Law, Downing College, University of Cambridge, 10 West Road, Cambridge, CB3 9DZ, UK

    Findlay Stark

  2. School of Law, University of Glasgow, Glasgow, G12 8QQ, UK

    Fiona Leverick

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    Stephen C. Thaman

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Stark, F., Leverick, F. (2013). Scotland: A Plea for Consistency. In: Thaman, S. (eds) Exclusionary Rules in Comparative Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5348-8_3

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