THE ADMISSIBILITY OF

EVIDENCE OBTAINED ILLEGALLY:

A COMPARATIVE ANALYSIS
G. L. Peiris*

I. INTRODUCTION

The principles governing the admissibility of illegally-obtained

evidence are based on conflicting policy objectives:
(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 beanng upon the
commission of a crime and necessary to enable justice to be done shall not be
withheld from Courts of law on a merely formal or technical ground.'

The importance of the first of these objectives was underlined in the

classic judgment of Holmes J., a dissent from the majority view of the
United States Supreme Court, which held that the use in evidence of
private telephone conversations obtained by wiretapping did not infringe
the fourth and fifth amendments to the American Constitution:
[Wie must consider the two objects of desire both of which we cannot have
and make up our minds which to choose. It is desirable that criminals should
be detected, and to that end that all available evidence should be used. It also
is desirable that the Government should not itself foster and pay for other
crimes, when they are the means by which the evidence is to be obtained ....
We have to choose, and for my part I think it a less evil that some criminals
should escape than that the government should play an ignoble part.-
The rationale sustaining the second objective has been expounded in
equally emphatic terms by Cardozo J.. on behalf of the New York Court
of Appeals:
The pettiest peace officer would have it in his power. through overzeal or
indiscretion, to confer immunity upon an offender for crimes the most
flagitious. A room is searched against the law. and the body of a murdered
man is found. If the place of discovery may not be proved, the other
circumstances may be insufficient to connect the defendant with the crime.
The privacy of the home has been infringed, and the murderer goes free.'

The modem law in most jurisdictions is founded on a compromise

between these postulates. It is evident that neither objective can be

* Faculty of Law. University of Colombo. Sri Lanka: \isitng Fellow. All Souls
College, Oxford.
I Lawrie v. Muir, [19501 S.L.T. 37. at 39-40 (Ct. Just. 1949).
2 Olmstead v. United States, 277 U.S. 438. at 470 (1928).

" People v. Defore. 150 N.E. 585. at 588 (N.Y. 1926).

 Ottawa Law Review [Vol. 13:2

accorded unqualified recognition by the law of evidence. The protection

of the citizen is primarily protection against unwarranted, wrongful, and
perhaps high-handed interference; the common sanction is an action for
damages. The protection is not intended 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 be suppressed and of
offering a positive inducement to the authorities to proceed by irregular
methods.'

II. ALTERNATIVE APPROACHES

Broadly, three approaches are possible to the problem:

1. if evidence is relevant, it cannot be excluded on the ground that it
was obtained by illegal action;
2. if evidence is obtained by illegal action, it is never admissible;
3. where evidence is procured by illegal action, it is a matter for the
trial judge to decide, in his discretion, whether to admit it or not,
subject, in cases where the evidence is admitted, to review by an
appellate court. 5

A. PropositionOne: If evidence is relevant, it cannot be excluded on the

groundthat it was obtainedby illegal action.

There is judicial authority in England in support of Proposition One.

In a case where a constable who had no right to search the person of
the accused did so, and, finding twenty-five young salmon in his pocket,
summoned him under the Salmon Fishery Acts for illegally having these
in his possession, Mellor J. said on appeal: "I think it would be a
dangerous obstacle to the administration of justice if we were to hold,
because evidence was obtained by illegal means it could not be used
against a party charged with an offence. The justices rightly convicted
the appellant." ' 6 The Privy Council, in its opinion given on an appeal
from Kenya, asserted: "I[T]he test to be applied in considering whether
evidence is admissible is whether it is relevant to the matters in issue. If it
is, it is admissible and the court is not concerned with how the evidence
was obtained. 7
The origins of this principle in English law are discernible in a series
of authorities which do not have a direct bearing on illegal searches and

' But cf. supra note 1.

People v. O'Brien, [19651I.R. 142 (S.C. 1964).
6 Jones v. Owens, 34 J.P. 759, at 760 (Q.B. 1870).
7 Kuruma v. The Queen, [1955] A.C. 197, at 203, [1955] 1 All E.R. 26, at 239
(P.C.) (Kenya) (Lord Goddard).
1981] Admissibility of Illegall-ObtainedEvidence

seizures. The cases decided during the eighteenth century and in the early
decades of the nineteenth century adopted the rule that evidence is
admissible notwithstanding that it was illegally procured. These cases
concerned the unauthorized production of the original indictment in
subsequent civil proceedings for malicious prosecution' or of a copy of a
bond the original of which had been successfully resisted on the ground
of privilege, 9 the unlawful examination of a witness in insolvency
proceedings,' 0 the wrongful abstraction of a letter written by a prisoner in
jail,"I and the improper obtaining of possession of other documents. -'
The following graphic comment was made by the Court of Queen's
Bench in the mid-nineteenth century: "It matters not how you get [the
evidence]; if you steal it even, it would be admissible .... .. , In this
case, which concerned an information for penalties under the Corrupt
Practices Act, objection was taken to the production of a letter written by
the defendant because its existence became known only by answers he
had given to the Commissioners who held the inquiry under the Act. The
statute provided specifically that answers before that tribunal should not
be admissible in evidence against him. The Court of Queen's Bench held
that although the defendant's answers could not be used against him, if a
clue were thereby given to other evidence - in that case the letter -
which would prove the case, it was admissible. 4
A clear English authority in support of the Privy Council's view that
relevant evidence is admissible although secured by unlawful means is
the case of Elias v. Pasmnore."' The plaintiffs claimed damages for
trespass to premises, damages for seizure of documents, and restitution
of these documents. The police had entered premises of which the
plaintiffs were lessees in order to arrest X, and, while there, seized and
carried away, inter alia, documents found on the premises which were
afterwards used at the trial of Y. Horridge J., purporting to derive support
from Scottish 6 and Irish' 7 authorities, stated: "'[The interests of the
State must excuse the seizure of documents, which seizure would

8 Caddy v. Barlow, I Man. & Ry. 275. 31 R.R. 325 (K.B. 1827); Legatt v.
Tollervey, 14 East 302. 104 E.R. 617 (K.B. 1811): Jordan v. Lewis, 14 East 306n, 104
E.R. 618 (K.B. 1728).
1 Calcraft v. Guest, [1898] 1 Q.B. 759. 67 L.J.Q.B. 505; Lloyd v. Mostyn, 10 M.
& W. 478, 152 E.R. 558 (Ex.1842).
10Stockfleth v. De Tastet. 4 Camp. 10. 171 E.R. 4 (K.B. 1814).
" Rex v. Derrington, 2 C. & P. 418. 172 E.R. 189 (K.B. 1826).
12 Regina v. Granatelli. 7 St. Tr. N.S. 979 (Cent. Crim. Ct. 1849); Phelps v.

Prew, 3E.&B.430, 118E.R. 1203(Q.B. 1854).

'" Regina v. Leatham, 8 Cox C.C. 498. at 501. [1861-73] All E.R. Rep. 1646. at
1648 (Q.B. 1861) (Crompton J.). See also Lord Ashburton v. Pape. [ 191312 Ch. 469. at
473, 82 L.J. Ch. 527, at 529 (C.A.).
'4 But see Regina v. Pamenter. 12 Cox. C.C. 177 (Assizes 1872).
15 [1934] 2 K.B. 164. 103 L.J.K.B. 223. For the law of New Zealand see
McFarlane v. Sharp, [1972] N.Z.L.R. 838 (C.A.).
6 Pringle v. Bremner, 5 Macph. 55 (Ct. Sess. 1867).
17 Dillon v. O'Brien. 20 L.R. Ir. 300 (Ex. 1887).
 Ottawa Law Review [Vol. 13:2

otherwise be unlawful, if it appears in fact that such documents were

evidence of a crime committed by any one ...." 8
Although this case did not directly involve the admissibility of
evidence, Cowen and Carter, in their book on evidence, regard it as firm
authority for the view that "evidence produced through an illegal search
or seizure is nevertheless admissible in evidence if relevant." 19 It was by
no means beyond controversy that the rule embodied in the judgment in
Elias was entrenched in English law at the time that case was decided."0
However, the formulation of the rule in unequivocal terms by Horridge J.
has decisively influenced the subsequent course of English judicial
authority, culminating in the pronouncement by the Privy Council. 2" It
may be noted that the principle of law emerging from the judgment in
Elias is at variance with authority in the Australian jurisdiction of
Victoria,2 2 and is, in any event, open to the objection that the liberty of
the subject is gravely imperilled by the reception, against A, of evidence
discovered in the course of an illegal search of premises belonging to B .12
Proposition One is substantiated by explicit authority in Canada.
This view has been taken in Ontario, 2 4 Alberta,25 and Manitoba, 6 and
has been affirmed by the Supreme Court of Canada without reservation. 7
An isolated decision 28 embodying a contrary principle has been
29
subsequently overruled .
In South Asian jurisdictions like India, Burma and Sri Lanka,
relevancy has been expressly adverted to as the criterion governing
admissibility, irrespective of any taint attaching to the means by which
evidence is procured. A distinctive feature of the law in these
jurisdictions is that matters affecting the admissibility of evidence are
regulated by statutory provisions, and "it is for the legislature alone to

Supra note 15, at 173, 103 L.J.K.B. at 227.

19 Z. COWEN & P. CARTER, ESSAYS ON THE LAW OF EVIDENCE 82 (1956).
20 See Entick v. Carrington, 19 St. Tr. 1029, 95 E.R. 807 (K.B. 1765).
21 Supra note 7.
22 Levine v. O'Keefe, [1930] V.L.R. 70 (S.C. 1929).
21 Wade, Police Search, 50 L.Q.R. 354 (1934).
2' Rex v. Honan, 26 O.L.R. 484, 6 D.L.R. 276 (C.A. 1912).
25 Rex v. Moore, [1922] 1 W.W.R. 629, 63 D.L.R. 472 (Alta. C.A.); Rex v.
McIntyre, [1951] 3 W.W.R. 552, [1952] 2 D.L.R. 713 (Alta. S.C.); Rex v. Nelson,
[1922] 2 W.W.R. 381, 69 D.L.R. 180 (Alta. S.C.); Rex v. Gibson, [1919] 1 W.W.R.
614, 30 C.C.C. 308 (Alta. S.C.).
26 Rex v. Lee Hai, [1935] 2 W.W.R. 177, [1935] 3 D.L.R. 448 (Man. C.A.); Rex
v. Duroussel, [1933] 1 W.W.R. 278, [193312 D.L.R. 446 (Man. C.A.).
27 Attorney General of Quebec v. Begin, [19551 S.C.R. 593, [1955]
5 D.L.R.
394.
28 Rex v. Ollassoff, [192913 W.W.R. 707, [1930] 1 D.L.R. 830 (Sask. C.A.).
2, Rex v. Kostachuk, [1930] 2 W.W.R. 464, 24 Sask. L.R. 485 (C.A.). See also
Cotroni v. Quebec Police Comm'n, [1978] 1 S.C.R. 1048, 80 D.L.R. (3d) 490 (1977);
O'Connor v. The Queen, [1966] S.C.R. 619, [1966] 4 C.C.C. 342, 57 D.L.R. (2d) 123;
Regina v. Foil, 21 W.W.R. 481, 118 C.C.C. 43 (Man. C.A. 1957); Paris v. The Queen,
118 C.C.C. 405, 26 C.R. 138 (Que. C.A. 1957); Regina v. Steeves, [1964] 1 C.C.C.
266, 42 D.L.R. (2d) 335 (N.S.S.C. 1963).
1981] Admissibility of Illegally-ObtainedEvle'ce

decide whether in the interests of the community the admissibility of

evidence improperly obtained should be curtailed. ' 3 A Divisional
Bench of the Supreme Court of Sri Lanka,' which finally resolved a
sustained conflict of judicial opinion in the country, emphasized that
statutory provisions constituted the exclusive source of the applicable
law.
There is no provision in the Evidence Ordinance which renders a
relevant fact (such as the detection of an offence) inadmissible merely
because the fact has been discovered in the course of an illegal search....
[Iun the present state of the law. relevant evidence can be ruled out ab tn tto
on the ground that it was obtained by improper means."
In India it has been held that - [a]ny irregularity or illegality in the
search can neither vitiate the trial nor affect a conviction. "' A
comparable approach is reflected in Burmese authorities.
In Sri Lanka the principle has been baldly stated that [e ]vidence
which is legally admissible does not cease to be admissible merely
because that evidence was discovered by an officer who did not comply
with the requirements of the law when searching premises.' "" It has been
observed by the courts of Sri Lanka that "[d lisregard of the provisions of
law by a police constable may amount to an offence but cannot possibly
affect the competency of the officer in question as a witness' 1, 3 and that
"[i ]t does not follow that, because [an officer conducting a search I could
be resisted, the evidence given by that person regarding a sale detected
by him is not admissible." 37 This reasoning is supported by a cursits
curiae.3 8 In a case decided under the Excise Ordinance it was declared
that "[a] prosecution otherwise properly constituted is not vitiated by the
mere fact that the discovery was made by a person who entered the
premises otherwise
39
than in accordance with the provisions of the Excise
Ordinance." ,

30 Karalina v. Excise Inspector. Matara. 52 C.L.R. 89. at 91 (Ceylon S.C. 1950)

(Gratiaen J.).
-" Rajapakse v. Fernando, 52 C.L.R. 361 (Ceylon S.C. 1951).
32 Supra note 30. at 90 (Gratiaen J.).
33 Emperor v. Ali Ahmad Khan. 46 Indian L.R. Allahabad 86, at 87 (H.C. 1923)
(Sulaiman J.). See also Emperor v. Allahdad Khan. 35 Indian L.R. Allahabad 358 (H.C.
1913).
31 Chwa Hum Htive v. King-Emperor. II Indian L.R. Rangoon 107 (H.C. 1932).
35 Silva v. Menikrala, 9 C.L. Rec. 78. at 79 (Ceylon S.C. 1928) (Garvin J.).
31 Ekanayaka v. Deen. 18 C.L.W. 60 (Ceylon S.C. 1940).
37 Appuhamy v. Food & Price Control Inspector. 48 C.L.R. 521. at 522 (Ceylon
S.C. 1947).
38 See, e.g.. Singho v. Inspector of Police. Veyangoda. 42 C.L.W. 15 (Ceylon
S.C. 1949).
39 Sub-Inspector of Police. Mirigama v. Singho, 4 T.L.R. 71 (Ceylon S.C. 1926).
Seealso Bandarawella v. Carolis Appu. 27 C.L.R. 401 (P.C. 1926) (Ceylon).
 Ottawa Law Review [Vol. 13:2

Also, in Sri Lanka there has been some judicial authority in support
of the contrary view.4" The rationale underlying this approach has been
succinctly formulated:
[I]t is apparent that the only way in which the object of the Legislature can be
achieved and ... officers confined to ... their powers within the limits
permitted to them by law is by the Courts refusing to take cognizance of and
disregarding evidence that may have been improperly or illegally obtained as
a result of an unlawful or unauthorized entry upon premises.4
But this view is no longer valid. A Divisional Bench of the Supreme
Court, having drawn attention to provisions of the Sri Lanka laws of
evidence which require the exclusion of certain types of evidence (for
example, some categories of confessions, evidence relating to the bad
character of the accused, and evidence ruled out by privilege), observed:
"Subject to such special restrictions, under our law of evidence, relevant
evidence cannot be shut out when tendered by a party to the proceedings
through the mouth of a competent and compellable witness." 42
Support for this view can be derived from the structure and content
of the codes of evidence based on the Indian Evidence Act of 1872, itself
modelled by Sir Fitzjames Stephen. 43 These codes are applicable in
India, Malaysia, Singapore and Sri Lanka. Two considerations are
relevant. First, these statutes, being not merely fragmentary enactments
but consolidating legislation repealing all rules of evidence other than
those expressly preserved in the codes, contain the whole law of
evidence, except where the legislature in other enactments has provided
otherwise. Consequently, it is not legitimate, save in the event of a castis
onissus, to import into the statutes regulating the reception of evidence
principles derived from public policy. Secondly, reference has been
made to the principle that "[a] rule of law, once established, ought to
remain the same till it be annulled by the Legislature, which alone has
power to decide on the policy or expedience of repealing laws, or
suffering them to remain in force." 44
A similar approach to the problem seems to have been adopted by
the courts of Scotland until the middle of the present century. In one
case45 the Scottish court declined to consider whether the search was
lawful or not, on the ground that its finding on this issue could have no

40 Murin Perera v. Wijesinghe, 51 C.L.R. 377 (Ceylon S.C. 1950); Andiris v.

Wanasinghe, 52 C.L.R. 83 (Ceylon S.C. 1950); Appuhamy v. Weerasooriya, 52 C.L.R.
87 (Ceylon S.C. 1950).
" Andiris, id. at 87 (Nagalingam J.). See also Zilva v. Sinno, 17 C.L.R. 473
(P.C. 1914) (Ceylon).
42 Supra note 31, at 364 (Dias S.P.J.).
'3 For an analysis of the Indian Evidence Act of 1872, see J. STEPHEN, AN
INTRODUCTION TO THE INDIAN EVIDENCE ACT (1893).
" Janson v. Driefontein Consol. Mines Ltd., [1902] A.C. 484, at 491. 71
L.J.K.B. 857, at 861 (H.L.) (Lord Halsbury L.C.), quoted with approval by the
Supreme Court of Sri Lanka in Rajapakse, supra note 31.
15 Crook v. Duncan, 2 Adam. 658 (Ct. Just. 1899).
1981] Admissibility of lllegally-ObtainedEvihle

bearing on the admissibility of evidence obtained in consequence of the

search. In another case 4 6 the Court of Justiciary was satisfied that the
search was entirely lawful, but added. obiter, that the position regarding
admissibility of evidence would not have been different had it reached
the opposite conclusion on this point. Consistent with this approach,
fingerprints obtained from the accused in violation of an imperative legal
requirement relating to the obtaining
47
of a search warrant have been
admitted in evidence in Scotland.
A rule of inclusion of evidence despite the unlawful manner in
which it was obtained has been applied in some South African decisions.
The Cape Provincial Division has explicitly adopted this approach. 4"
Indeed, the suggestion has been made by the Cape courts that the
exclusionary doctrine is peculiar to American law and is attributable to
'the sanctity which the Americans attach to their Constitution."'

B. Proposition Two: If evidence is obtained by illegalaction, it is

never admissible.

1. United States
Proposition Two is exemplified by authority in the United States
where the development of the law has taken place within the framework
of fundamental rights enshrined in the Constitution.
The fourth amendment to the American Constitution declares:
The right of the people to be secure in their persons. houses, papers and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Protection of this right has been thought to necessitate exclusion, in trials
before federal courts, of evidence obtained in a manner repugnant to the
Constitution. The reason stated was that
[i]f letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offence, the protection of the Fourth
Amendment is of no value and. so far as those thus placed are concerned.
might as well be stricken from the Constitution. ;

The theory founded on the concept of "fruit of the poisonous tree"

has been conducive, in the United States, to a wide interpretation of the

46Hodgson v. Macpherson. [1913] S.C. 68 (Ct. Just.).

17Adair v. M'Garry, [1931-35]Just. Cas. 72 (1933).
41 Rex v. Brown. [1935] S. Afr. L.R. (C.P.D.) 286 (S.C.I; Rex v. Mabuya.
[1927] S. Afr. L.R. (C.P.D.) 181 (S.C.).
" Mabuva. id. at 182 (Gardiner J.P.).
'o Weeks v. United States. 232 U.S. 383. at 393 (1914) (Day J.). The initial
formulation of the exclusionary rule in American law appears to have been made in a
forfeiture proceeding: Boyd v. United States. 116 U.S. 616 (1886).
 Ottawa Law Review [Vol. 13:2

exclusionary doctrine which envelops all evidence indirectly derived

from infraction of the fourth amendment A' This has led to the rejection
not only of real evidence, but also of oral evidence such as statements
made to the police during an unlawful search of premises."'

In recent times, however, the exclusionary rule has been trenchantly criticized by
Chief Justice Warren Burger both in the decided cases and ex cathedra. In Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
Burger C.J. (dissenting) denounced the principle of exclusion as "the suppression
doctrine", id. at 413, which he described as "conceptually sterile", id. at 415. The
Chief Justice has commented:
Some of the most recent cases in the Supreme Court reveal, almost
plaintively, an unspoken hope that if judges say often and firmly that
deterrence is the purpose, police will finally notice and be deterred.

I suggest that the notion . . . was never more than wishful thinking m the
part of the courts.

We can well ponder whether any community is entitled to call itself an

''organised society" if it can find no way to solve the problem except
by
suppression of truth in the search for truth.
Burger, Who Will Watch the Watchman?, 14 AM. U.L. REV. 1, at 11, 12, 23 (1964).
For a defence of the exclusionary rule, see Wilkes, A Critique of Two Arguments
Against the Exclusionary Rule: The Historical Error and the Comparative Myth, 32
WASH. & LEE L. REV. 881 (1975).
The English and American approaches are contrasted by Farrar, Aspects of Police
Search and Seizure Without Warrant in England and the United States, 29 U. MIAMI L.
REV. 491 (1975). See generally Baade, Illegally Obtained Evidence in Crininal and
Civil Cases:A Comparative Study of a Classic Mismatch, 51 TEX. L. REV. 1325 (1973)
and 52 TEX. L. REV. 621 (1974).
The Royal Commission on Criminal Procedure in England and Wales headed by
Sir Cyril Philips observed:
On the basis of American experience and also on that of the breathalyser law,
we believe that an automatic exclusionary rule would give rise to an increase
in disputes about the admissibility of evidence (with adverse consequences
for trial delays). There would thus be an increase in court time spent on
matters which are not concerned with the innocence or guilt of the accused;
which would risk a diminution of public respect for the institutions of
criminal justice.
REPORT OF THE ROYAL COMMISSION ON CRIMINAL PROCEDURE IN ENGLAND AND WALES
114 (Cmd. 8092, 1981).
The American Law Institute has proposed a qualification to the automatic
exclusionary rule which would permit its invocation without discretion only if the
violation was "gross, wilful, and prejudicial" to the accused: see A MODEL CODE OF
PRE-ARRAIGNMENT PROCEDURE, s. 160.7(2)(a) (1975). See also the "reverse onus
exclusionary rule" suggested by the AUSTRALIAN LAW REFORM COMMISSION, CRIMINAL
INVESTIGATION: REPORT No. 2, AN INTERIM REPORT 141 (1975).
The central paradox inherent in these divergent approaches is that it is just in the
most serious cases that the police will want to bend the rules. Yet, there it is most
improbable that the courts will in fact exclude evidence unless a categorical exclusionary
rule operates.
)' Brewer v. Williams, 97 S.Ct. 1232 (1977). See also Silverthorne Lumber Co.
v. United States, 251 U.S. 385 (1920).
2 Wong Sun v. United States, 371 U.S. 471 (1963).
1981] Admnissibility of Illegally-Obtatned Evidence

American law, the structure of which furnishes a basic contrast with

English law on account of the relevance of constitutional provisions, is
complicated by four major factors.
First, the limitations on the scope of the exclusionary doctrine are
complex and involve, to some extent, conflict with the objectives of the
fourth amendment. Thus, the exclusionary rule does not apply if
evidence has been unlawfully obtained from a third person.' Moreover,
illegally-obtained evidence may be used to impeach the testimony of a
witness for the defence, even though it would not be received for the
purpose of securing a conviction." An accused is disentitled to the
protection of the exclusionary rule if the evidence was obtained through
an invasion of the rights of another.---- The rule is inapplicable in
circumstances where the evidence was obtained by a private individual
instead of a state official. 56 Nor is it operative where the evidence is
admitted not on the issue of the accused's guilt but on some collateral
issue). 7 It is evident that these qualifications' represent, cumulatively, a
significant erosion of the protection conferred on a defendant in criminal
proceedings by the fourth amendment.
A procedural limitation is embedded in the rule, laid down by the
Supreme Court of the United States, that a pretrial motion to suppress or
return evidence procured through illegal searches and seizures is a
condition precedent to an objection to admissibility." ' An analogous
restriction seems to have been incorporated in the Australian case law.'"
It may be noted that the American courts have resorted to the fifth
amendment precluding compulsory self-incrimination for the enforce-
ment of the substantive rights guaranteed by the fourth amendment. The
Supreme Court has regarded the principle as well settled that "'when
properly invoked the Fifth Amendment protects every person from
incrimination by the use of evidence obtained through a search and
seizure made in violation of his rights under the Fourth Amendment., "'
Secondly, the interpretation of constitutional provisions in this
context by the American courts has entailed linking the exclusionary
rules of evidence with the concept of trespass in the law of tort. For a

. Lefkowitz v. United States Attorney. 52 F. 2d (2d Cir. 193 1). The exclusionary
rule does not apply if the impugned evidence comes from a remote or independent
source: Nardone v. United States. 308 U.S. 338 (1939).
. Walder v. United States. 347 U.S. 62 (1954).
5 Alderman v. United States. 394 U.S. 165 (1969). But see People %.Martin, 290
P. 2d 855 (Cal. 1955).
.11Burdeau v. McDowell. 256 U.S. 465 (1921).
. Harris v. New York. 401 U.S. 222 (1971).
. See also On Lee v. United States. 343 U.S. 747 (1952); United States v.
Rabinowitz, 339 U.S. 56 (1950): Trupiano v. United States, 334 U.S. 699 (1948).
Goldman v. United States. 316 U.S. 129 (1942).
Weeks, supra note 50.
60 Miller v. Noblet. [1927]S.A.S.R. 385 (S.C.).
61 Agnello v. United States. 269 U.S. 20. at 33-34 (1925t. See alho Davis .
United States. 328 U.S. 582 (1946):Bovd. supra note 50.
 Ottawa Law Review [Vol. 13:2

long time it was thought that wiretapping from outside the accused's
premises could not be construed as an infringement of the fourth
amendment because it was incapable of being categorized as a search or
seizure.6 2 The underlying assumption was that the fourth amendment
applied exclusively to evidence procured by physical intrusion or by
electronic devices penetrating into premises. 3 Where federal agents in a
room adjoining that in which the defendants were present attached a
detectaphone to the partition wall and overheard conversations, it was
held by a majority that the evidence was admissible. 6 1
The requirement of trespass, which has crucially circumscribed the
ambit of the protection available to the accused, has been discarded in
subsequent decisions.6 In keeping with these authorities the criterion is
whether the acts of the government or its agents "violated the privacy
upon which [the accused] justifiably relied.' 6 6 No importance is attached
to the consideration of whether or not the violation had taken place in a
manner which involved trespass.
Thirdly, the American cases reflect a distinction between modes of
unlawful search which represent, per se, a denial of due process, and
those which do not. Distinct principles have been applied to these
situations. In a leading case 6 7 state police broke into the accused's home
and attempted forcibly to remove drug capsules from his mouth. Having
failed, they took him to hospital and removed the capsules by forcing an
emetic into his stomach by means of a tube. The Supreme Court observed
that "[i]t has long ceased to be true that due process of law is heedless of
the means by which otherwise relevant and credible evidence is
obtained.' '68 Cowen and Carter note that this case was not treated by the
Court as an illegal search and seizure case, 69 and that" [t]he decision was
rested simply upon the ground that certain methods of obtaining evidence
were of themselves a simple denial of due process. "70 In these
circumstances the exclusion of evidence was considered compulsory.
Finally, the opinions of federal and state courts have often revealed
considerable divergence. Difficulties have arisen, in part, from the
fourteenth amendment. The issue has been whether the "liberties"
guaranteed by the first eight amendments are liberties within the
fourteenth amendment's guarantee that a state shall not "deprive any
person of life, liberty, or property, without due process of law." In
conformity with a ruling by the Supreme Court that only rights "implicit

612Supra note 2.
63 Silverman v. United States, 365 U.S. 505 (1961).
64 Goldman, supra note 58. But see Nardone, supra note 53; Weiss v. United
States, 308 U.S. 321 (1939).
651See, e.g., United States v. White, 401 U.S. 745 (1971).
66 Katz v. United States, 389 U.S. 347, at 353 (1967).
67 Rochin v. California, 342 U.S. 165 (1952).
68 Id. at 172 (Frankfurter J.).
69 Supra note 19, at 76.
70 Id.
1981] Admissibility of Ilegally-ObtainedEvidence

in the concept of ordered liberty" fell within the fourteenth amend-

ment, 7' the whole of the fourth amendment has been held to guarantee
such rights, and, consequently, to be binding on the states as well as the
federal government.
In a case where police went to the defendant's office without a
warrant and seized his appointment book and a list of his patients, it was
held by the Supreme Court that state courts were exempt from the
exclusionary doctrine. 72 The accepted view at one time was that evidence
was admissible when it was illegally obtained by a state, and not by a
federal, officer. 73 Further curtailment of the rights of the accused on
account of the dichotomy between federal and state jurisdictions was
inherent in the "silver platter" doctrine. The effect of this was that the
reception of evidence in federal courts was countenanced where the
evidence had been obtained unconstitutionally by a state officer and later
transmitted to the federal prosecutor. This doctrine has since been
abrogated by the Supreme Court. 74 The logical culmination of this
approach was reached in the ruling that no discrimination was
permissible in regard to invocation of the exclusionary doctrine between
federal and state courts. 75 It is beyond controversy today that state courts
are equally bound by the exclusionary rule.7 6

2. South Africa

Some South African authorities exemplify the approach in Proposi-

tion Two. It has been held in the Transvaal that evidence obtained by
compelling the accused to compare his foot with footprints at the scene of
the crime was inadmissible, 7 and that fingerprint evidence taken from
accused persons under compulsion could not be received."r
A similar conclusion has been reached in Natal. 7 9 Where conviction
for a statutory offence was based on the perusal of books belonging to the
accused, which he could not be compelled to produce, an acquittal was
entered on appeal on the ground that the conviction rested on
inadmissible evidence. 80

"' Palko v. Connecticut. 302 U.S. 319. at 325 (1937 (Cardozo J.).
.2 Wolf v. Colorado. 338 U.S. 25 (1949).
73 Schwartz v. United States. 344 U.S. 199 (1952): Lustig v. United States, 338

U.S. 74 (1949): Gambino v. United States. 275 U.S. 310 (1927); Byars v. United States.
273 U.S. 28 (1927).
71 Elkins v. United States. 364 U.S. 206 (1960).
75 Mapp v. Ohio, 367 U.S. 643 (1961).
76 The decisions in Ohnstead. supra note 2. & Schwartz, supra note 73, are

inconsistent with Katz. supra note 66. & Wt'hite. supra note 65.
7 Rex v. Maleleke, [1925]S. Afr. L.R. 491 (Transvaal S.C.).
71 Coleman v. The King, [1907]T.S. 535 (Transvaal S.C.).
7' Goorpurshad v. The King, 35 Nat. L.R. 87 (S.C. 1914).

80 Rex v. Sulski, [1935] S. Afr. L.R.292 (Transvaal S.C.). See a1%o State ',
Lwane. [1966]2 S.Afr. L.R. 433. at 444 (S.C.).
 Ottawa Law Reviet[ [Vol. 13:2

These cases, however, do not support the general proposition that

evidence obtained by illegal searches and seizures is inadmissible. The
authorities are explicable on the narrow ground that transgression of the
privilege against self-incrimination, which is part of the common law of
South Africa, 81 was the effective basis of exclusion of evidence.
Evidence of a palmprint taken from the accused by compulsion has been
held admissible by the Appellate Division on the ground that the
privilege against self-incrimination was not contravened. 82 Watermeyer
J. A. observed: "Now, where a palm print is being taken from the
accused person, he is . . .entirely passive. He is not being compelled to
give evidence . . . when his photograph is being taken or when he is put
upon an identification parade or when he is made to show a scar in
court. ' ' 83 In circumstances where no breach of the privilege against
compulsory self-incrimination is demonstrable, the courts of the Cape
have shown themselves inclined to admit relevant evidence although it
had been obtained by illegal means. 84 On the other hand, it has been held
in the Witwatersrand that privileged documents taken from the office of
the accused's attorney are not admissible at the trial. 85
The condition of South African law is exposed to criticism in terms
of policy. The courts of the Transvaal have been prepared to receive, as
substantive evidence, property which was discovered on the premises of
the accused persons during an illegal search. 86 But confinement of the
exclusionary rule to circumstances falling within the purview of the
doctrine against self-incrimination is anomalous in principle.
It appears difficult, once Wigmore's limitation of the protection of
self-incrimination privilege to a witness is abandoned, to see any meaningful
difference between the cases in which a man is compelled to give his
finger-prints, to submit to medical examination, to submit his books for
examination, or to stand by while police illegally ransack his house for
evidence.87
It is relevant to note that the use of compulsion in connection with an
illegal search has been expressly alluded to in the South African
authorities as a factor requiring the exclusion of evidence discovered
during the search. 8 8 It is submitted that a legal system which rules out
evidence on the basis of illegal compulsion brought to bear on the

81 A. DOWD, THE LAW OF EVIDENCE IN SOUTH AFRICA 94(1963).

82 Exparte Minister of Justice: In re Rex v. Matemba, [1941] S.A., S.A.L.R. 75
(App. Div. 1940).
83 Id. at 82-83.
8 Supra note 48.
8 Andresen v. Minster of Justice, [1954] 2 S. Afr. L.R. 473 (Witwatersrand
Local Div. 1953).
86 Rex v. Uys, [1940] S.Afr. L.R. 405 (Transvaal S.C.). On the exercise of
judicial discretion in S. Africa, see Regina v. Small, [1968] 3 S. Afr. L.R. 561
(Rhodesia App. Div.); State v. Kearney, [1964] 2 S.Afr. L.R. 495 (App. Div.); Regina
v. Ananias, [196313 S. Afr. L.R. 486 (Rhodesia H.C.).
87 Supra note 19, at 99.
88 Supra note 86.
1981] Admissibility of Illegally-Obtained Evide'nc 321

accused cannot, in harmony with sound policy, apply a different

principle in respect of evidence procured by means of an unlawful search
not entailing duress or compulsion. No discrimination is legitimate
between the objectives of policy appropriate to these contexts.
It was seen that Propositions One and Two are each reinforced by
cogent considerations of policy. The former principle is defensible from
the standpoint of protection of the collective interest of the community:
"When evidence tending to prove guilt is before a court, the public
interest requires that it be admitted. It ought not to be excluded upon the
theory that individual rights under these constitutional guaranties are
above the right of the community to protection from crime."" In Burma
it has been pointed out that "the acquittal of a guilty accused is just as
much a miscarriage of justice as the conviction of an innocent person.""
The justification for the latter approach has been spelt out convincingly
by a Scottish judge:
In a country where a system of criminal jurisprudence prevails which protects
the individual against unfair extraction of evidence from him, one would
naturally expect that the obtaining and use of such evidence by the police
would be regulated by provisions which would protect the individual against
any unfair use thereof. -'
A South African court has supported this conclusion on the basis that the
contrary view "would be tantamount to adopting the obnoxious principle
that the means justify the end, and that the Crown could avail itself of and
connive at the commission of one crime to prove another.' -,

C. PropositionThree: The trialjudge should have discretion whether or

not to admit evidence obtained illegally'

This proposition is the product of a compromise between the

divergent postulates reflected in Propositions One and Two, and is
generally reflected in the contemporary law of England and Scotland.
There is, however, a difference in regard to the reasoning adopted by the
two systems.
In England, relevant evidence is admissible in law whether illegally
obtained or not, but it has been suggested that the exercise of discretion is
required in order to decide whether, even though admissible, it should be
excluded in fairness to the accused."' In Scotland, it is for the court to
exercise its discretion in each case, untrammelled by a general principle
favouring admissibility. 4

" State v. Reynolds. 125 A. 636. at 639 (Conn. Sup. Ct. Err. 1924). See also
Irvine v. California. 347 U.S. 128 (1954).
90 Supra note 34, at 109 (Baguley J.).
' Supra note 47, at 86 (Lord Hunter. dissenting).

12 Supra note 77. at 536 (Krause J.).

11 King v. The Queen. [19691 A.C. 304. [196813 W.L.R. 391 (P.C.) (Jamaica).
14 Supra note I.
 Ottawa Law Review [Vol. 13:2

The availability of discretion to the English courts to exclude

technically admissible evidence in the interest of achieving a fair and
impartial trial of the accused, is conceded by a strand of judicial opinion.
Cases involving evidence obtained by unlawful methods can, in
principle, be accommodated within the ambit of this discretion. The
English Court of Criminal Appeal has observed: "There is, of course,
ample authority for the proposition that a judge has an overriding
discretion to exclude evidence, even if such evidence is in law
admissible." 9 5 However, a similar view, echoed by a Divisional Court of
the Queen's Bench Division, 96 is incompatible with the recent rejection
of the discretionary principle, in its application to unlawfully obtained
evidence other than confessions and admissions, by the House of Lords.
In Scotland, the principle has been laid down that "[a]n irregularity
in the obtaining of evidence does not necessarily make that evidence
inadmissible." '9 7 The clear implication, then, is that there are cir-
cumstances in which the exclusion of relevant evidence unlawfully
obtained is warranted. A distinguished Scottish judge has asserted that,
in the absence of any absolute rule, the question is one of degree and that
"[w]hether any given irregularity ought to be excused depends upon the
nature of the irregularity and the circumstances under which it was
committed.' '98
The salient feature of the approach reflected in Proposition Three is
its flexibility. The crux of this solution is that a uniform principle capable
of mechanical application is inappropriate, and that the diversity of the
elements of policy relevant to divergent factual contexts makes necessary
the use of a substantial measure of discretion by the courts.
The principle established in Australia, however, is significantly less
rigid than that applied by the courts of England. The House of Lords has
asserted uncompromisingly that "[h]owever much the judge may dislike
the way in which a particular piece of evidence was obtained before
proceedings were commenced, if it is admissible evidence probative of
the accused's guilt it is no part of his judicial function to exclude it for
this reason." 99 The High Court of Australia has regarded as considerably
more complex "the controversial question whether evidence which is
relevant should be rejected on the ground that it is come by unlawfully or
otherwise improperly."' 10 0 The essence of the Australian approach is that

I95Regina v. Rumping, [1962] 2 All E.R. 233, at 236, [1962] 3 W.L.R. 763, at
768 (C.A.).
96 Callis v. Gunn, [196411 Q.B. 495, at 502, [196313 All E.R. 677,
at 681 (Lord
Parker C.J.). For the present law, see Regina v. Sang, [1979] 2 All E.R. 1222, [19791 3
W.L.R. 263 (H.L.), affg [197912 All E.R. 46, [1979] 2 W.L.R. 439 (C.A.). See also
Regina v. King, [1980]CRIM. L. REV. 40 (C.A.).
97 H.M. Advocate v. M'Guigan, [1936-40] J.C. 16, at 18 (Ct. Just. 1935) (Lord

Aitchison).
9' Supra note 1, at 40 (Lord Cooper).
9" Sang,supra note 96, at 1230, [1979]3 W.L.R. at 271 (H.L.).
100 Wendo v. The Queen, 109 C.L.R. 559, at 562 (Aust. H.C. 1963) (Dixon
C.J.). For examples of the use of discretion in Australian jurisdictions, see Regina v.
 1981] Admnissibility of llegally-ObtainedEvide'nce 323

the court "'would be bound to consider whether or not in point of

discretion in all the circumstances the evidence should be received."' 0'
This involves the
weighing against each other of two competing requirements of public policy,
thereby seeking to resolve the apparent conflict between the desirable goal of
bringing to conviction the wrongdoer and the undesirable effect of curial
approval, or even encouragement. being given to the unlawful conduct of
those whose task it is to enforce the law. ' -

III. FACTORS GOVERNING THE EXERCISE OF DISCRETION BY THE

COURTS

Since the courts of most modern jurisdictions unfettered by

constitutional provisions eschew "principles within the framework of an
unqualified maxim", °3 and opt for greater malleability in their approach
to the problem, it is of practical importance to identify and evaluate the
factors which condition the exercise of judicial discretion in this area.
The existence of circumstances of urgency is a relevant considera-
tion. In a Scottish case, 10 4 police officers investigating an offence called
at the accused's house and were given permission by him to search it.
They removed an attach6 case unconnected with the matter being
investigated but relevant to a later charge of theft. The High Court of
Justiciary held the evidence admissible. Lord Guthrie observed: "'I do
not think that the police officers acted in any way improperly in taking
away that article in order to make further inquiries about it. If they had
not done so, it might have disappeared." , In another case,tOG objection
was taken to the admission at a trial in Scotland of documents seized
during a search of the accused's house under a warrant. The documents
seized were not in the accused's name. The High Court of Justiciary
admitted the evidence. Lord Wheatley declared that the matter was
urgent since the documents might be lost or deliberately destroyed, as the

Hass, [1972] 1 N.S.W.L.R. 589 (C.A.): Regina v. Demicoli. [1971 ]Qd. R. 358 (S.C.).
Regina v. McNamara, [1963 ] V.R. 402 (S.C. 1962).
101 Merchant v. The Queen. 126 C.L.R. 414, at 418 (Aust. H.C. 1971) (Barwick
C.J.).
102 Bunning v. Cross, 141 C.L.R. 54. at 74 (Aust. H.C. 1978) (Stephen & Aickin
JJ.).
This approach has been adopted in subsequent Australian decstons: see Phillips .
Cassar, [197912 N.S.W.L.R. 430 (C.A.): Regina v. Padman. 25 A.L.R. 36 (Tas. S.C.
1979).
103 Supra note 1. at 39. For Australian law, see Regina v. Banner. (19701 V.R.
240 (S.C. 1969); Regina v. Weir. [1973] Qd. R. 496 (Crim. Ct.): for New Zealand. see
Mathewson v. Police. [1969]N.Z.L.R. 218 (S.C.).
104 H.M. Advocate v. Hepper. [1958-59]J.C. 39 (Ct. Just. 1958).
105 id. at 40.
106 H.M. Advocate v. M'Kay. [1961 ]J.C. 47 (Ct. Just.).
 Ottawa Law Review [Vol. 13:2

accused had escaped from Scottish prison custody pending the charge and
had been living under a false name.
Where a warrant was granted to two police doctors to examine the
accused's teeth to see if they corresponded with marks on the body of a
murdered girl, the High Court of Justiciary held that, even if the warrant
was not legal, the medical evidence had been properly admitted because
"there was in this case an element of urgency, since a visit to a dentist or
an injury to the accused's teeth could have destroyed the evidence." 07 In
an Irish case, 10 8 Kingsmill Moore J., in his enumeration of the indicia
pertinent to the exercise of the court's discretion, included whether there
were circumstances of urgency or emergency which provided some
excuse for the action. In Scotland, 10 9 a warrrant was granted to search for
documents in the possession of the accused, an accountant. The warrant
was limited to documents relating to a particular client of the accused,
but other documents were seized. It was held that the latter were not
admissible in evidence because they had been obtained by an illegal
search or seizure. One of the reasons given by Lord Guthrie for this
decision was the lack of circumstances of urgency.
The nature and degree of the illegality committed may have some
bearing on the question of admissibility of evidence. The Irish courts
have accepted that, in determining whether the public interest is best
served by the admission or by the exclusion of evidence of facts
ascertained by illegal actions, one of the relevant considerations is
whether the illegality is trivial or technical in nature, or whether it was a
serious invasion of important rights the recurrence of which endanger
necessary freedoms. 11 0
The character of the charge should be considered. The "gravity or
otherwise of the suspected offence""' has been adverted to as a relevant
factor. The difference in popular attitudes prevailing in England and in
the United States is accounted for, to some extent, by the fact that search
and seizure problems have generally arisen in England in the context of
serious crimes like the receiving of stolen goods, while the majority of
American cases involve gambling and the illicit possession of liquor and
drugs 112 - offences which are not obnoxious to the public conscience in
the same degree. In principle, however, this criterion is not supportable.
As the English Court of Criminal Appeal recently pointed out: "The test
cannot logically be different according to the gravity of the crime under

107Hay v. H.M. Advocate, [1968] S.L.T. 334, at 337 (Ct. Just.).

108 Supra note 5.

109 H.M. Advocate v. Turnbull, [1951] S.L.T. 409 (Ct. Just.). See also BTunning,
supra note 102, at 79, where the High Court of Australia pointed out that "the ease with
which the law might have been complied with in procuring the evidence in question"
would "tend against the admissibility of evidence illegally obtained."
11 Supra note 108.
1 Regina v. Murphy, [19651]N.I.L.R. 138 (H.C.).
11 J.HEYDON, CASES AND MATERIALS ON EVIDENCE 251 (1975). For Australian
law, see Bunning, supra note 102, at 80.
1981] Admissibility of flegailly.'-Oblunncd Evuh'm e 325

investigation, with one test for murder or terrorism and another for the
perhaps less serious offence of drunken driving." ,, 3
The nature of the investigation must also be taken into account.
Cartwright C. J. C., in a dissenting judgment delivered in Canada, said:
[T]he nature of the investigation as a result of which the respondent
disclosed the whereabouts of the murder weapon was such as to reflect no
credit on the authorities concerned."' This was stated as a ground for
regarding the evidence which was sought to be admitted as having the
potential to bring the administration of justice into disrepute.
The position of the accused"-', has been mentioned as a factor which
may properly be considered. Such elements as the antecedents, cultural
and educational background, temperament and demeanour of the accused
are probably subsumed in this criterion. So broad an approach, admitting
an infinite range of subjective factors, is open to objection from the
standpoint of policy.
The purpose for which the impugned evidence is sought to be used is
relevant. On behalf of the Court of Justiciary in Scotland, Lord Guthrie
has stated:
[Wihen I consider the matter in the light of the principle of fairness to the
accused, it appears to me that the evidence so irregularly and deliberately
obtained is intended to be the basis of a comparison between the figures
actually submitted to the Inspector of Taxes and the information in the
possession of the accused. If such important evidence upon a number of
charges is tainted by the method by which it was deliberately secured. I am of
opinion that a fair trial upon these charges isrendered impossible. '
The question whether the unlawful search has been conducted by the
police or by some other persons is of marginal importance. In a leading
Scottish case,"i 7 the accused was convicted of using milk bottles without
the consent of the true owners. The Scottish Milk Bottle Exchange Ltd.
carried on the business of collecting and restoring bottles to their true
owners. It was approved by the Scottish Milk Marketing Board. All
contracts between the Board and producers and distributors of milk
provided that the company's inspectors might examine the premises of
any producer or distributor in contractual relations with the Board to
inspect bottles in their possession. Two inspectors displayed their
warrant cards to the accused, who was entitled to refuse them permission
to inspect because she had not entered into a contractual relationship with
the Board. However, she refrained from doing so, and the inspectors
found the bottles. Lord Cooper, holding that the evidence had been
wrongly admitted, said:

'' Sang. supra note 96. at 60-61. [197912 W.L.R. at 455 (C.A.) (Roskill L.J.).
Regina v. Wray. [1971] S.C.R. 272. at 286. 11 D.L.R. (3d) 673, at 684
(1970).
"' Supra note I11. at 139.
116 Turnbull. supra note 109. at 411-12.
117Supra note 1.
326 Ottawa Law Review [Vol. 13:2

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. I"

Acquiescence by the accused to a search made without lawful

authority arguably reduces the cogency of an objection to the reception of
evidence procured by the search. In South Africa, indications that the
accused had vehemently resisted the search have been held, in
conjunction with other factors, to justify exclusion of evidence," 19 while
the lack of any objection to the search has been thought to support the
contrary conclusion.12 0 The High Court of Justiciary in Scotland has
stated as a tentative ground of admission of evidence, "[t]he accused
persons accepted the warrant as authority to search the house for money
or for some trace of it." '21
The question may be considered whether distinctions should be
drawn between evidence obtained by illegal means, depending on
whether the illegality emanates from a rule of the common law, a
statutory rule or a rule entrenched in constitutional provisions.
The Scottish courts have in one instance 2 2 given an unqualified
answer in the negative:
[We] are unable to accept the suggestion that a distinction should be drawn
between the statutory offence, the malum prohibitum, and the common law
crime, the inaluin in se, for the interests of the State are as much involved in
offences against penal statutes as in offences against the
23
common law, and the
former category has greatly expanded in recent times. 1

A similar view has been expressed by the Privy Council, 124 interpreting a
provision of the Jamaican Constitution 2 5 scheduled to a Jamaican
order-in-council. 126 Lord Hodson commented:
This constitutional right may or may not be enshrined in a written
constitution, but it seems to their Lordships that it matters not whether it
depends on such enshrinement or simply upon the common law . . . . In
either event the discretion of the court must be exercised and has not been
taken away by the declaration of the right in written form. 27

118 Id. at 40.

111 Mabuya, supra note 48.
120 Uys, supra note 86.
121 Supra note 106.
122 Supra note 1.
123 Id. at 40.
124 Supra note 93.
123 The Constitution of Jamaica, s. 19.
126 No. 1550 (1962).
127 Supra note 93, at 319, [196813 W.L.R. at 401.
1981] A dmissibility of Illegally-ObtainedEvidlence

In contrast, the American courts, in their development of the

exclusionary doctrine, have been profoundly influenced by the constitu-
tional entrenchment of fundamental rights.'- The Irish Constitution
provides that "[tihe dwelling of every citizen is inviolable and shall not
be forcibly entered save in accordance with law."' 2 1 With reference to
this constitutional provision the Irish courts have observed:
The courts in exercising the judicial powers of government of the State must
recognise the paramount position of constitutional rights and must uphold the
objection of an accused person to the admissibility at his trial of evidence
obtained or procured by the State or its servants or agents as a result of a
deliberate30 and conscious violation of the constitutional rights of the accused
1
person.
Judicial pronouncements in several jurisdictions recognize that the
distinctions under consideration are material. In a Scottish action for
divorce,13 1 where the husband sought to introduce in evidence a letter
from the defendant wife, it was proved that the letter had been posted by
the wife and had been procured illegally by the husband who had stolen it
from the post office. Lord Traynor, delivering the majority judgment
admitting the evidence, emphasized the distinction between common law
crimes and statutory offences. At an Australian trial, 32 a photograph of
the accused which a police officer had wrongly told him he had to have
taken was admitted, as was evidence of a medical examination for which
there was no statutory warrant. Zolling J. said:
[N lot sufficient attention has been paid to the distinction between rules of the
common law and rules laid down by statute. Where the rule said to be
infringed is a rule of the common law or one arising out of case law (or in
States and countries which have the Judges Rules out of the Judges Rules)
then it seems to me it is reasonable for the judges to mould their own law and
their own rules in the light of public policy. Where a power to interfere with a
man's civil rights and to obtain evidence thereby is specifically given by
statute exercisable only on the performance of certain conditions precedent
then to rule that that evidence may be obtained by methods other than those
sanctioned by the statute and then successfully used in court is not simply to
declare the law but to amend the statute and this no judge has any right to
33
do.'
This principle, it is submitted, is better expressed in a more flexible
form. There is no absolute distinction among common law, statute law
and constitutional provisions as the source of the sanction of illegality.
Nevertheless, acts in breach of a statute could more readily warrant the
rejection of evidence as a matter of discretion: or the statute or
constitutional provision may, on its proper construction, itself impliedly
forbid the use of evidence procured in breach of its terms.

128 Weeks,supra note 50.

129 Constitution of Ireland. Art. 40. para. 5.
3I Supra note 108. at 170 (Walsh J.).
13 Rattray v. Rattray, 25 Rettie 315 (Ct. Just. 1897).
132 Regina v. Ireland (No. 1). [1970] S.A.S.R. 416 (S.C.).
133 Id. at 447-48.
 Ottawa Law Review [Vol. 13:2

The subjective animus of the person responsible for the unlawful

search may affect the result. Several factors may be dealt with briefly
under this heading.
Naturally, a deliberate illegality is less easily excused than an
accidental illegality. The Scottish Court of Justiciary, exercising its
discretion in favour of exclusion of evidence, has stated: "The police
officers did not accidentally stumble upon evidence of a plainly
incriminating character in the course of a search for a different purpose.
If the documents are incriminating, their incriminating character is only
exposed by careful consideration of their contents.' ' 13" In another
Scottish case, 135 an inspector employed by the respondents reported his
opinion that the accused was in unlawful possession of salmon in breach
of the Salmon Fisheries (Scotland) Act of 1868, to the Ministry of Food
which had a duty to investigate allegations relating to breaches of the
salmon laws. An official of the Ministry of Food with an official warrant
helped the respondent's inspector to search local cold stores, from one of
which salmon owned by the accused was removed by the respondent's
inspector. Although the latter had no search warrant under the statute, the
evidence was held by the High Court of Justiciary to have been properly
admitted. Lord Cooper observed: "[IIt would have been quite in order
for [the Ministry enforcement officer] to have reported to the proper
authorities any evidence incidentally obtained by him and bearing upon
36
an infringement."' 1
The question whether the unlawful act was intentional or uninten-
tional has been expressly referred to as a relevant consideration in
Ireland. 137 The Irish courts have been disposed to receive evidence on the
ground, inter alia, that "[t]he mistake was a pure oversight.' 38 This
element has been adverted to with emphasis in Australia. The High
Court, referring to an error which made the administration of a
"breathalizer" test unlawful, declared: "Although such errors are not to
be encouraged by the courts they are relatively remote from the real evil,
a deliberate or reckless disregard of the law by those whose duty it is to
enforce it.' 1 3 9 Recently the Criminal Division of the English Court of
Appeal, in a prosecution for an obscene publication, pointed out that the
manner in which evidence had been obtained, although unlawful, was not
oppressive, in that the police had made an error regarding the validity of
40
a warrant for the purpose of entry, search and seizure.
If the unlawful act is intentional, the further question arises whether
it is the result of an ad hoc decision or whether it represents a settled or

134Turnbull. supra note 109, at 411.

13" Fairley v Fishmongers of London, [1951] S. L.T. 54 (Ct. Just. 1950).
136 Id. at 58.
137Supra note 108.
"' 1d. at 161 (Kingsmill Moore J.).
139 Bunning,supra note 102, at 78.
Regina v. Adams, [1980] 1 All E.R. 473, at 480 (C.A. 1979) (Cumming-Bruce
L.J.).
1981] Admissibility of Illegally-ObtainedEvidence

predetermined policy. The courts of Ireland have found it easier to admit

evidence where there has been "'no policy to disregard the provisions of
the Constitution or to conduct searches without a warrant.'""
It is probably relevant to consider whether the motive of the officer
conducting the search was proper or improper. This element has received
emphasis in the Scottish decisions. 42 Reprehensible neglect on the part
of the person making the search, in regard to compliance with the
procedure required by the law, could conceivably tilt the balance in
favour of exclusion of evidence. In another Scottish case, 4 3 the accused
was suspected of blowing open a safe with explosives. Before arresting
and charging him, the police scraped his fingernails for traces of
explosives, which chemical analysis subsequently revealed to be present.
This conduct amounted to assault, since there was no right to search
without warrant before arrest. The High Court of Justiciary held that the
evidence had been wrongly admitted. Lord Cooper made the comment:
This is not a case where I feel disposed to 'excuse" the conduct of the
police. The proper procedure for search of the appellant's house ...was
duly followed out, and it would have been very simple for the police to have
adopted the appropriate procedure in relation to a search of his person. '

The presence of good faith in the person responsible for the search is
inconclusive. Thus, where the inspectors had acted bona fide but it was
incontrovertible that they had obtained the assent of the accused to the
search of her shop by means of a positive misrepresentation made to her,
the evidence discovered during the search was held to have been wrongly
admitted. 4 5
The adequacy or paucity of the grounds on which the search was
made is a pertinent factor. This factor has been emphasized by Lord
Guthrie:
If information was in the hands of the criminal authorities implicating the
accused in other crimes, these could have been mentioned in the petition
containing the warrant under which the search was authorised. If they had no
such information, the examination of private papers in the hope of finding
incriminating material was interference with the rights of a citizen. '
It would ordinarily make a difference whether or not a defendant in
criminal proceedings has been deliberately misled by the person
embarking on the search. The Privy Council, admitting the evidence
objected to in a Jamaican case, said: "'Although the search was not
authorised by the Dangerous Drugs Law or the Constabulary Force Law
there was no evidence that the appellant was wilfully misled by the police

Supra note 108. at 161.

...
142 See supra note 135.
143 M'Govern v. H.M. Advocate. [19501 S.L.T. 133 (Ct. Just.).
144 Id. at 135.
145 Supra note 1.
146 Turnbull. supra note 109. at 411.
330 Ottawa Law Review [Vol. 13:2

officers or any of them into thinking that there was such authorisa-
tion." 4 7 The Australian courts have taken the view that
if the police not only make on an accused person a demand with which he is
not bound to comply, but in addition give him to understand that compliance
is legally necessary, and he complies believing that he has to comply, then
this court should discourage such conduct in the most effective way, namely,
by rejecting the evidence. 48
It is perhaps appropriate to consider whether some trick or deception
has been perpetrated on the accused. This circumstance has sometimes
been taken into account directly. The Scottish courts have asserted that
the principle of fairness to the accused requires consideration in any case
in which the departure from the strict procedure has been adopted by
design with a view to securing the admission of evidence obtained by an
unfair trick. 4 9 Lord Cooper, in a case where the impugned evidence was
admitted, said: "I can find nothing to suggest that any departure from the
strict procedure was deliberately adopted . . . in the present instance the
irregularity ought to be 'excused'."15 The Privy Council, in its opinion
delivered on an appeal from Kenya, mentioned, as a ground for
excluding relevant evidence, that it had been obtained by a "trick."""'
Kingsmill Moore J., admitting evidence of this kind in an Irish case,
said: "I can find no evidence of deliberate treachery, imposition [or]
deceit.' ' 1 52 As a ground for rejecting evidence, the Supreme Court of
Canada has pointed out: "Admittedly, the statement by the accused was
53
procured by trickery, duress and improper inducements." 1
On the other hand, the exclusion of evidence procured by means of a
trick is not necessarily required. Lord MacDermott L.C.J. has expressed
the view that there is
no ground for saying that any evidence obtained by any false representation
or trick is to be regarded as oppressive and left out of consideration.
Detection by deception is a form of police procedure to be directed and used
sparingly and with circumspection; but as a method it is as old as the
constable in plain clothes and, regrettable though the fact may be, the day has
not yet come when it would be safe to say that law and order could always be
enforced and the public safety protected without occasional resort to it.'.'

147 Supra note 93, at 314, [1968] 3 W.L.R. at 396.

148 Supra note 132, at 423 (Bray C.J.).
149 Supra note 1.
.-o Supra note 135, at 58.
Kuruna, supra note 7.
.-2 Supra note 108, at 161. See also Regina v. Atkinson, [1976] CRIM. L. REv.
307 (C.A. 1975).
1"3 Supra note 114, at 305, 11 D.L.R. (3d) at 699.
154 Supra note 111, at 147-48. For S. African law, see State v. Zulu, [1965] 3 S.

Afr. L.R. 802 (Natal Prov. Div.).

1981] A dmissibility of Illegally-ObtaineIdEvidence

The English Court of Appeal has recently stated that evidence should not
be excluded "merely because a trick or misrepresentation has been used
to secure that evidence."" 5
A distinction is sometimes drawn between evidence obtained
unfairly and that obtained illegally. As a rationale underlying this
distinction, it has been suggested that illegally-procured evidence should
be excluded more readily than unfairly-obtained evidence because illegal
acts usually affect both guilty and innocent adversely, while tricks do

155 Sang,supra note 96. at 57. [197912 W.L.R. at 451 (C.A.) (Roskill L.J. .
It is clear that, according to Canadian law. " [a I statement obtained by a trick or
fraud is not inadmissible for that reason, alone, unless the trick, artifice or fraud
involved a promise or threat by a person in authority which conveyed a hope of
advantage or inspired a fear of prejudice." Regina v. Allen (No. 3). 46 C.C.C. (2d) 553.
at 563 (Ont. H.C. 1979) (Goodman J.). This principle is consistently substantiated by
Canadian decisions: Regina v. Rothman. 42 C.C.C. (2d) 377 (Ont. C.A. 1978): Regina
v. Robertson, 21 C.C.C. (2d) 385. 29 C.R.N.S. 141 (Ont. C.A. 1975). "Generally
speaking, it may be said that it is no objection to the admissibility of a prisoner's
confession that it was obtained by means of a trick or artifice practised upon him by the
officer or other person to whom it was made." Rex v. White. 18 O.L.R. 640, at 643, 15
C.C.C. 30, at 33 (C.A. 1908) (Osler J.A.). In Regina v. McLeod. 5 C.R.N.S. 101. at
104 (Ont. C.A. 1968) Laskin J.A. stated: "I do not rule out as a matter of law all
stratagems that the police or persons in authority may employ in questioning a person
under arrest."
The crucial principle in Canadian law is that of voluntariness.
The principle always governs and may justify an extension of the rule [of
exclusion] to situations where involuntariness has been caused otherwise
than by promises. threats, hope or fear. if it is felt that other causes are as
coercive as promises or threats, hope or fear and serious enough to bring the
principle into play.
Horvath v. The Queen. [197912 S.C.R. 376. at 424-25.44 C.C.C. (2d) 385. at 423, 93
D.L.R. (3d) 1, at 40 (Beetz J.). On the test of voluntariness in Canada. se Piche v.The
Queen. [1971] S.C.R. 23. [1970] 4 C.C.C. 27. 11 D.L.R. (3d) 700: De Clercq v. The
Queen. [1968] S.C.R. 902. [196911 C.C.C. 197.70 D.L.R. (2d) 530; Regina v. Fitton,
[1956] S.C.R. 958. 116 C.C.C. 1: Boudreau v. The King, 11949] S.C.R. 262, 94
C.C.C. 1,[1949] 3 D.L.R. 81: Regina v. Precourt. 18 O.R. (2d) 714. 39 C.C.C. (2d)
311 (C.A. 1976): Regina v. Santinon. [1973] 3 W.W.R. 113, 11 C.C.C. (2d) 121
(B.C.C.A.): Regina v. Logue, [1968]20.R. 671. [1969]2 C.C.C. 346 (C.A.); Comeau
v. The Queen, 131 C.C.C. 139. 36 C.R. 351 (N.S.S.C. 1961): Regina v. Vangent, 42
C.C.C. (2d) 313 (Ont. Prov. Ct. 1978). On the admissibility of a statement made in a
state of shock after a serious accident, see Ward v. The Queen. [1979] 2 S.C.R. 30. 94
D.L.R. (3d) 18. In keeping with the applicable principles, the Supreme Court of Canada
has held that a confession made by an accused person charged with murder, on being told
falsely that the victim had regained consciousness and could identify the assailants, was
admissible, provided that nothing was said by a person in authority which would induce
the accused to make an untrue statement in consequence of the deception: Alward v. The
Queen, [1978] 1 S.C.R. 559, 76 D.L.R. (3d) 577 (1977).
Where an exculpatory statement was obtained from the accused by a trick, the
police pretending to release the accused to an officer who had assumed the role of a
bondsman, the Court of Appeal of British Columbia quashed the conviction (Regina v.
Pettipiece, [1972] 5 W.W.R. 129. 18 C.R.N.S. 236 (B.C.C.A.)), not on the basis of
unfair police conduct - the same court had unhesitatingly accepted in evidence
statements made to police "plants" (Regina v. Towler. 65 W.W.R. 549. 5 C.R.N.S. 55
(B.C.C.A. 1968)) - but because of the failure of the trial judge to apply the ordinary
 Ottawa Law Review [Vol. 13:2

not.' -56 Problems connected with the use of unfair means in obtaining
evidence have frequently arisen in the setting of activities instigated by
an agentprovocateur.
The general approach of the English courts to the use of discretion in
excluding evidence in the interest of fairness to the accused has been set
out authoritatively in the following terms:
The principles of the laws of evidence are the same whether applied at civil or
criminal trials, but they are not enforced with the same rigidity against a
person accused of a criminal offence as against a party to a civil action. There
are exceptions to the law regulating the admissibility of evidence which apply
only to criminal trials, and which have acquired their force by the constant
and invariable practice of judges when presiding at criminal trials. They are
rules of prudence ... 157
This principle is applicable with particular force in "similar fact" cases,
since evidence of an analogous situation by its very nature might lead
juries to convict when that evidence, properly analyzed, can be
demonstrated to contain negligible probative value but substantial
prejudicial effect. 58 In all such cases "the judge ought to consider

rules regulating the admissibility of confessions. It has been reasserted in Ontario that
the courts do not have the power to express their disapproval of unfair police conduct by
excluding otherwise admissible evidence: Regina v. Deleo, 8 C.C.C. (2d) 264, 18
C.R.N.S. 261 (Ont. Cty. Ct. 1972).
The Supreme Court of Canada has affirmed that the exclusion of evidence obtained
by unlawful means is not required by the provisions of the Canadian Bill of Rights
(R.S.C. 1970, App. III, s. 2(c)(ii)). Although the effect of the Canadian Bill of Rights
may be to render federal legislation inoperative (Regina v. Drybones, [1970] S.C.R.
282, 9 D.L.R. (3d) 473 (1969)) or inapplicable in a specific context (Brownridge v. The
Queen, [1972] S.C.R. 926, 28 D.L.R. (3d) 1) the Canadian Supreme Court has declared:
[Elven if the Canadian Bill of Rights . . .is given the same effect as a
constitutional instrument, this does not mean that a rule of absolute
exclusion, which is in derogation of the common-law rule, should govern the
admissibility of evidence obtained wherever there has been a breach of one of
the provisions contained in that Bill.
Hogan v. The Queen, [1975] 2 S.C.R. 574, at 585, 9 N.S.R. (2d) 145, at 156, 26
C.R.N.S. 207, at 216 (1974) (Pigeon J.). The inclusionary rule, which has been acted
upon by Canadian courts since 1886 (Regina v. Doyle, 12 O.R. 347, at 353 (Q.B.
1886)), is entrenched in Canadian law: "The choice of policy here is to favour the social
interest in the repression of crime despite the unlawful invasion of individual interests
and despite the fact that the invasion is by public officers charged with law
enforcement." Hogan, id. at 595, [1975] 2 S.C.R. 574, at 595, 9 N.S.R. (2d) 145, at
162, 26 C.R.N.S. 207, at 223 (Laskin J.).
Canadian law on this point is completely at variance with American law. Where a
federal agent succeeded by surreptitious means in listening to incriminating statements
made by a person indicted for violating federal narcotics law while the latter was
released on bail, the statements were held inadmissible in the United States: Massiah v.
United States, 377 U.S. 201 (1964).
1-,6 J.HEYDON,supra note 112, at 254.
157 D.P.P. v. Christie, [19143 A.C. 545, at 564, 10 Cr. App. R. 141, at 164

(H.L.) (Lord Reading C.J.).

"" Makin v. Attorney General for New South Wales, [1894] A.C. 57, [1891-941
All E.R. Rep. 24 (P.C.) (N.S.W.); Rex v. Ball, [1911] A.C. 47 (H.L. 1910).
1981] Admissibility of Illegally-Obtained Evidence 333

whether the evidence which it is proposed to adduce is sufficiently

substantial, having regard to the purpose to which it is professedly
directed, to make it desirable in the interest of justice that it should be
admitted."' 9 The English courts, formulating a principle generally
applicable to criminal jurisprudence, have emphasized the paramount
duty of a judge, when trying a charge of crime, -to set the essentials of
justice above the technical rule if the strict application of the latter would
operate unfairly against the accused. " '
Nevertheless, it is settled law in England that these principles cannot
be accorded an interpretation so wide as to confer on the trial judge the
power to refuse to allow a prosecution to proceed merely because he
considers that, as a matter of policy, the prosecution ought not to have
been brought. 6 ' In some cases,' 6 2 counsel for the Crown appears to have
conceded that a discretion exists which is sufficiently amorphous in
scope to prevent the Crown from presenting its case. However, the
established view today is that unfairness as to the method of securing
evidence for the prosecution cannot produce this result. In a recent
case 16 3 where a prostitute who had been convicted of soliciting appealed
on the ground that her offence had been committed as a result of
incitement by police officers and that that evidence should not have been
admitted, the Divisional Court dismissed the appeal. In a case' where a
street bookmaker had undoubtedly been incited to commit the alleged
offences by police officers who placed bets with him in a public house,
Lord Goddard C.J. and Humphreys J. expressed strong disapproval of
the incitement. However, it was not suggested that the police evidence
was inadmissible as a matter of law. or that the magistrates had
discretionary power to exclude it.
In a recent trilogy of English cases, 6" ' the participation of an agent
provocateur in the procuring of evidence was considered solely in the
context of an appeal against sentence. There is no doubt today that the

' Noor Mohamed v. The King. [19491A.C. 182. at 192. 119491 1 All E.R. 365.
at 370 (P.C.) (B.G.) (Lord du Parcql
160 Harris v. D.P.P.. [19521 A.C. 694. at 707. 119521 1 All E.R 1044. at 1048
(H.L.) (Viscount Simon).
61 Regina v. Humphrys. [19771 A.C. 1. 1197612 All E.R. 497 (H.L.). Connelly
v. D.P.P., [1964] A.C. 1254. [196412 All E.R. 401 (H.L .
162 See. e.g.. Regina v. Ameer. [1977] CR151. L. RE-. 104 tCent. Crinm. Ct.
1976). 1976Sneddon v. Stevenson. [196712 All E.R. 1277. [19671 I W.L.R. 1051 (Q.B.
Div'l Ct.).
164 Brannan v. Peek. [19481 1 K.B. 68. [194712 All E.R. 572 (C.A.)- See also

Regina v. Maqsud Ali. [196611 Q.B. 688. [196512 All E.R. 464 (C.C.A.I. Australian
law and Canadian law on this point coincide substantially with the prevailing English
law. See. e.g.. Regina v. Veneman. [19701 S.A.S.R. 506 (S.C.): Regina . Ormerod.
[1969]2 O.R. 230. [196914 C.C.C. 3 (C.A.).
1' Regina v. McEvilly. 60 Cr. App. R. 150. 119741 CRIM. L. REV. 239 (C.A.
1973): Regina v. McCann. 56 Cr. App. R. 359 (C.A. 1971): Regina v. Birtles. [196912
All E.R. 1131. [1969]1 W.L.R. 1047 (C.A.).
 Ottawa Law Review [Vol. 13:2

doctrine of entrapment has no place in English law.' 66 Lord Widgery has

regarded as plainly admissible relevant evidence obtained from or
through police informers. 6 ' This attitude is necessitated by practical
realities: "One must recognize that up to a point infiltrators must show
sympathy with an encouragement of the group into which they have
infiltrated themselves ....",168 In a recent case,1'6 9 the police had acted
illegally in searching the accused's room without his consent and found
drugs. The accused was charged with drug offences on the basis of
evidence thus illegally obtained. The justices had excluded the evidence.
The Divisional Bench allowed an appeal by the prosecutor on the ground
that the evidence, however obtained, was relevant and therefore
admissible, and ordered the case to be remitted for trial before another
bench of justices.
There seem to be only two English cases 70 in which judicial
discretion has been used in a manner not readily reconcilable with the
principles emanating from these authorities. In these cases, the facts of
which are indistinguishable, the accused persons were charged with
driving a car while under the influence of liquor. They were convicted.
They had consented to be examined by a doctor in order to ascertain
whether they were ill or disabled. The doctor was called by the Crown to
testify that the accused were under the influence of drink. The trial judge
had admitted the evidence. However, in each case the conviction was
quashed by the Court of Criminal Appeal on the ground that the
evidence, although admissible as a matter of law, ought to have been
excluded by the exercise of discretion; the accused would probably not
have consented to the medical examination had they realized that the
doctor would give evidence. The authority of these decisions, however,
is considerably weakened by the tenor of an exhaustive judgment by the
English Court of Appeal in a subsequent case. '71
In the present state of the English authorities the following
propositions may be considered established:
(a) The courts have the power to exclude evidence of little probative
value but of gravely prejudicial effect, since it is the duty of the courts to
safeguard an accused person against the risk of wrongful conviction in
consequence of the admission of such evidence.

166 Regina v. Willis, [1975] 1 All E.R. 620, [1975] 1 W.L.R. 292 (C.A. 1974);
Regina v. Mealey, 60 Cr. App. R. 59 (C.A. 1974).
167 Mealev, id. at 64.
168 Id.
169 Jeffrey v. Black, [1978] Q.B. 490, [1978]1 All E.R. 555 (1977).
170 Regina v. Payne, [1963] 1 All E.R. 848, [19631 1 W.L.R. 637 (C.C.A.);
Regina v. Court, [1962]CRIM. L. REV. 697 (C.C.A.).
171 Sang, supra note 96. Ameer, supra note 162, Regina v. Burnett, [1973] CRIM.

L. REV. 748 (Cent. Crim. Ct.), & Regina v. Foulder, [1973] CRIM. L. REV. 45 (Q. Sess.
1971), cases which held that the judge has a discretion to exclude evidence which has
been obtained as the result of the activities of an agent provocateur, have been expressly
overruled by the House of Lords: Sang, supra note 96, at 1235, [197913 W.L.R. at 276.
1981] Admissibility of Illegally-ObtainedEvidence

(b) This principle operates to qualify.the otherwise absolute rule

that evidence which is relevant is admissible whether obtained illegally,
unfairly, by trick or by other misrepresentation.
(c) This qualification does not, however, justify a judge in refusing
to admit evidence of obvious probative value because it has been
obtained through the illegal activities of a police officer or informer, or
because the offence charged would not or might not have been committed
but for those activities. A judge has no discretion to refuse to admit such
evidence.
It is of interest to note that the Canadian courts, departing from the
general rule of reception,1 72 have purported in some decisions to
recognize a doctrine founded on abuse of the court's process. 173

However, this doctrine, which lacks a convincing rationale, has been

repudiated emphatically in several judicial pronouncements,'74 and has
no firm basis in Canadian law.
It is clear, however, that the English courts recognize, in the context
of unlawful administration of "breathalizer"' tests in respect of driving

172 See generally cases cited supra note 29. See also Rex v. McNamara, [19501
O.R. 6, 99 C.C.C. 107 (C.A.): Rex v. St. Lawrence. [1949] O.R. 215.93 C.C.C. 376
(C.A.): Rex v. Perry, 52 C.C.C. 166 (P.E.I. Cty. Ct. 1929): Rex v. Hawkins, 35 Que.
B.R. 96,42 C.C.C. 305 (1923).
The comment has been made that entrapment does not constitute a defence to a
criminal charge: Regina v. Chernecki. [1971] 5 W.W.R. 469. at 471, 4 C.C.C. (2d)
556, at 559 (B.C.C.A.) (Bull J.A.). The Canadian courts have declared: "Our laws have
long recognised the necessity to employ agents provocateurs for the protection of
society." Regina v. Timar, [196912 O.R. 90. at 93, [1969] 3 C.C.C. 185. at 188 (Cty.
Ct. 1968) (Dupont D.C.J.).
173 Ormerod,supra note 164: Regina v. Leclair. [1956]O.W.N. 336. 115 C.C.C.
297 (C.A.). On a finding of entrapment, a stay of proceedings has been directed, or an
acquittal entered: Regina v. Shipley, [197012 O.R. 411, [197013 C.C.C. 398 (Cty. Ct.
1969): Regina v. Haukness, [1976] 5 W.W.R. 420 (B.C. Prov. Ct.); Regina v.
MacDonald, 15 C.R.N.S. 122, 13 CRIM. L.Q. 502 (B.C. Prov. Ct. 1971).
The exclusionary rule dependent on judicial discretion has been considered
applicable only if the agent provocateur was responsible for calculated inveigling and
persistent importuning, in the sense that he had gone beyond mere solicitation or decoy
work and actively organized a scheme of ensnarement: Regina v. Kirzner. [19781 2
S.C.R. 487, 38 C.C.C. (2d) 131, 81 D.L.R. (3d) 229 (1977); Regina v. Bonnar, 4
N.S.R. (2d) 365, at 376, 30 C.C.C. (2d) 55. at 64 (C.A. 1975) (MacDonald J.A.). See
also Regina v. Burke, 16 Nfld. & P.E.I.R. 132. 44 C.C.C. (2d) 33 (P.E.I.C.A. 1978)
for a general review of the case law.
The Supreme Court of Canada has recognized "'the utility of a general principle of
abuse of process which Judges should be able to invoke in appropriate circumstances to
mark their control of the process of their Courts and to require fair behaviour of the
Crown towards accused persons.-: Rourke v. The Queen. [1978] 1 S.C.R. 1021. at
1034, 35 C.C.C. (2d) 129. at 139. 76 D.L.R. (3d) 193, at 203 (1977) (Laskin C.J.C.).
For recognition of judicial discretion in New Zealand to exclude evidence obtained
through the instrumentality of an agent provocateur, see Regina v. Capner, [1975] 1
N.Z.L.R. 411 (C.A. 1974): Regina v. Pethig. [197711 N.Z.L.R. 448 (S.C. 1976).
171 See, e.g., the judgment of Pigeon J. in Regina v. Osborn, [ 1971] S.C.R. 184,

1 C.C.C. (2d) 482, 15 D.L.R. (3d) 85 (1970). See also Lemieux v. The Queen, [19671
S.C.R. 492, at 496, [196811 C.C.C. 187. at 190. 63 D.L.R. (2d) 75. at 79 (Judson J.).
 Ottawa Law Review [Vol. 13:2

offences, an exception to the general rule that all relevant evidence is

admissible subject to judicial discretion to exclude it. 115 The basis of the
exception is that evidence of the accused's failure to provide a specimen
of breath is not evidence of an offence which the accused had already
committed but direct evidence of the ingredients of the offence itself. 1T7
The statutory provisions 17 not only define the offence but "lay down the
78
only way in which the offence can be proved."' 1
Evidence obtained through an agent provocateur, although not
susceptible to exclusion either by virtue of a rule of law or as a matter of
discretion, should be evaluated with circumspection. South Asian codes
of evidence based on the Indian Evidence Act of 1872 incorporate a
presumption that an accomplice is unworthy of credit unless he is
corroborated in material particulars. 179 The view has been expressed that
a decoy is on a different footing from an accomplice so far as the
precautionary rule regarding corroboration is concerned, but that the
evidence of the former should be probed with due care as well.180 In
practice, a court may well show reluctance to convict on the evidence of a
decoy without confirmation from an independent source. ' 81 A conviction
based on the uncorroborated testimony of a decoy may properly be
quashed on appeal.' 8 ' The rule of prudence applies with special force
whenever the only evidence for the prosecution is that of an agent
provocateur whose enticement contributed directly to the commission of
83
the crime.
The distinction between admissibility and probative value is
important in this context. Thus, the unlawful or unfair character of a
search in the course of which evidence is discovered is a factor which
may legitimately be taken into account in assessing the evidence offered
by the prosecution.' 84 The Sri Lankan courts have been prepared to
distinguish between the concepts of admissibility and credibility for this
purpose. 185

175 Morris v. Beardmore, [1980] 2 All E.R. 753 (H.L.); Scott v.

Baker, [19691 1
Q.B. 659, [1968] 2 All E.R. 993. The contrary view expressed in Regina v. Smith,
[1978] CRIM. L. REV. 296 (Crown Ct. 1977) can no longer be accepted as sound.
176 Morris, id.
177 Road Traffic Act, 1972, U.K. 1972, c. 20, s. 6(1), re-enacting Road Safety

Act, 1967, U.K. 1967, c. 30, s. 1(1).

171 Spicer v. Holt, [1977] A.C. 987, at 996, [1976] 3 All E.R. 71, at 75 (H.L.)
(Lord Dilhorne).
'79 See, e.g., Evidence Ordinance of Sri Lanka, 1895, (no. 14), LEGISLATIVE
ENACTMENTS 1956. c. 14, s. 114, illus. (b).
180 Ariyaratne v. Food & Price Control Inspector, Galle, 74 C.L.R. 19 (S.C.
1970); Beddewela v. Albert, 42 C.L.R. 136 (S.C. 1940).
181 Abdul Fajrulhuq v. Jayawardena, 74 C.L.R. 230, at 232 (S.C. 1971).
182 Wickremadasa v. Food & Price Control Inspector, 78 N.L.R. 3 (Sri Lanka
S.C. 1975).
1113Mayawathie v. De Silva, 59 N.L.R. 430, at 431 (S.C. 1957).
184 Supra note 30, at 90.
18, Supra note 31, at 364.
1981] Admissibility of Illegally-ObtainedEvidence

A final point relates to the test of "unfairness" as a basis for the use
of discretion. The abundance of judicial authority in Scotland and Ireland
has resulted in the elaborate formulation of the criteria governing the
exercise of discretion. Overall, these criteria have been usefully and
perceptively conceived. A vivid contrast with the attitude of the Scottish
and Irish courts is provided by the approach of the majority of the
Supreme Court of Canada in a case'I " where the accused told the police in
an induced confession that he had thrown the murder weapon into a
swamp, where it was later found. The trial judge refused to allow the
introduction of evidence as to the accused's part in the discovery of the
weapon and the accused was acquitted. The Crown unsuccessfully
appealed to the Ontario Court of Appeal, but the majority of the Supreme
Court of Canada allowed a further appeal by the Crown and ordered a
new trial. Martland J. emphasized that "unfairness" should be linked
not with the method of obtaining evidence, but with the actual trial of the
accused by reason of its admission. The effect of this view is that the
exclusionary discretion of the court is restricted to evidence whose
probative value is significantly disproportionate to its potential pre-
judice. In keeping with this approach, evidence whose probative value is
unimpeachable can in no circumstances be excluded at the discretion of
the trial judge on the ground that it has been obtained by illegal or unfair
means. It is submitted that this criterion is too rigid and narrow to be of
value in achieving the ends of justice.

IV. THE RELATION BETWEEN THE CONFESSION RULE AND THE

EXCLUSION OF EVIDENCE OBTAINED BY ILLEGAL MEANS

The Transvaal Provincial Division in South Africa has left open the
question whether
exclusion on the ground of compulsion should be limited to cases where the
accused has been forced physically or by threats to create against himself
evidence which could otherwise not have been brought into existence or
whether it extends also to cases where the accused has only been forced to
produce or submit to a search for evidence against him which already exists in
the form of documents or the like. *1

It is submitted, however, that a clear distinction is warranted by

considerations of policy between the two situations contemplated in this
passage. The Supreme Court of Sri Lanka, while accepting as settled law
that "relevant evidence (for example, evidence existing independently of
the illegal activity of the person discovering it) is admissible despite the

116 Regina v. Wray, [19711 S.C.R. 272. [197014 C.C.C. 1.11 D.L.R. (3d) 673,

rev'g [1970] 2 O.R. 3, [1970] 3 C.C.C. 122 (C.A.). See also Regina ,. Sigmund. 60
W.W.R. 257, [1968] 1 C.C.C. 92 (B.C.C.A.): Regina v. Sirois. [197212 W.W.R. 149,
17 C.R.N.S. 398 (Alta. S.C. 1970).
187Uys, supra note 86. at 407 (Schreiner J.).
 Ottawa Law Review [Vol. 13:2

illegality of the activity in the course of which such evidence was

discovered", 88 has properly placed emphasis on the different considera-
tions applicable to the proof of confessions:
[WIhere ... the fact which is sought to be admitted in evidence is one which
was non-existent prior to or independently of the ... unauthorised act, and
came into existence only because of it, and would not have come into
existence at the time and in the circumstances it did, but for the [unlawful ] act
• . . the principle that relevant evidence discovered in the course of an illegal
or irregular activity is admissible can have ... no application. ""
The crux of the distinction is that, in the latter context, unlike in the
former, the unlawful act brings into existence and directly moulds the
evidence.
The validity of the distinction has been acknowledged in English
law. The House of Lords recently asserted that "there is no discretion to
exclude evidence discovered as the result of an illegal search but there is
discretion to exclude evidence which the accused has been induced to
0
produce voluntarily if the method of inducement was unfair."19
The true analogy, it is suggested, is not between improperly induced
confessions and real evidence procured by illegal means, but between
real evidence discovered in consequence of an improperly induced
confession and real evidence obtained by unlawful methods. The
assimilation of these situations on the basis of a uniform principle is
defensible because property discovered as a result of inadmissible
confessions and evidence discovered by illegal means are alike received
as evidence on the ground that they constitute independently verifiable
material. 191
The theory of confirmation of the substance of confessions by
subsequently discovered facts is inextricably interlinked with the
acceptance of potential untrustworthiness as the rationale underlying the
exclusion of confessions within limits demarcated by the law. However,
it is a recognized principle of evidentiary law that
if, in the course of [an inadmissible] confession, the party [confessing] state
where . . . goods or a body may be found, and they are found accordingly,
this is evidence, because the fact of finding proves the truth of the allegation,
and his evidence in this respect is not vitiated by the hopes or threats which
92
may have been held out to him.
The applicable rationale is that "the reason of rejecting extorted
confessions is the apprehension that the prisoner may have been thereby

188 Regina v. Gnanaseeha Thero, 73 N.L.R. 154, at 203 (Ceylon S.C. 1968).
189 Id.
190 Sang, siqura note 96, at 1230, [197913 W.L.R. at 271 (H.L.) (Lord Diplock).

See also D.P.P. v. Ping Lin, [1975] 3 All E.R. 175, [1975] 3 W.L.R. 432 (H.L.);
Regina v. Nichols, [1977] CRIM. L. REV. 352 (Crown Ct.); Regina v. Kilner, [19761
CRIM. L. REV. 740 (Crown Ct.).
191 See, e.g., Doyle, supra note 150.
192 THURTEI.L AND HUNT 145 (E. Watson ed. 1920). But (f. Rex v. Warickshall, I
Leach 263, 168 E.R. 234 (Cent. Crim. Ct. 1783).
1981] Admissibility of Illegally-Obained Evide'ce 339

induced to say what is false: but the fact discovered shews that so much
of the confession as immediately relates to it is true."' Similarly,
testimonial trustworthiness of evidence procured during an illegal search
is unaffected by the mode of its discovery.
Although different considerations apply to the judicial reception of
improperly induced confessions and of evidence discovered by illegal
means, it is clearly desirable, in the interest of achieving consistency and
symmetry within a legal system, to avoid a direct conflict between the
structural framework of the law in the two areas.
The approach of English law to the admissibility of confessions in
criminal proceedings is founded on three cardinal principles:
(a) a confession which does not satisfy the test of "voluntariness"
is strictly inadmissible as a matter of law:
(b) a confession which has been obtained in contravention of the
Judges' Rules 4 may be excluded as a matter of discretion, and
(c) a confession, the reception of which involves unfairness to the
accused, may be excluded at the court's discretion. "I
It is interesting to note the fundamental contrast offered by the
structural framework of South Asian codified systems modelled on the
Indian Evidence Act. The law of Sri Lanka, which is representative of
these systems, precludes proof of the following categories of confes-
sions: 9
1. confessions caused by an inducement, threat or promise-, 6
2. confessions 97
made to a police officer, a forest officer or an excise
officer;
3. confessions made by any person while in the custody of a police
officer, a forest officer or an excise officer. 198
As to the first category, the voluntary character of a confession is a
precondition of its admissibility in evidence. Although the form of words
used by English and Sri Lankan authorities is not identical, there does not
seem to be any difference in substance.
In regard to the second category, statutory provisions in Sri Lanka
incorporate a prohibition against the reception in evidence of a
confession made to a police officer unless the confession has been
recorded by a magistrate. In England and in most Commonwealth
jurisdictions, as well as in the United States, a confession made to a
police officer is ruled out only if it infringes the criterion of voluntariness

1M3Rex v. Butcher. 168 E.R. 235 n (Assizes 1798)

194 The Judges' Rules are a code of procedure drafted by the judges to aid the
police when they question suspects. Over the years these rules have been revised and the
current rules were issued in 1964 by Lord Parker C.J. in a practice note: 119641 1 All
E.R. 237, [196411 W.L.R. 152 (C.C.A.).
115 J. HEYDON.Supra note 112. at 168.

191 Evidence Ordinance of Sri Lanka. 1895. (no. 14). LEGISLATI%E ENACTMENTS
1956,c. 14.s. 24.
'197 S. 25(1). (2).
".qS. 26(l).(2).
 Ottawa Law Review (Vol. 13:2

or if its exclusion is considered desirable by the court on the basis of the

"unfairness" rule. In Sri Lanka, however, if a confession has been made
to a police officer it is unnecessary to inquire whether it has been made
voluntarily, for the confession is excluded absolutely in these cir-
cumstances. 199
As to the third category, the law of Sri Lanka provides that "[n]o
confession made by any person while he is in the custody of a police
officer, unless it be in the immediate presence of a magistrate, shall be
proved as against such person." 2 0 0 English law contains no comparable
limitation.
It is one thing to accept, as Anglo-American law does, that
"statements obtained from prisoners, contrary to the spirit of [the
Judges'] [R]ules, may be rejected as evidence .... 201 It is another to
protect an accused person by forbidding the proof of a confession, even
when made of his own free will, to a police officer or when in the custody
of a police officer except in the immediate presence of a magistrate. Sri
Lankan and Indian law adopt the latter approach.
The crucial issue in this area is the question whether truth alone
should be the criterion governing the admissibility of confessions in
criminal proceedings. The Eleventh Report of the Criminal Law Revision
Committee in England contains the recommendation that the law should
be based entirely on the criterion of reliability. Statutory provisions in
New Zealand 2 ' and in the Australian jurisdiction of Victoria 03 are
founded on the same premise.
In contrast, the second and third exclusionary rules above, relating
to confessions contained in the Indian and Sri Lankan statutes, do not
depend on the actual unreliability of a confession, since a confession
made to a police officer or made while the accused is in police custody
may well be true. But in these circumstances the pressures, direct or
insidious, operating on the accused to make an admission of guilt are
substantial enough to justify doubts as to the reliability of the confession.
Moreover, the reception in evidence of confessions obtained in these
circumstances is repugnant to the principle against self-incrimination,
and, in particular, is in direct conflict with the object of discouraging
unfair police practices.
The salient difference between English law on the one hand, and
Indian and Sri Lankan law on the other, is that in the former system the
test of voluntariness is capable of universal application to confessions in

199 Rex v. Sudahamma, 26 C.L.R. 220 (Ceylon S.C. 1924). See also Rex v.
PackeerTamby, 32 C.L.R. 262 (Ceylon S.C. 1931).
200 Evidence Ordinance of Sri Lanka, 1895, (no. 14), LEGISLATIVE ENACTMENTS
1956, c. 14, s. 26(1).
201 Rex v. Voisin, [1918] 1 K.B. 531, at 539-40, 87 L.J.K.B. 574, at 577
(C.C.A.).
102 Evidence Act 1908, Stat. N.Z. 1908, no. 56, s. 20 (amended by Evidence
Amendment Act 1950, Stat. N.Z. 1950, no. 29, s. 3).
20: Evidence Act 1928, Stat. Vict. 1928, no. 3674, s. 141.
1981] Admissibility of Illegally- Obtained Evidence

criminal proceedings while, under the latter system, absolute rules of

exclusion govern specific categories of confessions - namely, confes-
sions to police officers and confessions made in police custody -
without reference to the criteria of voluntariness and spontaneity. In view
of this difference, the principle that relevant evidence of demonstrable
testimonial trustworthiness should be admissible, is capable of applica-
tion with greater ease in England than it is under the codified South Asian
systems based on the Indian Evidence Act. The latter systems, unlike the
English law of evidence, reflect the assumption that in limited contexts
there are good reasons for excluding evidence, even though its truth is
incontrovertible. In the setting of the South Asian systems, therefore,
strong indications that evidence is true and reliable in substance do not
render any less valid the reasons for exclusion of such evidence since
these reasons are wholly unrelated to the truth or reliability of the
evidence.
The criteria governing admissibility of confessions in England are,
in reality, veracity and dependability. Consequently, the internal
cohesion of the law is in no way disturbed by adoption of the general rule
that relevant and reliable evidence discovered by illegal means is
admissible. However, this is not true of the approach of the South Asian
systems. The priority accorded by these systems is to the principle that
other elements of public policy, especially the privilege against
compulsory self-incrimination and the control of police initiative, render
necessary the exclusion of evidence, notwithstanding both its probative
value and its testimonial trustworthiness. This warrants the exercise of
judicial discretion in the South Asian region in favour of exclusion of
relevant evidence illegally obtained on a broader and more liberal basis
than that appropriate to English law. For this reason, the detailed criteria
developed by the courts of Scotland and Ireland are likely to be of
particular value in jurisdictions such as India, Malaysia, Singapore and
Sri Lanka.

V. CONSIDERATIONS OF POLICY MILITATING AGAINST THE

EXCLUSIONARY RULE

Reliability of the evidence secured is in no way affected by the

illegality of the search. This reflection has assumed particular importance
in the context of the growing conviction among lawyers and
criminologists today that excessive protection is conferred on the accused
by such doctrines of the law of evidence as the admissibility of similar
fact evidence, evidence of character, confessions and the testimony of
experts. The Criminal Law Revision Committee in England has made a
series of proposals aimed at giving a criminal trial the complexion of an
inquiry into truth rather than the appearance of a game. " 4 The Ontario
Court of Appeal has commented:

204 CRIMINAL LAW REVISION COMMITTEE. EVIDENCE (GENERAL). ELEVENTH

REPORT, at para. 22 (1972).
 Ottawa Law Review [Vol. 13:2

[W]e have not yet arrived at the point that one accused of crime has so many
and so high rights that the people have none. The administration of our laws is
not a game in which the cleverer and more astute is to win, but a serious
proceeding by a people in earnest to discover the actual facts for the sake of
public safety . "
0..

This climate of opinion is favourable to the restoration of

opportunity to the prosecution to lead relevant evidence with minimal
restriction. This attitude would seem consistent with the reception of
evidence procured by an illegal search on the ground that its probative
value is entirely unimpaired by the method by which it was obtained. The
introduction of such evidence often facilitates ascertainment of the truth.
The countervailing argument is that the reliability of evidence,
although obviously of great importance, is not the only pertinent
consideration. One of the significant objectives of public policy in this
area is discouragement of unscrupulous or oppressive methods resorted
to by the police. It is arguable that this objective is achieved by the
deterrent effect of excluding evidence procured by an illegal search.
However, the validity of this "deterrent" principle may be convincingly
assailed. It has been pointed out that" [w]ell-publicized judicial criticism
and the consequential arousing of public opinion will deter the police
better than the exclusion of evidence; and if it does not, there is probably
something wrong with the police too deep-rooted to be cured by the law
of evidence." 20 6 In any event, it is probably true of the great majority of
cases in which an unlawful search is conducted that the police are
"prompted by the hope that it will not be brought to the notice of the
court, not by the belief that evidence discovered in consequence of it will
be received .... "2107 Where the reception of evidence is accompanied
by an emphatic judicial reprimand addressed to the police, 20 8 it is
unrealistic to assume that that criticism exercises no restraining influence
on the police merely because the evidence is admitted.
The expedient of seeking to punish the police by rejecting
unlawfully obtained evidence is inherently illogical. The point was
effectively illustrated by Wigmore:
The indirect and unnatural method is as follows: "Titus, you have been found
guilty of conducting a lottery; Flavius, you have confessedly violated the
Constitution. Titus ought to suffer imprisonment for crime, and Flavius for

Rex v. Barnes, 49 O.L.R. 374, at 390, 36 C.C.C. 40, at 56, 61 D.L.R. 623, at
205-l

638 (C.A. 1921) (Riddell J.).

206 J. HEYDON, supra note 112, at 251. The deterrent effect of the exclusionary

rule has received emphasis in some American decisions: People v. Cahan, 282 P. 2d
905, at 913-14 (Cal. S.C. 1955) (TraynorJ.); Linkletter v. Walker, 381 U.S. 618, at 636
(1965) (Clark J.); Terry v. Ohio, 392 U.S. 1, at 12 (1968) (Warren C.J.). But (f. Oaks,
StudYing the Exclusionat' Rule in Search and Seizure, 37 U. CHI. L. REV. 665 (1970).
for a finding that the exclusionary rule is ineffective in deterring police lawlessness.
207 R. CROSS, EVIDENCE 285 (4th ed. 1974).
•,See, e.g., Regina v. Mills, [1947]K.B. 297, at 299, [1946]2 All E.R. 776, at
777 (C.C.A.).
1981] AdmissibilitY of Illegally-Obtain'd Evidem e 343

contempt. But no! We shall let you boih go free. We shall not punish Flavtus
directly, but shall do so by reversing Titus' con' iction .... Our way of
upholding the Constitution is not to strike at the2 man who breaks it. but to let
off somebody else who broke something else."--'

The result is that, far from redress being offered for the wrong done,
reparation entails the commission of two wrongs. This argument holds
good whether the search infringes constitutional provisions or rights
secured by the common law.
The rule of exclusion is dispensable since the protection of the
citizen can be adequately ensured without depriving the courts of
pertinent evidence in reaching a just conclusion as to the imputation of
guilt. Notwithstanding the reception of evidence discovered during an
illegal search, sufficient sanctions are still available to the party whose
constitutional or common law rights are violated. Civil actions for
trespass, assault, false arrest, malicious seizure of property, conversion
and damage to property provide a wide range of remedies.
The effectiveness of these remedies may, however, be questioned on
pragmatic grounds. The lack of solvency of the individual police officer
responsible for the unlawful search, insistence on malice as a precondi-
tion of award of aggravated or exemplary damages, the likelihood of
extenuation of damages on account of the plaintiff's bad reputation and
the legitimate fear which a plaintiff may well entertain in regard to
invasion of his privacy are circumstances which, cumulatively, detract
from the utility of the remedies furnished by the civil law. These
objections are strengthened by the practical consideration that "'[slelf-
scrutiny is a lofty ideal, but its exaltation reaches new heights if we
expect a District Attorney to prosecute himself or his associates for
well-meaning violations of the search and seizure clause during a raid the
District Attorney or his associates have ordered.' "
The wide sweep of the traditional rule acted upon by the English
courts, that no action would lie in tort if the evidence unlawfully seized
were subsequently used in a criminal prosecution,-l has been drastically
curtailed. This protection is available to the officer responsible for the
illegal search only where the police have reasonable grounds for
believing that a serious offence has been committed, that the evidence is
material, and that the person in possession of it is a participant in the
crime. "1 2 However, there remains an area in which arbitrary or capricious
use of police authority could place the fundamental rights of the citizen in
jeopardy.
The exclusionary doctrine is perhaps open to the objection that it
necessitates adjudication of collateral issues which distract attention

20 J. WIGMORE. A TREATISE ON THE ANGLO-AMF.RICAN SYSTItI OU E%IDEN'SE IN

TRIALS AT COMMON LAW. paras. 2183-84 3rd ed. 19401. But ty. Hampton %.Unted
States. 425 U.S. 484, at 490 (1976).
210 Wolfv. Colorado. 338 U.S. 25. at 42 (1949) (Murphy J..
2" Elias.supra note 15.at 173. 103 L.J.K.B. at 227.
22 Ghani v.Jones. [1970]1 Q.B. 693. 1196913 All E.R. 1700 (C A.I.
 Ottawa Last, Reviewo 1
[Vol. 13:2

from the primary purpose of the trial. This entails the disadvantages of
delay and confusion. On the other hand, the exclusionary rule has the
beneficial result of according the accused the right to invoke the
protection of the law in the same proceeding instead of being compelled
to incur delay and expense in commencing a fresh action. Moreover, the
English and Scottish doctrines, far from eliminating a collateral
investigation, further encumber and complicate the issues subsumed in
the collateral inquiry by superimposing the criterion of fairness to the
accused on the tests governing illegality of the search.
Finally, contemporary crime is characterized by a high degree of
organization and sophistication. The finding has been made recently in
England that "there is . . . a large and increasing class of ...
professional criminals who are not only highly skilful in organizing their
crimes and in the steps they take to avoid detection but are well aware of
their legal rights and use every possible means to avoid conviction if
caught." 13 In these circumstances it is probably self-stultifying to fetter
the police by excessive stringency in regard to the means which they may
properly employ in the detection of crime.

VI. CONCLUSION

Despite the cogency of some of the arguments which may be urged

in denigration of the exclusionary rule, a compromise must be found
between the competing ideals of effective law enforcement and adequate
protection of individual rights. "There must be a discretionary power to
exclude illegally-obtained evidence, at any rate in criminal cases, for
public opinion would not tolerate its reception if it were procured by
torture, however much it was confirmed by such convincing matters as
the subsequent voluntary admission of the accused .... ,,2,4 It is
submitted that the criteria discussed in section III provide a foundation
for the guidelines which could usefully regulate the exercise of this
discretionary power by the courts.

213 Supra note 204, at para. 21.

214 Supra note 207.