UNIT 5 ILLEGALLY, IMPROPERLY AND UNFAIRLY OBTAINED EVIDENCE

5.1 Introduction
The principle of the law of evidence is that all evidence is admissible subject only to the
court’s discretion and legal exceptions. This means that all evidence no matter how it
was obtained is admissible so that it could aide the judge to reach a fair and just verdict.
Hence in R v Leatham (1861), Crompton J commenting on evidence said that “it matters
not how you get it; if you steal it even, it would be admissible in evidence”.

Kuruma, Son of Kaniu v The Queen [1955] AC 197

The appellant was sentenced to death during the Mau-Mau Emergency in Kenya. As a
native Kenyan on a bicycle, the appellant was stopped and searched by police officers
below the rank of inspector at a police roadblock in which two rounds of ammunition and
a pocket-knife where discovered. The issue arose as to whether the police search
powers had been legal - and therefore the evidence derived from it admissible - having
regard to the exact location of the roadblock.

Held
That, “in their Lordships’ opinion the 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. While this proposition
may not have been stated in so many words in any English case there are decisions
which support it, and in their Lordships’ opinion it is plainly right in principle”. Per Lord
Goddard

The Bill of Rights in the Constitution of Zambia, Article 17 (1) provides that “except with
his own consent, no person shall not be subjected to the search of his person or his
property or the entry by others on his premises”.

However, it is stated in Peter Murphy’s book, “Murphy on Evidence”, 5th Edition, (2000)
at p77 that, “the rule governing the admissibility of illegally or unfairly obtained evidence
in civil cases is the same as that in criminal cases, namely that relevant evidence is

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admissible regardless of the manner in which it is obtained. The court is concerned with
the relevance, not the source of evidence and will leave the parties to other remedies
for any wrongful acts indulged in to obtain evidence…”

Evidence that has been held to have been obtained improperly, illegally or unlawfully
includes the following:
(i) Unlawful search of a person, their car or their home.
(ii) Recorded conversation without the knowledge and/or consent of a party and
where is no valid warrant.
(iii) Unlawful wiretap.
(iv) Lack of probable cause (reasonable grounds).
(v) Illegal detention.
(vi) Coerced confession or admission.
(vii) Warrantless search.
(viii) Improper seizure.

In Liwaniso v The People (1976) Z.R. 277, the Supreme Court held that “...evidence
illegally obtained, e.g. as a result of an illegal search and seizure or as a result of an
inadmissible confession is, if relevant, admissible on the ground that such evidence is a
fact (i.e. true) regardless of whether or not it violates a provision of the Constitution (or
some other law).”

Liswaniso was followed in a High Court case of People v Chipawa & Another (2010)
where the defence objected to the admission in evidence of a licence disc relating to the
Toyota Corolla ABR 2582, the vehicle that was allegedly stolen by the accused on the
basis that the State did not obtain a search warrant to search the house where the disc
was recovered.

The court had to rule on whether evidence obtained as a result of the illegal search of a
person or property, should, if factual (i.e. true) and relevant be admissible in evidence
as there are two competing public interests:
(i) To protect persons from illegal or irregular invasions of their liberties on one
hand.

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(ii) For the investigative authorities to obtain evidence which may be vital to ensure
that justice is done.

The court determined that apart from involuntary confessions, evidence illegally
obtained, is, if relevant, admissible regardless that it violates a provision of the
Constitution, or some other law.

Therefore, as noted earlier, the court has complete discretion as to what evidence it will
allow to be used in a case. However, when considering whether to allow illegally
obtained evidence, the court will balance the need to discourage law breaking by law
enforcement agencies against the desire to have all material facts before the court.

In Jones v University of Warwick [2003] EWCA Civ 151, the claimant’s home was
secretly filmed for the purpose of exposing a false personal injury claim (which was an
act of trespass). Lord Woolf CJ allowed the evidence to be admitted, however, he
ordered the defendant to pay the costs of the time spent debating the admissibility of
the evidence (in order to make an example of the defendant and deter such behaviour).

Liswaniso v The People (1976) Z.R. 277

The applicant, an Assistant Inspector of Police, was convicted of official corruption, the
allegation being that he corruptly received a sum of K80 in cash as consideration for the
release of an impounded motor car belonging to the complainant. The evidence on
which the applicant was convicted was obtained by means of a trap; the handing over of
the currency notes in question by the complainant was pre-arranged with the police, and
they were recovered from the complainant’s house during a search conducted pursuant
to a search warrant. It was common cause that at the time the police officer in question
applied for the search warrant to be issued he swore that the money in question was in
the applicant’s house when in fact it was in that officer’s possession. It was argued on
behalf of the applicant that the search warrant was invalid and the resultant search was
illegal, and that anything found as a result of such search was inadmissible in evidence.

Held
That it is our considered view that (the rule of law relating to involuntary confessions
apart), evidence illegally obtained, e.g., as a result of an illegal search and seizure or as

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a result of an inadmissible confession is, if relevant, admissible on the ground that such
evidence is a fact (i.e. true) regardless of whether or not it violates a provision of the
Constitution (or some other law). In our view the evidence of search and seizure of the
currency in the case now under consideration, although based upon an irregular search
warrant, was rightly admitted by the trial court because that evidence was a relevant
fact. It would be difficult to appreciate how a court could consciously close its eyes to a
relevant fact that has been presented before it.

The Supreme Court also went on to say that:

But we wish to make it abundantly clear that any illegal or irregular invasions by the
police or anyone else are not to be condoned and anyone guilty of such an invasion
may be visited by criminal or civil sanctions. It seems to us good law that an involuntary
confession should as a general rule be excluded because of the danger that it might be
untrue but that the evidence of anything obtained as a result of an illegal act should be
admissible because it is a relevant fact and therefore trustworthy.

Therefore, the unlawful search of persons or premises will not render the evidence
collected inadmissible as long as it is relevant to the facts in issue.

Lord Widgery CJ, in Jeffrey v Black [1978] QB 490 said that “I have not the least doubt
that an irregularity in obtaining evidence does not render the evidence inadmissible.
Whether or not the evidence is admissible depends on wheter or not it is relevant too
the issues n respect of which it is called”.

5.2 Judicial Discretion

(i) Civil cases

The Civil Procedure Rules rule 32.1(2) provides that “the court may use its power under
this rule to exclude evidence that would otherwise be admissible.

Therefore, whether to exclude unlawfully, improperly or unfairly obtained evidence rests

on the court to exercise it discretion to exclude or not to exclude such evidence.

Jones v University of Warwick [2003] 3 All ER 760, CA

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The claimant was employed by the defendant. She had dropped a cash box onto her
wrist at work. She alleged significant continuing disability and claimed substantial
special damages. The defendant admitted liability but contended that the claimant had
virtually recovered and had no significant ongoing disability. An enquiry agent, acting for
the defendant's insurers, obtained access to the claimant's home by posing as a market
researcher and filmed the claimant using a hidden camera. The film was disclosed to
the claimant. The district judge had ordered the evidence to be excluded on the basis
that the court should not give any approval to the defendant's agent's improper method
of gaining entry into the claimant's home. The judge on appeal reversed that decision on
the basis that the overriding objective was to deal with a case justly and that the
claimant should be prevented from making an inflated or exaggerated claim if there was
evidence to contravert it.

Held
That, this was not a case where the conduct of the defendant's insurers was so
outrageous that the defence should be struck out. It would be artificial and undesirable
for the actual evidence that was relevant not to be placed before the judge who was
trying the case. To exclude the evidence would create a wholly undesirable situation.
Therefore it would not be right to interfere with the judge's decision not to exclude it.

(ii) Criminal cases

The judge in criminal litigation has a discretionary power to exclude otherwise

admissible evidence on the grounds that it was oppressively, improperly or unfairly
obtained as the court is not concerned with how the evidence was obtained.

Callis v Gunn [1964] 1 QB 495

Evidence obtained by false representations, threats and bribes by the police may be
excluded at the discretion of the judge. For voluntariness to be satisfactorily proved,
proof must be provided to the standard of beyond reasonable doubt.

Held
That “it is a fundamental principle of law that no answer to a question and no statement
is admissible unless it is shown by the prosecution not to have been obtained in an

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oppressive manner and to have been voluntary, in the sense that it has not been
obtained by threats or inducements” and ‘[A]s is well known, in every criminal case a
judge has a discretion to disallow evidence, even if in law relevant and therefore
admissible, if admissibility would operate unfairly against a defendant. I would add that
in considering whether admissibility would operate unfairly against a defendant one
would certainly consider whether it had been obtained in an oppressive manner by force
or against the wishes of an accused person. That is the general principle.” Per Lord
Parker of Waddington LCJ

King v R [1969] 1 AC 304

R v Burnett & Leo [1973] Crim LR 748
R v Ameer & Lucas [1977] Crim LR 104, CA

Therefore, a trial judge has discretionary power to exclude prosecution evidence whose
prejudice effect outweighs its probative value although he has no discretion to refuse
evidence just because it was improperly or unfairly obtained as long as it is relevant
admissible evidence.

R v Payne [1963] 1 WLR 637

Following a car collision the accused was induced into providing a specimen of blood by
the pretence that it was required to determine whether he was ill, whereas in reality the
reason for obtaining it was to show that the accused had been drinking alcohol, that the
evidence should have been excluded because if the accused had realised that the
specimen would be used against him, he might have refused to subject himself to
examination.

Held
The defendant’s conviction was quashed upon the ground that the judge ought to have
exercised his discretion to exclude admissible evidence which had been obtained
unfairly.

R v Apicella (1985) 82 Cr App R 295, CA

The accused was convicted on three counts of rape where each of the victims
contracted an unusual strain of gonorrhea. Whilst held in custody, he gave a sample for

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therapeutic reasons and on examination was found with a similar strain of gonorrhea as
the women who had been raped. The results were then used by the prosecution during
trial.

Held
That the use of the evidence was not unfair to be excluded.

Reference: Fox v Chief Const. of Gwent [1985] 3 All ER 392, HL

Therefore, to protect the fairness of the proceedings and ensure that the accused
receives a fair trial, the judge may exclude any evidence whose prejudicial effect
outweighs its probative value.

Ref: R v Parris (1988) 89 Cr App R68, CA; R v Chalkley & Jeffries [1998] 2 All ER 155,
CA

However, a higher court will not normally reverse the exclusionary decision of a judge
unless it is impugned to be perverse as being a decision no reasonable trial judge could
have come to under the Wednesbury principles.

R v O’Leary (1988)87 Cr App R387; R v Christou [1992] QB 979, CA

Normally, the court whilst admitting improperly or unfairly obtained evidence will at the
same time take exception to censure the police from obtaining evidence in such a way.

In R v Delaney (1988) 88 Cr App R338, CA, Lord Lane CJ, said that “it is no part of the
duty of the court to rule a statement inadmissible simply I order to punish the police for
failure to observe the codes of practice”. This has an effect on the police not to act mala
fides (bad faith) by deliberately or wilfully flouting the law or abusing their powers.

R v Mason [1987] 3 All ER 481, CA

5.3 Entrapment and Undercover Operations

Entrapment arises where a law enforcement agent induces or encourages a person to

commit an offence that otherwise they would have had no intention of committing at that
time. However, a law enforcement agent encourage or facilitates the commission of a
criminal act, the court may reject the evidence derived from that activity when it is
considered that the integrity of the legal system is in jeopardy due to such actions.

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For instance, in Liswaniso, the appellant was entrapped into receiving a bribe as
inducement to release a motor vehicle and that the law enforcement officer lied under
oath whilst asking the court to issue a warrant by claiming that the money was already
in the suspect’s house.

However, it would be unfair for the state to try the defendant where the actions of the
state threaten the rule of law. Such state-created crime is unacceptable and improper
and to prosecute in such circumstances would be an affront to the public conscience.

R. v. Loosely [2001] 1 WLR 2060, HL

The defendant complained of his conviction for supplying controlled drugs, saying that
the undercover police officer had requested him to make the supply.

Held
That it was an abuse of process for the police to go so far as to incite a crime. It is
simply not acceptable that the state through its agents should lure its citizens into
committing acts forbidden by the law and then seek to prosecute them for doing so.
That would be a misuse of state power, and an abuse of the process of the courts.
Every court had an inherent and fundamental power and duty to prevent abuse of its
process.

However, an accused person given an opportunity to commit the crime that was his pre-
existing intent cannot come and claim that he would not have committed the criminal act
had he not been lured into committing it. Therefore, it is recognised that undercover
operations are a valuable resource of investigations and obtaining of evidence in most
highly organised crimes.

5.4 Entrapment as a defence

It has been established by the courts that there is no defence of entrapment in English
law (R v Sang [1980] AC 402) but could be raised in mitigation. This is because the act
of entrapment does not take away the intent to commit a guilty act from the accused. In
this sense the entrapment has served its purpose, in that a prohibited act was observed,
the guilty party arrested and the guilty intent supposedly not manipulated, just the
circumstances surrounding the guilty act.

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Nottingham City Council v Amin [2000] 1 WLR 1071, DC

Held
That, “it has been regarded as unobjectionable if a law enforcement officer gives a
defendant an opportunity to break the law of which the defendant freely takes
advantage, in circumstances where it appears that the defendant would have behaved
in the same way if the opportunity had been offered by someone else”.

However, where the accused person pleads entrapment, the court may stay
proceedings or exclude the evidence for abuse of court process.

R v Moon [2004] All ER 167, CA

A female undercover officer claimed to be suffering from heroin withdrawal symptoms

and asked the defendant for drugs which he supplied.

Held
The test purchase was an abuse of process.

5.5 Confession evidence

(i) Involuntary Obtained Confession

Involuntary confessions are not admitted into evidence mainly for two reasons:
(a) A statement made out of fear of prejudice or promise of reward would most likely
be false.
(b) Those charged with investigating crimes must be discouraged from using
improper methods of investigation by depriving them of the advantage of using
confessions to obtain a conviction.

In a trial within a trial in Tapisha v The People (1973) Z.R. 222, the court held that the
prosecution must bring evidence to prove, beyond reasonable doubt, that the
confession was given freely by the accused.

However, a judge exercising the discretion to admit a confession statement, may still
exclude a statement, even after finding that it was obtained voluntarily, if it is irrelevant
or if its prejudicial effect outweighs its probative value. A confession statement may also
be excluded if the authority who obtained the confession misconducted themselves,

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including a failure to caution the accused person (R v Bass [1953] 1 QB 480). In People
v B (HP 24 of 1980) [1980] ZMHC 14, the judge in rejecting confession evidence said
that, “I must confess that I have come to this conclusion not with any hesitation but with
considerable regret. I say this because it is probable that the confession is the truth. But
....., the issue is not truth but voluntariness......unless the prosecution prove that it was
freely and voluntarily made”.

Where the admissibility of a confession has been challenged on the ground that it was
involuntary, the court must conduct a trial within a trial in order to establish voluntariness
or the circumstances under which the confession was obtained.

People v B (HP 24 of 1980) [1980] ZMHC 14

A trial within a trial was conducted to determine the admissibility of a confession

statement on allegations made by the accused that it was obtained through acts of
torture and duress to which the accused was subjected before making the statement.
The accused applied that the statement be excluded.

Held
That, it is a fundamental principle of criminal law that when an accused raises an
objection to the introduction of a confession into evidence, alleging that it was not made
freely and voluntarily on account of assaults, threats or inducements, the burden of
proving that a confession is voluntary is on the prosecution and at no time does this
burden shift to the accused. That, the basis of the admissibility of a confession is
voluntariness and not the truth of the content in the statement.

(ii) Unreliable Confessions

Unreliable confessions were given a broad interpretation in R v Fulling [1987] 2 All E.R.
65 as including the following:
(a) Confessions obtained as the result of an inducement - for example a promise of
bail or a promise that a prosecution would not arise from the confession.
(b) Hostile and aggressive questioning.
(c) Failure to record accurately what was said.
(d) Failure to caution.

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(e) Failure to provide an appropriate adult where one is required.
(f) Failure to comply with the Code of Practice in relation to the detention of the
accused - for example a failure to allow sufficient rest prior to an interview.
(g) Failure of the Defence lawyer or Appropriate Adult to act properly - for example
by making interjections during interview which are hostile to the defendant.

However, a Legal Counsel intending to obtain and produce such evidence should
consider the following:

(i) Evidence will not be admissible if it was obtained through torture or inhuman or
degrading treatment (Constitution of Zambia, Article 15 Protection from inhuman
treatment).

(ii) Privileged material will not be admissible in court unless it was created in the
course of a criminal act or to further a criminal enterprise.

(iii) It is a criminal offence to intercept communication between individuals, such as

emails and telephone calls, unless you have their permission (Cyber Security
and Cyber Crimes Act 2021, section 26 (1) – A person commits an offence, if that
person — (a) intercepts… or procures another person to intercept or attempt to
intercept any communication and carries or imprisonment of up to ten years or to
both).

(iv) It is a civil wrong and a criminal offence to persuade someone to disclose

personal data (for example a person’s name and address) without the “data
controller’s” consent (various legislation). This could include, for example,
coaxing an employee to provide you with company records without the
employer’s permission.

(v) In the course of civil litigation you are required to provide your opponent with any
material in your or your client’s possession which (among other things) helps the
other side’s case or harms your client’s case. If you have acquired covertly or
illegally obtained evidence, you may therefore be forced to provide this to the
other side (even if you decided that it was harmful to your case and you did not
want to deploy it).

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