T Irregularly obtained real evidence : The Scottish solution ?

In determining whether to admit improperly obtained real evidence, the Scottish courts have engaged in a balancing act for over 50 years, weighing the public interest in the conviction of the guilty against the rights of the accused and the civil liberties of the citizenry. The Appeal Court’s approach to this issue has not been particularly satisfactory and the result is an incoherent mass of detailed and often almost irreconcilable case law, rather than a principled framework to guide the trial courts in the exercise of this power. he admissibility of improperly acquired real evidence is a difficult issue in most jurisdictions. Solutions have ranged from almost always admitting such evidence—the historical position in England—to almost always excluding it—the approach in the United States throughout the latter half of last century. More recently, most jurisdictions have attempted to find something of a compromise between these two positions. This latter approach was adopted in Scotland in the middle of last century as a result of the leading case of Lawrie v Muir where, paraphrasing roughly, Lord Cooper stated that the court must determine whether such evidence should be admitted depending on the balance between the need to preserve civil liberties and the need to ensure that justice is done. Until then in Scotland, real evidence which had been obtained irregularly was always in practice admitted. At the time, Lawrie was perceived to be something of a pioneering decision, both in Scotland and elsewhere. For instance, in 1955 Glanville Williams, after reviewing the competing English and American positions, concluded: As a compromise between the opposing considerations of policy the Scottish doctrine has, it is submitted, much to commend it. 1 1950 JC 19 at 26. 2 M. Ross, Walker and Walker: The Law of Evidence in Scotland (T & T Clark: Edinburgh, 2000) 7. 3 G. Williams, ‘Evidence Obtained by Illegal Means’ [1955] Crim LR 339 at 349.