Evidence Obtained Illegaly Or Improperly Proposed Section 166A, Indian ...

[Cites 21, Cited by 0]

Law Commission Report

Evidence Obtained Illegaly Or Improperly Proposed Section 166A, Indian ...

~ I LAW COMMISSION 01-" INDIA

NINETY-FIOURTIV-I R-- ORT
ON

EVIDENCE OBTAINED ILLEGALLY OR IMPROPERLY :'
PROPOSED SECTIONVIGESA, INDIAN EVIDENCE
ACT, 1872

,..,..v,~ ugh»; on x\ A:

JUSTICE K. K. MATHEW

No. F. 2(7)/83-L.C.

Shastri Bhavan
New Delhi
October 28, 1983.

My dear Minister,

I am forwarding herewith the Ninety--fourth Report of the Law Com-
mission on "Evidence obtained illegally or improperly: Proposed Section
166A, Indian Evidence Act, 1872".

2. The subject was taken up by the Law Commission on its own. The
need for taking up the subject is explained in para 1.3 of the Report. .

3. The Commission is indebted to Shri P. M. Bakshi, Part--time Mem-
ber and Shri A. K. Srinivasamurthy, Member-Secretary, for their valuable
assistance in the preparation of the Report.

With regards,

Yours sincerely,

(K. K. Mathew)

Shri Jagannath Kaushal,
Minister of Law, Justice 8: Company Affairs,
New Delhi

Enclo : 94th Report.

1w_4{42 LAD/ND/33

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CHAPTER 1
CHAPTER 2
CHAPTER 3
CHAPTER 4
CHAPTER 5
CHAPTER 6
CHAPTER 7
CHAPTER 8
CHAPTER 9
CHAPTER 10
CHAPTER 1 1

Appendix

INTRODUCTORY .

CONTENTS

THE DIFFERING APPROACHES

THE INDIAN LAW .

ENGLISH AND SCOTTISH LAW
POSITION IN AUSTRALIA .
POSITION IN CANADA

POSITION IN U.S.A.

A CASE FROM JAMAICA .
COMMENTS RECEIVED ON THE WORKING PAPER . . 26
ARGUMENTS PRO AND CON.

ISSUES FOR CONSIDERATION AND RECOMMENDATIONS 35

APPENDIX

Some illustrative situations of evidence obtain

improperly

PAGE

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ed illegally or i .

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" INTRODUCTORY

of evidence, namely, how far should there be a discretion with the court in
a criminal case to exclude evidence that has been obtained illegally or im-
properly 9 The question that has been broadly formulated in the preceding
sentence has not, in judicial decisions in India, received the intensive attention
that it has received in some other countries. However, for reasons to b
mentioned later, the question needs to be examind in detail.' '

l
l 1.1. This Report proposes to deal with a specialised area of the law Scope.
I

'I; *

1.2. Generally speaking, the traditional approach of the Indian courts The
has been to the effect that, absent a speciﬁc statutory or constitutional provi- '"'dl'l°"lf'
sion which provides for excluding particular types of evidence, the fact that appmac '
, evidence was obtained illegally remains of no consequence in regard to its
admission at the criminal trial. Lord Scarmanz noted in the English case
of Scmg that "judges are not responsible for the bringing or abandonment
of prosecutions" and that "save in the very rare situation, which is not this
,- case, of an abuse of process of the court. .r. ....... ..the judge is concerned only
VII/ith the conduct of the trial.''3 This has been the approach adopted in India I
a so.

i 5 ~ 1.3. The traditional Indian view (as outlined above) represents a strictly Need for study.
legalistic approach. There appears. however, need for some fresh thinking
I on the subject.

i i The subject has been taken up for consideration by the Law Commis-

' sion of its own, having regard to the importance that this and similar contro-

versies have assumed, or are likely to assume, in the light of the increasing

stress laid on human rights in recent times. In the Indian context, in parti--

cular, the expanding scope of article 21 of the Constitution (as currently

interpreted) is likely to render such an enquiry of considerable practical im-

- portance in the not distant future. This is not to say that the present enquiry

is necessarily aimed at suggesting any radical change in the law. The object

of the enquiry is mainly to stimulate discussion on the subject, to disentangle

-* the various issues involved to deﬁne with some concrete the contours of the

controversy and generally to test the present position in India, in the light of

the doctrine and developments mentioned above» If, as a result of such en-

quiry, there emerges a need for reform in the law, suggestions for appropriate
1? reform will, of course, be made. I

1.4. In View of the constitutional overtones of the controversy and the Meghodomy
importance of the subject from the point of View of human rights, it may be tof 'Said? and
desirable for the purpose of the present inquiries to examine several theoretical :fntﬁe:f,',1,fjf,_
and practical aspects. Developments in other countries, past as well as re- sions to beteached
cent, are of interest. At the same time, it should be remembered that the

position on the subject under discussion in certain other countries seems to

l
I
1
l
i_ 1. Paragraph 1-3, infra.
ii 1. 2. Chapter 3, infra.
{ 3. R. V. Sane. (1979) 3 W.L.R. 263. 288. Cf. R. v. Sang, (1979) 2 W.L R. 439, 458
. (C.A.).

. .r..~

Working Paper
circulated by the
Commission.

be in a ﬂuid condition,' and any assessment that one might make of the law
in those countries should be regarded as very tentative, and may not neces-
sarily be reﬂectivo of the up-to-date position in all its minuteness. In fact,
since the subject itself is integrally connected with human values, even the
conclusions that may be ultimately arrived at in the present inquiry should
be regarded as possessing a validity only for a limited space of time, and as
not ruling out a fresh examination of the subject after a reasonable interval.

1.5. It may be 'mentioned here that in order to elicit informed opinion
on the subject, the Commission circulated a Working Paper which set out
most of the material incorporated in succeeding Chapters of this Report?
Towards its end, the Working Paper posed certain issues for consideration.
We are setting out those issue,3 in a later Chapter of this Report. The
Working Paper was sent to the Secretary, Legislative Department, Ministry
of Law, State Governments, High Courts, Bar Associations and other inter-
ested persons and bodies. Comments received on the Working Paper will be
summarised in a later Chapter of this Report.'

1. See Meng Heong Yeo, "Discretion to exclude illegally and improperly oblsainedi

evidence (1981) Melbourne Univ. Law Rev. 31.
2. Working Paper circulated in April, 1983.
Chapter 11, infra.

4. Chapter 9, infra.

p g ":1; ,.

'statute y

'bl fr" 'ht. .
I tyhea Ircidiaiispbfihgon should, of course, be taken as subject to the uali-

» 'L ,- 1;"... I ,1:

CHAPTER 2
THE DIFFERING APPROACHES

2.1. Broadly speaking, the common law world may be said to present
four varying models' as to the legal approach adopted on the question whether
evidence that has been gathered illegally or improperly should, nevertheless,
continue to be available for use at the trial for the offence, in the investiga-
tion whereof the evidence so gathered. The different approaches adopted
by the various models reflect the varying degree of intensity of the laW's con-
cern for the observance of legal restrictions as to the methods to be employed
for the gathering of evidence and for compliance with certain norms of pro-
priety in the gathering of evidence.

Incidentally, the use, in the present discussion, of two separate expres-
sions "illegal" and "improper" (and their adverbial counterparts) need not
be taken as implying that the_two situations represented by these two expres-
sions always stand in water--tight compartments. Nor does the use of these
expressions imply that every country which adopts a certain approach towards

Diifering
approaches

as to evidence
illegally or
improperly
obtained.

evidence obtained illegally necessarily maintains the same approach towards .

evidence obtained improperly, and z/icc 1/erra. The two expressions have

been employed in the discussion merely for the sake of convenience. If one
were to go into minute details, one would ﬁnd that the courts, in dealing
with the problem, do not always articulate their thoughts on whether the
decision in a particular case was inﬂuenced by the factor of illegality or by

A the factor of impropriety, or by both the factors.

. 2.2. Another preliminary clariﬁcation also appears to _be in order. Consmmiona]
Where a rule regulating the conduct of public ofﬁcers has, in a particular dimensions.

country, attained the status of a constitutional mandate, the controversy may
assume new dimensions and may present itself in a more complex form.

I' Where, therefore, the position in the ensuing discussion is statedias the posi-

tion under ordinary law, the statement may have to be taken as subject to

ualiﬁcation where the illegality or impropriety complained of has a consti-
tutional dimension that was not raised speciﬁcally in the case law cited on

p the particular point.

2.3. As stated above, the differing approaches revalent in various Cmgcms of

countries as to evidence obtained illegally or improper y seem to comprise %0utntrites--The'
rs ca egory.

-four broad categories. In the first place, the strictest approach is adopted
b certain countries (India included) ,2 where the.1l1c'ga1ity or impropriety em-
ployed in the collection of evidence does not (in the absence of a speciﬁc
I 'r or constitutional provision on the subject), render the evidence so
[obtained legally inadmissible, though such ille ality or impropriety might
The statement ma e in the preceding sentence

ﬁcation that the expanding scope of article 21 of the constitution, an the
cvcrwidcning interpretation placed on the words "pi_'ocedure established by

'1. Pamgraph 2.3, infra. '
2. Chapter 3, infra, discusses the Indian Law)

p ..,4...

The second
category.

The third
category.

The fourth
category.

Geographical
summary.

' able search and services) and the Fourteenth Amendment' (t

' the securing

. policy considerations.

law" as occurring in that article might possibly alter the position in this res-
pect; so far as could be ascertained, courts in India have not yet directly and

squarely dealt with the question whether, in any particular circumstances, the '

use of illegal or improper methods in collecting evidence would constitute a
breach of the requirement of "procedure established by law" laid down in
article 21. '

2.4. For the present purpose, the second category mentioned above' is
represented bycountriesz where the use of illegal or improper methods in
collecting evidence is regarded as relevant to this extent, namely, that at the

stageof trial,. the court, in its discretion, may regard itself as justified in ~
rejecting such evidence.

2.5. The third category mentioned above is represented by, situations
wherein the law, by a speciﬁc statutory provision, excludes a particular type
of evidence where it has been obtained in violation of some substantive norm
of conduct prescribed for public officials in a separate (but connected) rule.'

2.6. To the fourth category mentioned above belong those countries '
where a constitutional guarantee, or the judicial construction of a constitu-
tional -guarantee, excludes certain evidence from use at the trial, where
evidence has been obtained in violation of such constitutional guarantee.
The most familiar example of this category is the United States.' The case

law' of that country on the Fourth Amendment (protection aglainst\unr'ca_son-
e Due Process

clause) in particular provides instances of situations falling in the category. I

under discussion.

2.7. By. way of a very brief statement of the position in selected areas,
it may be stated that in the Uruted States, in .order to deter illegal activity in
of evidence in criminal proceedings, evidence -is inadmissible if
law enforcement oﬂicers have acquired it illegally or if illegalacts have led
to the discovery of the evidence. In Canada, on the other, hand, the-courts
have been 'more reluctantito subordinate the inquiry into truth" to extrinsic

and frequently exercised. The position in England is ﬂuid in this'regard.

In Scotland and Australia, a discretion is recognised ls

In India, the legal relevance of the evidence to the facts in issue »isi,.7under ;

the present law, the only pertinent consideration.

The way in--which the 5

evidence was obtained is treated as a collateral issue, having no bearing on 3
the admissibility of evidence in India, although the court can consider the'

Paragraph 2.3, supra. * ' ,_ _ ,_
For example the Law in Scotland and Australia, C11aP*€1'.4-5» "'f'"- ~

E.g. section 24. Indian Evidenee Act, 1872.
Chapter 6, z'n'fra._ J
Sec, further 'ch'a'pter 3, infra-

'}":"E"'!"'i"

matter as having some effect on the credibility of the party who produces it.' Q

, ..- _ -...,.;.-s

_ legal syste

~ratcly in a chain

CHAPTER 3
THE INDIAN LAW

3.1. According to the general approach of the Indian legal system, ille-
gality or impropriety in the gathering or procuring of evidence does not, in
itself, render the evidence so procured inadmissible, though it may affect its
weight in some cases. Courts in India have, in general, treated such viola-
tions of the law as having no relevance to the admissibility of the evidence.

3.2. This approach might have been due, to some extent, to the fact
that the Indian Law of evidence. is almost entirely codiﬁed, with an elaborate
classiﬁcation of facts into relevant and irrelevant, and speciﬁc categorisation
of admissible and inadmissible evidence, and similar other differentia laid
down by st;i:ute.
hensive "code of evidence enacted in the entire commonwealth (1872). By
the time developments regarding the discretion of the court to exclude.evi-
dence on grounds of public policy took shape elsewhere, the Act had already
become ﬁrmly embedded in the training and upbringing of the Indian Iudi-
ciar .
franiiework of the law of evidence did not ﬁnd a very hospitable soil in the
Indian Legal system. Courts, in deciding questions of the admissibility or
otherwise of evidence, had recourse only to the scheme and text of the Evi-
dence Act, and were not inclined to go outside the four corners of the Act

for determining questions of admissibility.

3.3. There is also another feature of the legal system of India, rcle- Codiﬁcation.

vant to the matter under discussion. It has so happened that by the time
the Evidence Act came to be enacted, the substantive criminal law and the law
of criminal procedure in India had also come to be in a codiﬁed form. In
its totality, this situation seems to have led to the implicit assumption that one
must, inithis sphere, have recourse to the statute law only. This approach

I I as fortiﬁed by the well-known pronouncement of the Privy Council to the

t effect that the "essence of a Code' is to be exhausdve in respect of all matters

' b the Code." This statement of the Priv Council on the inter-
dealt wit y . Y _ _ ,.
pretation of Codes in general became a classical test, which came to cited
almost on every occasion when an attempt was. made in the courts to_persuade

' - ravel outside the code on a articular SUl)]CCt for seekin u1'd-
the )u gc to t P g 8
ance in evolving the law. ' .
tion of the Evidence Act.' In short, the law of evidence ceased to draw its
juices from any other roots except what had been 'enacted in a codiﬁed form.

Besides this, we may mention yet another feature of the Indian
m that might be appropriately referred tom the present context.
f admissibility of confessions in criminal cases has in other coun-
tries provided a fertile ground for the exercise of judicial discretion to-exclude
evidence obtained unfairly. But, in India, the subject has beentreatcd elabo-
of sections in the Evidence Act,' thereby removing this parti-
cular topic from the area of discretion and narroWing_down the iudicial creati-
vity. Hence, in India, the question whether a particular confession' can, or

3.4.

The topic 0

1. Cf. Lekhrai v. Mahipal, (I878) I.L.R. 5 Cal. 744. 754 (P.C.).
2. Sections 24'-30, Indian Evidence Act, 1872.

.;--442 LAD/ND/83

The Indian Evidence Act was perhaps the ﬁrst compre- .

The super-imposition of common law doctrines upon the codiﬁed _'

The same approach prevailed as for the intcrprota- I

General
approach-.

Confessions.

cannot, be admitted on the record falls to be determined almost exclusively
by the statutory law and interpretation thereof, rather than by drawing any
principles originating in uncodiﬁed law. "lustice, equity and good con-
science" has been almost barren in this area of the law.

This is not the place for setting out the gist of the sections of the Evi-
dence Act relating to confessions.' The Law Commission has had occasion
in the past to analyse, as well as consider, these provisions in detail, in its
comprehensive Report on the Evidence Act? The point that is now bzing
made is that matters which, if there had been no codiﬁed law of evidence,
would probably have been dealt with in a more elastic manner by the exercise
of the discretion of the court to exclude certain evidence have in India, been
pre--empted by statutory provisions enacted on speciﬁc topics, of which confes-

7 sions are one important example. __

5 Illegal searches. " 3.5. It is also probable that once this "statute--oriented" approach
established itself in the sphere of confessions where there are specific statutory
provisions as to the admissibility of confessions recorded in varying circum-

~ stances, it later became a matter of habit for the courts to adopt the same

I approach on other topics as well. As a result, in regard to other species of
evidence also, even though there were no specific statutory provisions as to

' admitting or not admitting a particular species of evidence obtained in viola-

tion of the law, the same stance came to be adopted by the courts. The most

familiar example of this is furnished by the judicial approach in India in res-

cr; of evidence procured by search. The Code of Criminal Procedure, 1973.
lays down elaborate provisions as to the mode of search to be carried out by
the police for the purposes of investigation into an offence} These provi-

-. sions incorporate a number of safeguards required to be observed by the

police in carrying out such searches. When questions arose as to the admis-

sibility in evidence of materials gathered in a search that had been conducted
in violation of the relevant statutory requirements (particularly, the statutory
requirement that the search must have been conducted in the presence of
two independent witnesses)," the oourts, in general, started adopting a legalis-
tic approach. According to the trend of authority, evidence so obtained is
not per se, inadmissible'.5 Nor is there recognised any discretion on the part-
ofthe trial judge to exclude evidence obtained through a search not conducted

in accordance with law.

Non compliance with the statutory safeguards may call for strictures
against the police and may, also, affect weight" of the evidence. But the
legality of a conviction based on such evidence remains unaffected by the

defect in the search.7

I. Sections 24 to 30. Indian Evidence Act, 1872.

Law Commission of India, 69th Report (Indian Evidence Act, 1872) i"i'.i'wardcd in
May, 1977. '

'Section 100, Code of Criminal Procedure, 1973.

fs)

4. Section 100(4), Code of Criminal Procedure, 1973. - - 1 Q',
5. (a) Benamuli'v.. Emp. ILR (1939) 1 Cal. 210. ' l
(b) Valayudhan v. The State, AIR 1961 Ker. 8 (FB). ' ' ' ' i
(c) Kau Sain V. The State of Punjab, AIR 1974 SC 329, para 9., ~ 3 A' E' l
(d) Govindan, AIR 1959 Mad. 544, 548. ' 5 .
6. la) Malal Khan v. Emp. A.I.R. 1946 PC. 16, I9.
(b) Legal Remcmbraricvr V. Mamlazuddin, I.L.R. (1947) 1 Cal. 439.

_7, Simder Sirigli V. The State, A.I-R. 1956 SC. 411, 415.

------,¢n

ear' e-----~ ------~ -~.a_._-, ,-.,
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7
3.6. A Supreme Court decision of 1973' is sometimes regarded as rc- sugreme Court

cotrnising a discretion in the courts in India to exclude evidence obtained ille-- d°°'5'°"-°*-
gaily. But in fact the Supreme Court in that case held the evidence to be

admissible and did not accept the contention that illegality in gathering the

evidence aflected its admissibility. The point related to the admission, in

evidence, of a tape record of a conversation that took place in the telephone.

The charge was one of bribery, the accused being the Coroner of Bombay

who had demanded a bribe of Rs. 20,000 from a Bombay Doctor. The

bribe was demanded as the Cor0ner's price for not declaring the doctor guilty ' ' '
of negligence. The conversation that took place was between the doctor and '
the accused. The conversation was recorded by the anti-corruption police, ' '=;-'
who had been called in by the doctor for the purpose. A tape recorder was '
attached to the telephone at the doctor's end and the conversation

that took place betweeri the doctor and the accused was recorded

on the tape recorder attached to the telephone. Rejecting the argument

that it was illegal so to tamper with a telephone communication, the Supreme

Court held that even if there was any illegality, admission of the evidence in

-A"

>~ ' question did not thereby become impermissible. A feeble attempt was made ,

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to challenge the evidence on the score of article 21 of the Constitution, but
. that challange also did not succeed. e

In its discussion of the legal position relating to evidence obtainediil1e- ~
gally and in support of the view that admissibility was not affected by the '
illegality, the Supreme Court referred, inter alia, to the English law on the
subject. It was in this context that it referred to the judgment of Lord
Goddard in the well known Privy Council case of Kuruma. Lord Goddard
_had, in that case squarely, held that the adoption of illegal means in collect-
ing evidence did not affect its admissibility. Lord Goddard had ended this . '
exposition of law with certain dicta about the existence of a judicial discre-

- tion to exclude evidence obtained illegally, if its admission was likely to popc-
rate unfairly against the party against whom it is sought to be tendered. .. The
"Supreme Court of India, when dealing with English law, naturally referred
. to Lord Goddard's judgment, and it was in this context that the Supreme 1
Court made a brief mention of the above doctrine contained in the dicta , '
towards the end of Lord Goddard's exposition of the law- But the Supreme ' I .;
'Court had no occasion to consider at length the question whether courts in - =
' India possess any such discretion. In fact, the case before the Supreme Court
5, was not decided-on the basis of the existence or absence of any such di'scre- ' '
tion. The evidence was admitted notwithstanding the supposed illegality.
if the Supreme Court judgment is to be construed as indi-
urtsz in India have such a discretion, then our recommenda-
h a discretion in our statute law should be welcome. i
v . é

. In any case,
eating that the co
5 tion to incorporate sue

. . .. _____
. '." 'x

1. R. M. Mal/Em: v. State of Ma/iaiasmm, Ark. 1973, S.C.
2. Chapter 11, Infra.

Privy Council
case of _Kun1ma
Discretiona-
sending evidence

obi tined illeg lly.

Decision in
R. V. Sang.

' CHAP"i'ER 4

said : l

' decision of R. V. Sang,' the statement about the discretion of the Court ap- ,
The general quesjtiin-'i'

ENGLISH AND SCOTTISH LAW
1. ENGLAND

4.1. The classical statement of English law on the subject of. evidence
obtained illegally represented by the dicta to be found in the leading case of
Kuruma.' The actual decision in that case was in favour of admission of
the evidence, and the case itself did not arise in England, but was decided by
the Privy Council. But the observations of the Iudicial Committee of the
Privy Council in that case are of great interest, and are generally taken as
the starting point of any inquiry on the subject that does not support to 'go
too deeply into the history of the subject. " P

The Privy Council in that case held that evidence of the. accused's un-

, lawful possession of ammunition, discovered in consequence_of an 'illegal-

sear_ch of his person, was admissible.' The Privy Council acted on the princi-;
ple, recognised in some earlier English decisions, that, provided real evidence =
is relevant, it is legally admissible, however improperly-, it had been obtained. »-
The person against whom such evidence is tendered may. have acivil -rCiII_1¢,dy
against the person who obtained it; and the latter may be liable to jdisciplinagy,
or even criminal, proceedings. But the law is that : "It matters not how you ,
get it; if you steal it even, it would be admissible in evidence.7'2_

However, in delivering the opinion of the Board, Lord Goddard, '
,i"'No doubt, in a criminal case the judge always has a discretion to dis-
allow evidence if the strict rules of admissibility would operate unfairly
against an accused ....... .. If, for instance, ....... .. some piece of evi-.

' dencc ....... .. had been obtained from a defendant by a trick, no doubt,

the judge might properly ru-le it -out."3

4.2. It should be mentioned that in the comparative recent ll

pears in terms somewhatdifferent from earlier cases. '
certified in that case'by the Court of Appeal as ﬁt for consideration the A, A
House 'of Lords was : "does a trial judge have a discretion torefuse to aitéw»--~~ A
evid_ence~----being evidence other than evidence of admissions4'--t'o be given4"in--"7. c
any circumstances in which such evidence is relevant and of more' than 6

ma] probative value P" To this question, the following "answer-was ghtii V
by four out of the ﬁve members' of the House of Lords :-- -' 7'? -'~ -' s

"(I) A trial judge at a criminal trial has always' a discretion'to

to admit evidence ifin his 'opinion its prejudicial eﬂect outweighs "' "C. '

its probative.

1. Kumina v. R. (1955) 1 All E.R. 236 (P.C.).

. R. v. Learhem, (1861) 8 Cox C.C. 408, -501 (Per Crompton. J.). . 1 _ I I,

3. For the Canadian Law, see Clayton Hutchins, "Discretion of a trial Iudge to excligle 1 V'.
otherwise_ admissible evidence" (May 1981) Vol. 6, No. 3, Dalhousle LJ. 690, 699. - .

R. v. Sang, (1979) 3 W.L.R. 263, 288 (H.L.) Seen analysis 'Rosemary Pattenden, "The
Exelusion of Unfairly obtained" evidence in England (1980) 29 ICL, 666-686. ,

i.:
.j.

1
".
3.
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s_..._.~>._u--...v.: nu. A .

(2) Save with regard to admissions and confessions and generally with
regard to evidence obtained from the accused after his commission
of the oﬂence, he (the trial judge) has no discretion to refuse to
admit relevant admissible evidence on the ground that it was ob-

A tained by improper or unfair means". The court is not concerned
with how it was obtained."

The formulation of the law by Lord Salmon (in the above case of R.
_ V. Sang was in terms different from that of the other law Lords. But Lord
. ,. -Salmon did not disagree with the rest of the House. '

R. V. Sang, referred to above, is a recent case and it is not possible

to make any comment as to how far, if at all, it has modiﬁed the earlier'

It should however, be mentioned that' copies improperly obtained may be
excluded to prevent documents brought into court for a limited purpose from
being stolen.

4.4. There is another area where discretion is exercised in England in
A, regard to evidence. Evidence may generally not be given of a party's misé
conduct on prior occasions, if its only purpose is'-to show that he is a person
likely to have misconducted himself on the occasion-in" question. Butasuch
evidence is admissible if it is relevant for some other reason.' Yet, the'evi-
.; so relevant for some other purpose 'may relate to something which
Occurred a long time ago,' or it may be of a tenuous nature :3, As Cross
states, "-In all 'such cases, the judge ought to consider whether the evidence'
T 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 inter-
' tests of justice that it should be admitted. If, so far as the purpose is
'Concerned, it can in the circumstances of the case have only triﬂing weight,
jud will be right to exclude it. To say this is not to confuse weight
,V_ acﬁenissibility. The distinction is plain, butcases must- occur in which
j _ « would beunjust to admit evidence of a character gravely prejudicial to- the
. accused even though there may be some .tenuous.ground for holding
' it,1Q'chn,ically 'admissible. "The decision must then be left to the discretion

I .. and sense of fairness of the judge."5 ..

. _ The classical example in this ﬁeld. is Noor Mo_lz_zm2cd V. R' The
. acqgsed had been convicted of murdering A, the woman 'with whom he

i
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s
?, understanding of the position in England as to evidence illegally obtained.
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1 1

. although, there was no evidence that the poison had been'ad-
e ministered ,,by the accused. The accused "was on bad terms with her and.

. . fhe;purpQses.of his business, and A certainly met' her death throughicyainidei

' _ there wasasuggestion that she had. committed suicide. The Iudicial Com,-'
V /~~\_ ' ihittee ruled that the conviction should be quashed because the jud e had' 4
~' , wrongly admitted evidence in support of an inference that Noor Molgamed,

accused) had previously caused the death of his wife, Gooriah, with
'Vii'-Tliuns-a.lso he had been on bad terms, by' tricking her-into taking cyanide
, sa eure for toothache. Lord Du Parq, delivering the judgment of thc_ Privy'
féotincil, said of this evidence in its application to'the facts' of the case before
liimii: -

1.r.c. Films v. Video Exchange (1932) 2 All E.R. 241,247, , _ . .,_' V

_ ' f. j
b -- 2. "R V. Cole (1941) 165 LT. 125. " _
E. R. V." Doughty. (1965) 1 All E.R. 540; (1965) 1. W.L.R..331.-
i 6' 4. Cross, Evidence (1973). page 90. e ' ' _
' j Noor Mohammad _v. R. (1949) A.C.~182_ 192; U949)' 17 All E.R. 365,370., See also
4 _ Hams V. Director of Public Prosecution (1952) AC. 684, p. 707, (1952) 1 All ER, 1044,
I046 (per Lord Simon). ' .
6. Noor Mohamed V. R. (1949) AC. 182; (1949) 1 All E.R. 365 (P.C.).'

I had-been living. He was a goldsmith, lawfully possessed of cyanide for '

Discretion as to
eyiqcnce of
similar facts.

Discretion to :.

confession'. '

. ...-4g__;_.5'_...._*:_.s-,, , ,.,_ , A ,_ .,__,____,,Av__ _ U4 "-4",

...".'L'.".'L:"

;_'2:eu:_... ' ~

Confessions.

Discretion in
England in the
realm of evidence
and enumeration.

"If an examination of it shows that it is impressive just because
it appears to demonstrate, in the words of Lord Herschell in Ma/(in': c'u.rc1
'that the accused is a person likely from his criminal conduct or character to
have committed the oflence for which he is being tried' and if it is otherwise
of no real substance, then it was certainly wrongly admitted."

. 4.7. Confessions constitute the third category of cases in which discri-
tion is exercised. The judges discﬂztion in England to exclude legally ad'-
missiblc confessions is of a diﬂerent type? Few items of evidence can be
more probative than a confession, provided it was not made in circumstances
giving rise to a reasonable doubt concerning its reliability. The proviso
mentioned in the preceding sentence lies at the root of the exclusionary rule
of English law, which has been succinctly formulated in the following
terms :--- A i' " 7' '

"It is a fundamental condition of the admissibility in evidence
against any person, equally of any oral answer given by that person to
a question put by police oﬂicer and of any statement made by that per-
son, that it shall have been voluntary, in the sense that it hasnot been
obtained from him by fear of prejudice or hope of advantage, exercised
or held out, by a person in authority, or by oppression.'

This is one of the principles to which the Iudges' Rules of 1964 are
expressly stated to be subject.' The Rules themselves are no more than
guides to police oﬂicers in relation to the taking of statements providing for
the administration of a caution at different stages of an interrogation.
The introduction concludes with the remark that non-conformityyiwith
the Rules may render answers and statements liable to be excluded from evi-
dence in subsequent criminal proceedings. The judge thus hasa discretion

v to exclude a confession obtained in breach of the Rules, although it is legally

admissible. In fact, the concluding remark of the introduction simply reg
cognises the existence of a discretion to exclude 'confessions which are ' volun-
tary" within the above deﬁnition which had existed before the Rules'were

first formulated5 in 1921. M
4.8. It is not necessary to burden this Report with an exhaustivediscrcé
tion of all the situations in which courts in England are supposed to possess
a discretion to exclude relevant evidence on a particular ground. A fairly
recent study' enumerates these situations of discretion as under' :-- ' » V
(a) Illegally obtained evidence.
(b) Improperly obtained evidence.
(c) Evidence of similar facts.
(d) Cross-examination of. the accused as to character.
(e) Confessions. '
(f) Admissions by accused persons. Z A.
(g) Evidence calculated to prejudice the course of the trial.' . ' ~ ' .
Makin v. 4.0. for New South 'Wales (1394) A-C. 67 (PC). i

1. " i A ,,,,

2, Cross Evidence (1979), page 32. See note confession--~Recent Developmnt in
(1980) vol. I_C.L.Q. 327, 345. " ' ' »

3. Cross, Evidence (1979) page 32. . ' I .

4. The Rules are set out in, (1964)-1 Atl_ E.R. 237. See now Home Office circular No.
89/Judges Rules and Administrative Directions is the Police 1978 page'6. '

5. Cross Evidence 1979, page 32.~ - . . * 1 ' v . .-_

6. M.S. Weinberg, "Judicial discretion to exclude relevant evidence" (-1975) 21 M_C_ G111
Law Journal 1, ll to 13. N .

7. Footnotesappearing in the study are omitted for brevity. I _ V ,

8. On this, see the Australian case of Wilson V. R. (1970) 44 A.L.I.R._-z321,._22Z";~ the y

English case of R. V. List (1965) __3 All ER. 710, 711.

IL'
I
.- ,.

~......._...._,--

1 1
II. SCOTLAND

4.9. The law of Scotland on the subject of evidence obtained illegally
has taken a different approach from that followed in England. The trial
judge is not only granted a discretion to exclude evidence obtained illegally,
but it would appear that the court initially acts upon the principle that the
discretion is not to exclude, but to include,,irregularly obtained evidence.
While there is no absolute rule rendering evidence inadmissible because of
irregularity, yet when such evidence is presented, which presumption the
police may rebut by pointing to circumstances which excuse the irregularity
and justify the admission of the evidence.' In 'reaching a conclusion as to
the exercise of the above discretion, the judge is to bear in mind the state-
ment of Lord Justice General Cooperz that :

"The law must strive to reconcile two highly important interests
which are liable to come into conHict----(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 bear--
ing upon the commission of crime and necessary to enable justice to be
done shall not be withheld from courts of law on any merely formal or
technical ground". '

In the case from which the above mentioned quotation is taken, a shop-
lgec er had been convicted of using, contrary to the Milk Order, milk bottles
which had not belonged to her.- The crucial evidence in the case was given
by Inspectors of a milk--bottles collecting organisation, who found the bottles
as a result of an unauthorised search of her premises. She appealed against
the conviction on the ground, inter alia, that the evidence was inadmissible
as having been obtained by an illegal search. The court held that while an
irregularity in the obtaining of evidence will not necessarily render the evi«
dence inadmissible, yet in this case the conviction must be quashed, because
the Inspectors ought to have known that they were exceeding the limits of
their authority. .

4.10. Scottish law in the area is founded upon the principle that "an
irregularity in the manner of obtaining evidence is not necessarily fatal to its
admissibility (but) irregularities of this kind always require to be 'excused' or
condoned . . . . . . . ..whether by the existence of urgency, the relative triviality
of the irregularity or other circumstances."

4.11. Examples of exercise of the discretion in Scotland are available
in'. plenty. Evidence gained by scraping the ﬁngernails of a suspect without
his having been arrested and without his consent having first been obtained
was excluded,5 as the conduct of the police was technically an assault. Docu-
ments obtained by illegal search'were excluded» in another case. Lord
Guthrie wrote that their admission would "tend to nullify the protection
aﬂbrded to a citizen by the requirements of a magistrate's warrant and would
offer a positive inducement to the authorities to proceed by irregular
mc'thods.'="

T. J. B. Dawson, "Exclusion of unlawfully obtained evidence" (July 1982) Vol. 31 ICLQ

' page 513, S37. " ~

2 Lawrie v. Muir, (1950) Scotish Law Times 39, 40.

3. McGovern v. H. M. Advocate, (I950) S.L.T. I33, 135- .

4. Dawson "Exclusion of unlawfully /obtained evidence" (July 1982) Vol. 31, I.C.I.-Q.

513, 537, 538. '
5. McGovern V. II. M. Advocate, (1950) S.L.T. 133, ~145.
b H. M. Advocate V. Turnbull, (1951) S.L.T. 409, 411.

The Scottish
approach.

lfrinci lc under-
lying' -- ttish
11W.

Examples of
exercise of
discretion.

.~.,:s,... .¢..,,.¢....,. :. i

If
e i

G21' r _ - . . . . .

"' '"3 aw" _ 4.1;. .Tl'1C.SCOttlSl'1. yudges thus exercise a broad and Sul)]C'CtlVC discre-
tionary ]llrlSdlCt10n to include improperly obtained evidence. Since the
I9%OS,d however, a number of informal criteria guiding its exercise have
evo ve . .

(i) An irregularity may be more readily excused where the misconduct i
was not deliberate. The evidence was admitted in Fairly': care'
(for example), because the inspectors "acted in good faith, in a
mistaken belief as to their powers and in an endeavour in the public
interest to vindicate the law"-

(ii) Evidence will be admitted if found by chance in the course of 'an

1 otherwise legal search for another purpose.'
--(iii) Evidence is less likely to be admitted if improperly obtained by
private individuals rather than by public oﬂicials who may be held

accountable to their superiors}

(iv) Evidence may be excluded where there are no circumstances of
urgency.'

. ' , i (V) Where a speciﬁc procedure has been prescribed by statute5 failure
' to comply with it may result in exclusion.

'I' c p i i (vi) Where the police could easily have complied with legal require-

ments," exclusion may be the result.

' V. ' (vii) Where the illegality is a serious one, such as assault], the evidence *
may be excluded. ' _ '

On the other hand, exclusion of evidence is less likely in Scotland where 1
the accused is charged with a serious oﬁence, or where the crime is of 'a kind"
which is very hard to detect and prosecute by regular means,' such as in
liquor oﬂerices or blackmail. '

The major advantage of the Scottish approach is that it necessitates a
continuing judicial scrutiny of police practices and shifts the burden of justi-- ' _
fying improper action to where it belongs, namely, on thepolice themsells/es,

Fairley v. Fishmangers of Lyndon, (1951) S-L-T3 54. 53- .
H. M. Advocate V. Hepper, 0958) LC. 39. _ ' _ , _
Lawnc V. Muir, (1950) S.L.T. 37. ~ "' '
Hay v. H. M. Advocate, (1963) S.L.T. 334.
Lawriei V. Muir (I950) S.L.T. 37.

M('G0v_ern V. H. M. Advocate, (1950) S.L.T. 133.
H. M. Advocate V. Turnbull (1951) S.L.T. 409.
Hopes V. H. M. Advocate, (1960)'I.C. 104.

?°."?'."""-"N-

.. -..-_,--..... e T _

CHAPTER 5

POSITION IN AUSTRALIA AND
NEVV ~ ZEALAND

- 5.1. Broadly speaking, in Australia, it is accepted that the judge has gentefallruie in
the power, in the public interest, to exclude evidence which has been impro- N:;,razé:;::g. '

"N" ""--w 'V ' "'--'"'_\u( 'W p ~¢.'-a
X

perly obtained.'--2

It appears that this is also the position in New Zealand.-"

' .2. An interesting case arose recently in Australia,' in which a sample réllgtcfaliijn
" 3 85 0

"of the breath of the accused for the purpose of measuring its alcoholic con- bmth test
_ tent had been unlawfully obtained. The illegality consisted in failure by ,
7 _ thepolice to require the accused to submit to a preliminary roadside test---as _ '
prescribed by statute. Initially, the stipendiary magistrate who heard the
case held the evidence to be inadmissible on the ground that it had been
' " obtained unlawfully5 and consequentizﬂy dismissed the charge of driving
under the inﬂuence of alcohol. However, following an order to review the I i
,. decision the magistrate reheard the case. . While recognising that illegality 1
alone did not render the evidence inadmissible, he again excluded it, this time ,
in the exercise of his discretion on the ground that the evidence had been , '
0 A 'C ' unfairly obtained. The. prosecution once again sought an order reviewing
the decision, and the case ultimately reached the High Court of Australia.
« 5.3. The High Court of Australia held that a_ judge at a criminal trial gigﬁgfgiﬁg th
has, in addition to the discretion to exclude evidence which is more prejudicial High cpui-toll' 6 ~ ,
than probative, a discretion to exclude admissible evidence obtained impro- A"5"'"1'°~ ~ , f
perly. However, unlike Lord Diplock in R-. V. Sa__ng,°_th_e High Court did, '_ ' 5
not base this discretion on unfairness to the accused or on the need to disci-
pline the police} No doubt, concern was expressed that by; admitting illegal-
Iy obtained .evidence, the courts may appear A to. _condone, .and even
to encourage, such conduct. a But the emphasis which the High Court [put
was on the need to protect the right of a citizen.7 In the words of Step en

-- . and Aicken, I] :-- , I

i "It is not fair play that is called in question ............. ..but rather 3
society's right to insist that those who enforce the law themselves respect , . ,
. . it, so that a citizen's precious right to immunity from arbitrary and un-
-A lawful intrusion into the daily affairs of private life may remain unim- 1

paired."

.--------r---~,-_- Aﬁ--%"' jw.T7 ,. T' V
W

U
. ..... '..;..._.«_... 1.

Giﬁord and Gifford, Our Legal System (1981), page 80. d
For cases upto 1950 see Elliot Johnston. The Exclusiona
the abuse of public power (1950)-54 Aust. L.J. 466.

3. R. V. Lee (1978) 1 N.Z.L.R. 481, 486, 487.
(Supreme Court of NZ. per Chilwell I .) cited by Giﬂord and Gifford, Our Legal System A

(1981), page 80. . p ._ __
Buiining v. Cross (1978) 19 A.L.R. 641. . , V

R. v. Ireland (1970) 44 A.L.J.R. 263, 268. i ' ' ' - . - ~
R. V. Sang (See Chapter 4, supra). ' . - ~ . ' ' '
'rig rights'.'.(!077) Criminal Law .f-

ry Rule and controls over

.~}-

Compare Ashworth, "Excluding evidence as protecti
Review 723. i '

13
3-142 'I'.AD'fND'/'83

M' --/'~"?"7""" rwa-vi-I--na--------up------------~.-.__. V
y :
T' " 5" :5

Analyses.

Queensland
Report.

' Confessions.

5.4. In this decision,' public policy, rather than fairness to the accused,
was held to be the basis of the discretion of the court to exclude evidence ob-
tained illegally. The factors considered relevant (or not relevant) are as
under: 2--

(i) whether the law was deliberately or recklessly disregarded by those
whose duty it is to enforce it;

(ii) whether the nature of the illegality affected the cogency of the evi-
dence is not generally a factor to be considered, where the illegality
deliberate or the result of recklessness;

(iii) case of compliance with the law;
(iv) the nature of the offence charged;
(v) whether there was a violation of statutory procedures;
(vi) the urgency of protecting perishable evidence; T
(vii) the availability of alternative, equally cogent, evidence.
5.5. It may also be stated that in Queensland the Committee of In uiry

into the Enforcement of Law, has given a Report surveying the entire ﬁe d of
enforcement of criminal law and the fair and eﬂicient administration of justice.

The Reporthas particular reference to the preventing or inhibiting the _,

fabrication of evidence by police officers or other persons, the protection of
individuals from undue pressure with reference to investigation and interroga-
tion by police ofﬁcers and the question whether police powers of in-
vestigation, interrogation, search, seizure, and arrest are adequate to meet the
needs of the community in present day circumstances. Besides recommenda-
tions for the tape recording of statements made to police ofﬁcers which impli-
cate the maker of the statement in 'the commission of an indictable offence
and besides making certain otherrecommendations as to law enforcement,
the Report of the Committee had made certain recommendations as to illegal
evidence, which have been thus summarised3 :--

"That the law concerning the judicial discretion toexclude evidence ob-
tained by unlawful and unfair means should be recast and every appellate
court should itself have an unfettered discretion to consider afresh the admis-
sion of evidence said to have been unlawfully or unfairly obtained and, if
necessary, to substitute its opinion on the subject for the opinion of the court
of first instance. Also the burden of satisfying the court that any illegally
or unfairly obtained evidence should be admitted should rest with the party,
seeking to have the evidence admitted. The factors relevant to the exercise
of the discretion when the prosecution is seeking to tender evidence (obtain-
ed by unlawful or unfair means) include---- ' j

(a) the seriousness of any crime being investigated, the urgency or

difficulty of detecting of it and the urgency of attempting to pre-
serve real evidence of it,

(b) the accidental or trivialjquality of the contravention, and,

fully or fairly obtained by means of an available common law or
statutory procedure." a

5.6. Besides evidence obtained unlawfully, some other situations may
bring into play judicial discretion in Australia, but we do not pause to discuss

them.'

1. Bunning V. Cross (1978) 19 A.L.R. 641, 658.

2. Bmming V. Cross (1973) 19 A-L-K 641. 553- , «

3, (1981 April) Vol 7, No 2, Commonwealth Legal ulletm, pages_ 623, 625.

4 As to confessions, see Note "Confess1on". Recent elopments in England, etc. (1980)
Vol. 29 No. 3 I.C.L.Q. 327-345. , ,

....,-.A......-.. UK.

CHAPTER 6
I /4 POSITION IN CANADA

6.1. In general, as a matter of ordinary law, it was presumed before General
I97I that Canadian law would recognise a discretion in a criminal court to :§')§';°i';.','l
exclude evidence illegally obtained, on the same lines as was the position in .

* England as understood' before 1978. C
I I 6.2. However, in 1971 there came an important pronouncement of the Canadian case
' Supreme Court of Canada which seems to limit the discretion very narrowly, °f 1971'
while not abolishing it altogether.
«'3''.,.'.

3 In the Canadian case of 1971, the accused had been acquitted upon a
e I . verdict of murder by the trial judge (in a trial held with jury). The appeal
against acquittal ﬁled by the Crown to the Court of Appeal for Ontario had
also been dismissed? This dismissal was challenged by the Crown in its
appeal before the Supreme Court of Canada. The main question involved
was as to the validity of the principle stated in the reason of the Court of Ap-
peal of Ontario, that a trial judge in a criminal case has a discretion to reject '
' _' evidence, even of substantial weight, if the trial judge considered that the ad-
' mission of the evidence would be unjust or unfair to the accused. By a I
majority? the Supreme Court of Canada allowed the appeal of the Crown. I
The alleged illegal evidence in this case was a confession of the accused which
had led to the discovery of incriminating facts (the ﬁnding of the riﬂe with
I 'which the murder was committed). After a review of English and Canadian
decisions, Mr. Justice Martland, speaking forthe majority of the Supreme
Court of Canada, held that the recognition of a discretion to exclude admissi-
~~. ble evidence, beyond the limited scope recognised in a Privy Council case of
I949,3 was not warranted by authority and would be undesirable. He ex-
ressly disagreed with the, observations of Lord Goddard, Lord Chief ]ustice,"
in the English case of I955, to the effect that "the 'udge had always a dis-
cretion to disallow evidence if the strict rules of evi ence would operate un-
fairly against the accused." He pointed out that the English decisions pro-_
nounced after 1955 had all relied on the dictum of Lord Goddard, which
itself was (in his view) not warranted by authority.

' v --_.«-- I,' ....._.._...------«v---- - -v---o.--....«~..a-------------< v r -

6.3. Is evidence rendered inadmissible merely by reason of the fact C°"5'"""°mI

' that it has been procured in contravention of the provisions of the Canadiari casein Cam 3
_Bill of Rights P The Supreme Court of Canada, in a ruling of 1975, consi-
'/ - dereds the admissibility of a certiﬁcate concerning a breathalizer, test admini-

stered by oﬂicers who had refused the prior request of the accused to con-
sult counsel. It was argued on behalf of the: accused that refusal of an

opportunity to consult the counsel was a violation of the Canadian Bill of

Rights, that the breathalizer test and samplewas illegally obtained and there--

-fore the certiﬁcate concerning it ought not to be admitted as evidence. The

Supreme Court by majority held that even if the evidence had been illegally

2. Queen v. Wrav, (1971) S.C.R. 272. I

(Canada).

A' 3. Noor Mohammad V. The King, (1949) A.C. 181 (1949) 1 All E.R. 510 (P.C.). I
4. Kuruma v. The Queen, (1955) A.C. 197 (RC).

5. Hogan V. The Queen, (1975) 2 S.C.R. 574 (Canada). i

I 1. Chapter 4, supra.

I 15
I

Constitutional
. and legal
position.

or improperly obtained, there was no ground for excluding it at common law

and that, in View of other evidence of intoxication, one could not characte-B

rise as unfair the acceptance of the evidence as proof of the exact quantity
of alcohol absorbed into the blood stream. Speaking for the majority,
Ritchie, I. said, "I cannot agree that, wherever there has been a breach of
one of the provisions of that Bill, (the Canadian Bill of Rights) it justifies
the adoption of the rule of absolute exclusion on the American model which
is in derogation of the common law rule long accepted in this country." The
evidence had been obtained in violation of section 2(c) (ii) of the Canadian
Bill of Rights which (so far as is material) provides that----

"2 . . . . . . . . . . ..no law of Canada shall be construed or applied so as to
(c) deprive a person who has been arrested or detained

(ii) of the right to retain and instruct counsel without delay

Speaking for the majority of the court, and dismissing the appeal of the
accused person from a judgment of the Nova Scotia Supreme Court (Appeal
Division) which had aflirmed the conviction of the accused on a criminal
charge, Ritchie, I. made the following observations which clinched

the matter :

"The case of R. Vs. Drybones' is authority for the proposition that any
law of Canada which abrogates, abridges or infringes any of the rights igua-
ranteed by the Canadian Bill of Rights should be declared inoperative and
to this extent is accorded a degree of paramountcy to the provisions of that
statute, but whatever view may be taken of the constitutional impact of the
Canadian Bill of Rights, and with all respect for those who may have a
different opinion, I cannot agree that, wherever there has been a breach of
one of the provisions of that Bill, it justifies the adoption of the rule of 'abso-
lute exclusion' on the American model which is in derogation of the common

law rule long accepted in this country."

6.4. So far as could be ascertained, the position in Canada is'still sub-
stantially what it was stated or held to be in the above paragraphs. In other
words, (a) as a matter of ordinary law, (i.e. apart from constitutional issues),
the discretion of Canadian courts to exclude evidence obtained illegally is

very limited ;" (b) even in matters falling withinthe sphere of constitutional"
law, that is to say, where a speciﬁc provision of the Canadian Bill of Rights V

has been violated, there does not appear to be any more strict or different
approval in this regard.' L

Some writers on Canadianjlaw even think that the majority judgment

of the Supreme Court of Canada in the Queen Vs. Wray' has substantially

closed the doors in Canada on judicial discretion to exclude evidence Where
the discretion is based on the method of obtaining the evidence.5

R, V. Drybones, (1970) S.C.R. 282, 9 D.L.R. (3d) 473. (Supreme Court of Canada).

Paragraph 5.2, SUP"?-
Paragraph 6.3, supra.

Paragraph 6.3, supra.'

.' ' d S. C1 k ,1 Adm'ssibi1ity of illegally obtaincd_evidence (1981) age 31
§i{e;hti3C;ﬁBaaii~)ry F. Shaarnlfs, Comriient, (February 1983) 57 Tulane Law Rev. 64?, 664. '

.''':''':''.'''."''

i . - - ' 0 t '
6.5. It may be of interest to refer here to certain moves for reform in Cgrgggsiorf

Canada. The Ontario Law' Reform Commission has recommended legisla-
tion to reconcile the interest in avoiding illegality and the interest in admitting
A probative evidence. The proposed provision would read this way :--

"In a proceeding where it is shown that anything tendered in evi-
dence was obtained by illegal means, the court, after considering the
nature of the illegality and all the circumstances under which the thing
tendered was obtained, may refuse to admit it in evidence if the court
is of the opinion that because of the nature of the illegal means by which
it was obtained its admission would be unfair to the party against whom
it is tendered."

6.6. Section 15 of the proposed Evidence Code, (Canada), while not §:gcPg§gdliVi'

addressed directly to the precise problem here, attempts a more difficult com- (can,-.¢a)_
'promise encompassing illegally obtained evidence.' .

"I5. (1) Evidence shall be excluded if it was obtained under such
circumstances that its use in the proceedings would tend to bring the
administration of justice into disrepute.

"(2) In determining whether evidence should be excluded under
this section, all the c-ircumstances surrounding the proceedings and the
manner in which the evidence was obtained shall be considered, includ-
ing the extent to which human dignity and social values were breached
in obtaining the evidence, the seriousness of the case, the importance

-° ' of the evidence, whether any harm to an accused or others was inﬂicted
wilfully or not, and whether there were circumstances justifying the
action, such as a situation of urgency requiring action to prevent the des-

~ truction or loss of evidence."

It Civil action for

E "" 6.7. This proposal does not seem to have yet been enacted into law.
damages.

, apipears that the typical Canadian remedy is civil action against the oﬂending
o cial for tort damages? « '

Interception of
I, '.'

. ' 6.8. As to the interception of communications the Canadian Criminal communicadon

Code has an elaborate provision in Section 178.16 of the Criminal Code to '
which we shall advert later when discussing the position in U.S.A. '-5

Stanley Schiff, Evidence in the Litigation Process (1978), Vol. 2, page 961.
_ A Stanley Schiff, Evidence in the Litigation Process (1978), Vol. 2, page 961 : Law Reform
Commission of Canada, Report from Evidence (1975),-p. 22.

Barry F. Sharks, Comment (Feb. 1983) Tulane Law Rev. 648-665.

Paragraph 7.12, infra.

For the English position, see C. B. Walker. Police Survelliance b3?Technically Devices
(1980) Public Law 184, 191-198. . .

'.":'5" !'~?*">

(
"""'*" ' « . o . . ...-~.--o»...~~_ =o-- . ,_,__,,,- ,__. _,

.4; .__.',,_

Search and
seizure

(Fourth Amend-

ment).

Constitutional
rights--eﬁ'ect
of violation on
the law of
evidence.
Exception in
regard to
illegal search.
/

Illegal search
and seizure.

CHAPTER 7
POSITION IN U.S.A.

7.1. The American law illustrates a position at the extreme, in view of
one of the constitutional guarantees as judicially interpreted in that country.
Examples of this ap roach can be drawn from the Fourth Amendment in a
large number. A airly uptodate American work on Evidence gives a neat
and concise statement of the law as to search and seizure in that country in
these terms :----'

"Evidence obtained as a not-too-remote or not-too attenuated result
of violation of the federal Constitutional prohibition against illegal gov-
ernment-sponsored searches and seizures .......... ..(mattcr in parenthesis
omitted in this quotation) cannot be admitted as substantive evidence in
a criminal case in any court in the land (matter in parenthesis omitted
in this quotation) as against the person whose rights were invaded."

Matter appearing in the ﬁrst parenthesis (in the above statement of the
position) relates to the federal constitutional prohibition. It states that the
federal Constitutional prohibition against illegal searches and seizures in the
Fourth Amendment "is applicable against agents of the States by virtue of
the Fourteenth Amendment----the two provisions being probably co-terminous
as interpreted in the present respect". Matter appearing in the second
parenthesis in the above statement states that the bar against admission as

substantive evidence in a criminal case arises "again by virtue of the Fourth ' V

and Fourteenth Amendments which are again probably co-terminous for these
purposes."

7.2. Thus, for violations of constitutional rights, there are available in
U.S.A. not only ordinary civil, criminal and equitable sanctions, but also a
privilege toexclude evidence' obtained in breach of such rights.

There is an exception to the privilege for use of the evidence for

impeachment3 "(impeaching the credit)", where the accused, who has been . f
the victim of the illegal search or seizure, takes his stand and (in either direct '

examination or cross--examination) denies possession of the materials seized
'from him as a result of the illegal search or seizure.'

7.4. What constitutes illegal search and seizure is more a matter of
_Constitutional Law than of the law of evidence in U.S.A. However, some
of the that have relevance to the resent discussion ma be stated :5

P Y

A search or seizure will be illegal if it is unreasonable as to

(i) the grounds of suspicion stimulating it (even'if the search .there-
after uncovers suﬂicient grounds), or

(ii) the manner of execution, or

Rothstein, Evidence in a Nutshell (May 1981) page 465.
Rothstein, Evidence in a Nutshell (May 1981) page 463.
Rothstein, Evidence in a Nutshell (May 1981) pages 465-466.
(a) U.S. v. Havens, (1980) 446 U.S. 620.

(b) Walder v. U.S., (1954) 347 US. 62.

5. Rothstein, Evidence in a Nutshell (May 1981) pages 466-467.

:""."'!"'-'

..»......_.. ....
\ «A

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'a..m;- wjmv w .>.. >. .,

.r_.....=»;......-_

-----r--- ,

'sur-

9*. 9- .~\:»'.~':-rt

(iii) the range of the search, or

(iv) the items seized.

7.5. Arrest is a "seizure" of the person, so that it must comply with
these requirements in order to be constitutional, and in order that the evidence
obtained in consequence may be regarded as legal. '

7.6. If these things are complied with, a warrant (of arrest or search)
is not necessarily required. However, a warrant is required (in addition to
these other requirements) in special areas which the courts deem to be high
in privacy expectations (provided getting a warrant would not entail substan-
tial law enforcement problems), such as the defendant's home,' assuming
there are no special exigent circumstances.'

7.7. Some jurisdictions in U.S.A. extend a similar privilege to civil
Cases. However, this approach is not favoured by the Supreme Court.3

7.8. The approach adopted bysthe Supreme Court of U.S.A. in rela-
tion to evidence procured by illegal search has provoked conﬂicting responses
from those concerned with the administration and from academic writers.

Speaking to the American Bar Association's" 1981 annual meeting in
New Orleans, Vice President Bush decried the "lawyer who gets a brutal
murderer acquitted by a deft use of exclusionary rule" and endorsed the call
'of the Attorney--General's Task Force on Violent Crime for a modiﬁcation
of the rule. A few weeks later, in New Orleans, President Reagan also back-
ed the Task Force's recommendation and said that the rule was based on an
"absurd proposition". As far back as 1971, Chief Iustice Burger declared
(in a dissent) that the rule results in the release of "countless
guilty criminals". A

7.9. In contrast, a spokesman for the American Bar Association, urging

the task force to support retention of the rule, recently asserted that the exclu-

sionary rule (which forbids the use of ' illegally seized evidence against a
criminaldefendant), "has contributed to substantial law reform .......... ..in-
creased the professionalism of federallaw enforcement officers .......... ..(and)

_ vastly enhanced the integrity of the federal judicial process."5

, 7.10. A recent comment on the subject, after summing up the rival
views, expresses itself thus :5 '

"What clearly emerges from these prominent and frequently echoed

statements is that those who debate the merits of the Fourth Amend-

- ment exclusionary ru1e--judgcs included---have not been timid in mak-
ing assertions of the facts about the operation and effect of the rule.

"But is there empirical support for these assertions P If not, do
we have the capacity to test them empirically P These questions be-
come increasingly important as judicial ' and politicai campaigns to

US. v. Chadurak, (1977) 433 U.S. 1. .
Rothstein, Evidence in a Nutshell (May 1981), pages 466, 467.
US. v. Janis, (1976) 428 U.S. 433. .
William A. Gelner, "Is the Evidence in for the Exclusionary Rule" (May 198]) 67
ABA] 1642. _

William A. Gelner, "Is the Evidence in for the Exclusionary Rule?"_ (May 1981) 67
ABAJ 1642.

William A. Gelner, "Is the Evidence in for ma Exclusionary Rule?" (6 Ma 1981)
6'/ABAJ1642._ . 2 y_ V

Arrest.

Warrant when
required.

Civil cases.

Criticism.

Recent comment

as to the exclusio-

nary rule based
on the Fourth
Amendment.

l
.

4. l.

i E Interception of in U.S.A. Oanadian law-

aection 178 . 61- Oanadian Crimi-

nal Code.

The established trend In U.S.A. as evidence in the proceedings."

by thz United States Supreme Court has proceeded on lines diﬁerent fro , . Canada and even though there has been a retreat in recent years, it is unlik L' that the trends established in the 50s and 60s would be totally reversed.

Katz v. U.S. (1967) 389 U.s. 347. _ _ _ _ -

Section 178.16, Canadian Criminal Code. Cifed in Stanley Schlff, Evidence In the lain-3 ttou process (1978) Vol». 2. P3?' 951" I 20 modify or abandon the exclusionary rule pick up momentum (bills are now pending in the Senate to modify or eliminate the rule) and bar groups and others invest considerable resources in its defense. We may be on the brink of a major policy decision Without beneﬁt of sufﬁcient empirical materials to inform." ' ' _ _ _ 7.11. Apart from search proper, the scope of the Fourth Amendment °°""""m°""°"' ment has been extended in the United States' by excluding evidence of an accused person's conversation over a telephone in a telephone booth, where the evidence was obtained by an electronic listening and recording device attached outside the telephone booth.

; A 7.12. With this, one may contrast the statutory provision in Canada. Section 178.16 inserted in 1977 in the Criminal Code (so far as is material) 1 reads as under2 :---

"I78.I6 (I) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication ' or the person intended by the originator to receive it unless '

(a) the interception was lawfully made; or

(b) the originator thereof or the person intended by the origina-H;

tor to receive it has expressly consented to the admission there- f of; but evidence obtained directly or indirectly as .a result of information acquired by interception of a private communi- 'cation is not inadmissible by reason only that the private cotn'- i munication is itself inadmissible as evi ence. , A, 12 (2) iNotwithstanding sub-section (1), the Iudge or m 'strate1 . presiding at any proceedings may refuse to admit evidence 0 tained; directly or indirectly as a result of information acquired by interception or a private communication that is itself inadmissible as evidence whcrej he is of the opinion that the admission thereof would bring the admini-3 stration of justice into disrepute.

(3) Where the judge or magistrate presiding at any proceedings , is of the opinion that a private communication that, by virtue of 3115-"

section (I), is inadmissible as evidence in the proceedings -

(a) is relevant to a matter at issue in the proceedings, and

(b) is inadmissible as evidence therein by reason only of a of form or an irregularity in tplrocedilire, _not fbeing 'ah -_ p _ ; :.

eapplcatlon or or cgi 3 * tivo defect or irregularity, in _ . __ of the authorisation under which such private corﬁmunlca was intercepted, notwithstanding sub-section (I), admit such private The invocation of the constitutional, guarantees of civil liberties ,_--..

."'."!"'."

1 .1. £.;_ 21 general attitude of the Supreme Court of the United States in this matter has been to exclude evidence obtained in violation of a speciﬁc constitutional prohi- bition. The principle was very dramatically stated in a well known case decided in 1952,' which holds that evidence obtained as a result of violation of a due process right of the accused (right to be free from abusive treatment at the hands of the State authorities) would, if introduced against him a criminal case, itself be a violation of his right to due process. There the accused was made to vomit up incriminating evidence that he had swallowed. Had testimonial statements rather than physical evidence been coerced out of the defendant, this principle would overlap those for coerced confessions and the privilege against self--incrimination. The case has not yet been appli- ed where the abuse was not perpetrated by or for or with the complicity of the government, or to civil cases.

7.14. -This principle was developed in other well-known case of T9642 in which the accused had been refused by the police his request to consult his lawyer during interrogation and had not been informed of his right to remain silent. An inculpatory statements made by the accused person while he was being interrogated in police custody and before he had been charged was, by reason of the above mentioned refusal of the olice, held to be not admissible at the subsequent trial. The ruling was Eased on the Sixth Amendment to the Constitution of United States, which, so far as is material, reads :---

"In all criminal prosecutions, the accused shall enjoy the right .......... ..to have the assistance of counsel for his defence."

7.15. Going further, in I966,3 the rules as to police interrogation of criminal suspects were examined in detail. The new doctrine (to quote from the court's own words) was thus stated :--

"The or inculpatory, prosecution may not use statements, whether exculpatory stemming from custodial interrogation of the defendant unless

- it demonstrates the use of procedural safeguards effective to secure' the privi-

lege against self-incrimination" (-The Fifth Amendment guarantees that "no person shall .......... ..be compelled in any criminal case to he a witness, against himself .......... _,".

Equally relevant is the earlier decision of 1961.' The Fourth Amend-

ment guarantees "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures". Imple- menting this constitutional guarantee, the Supreme Court held that any' real object seized by the police is barred from evidence in all federal and state criminal Proceedings.

7.16. Until Wolf Vs. Colorado,' the Supreme Court did not consider whether the exclusionary rule applied in state courts. In that case, the Fourth Amendment was held to be binding on the States, but, six members of the Court voted not to embody the exclusionary rule in the Fourteenth Amendment. Mr. Iustice Frankfurther, after a survey of the pracdce on Rochin v. CaIifo_rm'a, (1952) 342 U.S. 165. Escobedo v. Illinois, (1964) 378 U.S. 473.

Miranda v. Arizona, (1966) 384 U.S. 436.

Mapp v. Chic', (1961) 367 U.S. 643.

See para 7.17, infra.

5. Wolf v. Colorado (1949) 338 U.S. 25 (reviews comparative practice in other 'countries also), (overruled in Mapp. v. Ohio (1961) 367 U.S- 463), 4-4.42 LAD/ND/83 Evolution of the law.

Cases of 1961

-1966.

State Courts.

this point, concluded that "most of the English-speaking world does not re- gard as vital .......... ..tho exclusion of evidence thus (illegally) obtained". Accordingly, the Court, he said, "must hesitate to treat this remedy as an essential ingredient of the right." If evidence secured by illegal invasion of - privacy was nonetheless used in court, the sanctions suggested by Frankfurther I. were----"the remedies of private action and such protection as .the internal discipline of the police, under the eyes of an alert public opinion, may afford." ' ' I p 7.17. In Mapp Vs. Chio' the Court by a ﬁve to three vote, overruled Wolf Vs. Colorado. Police oﬂicers, suspecting that a law violator was hiding in a certain house, broke in the door, manhandled a woman resident, search- ed the entire premises, and discovered some obscene materials in a trunk. , 7 The woman was convicted of possession of these materials. The State Court, *3 poi11ting out that the objects have not been taken from the defendant's person 1 ' by brutal or offensive physical force (as in Rochin),2 permitted their use in evidence on the basis of Wolf. But the Supreme Court disposed of Wolf Vs. - Colorado, Iustice Clark saying : ~ _ Y . _ "The ignoble short-cut to conviction left open to the State (b Wolf) tends to destroy the entire system of constitutional restraints on w ich the liberties of the people rest. Having once recognised that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and , ' _, .1 that the right to be protected against rude invasions of privacy by State ofﬁ- cers is, therefore, constitutional in origin, we can no longer permit that right ' again to remain as an empty promise". ' Sft°e:i'*°§t*':es 7.18. Before 1914 illegally obtained evidence was always admissible ii ' in United States courts.' The law has changed since then, through judicial ' construction of the Fourth, Fifth and Fourteenth Amendments to the Consti- tution. The American courts have held that the Fourth Amendment right"

to be secure from unreasonable searches and seizures can only be enforced * by the sanction of excluding evidence obtained in breach of it both in state and federal courts." The rule extends to the "fruit of the isonous tree", i.e. evidence obtained by using the information gained from c illegal search and seizure? It extends to oral evidence as we 1 as real, e.g. statements over- ;

heard through a microphone driven into the wall of a house,' or statements' . ;

'made to police during an unlawful search.7 A more spectacular recent exten-

sion is the holding that wire tapping and eavesdropping fall within "sea1'chesl and seizures"."

But the American ruleihas limits, some quite old, others more recent.

An accused cannotinvoke the rule if the evidence was obtained in breach of another'; rights.' The rule does not apply' to breaches by a private _ Mapp v. Ohio (1951) 3§7 U.S. --'463.

Rochih v. California (1952) 342 U.S. 165. _ j p Boyd v. United States (1896) 116 U.S.; Adams v. New York (1904) 192 US. 585, Weeks V. United States:(1914) 232 U.S. 383; Wolf V. Colorado (1949) 338 U.S. 25; Mapp v. Ohio (1961) 367 U.S. 643. .

Silverthorne Lumber Ca. V. United States (1926) 251 U.S. 385.

Silverman v. United States (1961) 355 U.S. sos. -

Wong Sun V. United States (1963) 371 U.S. 471. , Katz v. United States (1967) 389 US. 347; United States V. Whife, (1971) 301 U.S.

745. .

Aslgderman V. United State: (1969) 394 US. 155; Gf- P901176 V. M0715" (1955) 290 9- 24 .- - 3%,-arw 2.1 A

--------.v v--'..---_ 1-:-4?"*"' _--_~-----an... u \/A .4|,lsalA.r.J.t over» 23 itidividual rather than a state official.' It does not apply to evidence put to a . federal grand jury.' It does not apply to evidence admitted only on some issue collateral to guilt, such as the accused's credibility as a witness? The require- inents of the Fifth and Fourteenth Amendments that the federal or a state government shall not "deprive any person of life, liberty or pro' erty, with- out due process of law" may lead to the exclusion of evidence 0 tained by methods which "do more than offend some fastidious squeamishness or pri- vate sentimentalism about combating crime too energetically", that is, methods which "shock the conscience", e.g., the forcible stomach pum ing of the accused to reveal his having swallowed drugs.' Normally evi ence obtained through breaches of the law which do not infringe constitutional rights is admissible.5 - ' ' 7.19. Th; exclusionary rule has continued to be controversial in U.S.A. The general public undoubtedly sees it as one of the "technicalities" of the law which handcuffs police and lets criminals go free. But scholars and judges also join in the criticism. In a major article, Dallin H. Oaks con- cluded that the rule did not deter police misconduct and that it had the nega- tive effects of fostering false testimony by law enforcement ofﬁcers, seriously delaying and overloading criminal proceedings and diverting attention from the search for truth on the guilt or innocence of [the defendant. But, in spite of these weaknesses and disadvantages, Oaks would not abolish the rule "un- til there is something to take its place .......... .. "It would be intolerable if ' the guarantee against unreasonable search and seizure could be violated with-

out practical consequence."

7.20. Oaks would replace' the exclusionary rule "by an effective tort remedy against the offending officer or his emp oyer .......... .. A' tort re- medy, could break free of the narrow compass of the exclusionary rule, and provide a viable remedy with direct deterrent effect upon the police whether the injured party was prosecuted or not."

7.21. In Bivens Vs. Six Unknown Name Agents' Burger C.'I. (dissent-

Criticism in U.S.A. ing) took the same position. Although he opposed the exclusionary rule, he ' likewise agreed that it would not be abandoned until some meaningful alter-A V native can be developed". He recommended that "Congress should develop _an administrative or quasi-judicial remedy againstthe government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated."

7.22. Some of the key issues and considerations in the growing debate about the exclusionary rule, in the context of search and seizure, have been;

1. Burdeau v. McDowell (1921) 256 U.S. 465. This seems to be an anomalous survival for private persons of the "silver platter" doctrine rejected in Elkins v. United States (1960) 364 U.S. 206, by which evidence illegally obtained by state officials could be used in federal courts.

United States V. Calandra (I974) 414 U.S. 338. Walder v. United States (1954) 347 U.S. 62. I Rochin v. California (1952) 342 U.S. 165, at p. 172 per Frankfurther J. Muller V. United States (1958) 357 U.S. 301- , Dallin H. Oaks, _"Studying the Exclusionary Rule in Search and Seizure" (I970) 37 University of Chicago Law Review 665, See Pritchett, The American Constitution (1977), page 438.

,7. Dallin H. Oaks, "Studying the Exclusionary Rule in Search and Seizure" (I970) 37 Univ.

of Chicago L.R. 665.

'8. lgivens 'V. Six Unknown Nantes Agents, (1971) 403 U.S. 388.

A recent" dis-

cussion about the U.S.A. . .o..._......... ..-,". xv. . .. . .-....'...~-- «aw '-1--M -

examined in a recent article in the Anglo-American Law Review.' The article concludes that the U.S. Supreme Court would be unwise to abolish the exclu-

sionary rule. It is pointed out that even if the exclusionary rule does not ~ protect the integrity of the judiciary in the eyes of the public, it does support the credibility of the court and the law in the mind of police officers. More- over, according to the article, there is good reason to believe, that the exclusionary rule does not allow criminals no go free as much as would be the case if direct sanctions were applied. At the same time, the article demonstrates that the exclusion of evidence olitained in violation of the Constitution acts as a reasonable deterrent to illegal police searches. While scholars have expressed doubts about the propriety of the rule, according to the article, the police would not understand, or respect, a court which would reverse itself on a matter which appears to be so fundamental. American constitutional tradition is such that the police would have difficulty in believing that any civilized Government would like to proﬁt by a violation of the law.

\ l. Loewenthal, "Evaluating the exclusionary rule in Search and seizure" (1980) Vol. 9, No. 3, Anglo-American Law Rev. pages 238-256.

'" ------<~s_.. .._A .......__..-«vs \1r CHAPTER 8 A CASE FROM IAMAICA _8.1. There is an interesting Privy Council decision on appeal Privy Council Jamaica, which represents one approach concerning the eﬂect of a const1tu- case from tional provision on evidence obtained illegally or improperly. The Privy Council' considered the subject of illegally obtained evidence generally and the eﬂect of the search and seizure provision in the Iamaican Constitution. Many of the relevant cases in Scotland and England were discussed.

,8.2. The evidence in question had been obtained by an illegal search of the accused.

Jamaidas Unfairness to be 'ridged from _all The Privy Council discussed in this context the following {he smoundmg statement of Lord Parker concerning judicial discretion to exclude illegally circumstances-

or improperly obtained evidence : "It would certainly be exercised by ex- cluding the evidence if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, anything of. that sort."2 The Privy Council, however, qualiﬁed this statement by concluding that unfairness to the accused in this context is not susceptible of close deﬁnition and must be judged in the light of all the material facts and ﬁndings and of the surrounding circumstances. This, with respect, is a very welcome exposition of the concept of unfairness, if that is to be taken as criterion for excluding evidence obtained illegally or improperly.

8.3. However, the particular relevance of .the above ruling of the Privy Council to constitutional issues is the disposition of the argument that, where the illegally obtained evidence was obtained in violation of the accused's constitutional right, it ought to have been excluded under the Iamaican Constitution. Lord Hodson disposed of this argument concisely :

"This constitutional right may or may not be enshrined in a written constitution, but it seems to the Lordships that it matters not whether it depends on such enshrinement or simply upon the common law as it would do in this country. In either event the discretion of the court must be exercised and has not been taken away by the declara- tion of the right in written form".

1. King V. The Queen (1978) 2 All ER. 610 (P.C.). Calli: V. Gunn, (1964) 1 Q.l§. 495, 502.

3° 25 Constitutional _ aspect ofthe Privy Council ruling.

l i Comments receld ved ; a 'general description.

High Courts.

State Govern-

ments .

Other comments.

CHAPTER 9 COMMENTS RECEIVED oN THE WORKING PAPER 9.1. Having dealt with the legal position in India and elsewhere, we now turn to the opinion on the subject. A Working Paper prepared on the subject by the Commission was circulated in February 1983 for comments to interested persons and bodies, including the Secretary, Legislative Depart- ment, Ministry of Law, all High Courts, all State Governments and Bar Asso- ciations. A request was made to forward comments by the 15th April, 1983. The Commission has before ﬁnalising its views, taken into account all com- ments received upto the 15th September, 1983.

Replies have been received from ithree High Courts, four Statq Govern- ments, two Registrars of High Counts (personal views), one Additional Chief Metropolitan' Magistrate and one lady advocate. We are grateful to all of them for having responded to the .Qu_estionnaire. We shall presently deal with some of the important points made in the_comments. ' P 9.2. Three High Courts have sent replies in response to the Working aper-- ' '

(i) The Judges of the one High Court have no views to offer in the matter.' F

(ii) Another,High Court' regards the present law as just and fair and not needing reform.' ' ' '

(iii) As regards the diird High Court, nine of its judges have no views to olfer. The rest have not expressed their reaction.

Four State Governments have sent comments on the Workigtig Paper.' Of these four, two favour the proposal for amendmﬁnt (put fo in the Working Paper) so as to confer a discretion on the court. The third State Government is of the view that even now such a discretion 67153-15 and no amendment is needed. The {fourth is opposed to any amendment, giving the reason that it may lead to collateral inquiries, which is not desirable.

9.4. The Registrar of one High Court, presumably expressing his per- sonal view, agrees that a statutory amendment, as proposed.in the Working Paper conferring a discretion on the court, is needed.-5 The Registrar _(Appellate side) of another High Court, again expressing ' his personal view, is opposed to an amendment, thinking that vesting a discre- tion even in the judiciary may "degenerate into caprice." However, in the very next paragraph of his reply, he has stated that violations of human rights can be more effectively checked by- "judicial vigilance" rather than by the _ suggested changes in e law.' In this context, it should be pointed out that Law Commision File No. F. 2(7)/83-L.C. s. No. 4.

Law Commssion File No. F. 2(7)/83-L.C. s. No. 8.

Law Commission File No. F. 2(7)/83-L.C. s'. No. 10.

Law Commission File No. F. 2(7)[8_3-L.C. s. No. 11, 13, 14 and 15. Law Commission File No. F. 2(7)/.83-L.C s. No. 9.

Law Commission File No. F. 2(7)/83-L.C. s. No. 2.

.°'."':"E"!"!"' \ " W" "' '"""'--_--*"'g/'K- _. ,.

i assume that discretion to exclude evidence illegally procured is already vested fa": existins ' in the court under the existing law.' This does not, however, appear to be ' 1 . i , - l 27 judicial vigilance is precisely what is contemplated in the recommendations that are going to be made in this Report.' The comments of the Registrar (Appellate side) of the High Court express the apprehension that a judicial discretion to exclude such evidence will help criminals? But we are happy to note that the other side of the picture has been correctly put by an Additional Chief Metropolitan Magis- trate, who has stated in his comment as under' :-

"If the courts overlook the collection of evidence by illegal or im- proper means, the respect for the purity of the judicial process is under- mined in the public eye . . . . . . . . . . .. If the rule of wholesale admission of evidence illegally or improperly obtained were to be applied, then there is a live danger that the conduct of the police in securing such type of evidence will be seldom scrutinized in the courts of law. The cross--examining counsel will become resigned to the position and may not question the police about their questionable methods." 'A He has wholeheartedly favoured the confetrmertt of a discretion on the judge to exclude evidence obtained illegally or improperly, where the illegality is of' a shocking nature. Besides wholly agreeing with proposed section 166A, he has also made the suggestion that confessions obtained by fraud, deception or trick should be made inadmissible and that section 29, Evidence Act should be amendedifor the purpose.' Conﬁning the proposal to cri.

9.5. We must now turn to a point raised by Mrs. Phiroza Anklesaria, minal cases.

an Advocate of the Bombay High Court and a Solicitor of the Supreme Court of England.' She has raised the question whether conﬁning the proposed provision to criminal cases will not mean that in civil cases the law tolerates the illegality.

Invthis context, we would like to point out that what the proposal amounts to is creating one more sanction in respect of illegality. It does not mean that the illegality as such is condoned. Even now, for ille al conduct which amounts to a crime or a tort, the appropriate remedy can ﬁe pursued, and that remedy remains unaffected. The-. proposal merely adds to that I'CI'IlCdy 011C l'I10l'Cu sanction.

One can rationally suggest a special provision in this regard for criminal ' I _. cases, where life and liberty are involved much more frequently than in civil - . cases. Experience also shows that occasions for committing serious illegali- ties or improprieties that shook the judicial conscience arise more often in v the pretrial processes concerned with criminal investigation than in prepara- tory steps for civil cases. The need for a provision on the subject is there- fore much stronger in criminal cases -than in civil cases.

9.6. Some of the comments received on the Working Paper seem to some ,,.,;..,,.,,.,,

1. Chapter 11, infra.

2. Law Commission File No. F. 2(7)/83-L.C. s. No. 2.

3. Lalyxv Cppimission File No. F. 2(7)/83-LC. s. No. 2 (Two comments were received with ' , , s. o. . '2.

Law Commission File No. F. 2(7)/83-LC, s. No. 2. ' ' ' Law Commission File No. F. 2(7)/83-LC, s. No. V]. V . ' Law Commission of India File No. F. 2(7)/83-LC. s. No. 1 (Mrs. Phirozh Anklesdtia I - o l 1 Advocate). __ t _ __ _ ,_ H E l ?'S-'':* Illcgality irregularity.

and 28 quite a correct assumption. We have discussed in an earlier Chapter the present law and pointed out that' no Indian 'decision---not even a Supreme Court decision of 1973, sometimes relied on for such an assumption--regards illegality as a ground for rejecting evidence gathered illegally.

9.7. A few comments on the Working Paper have argued that Indian law already makes a distinction between illegality and irregularity, even in the matter of admission of evidence. They assume that where an illegality goes to the root of the investigation of the wrong or the offence, the evidence is liable to be excluded in the trial of the matter. This assumption, however, does not harmonise with the judicial approach as reflected in numerous deci- sions. In fact, the Supreme Court! has clearly held' that illegality in obtain- ing evidence does not lead to its exclusion. Probably some confusion has been created because procedural illegality in 'a trial of a criminal case may be a ground for quaslzing the conviction, while, in contrast, mere irregularities do not lead to such a position. This does not mean that illegality in the gathering of evidence leads to its exclusion from use at the trial.

Questions of procedure are mostly decided on consideration like the "mandatory or directory character of a procedural safeguard. What the pre-

sent inquiry is concerned with is a diﬂierent aspecu : is the misconduct of a law enforcement oflicer such that the court ought not to lend its aid to it and should discourage it by excluding the evidence from admission P Some considerations may overlap in concrete cases, but the philosophy that needs consideration, and may supply justification for exclusion of evidence in situations contemplated by the present Report, is quite distinct from an exer-

cise focussed on the mandatory or non-mandatory character of a statutory provision.

1. Paragraph 3.6, supra.

2. (a) R. M. Malkani v. State of Maharashtra, AIR 1973 S.C. 153,

(b) Magrai.v. R. K. Birla, A.I.R. 1971 S.C. 1295.

""""'wu----" "'*"'--" 3;. .

l I «L :----~ -----\ r. ,...--.... .

.."'i i(';":'.' CHAPTER Io ARGUMENTS PRO AND CON

10.1. In order that a proper decision may be taken as to whether there is need for amendment of the law of India on the subject under consideration, it will be convenient to mention here the arguments in favour of, or against, such an amendment. The major policy arguments in support of the adop- tion of a rule empowering the court to exclude illegally obtained evidence are connected with the element of deterrence, the ethical argument, the argu- ment of unfairness to the accused, the argument connected with the integrity of the judicial process, and the argument as to symmetry and development of the law.

10.2. 'Those who put forward the argument of deterrence as justifying a rule of exclusion lay eniphzisis on the need to have, in the law, an effective deterrent against illegal conduct in law enforcement. It is stated that in order that such conduct may not be resorted to in law enforcement, the only effective sanction within the apparatus of the law is a rule which excludes evidence obtained illegally. The strict exclusionary rule adopted in the U.S.A. rests on this assumption, though, no doubt, its adoption in that country has been buttcressed by the fact that what is in issue is an infringe- ment of a constitutional provision.

10.3. Students of criminology are aware that it is difficult to assess "with" reasonable accuracy the deterrent effect of any legal sanction. How far any legal prescription ade.qn:itely deters illegal conduct in a particular area of human activity regulated by law is mostly a matter of opinion. Because, of this general position (which applies to evidence gathered illegally also),. the question whether the introduction of a rule or discretion of exclusion of evidence adequately deters illegal conduct in the collection of evidence will always remain a matter of opinion. Material enabling the formation of an . objective conclusion on the point is not always available. At the same time, the adoption of a rule or discretion of exclusion might, prima fade, remove the incentive to break the law for the purpose of obtaining evidence. Deter- rence has been the principal basis of criminal sanctions, and there should be_ a_ presumption in favour_.of the effectiyeness of judicially enforceable sanctions against attempts to procure evidence illegally obtained. It appears that the ' studies' conducted in the U.S.A. for the purpose of testing the deterrent effect of the exclusionary rule have remained. inconclusive, and are likely to be so. '-'The issues are not susceptible of quantitative solution," according

-- to Mr. Itistice Frankfurter? This, in fact, may be true of many other laws imposing criminalysanctions. Were the proponents of every such law re- quired to demonstrate a speciﬁc deterrent effect, one suspects that a great deal _ of our law might have to be striken from the books} Thine is another aspect of the matter that needs to be mentioned. The operation of a rule excluding evidence obtained illegally may obstruct the B. Dawson. "Exclusion of Unlawfully obtained Evidence" (July 1982) 31 I.C.L. 5!}, l. I. 520, 121, 522.

i2. Half v. Colorado, (1949) 338 U.S. 26, 28.

3, I. B. Dawson. "Exclusion of Unlawfully obtained Evidence" (July 1982) 31 I.C.L.Q. 513, 520, 522. r _ 29 5-442 LAD/ND/83 Various ii i"'iii'ii7;'u'-

ments nun-ari-

ed.

Deterrence.

Diﬂiculty of determining the deterrent A eﬁect.

....-_..___:i..____,'._ . . L __...i.._._;, .

process of seeking the truth. In individual cases, the guilty may even go free. The question is, whether such cases Wlll be no large in number as to prevent any move for a change in the law, if the change is otherwise required in /the interests of justice.

- Alternative ,emedm_ 10.4. An assessment of the validity and force of the argument of deter-

rence naturally involves a consideration of the alternative remedies that are available under the general law against illegal conduct. Such alternative remedies are at present, principally the following z---

(a) Criminal sanctions for- -the conduct in question, Where 'such ano- tions are applicable in law;

(b) Tort remedies, where recognised in law for such conduct; and

the sanctions mentioned above may be available, but there difficulties which should not be overlooked. For ex- ample, as regards criminal sanctions, it is not easy for a victim of ii search to pursue such sanctions eﬁectively, since, with hisiown resources,' may not be able to muster sufficient evidence for the purpose. Again there are certain legal pre-requisites, such as the need for a prior sanction for proawu- T tion, which also must be fulﬁlled. In practice, it is not easy to cross these legal i ' hurdles.

Civil actions as avremedy for unlawful search and seizure present equally . notorious practical diﬂiculties. In a well known English case, Lord Denning, M. R.' wrote that when entering a house by stealth or force, the "police risk an action for tresspass. It is not much risk." ' Theoretically, are certain practical Then, as regards disciplinary action, that also is a tardy process, for 'reasons which need not be gone into for the present purpose. Thus, there are many countcrébalancing considerations which render the alternative name» A dies of little practical consequence. One might then be confronted with .

' limits of current legal remedies and their inability to maintain the stantlnrdo of legality.

10.5. So much as regards the element of deterrence. Then, there is 'The ethical algu- , V y ' These who would favour some - ' ~ menu I the what may be called the'"ethical" argument. _ ' . 4 §l:f:;;"°MMs.',',': type of exclusionary rule argue in support that ]ustice requires that the Wrong} doer must be denied the benefit ofxhis wrongful act. One can call it j ; trine of "clean hands". Exclusion of evidence acquired illegally, it is _ 1 ed, works as a sanction against the deriving of such beneﬁt by a person 3 obtained the evidence illegally. No doubt, in a modern State, where i 'V 1 enforcement of law is a complete mechanism, this argument, in a f in J -1'; E, "C which it concentrates on personal conduct, cannot be applied literally. » , e E ' .

I a .' 31 f :

l , , i particular enforcement ofiicer who might have been personally ofﬁlie L i . alleged wrong doing is merely a cog in the whole administrative wheel; more; :1 1 I' 'Z ' over, that particular officer may have been transferred to another placcand ' succeeded by another of'ticer,before the prosecution commences and before. {- .j; the evidence alleged to'h-ave been obtained illegally is tendered. The'_$suk i is, that though the wrong is committed by 'A', the beneﬁt of; the evidence f gathered illegally may go to 'B', and the application or a doctrine of ",dcan_..;! E _; hands" based on personal fault would be meaningless in such c1roumsta'1cesa i e l. Chani v. lanes, (1970) 1 QB. 693, 705. 4. i Cf. Sunderland, "Exclusionary Rules: A requirement of Constitutional Principld' it (1978) 69 Journal of Criminal Law and Criminology, 141. ' , . ., O ......'..-_.. ,.., , .

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1 However, it is possible to apply the doctrine of "clean hands" in an imper-

sonnal mamier, by viewing the machinery of law-enforcement as one under- taken by the State as an entity, and by applying the argument of clean hands against the State as an organisation, rather than against individuals personally.

10.6. One more argument to support on exclusionary rule is the argu- ment of unfairness. The admission of evidence obtained illegally, it is stated, would be unfair or unjust to the accused. This was the traditional basis of the English rule on the subject.' 10.7. An argument which has gained popularity in modern times, and I which seems to carry considerable force behind it, addresses itself to the purity and integrity of the judicial process, rather than to the conduct of individual litigants or to the element of deterrence. According to this argument, what is at stake is not merely the regulation of illegal conduct and the need to de- prive a wrong docr of the beneﬁt of his wrong doing, but the need to en-. sure that the stream of justice is not polluted by material originally obtained by the commission of an illegality. Exclusion of such evidence is considered proper in order to protect the integrity of the court by requiring or permitting the court to refuse to countenance unlawful actions.

10.8. The argument has a greatly persuasive force. No doubt, Wig- more, the eminent American writer on evidence took the view that even if the court admits illegally obtained evidence, the count does not thereby con- done the illegality, but merely ignores it.' Any view expressed by this emi- 'nent jurist must command very great respect. But-it appears to us that this is not an entirely satisfactory way of disposing of the matter. Even if it be assumed that the court, by admitting'illegally obtained evidence, merely ignores the illegality, the court, by doing so, indirctly implicates itself in the (illegality. To this extent, the court becomes a party to a procedure which can breed disrespect for the law and for the judicial process. The law has so many rules based on the public policy (in the wider sense), whereby certain conduct is refused to be countenanced by the court on the principle that the law would not lend its aid to some serious illegality unworthy of a civilised society. The adoption of some rule of an exclusionary character would be in symmetry with legal rules of this category. An argument that seeks to keep the stream of justice unpolluted cannot be dismissed summarily.

_ 10.9. In justification of a rule ordiscretion for excluding' illegally ob- V tained evidence, there is also an argument resting on what may be called the

-symmetry and development of the law. The argument can be put thus, in brief. If the judge does not even have the 'option of excluding evidence obtained by illegal search and seizure it means that such conduct will seldom 'be scrutinised in the courts. The legality of the police conduct will not, then, be a live issue is criminal trials, there will be no stage at which police ofliccrs may be cross-examined with regard' to «the propriety of their actions Unfairness.

Purity 1' tbs lotlo \\{isrnm's view criticised.

Symmetcry and development of the law.

Cid there will be no incentive for defense counsel even to raise such issues. ' The law of search and seizure will continue to develop only haphazardly (if _ at all), through rare civil actions for trespass brought against police oﬂicers, «or in the rather inappropriate context of prosecutions that may be brought ' for the "obstruction" of a constable acting in the execution of his dut . In contrast a rule or discretion of exclusion may help the symmetry of t e law and its proper development.

1. Callis v. Gunn, (1963) 2 All ER. 677.

- :2. Wigmore, Evidence (McNaughten Revision 1961), Vol. 8, Article 2176.

Arguments llllnsﬁ euclusion.

_Collateral Inquiry.

Vindication of rhhts . news of the The fundamental question.

:"l*'."'t"' 32 10.10. Against the introduction of an exclusionary rule, it is argued." that where evidence is logically relevant to the facts in issue, it should be admitted despite the fact that it was illegally obtained because :

(i) the predominant concern of the tribunal of fact is the search for truth, and the fact of the illegal acquisition of evidence does not effect the logical relevance of that evidence and the court should not undertake a collateral inquiry;

(ii) other sanctions and remedies exist against the prepetrator of illegal acts that are better suited to deter wrongdoers than an cvidentiary rule of exclusion; and, it would be a grave injustice to a party to be denied the use of illegally obtained evidence where he was not involved in the ille-

gality.

10.11. The mosttimportant argument' against the introduction of an exclusionary rule in any form, is the objection to a collateral inquiry. It is argued that the application of such a rule involves, in a criminal trial, a colla- teral inquiry which may delay the trial and distract the court. To put the same argument in a different form, the method by which the evidence is ob- tained is stated «to be a collateral issue, and not the central issue of inquiry before the court. A court is concerned with a resolution of the facts in issue and should therefore refuse to hear arguments that might draw it into regions far removed from the central issues under inquiry. The argument was lucid- ly put in an American ruling, pronounced at a time when the exclusionary rule had not yet established itself in that country. "We think such testimony (illegally obtained) is admissible. It is not the policy of the courts, nor is it practicable; to pause in the trial of a cause, and open up a collzzleral in-

(iii) quiry upon the question of whether a wronghas been committed in obtaining --

the information which a witness possesses"?

10.12. Against this, it is stated that though an exclusionary rule en- tails a collateral inquiry in a criminal trial, it does vindicate the accused':

rights immediately, without the need for him to start expensive new proceed- ings. The accused may have alternative remedies, but 'such alternative reme- dicrs are not always adequate.' Criminal proceedings against a wrong--doer have to overcome severaliobstacles, such as the burden of proof and thc pos- , sible sympathy of the court for the policeman. Moreover, the victim of the illegality is unlikely to know how to initiate criminal proceedings or to be able -to do so, particularly if he is poor, uneducated, or in prison precisely' because of the admission against him of the illegally obtained evidence. The State may be unlikely to undertake criminal proceedings against: police aﬁ- cers. In the words of an American Iudge, "self-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".' Hence, even though, from the technical point of view, an inquiry irﬁi illegality may be collateral one, it is required in the interests of justice.

10.13. In passing, it may be observed that this part of the controversy touches the fundamental question that recurs again and again in any consi-- ,-

deration of the law of evidence in general, namely,' what should be the limits» Paragraph 10.l0(i), supra. ,, Cluett v. Bosenthal, (1894) 100 Mich. 193 53 N.W. 1009,_l0_10.

Para 10 4, supra.

Wolf V. Colorado (1949) 338 U.S. 26, 42 per Murphy. 1- (diSS6'Miﬂ3)-

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of the expense of the factual inquiry in a judicial trial, and where should the line be drawn to demarcate between matters of direct relevance and matters not of direct relevance P 10.14. The second possible objection' to a rule of exclusion of evidence obtained illegally is based on the reasoning that there are available alternative remedies for redress against such illegal action. These alternative remedies at present are criminal sanctions, tort remedies and disciplinary action. This aspect has been alreadyidcalt with.' 10.15. Finally, there is the argument that it will be grave injustice to deny the use of evidence to a party not involved in the alleged illegality. "This argument naturally has some force, but the objection becomes irrelevant when one views the State as an errtity or organisation engaged at various stages in law enforcement.3 The functionaries 'through whom the process is carried on may be different at various stages and may change from time to time, but the organisation remains the same. The judicial sanction of refusal to admit evidence illegally obtained would thus be applied not against an individual as such, but against an organisation viewed as a whole.

10.16. The arguments for and against the exclusion of evidence illegally obtained, that have been summarised above, do not, of course, take into account the constitutional aspects. In a particular country, where rights guaranteed by the Constitution are in issue, the controversy may acquire a diﬁerent colour. The law then, has no concern itself also with values whose importance is heightened by the Constitution. Introducing an exclusionary rule can, in such countries, be argued for with greater force. This, in fact, happened in the United States, where the Fourth Amendment of the Ame-

rican Constitution, protecting the citizen inter alia against unreasonable search and seizure, ultimately came to be invoked as the foundation for a rule ex- cluding evidence acquired as «the consequence of an illegal search or seizure. It is on this basis that Courts in the United States have held that the States are required to exclude, from State criminal utrials, evidence illegally seized by State Oﬂicers.' The Supreme Court of the United States has said the same thing in different words by observing that "the primary purpose of tllt exclusionary rule is to deter future unlawfuljpolice conduct and thereby effectuate the guarantees of the Fourth Amendment against unreasonable search and seizure."5 10.17. How far the adoption of a rule or discretion excluding the ad- missidn of illegal evidence becomes a constitutional .im_perative or desideratum in India is a question which cannot, in the present state of the law, be ans- wered with certainty, there being no direct authority on the subject. We do not have a provision in the Indian Constitution strictly corresponding to the Fourth Amendment of the U.S.A. As regards the concept of "procedure established by law" laid down in article 21 of the Indian Constitution, that concept still remains to be spelt out in its application to the law of evidence.

' While a number of judicial pronouncements on this article have added a richness and lent a new dimension to our constitutional jurisprudence, the particular question now in issue has not yet arisen in the courts, except' once.

Paragraph 10.10 (ii), supra.

Para 10.4, supra.

a. Para 10.10, (iii) supra.

Compare para 10.5, supra.

Manp v. Ohio (1961) 367 U.S. 643.

U.S. V. Calendra (1974) 414' U.S. 338, 34_7, (Powell, 1., speaking for the Court).

R. M. Ma1kani's ease, AIR 1973 SC 153. _ S"P'."!-""'!°'."

Alterna tive remedies.

The argument of injustice.

The constitutiona.' aspect.

Position under the Indian Constitution.

... .. _...:,.....

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~.. ;. 3.- .........-_s.,....« ,, 34 There is no doubt that this question will arise in the courts some day. 'When it arises, the courts will be called upon to make a difficult choice, but they will have 21 number of models available for concrete study.

rfeed for an elas- 10.18. On an examination of the pros and cons of the matter under "° "1'1"°a°h' discussion it would appear that in this area there are no absolutes. On the one hand, if evidence obtained illegally is not admitted at the trial, grave injustice might be caused in some cases and the respect for the courts as ('0./!I'Z'.S' of justice would be lowered. On the other hand, there are cases where the illegal conduct is so shocking that the count would consider it un-- just to admit the evidence. There are many degrees of illegality, and it would appear that, for this reason, an element of elasticity in the law may, in the majority of cases, better serve the interests of justice than a blind adher- ence to a rigid rule of exclusion. At the same time, the question that must be considered is whether the present position in India is consistent with justice.

It is in the light of these considerations that we approach the matter. Our own views will be indicated more concretely on each issue in due course.'

1. (Chapter 11, infra.) F, .--.,-,-.-

«~_.-- 'I- _ U CHAPTER II_ ISSUES FOR CONSIDERATION AND RECOMMENDATIONS 11.1. It may be convenient' to formulate now the important issues that call for consideration, in the light of the discussion contained in the preceding Chapters. In broad terms, these appear to be as under :--

(I) Is the present law in India as to the admiissibility, in a criminal case, of evidence that has been obtained illegally or improperly just and fair P Or, does it stand in need of reform P (2) If a reform in the present law is to be effected, should the reform take the shape of a statutory amendment giving to the court (in a criminal case) a discretion to exclude evidence obtained illegally or improperly P Or should it be a more radical one P (3) If such a discretion as it prostulated, above is to be conferred on the criminal count, what should be the considerations to be laid down in the statutory provision in the behalf?

(21) Should the statutory provision lay down that the discretion to be conferredeis to be exercised having regard to the need to exclude evidence procured in circumstances that would tend to bring the administration of justice into disrepute P or

(b) Should the statutory amendment provide that the discretion 4 to be conferred should be exercised, having regard to the need to avoid unfairness to the party against whom the evidence is sought to be used P Should the proposed statutory amendment (0.2-3 above) further enumerate the circumstances to be taken into account in exercising ' the discretion?

' (4) 11.2. On a careful consideration of the various issues, the Commission has come to the conclusion that there is need for conferring on the court a discretion to exclude evidence obtained illegally or improperly if, in the cir- cumstances of the case, the admission of such evidence would bring the ad- ministration of justice into disrepute. The discretion, of course, will be guid- ed by certain factors, which we shall set out in detail when suggesting the precise legislative amer2.tlm.em. In order to enable us to state in greater detail the reasons for our main conclusion, we ﬁnd it convenient.to take up the issues that fall to be considered, 11.3. With reference tothe first issue,' which raises the basic question of the need for law reform, we are of the opinion that the present position in India} under which the legal "relevance" of the evidence of the facts in issue in the particular proceedings is the principal consideration, cannot be regarded as totally satisfactory. From time to time, there must arise cases where the illegality or impropriety is so shocking and outrageous that the judiciary would wish that it had a power to exclude the evidence. But the present Indian law has no speciﬁc provision recognising such a power. The

1. (Paragraph 11.1), supra.

_2. Paragraph 2.3 and 2.7 and Chapter 3, supra.

Issues.

Conclusitn as to need for reform The first issuE--« I need for reform.

.

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Second issue-

Discretion to be given.

Third issue--

the governing consideration.

'general understanding of the legal position in India puts the court Within very narrow confines. The matter is viewed primarily as one of interpretation of :1 speciﬁc statutory provision---if and where a statutory provision regulating the gathering of evidence of the typeat issue in_a particular case is shown to be in existence. If, on a proper consideration of the particular rovision that comes up for construction, the court cannot regard admission o the evidence as barred by that 'provision, then there is no residuary power in the court to reject the evidence, howsoever gross may be the illegality perpetrated -in col- lecting it and whatever may be the extent to which those concerned with law enforcement may have invaded human dignity. This position, which re- presents the narrowest approach of all the four models' prevalent amongst the major legal systems, must cause injustice' on many occasions.

.The major deficiency in the present Indian position is that it reflects a legalistic and sta.tute--oriented approach, whic completely shuts out any consideration of deeper human values. We think that there ought to be recognised a power in the court to take into account all these important as- pects, which are of basic relevance to the functioning of an agency charged with the adiiiinistration of justice.

11.4. The need for reform in «the law is therefore manifest. At the same time, we recognise that a provision mandatorily shutting out a piece of evidence inerely_ because some illegality has been perpetrated in collecting it would not be advisable. Such a provision would be an extreme one and fail to take note of the inﬁnite variety of situations that can arise in life. This is precisely the consideration that the present position also fails to take notice of, thus constituting another extreme.' Both the extremes ought to be avoid-

ed. VVe would therefore, prefer the conferment of a discretion on the court, rather than a mandatorystatutory provision. This answers the second ques- tion posed above?

11.5. This logically takes us to the third question posed 'by' us.' VVhat ought to be the governing consideration that should weigh with the court in exercising the proposed discretion P Should the governing consideration be ~-- .

(i) the fact that the circumstances in which the evidence was procured- were such' that admitting the evidence would be bringing theiad- ministration of justice into disrepute.

(ii) the ,need to avoid unfairness to the party against whom the evi-' dence is sought to be used .7 ' What have beeli put as items and (ii) above are to be considered as alternatives. In fact, they were so put in our Working Paper. After care-. ful consideration, we have come :to'the conclusion that the first one Slltlllti be the governing consideration. The second one,--based on the test of unﬁt- riess, while there is something to be said in its favour, may occasionally tiirn. out to be vague. As regards the first one, it is undeniably a reasonably con- crete test. Moreover, since, in exercising its discretion, the court is expected to take into account various circumstances »(see the recommendation in ;*th_e next paragraph), the court will have some assistance in arriving at a decision.

1. Paragraphs 2.3 to 2.6, supra.

2. Paragraph 11.1, supra.

3. Paragraph 11.1, supra.

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_ 11.6. We now come to the fourth and the last issue that remains to Fourthlssue be considered,' before formulating the legislation to be recommended. t';f'é';''$'nsidered'_ ) "~ Should the law enumerate the circumstances to be taken into account by the court in exercising the discretion to exclude evidence obtained illegally or im- j properly F' We think that there should be such an enumeration. . We are aware that such enumerations can never be exhaustive, and that their utility may therefore be limited. Still, we think that an indication of the important guidelines may be helpful in concrete cases. The guidelines that we have in mind will be apparent from the draft of the legislative provision that we are giving towards the end of this Chapter} In that draft, We have put '. human dignity and social values in the forefront. These two considerations constitute, in a sense, the ethical justification for a statutory provision giving the proposed discretion to the court.3 This composite concept will, of course, ' be applied with reference to the context of each case. That context is sought I to be spelt out in three concrete factors' mentioned in our draft, which are 2' ' intended to cover the seriousness of the case, the importance of the evidence and the magnitude of the wilful harm, if any.

I / The demands of law enforcementt--which may possibly balance the fac-

A _ tors so far enumerated--«have also been given due weight in the last clause " of our formulation,5 which expects the court to consider whether there were any circumstances justifying the action complained of as illegal or improper.

L4 " __ 11.7. In the light of the above discussion, we recommend that in the Recommendation, Indian Evidence Act, 1872, a new Chapter containing new section 166A F should be inserted on the following lines :-

"CHAPTER 10A _ EVIDENCE OBTAINED ILLEGALLY OR IMPROPERLY 166A. (1) In a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after consi- dering the nature of the illegality or impropriety and all the circumstances A under which the thing tendered was obtained, may refuse to admit it in evi- ' J dencc, if the court is of the opinion that because of the nature of the illegal p . ' t or improper means by which it was obtained its admission would tend to bring ' ' . the administration of justice into disrepute. _ " ' . l 3' L (2) In determining whether evidence should be excluded under this ° section, the court shall consider all the circumstances surrounding the proceed-

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~ - . . _--..._.-..w-> ._ --___.A_ _ , ings and the manner in which the evidence was obtained, including --

5., ' I in obtaining the evidence;

(b) the seriousness of the case;

(c) the importance of the evidence; _ .

(d) the question whether any harm to an accused or others was inﬂict-

ed wilfully or not, and

(e) the question whether there were circumstances justifying the action, such as a situation of urgency requiring action to prevent } the destruction or loss of evidence."

. .0 - « _.:------:--{--------

v 4- 5»~-----~L--~----;...~,a_;_:.n.,- ,,-,,_ , _ Paragraph 1].], supra.

Paragraph 11.7, infra [Section 166A, Evidence Act, as recommended]. Section 166A(2)(a), as recommended. ' Section l66A(2)(b) to (d), as recommended.

Section 166A(2)(e), as recommended. ' '.~":5!-"!"'.' " -- (a) the extent to which human dignity and social values were violated a 2 ..

(K. K. MATHEW) CHAIRMAN (NASIRULLAH BEG) MEMBER (I. P. CHATURVEDI) MEMBER (DR. M. E. RAO) MEMBER (P. M. BAKSHI) ' PART-'I_'IME MEMBER (VEPA P. SARATHI) PART-TIME MEMBER) (A. K. SRINIVASAMURTHY) MEMBE-R-SECRETARY Dqtéd: October 28, I983.

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APPENDIX SOME ILLUSTRATIVE SITUATIONS OF EVIDENCE OBTAINED ' ILLEGALLY OR IMPROPERLY In order to make the discussion concrete, there is given below an illus- trative list of certain situations in which evidence can be said, prima facic, to have been obtained illegally or improperly. The listing of any situation here does not, of course, necessarily imply that in that particular situation the dis- cretion should be exercised for excluding the evidence in question.

The cases cited in the corresponding footnote against a listed situation are mentioned here for the facts involved. The court did not, in each such case, exclude the evidence.

I . Arrest

(a) unlawful arrest;

(b) unlawful removal from custody.

2. Physical examination

(a) illegal search of the person of the accused ;'

(b) illegal blood tests?

(d) unwarranted medical examination ;"

(e) medical examination of the accused to obtain evidence of drunken-

ness, when all that the accused was told was that the examination was necessary to see if he was ill ;5 A . (f) medical examination of the accused to obtain evidence of drunken- ness, where it was undertaken merely after telling the accused that it would be advantageous to him ;'

(g) taking the ﬁnger prints of the accused without telling him that he might refuse to give them ;7 I

(h) compulsory breath test which is permitted by law onl for using them on certain minor charges, where it is employe for more serious cases.

Search of property Illegal search of property?

s=°.~r.°i~sI-.¢~.w .~:--

Kuruma v. R., (1955) AC. 197 (P.c.).

Attorney General of Quebec v. Begin, (1955) 5 D.L.R. 394 (Supreme Court of Canada).

Merchant v. R., (1971) 45 A.L.J.R. 310 (High Court of Australia).

R. V. Ireland (No. 1), (1970) 126 C.L.R. 321 (High Court of Australia). R. v. Payne, (1963) 1 All E.R. 848.

R. v. Nowell, (1948) I All E.R. 794.

Callis V. Gunn, (1964) 1 _Q.B. 495.

Mac Farlane v. Sharp, (1972) N .Z.L.R. 64.

~ 'J

10.

11.

12.

40' Breach of privacy (including interception of communications),

(a) illegal telephone tappingg'

(b) photographs illegally taken by telling the accused wrongly that it was compulsoryf

(d) overbearing a conversation between blackmailers and the victim-,5 (C) incriminating letter written by the accused in Iail. which the iailor promised to post, but which was handed over to the prosecutor?

Denial of legal advice

(a) Confession obtained after its maker had been refused the advice of a solicitorgg Tricks played by the law enforcement agency

(a) Evidence obtained by reason of a policeman describing himself' as a magistrate? '

(b) Evidence of drunkenness obtained from medical examination which, the accused was told, was just to see if he was ill."

Entrapment 7The use of agent provocateurs 1""

R. v. Mhthews, (1972) V.R. 3 (Supreme Court of Victoria). R. v. Ireland (No. 1), (1970) 126 C.L;R. 321.

R. V. Bucan, (1964) 1 W.L.R. 365.

R. v. Maqsud Ali, (1965) 2 All E.R. 464.

R. v. Stewart, (1970) l W.L.R. 907.

Hopes v. H. M. Advocate, (1960) J.C. 104. (Scotland).

R. V. Dcrrington, (1826) 172 E.R. 188.

See, however, Rumping V. D.P.P. (1964) A.C. 814.

R. v. Alien, (1977) Crim. L.R. 163.

R. v. Pettipiece, (1972) 7 C.C.C. (2d) 133 (Canada). R. v. Payne, (1963) 1 All ER. 848.

R. v. Ameer, (1977) Crim. L.R. 104, 105.

For the position in U.S., see Note, "Entra ment as a due process defence" : develop- merrts after Hempton V. U.S., 96 S. Ct. 646; (1982) Winter, 57 Indiana Law 1.. 89, 1130.

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