Admissibility of Improperly Obtained Physical Evidence in the Scottish Criminal Trial: the Search for Principle

Abstract

152 There has been little analysis of the reasons for excluding improperly obtained real evidence from criminal trials in Scotland but much debate on this topic in England and elsewhere. In this article, I review critically the four major rationales generally cited to justify rendering such evidence inadmissible and discuss the extent to which the major Scottish cases reflect each of these. I conclude that the only satisfactory rationale is that of “moral legitimacy” and argue that the Scottish courts should expressly adopt this principle in order to foster clarity and consistency in the law. Not only is this rationale generally consistent with the leading cases but it actually provides the best explanation of the approach normally taken by the courts towards improperly obtained physical evidence.