Admissibility in Criminal Cases: Unfairly Obtained Real Evidence

Vocabulary flashcards covering the rules, statutes, and leading case authorities governing unfairly obtained real and documentary evidence, stop and search powers, and search warrants in Scots criminal law.

Admissibility Decisions (Judge's Role)

Questions of law that determine whether real evidence, documentary evidence, or confessions were fairly or unfairly obtained, decided exclusively by the trial judge.

Lawrie v Muir 1950 JC 19

The classic authority establishing the guiding principle of the balancing act between the interests of the accused and the interests of the state to determine fairness, rejecting automatic exclusion of evidence.

Hoekstra and Others v HM Advocate (No 5) 2002 SLT 599

Authority establishing that deliberate bad faith (such as planting an unauthorized tracking device) weighs heavily against admitting evidence, though evidence may remain admissible if it played a limited role and was not directly relied on.

Mackintosh v Stott 1999 SCCR 291

A Scots law authority holding that no search took place where the accused voluntarily handed over illicit drugs to the investigator.

Graham v Orr 1995 SCCR 30

A case establishing that the investigative action of 'checking' a motor car legally constitutes a search under Scots law.

Howard v HM Advocate 2006 SCCR 321

A case ruling that no search occurred in law when a landlady inspected the contents of a bag solely 'out of curiosity.'

Cafferkey & Frew v HM Advocate 2017 SCCR 14

A case holding that recovering an abandoned tub containing drugs from public shrubbery did not constitute a search or interfere with accused rights, and was otherwise admissible under the Lawrie v Muir balancing test.

Misuse of Drugs Act 1971, s 23

Statutory authority permitting police constables to carry out searches for controlled drugs, contingent upon having reasonable cause to suspect.

Criminal Law (Consolidation) (Scotland) Act 1995, ss 47–50

Statutory provisions conferring powers on constables to carry out searches for offensive weapons where there is reasonable cause to suspect.

Reasonable Cause Test

A dual-element legal test requiring both a subjective component (that the officer in fact suspected) and an objective component (that the officer's suspicion was reasonable).

Miller v Jamieson 2007 SCCR 497

Authority establishing that reasonable cause need not be precise, but bare suspicion alone is insufficient because the suspicion must also be objectively reasonable.

Houston v Carnegie 2000 SLT 333

A case establishing that observing an individual in a public street in the company of a known drug dealer does not satisfy the reasonable cause test to search that person.

McAughey v HM Advocate [2013] HCJAC 163

A case establishing that the suspicion of a third party, such as a superior police officer, cannot satisfy the searching officer's reasonable cause requirement.

Borland v HM Advocate [2015] HCJAC 95

A case ruling that information communicated by another police officer was sufficient under the circumstances to satisfy the reasonable cause test.

Ireland v Russell 1995 SLT 1348

Authority establishing that intelligence or suspicion regarding an individual must not be too old or stale, or reasonable cause to search will be lacking.

Cooper v Buchanan 1997 SLT 54

Authority establishing that statutory powers to search a motor vehicle extend to searching passengers within the car when reasonable cause exists to suspect the driver.

Criminal Justice (Scotland) Act 2016, s 65

Statutory rule establishing that personal consent cannot authorize a personal search, making it unlawful to search a non-custody individual without statutory powers or a warrant.

Code of Practice on Stop and Search of the Person (s 73)

Statutory guidance providing that constables must not search individuals voluntarily when statutory powers or warrants are absent; courts must consider it under s 75, though breaches create no independent legal claim.

Search Warrant

Judicial authorization required to conduct searches of premises (e.g., houses, flats, gardens, or offices) and invasive personal searches.

Freeburn v HM Advocate 2013 SLT 70

A case establishing that a search warrant is not required if a suspect grants permission for a search of the premises to be conducted.

HM Advocate v Baillie 2013 SCL 550

A decision holding that warrantless seizure of an accused's trainers was lawful and admissible due to genuine urgency combined with minimal invasion of privacy.

HM Advocate v Cumming 1983 SCCR 15

A case ruling that a blank space where the suspect's address should be and the omission of the officer's name were fatal defects invalidating a search warrant, whereas an incorrect first name and missing date were not fatal.

Bulloch v HM Advocate 1980 SLT (N) 5

A decision holding that a search warrant issued in favor of the Inland Revenue was legally invalid because it was not dated.

HM Advocate v Bell 1985 SLT 349

A decision ruling that a search warrant was invalid because the judicial signature appeared in the middle of the warrant rather than at the end.

Paterson v Thomson 2010 SCCR 885

A decision establishing that the omission of the town name from a search warrant did not render the warrant invalid under the specific circumstances.

HM Advocate v Turnbull 1951 JC 96

A case establishing that tax documents seized outside the scope of a search warrant were inadmissible because there was no genuine urgency and the discovery was not accidental.

Burke v Wilson 1988 JC 111

A case holding that an accidental discovery of obscene videos made while executing a search warrant was admissible because the prosecution's argument of genuine urgency succeeded.

Fishing Expedition

A random, indiscriminate search conducted beyond the terms of a warrant or legal authority, the fruits of which are held inadmissible in court.

McAvoy v Jessop 1998 SLT 749

A decision overturning a reset conviction because a search warrant authorizing the search of a named suspect's bedsit did not permit searching his sister's separate bedsit at the same address.

Genuine Urgency

An exceptional circumstance in Scots criminal law that can legally justify carrying out a search without a warrant or exceeding the explicit terms of an existing warrant.