Irregularly Obtained Real Evidence: The Scottish Solution?

Abstract

In determining whether to admit improperly obtained real evidence, the Scottish courts have engaged in a balancing act for over 50 years, weighing the public interest in the conviction of the guilty against the rights of the accused and the civil liberties of the citizenry. The Appeal Court's approach to this issue has not been particularly satisfactory and the result is an incoherent mass of detailed and often almost irreconcilable case law, rather than a principled framework to guide the trial courts in the exercise of this power.