8. Illegally obtained evidence

The general rule is that the court asks whether the evidence is relevant, not how it was obtained. The sentence it quotes from Crompton J in R v Leathem is: it matters not how you get it; if you steal it, it would still be admissible. The report is R v Leathem, and the judge is Crompton J. Elias v Pasmore and Callis v Gunn are cited for the same attitude, including evidence obtained by a false representation. The contrast is the Fourth Amendment to the United States Constitution. Evidence obtained by an unreasonable search is, in that system, liable to be excluded. That is not the rule in Sierra Leone.

Kuruma son of Kaniu v R is the Privy Council case. He was charged in Kenya with unlawful possession of ammunition. The officers who searched him were below the rank authorised to search. The ammunition was admitted. Lord Goddard said that if evidence is relevant, the court is not concerned with how it was obtained. Illegality may go to weight, and a judge in a criminal case has a discretion if admission would operate unfairly. It did not operate unfairly there.

The cases apply that rule. In Jones v Owens a constable's unlawful search produced young salmon, and the evidence was admitted on a charge of unlawful fishing. In Jeffrey v Black the accused was arrested for the theft of a sandwich. Officers then searched his home without a warrant and found cannabis. The Divisional Court held that the illegality did not make the cannabis inadmissible. In Fox v Chief Constable of Gwent a driver was unlawfully arrested and a breath specimen was still admitted. The officers had acted in good faith, under a mistake about their powers. In R v Apicella a prison doctor took a sample without the accused's real consent. It showed the same unusual strain of gonorrhoea as the women he was accused of raping. The Court of Appeal held that the use of the sample was not unfair. In R v King cannabis found on an illegal search was admitted by the Privy Council. In R v Christou undercover officers ran a jewellery shop to buy stolen goods, and recorded the sellers. The recordings were admitted.

Bugged conversations are treated the same way if they are relevant. In R v Maqsud Ali and Ashiq Hussein two men suspected of murder were left in a room at Bradford Town Hall. A microphone recorded admissions. The recordings were admitted. The judge remarked that criminals do not conduct their affairs according to the Queensberry rules. R v Bailey admitted a recording from a bug in a police cell. In R v Khan a listening device in a third person's home recorded a visitor's confession. It was admitted.

R v Payne is the exception, and it is the only one in this group. Payne was examined by a doctor on the express basis that the doctor would see whether he was ill, and would not be asked whether he was fit to drive. At trial the doctor gave evidence of unfitness. The Court of Appeal quashed the conviction. The evidence was excluded because of the promise, not because every irregularly obtained item is excluded.

Section 78 of the Police and Criminal Evidence Act 1984, an English discretion, allows a court to refuse evidence on which the prosecution proposes to rely if, having regard to all the circumstances, including how it was obtained, admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The section is noted. It does not replace the common-law cases above.

R v Sang is the leading case. Sang and Mangan were charged in connection with forged banknotes. The charge in the report is a conspiracy to handle forged United States banknotes. The defence was that an informer, acting for the police, had persuaded them to commit an offence they would not otherwise have committed. That is entrapment. Sang decides that entrapment is not a defence in England or in Sierra Leone. It is a defence in the United States. After the judge refused to exclude the evidence they pleaded guilty. The House of Lords held that there is no general discretion to exclude evidence, otherwise admissible, on the ground that it was obtained by improper or unfair means. There are two qualifications. The judge may refuse to admit an admission or a confession obtained unfairly. And the judge may exclude evidence whose prejudicial effect outweighs its probative value. Those two discretions do not add up to a defence of "the police put me up to it".