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ILLEGALLY OBTAINED EVIDENCE

How does a court faced with illegally obtained evidence deal with the evidence, for
example evidence obtained in violation of the Constitution OR obtained in breach of
other statutes? A common way in which evidence is obtained illegally is through illegal
searches and illegal seizures e.g. breaking into somebodys house and obtaining
evidence, through deception, threats, bribes inducement or trickery.
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The issue has to be looked at in two ways


Section 20 of Police Act
Section 118 of Criminal Procedure Code
S. 118 of the Criminal Procedure Code deals with the power that is given to search
places. The power that a Magistrate or police officer may be permitted to search any
place, building, ship, aircraft, vehicle, box or receptacle but they have to do this through
a certain procedure i.e. Search warrant. Essentially if you search and find something
you are allowed to seize it. It could be a thing or document. If you do not have a search
warrant the search may be said to be illegal.
Section 20 of the Police Act empowers police officers investigating offences to search
any place that they believe has material necessary for the purposes of the investigation.
The requirement to get a search warrant may be dispensed with in instances where a
police officer believes that the process of getting the warrant is going to cause
unreasonable delay. In these instances what is required is that the officer should
record in writing the basis upon which they form the opinion that if they go looking for a
search warrant there is going to be inordinate delay.

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There are two approaches to illegally obtained evidence


Mandatory inclusion;
Mandatory Exclusion
Under common law jurisprudence there is mandatory inclusion whereas under US
Jurisprudence there is Mandatory Exclusion.
In common law the status is accurately represented by the words uttered by Justice
Crompton: It matters not how you get it, if you steal it even, it would be
admissible in evidence in R v Leatham. The only exception that is entertained
under common law is where the evidence consists of a confession which has
been obtained in consequence of some inducement or oppression.
A confession that is obtained as a consequence of the deception or inducement of the
person confessing is not admissible even though it be relevant. E.g. a confession made
to a colleague to a person in jail has been held not to be confessed to a person in
authority.
In civil cases there is no discretion to exclude admissible evidence. But even in criminal
cases there is a conflict between 2 positions i.e. where you admit all relevant evidence

to ensure that the guilty are punished and then there is the view that to admit improperly
obtained evidence condones and encourages impropriety on the part of the police. i.e.
why go through proper channels if you can obtain evidence illegally. There is no
provision in the Evidence Act to guide us. For instance if somebody got evidence
through phone tapping is it admissible?
The Constitution is very clear in such instances-students are to identify the relevant
articles as captured in the class discussion.
Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says that the test to
be applied in considering whether evidence is admissible is whether it is relevant to the
matters in issue. If it is, it is admissible and the court is not concerned with how the
evidence was obtained. This case was quoted with approval in the case of Kuruma s/o
Kaniu v. R 1955 1 AELR 236 The Appellant was convicted with being in unlawful
possession of two rounds of ammunition contrary to Regulation 8 of the emergency
regulations of 1952. Under the Emergency Regulations only a police officer or an officer
above the rank of assistant inspector was empowered to stop and search an individual.
The appellant was an employee of a European settler farmer and had been granted
leave of absence to go to his rural home in the reserve. He was stopped at a roadblock,
a police constable stopped him and on searching him found him with the two rounds of
ammunition and a penknife. 3 persons witnessed the search but were not called to
testify. The accused was charged and convicted of this capital offence and sentenced
to death. He appealed contending that the evidence used to convict him was illegally
obtained. The court held that the evidence was properly obtained.
King V. R 1969 1 AC 304
Police obtained a search warrant to search a house belonging to one Joyce Cohen
looking for Ganja and this was under the Dangerous Drugs Act. They read the warrant
to Joyce Cohen but apart from Joyce Cohen, there was the Appellant in Joyce Cohens
House when the police came and they did not read the warrant to the visitor. The police
however searched the appellant and another man in the house and they found the
appellant with the drug. The Appellant was tried and convicted for possession of
dangerous drugs and he appealed arguing that the warrant was not directly read to him
and thus he was not legally searched. The court should have excluded the evidence
found on his person because the evidence was unfair to him. The court held that there
was no way of interfering with the way in which the court exercised its discretion and the
court went further to say that this was not a case in which evidence had been obtained
by conduct which was reprehensible insinuating that if the conduct had been
irreprehensible the court would have allowed the appeal. There was a bit of discussion
about constitutional rights concerning illegal searches.
The court in R V. King referred to the case of R v Payne [1963] 1 AER 848 Where
illegally obtained evidence was excluded but it refused to be guided by this case. The

facts of this case are that the defendant was taken to a police station following a traffic
accident. He was asked whether he wanted to see a doctor, he agreed to see a doctor.
At no time had he been told that the results of the examination might be used in
evidence against him. It was not made clear to him that the doctor would enquire on
whether he was fit to drive. At the trial for drunk driving the doctor gave evidence that
the driver was driving under the influence of alcohol and the defendant was convicted.
He appealed. The appeal court quashed the conviction on the ground that even though
the evidence was admissible, had the accused realised that the doctor would give
evidence on the matter of driving under the influence of alcohol, he might have refused
to submit himself for examination and in refusing to be guided by this case, the court in
King v R stated that there was no evidence in the Kings case of oppressive conduct or
trickery on the part of the police. The court essentially seems to be saying that illegality
is graded, ie. That there is illegality that can be allowed to pass but there are cases
when it is reprehensible.

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Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police officers of the
drug squad for stealing a sandwich from a public house. The officer improperly
searched his home and found Cannabis and the defendant was subsequently charged
with possession of drugs. The accused put up in his defence that his house was
searched illegally. The first court ruled out the evidence of the search as inadmissible
having been illegally obtained. The prosecution appealed and the appeal was allowed.
The Appeal court held
That the mere fact that evidence is obtained in an irregular fashion does not of
itself prevent that evidence from being relevant and acceptable to court;
Any court has the discretion to decline to allow any evidence brought by the
prosecution if they think it will be unfair or oppressive to allow it.
R V. Sang [1979] 2 AER P 1222

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The Appellant was charged with conspiracy to utter forged US Bank Notes. He pleaded
not guilty before the case opened. Counsel for the Appellant applied for a trial within a
trial to show that the Appellant had been induced to commit the offence by a police
informer acting on the instructions of the police. The appellant was averring that for the
inducement, he would not have committed the offence. Counsel was hoping to
persuade the judge to exercise his discretion to disallow the evidence of the
commission of the offence. The Judge however ruled that he had no discretion to
exclude the evidence. The appellant changed his plea to guilty and was convicted and
sentenced. He appealed against the judgment and the appeal was allowed by the court
of appeal and then the state appealed to the House of Lord. The House of Lord held
that
A Judge in a criminal trial always has discretion to refuse to admit evidence if its
prejudicial effect outweighs its probative value;
Except in the case of admissions, confessions and evidence obtained from an
accused after the commission of an offence, a Judge has no discretion to refuse to

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admit relevant admissible evidence merely because it had been obtained by improper
and unfair means.
The use by the police of an agent provocateur or an informer to obtain evidence
was not a ground on which the discretion should be exercised. Such a factor may
however be considered in mitigating the sentence imposed on the accused.
The defence of entrapment had no place in English Law and could not be
accepted by a Judge as a ground for exercising the discretion to exclude the
prosecutions evidence of the commission of the crime.
It would appear that the R v. Sang articulates the common law stand succinctly if
evidence is relevant to a fact in issue it is admissible provided it is not obtained under
inducement, confession or after the commission of an offence. The common law
position is almost the opposite of the position which exists in the US Today. The US
Jurisprudence tries to run away from the law. The law that is used to exclude illegally
obtained evidence is the 4th Amendment which reads as follows:the right of the people to be secure in their persons, houses, favours and effects
against reasonable searches and seizures shall not be violated and no warrant shall
issue but upon probable cause supported by oath or affirmation and particularly
describing the place to be searched and the persons or things to be seized.
The question as to whether illegally obtained evidence is admissible in the US has been
debatable.
Weeks V. United States 232 US 283
The police went to defendants house without warrant, they searched and took
possession of various papers and articles that they found in that house and these were
turned over to the courts. The police later went to the premises hoping to get more
evidence and carried away more letters and this second search was also without a
warrant. The whole question as to whether evidence obtained by the police and the
prosecutor was admissible was discussed and the judges stated if letters and private
documents can thus be seized and held and used in evidence against a citizen accused
of an offence, the protection of the 4th Amendment is of no value.
This was a Supreme Court Decision .
In Wolfe V. Colorado it was suggested that there was need for a uniform rule, even
after the Weeks case the courts had continued to apply common law rules and in this
case of Wolfe the court decided to have a uniform rule.
Map V. Ohio 367 US P 643
The defendant was convicted in an Ohio state court for possession of obscene
literature. The conviction was affirmed by the Ohio Court of Appeal and later by Ohio
state supreme court. The obscene materials were discovered during a search that was
not subject to a warrant on the defendants house. The Ohio supreme court held that
evidence obtained by an unlawful search and seizure is admissible in a criminal

prosecution. The court continued to state that under the Supreme Court of United
States in Wolfe v. Colorado a state was not prevented by federal constitution from
adopting the rule as it prevailed in Ohio. On appeal to the US Supreme Court it was
held that as a matter of due process evidence obtained by a search and seizure in
violation of the 4th amendment is inadmissible in a state court as it is in a federal court.
If the supreme court holds evidence to be inadmissible it should apply across the board.
The US Courts have gone even further and held that even if the evidence is not
obtained illegally, where such evidence is obtained in such a manner as to be
reprehensible according to the spirit of the constitution, such evidence shall not be
admissible. Note the importance that jurisprudence attaches to peoples rights.
In Kenya the reigning position is that in Kuruma s/o Kaniu v. R. This Case has been
criticised in the context within which it was decided. It was decided during emergency
regulation times. The position seems to be that the end justifies the means.