Chapter 9: Mutual Legal Assistance
247
courts cannot expect English procedural requirements to be complied with by police
forces operating abroad, even if, as in the present case, they have similar procedural
requirements’,
122
Lord Lane considered that for the purposes of s 78(1) the critical
factor was the fairness of the subsequent English proceedings. In dismissing this
appeal, he was satisfied that when exercising his discretion the trial judge had taken
into account relevant factors such as the lack of an opportunity to cross-examine the
witness and the fact that the disputed evidence was not the sole evidence in the
case. Interestingly, the court noted that ‘the present case was not one where the
procedural departures…were the responsibility of the British authorities’.
123
The possibility of at least some control over evidence obtained as a result of serious
extra-territorial irregularity is raised by the Scottish case of
HM Advocate v McKay
.
124
The court was required to consider the admissibility of evidence that had been
obtained in Eire under an Irish search warrant. In accordance with the practice in
Eire, documents were seized which were not in the name of the accused. At the
subsequent trial in Scotland, objection was taken to the admissibility of the
documents. It was submitted that it would be improper to admit the evidence because
the search offended against the principles governing the search of premises in
Scotland. Lord Wheatley took the view that:
The procedure followed was regular according to the law of the land where it took
place [and that] does not in itself necessarily constitute a sufficient justification for
the admission of the evidence. I can visualise circumstances where the practice
followed by the law and procedure of the local country was so offensive to our own
fundamental principles of justice and fair play that the admissibility of such evidence
would not be tolerated. It seems to me, therefore, to be a question of facts and
circumstances in each case.
125
The court held that, as far as Scottish procedure was concerned, the search was irregular.
However, the irregularity was not necessarily fatal to the admissibility of the evidence.
In this case the court was satisfied that in the circumstances the irregularity could be
excused and the evidence admitted. The submission regarding the admissibility of
evidence was not based on the premise that foreign police officers behaved improperly
or that the evidence was gathered in breach of foreign procedures.
Unlike the court in
McKay,
the English court has so far failed to contemplate what
would happen if foreign evidence gathering rules did offend English sensibilities. Citing
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