International Criminal Law
248
no dishonesty or bullying behaviour by the Belgian authorities and at no time did the
appellant deny that he said what was recorded. On appeal, the appellant submitted
that as the interview was not conducted in accordance with the provisions of PACE
and would have been excluded had it been taken in England, the judge was wrong to
permit the prosecution to adduce it. In dismissing the appeal, the Court of Appeal
assumed that the interview was conducted lawfully in accordance with Belgian
procedures. It is of note that in both
Quinn
and
Konscol
the issue before the court was
the application of its discretionary exclusionary power under s 78 of PACE. It is
questionable whether the court’s reasoning would be sustainable if the evidence had
been a confession obtained by oppression and the submission was based on the exercise
of the mandatory exclusionary power under s 76 of PACE.
In
MacNeil and Others v HM Advocate,
127
the Scottish court again used the principle
of urgency to justify the admission of evidence obtained outside the jurisdiction.
However, on this occasion the court moved to consider the admissibility issue without
ruling on the legality of the search. The appellants were convicted of offences relating
to the importation of cannabis. Following the discovery of drugs on a yacht moored
on the Clyde, customs officers obtained a warrant under the Customs and Excise
Management Act 1979. Material was seized from an address in Liverpool that was
not covered by the warrant. Objection was taken to the admissibility of this material
on the ground that it had been obtained irregularly and there were no circumstances
which might excuse the irregularity. Proceeding on the basis that the items were
irregularly obtained, the court held that the sheer urgency of the situation excused
any potential irregularity and that, in the circumstances, the trial judge was correct
in holding that the items should be admitted as evidence. It is unfortunate that the
court did not deliver its opinion on the legality of the search before proceeding to
consider the issue of admissibility. In cases involving evidence obtained outside the
jurisdiction, it is important to distinguish between rules regulating the gathering of
evidence and rules relating to the admissibility of evidence. In this case, if evidence
was obtained unlawfully in Liverpool it could not be rendered lawful by the
application of the principle of urgency, since this is not a principle recognised in
English law. However, since the principle of urgency relates to the admissibility of
evidence, the court in Scotland could consider whether it was appropriate in the
circumstances to excuse the irregularity, which took place in England, and admit
the evidence at trial.
In
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