Illegally Obtained Evidence. Kenyan Evidence Law

Evidence which is obtained by means or acts which are illegal or against the law.

How does a court faced with illegally obtained evidence deal with the evidence, for example evidence obtained in violation of the constitution?  It could also be evidence 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 somebody’s house and obtaining evidence, through deception, threats, bribes inducement or trickery.

The issue has to be looked at in two ways

1.                  Section 20 of Police Act

2.                  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.

There are two approaches to illegally obtained evidence

1.                  Mandatory inclusion;

2.                  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 following words  “it matters not how you get it, if you steal it even, it would be admissible in evidence” statement by Justice Crompton 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. Even though Crompton says it does not matter how you get it, it will matter if there is 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?

We look to the constitution which protects persons against being subjected to the search of their person or property without their consent.  It also protects against entry to your property by others without your consent.

Under common law, there is the proposition that all relevant evidence is admissible regardless of the fact that it was obtained illegally. Is this a good way to view evidence in light of sometimes the excesses that police can be prone to?  A person may be accused but they still have certain rights.  It is better that 99 guilty people go free than one innocent person to be found guilty.  It is much better that one occasional criminal go free than to condone illegal procuring of evidence.  

Evidence which is relevant to a fact in issue is relevant no matter how it was obtained.

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 in line with Justice Crompton statement in Lloyd v. Mostyn.

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 Cohen’s 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 irreprehensible 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 King’s 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.

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

1.                  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;

2.                  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

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

1.                  A Judge in a criminal trial always has discretion to refuse to admit evidence if its prejudicial effect outweighs its probative value;

2.                  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 admit relevant admissible evidence merely because it had been obtained by improper and unfair means.

3.                  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.

4.                  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 prosecution’s 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 4^th 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 defendant’s 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 4^th Amendment is of no value.”

This was a Supreme Court Decision .

In Wolf 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.

In 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 defendant’s 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 Wolf 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 4^th 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 people’s 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 not withstanding provisions of S. 76 of the Constitution.   The position seems to be that the end justifies the means.