EVIDENCE 1.2 ILLEGALLY OBTAINED EVIDENCE
The consideration here is balancing the need to maintain purity in the administration of justice against preventing the escape of a guilty person on procedural grounds. The law is that evidence should be obtained in accordance with legal and due process. E.g. To search premises; a search warrant must be obtained, the searcher must be searched before searching and such search should be conducted in the presence of at least two impartial witnesses-CPA.
The question is this; where relevant and substantial evidence is obtained in contravention of the law, should the courts admit it? Say for example a search is executed without a search warrant and vital evidence is discovered, should the court accept the evidence? Bearing in mind that the search contravened the accused’s right to privacy as guaranteed under Section 37 of the 1999 Constitution.
Before the 2011 EA, the Common law position (which gave the court discretion to admit illegally obtained evidence provided the evidence is relevant to the case) prevailed-Musa Sadau V The State. In Musa’s case, fake printing machines and documents discovered during an illegal search was accepted by the court. In Abubakar V Chuks, the court held that the source of the evidence is immaterial once the evidence is material. Fawehinmi V NBA No. 2 (1984) 2 NWLR pt 105 p 558 at 622, R V Leatham, where the court showed its readiness to accept relevant evidence even where it is stolen or illegally obtained.
The tide has been modified by Section 14 and 15 of the EA 2011 now provides certain guidelines for the courts in receiving an evidence that was improperly/illegally obtained.
Section 14 provides that the mere fact that evidence was obtained illegally does not mean that it is inadmissible (Haruna V AG Federation) unless the court is of the opinion that it should be rejected. And in reaching its conclusion, it should be guided by the provisions of Section 15.
Section 15 provides that the court should consider:
- The probative value of the evidence.
- Importance of the evidence to the proceeding: they should also look at the implication of accepting or rejecting the evidence.
- Nature of the relevant offence, cause of action or defence and nature of the subject matter of the proceeding.
- The gravity of the impropriety or contravention
- Whether the impropriety or contravention was deliberate or reckless.
- whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention.
- The difficulty if any of obtaining the evidence without impropriety or contravention of the law.
In essence, these improvement in law seeks to do justice instead of relying on technical rules of strict interpretation especially where it would operate unfairly against the accused-Kuruma V The Queen.
In R V Khan, the defendant’s right to privacy was invaded by the use of bugging devices to obtain relevant evidence. The court accepted this.
R V Fowden, the court noted that it can accept illegally obtained evidence especially where it is not unfairly prejudicial to the defendant.
 This simply looks at Whether the impropriety is or is likely to be challenged