(3) It seems to me, with all proper respect to Inspector Howe, that the approach which he thus describes was, at the very least, reckless in the dictionary sense of "lacking in prudence or caution" . I find it very disconcerting that any police officer would think it appropriate to enter a citizen's home and, in effect, to carry out a documentary ransack of the home, without so much as adverting to the question whether such an intrusion was authorised by a valid search warrant then current.
As to the criterion (3)(f) : It was submitted that Article 17 of the relevant International Covenant had been breached. The Article provides:
"1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, …………….
2. Everyone has the right to the protection of the law against such interference……………"
It will be apparent from what I have previously said that the relevant police conduct constituted, at least, an unlawful interference of the kind described in Article 17. I am myself inclined to the view that the interference was, as well, arbitrary in the sense contemplated by Article 17.
As to the criterion (3)(g) : There is no evidence to suggest that any such proceeding has been or is likely to be taken.
As to the criterion (3)(h) : It was submitted that the terms of section 5 of the Search Warrants Act entail that it would never have been possible to have obtained a search warrant authorising a simple and indiscriminate seizure of papers and documents of whatsoever kind that might be found in the accused's home.
I think that there is some force to that argument, but I prefer to deal with the matter otherwise. It seems to me that it would have occasioned the investigating police no great inconvenience to have sought from an authorised Justice a valid search warrant authorising the search for, and if found the seizure of, any document in the possession of the accused and having, reasonably, an apparent connection to the disappearance of Mrs. Whelan. I accept that the putting into effect with strict propriety of such a warrant would have entailed the search item by item of the documents at the accused's premises; and the formation, item by item, of a discriminating and careful judgment as to whether such item had a reasonably apparent connection to Mrs. Whelan's disappearance. That burdens of that kind will be encountered is no excuse for cutting the corners of propriety in the matter of obtaining and enforcing search warrants.
27 Having canvassed the criteria prescribed in section 138(3), I turn next to the striking of the overall balance as prescribed by section 138(1).
28 It is convenient to begin, once again, with a citation of authority. In Lawrie v Muir (1950) JC 19, Lord Cooper, the Lord Justice-General, speaking for a specially convened Bench of seven members of the Scottish Court of Justiciary, said this:
"From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods. It is obvious that excessively rigid rules as to the exclusion of evidence bearing upon the commission of a crime might conceivably operate to the detriment and not the advantage of the accused, and might even lead to the conviction of the innocent; and extreme cases can easily be figured in which the exclusion of a vital piece of evidence from the knowledge of a jury because of some technical flaw in the conduct of the police would be an outrage upon common sense and a defiance of elementary justice…………………
Irregularities require to be excused , and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with a crime. That principle would obviously require consideration in any case in which the departure from the strict procedure has been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick. Again, there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases (of which the Sale of Food and Drugs Acts provide one example) it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution's case. On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained." (at 26, 27)
29 I have not found this overall balance an easy one to strike in the present case.
30 A matter that is relevant in that connection is a submission put with great emphasis by learned leading counsel for the accused, to the effect that the police not only seized unlawfully the "dot point" documents, but also handled them subsequently in a way that has occasioned the accused real and irremediable prejudice. It was submitted that this entailed such an unfairness as ought to weigh heavily on the accused's side of the section 138 balance.
31 The underpinning of the submission, explained simply, is that the police, having seized the documents, shortly thereafter caused them to be submitted to analysis for fingerprints; that such analysis entailed the use on the documents of a substance called ninhydrin; and that the consequence of the use of that substance was to preclude thereafter the carrying out of certain other scientific testing by defence experts, which testing might have well enabled the accused to refute the intended Crown hypothesis as to relationship of the documents to the alleged kidnap of Mrs. Whelan, and to the ransom note.
32 In support of the foregoing submission, the defence called Mr. Neil Holland, a highly qualified and experienced forensic examiner of documents. I accept Mr. Holland's evidence.
33 That evidence establishes, relevantly, two things: first, that Mr. Holland was able to carry out certain testing of the ink types used in the writing on the "dot point" materials; and secondly, that Mr. Holland was unable, because of the condition of the paper used in the documents, to carry out certain ageing tests on the paper itself.
34 As to the ink testing, what Mr. Holland can say is contained in his reports, exhibits E and F on the relevant voir dire hearing. It is there established that the inks used were available, that is to say were in production, wholesale distribution and retail sale, prior to 1995. This evidence seems to me to stop far short of establishing that the ink used in the writing of the "dot point" documents could not have been used by the accused in, or shortly prior to, May 1997.
35 As to what paper ageing techniques might have established, I refer to, but without here setting out in detail, my exchanges as recorded at T.391-392 with learned leading counsel for the accused. I consider that what is there established falls far short of demonstrating that the testing which Mr. Holland could not carry out would have been capable of proving that the paper used in the "dot point" documents could not have been so used in, or shortly prior to, May 1997.
36 I consider, therefore, that the accused has not demonstrated in fact the particular unfairness alleged in the submission earlier summarised.
37 I wish next to repeat, and with emphasis, that I disapprove strongly of what seems to me to have been a very cavalier approach taken by the relevant responsible police officers to so serious a matter as the search and seizure operation with which I am now dealing. The relevant authorities would have only themselves to blame if this Court were now to exclude the evidence on that account.
38 And yet, in the present particular case, there are powerful countervailing considerations. If Mrs. Whelan was indeed abducted, then whoever abducted her committed a crime of the gravest kind. If Mrs. Whelan has indeed been murdered, then whoever murdered her has committed what is one of the most serious crimes known to the law. It needs, surely, no extended emphasis that there must be the most compelling public interest to ensure that such crimes, if they have in fact been committed, be proved according to law to have been committed; and that anybody implicated culpably in the commission of either or both of the crimes should be identified and then brought to justice according to law. If the "dot point" material has, as in my opinion it does have, real probative value in connection with the proper giving of effect to the foregoing considerations of public justice, then it seems to me that it would be, to quote again from Lord Cooper, "an outrage upon common sense and a defiance of elementary justice" to exclude the evidence of the "dot point" material upon the basis of the balance prescribed by section 138(1).
39 It is necessary, given the foregoing conclusion, to consider separately whether the challenged evidence must be excluded by reason of section 137 of the Act.
40 As to the relevant factor of "probative value", I cannot add usefully to what I have said about that factor in connection with the section 138(1) exercise. As to the factor of "danger of unfair prejudice to the defendant", I have not been persuaded that there is a danger, in the sense of a real risk that a jury, properly instructed and acting reasonably otherwise, will use the evidence of the "dot point" material "upon a basis logically unconnected with" the relevant issues for trial.
41 I will admit, accordingly, this challenged evidence.