The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective

Evidence may be obtained illegally, for example by a crime, tort or a breach of contract or in breach of statutory or other provisions governing the powers and duties of the police or others involved in investigating crime. Evidence may also be obtained improperly or unfairly for example by trickery...

Full description

Bibliographic Details
Main Authors:	Shair Mohamed, Mohd Akram, Mohamad Yunus, Mohamad Ismail
Format:	Article
Language:	English
Published:	Serials Publications 2016
Subjects:	K Law (General) KBP Islamic Law KD England and Wales KPG Malaysia
Online Access:	http://irep.iium.edu.my/53588/ http://irep.iium.edu.my/53588/1/Right%20of%20Private%20Defence%20-%20JILR.pdf

id	iium-53588
recordtype	eprints
spelling	iium-535882016-12-14T03:23:42Z http://irep.iium.edu.my/53588/ The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective Shair Mohamed, Mohd Akram Mohamad Yunus, Mohamad Ismail K Law (General) KBP Islamic Law KD England and Wales KPG Malaysia Evidence may be obtained illegally, for example by a crime, tort or a breach of contract or in breach of statutory or other provisions governing the powers and duties of the police or others involved in investigating crime. Evidence may also be obtained improperly or unfairly for example by trickery, deception, bribes, threats or inducements. At one extreme, the view could be taken that evidence, which is relevant and otherwise admissible, should not be excluded because the means by which it was obtained: whether illegal, improper or unfair, to exclude it, would in some cases, result in injustice including the acquittal of the guilty. On this view, all evidence, which is necessary to enable justice to be done would be admitted, and those responsible for the illegality or impropriety could be prosecuted, sued or disciplined. The view at the other extreme would be that illegally or improperly obtained evidence should always be excluded; to admit it, might encourage the obtaining of evidence by such means. On this view, all such evidence would be excluded, even if this would sometimes result in injustice including the guilty going free, in order that those responsible for the illegality or impropriety are in future compelled to respect and are deterred from invading the civil liberties of the citizens. The modern law of evidence in Australia, Canada, Great Britain, Ireland, Malaysia, Scotland and Singapore represents a compromise between these two extremes. So, although generally it reflects in relation to admissibility as a matter of law, it also empowers the trial judge to exclude as a matter of discretion. As to the discretion to exclude the Australian, Canadian, Irish, Scottish and latterly, the English courts have adopted a wider aspect of the discretion, while Malaysia has taken the narrower aspect, the Singaporean courts have further restricted the exclusionary discretion. Keywords: Law of evidence, illegally procured evidence, illegally obtained evidence, exclusion of evidence, discretion to exclude evidence, Shariah principles. Serials Publications 2016-07 Article PeerReviewed application/pdf en http://irep.iium.edu.my/53588/1/Right%20of%20Private%20Defence%20-%20JILR.pdf Shair Mohamed, Mohd Akram and Mohamad Yunus, Mohamad Ismail (2016) The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective. Journal of Islamic Law Review, 12 (2). pp. 171-190. ISSN 0973-2918
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	K Law (General) KBP Islamic Law KD England and Wales KPG Malaysia
spellingShingle	K Law (General) KBP Islamic Law KD England and Wales KPG Malaysia Shair Mohamed, Mohd Akram Mohamad Yunus, Mohamad Ismail The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective
description	Evidence may be obtained illegally, for example by a crime, tort or a breach of contract or in breach of statutory or other provisions governing the powers and duties of the police or others involved in investigating crime. Evidence may also be obtained improperly or unfairly for example by trickery, deception, bribes, threats or inducements. At one extreme, the view could be taken that evidence, which is relevant and otherwise admissible, should not be excluded because the means by which it was obtained: whether illegal, improper or unfair, to exclude it, would in some cases, result in injustice including the acquittal of the guilty. On this view, all evidence, which is necessary to enable justice to be done would be admitted, and those responsible for the illegality or impropriety could be prosecuted, sued or disciplined. The view at the other extreme would be that illegally or improperly obtained evidence should always be excluded; to admit it, might encourage the obtaining of evidence by such means. On this view, all such evidence would be excluded, even if this would sometimes result in injustice including the guilty going free, in order that those responsible for the illegality or impropriety are in future compelled to respect and are deterred from invading the civil liberties of the citizens. The modern law of evidence in Australia, Canada, Great Britain, Ireland, Malaysia, Scotland and Singapore represents a compromise between these two extremes. So, although generally it reflects in relation to admissibility as a matter of law, it also empowers the trial judge to exclude as a matter of discretion. As to the discretion to exclude the Australian, Canadian, Irish, Scottish and latterly, the English courts have adopted a wider aspect of the discretion, while Malaysia has taken the narrower aspect, the Singaporean courts have further restricted the exclusionary discretion. Keywords: Law of evidence, illegally procured evidence, illegally obtained evidence, exclusion of evidence, discretion to exclude evidence, Shariah principles.
format	Article
author	Shair Mohamed, Mohd Akram Mohamad Yunus, Mohamad Ismail
author_facet	Shair Mohamed, Mohd Akram Mohamad Yunus, Mohamad Ismail
author_sort	Shair Mohamed, Mohd Akram
title	The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective
title_short	The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective
title_full	The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective
title_fullStr	The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective
title_full_unstemmed	The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective
title_sort	status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected common law jurisdictions and islamic law perspective
publisher	Serials Publications
publishDate	2016
url	http://irep.iium.edu.my/53588/ http://irep.iium.edu.my/53588/1/Right%20of%20Private%20Defence%20-%20JILR.pdf
first_indexed	2023-09-18T21:15:47Z
last_indexed	2023-09-18T21:15:47Z
_version_	1777411553036861440

The status of evidence obtained unlawfully: a comparative appraisal of the laws in some selected Common law jurisdictions and Islamic law perspective

Similar Items