Report and Recommendations - Scottish Government

he/she might have to speak to in court and thus be exposed to potentiallydamaging cross-examination on the same or other matters in the witness box.6.2.24 The pure question of whether a statement has been fairly obtained can be seenin two different ways. It can be looked upon in terms of the common lawwhich, as the Lord Justice General (Cooper) said in Lawrie v Milne, regardsfairness as something to be assessed, balancing 21 :“two highly important interests… (a) the interest of the citizen to beprotected from illegal or irregular invasions of his liberties by theauthorities, and (b) the interest of the state to secure that evidencebearing upon the commission of crime and necessary to enable justiceto be done shall not be withheld from courts of law on any merelyformal or technical ground”.6.2.25 This approach of balancing rights found favour, particularly in the PrivyCouncil decision in Brown v Stott 22 . It may still have adherents in the UnitedKingdom Supreme Court 23 . It can involve taking into account, for example,such factors as the seriousness of the offence in deciding whether the policehave acted fairly in their dealings with the suspect, having regard to all thecircumstances. It is a viewpoint which may take account of societal attitudesat a particular time and, to that extent, can be seen as a highly flexibleinstrument.6.2.26 Alternatively, the test for admissibility can be whether the use of the answersinfringes the accused’s Article 6 right to a fair trial. In the present context, thequestion is whether the methods used by the police can be seen as infringing21 1950 JC 19 at 26, see also Miln v Cullen (supra)22 2001 SC (PC) 43, especially Lord Bingham at 60-61 and Lord Steyn at 6323 Ambrose, Lord Hope at para 68, Lord Clarke at paras 119-120181