a. Evidence obtained in breach of fundamental rights

a. Evidence obtained in breach of fundamental rights

A breach of constitutional rights would not automatically lead to the exclusion of the evidence. The court still retains a discretion to admit or exclude the evidence. The discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach.

• The court must consider the overall fairness of the trial itself, including the reliability of evidence obtained in violation of constitutional rights. If the evidence is inherently unreliable, such as when it has been obtained through improper inducements, it may be excluded.

• The court is entitled to assess the overall behaviour of the investigating authority and the treatment of the accused. There may be situations where it would be unfair to allow certain evidence to be used at trial, especially if an innocent person has been enticed to commit a crime. If the circumstances create an affront to public conscience or compromise the integrity of the criminal justice system, the court may intervene and exclude the evidence.

   

When the breach of a right is minor but the crime involved is serious, the public interest may lean toward admitting the evidence obtained as a result of the breach.