The scandal of the Duchess’s stolen diary - Gillian Crandles

Those who watched the BBC series A Very British Scandal might have been shocked by the violent and unpleasant manner in which a diary was stolen from the then Duchess of Argyll's bedroom in the early hours, while she was being held down in her bed by her husband, the Duke of Argyll.

Claire Foy as the Duchess of Argyll faces a barrage of Press photographers in the BBC drama A Very British Scandal

What might surprise many is that the diary itself was ultimately admitted into evidence by Lord Wheatley in the Duke’s divorce case against the Duchess. The decision of Lord Wheatley on the point remains one of the leading decisions on the admission of improperly obtained evidence into civil proceedings in Scotland.

Previously, the leading case was Rattray v Rattray (1897), which held that evidence that was relevant to the issue before the court was admissible in civil proceedings even if it had been irregularly obtained.

In the Rattray case, a letter sent by the defender to the co-defender in a divorce action based on adultery was stolen by the pursuer from a Post Office and then used in evidence.

Gillian Crandles is Managing Partner and Head of Family Law at Turcan Connell.

Although the pursuer was successfully prosecuted for the theft of the letter, it was ruled on appeal that the letter had been correctly admitted into evidence in the civil case. This set a very low bar for the admissibility of improperly obtained evidence in civil proceedings in Scotland. Providing that the improperly obtained evidence is relevant, it will only be in very unusual circumstances that it will be deemed inadmissible.

In the Duke of Argyll v Duchess of Argyll (1962) case, Lord Wheatley considered himself bound by the decision in Rattray v Rattray, if unconvinced by the reasoning in the case. Although the Duchess’s stolen diary was considered only to be a collateral piece of evidence, ultimately Lord Wheatley allowed the diary to be referred to in evidence, i.e., he did not deem it inadmissible on the basis that it was stolen in violent circumstances.

Lord Wheatley considered that the test of admissibility of irregularly obtained evidence in civil proceedings ought to include ‘whether its introduction is fair to the party from whom it has been illegally obtained and whether its admission will in fairness throw light on disputed facts and enable justice to be done.’

The real question of interest today is whether a court would still rule as Lord Wheatley did in 1963, and allow property stolen by force to be referred to in evidence in civil proceedings.

Although Rattray v Rattray remains binding in Scotland, it might be that a court today may take into account different moral and ethical considerations in seeking to distinguish that authority.

The court would also be mindful of its obligations under Article 8 of the European Convention of Human Rights in that everyone has the right to respect for their private and family life, their home and their correspondence.

While private individuals do not require to take human rights into account as regards their behaviour to each other, the court does have obligations under the European Convention of Human Rights and the Human Rights Act 1998, which would call into question whether the court ought to sanction a flagrant invasion of a person’s private sphere by allowing improperly obtained evidence to be used in civil proceedings (it is worth noting that criminal courts are far less likely to admit improperly obtained evidence).

If a court did feel bound to follow Rattray v Rattray in dubious circumstances, the possibility of an appeal would remain. However, the circumstances where this would be worthwhile, at least on this point alone, would appear to be limited unless the improperly obtained evidence was clearly the sole or decisive piece of evidence in the case.

This perhaps explains why Rattray v Rattray , despite the judgment now being 125 years old, has not yet been the subject of review.

Gillian Crandles is Managing Partner and Head of Family Law at Turcan Connell. She was delighted to have been asked by the producers of A Very British Scandal to input to the legal background surrounding the diary stolen from the Duchess of Argyll’s bedroom. She was assisted by Alex Critchley, a solicitor in the team.