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The best evidence rule in criminal cases Admissibility decisions are questions of law and are therefore for the judge, there are rules which preclude certain evidence being led which derive from the interests of justice and usually the protection of the accused. Therefore, a party can argue that an anticipated piece of evidence is inadmissible as it is contravenes the best evidence rule, an objection will have to be made at the appropriate time and they have the onus of the argument, subsequently a judgement will be reached on whether it is to be admitted and that decision may be appealed. The best evidence rule requires that that primary evidence be produced rather than secondary evidence as it is the best quality, for example, the original document should be produced rather than that of a replica. Such requirement arises when two conditions are met; where it is reasonably practicable for the primary evidence to be produced and where the failure to produce the primary evidence would lead to material prejudice on the part of the other party. Therefore, the best evidence rule cannot blindly be insisted upon, there must be material prejudice to the party objecting and even then, the other party may argue that it would be impractical or inconvenient to produce the item in court. Additionally, although the rules are of limited significance, they should not be overlooked. Accordingly, in Anderson v Laverock 1976, the accused was convicted of illegal fishing after being found in possession of salmon. He was taken to the police, where the fish was examined by the police. The fish was destroyed by the police the following day, it was then argued that the absence of the fish in Court was fatal to the conviction since it is a breach of the best evidence rule. However, the High Court held that the sheriff was entitled to find that, since the fish was perishable, it was not ‘practical and convenient’ to retain them, as such the first condition was not met. The appeal was allowed on other grounds. In the case of McKellar v Normand 1992, the accused was convicted of reset of a bed and blanket found in her home, the bed and blanket were not produced in Court and neither were labels in their place. It was held that there was no suggestion that any prejudice was caused due to the absence of the primary evidence, the argument failed as did the appeal as it did not meet the second condition. It was also clarified in Kelly v Allan 1984 that the ‘material prejudice’ condition, will not be satisfied by the mere suggestion by the party claiming to have been prejudiced, that the presence of the best evidence might have allowed some cross-examination to take place, the objector must establish precisely what the prejudice would be. Also, in Stevenson v HM Advocate 2008, the police lost the implements used in the alleged assaults, the defence lodged that the production of such evidence is necessary for it to be a fair trial. However, it was unsuccessful, as it was held by the High Court missing implements not necessarily lead to unfairness as such no material prejudice occurred. Similarly, in Lowie v HM Advocate [2009] the bank notes being of potential ‘criminal property’ as they were examined by an expert for traces of controlled drugs, to establish whether they can be confiscated under the proceeds of crime legislation. The expert gave evidence in for the Crown, in absence of the evidence in Court, they were also unavailable for prior inspection by the accused. The trial judge held that there was no material prejudice, this decision was upheld on appeal.

In regard to the application of the best evidence rule in relation to documents, Nocher v Smith 1978 concerned the non-production of an original search warrant, it was held to not be fatal to the conviction as there was evidence indicating that the police officers executing the warrant acted properly. Therefore, there was no suggestion that there had been prejudice caused. Nocher illustrates that the best evidence rule applies to documents as well as real evidence, and that both conditions must be met. In conclusion, the main test when it comes to the best evidence rule is whether the absence of such evidence will cause material prejudice to the accused. Additionally, such material prejudice caused to the accused must be fairly serious or significant in order for the best evidence rule to be insisted upon. Notwithstanding, the primary evidence must not be impractical or inconvenient to produce the item in court...