DUKE OF ARGYLL V DUCHESS OF ARGYLL – The Stolen Diary

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 for input on the legal background surrounding the diary stolen from the Duchess of Argyll’s bedroom.

Those who watched the recent BBC series A Very British Scandal may 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 held down in her bed by her husband, the Duke. What may 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 evidence that was relevant to the issue before the court was admissible in civil proceedings, even if it had been irregularly obtained. In that 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. Although the pursuer was successfully prosecuted for theft of the letter, it was ruled on appeal that the letter had been correctly admitted into evidence in the civil case.

In the Duke of Argyll v Duchess of Argyll (1962) case, Lord Wheatley considered himself bound by the decision in Rattray v Rattray (1897), if unconvinced by the reasoning in the case. Although the Duchess’ 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 be 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 (1897) remains binding in Scotland, 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 are not required to take human rights into account regarding 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 such a flagrant invasion of a person’s private sphere by allowing improperly obtained evidence to be used in proceedings.