1 Answer

Admissibility

In criminal trials the judge has a wide discretion to prevent evidence being placed before the jury by the prosecution where it has been obtained in circumstances where its admission might be said to have an adverse effect on the fairness of the proceedings. Even under those rules secretly recorded conversations, including confessions, have been admitted, provided the manner in which the evidence was obtained did not affect its credibility. The fact that the conversation had been recorded without the other party’s knowledge was therefore only one of the factors to be taken into account. Others were:

? The risk that the recording had been tampered with or was otherwise an unreliable record, in technical terms, of what had been said;
? The fact that the questioner adopted a threatening tone;
? Any element of entrapment or deceit in persuading the other party to participate, especially if it resulted in him or her make an incriminating statement.

In civil proceedings there has traditionally not been any equivalent discretion to exclude evidence on the basis of unfairness or even on the basis that illegal means had been used to obtain it. It is understandable, given the lower standard of proof and the absence of a jury to determine issues of fact, that a more robust approach should be taken in civil proceedings than in criminal ones.

One of the leading cases on the point is actually an IP case. In 1980 the detailed procedures to be followed in obtaining and executing a search order were still being developed. In the course of a trial the defendant’s counsel asked the trial judge to ignore certain evidence that had been obtained under such an order. The basis of the application was that those executing the order had not complied with the most up-to-date Court of Appeal guidance. The judge rejected the application and the Court of Appeal agreed with him. In the leading judgment Denning MR said that, assuming in the defendant’s favour that the original order ought not to have been made, the evidence obtained under it could not be refused - “I know that in criminal cases a judge may have a discretion … But so far as civil cases are concerned it seems to me that the judge has no discretion. The evidence is relevant and admissible. The judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning”.

In Jones v University of Warwick [2003] 1 WLR 954 the Court of Appeal suggested that, in the light of the Woolf reforms, the position might not be quite so clear cut. It noted that at the time when Denning MR made his statement the achieving of justice in the particular case was the paramount consideration for the judge trying the case. Today, it was suggested, the courts could adopt a less rigid approach in recognising that there were conflicting public interests to be reconciled. On the one hand it was not desirable that evidence should be acquired by deception. But there may well be circumstances, it said, where evidence obtained by unlawful means would be admitted on the basis that it was in the overall interests of justice to enable the defendant to challenge an exaggerated claim put forward by his opponent. This requirement to prevent false claims being asserted should, the Court stated, be the starting point for a court considering the issue. In the absence of other wrongdoing, such as holding back the evidence in order to ambush the claimant with it at trial, the evidence should not normally be excluded.

It might be thought that the Human Rights Act 1998 (under which the European Convention on Human Rights became directly enforceable in the UK) would be relevant in this context. Article 6 of the Convention establishes the rights to a fair trial and Article 8 an individual’s right to respect for his private life (which might be relevant to evidence obtained by bugging a person’s house). However, the Court of Appeal in Jones do not appear keen for either of these provisions to override the domestic law principles dealt with above, provided that proper procedures were followed in permitting the evidence to be challenged and in deciding what weight should be applied to it.

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