Illegally and improperly obtained evidence

What is illegally or improperly obtained evidence?

Illegally or improperly obtained evidence consists of evidence obtained in violation of a person’s human rights guaranteed by the European Convention of Human Rights. It will usually be in breach of their right to respect for private life under article 8 ECHR or in violation of the prohibition on torture, inhuman or degrading treatment or punishment guaranteed by article 3 ECHR. 

What constitutes illegally or improperly obtained evidence?

It is a fundamental principle of English law and a requirement of the European convention of Human Rights that in a criminal trial, the prosecution bears the burden of proving the guilt of the accused. Article 6 European Convention of Human Rights requires a presumption of innocence on the accused. To prove guilt, the prosecution must obtain evidence to support their position. The prosecution may resort to improper means to gather evidence in support of their position especially if obtaining evidence in conventional ways proves unfruitful.  

Is all evidence admissible?

In criminal proceedings, all relevant evidence presented by the parties is prima facie admissible as the UK courts have adopted an inclusionary approach towards evidence in order to favour the victim and ensure a fair trial. In a case in 1861 it was confirmed evidence is admissible even if it were stolen. The rationale for this approach is that the court considers the primary aim of the justice system to be the discovery of the truth and the unearthing of guilt. This is prioritised above the protection of the accused’s right to private life. Nevertheless the courts have discretion under s.78 Police and Criminal Evidence Act 1984 to exclude evidence which lacks relevance and which might, by its admission, endanger trial fairness. This contrasts with the exclusionary approach of the courts of the USA to illegally obtained evidence, which prioritises the need to deter the police from unconstitutional behaviour. Although the UK courts do not wish to encourage illegally methods to obtaining evidence on the part of the police, discovering guilt is prioritised. 

Real and confession evidence

Trial fairness may be endangered by the admission of unreliable evidence. English case law distinguishes between illegally obtained real and confessional evidence. Improperly obtained confession evidence, such as confessions obtained under torture contrary to article 3 ECHR, can be seen as inherently unreliable, however real evidence, although improperly obtained, such as evidence obtained through searches or covert listening devices, will remain reliable.  

When will evidence obtained illegally or improperly be excluded?

Due to the fact that real evidence is by its nature reliable, it is generally included unless its admission would adversely affect trial fairness. Although the accused usually cannot establish that the admission of the improperly obtained evidence would endanger trial fairness and therefore prevent it being used against them, often other remedies are available for the breach of rights, namely compensation. When real evidence has been excluded, this is usually a result of a breach of a suspect’s right against self incrimination, another fundamental right of the accused, or due to gross and deliberate police misconduct. On the other hand, confession evidence will generally be excluded under the Police and Evidence Act 1984 as it is unreliable and is likely to affect the fairness of the proceedings.  

The Impact of the Human Rights Act 1998

The exercise of the courts discretion to exclude evidence has not been drastically altered as a result of the incorporation of the European Convention of Human Rights into domestic law by way of the Human Rights Act 1998. The European Court of Human Rights confirmed that real evidence obtained in breach of the accused’s right to private life guaranteed by article 8 ECHR such as through covertly obtained video or audio recordings remains admissible and does not violate the accused’s right to a fair trial guaranteed by article 6 ECHR as the right to private life is not an absolute right. The courts have ensured they act in a way that is compatible with article 3 ECHR, the prohibition of torture, by maintaining a strict exclusionary stance to confession evidence obtained through torture regardless of the reliability of the evidence. This is primarily as the right against torture is an absolute right. It ensures conformity with the accused’s fundamental right against self-incrimination and is also a means of deterrence, to ensure that torturers will never be rewarded for their improprieties.