Fruit from a poisoned tree: unlawfully obtained evidence

Increasingly, the courts are being asked to consider whether information obtained unlawfully from computer hacking should be admitted as evidence.

Currently, in English civil proceedings, there is no rule of law that evidence must be excluded because it has been obtained illegally and improperly. In fact, over the years, English judges have made it clear that they are more concerned about vindicating the truth with the aid of relevant evidence, rather than excluding such evidence on the grounds that it has been improperly obtained. In short, if it is relevant, it is likely to be admissible although the court will decide how much weight to give it in each case and can compel disclosure of all documents relating to the gathering of the evidence in the first place.

The general principle that all evidence is admissible by the courts of England and Wales was modified by the Human Rights Act 1998, which incorporated certain articles of the European Convention on Human Rights into English law. Tapping phones, hacking email are all likely to interfere with article rights. However, the courts in England and Wales nonetheless almost always consider that justice is better achieved by putting all relevant material before the judge. By way of example, in Jones v University of Warwick [2003] EWCA Civ 151, an enquiry agent instructed by the defendant obtained access to the claimant’s home on a pretext and used a hidden camera to film the claimant using her hand without the alleged disability.

It was accepted that the enquiry agent had committed trespass which the claimant argued was against her right to privacy under Article 8 of ECHR. The court allowed the evidence on the basis it would be artificial and undesirable for evidence that was relevant not to be before the trial judge.

Of course, presenting unlawfully obtained material to the court will carry distinct risks beyond the immediate civil proceedings. For instance, the party who obtained the information could face civil liability for breach of privacy or unlawful means conspiracy. Similarly, if the material came from a hacker, any litigant seeking to use the information could themselves face criminal prosecution for (1) unlawfully obtaining personal data (a substantive offence under the Data Protection Act 1998) or (2) an inchoate offence if they had somehow assisted, encouraged, or conspired with, the hacker in his/her underlying offending under the Computer Misuse Act 1990 (as amended).

Seeking to utilise unlawfully sourced material therefore, brings risks outside the civil courtroom including reputational and financial risk (for example voided insurance coverage for losses flowing from cybercrime and increased cybercrime insurance premiums).

When compared with a number of other countries, the courts of England and Wales are currently considerably more flexible in admitting evidence obtained by illegal means.

In the US illegally obtained evidence, in the main, is excluded in criminal proceedings. The 'exclusionary rule', emanates from the Fourth Amendment to the Constitution which prohibits 'unreasonable searches and seizures'. It is not absolute, however, and given 'the significant costs' of the rule in excluding otherwise relevant evidence, the rule is 'applicable only where its deterrence benefits outweigh its substantial social costs'.

The exclusionary rule generally does not apply in US civil proceedings but given its deterrence goal, the precise extent to which the exclusionary rule applies in civil proceedings continues to evolve.

French civil courts do not generally permit the use of evidence obtained via illicit means. By way of exception, evidence obtained in breach of the right to privacy can be admitted by the French civil courts as evidence if it is essential for exercising the right and the breach is proportionate to the objective pursued.

The approach taken by the courts in the Russian Federation is significantly stricter than the English courts’ approach. The constitution of the Russian Federation provides that 'in the interests of justice it is not allowed to use any evidence received unlawfully'. This means as long as one can satisfy the court that the evidence has been obtained unlawfully, the court will not consider whether or not that evidence is relevant to the issues in dispute between the parties.

It remains to be seen to what extent, the English civil courts' approach to admissibility of evidence will be tightened. Should the government reconsider our human rights legal framework following the UK’s exit from the EU as the Conservatives have stated it will be important to take into account the effect of technology in relation to obtaining evidence by illegal means. In the meantime courts have to hold the ring, balancing on the one hand access to relevant evidence against on the other hand, litigants who might go to extreme lengths, such as hacking, to get evidence to win their case.

Anupreet Amole is counsel and Jane Colston is partner at Brown Rudnick, London