Natalie Todd surveys the boundaries for evidence gained by covert surveillance & other underhand tactics
- It is a general principle of law that evidence obtained unlawfully is not, by default, inadmissible.
- Judges may accept hacked emails, telephone calls and surveillance footage as evidence in the interests of justice unless they find a reason to exclude them.
- However, the courts will always decide what weight to give to such evidence and whether a heavy costs sanction should be imposed.
There is a general English law principle which provides that evidence obtained unlawfully is not, by default, inadmissible (the principle) (Jones v University of Warwick [2003] EWCA Civ 151).
The matter often falls to be decided depending on i) the court’s discretion—under CPR 32.1, the court has a power, but not a duty, to exclude evidence that would otherwise be admissible; and ii) whether the Human Rights Act 1998, Art 6 of the European Convention on Human Rights (ECHR) (the right to a fair trial)) and Art 8,
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