Abstract
With the prevalence of WikiLeaks and similar websites, there has been a marked increase in parties seeking to adduce evidence that has been illegally obtained. The problem is not, however, new. This article considers the approach of the criminal and civil courts in the UK to illegally obtained evidence and the approach of arbitral tribunals. Necessarily, because of the confidentiality of commercial arbitration, the latter is mainly a survey of ICSID cases. The UK is consistent across criminal and civil courts generally favouring the admission of the disputed evidence, albeit with sanctions. In the arbitration cases, however, exclusion is more common generally based on the obligation to arbitrate in good faith.
1. Introduction
In general, there is no rule of law that evidence obtained illegally (or improperly) must, for the purpose of proving a civil claim, be excluded. The courts have made it clear that they are more concerned with establishing the truth rather than applying a mechanistic rule. If, therefore, a document is relevant, it will usually be admitted in evidence, however it was obtained (except confessions obtained by torture). The appropriate sanction will often be in costs rather than the exclusion of the evidence although case law makes it clear that in the most egregious cases, the appropriate sanction might be to strike out the claim, or defence, as the case may be. The court might also compel wider disclosure of documents relating to the gathering of evidence.
The Human Rights Act 1998 may well also feature as tapping phones, hacking emails and privacy issues may well infringe article rights (see eg Jones v University of Warwick (below) where an enquiry agent trespassed into the claimant’s home and it was alleged that that had infringed the claimant’s art 8 rights).
Seeking to have tainted evidence admitted may carry risks in itself. There may be civil liability for breach of privacy or unlawful means conspiracy. Criminal liability might also arise, eg under the Data Protection Act 1998 and Data Protection Act 2018 if personal data evidence was unlawfully obtained by a hacker or under the Computer Misuse Act 1990 if a hacker was assisted, encouraged or conspired with.
In the US, illegally obtained evidence is generally excluded in criminal proceedings—the so-called “exclusionary rule” emanating from the Fourth Amendment which prohibits “unreasonable searches and seizures”. It is not an absolute rule and applies only where its deterrence benefits outweigh its substantial social costs. Generally, the exclusionary rule does not apply in civil claims but given the deterrence goal its limit remains unclear. French civil courts do not generally admit evidence obtained by illicit means. The Supreme Court of the Russian Federation does not admit illegally obtained evidence as the constitution provides at art 50 that “in administering justice it shall not be allowed to use evidence received by violating the federal law”.
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