Courtroom dramas often show nervous whistle blower employees stealing company documents or trench coated figures bugging phones to obtain that key bit of evidence which will crack the case wide open. However, despite the good intentions which might be behind such actions, is illegally or covertly obtained evidence actually admissible in court? If so, what are the risks for those who are involved in obtaining it or using it?
The recent case of Singh v Singh  EWHC 1432 is a useful reminder that there is no absolute prohibition of the use of illegal or covertly obtained evidence and that the courts will allow such evidence to be presented if it is particularly relevant to the case. However, there are a number of things which solicitors should bear in mind before acquiring or deploying such material.
How does a court decide whether it will allow illegally obtained evidence?
The court has complete discretion as to what evidence it will allow to be used in a case. However, when considering whether to allow illegally obtained evidence, the court will balance the need to deter/discourage law breaking against the desire to have all material facts before the court.
In Singh, HHJ Cooke admitted covertly obtained evidence (secretly recorded meetings with the defendant) as it demonstrated that the defendant’s evidence was false. However, the judge warned other courts that they should treat such evidence with caution since the party making the recording may seek to manipulate the conversation, leading to statements which could be taken out of context.
In Jones v University of Warwick  EWCA Civ 151, the claimant’s home was secretly filmed for the purpose of exposing a false personal injury claim (which was an act of trespass). Lord Woolf CJ allowed the evidence to be admitted, however, he ordered the defendant to pay the costs of the time spent debating the admissibility of the evidence (in order to make an example of the defendant and deter such behaviour).
What needs to be considered by solicitors using covertly or illegally obtained evidence?
Before obtaining / putting forward such evidence solicitors should consider the following:
- Evidence will not be admissible if it was obtained through torture or inhuman or degrading treatment (Article 3 of the European Convention on Human Rights).
- Privileged material will not be admissible in court unless it was created in the course of a criminal act or to further a criminal enterprise.
- It is a criminal offence to intercept communication between individuals, such as emails and telephone calls, unless you have their permission (Regulation of Investigatory Powers Act 2000).
- It is a civil wrong and a criminal offence to persuade someone to disclose personal data (for example a person’s name and address) without the “data controller’s” consent (Data Protection Act 1998). This could include, for example, coaxing an employee to provide you with company records without the employer’s permission.
- In the course of civil litigation you are required to provide your opponent with any material in your or your client’s possession which (among other things) helps the other side’s case or harms your client’s case. If you have acquired covertly or illegally obtained evidence, you may therefore be forced to provide this to the other side (even if you decided that it was harmful to your case and you did not want to deploy it).
What are the risks to solicitors?
There are also serious consequences for solicitors if they are involved in or condone law breaking to obtain evidence. Under the Solicitors Code of Conduct, solicitors have a duty to
- uphold the rule of law and the proper administration of justice;
- act with integrity; and
- behave in a way that maintains the trust the public places in you and in the provision of legal services.
Using such covertly obtained evidence may breach such principles, leading to a solicitor suffering adverse publicity and professional embarrassment or even being struck off. If the solicitor is personally involved in criminal conduct, they could also face prosecution.
As shown by the above, the risks of using covertly gathered evidence can be high for solicitors, with the potential consequences including harm to the claim and sanctions for the solicitors themselves. Solicitors should therefore consider carefully whether the benefits of using such evidence outweigh the risks.
Richard Byam-Cook is a senior solicitor at Macfarlanes and a committee member of the Junior London Solicitors Litigation Association