Do Two Wrongs Ever Make A Right When It Comes To Evidence Obtained By Hacking Or Even Torture?

• Published date: 25 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: BCL Solicitors LLP
• Author: Mr Michael Drury, Caroline Mair and Andrew Watson

With the civil courts confirming they are content to allow parties to deploy as evidence the results of unlawful computer hacking, Michael Drury, Caroline Mair and Andrew Watson consider the issues including for similarly obtained evidence in the criminal courts.

Hacking and theft

In Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349('RAKIA') the civil division of the Court of Appeal confirmed the long-standing rule that relevance of evidence is key to its admissibility, not whether it was obtained lawfully. As a result, evidence of fraud on the part of Mr Azima, which was said to have been obtained by unlawful 'hacking' of his computer, could nonetheless be deployed. The court took the view that refusing to admit the evidence or striking out the claim as an abuse of process would have left Mr Azima with the benefit of his fraudulent conduct. In weighing up the public policy considerations of needing to be seen to provide justice whilst at the same time ensuring that members of the public abide by the law, the court has continued to favour the former, well established by the time of the seminal judgment in Jones v University of Warwick [2003] EWCA Civ 151. But what bearing does this decision have on the admissibility of illegally obtained evidence in criminal proceedings, especially if sought to be deployed by a defendant? And does this case in any way erode the well-established rule that illegally obtained evidence obtained through torture, will not, under any circumstances, be admitted in evidence?

In principle in criminal proceedings the same rule applies: provided that admitting evidence will not have an adverse effect on the fairness of proceedings, and it is relevant to matters in issue, it will be admissible. Indeed, Kurama v R [1995] AC 197, which is the leading authority from (relatively) modern times, was a criminal prosecution from Kenya where the search leading to the evidence was plainly unlawful. As the court reiterated there, quoting from an 1861 judgment (in another criminal case): "It matters not how you get it; if you steal it even, it would be admissible".

Nonetheless it is hard to imagine that deliberate breaches of the criminal law by the authorities would not lead to exclusion of such evidence given the fairness requirement embodied in the Police and Criminal Evidence Act 1984 and its extensive subsequent case law or, in the world of surveillance, by the Investigatory Powers Act 2016 ('IPA' - for technical surveillance)...