Natalie Todd & Nicholas Bortman on the extraordinary measures parties are taking to gather evidence
- Courts in England and other jurisdictions are showing a growing willingness to admit unlawfully gathered evidence if it serves the public interest.
- Investigators and litigants are pushing limits, using covert tactics and exploiting legal grey areas, while courts weigh the harm against the victims.
- As data protection rules tighten, they can hinder access to critical evidence, empowering fraudsters and complicating justice for legitimate claimants.
There is a general principle of English law which provides that evidence obtained unlawfully is not, by default, inadmissible. The rationale for the principle is that in order to achieve justice in any particular case, it is desirable that the court has access to all relevant evidence when making its decision. The court will weigh up the public interest in discouraging the conduct by which the evidence was made available against the public interest in establishing the truth. If the evidence is allowed, the court will decide what weight to give it in view of its illegal source.
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