Fruit from a poisoned tree: unlawfully obtained evidence (2024)

Increasingly, the courts are being asked to consider whether information obtained unlawfully from computer hacking should be admitted as evidence.

Currently, in English civil proceedings, there is no rule of law that evidence must be excluded because it has been obtained illegally and improperly. In fact, over the years, English judges have made it clear that they are more concerned about vindicating the truth with the aid of relevant evidence, rather than excluding such evidence on the grounds that it has been improperly obtained. In short, if it is relevant, it is likely to be admissible although the court will decide how much weight to give it in each case and can compel disclosure of all documents relating to the gathering of the evidence in the first place.

The general principle that all evidence is admissible by the courts of England and Wales was modified by the Human Rights Act 1998, which incorporated certain articles of the European Convention on Human Rights into English law. Tapping phones, hacking email are all likely to interfere with article rights. However, the courts in England and Wales nonetheless almost always consider that justice is better achieved by putting all relevant material before the judge. By way of example, in Jones v University of Warwick [2003] EWCA Civ 151, an enquiry agent instructed by the defendant obtained access to the claimant’s home on a pretext and used a hidden camera to film the claimant using her hand without the alleged disability.

It was accepted that the enquiry agent had committed trespass which the claimant argued was against her right to privacy under Article 8 of ECHR. The court allowed the evidence on the basis it would be artificial and undesirable for evidence that was relevant not to be before the trial judge.

Of course, presenting unlawfully obtained material to the court will carry distinct risks beyond the immediate civil proceedings. For instance, the party who obtained the information could face civil liability for breach of privacy or unlawful means conspiracy. Similarly, if the material came from a hacker, any litigant seeking to use the information could themselves face criminal prosecution for (1) unlawfully obtaining personal data (a substantive offence under the Data Protection Act 1998) or (2) an inchoate offence if they had somehow assisted, encouraged, or conspired with, the hacker in his/her underlying offending under the Computer Misuse Act 1990 (as amended).

Seeking to utilise unlawfully sourced material therefore, brings risks outside the civil courtroom including reputational and financial risk (for example voided insurance coverage for losses flowing from cybercrime and increased cybercrime insurance premiums).

When compared with a number of other countries, the courts of England and Wales are currently considerably more flexible in admitting evidence obtained by illegal means.

In the US illegally obtained evidence, in the main, is excluded in criminal proceedings. The 'exclusionary rule', emanates from the Fourth Amendment to the Constitution which prohibits 'unreasonable searches and seizures'. It is not absolute, however, and given 'the significant costs' of the rule in excluding otherwise relevant evidence, the rule is 'applicable only where its deterrence benefits outweigh its substantial social costs'.

Fruit from a poisoned tree: unlawfully obtained evidence (2)

Jane Colston

The exclusionary rule generally does not apply in US civil proceedings but given its deterrence goal, the precise extent to which the exclusionary rule applies in civil proceedings continues to evolve.

French civil courts do not generally permit the use of evidence obtained via illicit means. By way of exception, evidence obtained in breach of the right to privacy can be admitted by the French civil courts as evidence if it is essential for exercising the right and the breach is proportionate to the objective pursued.

The approach taken by the courts in the Russian Federation is significantly stricter than the English courts’ approach. The constitution of the Russian Federation provides that 'in the interests of justice it is not allowed to use any evidence received unlawfully'. This means as long as one can satisfy the court that the evidence has been obtained unlawfully, the court will not consider whether or not that evidence is relevant to the issues in dispute between the parties.

It remains to be seen to what extent, the English civil courts' approach to admissibility of evidence will be tightened. Should the government reconsider our human rights legal framework following the UK’s exit from the EU as the Conservatives have stated it will be important to take into account the effect of technology in relation to obtaining evidence by illegal means. In the meantime courts have to hold the ring, balancing on the one hand access to relevant evidence against on the other hand, litigants who might go to extreme lengths, such as hacking, to get evidence to win their case.

Anupreet Amole is counsel and Jane Colston is partner at Brown Rudnick, London

Fruit from a poisoned tree: unlawfully obtained evidence (2024)

FAQs

Fruit from a poisoned tree: unlawfully obtained evidence? ›

The fruit of the poisonous tree

fruit of the poisonous tree
Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") from it is tainted as well.
https://en.wikipedia.org › wiki › Fruit_of_the_poisonous_tree
doctrine is a rule that makes evidence that was obtained illegally inadmissible in court
inadmissible in court
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—to establish or to bolster a point put forth by a party to the proceeding.
https://en.wikipedia.org › wiki › Admissible_evidence
, as well as any legal evidence that stems from the illegal search
. It prevents law enforcement agencies from using illegal methods of gathering evidence.

Is fruit of the poisonous tree illegally obtained evidence? ›

Fruit of the poisonous tree doctrine: A rule under which evidence that is the direct result of illegal conduct on the part of an official is inadmissible in a criminal trial against the victim of the conduct.

Is fruit of the poisonous tree evidence excludable under the exclusionary rule? ›

Fruit of the poisonous trees is a doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.

How does wiretapping evidence relate to the fruit of the poisonous tree doctrine? ›

What Evidence Is Fruit of the Poisonous Tree? Fruit of the poisonous tree includes evidence gathered from just about any kind of police conduct that violates a defendant's constitutional rights. Take an illegal wiretap, for example.

Is the fruit of the poisonous tree doctrine also known as the derivative evidence rule? ›

The Fruit of the Poisonous Tree doctrine (also known as the Derivative Evidence Doctrine) is a rule in criminal law that makes evidence that was derived from an illegal search, arrest or interrogation inadmissible.

What does the fruit from the poisonous tree mean? ›

Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") from it is tainted as well.

What is illegally obtained evidence called? ›

In a criminal trial, tainted evidence, also referred to as evidence of taint, is evidence that was acquired by illegal means. For example, if authorities gather evidence using a wiretap without a proper warrant, the evidence will be deemed tainted.

Does fruit of the poisonous tree apply to Miranda? ›

The 5 – 4 decision of the Supreme court concluded that the fruit of the poisonous tree doctrine did not extend to physical evidence discovered as a result of a statement taken without Miranda warnings. Missouri v. Seibert, 542 U.S. 600, 124 S. Ct.

What are the three exceptions to the exclusionary rule? ›

Three exceptions to the exclusionary rule are "attenuation of the taint," "independent source," and "inevitable discovery."

Which rule states that evidence that was obtained illegally cannot be used in trial? ›

The exclusionary rule, designed to deter police from using unconstitutional investigative procedures, renders illegally obtained evidence inadmissible at trial.

What is the exclusionary rule and doctrine of fruit of the poisonous tree and explain how these terms apply to your situation? ›

The exclusionary rule prevents illegal evidence from being used in court. The fruit of the poisonous tree doctrine prevents illegal evidence and all legal evidence that may stem from an illegal search from being used in court.

What does the fruit of the poisonous tree doctrine relate to quizlet? ›

"Fruit of the Poisoned Tree" refers to the illegally acquired evidence itself. These rules help to regulate the actions of police officers and how they go about collecting evidence to make a case against the defendant. It's basically a guideline that keeps the trial fair for all involved.

What are the exceptions to the fruit of the poisonous tree doctrine quizlet? ›

Exceptions: (i) Affidavit lacks probable cause and it was obvious; (ii) Affiant lied to magistrate; (iii) warrant did not state with particularity the place to be searched; or (iv) magistrate abandoned his judicial role.

What are the two exceptions to the fruit of the poisonous tree doctrine? ›

These are: Independent source: The fruit of the poisonous tree doctrine will not apply if the evidence was found from another independent and untainted source. Inevitable discovery: If, despite the tainted source, the evidence would have been discovered anyway, then the evidence will be admissible.

Which exception to the fruit of the poisonous tree doctrine permits the introduction of evidence if it would have been discovered anyway? ›

The inevitable discovery exception is an exception to the fruit of the poisonous tree doctrine that permits the introduction of evidence if it would have been discovered anyway.

What is the inevitable discovery exception to the fruit of the poisonous tree doctrine? ›

This doctrine states that evidence that was obtained by law enforcement illegally can be admitted as permissible in court if it would have inevitably been found or obtained. The inevitable discovery doctrine is usually practiced when the evidence that was illegally obtained is a weapon or a body.

What is the fruit of the poisonous tree cybercrime? ›

This legal principle holds that evidence (fruits) obtained from an illegal search (the poisonous tree) is not admissible in court and must be suppressed. By applying an irrefutable legal process, law enforcement can ensure this valuable evidence is obtained legally, making it admissible at trial.

Does the fruit of the poisonous tree doctrine apply to civil cases? ›

Civil law also concerns itself with chains of causation, both in determining liability and in ordering relief. But civil does not apply the logic of the fruit of the poisonous tree to chase down every consequence of a wrong.

Which exception to the fruit of poisonous tree doctrine permits the introduction of evidence? ›

The inevitable discovery exception is an exception to the fruit of the poisonous tree doctrine that permits the introduction of evidence if it would have been discovered anyway.

Does the fruit of the poisonous tree doctrine apply to Miranda violations? ›

The 5 – 4 decision of the Supreme court concluded that the fruit of the poisonous tree doctrine did not extend to physical evidence discovered as a result of a statement taken without Miranda warnings. Missouri v. Seibert, 542 U.S. 600, 124 S.

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