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Admissibility in English and Italian civil court of video evidence obtained in violation of article 8 of the European Convention of Human Rights

Nowadays, video evidence has become an extremely useful means to reveal the truth in trials. Especially in UK, defendant insurers in high value personal injury claims are instructing inquiry agents to film claimants surreptitiously in order to uncover fraudulent claims. However, as Judge Charles Harris QC said in Jones v Warwick University [2003] 1 WLR 954 at 959: “The conflicting considerations are on the one side the claimant’s privacy and on the other the legitimate need and public interest that defendants or their insurers should be able to prevent and uncover unjustified dishonest and fraudulent claims.”

Therefore, when facing illegally obtained evidence judges have to reconcile two competing public interests: first, the interest of truth being revealed in litigation; and, second, that the courts should not acquiesce, let alone encourage, the reliance on unlawfully obtained evidence.

The solutions given by UK and Italy differ.

The English position

As we saw in the previous article[1], English judges do not seem to like yes or no answers. They rather apply a balancing test, by giving voice to each public interest in conflict. So it is said in the leading modern case Jones v University of Warwick [2003], in which CPR r.32.1(2) has been used for the first time to decide the admissibility of video evidence obtained by an infringement of Art 8 of the European Convention on Human Rights (the right to respect for private and family life).

Lord Woolf CJ, the architect of the CPR, explained in detail how the discretion given by r.32.1(2) should be applied in such a case, that is by a three-step test, which imposes to evaluate: (a) the seriousness of the illegality committed, (b) the relevance of the evidence and (c) the right to a fair trial of both parties.

The solution the Court of Appeal gave in that case was very pragmatic: they did allow the illegally obtained video to be used in trial – because it would have been artificial and undesirable for the evidence, which was relevant and admissible, not to be placed before the judge who has the task of trying the case, since the conduct of the defendant’s insurers was so outrageous that the defence should have been struck out. However, in virtue of the motto “excluding the evidence is not the only weapon in the court’s armoury”, the Court condemned the party who wanted to use the video to pay the opponent’s costs[2]. The order of costs was then used as an efficient mean to discourage illegal conduct and to reflect courts’ disapproval.

Of course the decision to admit or exclude such evidence very much depends on the facts of the case[3]. However, so far, no English case has been decided by ruling out relevant video evidence, even though illegally obtained.

The Italian position

As we saw in the previous article[1], there is no piece of legislation guiding the judge when facing illegally obtained evidence. The situation of the admissibility of video evidence is even more difficult, as there is no case law on this particular topic, at least in the civil filed.

Though, two principles can be inferred by looking at criminal cases: one, that it is perfectly legal to film someone in a public area, even without his permission, because no right to privacy is violated; and two, that filming someone in a private place constitutes both a criminal offence (Art 614 Italian criminal code) and a Constitutional infringement (Art 14 and 15 of the Italian Constitution, protecting the right to a private home and to confidentiality).

As said, no decision has been deliver specifically on this topic. However, in many occasions Italian Constitutional Court said “evidence obtained by an infringement of a Constitutional fundamental civil liberties – such as Art 13 (personal freedom), Art. 14 (right to a private home) and Art 15 (right to confidentiality) – should be excluded.”[4]

Although Italian Constitutional Court’s decisions are not binding for Italian judges, they are highly persuasive. Thus, it could be said that, once an illegally obtained video would be introduced in trial, the judge will try to argue to rule it out by applying the exclusionary rule inferred from the Constitution.

[1] Illegally Obtained Evidence in Civil Proceedings: the English and the Italian position.

[2] Per Lord Woolf, Jones v University of Warwick [2003] 1 WLR 954 at 127.

[3] As Lord Woolf said at 127: “The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of article 8, according to the facts of the particular case. The decision will depend on all the circumstances.

[4] See, Constitutional Court, April 6th, 1973 n. 34 and Constitutional Court, March 11th, 1993 n. 81.


Image source: Flickr

Carolina Piovano

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