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Home / Economy & Politics / Laws / Admissibility in English and Italian civil courts of intercepted communications

Admissibility in English and Italian civil courts of intercepted communications

The question on whether intercepted material should be used in civil courts is a living matter. Especially in Italy, divorce courts have been the arena in which to produce intercepted telephone conversations as evidence of the other party adultery.

Even though reached by different means, the positions of English and Italian legal systems seem to be the same.

The English position

Interception of communications in the UK is governed by the Regulation of Investigatory Powers Act 2000 (RIPA), which provides various grounds on which interception is considered a crime (section 1(1) and (2)[1]) or a mere civil tort (section 1(3) [2]). The term ‘interception’ covers a wide variety of related techniques, which can give access to communications ranging in sophistication from an ordinary call between two fixed telephones in the UK to a complex multi-media session running across broadband connections. It even includes interception made on private telephone systems.

Section 17 of RIPA prohibits the use of intercepted communications in any legal proceedings: it is a rule of exclusion, which automatically bans the use of such evidence with no possibility for the judge of weigh up the values there are at stake in the particular case.

However, RIPA specifically excludes from legal proceedings only evidence of the contents of an intercepted communication where the interception was a criminal offence committed by any of certain persons listed[3] (s.17(1)).

In circumstances where there is no criminal offence (s.1(3)), the question of the admissibility of the evidence will be resolved by applying r.32.1(2) of the Civil Procedure Rules, which gives the court power to exclude evidence that would “otherwise be admissible” (as we saw in the previous article[4], it is a “fair play and process” power under CPR to exclude evidence which is unfairly obtained or which will lead to an unfair process). Having said that, it has been pointed out that most of the time the act of intercepting will be considered a criminal offence, given the strict interpretation of the defenses provided by s.1(3) made by judges.

Therefore, in the United Kingdom, it is currently the law that the contents of intercepted telephone calls are generally inadmissible as evidence in civil proceedings (unless the activity is conducted under a warrant).

The Italian position

In Italy, there is no piece of legislation regarding the use of intercepted material in civil proceedings[5]. However, civil courts have delivered a series of important judgments, which make the Italian position quite clear.

All those decisions state three main principles.

(1) The interception of communications made by those who took part to the conversation cannot be considered either a criminal offence[6] or a civil wrong[7]. In fact, when a person talks with someone implicitly waives his right to maintain private the information he shares and accepts the risk of being recorded[8]. Therefore, no question arises on the use of such intercepted material.

(2) On the contrary, the interception of communication made by those who are strangers to the conversation is considered a criminal offence (art. 615 bis Italian Criminal Code) and a violation of articles 14 and 15 of the Italian Constitution.

(3) Since the intercepted materials are obtained in violation of the Italian Constitution, civil judges concur to rule them out[9].

Conclusion

The question on the admissibility of intercepted materials may at first sight seem simple, especially given the widespread use of intercept as evidence across the world. It is in fact far from straightforward.

We are facing again a clash of important values: on one hand, the interest of achieving justice in the particular case and on the other the protection of the right of confidentiality (safeguarded by art. 8 ECHR) and, ultimately, the right of a fair trial (art. 6 ECHR).

Both legal systems agree to ban intercepted material. However, the UK reaches this conclusion by an explicit and automatic exclusionary rule (s.17 RIPA), while  Italy seems to follow a longstanding jurisprudence.


[1] It is a criminal offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of (a) a public postal service; or (b) a public telecommunication system or (c) a private telecommunication system.

[2] It is considered a civil wrong if the person intercepting the communication has an express or implied consent of the other party or has the right to control the operation or the use of a private telecommunication system.

[3] S.17 and s.18.

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

[5] There is one in the criminal procedure code, art. 240 c.p.p., which applies to criminal proceedings only.

[6] Art. 615 bis of Italian Criminal Code punish the interception only if it is made by those who are not allow to participate to the conversation.

[7] Since no right to privacy could be claimed.

[8] See, Supreme Court, 24th September 2003, n. 36747; Supreme Court, 11th December 1993, n. 12206; Supreme Court, 11th September 1996, n. 8219 and Supreme Court, 13th May 2011, n. 18908.

[9] See, Court of Appeal Milan, 9th July 1971; Tribunal of Rome, 14th March 1973 and Court of Appeal Rome, 25th July 2000.

 

Image source: Flickr

Carolina Piovano

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