Illegally obtained evidence

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TABLE OF CONTENTS.
I.
What is evidence?
II.
What is the meaning of illegal?
III.
What is illegally obtained evidence?
IV.
Illegally obtained evidence under common law Criminal proceedings.
V.
Illegally obtained evidence under common law civil proceedings.
VI.
Illegally obtained evidence under the laws of Ghana.
VII.
Conclusion.

 

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1. What is evidence?

¹Evidence simplicita is defined as any of the material items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining  the truth of any alleged matter of fact under investigation before it. ²SECTION 179 of the Evidence Act NRCD 323 defines evidence as “evidence” means testimony, writings, material objects, or any other things presented to the senses that are offered to prove the existence or non-existence of a fact “

2. What is the meaning of illegal?

³According to the black law dictionary illegal means Not authorised by law; Illicit; unlawful; contrary to law. Sometimes this term means merely that which lacks authority of or support from law; more frequently it imports a violation.

3. What is illegally obtained evidence

⁴When evidence is said to have been illegally obtained or improperly obtained, what is referred to is evidence which has been acquired , procured or reviewed by means, methods or procedures which fly in the face of the law, defies standard of morality or are contrary to the sense of decency or propriety ⁵.In general, there is no rule of law that evidence obtained illegally (or improperly) must, for the purpose of proving a civil claim, be excluded, however The United States courts represent one extreme by automatically excluding State evidence which is tainted with any kind of illegality.

4. Illegally obtained evidence under Common law, criminal proceedings

⁶Illegally obtained evidence is evidence obtained by some means contrary to law, Examples of illegally obtained evidence includes:

1. Evidence obtained in breach of codes of practice under PACE 1987

2. Evidence obtained through the use of an agent provocateur or entrapment

3. Evidence obtained through an unlawful search or seizure

4. Evidence obtained in violation of Article 8 – the right to privacy

5. Evidence obtained in violation of the right against self incrimination

6. Evidence obtained in breach of legal professional privilege

⁷In the US, illegally obtained evidence is generally excluded in criminal proceedings—the so-called “exclusionary rule” emanating from the Fourth Amendment which prohibits “unreasonable searches and seizures”. It is not an absolute rule and applies only where its deterrence benefits outweigh its substantial social costs, or where its prejudicial effect outweighs its probative value, similarly in the American jurisprudence as the fruit of the poisonous tree. What does one do with the fruit of the poisonous tree which to all intent and purpose will itself be poisonous or tainted with poison? In addition to that, if the finding or outcome of the search is found by the court to be illegal, the court can hardly be right in relying to found a conviction or produce judgment because the general principle is that the court decisions are to be based on legal or admissible evidence and not inadmissible or illegal evidence However, in the UK Seeking to have tainted evidence admitted may carry risks. There may be civil liability for breach of privacy or unlawful means conspiracy. Criminal liability might also arise, eg under the Data Protection Act 1998 and Data Protection Act 2018 if personal data evidence was unlawfully obtained by a hacker or under the Computer Misuse Act 1990 if a hacker was assisted, encouraged or conspired with.

⁸The English courts have adopted the discretionary exclusionary rule in respect of evidence obtained in breach of constitutional rights. The case which authoritatively stated the position of their Lordships is Mohammed v The state (Trinidad & Tobago) [1998] UKPC 49. In that case the appellant unsuccessfully challenged the admissibility of a statement made to the police on the ground that he had been denied his constitutional right to consult with a solicitor in the police station. Upon a final appeal to the Privy Council the appellant argued that his conviction should be quashed on the ground that since his right to consult a solicitor was not guaranteed in the Constitution of Trinidad & Tobago any evidence in violation of that right ought to be excluded. His counsel urged on their Lordships the decision of the U.S Supreme Court in Miranda v Arizona (supra) which was based on the automatic exclusionary rule. In rejecting the policy of automatic exclusion Lord Steyn, who delivered the unanimous opinion of Board, said as follows at paragraph 25 of the judgment:

 “Fundamental as the rights of a suspect to communicate with his lawyer are it does not follow that such rights can only be given due recognition by an absolute exclusionary rule such as was enunciated in Miranda.  The rigidity of the Miranda rule is underlined by counsel’s concession that, if applicable, it would not permit the judge to read the statement.  Whatever the statement contained it would have to be excluded, and that would be so even in the case of a trivial breach.  Such an absolute rule does not easily fit into a system based on English criminal procedure.  At the time of the enactment of the constitutional guarantees the settled practice in England and Trinidad and Tobago was that the judge had a discretion to admit or exclude a voluntary confession obtained in breach of the Judges’ Rules.  In these circumstances their Lordships are satisfied that it would not be right now to hold the judge’s discretion to admit or exclude a confession was entirely abolished by the relevant constitutional provision.  Their Lordships therefore reject the argument based on the Miranda decision.”

 He then stated what their Lordships considered to be the right approach to be adopted by a judge when objection is taken to the admission of unconstitutional evidence. At paragraph 29 of the judgment, he said:

“It is a matter of fundamental importance that a right has been considered important enough by the people of Trinidad and Tobago, through their representatives, to be enshrined in their Constitution.  The stamp of constitutionality on a citizen’s rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right.  The narrow view expressed in King is no longer good law.  On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach.  For example, a breach of a defendant’s constitutional right to a fair trial must inevitably result in the conviction being quashed.  By contrast the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity.  In such a case not, every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession.  In this way the constitutional character of the infringed right is respected and accorded a high value.  Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case.  Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts.  The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.” And they can be illustrated as follow.

Deducing from the case above the court may not apply the automatic discretionary exclusion where a confessional statement has been improperly obtained just because it is in breach of a persons constitutional right rather the court should take into consideration certain circumstances in retaliation to the trail and the facts which amounted to the breach, and they are as follows.

Fairness: The statutory provision which governs the exclusion of evidence in crime is the Police and Criminal Evidence Act 1984 (PACE) s 78. This permits the court to exclude evidence on which the prosecution intends to rely if it appears to the court, having regard to all the circumstances, that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The courts have applied this law in several cases as illustrated in the case of In the case of R v Khan (1996) 3 All ER 298, Khan was being investigated for drug smuggling and in order to obtain evidence the police attached a listening advice to his home. Although there was no statutory authorisation for use of such devices at the time the police obtained a tape showing Khan involved in the importation of heroin and they sought to use it in evidence against him at trial. On appeal it was argued that the tape was obtained in breach of Article 8 right to privacy and should have been excluded. The House of Lords however held that the evidence was rightly admitted under common law and S78 PACE and did not in any way affect the fairness of the proceedings. In the words of Lord Nolan in R V Khan (1996) 3 ALL ER 298 “It would be strange reflection in law if a man who has admitted his participation in the importation of heroin should have his conviction set aside on the grounds that privacy has been invaded “, Therefore where admitting the evidence will have an adverse effect to the proceeding therefore leading to unfair trial then the evidence will be excluded but where it is not te case the evidence will be admitted .

Good faith: In R v Sanghera (2001) 1 Cr App R 299 evidence was admitted following an unlawful search at the defendant’s address without his written consent and although he did not contest the reliability of the evidence, he stated that he would have wanted to be present in order to offer an immediate explanation about the money that was found. He therefore argued that the evidence should be excluded under S78 PACE 1984.The trial judge rejected this submission, and the defendant was convicted and his conviction upheld by the Court of Appeal on the basis that the police had acted in good faith and the defendant had not been prejudiced in any way.

V) Illegally obtained evidence under common law civil proceedings.

Under the uk law and following judicial precedents illegally obtained evidence in civil proceedings is generally admissible, the admissibility of this evidence as based on certain principles, and this is illustrated in these cases:

The Overriding objective of dealing with the case justly:

Generally, illegally obtained evidence should be excluded because it is in violation of certain articles and laws however the court does not exclude evidence just because it violates a certain law especially when it is relevant to a fact in issue or where ADMISSIBLITY of the Evidence does not affect fair hearing or the administration of justice in the leading case is Jones v. University of Warwick [2003] 1 WLR 954. In that case, the claimant argued that she had a continuing disability in her right hand as a result of an accident at work. The defendant employed an inquiry agent who secretly filmed the claimant in her home. The videos showed that the claimant had entirely satisfactory function in her hand. The claimant sought to have the videos secretly recorded excluded from evidence in court arguing they were made in violation of her human rights guaranteed in Article 8 of the European Convention (the right to respect for one’s private and family life, home and correspondence). The insurance company insisted that the evidence ought to be admitted in the interest of justice. The trial judge held that the evidence was admissible in order to do justice in the case. The Court of Appeal, having made reference to a number of the criminal cases and principles, concluded that the approach must be dictated by the over-riding objective of dealing with a case justly, this basically means that the criminal position of excluding illegally obtained evidence must be applied in a manner in which dealing with the case justly overrides the principle of excluding evidence just because the method in which it was gotten was illegal. The court must balance all the circumstances on a case by case basis including the relevance of the evidence and the effect of its exclusion. On that basis, there may be cases where the behaviour of the person obtaining the evidence was so outrageous that the case based on it will be struck out. If called on to make that assessment it is probable that a claim or defence will not be struck out if a fair trial remains possible. However, this does not mean that the court condones illegality. In the case of Memory corp v sidihu the court stated that the admission of illegally obtained evidence does not mean that the court condones illegality.

Public interest: where the ADMISSIBLITY of illegally obtained evidence outweighs public interest then it will be admitted and not excluded In Kuwait Airways Corp v Iraqi Airways Co (No 6), the Court of Appeal held that the principle applied equally to a claim to litigation privilege as to a claim to legal advice privilege. The principle applies because the gravity of the wrongdoing must be such as to bring the case outside of, or outweigh, the public interest underlying the privilege, this basically means that illegally obtained evidence will only be admitted where the act outweighs public interest. This simply means that admitting the illegally obtained evidence must outweigh public interest, public interest may also mean anything that is in the interest of the public. Because it is of public interest that improperly obtained evidence is excluded.

The family courts deciding Imerman v Imerman considered a marriage which had broken down. Fearing her husband might conceal assets during divorce proceedings, Mrs Imerman instructed her brother (who shared an office with Mr Imerman) to make illegal hard copies of documents on his computer. The issues in the case surrounded whether the documents should be returned to Mr Imerman and whether the documents should be admissible. The court held that the although the documents obtained were protected by the Human Rights Act 1998 art 8, the court has discretion regarding whether illegally or irregularly obtained information or documents may be admissible for the purpose of court proceedings. Once again, the court considered the over-riding objective and whether it was in the public interest (and whether justice would be done between the parties) without it. This was, of course, balanced with Mr Imerman’s right of confidentiality. The court found that the evidence was admissible but awarded cost sanctions against Imerman.

In the case of Douglas v O’Neill Covert surveillance film, was not an ambush, could legitimately be disclosed after witness statements and would be admitted.

It will be apparent from the foregoing that whether one applies PACE s 78 criteria, or that of the CPR 1 and 32, the approach is broadly the same. There is no automatic exclusion unless the circumstances reach such a high level of impropriety as to offend the court’s conscience or sense of justice. The court must consider all of the circumstances on a case by case basis before deciding whether relevant evidence should be excluded so as to ensure fair hearing.

Good faith: The Methanex Corp v USA case was an investment dispute between Canada-based Methanex Corp and the US, based on the provisions in the NAFTA Ch 11 on investment. Methanex is a major producer of methanol, a key component of MTBE (methyl tertiary butyl ether), which is used to increase oxygen content and act as an octane enhancer in unleaded gasoline. Methanex launched its arbitration against the US in response to the March 1999 order by the State of California to ban the use of MTBE by the end of 2002. The tribunal undertook an extensive review of the process by which California enacted its MTBE ban. In brief, it found that the legislative process had been transparent, science-based, subject to due process and to legitimate peer review, and done in a manner that was consistent with California practice in this area. Methanex’ allegations of corruption on the part of a California Governor, were determined to be unfounded, and thus were not accepted as a basis to interfere with the overall assessment of the legislative process as summarised above.

The US sought to have declared inadmissible certain evidence as having been gathered in a manner inconsistent with duties of good faith inherent in any arbitration: by trespassing in the office of the head of a lobbying organisation. The US also relied on equality of arms: both parties implicitly agreed that it would not use illegal means to gather evidence.

The documents were copies of documents contained in the files of the lobbying company including personal notes, private correspondence, materials expressly subject to legal privilege and a private address book.

Methanex contended, initially, that it had obtained the documents by “dumpster-diving” in a public area. Latterly, in contended that the dumpster might have been in a private area but the door into the private area might have been open or ajar.

The tribunal held that the documents should form no part of the record and held:

Each party owed a duty “to conduct themselves in good faith during these arbitration proceedings and to respect the equality of arms between them, the principles of ‘equal treatment’ and procedural fairness also being required by Article 15(1) of the UNCITRAL Rules”.

The evidence demonstrated “at least a reckless indifference by Methanex as to whether civil trespass was committed by its collection-agents”.

“… the evidence shows beyond any reasonable doubt that Methanex unlawfully committed multiple acts of trespass over many months …”.

The documents were, however, “only of marginal evidential significance …

[which] could not have influenced the result of this case”.

In relation to documents gathered before the commencement of the arbitration: the documents had been obtained unlawfully and admission of that evidence would have been “in violation of a general duty of good faith imposed by the UNCITRAL Rules and, indeed, incumbent on all who participate in international arbitration, without which it cannot operate”.

In relation to documents gathered after the commencement of the arbitration: the documents had been obtained unlawfully and admission of that evidence would have been “in violation of its general duty of good faith, and moreover, that Methanex’s conduct, committed during these arbitration proceedings, offended basic principles of justice and fairness required of parties in every international arbitration, this case illustrates that for illegally obtained evidence to be admitted by the court , the parties which have obtained the evidence must have acted in good faith.

5. Illegally obtained evidence under the laws of Ghana.

It is a trite law that all relevant evidence is admissible as provided for in

SECTION 51 of the EVIDENCE ACT NRCD 323, and it provides as follows

(1) Relevant evidence is admissible except as otherwise provided by an enactment. 

(2) Evidence is not admissible except relevant evidence. 

SECTION 52 of the EVIDENCE ACT NRCD 323 also provides as follows

The Court may exclude relevant evidence if the probative value of the evidence is substantially

outweighed by 

 (a) considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence; or 

(b) the risk that the admission of the evidence will create substantial danger of unfair prejudice 

or substantial danger of confusing the issues; or 

(c) the risk, in a civil action, where a stay is not possible or appropriate, that the admission of the 

evidence will unfairly surprise a party who has not had reasonable grounds to anticipate that 

the evidence would be offered.

Article 1 clause 2 of the 1992 constitution of Ghana provides “The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall. to the extent of the inconsistency, be void”

The Constitution of Ghana, unlike those of other African countries such as Zimbabwe, Kenya, and South Africa is silent on the issue of the admissibility of evidence obtained through human rights violations. Jurisprudence from Ghana demonstrates that although there had been cases in which the High Court and the Court of Appeal briefly dealt with this type of evidence, the Supreme Court, the highest court in Ghana, had not expressed an opinion on this issue but has followed the English case of R V Leatham (1861) 8 cox CC 498 “It matters not how you get it, if you steal even, it will be admissible in evidence “ and the case of R V Khan until recently. In February 2018, in the case of Raphael Cubagee v Yeboah Asare and Others, (J64 OF 2017) (2018) GHASC 14 (28 FEBURARY 2018) the Supreme Court laid down the criteria that Ghanaian courts have to use in determining the admissibility of evidence obtained through human rights violations.

Furthermore, it is provided by Article 12(2) of the 1992 Constitution as follows;

 “(2) Every person in Ghana, whatever his race, place of origin, political

opinion, colour, religion, creed or gender shall be entitled to the

fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.”

This provision in our opinion is an explicit direction to the court to undertake a balancing exercise in the enforcement of the human rights provisions of the Constitution. See S.Y. Bimpong-Buta; “The Role of the Supreme Court in Development of Constitutional Law in Ghana” (2007).

“Therefore, seems to us that the framework of our Constitution anticipates that where evidence obtained in violation of human rights is sought to be tendered in proceedings, whether criminal or civil, and objection is taken, the court has to exercise a discretion as to whether on the facts of the case the evidence ought to be excluded or admitted. We therefore adopt for Ghana the discretionary rule for the exclusion of evidence obtained in violation of human rights guaranteed under the 1992 Constitution. As to the grounds upon which evidence obtained in violation of human rights guaranteed in the 1992 constitution may be excluded, our opinion is that where on the facts of a case a court comes to the conclusion that the admission of such evidence could bring the administration of justice into disrepute or affect the fairness of the proceedings, then it ought to exclude it. In determining whether impugned evidence could bring the administration of justice into disrepute or make proceedings unfair, the court must consider all the circumstances of the case; paying attention to the nature of the right that has been violated and the manner and degree of the violation, either deliberate or innocuous; the gravity of the crime being tried and the manner the accused committed the offence as well as the severity of the sentence the offence attracts. The impact that exclusion of the evidence may have on the outcome of the case, particularly in civil cases where establishment of the actual facts is of high premium. These factors to be considered in determining whether to exclude or admit evidence obtained in breach of human rights are not exhaustive but are only to serve as guides to courts” The reasons are simple. The preservation of the integrity and repute of the administration of justice is a matter of vital public interest so courts in whatever they do must strive to achieve that ultimate objective. Then Article 19 clauses (1) & (13) of the 1992 Constitution, guarantee a right to fair hearing in criminal and civil proceedings respectively so in any proceedings the court has a duty to ensure the achievement of that constitutional imperative.

The decision in the Canadian case of Masccoushe (Ville) v Houle (1999) CanLii 13256 (QC CA) lends persuasive support to the conclusion we have come to in this case. In that case a city council connived with a neighbour to surreptitiously record the telephone calls an employee made at her home. The recordings revealed that the employee divulged certain confidential information about the city council to some real estate developers. On the basis of that information the employee’s appointment was terminated. She sued the city council and it sought to justify the termination on the grounds of insubordination and offered to tender the secret recordings into evidence in proof of her insubordination. She argued that those recordings were made in violation of her privacy rights guaranteed by the Canadian Charter and ought, by Section 24(2) of the Charter to be excluded from the evidence. The court of first instance admitted the recordings but upon an appeal it was reversed. There was a further appeal by the city council to the Court of Appeal of Quebec and the main issue for determination was whether the secret recordings ought to be excluded.

Under Section 24(2) of the Canadian Charter the court shall exclude evidence obtained in a manner that infringed or denied rights guaranteed by the Charter if it is established that having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute. The Quebec Court of Appeal took the view that there was no question of good faith or accidental violation of the rights of the employee. Rather, it was a situation where evidence was gathered in an unconstitutional manner for the express purpose of terminating her employment. Paul-Arthur Gendreau, JCA, concurring in the unanimous judgment of the court said as follows:

“In short, the city appropriates the justice system here because, under the burden of proof, it wants the court to accept illegally acquired evidence, in the most serious violation of privacy and without justification. All the elements argue in favour of excluding the evidence. The balance is broken and I believe that a reasonably informed person such as the one described by Lamer J. in Collins would consider that this civil justice system should not be used for purposes such as those that appear to preside over business under study. I therefore conclude, like my colleague Justice Robert, that it would be unacceptable for a tribunal, whether administrative or judicial, to lend itself to a manoeuvre like this.”

This means that though where an evidence is illegally obtained and such evidence is relevant then it should be admitted, however where it’s probative value is outweighed by the provision of Section 52 of the Evidence Act NRCD 323 then it shouldn’t be admitted, further more the case of Asare v Cubagee which is the leading judicial precedent has made it clear that where the evidence illegally obtained is also in breach of a persons constitutional right then the court will have to take into consideration certain factors before admitting the evidence , such factors which will lead to fair trial , the avoidance of putting Administration of justice into disrepute .

6. Conclusion.

In Conclusion, under common law the English court adopted the inclusionary rule strictly, however new development under the English law is the adoption of a more flexible approach to the inclusionary rule. In the US, the courts have a more exclusionary approach to the admissibility of illegally obtained evidence, In Ghana the court has adopted the flexible inclusionary rule in the leading case of Raphael Cubagee v Yeboah Asare and Others, ( J64 OF 2017) (2018) GHASC 14 (28 FEBURARY 2018).Moreover The exclusionary rule adopted by the US does not prevent the government from introducing illegally gathered evidence to impeach or attack the credibility of, defendants’ testimony at trial. The Supreme Court recognized this exception in Harris V New York as a truth-testing device to prevent perjury. Even when the government suspects perjury, however, it may only use tainted evidence for impeachment, and may not use it to show guilt.

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Cases cited.

1. Mohammed v the state (Trinidad & Tobago) [1998] UKPC 49. 

2. Raphael Cubage v Michael Yeboah Asare and Others (2018) JELR 68856 (SC).

3. Harris v New York 401 U.S. 222 (1971)

4. Masccoushe (Ville) v Houle (1999) CanLii 13256 (QC CA).

E. The Methanex Corp v USA.

F. R v Sanghera (2001) 1 Cr App R 299.

G. R V Leatham (1861) 8 cox CC 498.

H. Douglas v O’Neill QBD 9 FEB 2011.

I. Miranda v Arizona (supra).

J. Imerman v Imerman [2009] EWHC 3486 (Fam).

K. Kuwait Airways Corp v Iraqi Airways Co (No 6).

L. R V Khan [1990] 2 SCR 53.

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Materials and Laws cited.

1. Evidence Act NRCD 323.

2. Canadian Charter.

3. The 1992 Constitution of Ghana.

4. S.Y. Bimpong-Buta; “The Role of the Supreme Court in Development of Constitutional Law in Ghana” (2007).

5. Human Rights Act 1998.

6. Police and Criminal Evidence Act 1984 (PACE) s 78.

7. Black law dictionary 11^th edition.

8. Essentials of the Ghana law of Evidence S.A Brobbey.

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1^ Britannica.com. 2^ Evidence Act of Ghana N.R.C.D 323. 3^ Black law dictionary. 4^ Essentials of the Ghana law of Evidence S.A Brobbey. 5^ Foxwilliams.com 6^ Law teacher.net. 7^ Foxwilliams.com. ^ Ghalii.org

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