Guidance for barristers published by the Bar Council regarding evidence that has or may have been obtained illegally.
1. It is increasingly common for counsel to have to advise in cases where evidence has, or may have been, obtained illegally. 2. Whilst it will be for counsel to decide, in each particular case, whether or not the evidence falls into the category of illegally obtained evidence, this note is designed to assist in any situation in which it appears that the evidence has, indeed, been so obtained. 3. It goes without saying that it would be serious professional misconduct for counsel to advise or otherwise participate in the obtaining of information illegally. Attention is drawn, in particular, to section 55(1) of the data Protection Act 1998 which provides that a person must not:- “…knowingly or recklessly, without the consent of the data controller– (a) obtain or disclose personal data or the information contained in personal data; or (b) procure the disclosure to another person of the information contained in personal data”. 4. Subsection (2)(a), however, provides as follows:- “Subsection (1) does not apply to a person who shows- (a) that the obtaining, disclosing or procuring – (i) was necessary for the purpose of preventing or detecting crime, or (ii) was required or authorised by or under any enactment, by any rule of law or by order of a court.” 5. The disclosure requirement of CPR Rule 31.6 is plainly a “rule of law” within the meaning of section 55(2)(a)(ii). 6. It follows, therefore, that there is an important distinction between the obtaining of such data in the first place, which amounts to a criminal offence, and the disclosure of such material thereafter in legal proceedings which is likely to be lawful provided that the disclosure was compulsory. 7. in Dubai Aluminium –v- Al Alawi [1999] 1 WLR 1964, Rix J ruled that legal professional privilege did not apply in relation to any relevant documents unlawfully obtained. It follows that all such data obtained, the source of the data and the letters of instruction to the person who obtained them, will have to be disclosed to the other side in any case in which data has already been so obtained. This will be the case whether or not so doing will assist the client or prejudice him and his sources, by revealing unlawful activity. 8. The following principles therefore apply:- (a) Counsel must never advise that evidence be obtained illegally. (b) If evidence has already been so obtained, counsel must advise the client of his disclosure obligations, including the ramifications of the decision in Dubai Aluminium. (c) If the client is in breach of the consequent disclosure obligations, counsel will almost invariably have to withdraw from the case. (d) If the client complies with the disclosure obligations, counsel is entitled to utilise the evidence in the proceedings in the ordinary way. (e) Counsel must not advise that any further action be taken that could fall foul of section 55. in other words, no advice can be given to update the information or clarify it in any way. (f) There may be doubt, for whatever reason, as to whether use of the evidence is permissible or whether disclosure is required. Equally, some further apparently unlawful step may appear necessary. Clearly, no such step can be taken without the prior informed permission of the court. in each such case, counsel should consider a “without notice” application to the judge for authorisation pursuant to section 55(2)(a)(ii). 9. There are other situations, apart from those involving disclosure or deployment in court, in which counsel may wish to make use of such documents in the litigation. One possible example would be putting such a document to a prospective witness for comment. Again, if there is any doubt as to whether such use is required or authorised pursuant to a rule of law, counsel should consider an application to the judge as in 8(f) above.
Subsection (3) renders such conduct a criminal offence.
