Admissibility of Illegally Obtained Evidence and Burden of Proof in UK Law

Admissibility of Illegally Obtained Evidence

Michael Doherty states that if a right under the European Convention on Human Rights (ECHR) is infringed due to illegality, the evidence obtained can be excluded. For example, installing a covert listening device in the defendant's home to get a recording of him admitting to crimes would be a breach of the defendant's right to privacy under Article 8(1). However, this evidence was still admissible. Therefore, it is shown that even if the method of obtaining evidence is illegal, the evidence can still be admissible as long as the illegality does not impair the reliability of the evidence obtained.

Nash & Choo also came up with a guideline, as shown in "What's the matter with s.78?" It provides that evidence could be excluded although reliable. Evidence obtained by entrapment carries the significant risk of impairing the moral authority of the verdict. As such, admitting such evidence infringes process value.

Other jurisdictions, such as Japan and the US, have already begun to automatically exclude illegally obtained evidence from the courts. In Greece, illegally obtained evidence is automatically excluded under the criminal code. Even English law hasn't reached that point.

Burden of Proof

In the case of *Woolmington v DPP*, Viscount Sankey made his famous "Golden Thread" speech, in which he stated that the general rule (GR) is that it is the prosecution's duty to prove the prisoner's guilt, unless the defendant raises the defence of insanity or if there is any statutory exception to the GR. Viscount Sankey also stated that there must be a presumption of innocence; the crime needs to be proven guilty beyond a reasonable doubt, and if the guilt or crime of the accused is proven, the defendant must deal with the consequences. Therefore, the legal burden (LB) is generally on the prosecution to prove the crimes of the accused, while the evidential burden is on the defendant to raise any evidence to make their defence a live issue.

However, there are exceptions to this, which occur when statutory exceptions require the accused to prove his innocence, or when the defendant has to prove his defence of insanity. As stated above, statutory exceptions can cause the reversal of the legal burden onto the defendant. These exceptions can be implied or expressed, as seen in s.28(2) of the Misuse of Drugs Act 1971, in which it is expressly stated that it is for the accused to prove that he had no knowledge of the existence of drugs in his possession.