Exclusion of Wrongfully Obtained Evidence: A Comparative Analysis

Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

“…Different ways of theorising the integrity principle have been put forward (Ashworth, 2003: 108; Ho, 2019: 829–833; Mirfield, 1997: 23–25). Two prominent variations of the principle are distinguished here.…”

“…When evidence is to be excluded clearly depends on the goal and rationale behind it. If the exclusion depends on a strict (or ‘categorical’) exclusionary rule—which entail that exclusion of evidence is mandatory by virtue of its illegal provenance and regardless of any discretionary balancing exercise with competing considerations (Ho, 2019: 835–836)—the establishment of such strict rules requires that the goal pursued with the exclusion be clearly acknowledged. This is even more necessary when judges are given discretion to exclude evidence.…”

“…From the perspective of the integrity of the justice system there is a clear difference between a police officer who is mistaken or ignorant and one who deliberately flouts the rules (Ho, 2019: 838). This distinction is clear regardless of whether one adopts the public attitude or the court-centred variety of the integrity principle (Ashworth, 2003: 119).…”