To what extent does the admissibility of illegally obtained evidence tarnish the element of fairness in one’s rights under article 6 of the European Convention on Human Rights?

Abstract

Title 1 of Part 1 of Book Second of the Maltese Criminal Code inter alia establishes the procedures upon which the Police must follow when conducting searches, taking samples and performing arrests. Such provisions were put in place in order to ensure that the Police are not allowed to conduct their investigations in a haphazard and irregular manner to the detriment of everyone involved, including the suspects, victims and society as a whole. However, the effectiveness of these provisions is somewhat limited due to Article 349(2) which states that : the omission of any precaution, formality or requirement prescribed under this Title shall be no bar to proving, at the trial, in any manner allowed by law, the facts to which such precaution, formality or requirement relates. The aforementioned provision prima facie renders a significant portion of the Title to which it relates ineffective, bestowing clear disadvantages for the accused at trial, in situations where the Police would have collected a piece of evidence in an irregular manner contrary to the applicable provisions of the Criminal Code. In this regard, this dissertation shall delve into the hypotheses of whether the provisions of Article 349(2) operate to such an extent that they serve to obstruct the victim’s right to a fair trial under article 6 of the European Convention on Human Rights. This Dissertation shall initially delve into the history behind the admissibility rule of illegally obtained evidence, as developed through English law and jurisprudence, as the latter has had a strong influence on the manner in which the rule has been applied by the Maltese Courts. In contrast, this dissertation shall also cover the basic concepts behind the inadmissibility rule and forbidden fruit theory as adopted by the American judicial system. Upon establishing the manner in which both rules were developed and subsequently applied, Chapter 3 focusses on the legal and jurisprudential development of the Maltese position, vis-à-vis the admissibility of illegally obtained evidence, and highlights the influence that the above-mentioned rules have had on Maltese jurisprudence at different points in time. Subsequently, Chapter 4 of this Dissertation discusses the position of the European Court of Human Rights pertaining to the aforementioned hypothesis through the analysis of the Court’s interpretation and application of the element of ‘fairness’ with regards to Article 6 of the Convention. Through this exercise, the impact of the European Court of Human Rights on the development of Maltese law and judgements may be appreciated and the conclusion to the research question achieved.