Admissibility of illegally obtained evidence

Abstract

An examination of the criminal law legislation of different states clearly shows that states tend to take different approaches to the issue of whether evidence which has been obtained unlawfully or in breach of fundamental freedoms should be inadmissible in evidence on that ground. As will be seen in the following chapters the approach taken may often be conditioned by the scope of relevant constitutional provisions as interpreted by the competent constitutional courts. Chapter one deals with the Fourth Amendment of the Constitution of the United States of America, which, for example, has been interpreted as giving rise to a very vigorous exclusionary rule of evidence with extensive and radical consequences. On the other hand, other jurisdictions have often taken the view that as a general rule the unlawfulness of the means used to obtain the evidence does not affect the admissibility of the evidence itself so obtained. As will be seen in Chapters 2, 3, and 4 respectively, this appears to be the current position at law in, England, Canada and other jurisdictions, and finally Malta. The various systems adopted in different countries, the laws regulating such systems and relevant decided cases and court pronouncements will be reviewed and compared and contrasted with the approach taken in Malta. The possibility and effect of introducing an exclusionary rule of evidence in respect of unlawfully obtained evidence and the feasibility of enforcing such a rule in Malta will be discussed and a proposal offering a potential solution made.