What happens if evidence against me was obtained unfairly?

In Plain English

If evidence against you was obtained improperly or illegally, it might not be allowed in court. The court will weigh up whether it's more important to admit the evidence (because it helps prove the case) or to reject it (because of how it was obtained). Things like how serious the impropriety was, whether it was done on purpose, and how easily the evidence could have been obtained legally will be considered.

Specifically, if you were under arrest and questioned without being told you had the right to remain silent, any statements you made or actions you took may be considered to have been obtained improperly.

Detailed Explanation

The Evidence Act 2004 (NI) deals with the admissibility of evidence, including evidence obtained improperly or illegally.

Exclusion of Improperly or Illegally Obtained Evidence:

  • Section 138(1) states that evidence obtained (a) improperly or in contravention of a law; or (b) in consequence of an impropriety or of a contravention of a law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
  • Section 138(2) provides specific examples of impropriety in the context of questioning, such as impairing a person's ability to respond rationally or making false statements to induce an admission.
  • Section 138(3) outlines factors the court must consider when deciding whether to admit improperly obtained evidence. These factors include:
    • The probative value of the evidence.
    • The importance of the evidence in the proceeding.
    • The nature of the offence, cause of action, or defence.
    • The gravity of the impropriety or contravention.
    • Whether the impropriety or contravention was deliberate or reckless.
    • Consistency with rights recognized by the International Covenant on Civil and Political Rights.
    • Whether other proceedings are likely in relation to the impropriety.
    • The difficulty of obtaining the evidence without impropriety.

Cautioning of Persons:

  • Section 139(1) states that evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
    • The person was under arrest for an offence at the time.
    • The questioning was conducted by an investigating official empowered to arrest the person.
    • The investigating official did not caution the person before questioning that they did not have to say or do anything, but that anything they did say or do may be used in evidence.
  • Section 139(2) extends this to official questioning by an investigating official without the power to arrest, after forming a belief that there is sufficient evidence to establish that the person has committed an offence.
  • Section 139(5) clarifies that a person is considered under arrest if they are in the company of an investigating official for questioning, and the official believes there is sufficient evidence to establish they committed an offence, or the official would not allow the person to leave if they wished to do so, or the official has given the person reasonable grounds for believing that they would not be allowed to leave if he or she wished to do so.