Book Review: Improperly Obtained Evidence in Anglo-American and Continental Law
| Published date | 01 January 2020 |
| Author | Tony Ward |
| Date | 01 January 2020 |
| DOI | 10.1177/1365712719880050 |
| Subject Matter | Book Review |
Book Review
Dimitrios Giannoulopoulos, Improperly Obtained Evidence in Anglo-American and Continental Law.
Oxford: Hart, 2019.
This impressively detailed and wide-rang ing comparative study examines the restric tions that both
common-law and civil-law systems place on evidence obtained through breaches of the rights of
suspects, especially the right to privacy and rights relating to police questioning and legal advice. The
main focus is on England and Wales, France, Greece and the USA, but the final chapter examines 10
other countries as well as the law of the International Criminal Court.
The four principal countries are paired in an interesting way, with Greece and the USA both providing
examples of categorical exclusion of evidence obtained in breach of privacy rights, while both France
and England and Wales prefer an a pproach based on the discretio nary balancing of interests . The
exclusionary rule in the USA has, however, been greatly whittled down by the Supreme Court, and in
Greece it operates mainly to restrict the evidence that can be adduced by alleged victims as civil parties.
(As we later learn, further instances of seemingly rigid constitutional exclusions being modified by case
law can be found in Portugal, Spain and Italy.) These contrasting approaches do not reflect the civil/
common law or inquisitorial/adversarial divides but rather the extent to which procedural rights are
‘constitutionalised’ in Greece and the USA, and the symbolic importance attached to privacy rights in
both political cultures. Similar observations could be made about the striking contrast between England
and Wales and the Republic of Ireland, with their very similar criminal justice systems and radically
different approaches to the exclusion of improperly obtained evidence.
In respect of confession evidence, Giannoulopoulos detects a convergence in favour of a relatively
strict approach, with French law in particular having been ‘revolutionised’ in the wake of the ECtHR
Grand Chamber’s judgement in Salduz vTurkey [2009] 49 EHRR 19. However, he is highly critical of
the ECtHR for watering down the Salduz judgment in Ibrahim vUK (2016). Where Salduz appeared to
have produced a clear rule by which evidence obtained by questioning in which the suspect had been
denied access to a lawyer could not be used at trial, Ibrahim promotes a more nebulous balancing
approach based on a holistic assessment of the fairness of the tr ial. This, Giannoulopoulos argues, risks
undermining the salutary effect of Salduz which resulted from domestic courts interpreting it as a
bright-line rule.
Giannoulopoulos seeks to reinvigorate the ‘protective principle’formulatedover40yearsagoby
Ashworth, according to which a breach of the suspect’s rights demands a remedy in the form of
exclusion of evidence to restore the status quo ante. To deal with third-party rights and entrapment,
which do not fall neatly under the protective principle, Giannoulopoulos relies on a complementary
principle of integrity.
Giannoulopoulos concludes that a reinvigorated ‘rights thesis’ could make headway in both common-
law (‘Anglo-American’) and continental systems in respect of custodial interrogation rights and the
admissibility of incriminating standards, but that there is little appetite for wider adoption of such an
approach, particularly in respect of privacy rights. He does not, however, consider whether there might
be good reasons of principle for distinguishing between these two types of exclusion.
The International Journalof
Evidence & Proof
2020, Vol. 24(1) 95–96
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712719880050
journals.sagepub.com/home/epj
To continue reading
Request your trial