Thursday, February 28, 2013

Illegally obtained digital evidence: Mind your Ps and Qs

"While the law provides for court orders to be made for the preservation and obtaining of evidence for the purpose of future legal proceedings, claimants, or potential claimants, sometimes resort to measures of self help, by copying, seizing, or attempting to access digital copies of documents" - Tugendhat J. in L v. L. (2007)

Those words from the English High Court are equally true in Ireland. Particularly in family law cases it can be very easy for a litigant to (illegally) access the laptop, webmail or other electronic information of the other side to collect ammunition for use at trial. This presents interesting legal issues as to when such evidence will be admissible, despite the way in which it was obtained.

The High Court gave a recent judgment in the family law case P v. Q [2012] IEHC 593 which offers some guidance. In this case the applicant (the husband) sought a judicial separation and attempted to introduce evidence relating to the respondent's (wife's) sexual activities since the breakup of their marriage, including details of material on her laptop and posted by her to certain websites. The respondent gave evidence that the passwords for her laptop and the access codes for the sites were kept in a locked safe which the applicant must have accessed illegally. Consequently she sought to ensure that the information obtained by the applicant was not used in the proceedings and in particular was not used as the basis to obtain an order for discovery against her.

On appeal from the Circuit Court, the High Court held that in the ordinary course of events this information would be inadmissible on the basis that it was obtained illegally and in breach of the constitutional right to privacy of the respondent. In this case, however, given that child welfare issues also arose the court took the view that the constitutional rights of the child took precedence over the manner in which the evidence was obtained so that the information could be admitted in relation to the child welfare issues only. The relevant parts of the judgment are at para. 33 onwards:
33. The issue for the court to determine is complicated by the allegation that the respondent’s privacy was breached illegally when the codes and passwords of her personal laptop were accessed, at a time subsequent to the commencement of family law proceedings Although disputed by the applicant, the evidence before this court heard on affidavit would indicate that the passwords and access codes to these particular websites were retained by the respondent in a locked safe. There are many occasions and opportunities in family law proceedings, where parties to the proceedings access information which the other party regards as private, but which has not been obtained illegally. In this case the acquisition of the codes is tainted by illegality.

34. I accept the submissions on behalf of the respondent, that there is a broad principle of constitutional law, that evidence which is obtained by invasion of a constitutional personal right such as a right of privacy must be excluded unless the Court is satisfied that the breach was committed unintentionally or accidentally (which could not be the case here) or is satisfied that there were extraordinary excusing circumstances which justify the admission of the evidence in its discretion”. It is respectfully submitted that there are no extraordinary excusing circumstances in this appeal. I would accept that principle as applying to a criminal prosecution, in order to protect the absolute right to a fair trial.

35. Where different constitutional rights have to be balanced, different principles apply.

36. A court should always be reluctant to admit evidence or approve discovery, which is tainted with illegality, but that is not to say that on all occasions where illegality is suspected or found, that the evidence so obtained is not admissible. This is particularly so when dealing with the welfare of a child.

37. If the court were only dealing with issues between the parties and not the welfare of the child, the court would have taken into consideration the sexual history of the marriage, and on balance would not make the order for discovery sought..

39. The alleged sexual activity of the respondent has a direct bearing on the welfare of the child of the marriage...

41. While the proceedings touching on the welfare of the child are adversarial in nature, there is an inquisitorial aspect to that portion of the proceedings dealing with his custody. Balancing the different constitutional rights and responsibilities the welfare of the child would take precedence over illegally gathered information touching on the child’s welfare.

42. In addition the constitutional right to privacy of the respondent is protected in “in camera” proceedings, as the information disclosed is confined to the parties, their legal representatives and the court. The respondent’s rights can be further protected by the addition of further conditions.

43. The court affirms the order of the Circuit Court with the following additional conditions:-

(1) The material furnished can only be used for the purposes of determining the welfare of the child of the marriage and not for the purposes of s. 16(2)(i) of the Act in respect of the behaviour of the respondent.
(2) Any material discovered which does not impinge on the child’s welfare, should be furnished but returned to the respondent, and not relied on by the court.
(3) In the event of any dispute the presiding judge of the Circuit Court should consider the material and decide on relevance
While this decision allowed the use of this information on the particular facts of the case for a limited purpose, overall it adopts an approach which will mean that in most future cases such evidence will be inadmissible. The judgment isn't entirely clear on the distinction between illegally and unconstitutionally obtained evidence but appears to accept the proposition that wrongful access to a laptop or an online account will amount to an invasion of the constitutional right to privacy - not merely an illegality. In this, it extends the principle previously established in PMcG v. AF in relation to hardcopy (a diary in that case) to digital information also.

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