اهمیت قانونی بودن شواهد در پیگرد قانونی علیه شخص

One of the controversial issues in each legal system is whether the target designed to fight with or decrease crimes in communities can justify the illegal prosecution breaching the law probably. Two clear answers containing “Yes” and “No” have captured public and academic attentions. Although the majority of lawyers think such a permission for the purpose of proving the defendant’s guilt for the particular crime illegally is not acceptable constitutionally, some courts where an illegal collected evidence has been permitted  to justify about that the importance of the real development of justice and the elimination of crime commitments in order to preserve the rights of individuals and their society as a whole strengthens the social infrastructures more and more have tried to put it on the top of lawmakers and the judges’ priorities. My experience as a lawyer and knowledge as a lecturer in law lead me to decline illegal evidences and ensure to decrease sacrificing not only the justice but also the law via the justification of extracting such a general description of the truth.

Illegally obtained evidence applies to criminal cases more, even though it has been observed more in some cases regarding national security or political cases. It is typically evidence acquired by violating a person’s constitutional protection against illegal searches and seizures. It acquires possibly when they have been collected without a warrant or probable cause defined by the law or ordered by the judges legally. This definition strongly has been defended by Blackwell (2004).  In the USA, such a legal principle known as the exclusionary rule, which states “evidence collected or analyzed in violation of the U.S. Constitution does not prepare a legal basement in a court of law. Therefore, some lawyers believe that it should be forbidden, because all are responsible to deter such behaviors, irrespective of their impacts on the result of a case. It is worth mentioning that the court in Jones v University of Warwick, for example, noted the claimant’s home was secretly filmed for the purpose of exposing a false personal injury claim cannot assist the court to reach the truth or justice. As a result, it is clear that such an important provision has been developed to provide and respect maximum support of an individual’s rights and to ensure about the law enforcement procedures.

However, some cases have been observed to criticize about to what extent this issue can contain negative impacts on a real and just decision. They attempted to support the permission, but they could not hide practical problems exposed whenever this approach was performed by the courts or police officers. The result if this discussion was that they permitted it conditionally. The case of Singh v Singh [2016] EWHC 1432 is a useful reminder as an example. although there is no absolute prohibition of the use of illegal or covertly obtained evidence, the courts allowed such an evidence to be presented if it is particularly relevant to the case. Conversely, it seems that it is not easy to allow the court to accept this illegal kind of evidences. Because they should remove the philosophy of the law stopping any illegal behaviors in advance. Meanwhile, it is not clearly acceptable at all. In addition, the court must make a balance between the need to deter and discourage law breaking and the necessity of preventing crime commitments. Such a justification is not as stronger as to create a balanced bridge between both individual and social necessities. Consequently, in Singh, HHJ Cooke, the decision of the court to accept the evidence covertly obtained (secretly recorded meetings with the defendant illegally) leads the judges to a false approach and unfair decision.

Therefore, the question is what duties are for solicitors to prevent illegal behaviors. Lawyers, barristers or solicitors as well as the judges using a covertly or illegally obtained evidence must respect the law and justice whenever they are collecting an evidence. The evidence will not be admissible if it was obtained through torture or inhuman or degrading treatment as requested by article 3 of the European Convention on Human Rights, for instance. Therefore, defense material will not be admissible in the court unless it was created in the course of a criminal act. Hence, it is vastly accepted as an offence that someone intercept communication between individuals, such as emails and telephone calls, unless you have their permission. Referring to the Regulation of Investigatory Powers Act 2000 in the USA support of this rule is recommended principally. In addition, it is wrong to persuade someone to disclose personal data including a person’s name and address without the “data controller’s” consent as written in Data Protection Act approved by Australian Parliament.  This could include, for example, coaxing an employee to provide you with company records without the employer’s permission.

Consequently, they will be questioned seriously about law breaking to obtain evidence. As Iranian Bar Association’s Code of Conduct, lawyers have a duty to uphold the rule of law, act with integrity and behave in a way maintaining the public trust. Covertly obtained evidence may breach some principles, leading to a solicitor suffering adverse publicity. It is also recognized as a professional embarrassment. Meanwhile, the lawyer is personally involved in criminal conduct resulting in a separated prosecution. As shown by the above, the risks of using covertly gathered evidence can be high for solicitors, with the potential consequences including harm to the claim and sanctions for the solicitors themselves. As a result, they are should therefore to consider carefully whether the benefits of using such evidence outweigh the risks.