Improperly Obtained Evidence in Anglo-American and Continental Law

329 Pages·2019·3.964 MB·English

by  Dimitrios Giannoulopoulos

IMPROPERLY OBTAINED EVIDENCE IN ANGLO-AMERICAN
AND CONTINENTAL LAW
This is the first book to offer an extensive cosmopolitan, cross-cultural insight
into the perennial controversy over the use of improperly obtained evidence in
criminal trials. It challenges the conventional view that exclusionary rules are idio-
syncratic of Anglo-American law, and highlights the ‘constitutionalisation’ and
‘internationalisation’ of criminal evidence and procedure as a cause of rapproche-
ment (or divergence) beyond the Anglo-American and Continental law divide.
Analysis focuses on confessional evidence and evidence obtained by search and
seizure, telephone interceptions and other means of electronic surveillance. The
laws of England and Wales, France, Greece and the United States are systemati-
cally compared and contrasted throughout this study, but, where appropriate,
analysis extends to other Anglo-American and Continental legal systems. The
book reviews exclusionary rules vis-à-vis the operation of judicial discretion, and
explores the normative justifications that underpin them. It attempts to reinvig-
orate the idea of excluding evidence to protect constitutional or human rights
(the rights thesis), arguing that there is significant scope for Anglo-American
and Continental legal systems to place a renewed emphasis on it, particularly
in relation to confessional evidence obtained in violation of custodial interroga-
tion rights; we can locate an emerging rapprochement, and unique potential for
European Court of Human Rights jurisprudence to build consensus in this respect.
In marked contrast, remaining divergence with regard to evidence obtained by
privacy violations means there is little momentum to adopt a reinvigorated rights
thesis more widely.
ii
Improperly Obtained Evidence
in Anglo-American
and Continental Law
Dimitrios Giannoulopoulos
HART PUBLISHING
Bloomsbury Publishing Plc
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First published in Great Britain 2019
Copyright © Dimitrios Giannoulopoulos, 2019
Dimitrios Giannoulopoulos has asserted his right under the Copyright, Designs and Patents
Act 1988 to be identified as Author of this work.
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any
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of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/
open-government-licence/version/3) except where otherwise stated.
All Eur-lex material used in the work is © European Union,
http://eur-lex.europa.eu/, 1998–2019.
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication data
Names: Giannoulopoulos, Dimitrios, author.
Title: Improperly obtained evidence in Anglo-American and Continental law /
Dimitrios Giannoulopoulos.
Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2019.
Identifiers: LCCN 2018044755 (print) | LCCN 2018045927 (ebook) |
ISBN 9781509923250 (Epub) | ISBN 9781849463829 (hardback)
Subjects: LCSH: Admissible evidence—United States. | Evidence, Criminal—
United States. | Exclusionary rule (evidence)—United States. | Evidence, Criminal. |
Conflict of laws—Evidence. | International criminal courts.
Classification: LCC KF9662 (ebook) | LCC KF9662 .G53 2019 (print) | DDC 347.06—dc23
LC record available at https://lccn.loc.gov/2018044755
ISBN: HB: 978-1-84946-382-9
ePDF: 978-1-50992-324-3
ePub: 978-1-50992-325-0
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To my parents
To Yiola, Panagiotis and Nina
vi
PREFACE
The inspiration for this book has come from the unique opportunity I had to study,
research, practice or teach law in four different legal systems, two in Continental
Europe (France and Greece) and two in the Anglo-American world (England and
the United States). I cannot trace it back to a particular moment in time or particu-
lar jurisdiction. I have not from the outset set my mind upon undertaking a legal
cosmopolitan study. The book was rather the product of experiencing in practice
our cosmopolitan legal order.
I do have a vivid recollection, however, of my first encounter with the law of
improperly obtained evidence, as an undergraduate law student at the University
of Athens. A leading constitutional law scholar – who later became the Greek
Ombudsman with responsibility for the protection of individual rights in the
public and private sectors – Prof Georgios Kaminis, introduced our final year
‘individual rights’ class to the challenging perennial dilemmas facing criminal
procedure when evidence has been obtained in an unlawful, unconstitutional or
otherwise improper way. His rigorous defence of constitutional or human rights
in this context has stuck with me since, shaping, considerably, my understand-
ing of the topic. It has also helped me conceive the improperly obtained evidence
doctrine as a litmus test for measuring the level of protection afforded to consti-
tutional or human rights in the criminal process. I have sought to consistently
apply the test when studying, teaching or researching the English, French, Greek
and United States criminal procedure systems following those formative years in
Athens.
The book started its life as a doctoral thesis, which I have written in French
and successfully defended at the University of Panthéon-Sorbonne (Paris I)
(receiving the félicitations du jury), and I owe a profound debt to my super-
visor, Geneviève Giudicelli-Delage, for her unfailing support, the constant
direction she has provided and for instilling in me a passion for comparative legal
studies. In Paris, I was also fortunate to immerse into comparative criminal justice
research next to renowned experts Christine Lazerges and Haritini Matsopoulou
at the Sorbonne, and found invaluable inspiration in Mireille Delmas-Marty’s
teachings at the Collège de France, where she occupied the Chair in Comparative
Legal Studies and Internationalization of Law. Research I had previously under-
taken in the United States, at Columbia Law School, Yale Law School and Harvard
Law School, had played a crucial part in my doctoral work, and, to this day,
I remain thankful to George Fletcher, Debra Livingston, the late Richard Uviller,
Kate Stith and Philip Heymann, for their kind reception there. My time as a trainee
barrister in Greece, in the chambers of criminal law scholars Argirios Karras and
viii Preface
Aristotelis Charalambakis, had also given me a flavour of criminal law and
procedure in action and influenced the direction of this project.
But it was a highly rewarding experience to relaunch the improperly obtained
evidence project with a UK publisher, as an academic in the UK. As I had
done much of the heavy lifting, methodologically speaking, when undertak-
ing the French PhD, I now had complete freedom to concentrate upon analysis
of the  most challenging comparative and normative perspectives. Since my
time at the Sorbonne, my viewpoint had also changed as to how far one could
go in advocating a model exclusionary rule, exclusionary discretion or system of
exclusionary rules and discretions for that matter. This book does not have such
an ambition. It rather invites Anglo-American and Continental legal systems to
review domestic solutions in the light of the comparative and normative conclu-
sions it offers, and to adjust these solutions accordingly, if needed, to ensure that
rights considerations are given due weight when determining whether improperly
obtained evidence should be used in the criminal process.
In completing this book, I have been very fortunate to benefit from the
insights of a large number of people. I am particularly thankful to Liz Heffernan,
Paul Roberts, Charles Weisselberg and the Judge at the European Court of Human
Rights, Julia Laffranque, who have read chapters in draft form, offered invaluable
advice and have been very generous with their words of encouragement. A big
thanks is likewise owed to Jaimee Campaner, Yvonne Daly, Thom Dieben, Kelly
Pitcher and Vania Costa-Ramos, who have assisted me with updates on improp-
erly obtained evidence developments in their domestic legal systems. I am equally
very appreciative of the support of former Brunel University colleagues, notably
Liat Levanon, Ben Chigara, Abimbola Olowofoyeku, Alexandra Xanthaki, James
Knowles and Zahir Irani. I must specifically thank my former Head of School,
Javaid Rehman, for his valued guidance and touching collegiality, and his concrete
support for this project. I am also appreciative of the opportunity I have had to
teach the Law of Evidence, often with a focus on improperly obtained evidence,
to many generations of Brunel University final year students. I am thankful to
them for their thoughtful engagement with the subject.
My warmest thanks also go to Jackie Hodgson, at Warwick Law School, for
her invitation to present an analysis of tentative ideas in my book at Warwick’s
annual Criminal Justice Centre research seminar series (in January 2014), and
to her colleagues, for their feedback. I have particularly appreciated the email
exchanges with Victor Tadros, which have followed on from that presentation.
I have also spoken to themes central to the book at City Law School’s Centre for
Criminal Justice Research seminar series (in March 2016), at the invitation of
fellow comparative criminal justice expert, and enthusiast, Riccardo Montana.
It was the last time we met – and I will have a lasting memory of that visit –
before he very sadly passed away a few months later. Similar fora were offered
to me at the 7th Panhellenic conference organised by the Hellenic Criminal Bar
Association in Patras (April 2016), at the ‘Fair Trials’ judicial remedies work-
ing group meeting in Lisbon (in January 2017) and at the annual conference of
Preface ix
the Legal Experts Advisory Panel (LEAP) in Athens (in March 2017). I am very
appreciative of the opportunities I have had to discuss the book with criminal
procedure scholars and criminal justice professionals on these thought-provoking
occasions.
I am also very thankful to the Honourable Society of the Inner Temple for
their wonderful support to me as an academic fellow. In the context of this fellow-
ship, it was a unique privilege to discuss my improperly obtained evidence research
with former Justice at the UK Supreme Court, Lord Hughes, Sir Geoffrey Nice
QC and Alison Levitt QC among others. Gratitude is also owed to the general
prosecutor at the Court of Cassation (Arios Pagos) in Greece, C haralampos
Vourliotis, and the Director of the Hellenic Criminal Bar Association, Ilias
Anagnostopoulos, for their insights on the practice of improperly obtained
evidence there. My collaboration with the ‘Fair Trials’ organisation has been
equally advantageous in allowing me to engage with criminal defence practition-
ers in various European jurisdictions. Acting as an academic adviser on a Fair
Trials research project that addressed judicial remedies for violations of suspects’
rights in Europe was particularly rewarding in that respect, and I want to thank
Fair Trials’ director, Jago Russell, and his team, for this opportunity.
Writing this book also offered the opportunity to revisit and further explore
some of the ideas I had originally developed in previous work, particularly in the
following two articles: ‘The Exclusion of Improperly Obtained Evidence in Greece:
Putting Constitutional Rights First’ (2007) 11 The International Journal of Evidence
& Proof 181–212 and ‘Strasbourg Jurisprudence, Law Reform and Comparative
Law: A Tale of the Right to Custodial Legal Assistance in Five Countries’ (2016) 16
Human Rights Law Review 103–29. I want to thank the journal editors at the time
of publication, Paul Roberts and David Harris respectively, for nurturing these
ideas.
I must also add that I am deeply grateful to Andrew Choo, for his advice and
support over the years, first as a supervisor, then as a colleague and mentor, and
for his critical engagement with this project. Andrew was a sounding board and an
inspiration, as I was engaging with theoretical arguments and empirical observa-
tions, and provided crucial input on many aspects of the book, including editorial
perspectives. We have a long-lasting friendship and scholarly connection, which
I value enormously.
I am, of course, also greatly indebted to my editors at Hart Publishing, for
their expert guidance and unremitting dedication to this book. A big thanks
is, first of all, owed to Richard Hart, for the enthusiasm he has shown from the
start for the comparative improperly obtained evidence project. Rachel Turner,
Bill Asquith and Francesca Sancarlo have taken me through the first stages of
the process. Vicki Hillyard has meticulously dealt with copy-editing, Linda
Staniford provided excellent support with proofs, while Emma Platt and Rose
Wood very diligently handled marketing aspects. But I must especially thank
Rosamund Jubber, for her direction, patience and encouragement, when I was