Infringing evidence admitted

Martin v McGuiness (Court of Session, Outer House TLR 21 April)

The defender alleged that the pursuer had exaggerated the effects of a road accident on his resultant back injury, relying upon observations made by private investigators. The pursuer took no exception to enquiries made or video footage shot other than at his home but contended that that evidence amounted to a breach of article 8 of the European Convention on Human Rights amounting to an infringement of his right to respect for his private and family life. The inquiries about which he complained included a private investigator having come to his house and spoken to his wife on the false pretence that he had been a former army colleague of the pursuer, and surveillance having been carried out from a property adjacent to his house, including the use of a telephoto lens to film events in the garden around the house. Although this was conduct which could be said to infringe article 8.1, it was open to the Court to admit that evidence where to do so was in keeping with the provisions of article 8.2. There had first of all to be a basis in law for admitting that evidence, in respect of which regard had to be had to the fair trial provisions of article 6. The evidence might be admitted if there was a legitimate aim for obtaining and presenting it. That test was satisfied if the admission of the evidence was for one of the listed aims set out in article 8.2. It must be necessary in a democratic society to allow evidence gathered in a way that could amount to an infringement of article 8.1. The presentation of a false case against any defender in litigation would amount to an infringement of his rights, not only to protect his assets, but to a fair trial. He was entitled to scrutinise and investigate the legitimacy of the claim made against him. A pursuer intent upon exaggerating the effects of an injury against him was likely to try to ensure that he gave a convincing impression of more extensive injury whenever he was in a public place, but was more likely to be less circumspect and off his guard in and around his home. In striking a balance, particular regard was to be had to the degree of intrusion into the pursuer’s privacy on the one hand, and the requirement in an adversarial system of litigation that the defender should himself investigate the case against him with a view to defending himself and his assets from a false claim, together with the general threat to the assets of the wider community from the impact of successful fraudulent claims on insurance premiums on the other hand. The inquiries and surveillance in the present case had been reasonable and proportionate and were therefore necessary in a democratic society. The Court would not be acting incompatibly with the pursuer’s article 8 right in admitting the evidence gathered by the inquiries and surveillance. The pursuer had been bound to anticipate that his conduct might be scrutinised.