English pragmatism and Italian virtue: a comparative analysis of the regime of illegally obtained evidence in civil law proceedings between Italy and England

English pragmatism and Italian virtue: a comparative analysis of the regime of illegally obtained evidence in civil law proceedings between Italy and England

This article provides a comparative analysis of the Italian and the English regimes of improperly or illegally obtained evidence (hereafter IOE) in civil law cases. We will use the term 'regime' to indicate the system of rules and juridical practices that regulate IOE. In the past decade, the Italian and the English regimes of IOE have been adapting to new institutional and economic demands. Till recently, the Italian civil justice system mechanically assumed that IOE was inadmissible. In contrast with the Italian regime, IOE was normally allowed in English courts. However, a series of court decisions has changed the assumption of inadmissibility of IOE. In England and Wales (the two nations share the same civil procedure system), the introduction of Civil Procedure Rules 1998 (hereafter CPR) and Human Rights Act 1998 (hereafter HRA) has instead imposed a duty to exclude an IOE that has been obtained as a result of outrageous violation of the European Convention on Human Rights. This article will contend that the regimes of IOE are moving into an untested terrain, albeit from different starting points, and that a comparative analysis might help clarify the relation between admissibility of an IOE that engages protected rights such as article 8 of the ECHR and the functioning of the civil justice system. The article is divided in three sections preceded by an introduction and followed by a conclusion. The first two sections discuss the English and Welsh and the Italian regimes of IOE. The third section focuses on how the two legal systems sought to strike a balance between the violation of rights and the compelling demands of efficient civil trial.

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