K J Smith Solicitors

New Guidance issued on evidence obtained illegally in the family courts

Published: 25 May 2016

The Bar Council Ethics Committee have issued new guidance on illegally-obtained evidence in the family and civil courts to provide ethical assistance to counsel in cases where evidence has or may have been obtained illegally.

Whilst it is at the discretion of the individual barrister, the Ethics Committees guidance acts as a reminder to barristers that knowing or reasonably suspecting that evidence has been obtained illegally will result in professional misconduct. This also includes occasions where it has been advised that such evidence should be obtained, or otherwise participating in the obtaining of information illegally.

The Bar Standards Board Handbook states that barristers have a duty to act with honesty and integrity and ‘must not behave in a way which is likely to diminish the trust and confidence which the public places in [them] or in the profession’ and that advocating or participating in any criminal act would be in breach of these provisions.

Depending on the specific circumstances, it may be that advising or otherwise participating in an activity that is a non-criminal but otherwise unlawful – such as breach of confidence –could also breach these provisions.

This can be common in court proceedings involving financial settlements. During such proceedings, each separating party is responsible for fully disclosing their financial circumstances through the use of a ‘Form E’ document. This form includes information such as the value of the couple’s assets, property, pensions and savings. If one of the parties refuses to disclose any relevant information or tries to hide any of their finances then they may be held in contempt of court or, in some cases, could even face imprisonment.

If one of the parties is worried that their ex-spouse might not fully disclose their financial circumstances, they may be tempted to take matters into their own hands and try to obtain some of the evidence for themselves. Such activities are not advised as this evidence will be classified as having been obtained illegally and is a breach of their ex-spouse’s confidence. Civil action may be taken if evidence has been obtained without the ex-spouse’s knowledge or consent, and in some cases it could be classed as a criminal offence.

If any evidence obtained illegally has been presented to a solicitor, they have a duty to immediately return the evidence to the other party's solicitor and that evidence should be fully disclosed to their client to ensure that they have fully disclosed the correct information on their financial situation. In some cases, it may be appropriate to seek advice from the courts as to what to do with the illegally-obtained evidence.

For more information, the full revised guidance from the Bar Council is available to view online here.

If your relationship is on the verge of a breakdown then K J Smith Solicitors are here to help. Our team of family law specialists will work with you achieve the best possible outcome for your family and will advise on the best course of action to take. To discuss your circumstances in more detail, please contact K J Smith Solicitors today to arrange a free 45 minute consultation on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) or 01483 370100 (Guildford).

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