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

Breda, Vito and Vricella, Matteo (2014) English pragmatism and Italian virtue: a comparative analysis of the regime of illegally obtained evidence in civil law proceedings between Italy and England. Maastricht Journal of European and Comparative Law , 21 (3). pp. 435-450. ISSN 1023-263X

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Abstract

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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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Accepted version deposited in accordance with the copyright policy of the publisher.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 21 Jul 2014 01:46
Last Modified: 04 Jul 2016 04:25
Uncontrolled Keywords: comparative law; evidence; Italian civil law; English civil law
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
18 Law and Legal Studies > 1801 Law > 180104 Civil Law and Procedure
18 Law and Legal Studies > 1801 Law > 180107 Conflict of Laws (Private International Law)
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940405 Law Reform
C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940499 Justice and the Law not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/25200

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