Using Covert Recordings in Court Proceedings

The law shows that recording someone without their consent is not necessarily unlawful.

In a case concerning the Barclay family it emerged that parties to litigation between family members had covertly recorded Sir Frederick Barclay at the Ritz hotel over a period of several months, without his consent. This covert audio surveillance was calculated to capture personal, confidential, sensitive and legally privileged information.

It can of course be tempting to record conversations or events when you are going through a dispute or litigation, but is it legal?

Although being the subject of surveillance or covert recording is a significant infringement of a person’s liberty it is fairly rare for the criminal law to be engaged, save in the case of arbitrary surveillance by the state or where the use of recording equipment falls into the area of harassment or stalking.

There are a myriad of laws, regulations and guidance relating to covert recordings. There are legitimate reasons for some recordings to take place.

Some CCTV systems for example may be valuable tools which contribute to public safety and security and protect both people and property. Body cameras worn by police are another example.

The use of a secret recording device by private individuals however is strong evidence of improper conduct – and in the Barclay case is alleged to have been designed to gather confidential, private information to assist the defendants in the litigation and in their personal and professional objectives.

A recording may be unlawful (under the civil law) if it constitutes a misuse of private information, a breach of confidence, a breach of the GDPR or Data Protection Act 2018.

One of the questions for the court is whether the individual had a reasonable expectation of privacy in the particular circumstances.

Consideration is then given to whether this potential breach of privacy is overridden by other factors.

For example, journalists may have the benefit of data privacy exemptions or may claim legitimacy due to public interest arguments. It is more difficult for an individual to argue these sorts of reasons to justify covert recordings.

It is generally necessary to consider the purpose of any covert recording to decide its legitimacy.

In a number of recent cases the courts have found in favour of permitting covert recordings to be used in evidence. The mere fact that the recording was covert does not make it inadmissible.

The use of covert recording has also featured in a number of recent employment law cases, often used by an employee to record meetings with senior executives.

One of the main considerations is whether the recording is relevant to any issues in the court proceedings. While the courts have said that covert recordings are “distasteful” or “reprehensible” they have sometimes then gone on to allow them in evidence on the basis that they have “relevance and probative value”.

A judge in one recent case said that “covert recording has become a fact of professional life”. The trend seems to be that such recordings, although objectionable, are increasingly admissible as evidence in court.

However, in cases where covert recordings are used to provide evidence in the course of proceedings, it seems that such evidence may be admissible if it is relevant to the issues, despite the improper method of obtaining the evidence.

The issue of covert recordings is likely to remain extremely contentious, but in many cases, their use as evidence in court proceedings appears to have been sanctioned by the courts and this is only likely to increase the use of such questionable methods. It is though high-risk conduct and may expose the perpetrator to damages and other penalties.

Given the increased number of employee’s using mobile phones which have a voice recording function it is not surprising that many employers are concerned about employees covertly recording grievance, disciplinary and redundancy consultation meetings. The fact that they may be covertly recorded annoys employers as they consider it to be underhand and a breach of privacy. 

Employment Tribunals 

This issue was considered by the Employment Appeal Tribunal (EAT). In Vaughan -v- The London Borough Council of Lewisham (2013) the EAT ruled that Ms Vaughan could not lodge transcripts of over 39 hours’ worth of covert recordings. However it stated that in principle it would have allowed Ms Vaughan to submit secret recordings and transcripts in support of her claims, if such evidence was in “the interests of justice”. 

The Legal Position
The use of covert recording within the workplace raises a number of interesting points, including under the Data Protection Act, however when considering whether such recordings are admissible in evidence, an Employment Tribunal will normally only consider how relevant that evidence is to the issues to be determined by the Tribunal.

The Tribunal is not normally concerned by the manner in which the evidence was gathered. This principle applies to both recordings taken by the employer and by the employee. There is EAT authority which states that if an employee submits a transcript of a covert recording of a disciplinary meeting, the part of the recording that relates to the time that the employee was present in the meeting is admissible. However, the part of the transcript that relates to a time when the employee was out of the room, and therefore the employer had a reasonable assumption of confidentiality, is not admissible.

The Decision
Applying the probative value test the EAT indicated that the recordings, whilst taken in a “discreditable” and “distasteful” manner, would have been admissible if Ms Vaughan could demonstrate why they were relevant to the circumstances of her case. However, Ms Vaughan did not provide enough detail about what the recordings related to or how they supported her case and failed to provide transcripts to accompany them. Accordingly, the EAT declined to admit the 39 hours’ worth of material as evidence and indicated that Ms Vaughan needed to make a more focused and selective application. 

Case Comment
This case is a useful reminder to employers that they should be careful about what is said to employees during meetings and remember that the employee may be recording it. In order to mitigate the effect of covert recordings, employers should ensure that they follow good practice and a fair procedure when conducting grievance and disciplinary hearings. Good practice would include taking a detailed note of what is discussed and being careful not to say anything that you would not want an Employment Tribunal to subsequently hear. 

Recording a conversation in secret is not a criminal offence and is not prohibited. As long as the recording is for personal use you don’t need to obtain consent or let the other person know.

Things change if the matter is addressed with a claim for damages or if the recordings have been shared without the consent of the participants.

Even worse, if the recording is sold to third parties or released in public without the consent of the participants then this could be considered a criminal offence.

Journalists often record conversations in secret that they then publish without facing any legal problems. That is because they make sure to either obtain consent or argue that the recordings are in the public’s interest.

Can a private recording be submitted as evidence in court?

A private recording can be submitted as evidence, but with some conditions:

  • A recording may be relied on in evidence if the court gives permission
  • An application for permission should be made on form C2
  • The recording should be made available to other parties before any hearing to consider its admissibility.

Covert recordings of children should rarely, if ever, be admitted as evidence, according to section 13(4) of the Children and Families Act 2014.

Is it illegal for businesses to record conversations?

Here is where the law gets stricter, as there are many laws in the UK to stop businesses from recording conversations. Under the Telecommunications Regulations 2000, companies can only record calls without telling you if the recording is used for monitoring or keeping a record of communications for:

  • establishing the existence of facts
  • ascertain compliance with regulatory or self-regulatory practices or procedures
  • to demonstrate the standards which are achieved or ought to be achieved by persons using the system in the course of their duties
  • in the interests of national security, or for preventing or detecting crime

Read all the legally justified reasons here.

Any recordings on hold by a business must be relevant to that business and only used by that business. Lastly, all individuals must informed that their conversations are being recorded and all businesses that store personal information have to be registered with the Data Protection Commissioner.

Recording at work

Sometimes employers like to take an audio recording of a meeting, finding it more efficient rather than someone taking hand-written notes of key points. If this is your preference, we would advise you to always obtain the employee’s consent before recording.

In the recent case of Singh v Singh and Ors [2016] EWHC 1432(Ch) the High Court decided that covert recordings of conversations between business partners were admissible as evidence at trial but should be treated with caution. The claimant relied on recordings of meetings he had with the first defendant in private to prove that he was a co-owner of two businesses which he and the first defendant had set up together. No one else had been party to their discussions about ownership of those businesses and the evidence of the witnesses was contradictory.

The judge noted that caution should be exercised in relying on recordings as there is always a risk that where one party knows a conversation is being recorded, but the other does not, the content may be manipulated with a view to drawing the party who is unaware into some statement that can be taken out of context. Nevertheless, the judge recognised that there can be great value in what is said in such circumstances, where the parties plainly know the truth of the matters they are discussing and are talking (at least on one side) freely about them.

Admissibility of covert recordings

There is no rule under English law that specifically prohibits commercial parties from covertly recording face-to-face meetings. However, issues may arise when the party wishes to use a covert recording as evidence in court.

Audio or video recordings of meetings constitute hearsay evidence, i.e. statements made otherwise than while giving oral evidence in the course of the proceedings. Such evidence is admissible, provided safeguards in sections 2 to 4 of the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules (“CPR”) are complied with. These safeguards include a requirement to serve a notice of the intention to adduce hearsay evidence on the other party in the proceedings, along with details which may be reasonably required by the other party in order to deal with the fact that the evidence is hearsay. The other party has, in these circumstances, the power to call the person who made the statement in hearsay evidence for cross-examination.

In civil proceedings, the court does not have a specific power to exclude evidence on the ground that it was improperly or unlawfully obtained. However, the court has discretion to exclude evidence in order to achieve the overriding objective of ensuring cases are dealt with justly and at proportionate cost. Dealing with cases justly includes ensuring that the parties are on an equal footing and that the case is dealt with fairly and expeditiously.

Risks associated with covert recordings

  • Human Rights: Admissibility of covert recordings may be affected by the application of the European Convention on Human Rights (“ECHR“) as implemented by the Human Rights Act 1998 (“HRA”). Under the HRA, a Court, as a public authority, may not act in a way which is incompatible with the rights enshrined in the ECHR. In particular, the right to a fair trial (Article 6 ECHR) and the right to private and family life (Article 8) will be relevant. In relation to Article 8 rights, the court will first assess whether Article 8 is engaged, i.e. whether the person had a reasonable expectation of privacy (for example, this might be the case in the context of an employee’s disciplinary hearing). The Article 8 right is not absolute – interference with an individual’s right to privacy may be justified, if it was proportionate and in accordance with the law, for example in order to prevent a crime. In addition, the fact that a recording interferes with Article 8 rights will not automatically mean that the individual’s right to a fair trial is engaged – it might still be possible to conduct a fair trial of the issues at hand. The court will balance the probative value of the evidence in question against the nature and extent of activity which had infringed the right to privacy.
  • Costs consequences: Even though the Court of Appeal has in the past admitted covert video recordings obtained by trespass, it has also penalised the party producing the recording in evidence in costs in order to deter improper conduct.
  • Derivative civil actions: The individual, who has been recorded, may separately sue the recorder for the wrong committed in the course of obtaining evidence (such as breach of confidentiality).
  • Data protection: There is a risk that a recording of a face-to-face meeting or a telephone conversation will contain “personal data”. Its collection and processing would then be subject to the Data Protection Act 2018 (“DPA”).
    The Information Commissioner’s Employment Practices Data Protection Code gives specific guidance on covert monitoring in the workplace and recommends its use only in exceptional circumstances, whilst the Information Commissioner’s CCTV code of practice provides guidance on the use of surveillance cameras.
  • Offences under the Regulation of Investigatory Powers Act 2000: Interception of communications without authorisation is a criminal offence and may also be a tort. However, an individual recording a telephone call on a separate device held next to a telephone receiver falls outside the definition of “interception”, as does the recording of a conversation by one party to the communication, i.e. participant monitoring, although the latter might amount to surveillance, which may require prior authorisation. Businesses may avail themselves of the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations, which allows interception of business communications without consent of the parties involved in order to prevent or detect crime, provided certain conditions are met.
  • Employment law issues: Recording of employees may trigger breach of the duty of mutual trust and confidence.

Conclusion

Recording commercial meetings without the other participant’s consent can be useful evidence in a dispute and despite the risks associated with such recordings, from an evidence standpoint, the English court appears to be willing to admit such recordings as evidence. However, parties need to be alive to the fact that recordings can be taken out of context. Where a party seeks to rely on a recording of a meeting as evidence in the proceedings, the other parties to the action should consider requiring disclosure of the entire recording, together with information on the context in which the recording was taken. 

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