Litigation: Can Recorded Conversations be used as evidence in Court?

Modern technology has allowed anyone to be able to record a conversation very easily. However recording a conversation without the participants knowledge could be considered a breach of that person’s privacy, however if the recording provided proved a fact in dispute it is important that the law has a balance to protect the individuals rights while also ensuring justice is carried out. 

Can you record a conversation between two people? 

Conversation that takes place between two private individuals is not considered prohibited conversation, however if the recorded conversation is provided to a third party without the consent of both parties, problems may arise. 

Do I have to get consent to record a conversation?

Consent may be obtained retrospectively, or it may be argued that the content of the conversation is within public interest. An example of this is reporters record conversations covertly, however their defence is argued to be within public interest and therefore should be disclosed due to the significance of the conversation. 

Can I get an urgent injunction to prevent the publication of a recording?

Whether or not the recorded conversation is in public interest is a factor that may be argued in court. If the person who has been recorded believes that the recording has not been made with consent they may wish to obtain an injunction along with claims for any damages as a result of the recording. 

Can companies record conversations? 

Companies have different rights when recording conversations than private individuals. Companies are permitted to record conversations for business purposes, such as security or training, however can only do so for the regulated reasons. 

What is the Regulation of Investigatory Powers Act 2000 (RIPA)?

The Regulation of Investigatory Powers Act 2000 (RIPA) permits a company to lawfully record conversations only to:

• Establish facts;
• Ensure regulatory compliance; or
• demonstrate standards that are achieved or need to be achieved by training.

Any recording that is retained must be relevant to that business and only used for that business. The company must make all reasonable efforts to inform the parties involved that the conversation was recorded. By noting that conversation are recorded in terms and conditions, websites and other documents this allows companies to inform customers that calls will be recorded. 

Are employers allowed to record conversations?

Employers should be wary of employees recording disciplinary or grievance conversations without their knowledge. Previously, the Employment Tribunal has, in certain circumstances, permitted such conversations to be used in court. 

Employers may wish to amend employment contacts by amending Employment Contracts to explicitly exclude employees from recording disciplinary or grievance conversations.

Can recordings be used as Court Evidence?

Yes. Even non-consensual covert audio or video recordings can be used as admissible evidence in UK legal proceedings. Rule 32.1 of the Civil Procedure Rules however allows the Court however to exclude evidence. The Judge has to undertake a balancing exercise to determine what is fair between getting to the truth and restricting recordings obtained improperly.

Can I produce recordings as evidence in court?  

The RIPA prohibits the product of unlawful interceptions to be admissible in court, however in civil case, some judges may take a pragmatic approach that the information is already disclosed and highly relevant to the matter. 

Once the recording has been admitted it may be used to prove the case, however once the party is aware of the recordings existence it must be disclosed which may arise other issues, such as the unlawful obtaining of the evidence. 

If the recording  has been obtained illegally or unfairly then a party can address this by alternative means outside the proceedings, such as a claim for breach of the Data Protection Act and claim for any damages suffered as a result of the recording. 

There is not a clear answer as to the law behind using a recording of a conversation as evidence. The basic principles to follow are the consent for the recording and to keep in mind when relying on a recording as evidence the risks behind using it.

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For example we obtained an ​out of hours emergency worldwide freezing injunction​ for a client in the diamond trade.​ ​Our client’s case required overnight preparation of affidavits and attendance upon a Judge at his private residence followed by immediate enforcement action and further attendance the next morning at the High Court. We​ achieved all this in-house as we are a firm of solicitors and barristers.

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