#1

Hypothetically speaking :

A has a telephone conversation with B. During this conversation B makes certain statements admitting that there is money owed to A. B later retracts these statements and now states that he said the opposite. Unknown to B the conversation was taped by A. Would this tape be admissable evidence in a civil case?

#2

I'm not a legal expert so I couldn't say, but it's interesting so I'm subscribing to this thread.

Tom Young Moderator
#3

Beano said:
Hypothetically speaking :

A has a telephone conversation with B. During this conversation B makes certain statements admitting that there is money owed to A. B later retracts these statements and now states that he said the opposite. Unknown to B the conversation was taped by A. Would this tape be admissable evidence in a civil case?


Hypothetically:

No its not admissible, its a complete breach of B's privacy rights and people who engage in such activities should be extremely careful. Unless qualified privilege can be proven or a warning in advance that the call is being recorded then its a moot point.

Tapping/recording can only be done with consent and indeed in the case of tapping with a warrant. Various statutory provisions apply.

Tom

PMan Registered User
#4

Tom Young said:
No its not admissible, its a complete breach of B's privacy rights and people who engage in such activities should be extremely careful. Unless qualified privilege can be proven or a warning in advance that the call is being recorded then its a moot point.

Tapping/recording can only be done with consent and indeed in the case of tapping with a warrant. Various statutory provisions apply.

My understanding is that the above is wrong. Consent and a warrant are only required when recording a conversation that you are not party to.
Tape should be admissible. IANAL, thank god, but that's my understanding.

PMan Registered User
#5

This would seem to support my comment above.

Tape of alleged racial abuse is admissible in case

Under that legislation, a telephone conversation can be legally recorded by one of the parties involved, without the other’s consent. Tribunal chairman John Gleeson SC said: ‘‘The fact that one party to a telephone conversation records it does not, in the opinion of the tribunal, give rise to a constitutional difficulty or a breach of the European Convention on Human Rights.

‘‘After all, a party to a telephone conversation is always capable of giving evidence of the contents of that conversation without any recording apparatus, whether by making a contemporaneous note or by simply recalling in evidence what was said during the conversation.”

grumpytrousers Registered User
#6

That's a tribunal, and not a court of law. The rules might be slightly different. I'd have to side with Tom on this - i can't see the courts allowing a tape of somebody incriminating themselves being admitted if the tape was made without their consent. The risk of somebody being manouvred into saying something they'd later regret is too great. I mean, jesus, if i wore a wire and habitually went up to married men saying 'Have you stopped beating your wife around the place yet?' the courts would be full of wife-beaters.

extreme example, but perhaps y'get me drift...

the point Gleeson makes about the contemperaneous note is a good one, but I genuinely think (and i'm sure he's REAL worried what i think) he's wrong in that. The secretary in that case should have been allowed record anything the hell she liked of her boss assuming it was in its capacity as an aide memoire and similarly the contemperaneous note.

Tom Young Moderator
#7

A wonderous development, but at a tribunal and not in facie curae, I believe in the context of the complaint and disciplinary hearing that would stand, but not in terms of private members of the public conversing, then the P&T Act is infringed as is the unenumerated right to privacy.

Overheal Covfefe Connoisseur
#8

I would have agreed with the ability of one of the participants to record the conversation without prior consent - otherwise 1) technical support sites wouldnt be allowed to operate with the 'obligation' (and it really is) to have your call recorded for training purposes. also, companies like Nokia would be restricted from installing Call Recording features in their phones. Currently I just press a couple buttons and I can record you for my benefit.

grumpytrousers Registered User
#9

'recording' me isn't the issue. Using the recording in a court case IS.

Victor Registered User
#10

grumpytrousers said:
That's a tribunal, and not a court of law. The rules might be slightly different.
Indeed. Tribunals are there to seek the truth. Courts are tehre to enforce the law.

I'd have to side with Tom on this - i can't see the courts allowing a tape of somebody incriminating themselves being admitted if the tape was made without their consent.
I think there are four cases:
(a) recording a face to face conversation without the consent of one or more party in a public place
(b) recording a face to face conversation without the consent of any party in a private place
(c) recording a telephone conversation without the consent of one or more party
(d) recording a telephone conversation without the consent of any party

Note that consent may be implied (one continued the conversation after being warned t here will be a recording) or created in some other manner (I understand stock brokers are required to record all calls).

The risk of somebody being manouvred into saying something they'd later regret is too great. I mean, jesus, if i wore a wire and habitually went up to married men saying 'Have you stopped beating your wife around the place yet?' the courts would be full of wife-beaters.
I don't agree. If you do illegal stuff and don't want to be caught. Shut up! Now there is the separate matter of the admissibility of the evidence in certain circumstances, e.g. a criminal case where the accused hasn't been cautioned.

A real problem with a recording, especially one over telephone is that it can be altered and edited. Telephones completely exclude certain noise frequencies and a recorder may not pick up everything, e.g. a noise too quiet or too loud. Indeed a digital phone call or recording is merely an approximation and not a recording of the noises.

http://whatis.techtarget.com/definition/0,,sid9_gci213765,00.html
The [audio frequency] range is generally considered to be from 20 Hz to 20,000 Hz.

All telephone circuits operate with [audio frequency] signals in a restricted range of approximately 200 Hz to 3000 Hz.

Overheal said:
I would have agreed with the ability of one of the participants to record the conversation without prior consent - otherwise 1) technical support sites wouldnt be allowed to operate with the 'obligation' (and it really is) to have your call recorded for training purposes.
Call centres warn you that the call is being / will be recorded. You have the option of hanging up.
also, companies like Nokia would be restricted from installing Call Recording features in their phones.
There is a difference between technical ability and legal right. You could use it for recording conversations with your child sick in hospital or its a work phone and you use it to record things with your boss while on the move and not stopping to write them down.

Carawaystick Registered User
#11

To broaden this out a bit Eh Hypotethically speaking.

a) If a call was made on a speakerphone to somebody, could all the parties evidence of the conversation be admitted to a court of law?

b) Are recordings made in person generally restricted in their admissibility or generally admitted in evidence? would overt vs covert recording make much difference?

c) would there be a considerable difference between civil and criminal cases?

d) lastly for the pure thought of it. If taping in court is prohibited, but a serious crime was recorded, lets say by a judge sitting there. could that recording ever be admissible


to Victor, I presume recording a conversation in a public place is similar to recording a still visual image i.e photo in a public place, and generally admitted like if someone overheard a person in a pub ordering drugs mar shampla.

Tom Young Moderator
#12

a) It would be hearsay unless viva voce evidence could be placed before the court be a person or persons who heard same. Then you have the issue of accuracy of recall.

b) Overt recording is deemed by consent, e.g., call centres 'we are recording this call for sales or training purposes' or banks that trade on the markets. The issue of privilege would come into play, particularly in company or corporate transactions. Personal transations would be inadmissible in my opinion.

c) Yes, there are various act which allow recording and tapping in the criminal context, 1983/1993 P&T Act/s and the 2005 Counter Terrorism Act. Unfortunately I think that the legislation is deficient here and we should more towards UK RIPA model - Regulation of Investigatory Powers Act.

In the civil context is very much depends on the forum and case in question. I have been thinking about the above tribunal example and think that in the course of business and subject to a complain I can understand how the admission of the evidence was allowed and how the complainant could attest to its authenticity. Call records would also assist this.

d) Yes. Subject to Hearsay rules and corroboration warnings I assume.

Paulw Moderator
#13

Victor said:

I think there are four cases:
(a) recording a face to face conversation without the consent of one or more party in a public place
(b) recording a face to face conversation without the consent of any party in a private place
(c) recording a telephone conversation without the consent of one or more party
(d) recording a telephone conversation without the consent of any party



In these cases, one party is always aware that the call is being recorded (the person making the recording). Security companies (alarm monitoring and such) always record phone calls, and there is no notice that your call is being recorded.

Hearsay does not come in where you actually hear the conversation (via speakerphone). You are then a witness to the conversation.

Interesting topic though.

Victor Registered User
#14

Paulw said:
In these cases, one party is always aware that the call is being recorded (the person making the recording). Security companies (alarm monitoring and such) always record phone calls, and there is no notice that your call is being recorded.
Is it stated in the contract with the security / alarm monitoring company? Then the consent is via contract. The security company could also argue necessity, people phoning them are doing so in an emergency situation.

Tom Young said:
a) It would be hearsay unless viva voce evidence could be placed before the court be a person or persons who heard same. Then you have the issue of accuracy of recall.
Hmmmmm. (i) My secretary was in the room taking notes by shorthand.

(ii) My secretary was on the other extension taking notes by shorthand.

Tom Young Moderator
#15

1. Your secretary and her short hand notes only go to prove the fact contemporaneously and would be real evidence. The original evidence which could/would be allowed would be a time stamped tape or CD of the conversation, with non-human intervention.

Your secretary would need to be examined over the purpose for note taking etc. Otherwise its hearsay.

2. If your secretary was unannounced then a raft of issues arise, privacy, consent etc. See Copland v UK, although its somewhat different.http://www.emplaw.co.uk/news/summaries/391839411111.htm

Want to share your thoughts?

Login here to discuss!