Taped Conversations

Beano

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?

rozeboosje

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

Tom Young

Beano wrote: »

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

i71jskz5xu42pb

Tom Young wrote: »

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.

i71jskz5xu42pb

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

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

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

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

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

Victor

grumpytrousers wrote: »

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 wrote: »

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

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

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

Victor wrote: »

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

Paulw wrote: »

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 wrote: »

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

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

Gobán Saor

Tom Young wrote: »

.........in terms of private members of the public conversing, then the P&T Act is infringed as is the unenumerated right to privacy.

Ummm, not quite, I think. If A and B are conversing by telephone, then it is a crime for C to record (or otherwise intercept) the conversation without lawful authority (eg interception warrant, necessary engineering or maintenance work etc.) Presumably damages could also be recovered for the breach of privacy

However, A is entirely free to record the conversation without B's knowledge or vice versa. No criminal offence is committed by doing so.

It is also hard to see how such a recording could breach any privacy right. At high water, there may be a breach of privacy if A makes the recording available to a third party. But even in this scenario, the breach arises from the disclosure of the contents of the conversation rather from the making of a recording per se. This would also require the existence of a specific duty of care or contractual liability to keep the matter confidential. Presumably this would be actionable on a tortious or breach of contract basis in any event.

Data Protection issues may arise if the recording is stored or further transmitted in digital form.

rozeboosje

This has turned out to be a fascinating discussion.

There's quite a bit of disagreement amongst the posters here and to my layman's ears each conflicting post seems to have a valid point to make, so it still seems a bit unclear as to what the official stance would be on this matter.

I am wondering though whether it may be a case of having to take into account not only the fact THAT a recording was made, but also the PURPOSE for which the recording was intended.

As some have pointed out, I reckon it shouldn't be illegal, per se, to make a recording of a conversation in which one takes part, any more than it would be illegal to take shorthand notes of same. Whether such a recording can then be put in the public eye is a different matter, and that is where I think that maybe the purpose of the recording could be important.

If, for example, the recording was made for the purpose of getting B to admit to a crime, then I can see quite clearly why such a recording could not be admissible in a court setting for example. There are way too many ways in which something like that could be abused.

But what if the conversation consisted of A and B entering into an agreement? Surely the conversation would then be nothing other than a verbal contract, and open to public scrutiny? Just like a piece of paper on which A and B have signed a declaration to agree on a common cause - in other words a paper contract - would be open to public scrutiny if subsequently a dispute arose between A and B about the precise content of a contract, so if a conversation between A and B was recorded, the recording could subsequently be scrutinised to establish exactly what A and B had agreed upon, or what promises were made from one party to the other?

Just something to throw into the mosh pit. :cool:

the_syco

Overheal wrote: »

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.

Actually, you have the option to hang up. To continue talking is ging the center consent to record your call.

Overheal wrote: »

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.

Recording something, and recording something and bringing it to court are two different things.

Tom Young

Gobán Saor wrote: »

Data Protection issues may arise if the recording is stored or further transmitted in digital form.

Yes indeed, the main data protection is missing in the first instance vis: "this call is being recorded for X, Y, Z ....purposes".

Paulw

My understanding of the law, regarding recording a phone call, is that at least one party of the call must be aware that the call is being recorded. So, if A records a call between A and B, then the recording is permitted.

johnnyskeleton

Beano wrote: »

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?

As the statement was made out of court, it is not admissable to prove the truth of it's contents. It is however admissable to prove that the statement was made. This is the hearsay rule.

So it would not be admissable to show that B actually owed money to A. The only possible relevance is if it were to be adduced to show that B acknowledged the debt for the purposes of the statute of limitations. This is true not just of the recording, but also of any evidence to be given by A in court of the contents of the phone call.

As to the privacy issue, the civil courts do not take as strong a view of unconstitutionally obtained evidence as criminal courts do. It seems to me that the main evidence of the acknowledgment would come from A, and support for this would come from the recording if necessary. Because such a recording could equally prove B's claim, the courts might not be too impressed if he objected to the admissability of the recording on privacy grounds.

But again, it would only be of relevance in the context of the statute of limitations.

EdgarAllenPoo

This is a very good thread (and saves me making one to ask this). Hypothetically if a person records a conversation using a mobile phone in a healthcare setting without the consent of the other person is that (a) legal and (b) admissable in court?

Could the person who was taped without their consent sue for breach of the privacy of both the other person recorded and the patients (I know the privacy legislation isn't fully in place yet)?

If the person who recorded the conversation alleges racial abuse(falsely) and claims to have recorded it this recording is open to selective editing what recourse would the other person have.

Victor

GDM wrote: »

This is a very good thread (and saves me making one to ask this). Hypothetically if a person records a conversation using a mobile phone in a healthcare setting without the consent of the other person is that (a) legal and (b) admissable in court?

It might depend on the setting and the person doing the recording.

You are meant to turn off mobile phones in most health care settings - they are a nuisance and may interfere with certain equipment.

It is possible that some discussions may be systematicly recorded. It might however be unethical for a medical practitioner to make a recording in many other circumstances, as the patient is in a compromised position, whether emotionally of chemically.

Could the person who was taped without their consent sue for breach of the privacy of both the other person recorded and the patients (I know the privacy legislation isn't fully in place yet)?

If the person who recorded the conversation alleges racial abuse(falsely) and claims to have recorded it this recording is open to selective editing what recourse would the other person have.

I suspect you are on a fishing expedition for legal advice and can't answer.

Tom Young

Victor wrote: »

It might depend on the setting and the person doing the recording.

You are meant to turn off mobile phones in most health care settings - they are a nuisance and may interfere with certain equipment.

It is possible that some discussions may be systematicly recorded. It might however be unethical for a medical practitioner to make a recording in many other circumstances, as the patient is in a compromised position, whether emotionally of chemically.

I suspect you are on a fishing expedition for legal advice and can't answer.

I feel this is quite funny. The reason that 'mobile' phones are not allowed is that they interfere with the electrical current in equipment e.g., cardiograph and pace makers etc.

WiFi for that matter is a different story, as its radio or spectrum delivered. US hospitals are now allowing WiFi in hospitals and other places based on non-harmful aspects of radio communications.


Systematically recorded: Yes, (not legal advice) I feel that qualified privilege exists in certain scenario's e.g., law firms, stock brokers and banks [corporate].

Victor

Tom Young wrote: »

I feel this is quite funny. The reason that 'mobile' phones are not allowed is that they interfere with the electrical current in equipment e.g., cardiograph and pace makers etc.

"HI HONEY I'M IN A&E ..." is not what someone with a suspected heart attack wan't to be listening to.

The nuisance factor is real and I've seen 'No phone' signs in other hospital departments (without electronic medical equipment).

Tom Young

Victor wrote: »

"HI HONEY I'M IN A&E ..." is not what someone with a suspected heart attack wan't to be listening to.

The nuisance factor is real and I've seen 'No phone' signs in other hospital departments (without electronic medical equipment).

Seems Ryanair flights will soon have mobile 'coverage'. We can all listen to the chavs chatting to their LD relationship lovers abroad before they get there sweetie.

I am a fan of jammers.

EdgarAllenPoo

Victor wrote: »

I suspect you are on a fishing expedition for legal advice and can't answer.

Not really but I had to do a legal systems debate in college a few weeks ago on the topic of privacy.

I wanted to use the whole tape recording thing but steered clear because I was unsure.