Recording conversations chestnut!

evolving_doors

Not looking for advice or anything.
Just wondering what's the law say!

So person A is phoned by person B.
Person A records the conversation and doesn't tell person B.

Is person A's recording admissible for a legal case ?
(for civil or criminal situations).

TonyStark

Gebgbegb wrote: »

Not looking for advice or anything.
Just wondering what's the law say!

So person A is phoned by person B.
Person A records the conversation and doesn't tell person B.

Is person A's recording admissible for a legal case ?
(for civil or criminal situations).

From what I understand as long as one party knows its being recorded then it's admissible.

I may be wrong.

RossieMan

Only 1 party needs to know. So therefore the the person calling can record with telling person b.


/Close thread.

evolving_doors

RossieMan wrote: »

Only 1 party needs to know. So therefore the the person calling can record with telling person b.


/Close thread.

Presume you meant ' without '.

Why do big companies tell you that they are recording the conversation then.Even if It's only for training purposes?

Not questioning your knowledge RossieMan but are there any records of cases you can think of that have been in the news. Civil cases like?

hullaballoo

I have no idea where the idea that a recorded conversation is inadmissible comes from. It is a common enough idea but I cannot see any basis for the proposition that it is inadmissible unless [something] from first principles.

I would have thought it is more likely that it is admissible unless there is a valid reason for objecting to it or it cannot be proven in and of itself.

Edit: just to add, I haven't ever looked into this, I am simply extrapolating from my probably rather poor understanding of basic principles of evidence.

L1011

hullaballoo wrote: »

I have no idea where the idea that a recorded conversation is inadmissible comes from.

Foreign TV shows

evolving_doors

hullaballoo wrote: »

I have no idea where the idea that a recorded conversation is inadmissible comes from. It is a common enough idea but I cannot see any basis for the proposition that it is inadmissible unless [something] from first principles.

I would have thought it is more likely that it is admissible unless there is a valid reason for objecting to it or it cannot be proven in and of itself.

Edit: just to add, I haven't ever looked into this, I am simply extrapolating from my probably rather poor understanding of basic principles of evidence.

You could be selective in what is recorded and what is omitted, thus changing the correct series of events .

johnnyskeleton

If it was obtained in breach of a persons right to privacy, there is a discretion to exclude it.

There i no automatic exclusionary rule anymore, nor is it safe to conclude that one person not knowing means that it was definitively in breach of their privacy rights.

Its also important as to whether it is being adduced to show that the words were said, or to prove the truth of its contents.

barneystinson

johnnyskeleton wrote: »

If it was obtained in breach of a persons right to privacy, there is a discretion to exclude it.

There i no automatic exclusionary rule anymore, nor is it safe to conclude that one person not knowing means that it was definitively in breach of their privacy rights.

Its also important as to whether it is being adduced to show that the words were said, or to prove the truth of its contents.

So if, for example, I was one of the executors of a will, in dispute with the other executor, and I recorded a conversation with the solicitor acting for the estate without telling them (because I suspected she was colluding with the other executor against the interests of myself and several other beneficiaries), I could later produce that recording to the law society and / or a court...?

Pro Hoc Vice

Gebgbegb wrote: »

You could be selective in what is recorded and what is omitted, thus changing the correct series of events .

That is why the person who made the recording must give evidence of how recording was made and how the recording was copied to be played in court.

hullaballoo

FWIW, I have now done some reading on the question and, although I could only find one relatively obscure and non-binding decision on it, I am fairly happy that these recordings are generally admissible. http://www.tjmcintyre.com/2007/12/admissibility-of-recorded-telephone.html

I don't know about this right to privacy stuff. I don't think that it exists here outside of the inviolability of the dwelling provisions of the constitution. Against that background (and I am aware that I again might not be correct on this point), it seems that recorded phone conversations are admissible unless some argument could be constructed that the recording violated the dwelling.

I am also unsure of the position in relation to adducing a recording to prove the contents of it. Again, I cannot see why there would be a bar to relying on the recording as proof of its contents, as opposed to merely proving the fact that the words were spoken.

This is one of those questions that doesn't have an answer, imo, and clearly even practising professionals have differing views on the extent of the admissibility of these recordings. I have spoken with colleagues who have the exact opposite view to my own on this and say that covertly recorded conversations are generally inadmissible. I just disagree with that position because I have never seen any rule of evidence that would lead me to believe that the want of consent from one party means the evidence is no good.

GM228

Gebgbegb wrote: »

are there any records of cases you can think of that have been in the news. Civil cases like?

I don't think there are many civil cases to deal with the issue, although the Leas Cross case Cogley vs RTE [2005] IEHC 181 provides some insight into the privacy side of the argument - see the quote from the case further down. Should the Leas Cross scandal ever lead to a criminal case then it will be one to watch.

More recently the UK High Court has ruled that covert recordings are admissible in civil cases in Singh vs Singh and Ors [2016] EWHC 1432 (Ch), but such recordings should be treated with caution.

With regards to the use of covert recordings in criminal cases I can think of the Longford Circuit Court case where a pig farmer was convicted of a number of serious crimes following a 22 minute covert recording which was recorded on his own property by the plaintiff.

hullaballoo wrote: »

I don't know about this right to privacy stuff. I don't think that it exists here outside of the inviolability of the dwelling provisions of the constitution. Against that background (and I am aware that I again might not be correct on this point), it seems that recorded phone conversations are admissible unless some argument could be constructed that the recording violated the dwelling

The right to privacy was held by the Supreme Court as per McGee vs AG [1974] IR284 and Kennedy vs AG [1987] IR587, whilst the 1974 case seemed to limit the privacy to a dwelling under Art 41 of the Constitution my understanding is the 1987 case made it a general right as per the Art 40.3 of the Constitution which was not limited to any particular place.

In the Cogley vs RTE case Mr. Justice Clarke noted that as per the Kennedy vs AG the right to privacy is not an unqualified right, but subject to the constitutional rights of others and to the requirements of public order, public morality and the common good.

It is also clear from Kennedy v. Ireland [1987] I.R. 587 that a right to privacy is one of the personal rights of the citizen guaranteed by, thought not specifically mentioned in, the constitution.

However it is also clear from Kennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts referred to above is also not unqualified in that it places an obligation on the Authority not to "unreasonably encroach" on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs in the Aherne proceedings have a constitutional right to privacy and an arguable entitlement to ensure that the Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and in particular how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.

In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.

There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.

Caliden

hullaballoo wrote: »

I have no idea where the idea that a recorded conversation is inadmissible comes from. It is a common enough idea but I cannot see any basis for the proposition that it is inadmissible unless [something] from first principles.

I would have thought it is more likely that it is admissible unless there is a valid reason for objecting to it or it cannot be proven in and of itself.

Edit: just to add, I haven't ever looked into this, I am simply extrapolating from my probably rather poor understanding of basic principles of evidence.

I think the reason for people thinking it's inadmissible is because of two-party consent laws in some states in the U.S.

GM228

Caliden wrote: »

I think the reason for people thinking it's inadmissible is because of two-party consent laws in some states in the U.S.

In the US 11 states have two party consent - California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington.

What is interesting is that in Illinois the Supreme Court has ruled some two party consent to be unconstitutional (well at least the legislation that allows it).

http://www.illinoiscourts.gov/Opinions/SupremeCourt/2014/114852.pdf

Fred Swanson

This post has been deleted.

GM228

Fred Swanson wrote: »

Illinois is effectively a one party consent state.

Well it's not that simple, following the Supreme Court ruling the laws were amended to require one party consent only where the parties could not expect reasonable privacy, otherwise it's still two party consent and considered by law makers to be constitutionally sound unless challenged again.

hullaballoo

GM228 wrote: »

The right to privacy was held by the Supreme Court as per McGee vs AG [1974] IR284 and Kennedy vs AG [1987] IR587, whilst the 1974 case seemed to limit the privacy to a dwelling under Art 41 of the Constitution my understanding is the 1987 case made it a general right as per the Art 40.3 of the Constitution which was not limited to any particular place.

In the Cogley vs RTE case Mr. Justice Clarke noted that as per the Kennedy vs AG the right to privacy is not an unqualified right, but subject to the constitutional rights of others and to the requirements of public order, public morality and the common good.

It seems that the right to privacy may be one that is only enforceable as against the State from reading Kennedy. Hamilton P. does speak of it as though it exists more generally but then in that case, all of its application is by reference to State interference. Irish Courts traditionally aren't great at enunciating principles that are cross-applicable and this case is certainly no different.

Notwithstanding the above, there is nothing in the case that says to me that recording a conversation surreptitiously or covertly would be a breach of anyone's right to privacy in and of itself. Attempting to have it admitted into evidence in Court or in another quasi or non judicial tribunal setting, or otherwise disclosing it, may be objectionable on privacy grounds but the right to privacy is subordinate to so many other individual and broader rights that I cannot see such an objection being carried unless there is some malicious intent behind the application to have it admitted.

4ensic15

hullaballoo wrote: »

It seems that the right to privacy may be one that is only enforceable as against the State from reading Kennedy. Hamilton P. does speak of it as though it exists more generally but then in that case, all of its application is by reference to State interference. Irish Courts traditionally aren't great at enunciating principles that are cross-applicable and this case is certainly no different.

Notwithstanding the above, there is nothing in the case that says to me that recording a conversation surreptitiously or covertly would be a breach of anyone's right to privacy in and of itself. Attempting to have it admitted into evidence in Court or in another quasi or non judicial tribunal setting, or otherwise disclosing it, may be objectionable on privacy grounds but the right to privacy is subordinate to so many other individual and broader rights that I cannot see such an objection being carried unless there is some malicious intent behind the application to have it admitted.

In general if a transcript is made of the tape a person can ask to refer to the transcript when giving evidence as it is effectively a contemporaneous note. The person can say that they used the tape as a back up to their recall of the conversation.
In that way the tape can be effectively admitted into evidence.

GM228

hullaballoo wrote: »

It seems that the right to privacy may be one that is only enforceable as against the State from reading Kennedy. Hamilton P. does speak of it as though it exists more generally but then in that case, all of its application is by reference to State interference.

But the Kennedy case basically made the right to privacy a Constitutional right, obligations under the constitution aren't limited to the state but also it's citizens, as per the Merkell vs CIE [1973] IR121 and Crowley vs Ireland [1980] IR102 cases a person can be held liable for damages for breaching another persons constitutional right.

hullaballoo

GM228 wrote: »

But the Kennedy case basically made the right to privacy a Constitutional right, obligations under the constitution aren't limited to the state but also it's citizens, as per the Merkell vs CIE [1973] IR121 and Crowley vs Ireland [1980] IR102 cases a person can be held liable for damages for breaching another persons constitutional right.

Be that as it may, it doesn't seem to me that the right to privacy as set out in Kennedy could be breached by another individual. It's a right that delimits the State's powers in interfering with citizens' privacy imo.

Even at that, the dicta seem to point to it being a right that can be fettered by almost any competing right, including societal rights.

Kind of off topic, but interesting nonetheless. I don't think the right is applicable in terms of the OP at all.