Secretly recorded telephone calls – the upside and the downside.
It may be considered to be naughty to record a telephone conversation without notifying the other party, but the recording will still, normally, be accepted as evidence in civil litigation. However, the professional litigator who sets up the call may face other risks, including a complaint of professional misconduct.
A few months ago Sir Ian Blair, the Metropolitan Police Commissioner, was criticised for secretly recording telephone conversations with the Attorney General, among others. He said that he had done this because he did not have a note taker with him at the time and wanted to ensure that he could prepare a record of what was said during an important conversation. There are a number of situations where a litigator may feel, for much the same reasons, that it would be helpful to record a conversation. Would the recording, or any transcript or note based on it, be admitted as evidence in court? And might he or she be open to criticism (although obviously on a different basis to that which applied to the Police Commissioner) for adopting this approach?
In criminal trials the judge has a wide discretion to prevent evidence being placed before the jury by the prosecution where it has been obtained in circumstances where its admission might be said to have an adverse effect on the fairness of the proceedings. Even under those rules secretly recorded conversations, including confessions, have been admitted, provided the manner in which the evidence was obtained did not affect its credibility. The fact that the conversation had been recorded without the other party’s knowledge was therefore only one of the factors to be taken into account. Others were:
● The risk that the recording had been tampered with or was otherwise an unreliable record, in technical terms, of what had been said;
● The fact that the questioner adopted a threatening tone;
● Any element of entrapment or deceit in persuading the other party to participate, especially if it resulted in him or her make an incriminating statement.
In civil proceedings there has traditionally not been any equivalent discretion to exclude evidence on the basis of unfairness or even on the basis that illegal means had been used to obtain it. It is understandable, given the lower standard of proof and the absence of a jury to determine issues of fact, that a more robust approach should be taken in civil proceedings than in criminal ones.
One of the leading cases on the point is actually an IP case. In 1980 the detailed procedures to be followed in obtaining and executing a search order were still being developed. In the course of a trial the defendant’s counsel asked the trial judge to ignore certain evidence that had been obtained under such an order. The basis of the application was that those executing the order had not complied with the most up-to-date Court of Appeal guidance. The judge rejected the application and the Court of Appeal agreed with him. In the leading judgment Denning MR said that, assuming in the defendant’s favour that the original order ought not to have been made, the evidence obtained under it could not be refused - “I know that in criminal cases a judge may have a discretion … But so far as civil cases are concerned it seems to me that the judge has no discretion. The evidence is relevant and admissible. The judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning”.
In Jones v University of Warwick  1 WLR 954 the Court of Appeal suggested that, in the light of the Woolf reforms, the position might not be quite so clear cut. It noted that at the time when Denning MR made his statement the achieving of justice in the particular case was the paramount consideration for the judge trying the case. Today, it was suggested, the courts could adopt a less rigid approach in recognising that there were conflicting public interests to be reconciled. On the one hand it was not desirable that evidence should be acquired by deception. But there may well be circumstances, it said, where evidence obtained by unlawful means would be admitted on the basis that it was in the overall interests of justice to enable the defendant to challenge an exaggerated claim put forward by his opponent. This requirement to prevent false claims being asserted should, the Court stated, be the starting point for a court considering the issue. In the absence of other wrongdoing, such as holding back the evidence in order to ambush the claimant with it at trial, the evidence should not normally be excluded.
It might be thought that the Human Rights Act 1998 (under which the European Convention on Human Rights became directly enforceable in the UK) would be relevant in this context. Article 6 of the Convention establishes the rights to a fair trial and Article 8 an individual’s right to respect for his private life (which might be relevant to evidence obtained by bugging a person’s house). However, the Court of Appeal in Jones do not appear keen for either of these provisions to override the domestic law principles dealt with above, provided that proper procedures were followed in permitting the evidence to be challenged and in deciding what weight should be applied to it.
Although, therefore, the evidence obtained by secretly recording a telephone conversation is likely to be admissible, there are several reasons for adopting a cautious approach. They include the following:
You may commit a crime.
It is an offence under the Regulation of Investigatory Powers Act 2000 to intercept any form of communication through a public or private telecommunication system unless the sender and intended recipient consent, or a warrant has been issued by the Secretary of State.
It has been held that a telephone conversation picked up by a tape recorder concealed on the body of a party to the conversation was not an “interception” for the purposes of the 2000 Act. There was, in those circumstances, no question of the communication being picked up in the course of transmission i.e. between the point where words were spoken into a device by one participant and the point where they were picked up by another. However, one can envisage that more sophisticated devices, incorporated into the telephone equipment, may well constitute an interception, with the consequent risk of criminal liability on the party utilising the equipment.
You may commit professional misconduct.
Both the ITMA Trade Mark & Design Litigator Certificate Regulations 2005 and the CIPA Rules of Professional Conduct for Patent Agents Holding and Acting within the Scope of Litigation Right Certificates include general rules against behaviour that would compromise or impair the litigator’s independence or integrity. They also state that the litigator must not deceive or mislead the court. For a solicitor the broadly equivalent rules are a little more specific and are more easily applied to telephone recording. It may be said, of course, that a patent agent litigator or a trade mark attorney litigator may have an advantage over a solicitor in that he or she would not be bound by the restrictions that apply to solicitors. That may be too bold an approach to adopt if, notwithstanding the absence of any equivalent provision, the solicitor’s rule was referred to in a complaint about professional conduct as guidance on how a litigator ought to behave.
Two rules may apply. The Guide to Professional Conduct states:
“Solicitors must not act, whether in their professional capacity or otherwise, towards anyone in a way which is fraudulent, deceitful or otherwise contrary to their position as solicitors. Nor must solicitors use their position as solicitors to take unfair advantage either for themselves or another person”.
“19.01 Duty of good faith
“A solicitor must act towards other solicitors with the frankness and good faith consistent with his or her overriding duty to the client”.
Guidance on this provision includes the following:
“A solicitor will normally warn the other party to a telephone conversation if it is going to be recorded. This warning may, however, be dispensed with in cases where the solicitor believes that considerations of courtesy are outweighed by other factors. Regard should be had to the legislation relating to telecommunication systems and any other requirement to give notice prior to recording any conversation.”
For a solicitor, therefore, there is a professional obligation to warn the other party if a telephone conversation is being recorded. Even if it is not being recorded, care needs to be taken to ensure that the solicitor does not act in a “deceitful” way in the manner in which he sets up the call.
Your client may be penalised in costs
In the case of Jones v University of Warwick, referred to above, evidence of taped conversations was admitted, even though the recording had been obtained by a person tricking his way into a private house and installing concealed recording equipment. However the Court of Appeal made a costs order against the party wishing to adduce the evidence. Although it was permitted to use the evidence it was ordered to pay the unsuccessful party the costs on both the application to the trial judge and the appeal, as a mark of the court’s disapproval of its behaviour.
The evidence may lack weight
Quite apart from these considerations, the evidence may be given less weight at trial. Even though, as stated above, the court has very little discretion to refuse to admit it, one may expect the trial judge to view it with some suspicion. He or she may be more willing to conclude that no great reliance should be placed on it, particularly if there are other factors undermining its reliability, such as deception about the nature of the call or any degree of intimidation by the litigator.
Is it worth the risk? Particularly when a court will generally accept the content of a professional’s contemporaneous file note as an accurate record of what was said in a telephone conversation. In a recent case a colleague, realising that a telephone conversation included some very unwise comments by the other party, sent himself an email immediately after he put the phone down, recording what had been said. This had the advantage of being a date, and time, stamped document so that nobody could suggest that it was anything but a contemporaneous record.
As a general rule a telephone conversation with a professional seldom turns out to contain real dynamite evidence, however excited one may be about it at the time, and capturing every single word and inflexion will not improve on a careful file note. If the record of what someone says is really likely to turn a case then it is better to bring in a professional investigator. They usually do these things better; and if they don’t at least the litigator is distanced from any judicial criticism.
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