Most of us have smartphone devices at our fingertips which can record everything should we wish them to. Disputes, arguments, and behaviour can now be exposed by former couples and partners who can provide damning evidence of the others conduct. But what is the law surrounding covert recordings and can these be used in court? In this article, we take a look.
Recording a conversation is not prohibited, as long as the recording is made for personal use only. This can often be the case if one party records something in order to protect their safety, to preserve evidence, or to allow them to refute allegations made by another party. A family dispute would fall within the personal use exemption, but a court will still need to be asked for permission to introduce it into the proceedings as evidence.
As recently as 2018, the Family Justice Council found there might be a situation where a recording could provide valuable evidence to the court. However, this must be tempered against attempts to control the recorded party, which may also impact negatively on the welfare of any children, especially if the child is the subject of the recording.
The Association of Lawyers for Children state that secret recordings of children should rarely, if ever, be used in evidence in family proceedings. In one case, a father sewed a recording device into the lining of his child’s clothing to find out what social workers were asking his child. The judge slammed the father and found that the child should live with the mother and pay her costs.
Can I apply to the court to admit a secret recording into evidence?
Either party can apply to the court for covert recordings to be admitted as evidence in family proceedings, but there is no presumption this will be allowed. The final decision is made at the judge’s discretion as to whether it will be admissible.
Secret recordings can be of real use in domestic abuse cases and shine a light on the extent and severity of an incident, particularly where there are conflicting stories. That said, it is wrong to presume a family court judge would only believe and act on allegations of domestic abuse if there is recorded evidence. Most domestic violence incidents happen without being recorded, where it is usually impossible to turn on a device during one.
Some principles have emerged from case law, where the court has been guided to ask itself whether the evidence is:
- Relevant to the legal or procedural issues before the court
- An accurate depiction of the whole incident/conversation and has not been manipulated or tampered with in some way.
What will the court consider?
In a 2017 case, the family court said that questions about recordings may arise in relation to:
- The lawfulness of what has been done
- Best practice outside the courtroom
- Admissibility of the recording being put into evidence
- Other evidential and practice issues such as how the recording is put into evidence, problems regarding sound and picture quality, disputes as to authenticity, or the identity of the people who can be heard or seen on the recording
Ultimately, each case will turn on its own set of facts and the issue of admitting a recording must be determined by the court in a way that enhances the evidence already present from other sources.
Can I do anything to help the judge decide to admit a recording into evidence?
If you plan on asking the court to admit a covert recording into evidence, you should consider the reasons the court needs to see/hear it and how doing so would advance your case. It would also be sensible to think about how it might backfire, too.
You should also provide the following to the court:
- Full details of when, where, and how the recording was made
- Full details of the context and how the recording occurred
- The whole recording uncut, edited or spliced
- An accurate typed transcript
Will the family court consider intimate recordings which will help my case?
The court will exercise extreme caution when considering whether to admit intimate recordings into evidence. These may be relevant in defending or making allegations of sexual abuse, for example, but not all recordings will be appropriate or necessary for the court to consider. Because intimate recordings are personal and usually intended to be private, a specific application will need to be made. For example, an abuser may want to reveal such recordings in court as a form of abuse designed to humiliate. So very careful thought needs to be given as to whether and how such recordings are relevant to the issues being decided.
Can I publish a covert recording of my ex on social media?
If family proceedings are ongoing in court, then it is an offence to publish by electronic means or otherwise an account of anything that would identify a party to the proceedings, or a person who is related to or associated with a party to those proceedings. In other words, any social media activity that openly discloses any aspect of family proceedings may adversely affect your case and is punishable by a term of imprisonment of up to one year.
Can text messages be used as evidence in family court?
Text messages are frequently used in family proceedings to show communications between parties, and it is common for judges to see text message exchanges attached to witness statements filed with the court. Given the breakdown in communication in such cases, they tend to reflect strained interactions and abuse suffered by one party and can be useful where there is no audio or video recording.
Using recordings and filmed footage is becoming increasingly common in court. Covert recordings can often play a crucial role in family cases, but should not be considered as the only form of evidence, particularly given the approach taken by the court in determining the weight attached to this type of evidence.
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