THE ADMISSABILITY OF COVERT RECORDINGS IN LEGAL PROCEEDINGS

The recording of meetings and conversations can be done covertly and overtly at essentially any time. Covert recordings are of their very nature not openly acknowledged, indicating that either a particular party, or in some instances all parties, to the conversation are not aware that there is a recording taking place.

While there is a commonly held view that the recording of conversation in Ireland is illegal and in breach of a right to privacy, this actually does not represent the law in Ireland. This is a highly context dependent area.

The argument in favour of the admissibility of covert recordings is as follows:

Development of the law in this area

The law in relation to the recording of conversations was initially addressed in Ireland under the Interception of Postal Packets and Telecommunications (Regulation) Act 1983. This Act prohibited the ‘interception,’ or the attempted interception, of phone calls. ‘Interception’ was defined as including the recording of any telephone calls without the agreement of all the parties to the call. However, the Interception of Postal Packets and Telecommunications (Regulation) Act 1993 subsequently came into law, amending the definition of interception. Consequently, the current position in Irish law is that it is not illegal to record a telephone conversation if one of the parties to the call consents to the recording.

Single party consent

The current definition of ‘interception’ infers that only single party consent is required to record telephone conversations in Ireland, rendering the recording legal and admissible. Single party consent means that it is not illegal to record a telephone conversation if one of the parties to the call or conversation consent to the recording. Only single party consent is required for recording conversations whether on a phone or in person. In Ireland, one party can record and the other party need not agree or be informed of same.

This issue came to the public attention in recent years when Oliver Connolly, the former Garda Confidential Recipient, complained that his constitutional right to privacy had been infringed when the whistle blower Sergeant McCabe released tapes of a conversation he had with Connolly on the telephone. Despite protests by Connolly, there was nothing unlawful about the taping of that conversation.

On this basis, it is understood that the recording of conversations is legal and recordings can be used as evidence in court, provided that the person recording is a participant to the conversation or has consent from at least one participant from the conversation.

GDPR

In Ireland, any concerns under GDPR legislation are addressed under the General Data Protection Regulation and the Data Protection Act 2018. Both of these expressly clarify that the processing of personal data and special categories of personal data for a purpose other than the purpose for which the data has been collected shall be lawful to the extent that such processing is necessary and proportionate for the purposes –

(a) Of preventing a threat to national security, defence or public security,

(b) Of preventing, detecting, investigating or prosecuting criminal offences, or

(c) Set out in paragraph (a) or (b) of Section 47.

Section 46 of the Data Protection Act 2018 (which echoes the Regulation) provides that subject to suitable and specific measures being taken to safeguard the fundamental rights and freedoms of data subjects, the processing of special categories of personal data shall be lawful where it is necessary for the purpose of exercising or performing any right or obligation which is conferred or imposed by law on the controller or the data subject in connection with employment or social welfare law.

Section 47 of the Act, which also echoes the Regulation, provides that the processing of special categories of personal data shall be lawful where the processing –

(a) Is necessary for the purposes of providing or obtaining legal advice or for the purposes of, or in connection with, legal claims, prospective legal claims, legal proceedings, or prospective legal proceedings, or

(b) Is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

This approach solidifies the stance that this is a highly context dependent area.

Right to privacy

Irish citizens are entitled to a right to privacy by way of the Constitution and the European Convention on Human Right (ECHR). Vitally, this right is not absolute and therefore must be balanced against other competing rights or interests. The context of both the conversation and the use of the recording are relevant in determining this balance. Provided that one party to the recording consents, Irish legislation governing the interception of telephone calls will not be breached. Interference with privacy can be justified under Article 8(2) of the ECHR if it is in accordance with the law and is necessary in a democratic society to achieve one or more of the following legitimate aims: national security; public safety; prevention of disorder or crime; protection of health or morals; and protection of the rights and freedoms of others (a common example here is the rights of employers/employees).

Workplace Relations Act 2015

Under Section 41(5)(a) of the Workplace Relations Act 2015; an Adjudication officer whom a complaint or dispute is referred under this section shall –

(i) Inquire into the complaint or dispute.

(ii) Give the parties to the complaint or dispute an opportunity to –

(i) Be heard by the Adjudication Officer, and

(ii) Present to the Adjudication Officer any evidence relevant to the complaint or dispute.

The legislation governing the WRC is clear in that it requires the Adjudication Officer to inquire into matters. The view taken by the Supreme Court is that this is an inquisitorial process. In the recent matter of Zalewski v WRC, Ireland and the Attorney General, it was stated that the desire of the WRC was to provide a system of resolution of employment disputes which is sufficient, timely, and minimises costs.

Case law

There is an abundance of Irish caselaw supporting the admissibility of covert records, such as Singh v Singh and Ors wherein it was acknowledged that the context of a recording in which only one party is aware could potentially be manipulated, however it was emphasised that regardless of this, “there can be great value in what is said in such circumstances where the parties plainly know the truth of the matters they are discussing and are talking (at least on one side) freely about them.”

Supporting this stance, a recording of a conversation was admitted into evidence in Valerie Enners v David McCarty, wherein the Equality Officer referred to the case of Laurentiu Engen Jacob v The Central Hotel DEC-E2010-147. In the latter case, the Equality Officer held that he was not precluded from admitting a recording into evidence as there was no dispute as to who the parties recorded were and same held true evidential value. It was found to be just and equitable to admit the recording into evidence.

Similarly, the WRC also allowed for audio recordings presented by the employer which had been made by a private investigator on foot of a disciplinary matter to be submitted as evidence in Michael Caplis v Transeb Ireland Limited.

Conclusion

Whether a covert recording will be admitted as evidence is a highly context dependent decision in which a balancing act must occur. The conflicting rights involved will be taken into consideration in reaching this decision.

About the author: Kevin Sherry is an Associate Solicitor in the DGOD litigation department and can be contacted at sherryk@dgod.ie