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Tip 18: Illegal Evidence
This week’s post is a word of warning. The advice from the deposit protection schemes is always to provide as much evidence as possible to support your claim and, on the whole, they are right. The more documents, images and receipts you can amass in support of your claim, the stronger your case becomes.
Problems can arise when parties to a dispute take evidence gathering a little too far. I know of several cases where a party involved in a dispute made audio recordings of the other party speaking, without their knowledge or their consent, and submitted the recording in evidence. While it may be tempting to secretly record your ex-tenant saying something incriminating, you might be wise to keep such recordings yourself. The way I read it, under the Regulation of Investigatory Powers Act 2000, the person whose private conversation was taped can sue you for passing the recording to a third party.
Passing illegally obtained evidence to an adjudicator may also place them in a very difficult situation, as most adjudicators are legally trained and operate under a regulatory body. Submitting evidence that is questionable in origin can present them with a choice between rejecting your evidence, with attendant risks of making a decision that is unfair, or relying on the evidence, and potentially exposing you to prosecution. Deciding which course of action to follow might mean spending half and hour trawling through a dry and complex code of conduct, which won’t endear you to them.
As a general rule, adjudicators just want to get on with the business of making decisions, and don’t want to be distracted by thorny side issues about admissibility, so, unless your entire claim hinges on those secret recordings, I advise you think twice about sending them in.
Tom Derrett is the Principal of Deposit Claim, an ex-adjudicator and an expert on the Deposit Protection Schemes.
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2 comments:
Good series of tips. However this one is not correct.
Tape recording of first party conversations without consent is not illegal in the UK. Leaving a tape recorder to tape a conversation where you are not a participant in that conversation is not legal. Passing a recording to another party (such as an adjudicator) is also not illegal, but may be under some circumstances.
Tape recording of a conversation (or meeting) in which you are involved has the same status as hand written notes (they may be incorrect). There are ways to improve the chain of custody and proof of legitimacy (such as simultaneous recordings on two machines, or passing recordings immediately to a legal representative or other party). There are some specific (and different) rules that apply to taping over the telephone network.
None of the above should be taken to imply that such recording of the taking of an inventory is appropriate or civil. It can however provide admissable evidence, particularly to support a transcript in the event that this is challenged. There are many examples of useage of such recordings in court in several different contexts.
Some interesting points there, thank you.
The thrust of the post is that whether or not to admit covertly obtained evidence is a thorny issue for adjudicators. I would advise parties to a dispute to refrain from putting the tribunal in an awkward situation.
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