By Vanessa Lloyd Platt
Over the last few years, matrimonial solicitors have been increasingly confronted with clients presenting tape recordings or video recordings, believing that the contents are crucial for their cases. Video evidence has become a cornerstone in the realm of forensic science activities, often providing crucial information to bring perpetrators to justice.
However, if you believe your recording highlights a genuine welfare concern, it is essential to discuss it with your solicitor before attempting to use it as evidence. Using such recordings can be a double-edged sword; while they may provide crucial insights into the situation, they can also lead to unintended negative consequences if not handled correctly.
At Lloyd Platt and Co Solicitors, we understand the critical role video evidence can play in upholding justice and protecting human rights. Our expertise in this area ensures that any video evidence you provide is assessed thoroughly and used appropriately. We are committed to guiding you through the complexities of the legal landscape, ensuring that your evidence is both impactful and admissible.
Video Recording Legal Guidance
In December 2022 the Family Justice Council issued a draft guidance, particularly discussing the issue of such recordings within private law children matters. With technology becoming ever more user friendly, many clients can easily record their partner in many different settings, therefore the issue of how these recordings can or should be used as a piece of evidence in Court proceedings is becoming increasingly relevant.
In the case of M v F [covert recording of children] [2006 EWF C29] Sir Justice Peter Jackson said, “Nowadays it is all too easy for individuals to record other people without their knowledge and advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies”.
As has been pointed out by a recent article in Family Law – whilst on the one hand covert recordings can assist the Court in getting to the bottom of the classic “he said – she said” argument, on the other hand covert recordings often represent a snapshot of a brief moment in time that can be unrepresentative of the wider context in which that recording was taken.
It therefore can be easy to misinterpret, edit or encourage the other party to explode at various times and that might be the item that comes to the attention of the Court.
Guidance on Capture and Court Presentation
For video evidence or digital images to be admissible in court, they must be relevant, authentic, and have a clear chain of custody. Here’s a guide on ensuring your retrieval of video evidence adheres to basic practices:
- Evidentiary Purposes: The video should clearly demonstrate the event in question. It should be easy to identify the individuals involved and understand the context of the video footage.
- Court: Presenting video evidence in court requires preparation. Ensure the footage is accessible in its native video file format and be ready to explain the methods used for its retrieval and storage.
The draft guidance confirms that the recordings or copies must not be listened to by third parties until the Court has determined whether that recording should be admitted in evidence. It is a case management decision for the Court to consider the method of disclosing the recordings; the identification of the scope of the recordings; the authenticity of recordings to establish the probative value of the recording; welfare consideration for the children and the cost.
Are covert recordings admissible?
As has been pointed out hidden cameras can be subtly hidden in the family home and software installed onto the other party’s phone that can be listened into and record conversations. There are cases where people track the family car or the movements of their spouse or install CCTV.
Everyone is aware that Data Protection Rules and Human Rights Act govern every individual’s respect for privacy in family life. However, in family cases this appears to be dealt with differently. When these recordings are used in private Court proceedings, breaches of those Acts are unlikely.
There is no one rule relating to whether the Court will allow covert recordings. The Judge will have to consider whether there is a full transcript of it and whether it will assist the Court.
Who Can You Record?
As an individual, you can record almost anyone, including your ex-partner, CAFCASS officers, social workers, and others involved in your case. However, it is important to proceed with caution.
Remember that the individuals you record may be extremely unhappy if they find out they are being recorded. They might tell you that you are not permitted to record them without their permission, refuse to speak to you, or even cancel the meeting. This reaction can potentially have an adverse effect on the outcome of any reports or assessments they are conducting.
It is crucial to weigh the potential benefits of making a recording against the risks. The negative consequences of recording without consent might outweigh any advantage the recording could provide. The impact on the professional relationship and the resultant reports should be carefully considered.
There are specific exceptions where recording is not permitted, such as during mediation or counselling sessions, or in court hearings. Recording in these settings can have serious consequences. For instance, recording a court hearing without permission can lead to imprisonment for contempt of court.
Video Recording Principles
- Necessity: Is the recording essential for the court to consider? Does it relate directly to the welfare checklist concerning parents’ capability, harm, or credibility issues?
- Accuracy: Does the recording accurately reflect the event? Has the other party unfairly manipulated the conversation to their advantage?
- Method of Recording: Courts take a strict approach to admitting recordings obtained through manipulation or exploitation, especially involving children. For example, in the M & F case, placing a recording device on a child was deemed almost certainly wrong.
- Purpose: The reason behind making the recording is crucial. A pattern of numerous recordings may indicate coercive or controlling behaviour, potentially backfiring on the recording party. In Re C – A Child, the court found that the use of recording equipment amounted to intimidation and abuse.
- Breach of Trust: Recording someone without their consent is a breach of trust. In Re A – A Child, covertly recording a child was problematic. Filming a child for personal purposes is particularly frowned upon.
- Court Steps: The court must ensure that the full recordings are reviewed to prevent misinterpretation or selective editing. The draft guidance confirms that recordings should not be listened to by third parties until the court decides on their admissibility.
If you believe your recording highlights a genuine welfare concern, discuss it with your solicitor before using it as evidence. As demonstrated by various cases, video and tape recordings can be a double-edged sword. At Lloyd Platt and Co Solicitors, we emphasise the importance of following proper practices in handling video evidence to ensure justice and uphold human rights.
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