Hard Wired? Is it Time to Revisit the Value of Covert Recordings in Litigation?

This Elicius Intelligence briefing sets out some of the key factors in play when it comes to the admissibility of covert recordings in European courts. It provides only an initial overview. For clients actively considering the potential use of covert recordings, our Director Kieran Porter also produced a more detailed examination of comparative case law, as commissioned by Fraud Magazine, the official publication of the Association of Certified Fraud Examiners (ACFE).

Click here for the detailed briefing (via email) >>

ACFE members can read the original article on the ACFE Fraud Magazine website.

Covert Recordings Briefing: Unblocking Justice

Covert recordings have the potential to be a game-changing courtroom tactic. However, privacy hurdles and the failure of several high-profile secret recording cases have fed into a common perspective that deploying covert recordings in the courtroom is simply not a risk worth taking.

Such concerns are understandable. However, whilst this is an area where litigators always need to proceed with caution, our detailed analysis of recent decisions across a range of European courts, suggests that such a blanket assumption is potentially misplaced.  This is sometimes resulting in situations where an effective tactic that could potentially ‘unblock’ complex cases is not being considered as an option. As a result, clients are potentially being denied access to justice.

Barriers and Challenges

It is easy to see why legal teams may be reluctant to explore options around collecting and using covert recordings in criminal and civil cases.

Over the past decades, we have witnessed a steady strengthening of data protection and privacy rights within Europe, which have enshrined personal privacy in legislation and, in many jurisdictions, made the act of covert recording itself a criminal act. This opens up the possibility of reputational damage to clients, inadmissibility of evidence, or even potential prosecution.

There has also been a number of high-profile scandals, where poor practice by investigators has jeopardised cases, damaging the reputation of clients and legal teams along the way. For reasons such as these, covert recordings seem to be increasingly out of favour, often regarded as a “final throw of the dice” by beleaguered legal teams who feel they have run out of options.  However, Elicius’ experience and a detailed review of comparative case law indicates that the reality of European courtroom decisions may sometimes be at odds with the perception of how judges regard such evidence.

A Missed Opportunity?

Although European courts are legitimately concerned with protecting individual privacy rights, often those same courts will also recognise the important role that covertly recorded material can play in ensuring access to justice.  Our analysis is intended to ensure opportunities to deploy game-changing covert recordings are no longer missed, Elicius investigators have found courts to be most sympathetic when:

  • We have been acting to defend from criminal acts.
  • We have been acting to defend legal interests when no other means of gathering evidence has been available.

The key issue is balance. Each case and territory is different, and there is a range of factors that UK and European courts have to take into account when deciding whether a particular piece of evidence is admissible.  For instance, courts will consider:

  • The right to privacy that the subject of the recording could have reasonably expected
  • How and where the recording was made
  • The public interest in it being heard
  • Whether other less contested options for the collection of evidence had been exhausted.

Case Study: France

Even in territories with a fierce reputation for protecting privacy rights the law is rarely entirely cut and dried.

Article 226-1 of the French Criminal Code famously deems secret recordings without consent illegal and a violation of intimacy.  However a 2010 ruling by the Court of Cassation, one of the country’s highest appellate courts, set the precedent that there was no provision for criminal judges to exclude evidence “solely because” it was gathered in an illegal manner.

The French civil code does allow room for civil judges to interpret the concept of fairness in evidence collection.  The Philips and Sony v Sarl Avantage (2005-11) case centred on the admissibility of recordings of phone calls indicating collusion over price-setting. In 2007, the Paris Court of Appeal upheld the Competition Authority’s ruling that the recordings couldn’t be rejected simply because Avantage had collected the evidence illegally, but in 2011 the Court of Cassation again quashed the Court of Appeal’s ruling and stated admissibility was conditional on the lawful collection of evidence.

In 2010 the Woerth-Bettencourt case became a landmark example of the importance of covert recordings and a further example of how civil and criminal courts can take diametrically opposed views. Ultimately, in January 2012, the Criminal Chamber Court of Cassation ruled that transcripts of recordings, including conversations between Bettencourt and her lawyer, were admissible as “evidence which can be discussed in an adversarial manner”.  This set an important precedent and has become a widely cited case in which justice outweighs privacy rights.

More detail on the most relevant case law and precedent across a range of European countries is available in our more detailed briefing (via email).

How Elicius Can Help

The use of covert recordings is a complex legal and ethical issue, which if handled badly can leave investigators and clients exposed to both legal and reputational risk. What is essential, is that any litigation team going down this route receives clear, honest, and legally robust advice from their investigative partners. At Elicius Intelligence, we employ highly experienced investigators who understand the balance between privacy rights and access to justice, and are able to recognise those situations where a client’s rights can only be protected by putting unambiguous evidence before a court.

Click here to learn more about our Investigations service >>

Access our detailed client briefing on case law and precedent relating to the use of covert recordings here (via email).

For a confidential discussion about how Elicius Intelligence can support your organisation’s investigative activity, get in touch with our expert team.

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