Q&As

Can mobile phone recordings constitute admissible evidence in legal proceedings and what issues should be considered?

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Published on LexisPSL on 06/07/2017

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • Can mobile phone recordings constitute admissible evidence in legal proceedings and what issues should be considered?
  • Civil proceedings
  • Recordings obtained without consent
  • Criminal proceedings
  • General considerations
  • Data Protection Act 1998
  • Regulation of Investigatory Powers Act 2000

For the purposes of this Q&A we have not considered marketing and employment issues.

Civil proceedings

The question of admissibility of evidence in civil proceedings is whether the evidence is relevant to a fact in issue in the case. Admissibility is always decided by the judge and all relevant evidence is potentially admissible, subject to common law and statutory rules on exclusion. What is relevant (namely what goes to prove or disprove a matter in issue) will be decided by logic and human experience, and facts may be proved directly or circumstantially.

In civil proceedings, evidence must not be excluded on the ground that it is hearsay. For these purposes, 'hearsay' means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated and references to hearsay include hearsay of whatever degree (CPR 33.1).

The admissibility of a recorded call is subject to the normal laws of evidence. However, in civil proceedings, the court has a general discretionary power to exclude evidence under CPR 32.1(2). This power must be exercised with reference to the overriding objective. The court will perform a balancing exercise between the conflicting interests of admitting illicit evidence to ensure the administration of justice as opposed to refusing it, so as not to encourage litigants to adopt underhand tactics.

Recordings obtained without consent

We

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