Written by Rachel Duke
Many people having been following Johnny Depp and Amber Heard’s defamation trial with interest. Although taking place in the US courts, it raises some interesting issues relevant to court proceedings in this country.
One of those issues is the use of covert recordings and whether they can be used as evidence.
With most people now having a smartphone in their pocket, as lawyers we are increasingly being presented with either audio or video recordings which clients wish to use in court as evidence.
Will the court allow videos of someone “assaulting kitchen cabinets” to be admitted as evidence?
This article considers whether such recordings can be used in the Family Courts in England and Wales and if so, what the correct procedure is to ensure that they can be used.
If one party turns up to court on the day of the hearing with covert recordings looking to play them in court, you can be virtually certain that will not be allowed. Their disclosure may simply be refused, or the hearing could be adjourned causing delay and wasted costs. In those circumstances, the court will likely order that the party wishing to rely on the recordings will have to pay the other party’s wasted costs relating to the adjourned hearing.
If you think you have recordings that could be relevant in court proceedings, you should tell your solicitor at the earliest opportunity.
If upon discussion, your solicitor agrees that they contain relevant evidence that the court should be aware of, he/she will need to know whether they have been edited and form only a section of the recordings and whether there are others.
The correct practice is as follows:
- It is desirable to secure the other party’s agreement to recording in advance rather than to do so covertly.
- Covert recordings of children should rarely, if ever be admitted as evidence.
- A recording can be relied on in evidence if the court gives permission to do so. An application to the court for permission will need to be made and the other party should be sent a copy of the application, the recordings and any transcripts in advance.
The court should consider the following factors before deciding whether a recording should be allowed in as evidence:
- the circumstances in which the recording was made
- whether proper notice of the application has been given to the other party
- if the recording is of a child, the child’s wishes and feelings (depending on age and understanding)
- if no effort was made to agree to recording in advance, why not
- the content of the recording
- whether the recording is complete or an excerpt
- whether the person who wants to use the recording should give an undertaking restricting its publication.
One final point to make is a reminder that it is a criminal offence to record any court proceedings without the court’s permission. This should therefore never be done in any circumstances.
Contact our Family Team on 020 8301 4884 or firstname.lastname@example.org for more information.