Admissibility of covert recordings in English criminal proceedings

Question

Jurisdiction: England and Wales

In this case, a man (M) raped the complainant (C). M and C have each other's contacts.

The day after the event, C calls M and wiretaps him (i.e. without M's consent or knowledge, everything he says on the call he is on with C is recorded). During the conversation, C and M discuss the events of the previous night, which includes an apology from M for engaging in non-consensual sex with C. The confession is voluntary.

C shows this to the police as evidence after she reports M.

I have four questions:

a. Is the evidence (i.e. the call in the circumstances mentioned above) admissible in court?

b. If C intimidated and/or pressured M during the call into confessing, is this covertly recorded call, in these circumstances, still admissible?

(An example of intimidation and pressuring: she relentlessly demanded to know, while shouting and berating him with very personal insults, if he had sex with her without her consent to establish her 'peace of mind', or she threatened to tell his brother or friends a humiliating secret of his if he denies that he raped her.)

c. If C constantly reassures M that she won't go to the police if he freely discusses with her the events of the previous night, which leads to a confession of the rape, is this covertly recorded call, in these circumstances, still admissible?

d. If this evidence is inadmissible in any or all of these circumstances for a rape trial, would this be the same for any other crime or even family proceedings?

I apologise if this is too much, but answers to any or all of my questions would be much appreciated. I am curious.

Answer 1

At common law almost all relevant evidences are by default admissible and there is no bar to admission of evidence based on how it is obtained, especially by a private person, even if the manner of gathering is straight-up illegal.

In this case, it is not even illegal. CVovert recordings by one of the parties in the conversation are not illegal in England, at least when it is between two private individuals. It is not in itself considered problematic to the evidence's admission.

Modern evidence rules (mostly from the Police and Criminal Evidence Act 1984 for criminal cases) mean that confessions in particular may be subject to pre-trial proceedings (voir dire) to make sure that the confession can be considered reliable. It can be requested by the accused or required by the judge on their own motion.

76 Confessions.

• (1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

• (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—

  • (a)by oppression of the person who made it; or

  • (b)in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

  the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

• (3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.

...

• (8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

Evidences may also be excluded if it affects the trial's fairness to a significant degree. How the evidence was gathered is an explicit ground to consider.

78 Exclusion of unfair evidence.

• (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
• (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

b. If C intimidated and/or pressured M during the call into confessing, is this covertly recorded call, in these circumstances, still admissible?

Maybe, depending on the circumstances. M would most likely need to raise these objections and establish the possibility, unless the evidence is clearly suspect (e.g. if the recording provided is not complete). The judge will consider the whole circumstances to decide.

c. If C constantly reassures M that she won't go to the police if he freely discusses with her the events of the previous night, which leads to a confession of the rape, is this covertly recorded call, in these circumstances, still admissible?

These circumstances alone most likely won't affect the admissiblity. Public policy encourages the reporting of criminal activities and promising not to go to the police is not coercive or manipulative in such a way that a person will confess to a crime that they did not commit. It may be perceived as "unfair" by some between the two individuals, but it does not make a criminal trial unfair.