Recorded conversation used against me

[Derek B]

Can a private conversation be recorded without my knowledge and then used as evidence for gross misconduct?

[Bill-K]

Re: Recorded conversation used against me

Hi Derek.

I'm sure our resident expert on these matters will be along to advise you soon.

My VERY lay opinion is that a recording or transcript of any private convo CAN be submitted to a judge. It is then up to the judge to decide if it is admissable as evidence. If it is clear that the parties to the convo are both aware that it is being recorded, then the judge will usually admit it. If not, then it may still be admitted - but its admittance will depend upon the judge's opinion.

That's my understanding of it.

[Sapphire]

Re: Recorded conversation used against me

My understanding is that you have to be warned first before the conversation is recorded, if its not done then you may have a Data Protection Act issue.

[Amethyst]

Re: Recorded conversation used against me

Hi Derek, just to clarify, what kind of recording was made, i.e what format and what reason have they given for recording you in the first place, were you under suspicion of something? Also, for example, if it was a telephone conversation, are ALL employees calls monitored?

(questions above from Tools, who is sat here but not logged in x)

[Galahad]

Re: Recorded conversation used against me

Can a private conversation be recorded without my knowledge and then used as evidence for gross misconduct?

In a word.... NO.

The only way anyone can make a recording of anything you say and actually use it, is to warn you beforehand that thats what they intend to do.

This applies to the Police and anyone else, so if someone has made a recording of your private conversation without warning or without you being aware and then used that as 'evidence' against you, its inadmissable and the person responsible for doing it, and the people using it as evidence are on shaky ground.

The Police have to get special permission to record conversations without specific members of the public knowing, civvy street doesn't get to flagrantly ignore the same rules, i.e. Chief Constables and/or the Home Secretary!!

[charitynjw]

Re: Recorded conversation used against me

Regulation of Investigatory Powers Act 2000

http://www.legislation.gov.uk/ukpga/2000/23/section/32

Authorisation of intrusive surveillance.

(1)

Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.

(2)

Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes—

(a)

that the authorisation is necessary on grounds falling within subsection (3); and

(b)

that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)

Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)

in the interests of national security;

(b)

for the purpose of preventing or detecting serious crime; or

(c)

in the interests of the economic well-being of the United Kingdom.

[F1(3A)

In the case of an authorisation granted by the chairman of the OFT, the authorisation is necessary on grounds falling within subsection (3) only if it is necessary for the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002 (cartel offence).]

(4)

The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.

(5)

The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that—

(a)

consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;

(b)

is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and

(c)

is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

(6)

For the purposes of this section the senior authorising officers are—

(a)

the chief constable of every police force maintained under section 2 of the M1Police Act 1996 (police forces in England and Wales outside London);

(b)

the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis;

(c)

the Commissioner of Police for the City of London;

(d)

the chief constable of every police force maintained under or by virtue of section 1 of the M2Police (Scotland) Act 1967 (police forces for areas in Scotland);

(e)

the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary;

(f)

the Chief Constable of the Ministry of Defence Police;

(g)

the Provost Marshal of the [F2Royal Navy Police]F2 ;

(h)

the Provost Marshal of the Royal Military Police;

(i)

the Provost Marshal of the Royal Air Force Police;

(j)

the Chief Constable of the British Transport Police;

[F3(k)

the Director General of the Serious Organised Crime Agency and any member of the staff of that Agency who is designated for the purposes of this paragraph by that Director General;]

[F4(m)

an officer of Revenue and Customs who is a senior official and who is designated for the purposes of this paragraph by the Commissioners for Her Majesty's Revenue and Customs;]

F4(n)

the chairman of the OFT.

[Derek B]

Re: Recorded conversation used against me

Hi Derek, just to clarify, what kind of recording was made, i.e what format and what reason have they given for recording you in the first place, were you under suspicion of something? Also, for example, if it was a telephone conversation, are ALL employees calls monitored?

(questions above from Tools, who is sat here but not logged in x)

Thank you all for your replies.
The recording is alleged to have been made on a mobile phone (assume to be just using the record feature on a iphone for example) by a one of the three people taking part in the conversation.
Unbeknown to anyone.
The recording then passed a fourth person.
This person sent a letter of complaint to my employer together with a DVD containing the recorded conversation.
I was not under suspicion of anything.

[charitynjw]

Re: Recorded conversation used against me

In response to a request, I was asked to post the following info:-

Covert recordings of meetings (face-to-face)
Can businesses, employees or individuals make covert recordings of face-to-face
meetings?
A business may covertly record face-to-face meetings. Part II of RIPA regulates covert "surveillance" but only
where carried out by public bodies (such as public authorities and the police). There is no legislation that
prohibits recording a face-to-face meeting by a business that is a non-public body. However, issues are likely
to arise when the business wishes to use the covert recording as evidence in court as there may be an
argument that such covertly obtained evidence is inadmissible.
Employees that covertly record meetings and, in particular, disciplinary hearings, will only be able to admit as
evidence recordings of parts of the hearing where the employee was present. If the recording covers part of a
disciplinary hearing where the employee is not present (for example, where a disciplinary panel has requested
some time to deliberate) then that part of the recording is not admissible (Chairman and Governors of
Amwell View School v Dogherty UKEAT/0243/06).
An individual may record a face-to-face meeting (in circumstances where there is strictly no employment
relationship, for example, a conversation between a student and their tutor) but it is likely to be difficult to use
the recording as the other party may argue that disclosure of the recording is a breach of their privacy

Privacy and Human Rights Act 1998 or a breach of confidentiality or a breach
of the Data Protection Act.
Section 36 of the DPA exempts personal data processed by an individual for
"domestic purposes", that is, for purposes relating to personal, family or household affairs (including
recreational purposes). A recording by an individual that fell within the section 36 exemption would therefore
not be subject to the data protection principles in the DPA but could still be subject to confidentiality
obligations. The section 36 exemption is not a total exemption as it does not apply to the ICO's enforcement
powers, as the ICO is still able to investigate to see if the processing is purely domestic. Importantly, the
section 36 exemption is based on the purposes for which the personal data is being processed, not the nature
of the data itself, and the benefit of the section 36 exemption can only be claimed by an individual or group of
individuals. If an individual discloses a recording (that falls within the section 36 exemption) to a third party
business, the organisation cannot benefit from the section 36 exemption and the business must comply with
the DPA as if it were a data controller.


Privacy and the Human Rights Act 1998
In Amwell, it was alleged that the clandestine recording of the meeting between the employee and the
disciplinary panel breached the governors' right to privacy set out in Article 8 of the HRA. On the facts, it was
held that Article 8 did not apply as the governors of the school (who were recorded) were held to have waived
their right to privacy as they were acting in a public, rather than a private, role.

[Inca]

Re: Recorded conversation used against me

In the words of The Duke of Wellington...Publish and be damned........lol

[Bill-K]

Re: Recorded conversation used against me

Blimey - I never knew my great uncle Arthur Wellesley said that - I thought it was Rupert Murdoch !!!

[charitynjw]

Re: Recorded conversation used against me



As long as it's not a quote from Tigranes!

[enquirer]

Re: Recorded conversation used against me

There is discretion to admit practically any evidence, even if obtained illegally. The principle that 'the fruit of a poisonous tree may not be eaten' relates to American law.

[Bill-K]

Re: Recorded conversation used against me

Just to let you know, I have PM'd our resident expert on these matters, but he appears to be indisposed. I'm sure he will be pleased to comment shortly.

[Amethyst]

Re: Recorded conversation used against me

Was the call (conference call) a work thing or purely personal ? What is the gross misconduct you are accused of ?

[Derek B]

Re: Recorded conversation used against me

Was the call (conference call) a work thing or purely personal ? What is the gross misconduct you are accused of ?

It was not a conference call, it was a face to face private conversation between myself and two other people.
One of the two other people recorded the conversation discreetly.
The gross misconduct is to have made derogatory comments about directors of the company.