Human Rights and recording voices

[Linus]

It has been suggested to me that when someone , in the course of their business life i.e doing their job, is recorded covertly , it would be an abuse of their human rights for that recording to be played in court.


While I have no legal training I can not see any article of the HRA that could be breached and surely if it showed that that person may have applied the law incorrectly it would be a breach of the person who recorded its HR not to hear it.

Does anyone have an opinion and/or case law

[R0b]

Re: Human Rights and recording voices

As an employer, it would be difficult for them to lawfully record you. There is a potential for it to be a breach of Article 8 of HRA, but also the Data Protection Act, RIPA 2000. There is ICO guidance which says that employers should not be recording unless there are exception circumstances and secret recordings for disciplinary would fall outside this ambit ->https://ico.org.uk/for-organisations...on/employment/

The Employer would need to explain that it was necessary to record you, this could be for suspicion of a crime, or something that is relevant to the business. Reasonable effort should also be made to inform you that the recording has taken place.

[JulieM]

Re: Human Rights and recording voices

Rob
I found this post while looking on another forum which may well be the same


http://unemploymentmovement.com/foru...your-home.html

It seems Linus recorded a DWP representative in their own home. Linus now wants to use the recording in court but the DWP are saying it is an abuse of the representatives HR.
Article 8 us about private life not work life isn't it. Surely it is in the interest of Linus for the court to hear the recording as it will either confirm what Linus has said or not. Of course maybe it will only confirm the assessment of the DWP assessor.

[R0b]

Re: Human Rights and recording voices

Breach of HR will depend on the circumstances, and based on what you have said it may be argued by the DWP representative. If Linus wishes to use the recording, there is an argument which has been raised before that if the recording is used for domestic purposes i.e. data processed for personal or family affairs or household purposes, then it would be exempt under the Data Protection Act (s.36).

The argument in favour of Linus is that the covert recording in their home for the purpose of producing it in court will fall within this exemption because it relates to an individual's personal affair. Linus will still need permission to adduce the recording but I think the court will apply the usual rules of whether or not it is relevant to the case in question, if it is then it is likely it will be admissible. Employment tribunals have accepted secret recordings as evidence provided it is admissible and relevant.

One needs to be aware of the Regulation of Investigatory Powers Act 2000 which prohibits secret recordings in certain circumstances, however as I read it, this applies to organisations and public bodies, there is no reference to private individuals.

The DWP representative's argument that it breaches their HR could be a tough task, particularly that it the reason for the visit I am guessing relates to the private life of Linus and not the representative. So it is difficult to see how it breaches their Article 8 rights. If there were to be a breach of Article 8 then the question would be not the recording itself but what is done with the recording. If passed onto third parties then potentially an argument but for legal proceedings, its a bit of a washy argument I would say.

[Linus]

Re: Human Rights and recording voices

Thanks both of you
Yes that is my post from the other forum. In the letter from the DWP they have asked that the evidence be excluded because it breaches the Human Rights of the assessor but doesn't say in what way.

At the original hearing the Judge did ask me who had heard it and I said only me to which she was satisfied. The main point for recording it was to help me should it go to appeal which it did.

The DWP did know that I had recorded it as in my letter for reconsideration I transcribed some of the recording, only about 5 minutes of it so they knew about this in may but are now only trying to get it excluded.

[R0b]

Re: Human Rights and recording voices

They would have to provide some grounds for doing so, an employment case Chairman & Governors of Amwell View School v Mrs C Dogherty UKEAT/0243/06 came to the conclusion that secret recordings are admissible where the employee was present, if the employee wasn't present then it is inadmissible.Another case in the family court recently was Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 where the court admitted the secret recordings.

Both cases I believe, did not raise the argument about the secret recording being admissible, so could only have assumed that it was admissible. Secret recordings would come under personal data and as such to breach Art. 8 you would have to have passed that information onto a third party. If it stays with you then I can see no breach.

Either way, you could still rely on s.36 of the DPA and it falls under that exemption and use the arguments above in that it can't possibly breach their rights because the purpose of the visit was regarding yourself and not them.

[Linus]

Re: Human Rights and recording voices

Thank you so much Rob

I am intending on writing to the Tribunal reminding them that the DWP knew about the recording in a letter dated 17th Dec and again in my letter of appeal, in fact they were given a copy in the request for a MR

I believe it is a last ditch attempt by the DWP to cover up the training of their assessors

I am not sure that I will quote the cases as I am not sure in what terms i should put it unless I can find them and print off a page

Thanls very much for your help

[R0b]

Re: Human Rights and recording voices

Chairman & Governors of Amwell View School v Mrs C Dogherty: Link Here

Vaughan v London Borough of Lewisham 2013: Link here

The Vaughan case might be useful because in that case the secret recordings were rejected on the basis that the Claimant refused to have the audio transcribed and also contained 39 hours. So if you are willing to provide a transcript of the audio along with the recording, I can't see how it can be a breach of Art. 8 when especially the first case addressed this point specifically.

The relevant paragraphs in Chairman & Governors is 33 - 43 on the issue of human rights. Last paragraph (75) concludes that the audio recordings on the open hearings were admissible

[Linus]

Re: Human Rights and recording voices

Thanks Rob, I am in your debt

I have decided to write to the tribunal telling them that the DWP knew about the recording right from the time of the MR and I will reference the pages in the bundle where I tell them that there is a recording and also where i said a copy was enclosed.

I am not sure that i will argue the HR point at this stage but i will print off copies of the judgements and highlight the relevant passages. While I want to stand my ground i do not want to antagonise the judge by seeming like a smart alec.

the last judge ordered that there be a representative of the DWP at the next hearing , will just one copy of the judgement be enough do you think.


I think that if the judge allows the recording and I win it leaves an option for the dwp to appeal and also if they don't allow it and I lose it gives me the option to appeal on a point of law. As two points would be enough for me to win, the easiest option would be to give me the two points and not allow the recording as i would be happy with that even though I believe that there would be a chance of getting another 6 points.

I can not thank you enough Rob for providing those links

P.S.
I should have said, in my appeal letter I did offer to provide a full transcription but this hasn't been asked, the judge did ask me who had transcribed the few lines that i included and although antagonistic it seemed to take the wind out of her sails when i said I had - she couldn't tell me off for letting anyone else hear it

[Linus]

Re: Human Rights and recording voices

Sadly the Tribunal was postponed with 4 hours to go

I have printed off copies of the judgements to use if the DWP argued that they should be excluded but in discusion with my advisor we had decided not to push the point too much at this stage

I believe that if the Tribual refuse to accept them over my protest I would have a line of appeal to the upper tier.


My advisor is worried that i will react in a hostile way to ordinary questions so I told her to interupt and kick me if i started on that course.

Currently it is all academic as it has been postponed to a date yet to be fixed .

[SusanSmith]

Re: Human Rights and recording voices

Hey guys! I think we all must not only know but remember our rights in such a complicated society. Writing an appeal letter is a great opportunity will be considered like a as general guidance in relation to your rights and responsibilities, and it does constitute legal advice:

[charitynjw]

Re: Human Rights and recording voices

Lord Denning MR says that "nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight and not to admissibility."^[5]

Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37

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