Covert Recordings in Regulatory Proceedings26/04/23
This insight examines the use and admissibility of covert recordings in regulatory proceedings.
General admissibility of covert recordings
There is no general rule that covert recordings of meetings are unlawful or inadmissible in court proceedings. However, covert surveillance and recording of communications is subject to a number of restrictions, both under statute and at common law.
In particular, the Regulation of Investigatory Powers Act 2000 (“RIPA”) governs the use of covert investigatory tools, which would include covert recording, by public bodies. Broadly, these require authorisation and the level of authorisation will depend on the type and purpose of the surveillance. However, only certain regulators, including the Food Standards Agency, the Charity Commission, the Care Quality Commission and the General Pharmaceutical Council have powers to seek authority under RIPA.
Further, the recording of private conversations is likely to infringe an individual’s right to a private life under ECHR Article 8. The Data Protection Act 2018 and the General Data Protection Regulation 2016 may also come into play if personal data is recorded. The circumstances in which the recordings were obtained, by whom they were obtained and the purpose for which they were obtained could, in some circumstances, also give rise to an abuse of process argument.
In practice, however, covert recordings are regularly admitted in criminal, civil and regulatory proceedings.
In criminal proceedings, the courts have power to exclude illegally obtained evidence under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) if, having regard to all the circumstances, the court considers the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. However, covert recordings have been admitted in evidence even when there has been a breach of Article 8, RIPA or PACE. The overall question is the fairness of the trial (Khan v UK (2011) 31 EHRR 45; R v Plunkett  EWCA Crim 261; R v Bond  EWCA Crim 1596). In Plunkett and Bond the police had covertly recorded conversations between co-accused after they were arrested and while they were in the police car. In Smurthwaite  1 All ER 898, the court admitted recordings made by an undercover police officer who had posed as a contract killer.
In civil proceedings, even when recording evidence is improperly obtained, it will not generally be excluded where it is relevant and admissible subject to the general discretion to exclude evidence under CPR r 32.1. In Jones v University of Warwick  EWCA Civ 151, an enquiry agent, instructed by the defendant insurers, had gained entry to the defendant’s home using deception and filmed her with a hidden camera to show that her injuries were less extensive than claimed. The evidence was admitted. The Court of Appeal indicated that it was not possible to reconcile perfectly the conflicting public interests of, on the one hand, ensuring that the truth should be revealed in litigation and, on the other, that the courts should not allow or encourage parties to use unlawful means to obtain evidence. However, it pointed out that the court could penalise the defendant insurers for their improper conduct and discourage others from similar behaviour by an order for costs.
In Mustard v Flower  EWHC 2623 (QB), the claimant covertly recorded examinations conducted by the defendant’s medical experts. One expert had refused permission to record. Others were recorded without being informed. The court rejected a submission that the recordings were a breach of the Data Protection Act or GDPR since these statutes did not apply to the processing of personal data “by a natural person in the course of a purely personal… activity”. The recording of a personal examination by a doctor fell into this category. The recordings were therefore not illegal and the court did not consider the claimant’s conduct to be so reprehensible that they should be excluded. Nor did they adversely affect the fairness of the proceedings.
Admissibility in Regulatory Proceedings
In the context of regulatory proceedings, the admissibility of covert recordings was considered by the Administrative court in CHRE v GMC and Saluja  EWHC 2784 (Admin). In that case an undercover journalist posing as a patient requested a fraudulent sickness certificate from a doctor which he agreed to provide. She recorded the conversation which was relied on by the GMC in proceedings against the doctor. The Fitness to Practise Panel, which heard the case, found that there had been a breach of Article 8 and that the journalist’s conduct amounted to entrapment. It therefore excluded the evidence in the recordings and stayed the proceedings against the doctor.
However, Mr Justice Goldring decided that there is a difference between the position when an agent of the state was seeking to rely on evidence obtained by its own misconduct and the circumstances in this case where a journalist pretended to be a patient. A stay was still possible when the entrapment was by a non-state agent if the conduct amounted to an abuse of process and a breach of Article 6. However, the conduct would have to be extremely serious and the situations in which a stay was appropriate would be rare. He also distinguished between criminal prosecutions and regulatory proceedings and suggested that different considerations would apply. The evidence was therefore admissible and the stay quashed.
Saluja was followed by the Divisional Court in Naqvi v SRA  EWHC 1394 (Admin), a case in which Capsticks acted for the SRA. Mr Naqvi, a solicitor, was struck off by the Solicitors Disciplinary Tribunal following a television documentary concerning sham marriages for immigration purposes. The documentary included audio and video recordings made by an undercover reporter posing as a client. The court decided that the conduct of the reporter did not amount to entrapment. Further, the recordings had not been obtained illegally, so there was no reason to consider the evidence was inadmissible.
The approach taken by the courts to the admissibility of covert recordings will depend on whether the recordings are obtained by the regulatory body itself or by a private individual. Saluja suggests that the courts are more likely to refuse to admit covert recordings obtained by or on the instructions of the regulatory body. Recordings obtained by private individuals, including journalists for their own purposes will tend to be admitted. The overall question will be the fairness of the proceedings.
How Capsticks can help
We have represented numerous regulators for more than 20 years. Our large team of specialists has a vast amount of experience in investigating and preparing cases for hearing, including those involving the use and admissibility of covert recordings.
For more information on any of the issues discussed in this insight, please contact Cameron Scott or any of your regular contacts at Capsticks.