Covert Telephone Recording

AN ANALYSIS OF THE LAW RELATING TO THE COVERT RECORDING OF TELEPHONE CONVERSATIONS BY A PARTY TO THE CONVERSATION by Mohamed E Dawoodji © 2009 The legality of covert recording of telephone conversations by a party to the conversation is covered by the Regulation of Investigatory Powers Act 2000, and the analysis hereto explains the legal position: 1. Regulation of Investigatory Powers Act 2000, section 1(1) provides: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of— (a) a public postal service; or (b) a public telecommunication system. “ 2. There are two relevant conditions for covert recording of telephone conversations to amount amount to the offence (actus reus): (a). The recoding must have involvement of a telecommunications system (this is required by the stipulation of “in the course of transmission” in section 1(1)), and (b). There must be an interception. 3. With regard to involvement of a “telecommunications system” in the recording of telephone conversations section 2(1) of Regulation of Investigatory Powers Act 2000 provides that a telecommunications system is: "Any system which exists for the purpose of facilitating the transmission of communications by any means, involving the use of electrical or electromagnetic energy" Thus where the recording is undertaken by equipment which is not physically connected into the telephone system then Regulation of Investigatory Powers Act 2000 does not apply at all by reason of section 2(1). Thus where a microphone such as the “Olympus TP-7 Telephone Pickup Microphone” is connected to a recording device to record a telephone conversation then Regulation of Investigatory Powers Act 2000 is of no application. This analysis is borne out to be true by the ruling of Mr. Justice Potts in the Lord Archer case with regard to the admissibility in evidence of the famous implicatory recording of Lord Archer by Ted Francis. Further support for this analysis is to be found in the Court of Appeal case of R v. E [2004] EWCA Crim 1243; followed in R v. Allsopp [2005] Crim 703. In R v. E, Huges J stated: "The recording of a person's voice, independently of the fact that at the time he is using a telephone, does not become an Evidence Gathering (1)

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interception simply because what he says does not only go into the recorder, but, by separate process, is transmitted by a telecommunications system." The Court of Appeal in R. v E then mentioned that their conclusion was consistent with its previous judgments and decisions of the House of Lords (see for example Attorney General’s Reference (No. of 5 of 2002) [2004] HRLR 37). As an incidental observation of this analysis of perhaps particular interest to police officers concerns the now famous telephone recording of the Attorney General by the then Commissioner of the Metropolitan Police (Sir Ian Blair) in September 2005. Clearly as Sir Ian Blair had been recording quite lawfully no prosecution followed. 4. With regard to the use of induction telephone coil pickup microphones to covertly record telephone conversations, it follows by the same reasoning that covert telephone recordings using these devices is also not unlawful. 5. Finally with regard to recording covertly recording telephone conversations using a telephone recording adapter, this does amount involvement of a telephone communications system and invokes Regulation of Investigatory Powers Act 200, however no offence at is committed nor is there any civil liability if the recording is made by or with consent one of the parties to the telephone conversation. Examples • •

A records his or her telephone conversation without informing B of this; or C records A's telephone conversation with B without informing B and with the consent of A;

In both examples there is no criminal or civil liability for anyone. This is because Regulation of Investigatory Powers Act 2000 does not seek to penalise recording but interception, and interception is defined by section 2 thus: (2) …a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he— (a) so modifies or interferes with the system, or its operation, (b)so monitors transmissions made by means of that system, or (c)

so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make some or all of the contents available, while being

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transmitted, to a person other than the sender or intended recipient of the communication. The operative condition here is the making available while being transmitted, to a person other than the sender or intended recipient of the communication. Therefore if the person directly making the covert recording is one of the parties to the telephone conversation then clearly as he or she is the sender or intended recipient and there is no interception as per section 2. The same reasoning follows for a third party making a covert recording at the direction or consent of the one of the parties to the telephone recording. Given the law is so clear cut on the issue it seems odd that there should any confusion or doubt on the issue. Perhaps the fact that those who promote the confusion by seeding doubts in clear law do have themselves an interest in preventing truthful evidence from emerging could explain things. -------- * --------

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