As the use of technology has increased in everyday life, however when a person records a conversation or videos an incident, can this be utilised in Court proceedings?

The legislation that details under what circumstances a recording can be utilised is in the Surveillance Devices Act. Specifically, Section 7, which details a person must not knowingly install, use or maintain surveillance devices to observe the acts of a private party without the express or implied consent of each party.

There are however exceptions to this, there are obvious exceptions such as Police officers obtaining a warrant. The more difficult areas to determine relate to Section 7, subection 2(c) (ii) which outlines that there is an exception to recording a person, is  “reasonably necessary for the protection of any person’s lawful interests:”

There are a number of authorities that discuss when a person can utilise this exception, it is important to note that it is on a case by case basis, what is permitted for one person may not be successful for another.

An example of what the authorities consider is the following:

  1. If the recording is solely made “to try to garner information that might be of use to her at a future time, possibly in [family court proceedings].”
  2. If the recording is made to prove incidents of family violence, the Court will look at whether the recording is of the whole incident or selective in nature. The Court will ultimately look at the balance act of the fairness of the evidence being admitted against the prejudice to the other party.
  3. The Court will also look on whether the recordings were made when other options were available, an example being that there could have been a possibly to go to the Police and a warrant could have been obtained to allow the call.

Ultimately the Court determines the use of recordings on a case by case basis, looking at the situation objectively. It is an area of law that remains to specified.

If you have questions relating to this area of law speak to one of our experienced team today.

Written by Lauren Hitchen.

 

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