22 February 2021
Not reviewed after the date of publication
I am looking at progressing an investigation into a nominal involved in the supply of Class A drugs.
Essentially, a member of the public has recorded their neighbour in various meets. They have also set up a recording device in a communal loft of the block of flats, where the subject can be heard in his own flat discussing the sale of drugs.
We fear that all the material recorded is illegal and cannot be used. I am unable to find any case law or legislation that could assist me as to whether this material can be used.
Where a recording of conversation is made in a public place this is not an offence. However, although not prohibited, care must be taken with regards to Data Protection laws. The evidence contained within such recordings may be used by the police for the purpose of criminal proceedings. An example of this would be a person recording criminal behaviour on their mobile phone whilst in public.
Conversations which take place on private property however, would be subject to privacy laws if taken by a member of the public. For the police to conduct such a recording they would need authorisation under the Regulation of Investigatory Powers Act 2000. Audio evidence obtained from a member of the public in these circumstances, may be inadmissible, as it has not been legally obtained but if the police did not initiate any such surveillance but accepted it from a member of the public, it would be for a court to decide whether the evidence should be dismissed as unfair under section 78 of PACE 1984. Please note that the subject of the recordings may also have cause for complaint with regards to breach of privacy or the criminal offence of harassment.
In the case of R v Rosenberg 2006 the prosecution sought to rely on CCTV evidence from a private camera located on B's property which was trained to record the adjacent property belonging to R. When B told police of the existence of the camera footage, the police warned them that this was a violation of R's privacy but did take the video tapes when they were offered. At R's trial for possessing a Class A drug with intent to supply, prosecution sought to rely on the evidence in the tapes showing R apparently engaged in unwrapping packets of drugs, handing objects to others and being shown how to use a 'crack bottle'.
The defence sought to have the video evidence excluded arguing that the surveillance had been directed by the police and this was in breach of the RIPA 2000 and their failure to inform R that her property was being watched. The trial judge ruled that the police had not breached RIPA and also refused to exclude the evidence under section 78 PACE following an argument by the defence that the police had encouraged B to film R and the lack of authorisation had meant that the police had circumvented RIPA.
On appeal by the defence, the appeal court held that where video surveillance carried out by the neighbour of the defendant was known to the police but had neither been encouraged nor initiated by them, the evidence did not amount to a breach of the Regulation of Investigatory Powers Act 2000 because it could not be regarded for the purposes of the 2000 Act as police surveillance. The degree of police involvement could be a consideration under section 78 of PACE 1984. There could be no breach of section 26 of RIPA because the surveillance was not 'covert' as required in section 26 the camera was brazen and therefore it cannot be said that the surveillance was carried out in such a way that R would have been unaware that it was occurring. Even if there had been a breach of Article 8 the police could have relied upon the proviso in that Article that it was necessary for the 'prevention of crime'.
One key thing to note in the above case is the camera was 'brazen' and R had even admitted to police that she knew of the existence of the camera. In the circumstances you have described, the recordings obtained from within the person's flat are truly 'covert'. In our opinion, these would likely be declared inadmissible under section 78 PACE, but ultimately this would be for a court to decide upon. However their existence may constitute intelligence for the purpose of requesting an intrusive surveillance authorisation under RIPA.
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