Covert Recording

Last night was the Annual Family Justice Council Debate - and this year the topic was covert recording. The motion was 'nothing to hide - what's wrong with covert recording?' Hannah Markham QC and I were allocated to the 'pro' side of the debate, and HHJ Lazarus and Debbie Singleton to the anti. In reality though we all shared similar views about the reasons behind covert recording (mistrust) and the need to both consider it before dismissing it, the need to manage it carefully to ensure it did not distract the court rather than help it, and the particular issues around recording children.

What emerged was a broad consensus that one way forward would be some form of routine recording of meetings with professionals - not as the primary record, but as a safeguard to check back to if there were a dispute about what was said or done or about the accuracy of a minute of a meeting or a report based upon an interview. Of course this hit the familiar brick wall of resources.

The debate was an opportunity for the FJC to tell the audience about the proposed guidance on this issue - that is a work in progress and no doubt this evening's contributions will feed into it (I am going to be on the working group looking at this in due course in my capacity as chair of The Transparency Project). But my initial thoughts on suggestions that the guidance might somehow deal with these issues of local authorities or cafcass routinely making recordings to obviate the need for parents to do so are that a) this is not really a matter in the first instance for the FJC which is focusing on court proceedings not social work, but is a matter for social work / CAFCASS leadership and that b) the restrictions on data controllers and the state in terms of surveillance probably mean that primary legislation would be needed to make any widespread scheme workable. Getting from the idea in principle to some rolled out scheme would, it seems to me, be a mammoth undertaking - and not one over which the FJC has jurisdiction.

I want to thank all the many people who replied to my call for feedback on why people record and what professionals think about it - I used many of your contributions (anonymously) in my slideshow - which is here



I think it encapsulates the breadth of reasons why people are driven to record, and the variety of responses that they receive. I think it demonstrates how the responses to parents wishing to record can affect the trajectory of a case.

There were some valuable contributions from the floor at the debate, although it was a shame there was not sufficient time to allow for interaction between the panel and audience. One point that was raised and on which I responded was one about the integrity of transcripts of hearings and judgments. That is something I intend to return to as it is a topic that has recently been raised by Louise Tickle, causing some degree of consternation, and where I think the debate would be enhanced by an actual understanding of the processes and law which may not be obvious or instinctively sensible to the outsider. I have a long blog post in my head, and am simply waiting for enough breathing space to get it out and onto a screen....


A couple of disembodied thoughts that I am left with that bubbled up during the debate but that I didn't have time to get off my chest yesterday :


  • as lawyers we advise our clients to keep a record of events - to make notes, diaries etc. People don't *do* paper diaries any more (well, not unless they are my 8 year old son). People document every aspect of their lives using their phones. We've all dealt with cases where it is said a diary is self serving, or edited or not really contemporaneous but manufactured later. And cases where the diary is compelling.┬áIn many respects audio and video recording is no different. We are I think just less confident about how we establish veracity in a digital document. But isn't a verifiable digital record far more objective than a diary written by one participant?
  • the increase in litigants in person as a result in the cuts to legal aid is relevant to this issue in a private law context. When the majority of litigants were represented, recordings they had made would be produced in conference with solicitor or counsel - and either the client would be advised that they were not relevant and the issue would not arise - or they would be produced and an application would be made for them to be relied upon as relevant material in good time. In some cases careful thought would need to be given to the guidance on disclosure of unhelpful material in children proceedings - whether before or after viewing. Many of us have dealt with cases where the client has enthusiastically persuaded us to listen to their devastating recording that is going to win the case, only to watch the blood drain from our faces as we realise we are going to have to have 'that talk' with our client about our duty to disclose the recording that will damage their case. That filtering of evidence is not happening now and I suspect recordings made of children or ex partners at handover are being produced increasingly late and chaotically - and only once a litigant has, in the absence of advice, built up a stash of what they genuinely believe to be helpful material.


Anyway, those are my slightly random thoughts about covert recording... I'll post a link to the transcript and podcast when it is made available by the FJC.

UPDATE 20 DEC 2018 : The Transcript is now up here (although I think the link to the podcast is not quite working yet).


Feature Pic courtesy of Jordans Family Law