Last week, it was reported in broadsheet newspapers that Sir James Munby, the most senior family court judge in England and Wales, suggested that “widespread distrust […] of the competence or even the integrity of the family justice system and of the professionals involved in it” is one of the reasons for a rise in the use covert recordings among those involved in family court proceedings.

The other reason suggested was the relatively low cost and increasing sophistication of modern covert recording equipment. Sir James identified covert recording as a "topic of growing significance" in family courts.

This issue is not limited to family law, as the use of covert recording by litigants also arises in civil litigation and criminal litigation.

Whilst, it is easy to understand the attraction for litigants to attempt to obtain evidence by covert recording, this may not be the silver bullet that litigants seek, as the evidence itself may not be admissible in proceedings.

Litigants should be aware that in some cases, obtaining evidence in this way may be unlawful. In financial remedy proceedings ancillary to a divorce, the court has the power to exclude unlawfully obtained evidence and will be guided by what is “necessary for disposing of the application for ancillary relief or for saving costs”. Depending on the circumstances, recordings could fall into this category.

Unlawful recordings could lead to the involvement of the Police, as in rare circumstances, the use of covert recordings may amount to the commission of a criminal offence. Whilst, there is no specific criminal offence that covers the use of covert recording devices, in rare circumstances, covert recording can amount to a course of conduct which would engage the offences of harassment or stalking.

In addition, the surreptitious or covert recording of conversations may also provide inferential evidence of controlling or coercive behaviour. On occasions, the use of recording equipment or tracker devices demonstrates possessive and obsessive tendencies - which are unattractive qualities for litigants to place before a court. Far from providing cogent evidence to support a case, in many instances, the surveillance of another party may damage a litigant’s case.

Beyond the potential criminal proceedings, the revelation that one party has been recording the other could result in a domino effect of additional litigation: civil injunctive proceedings to prevent the use of and dissemination of the recordings, Family Law Act proceedings seeking an order removing the recorder from the home and/or a non-molestation order, additional applications dealing with the admissibility of the recordings where the recorder seeks to rely upon then. The cost consequences can be huge and depending on the content of the recordings and the nature of the case could be in aide of recordings that won’t ultimately change the likely outcome of the case in the manner that the recorder hoped.

In the context of private children proceedings, covert recordings have often been viewed dimly, even where the recordings have been admitted as evidence. Judges have commented on recorders being “deliberatively provocative” and the action of recordings as an example of emotional abuse of children. One particular case saw the father sew a bug into the child’s clothing, recording periods the child spent at school and visits to the social worker. The judge commented that such behaviour was disturbing and damaging to the child. In such cases, not is there the risk of financial consequences by way of costs orders, but such behaviour is likely to be a factor in the judge’s mind when considering the outcome of the case and the exercise of their discretion. There have, of course, been cases where the covert recordings have proven or disproved allegations; such cases would fall squarely into Sir Munby’s concerns that the use of covert recordings demonstrates widespread distrust in the family justice system. Whether such recordings were necessary however is another point for debate.

Being recorded and surveyed is a significant infringement on a person’s liberty. There are safeguards in place to prohibit arbitrary surveillance by the state – but there is little, save for in the most extreme circumstances, to prevent surveillance by private individuals.

Given the increased use of recording equipment and tracking devices in litigation - and the current lack of regulation on this issue, perhaps this is an area of law which is ripe for reform?