Before the jury at Lord Archer’s criminal trial was sworn in and before much of the media had assembled, the trial judge, Mr Justice Potts, heard lengthy argument over whether secretly recorded telephone conversations between Archer and his co-defendant, Ted Francis, should be put before the jury.
One argument raised by Archer was that the recordings were unlawful under the Regulation of Investigatory Powers Act 2000 (RIPA). Under RIPA, it is a criminal offence to monitor or record telephone conversations by intercepting them in the course of their transmission on public telephone systems (and in limited circumstances, on private telephone systems such as domestic, office or hotel systems).
Monitoring or recording telephone conversations by the interception of a private system is also actionable in a civil context as a tort.
In Archer’s case, the court was asked to consider whether the recordings had been made by intercepting the communications between Francis and Archer during their transmission.
The court heard that the recordings were made on a micro-cassette recorder using a microphone placed in Ted Francis’s ear. This picked up the sound emanating from the telephone earpiece as well as Francis’s voice. Francis’s voice was therefore recorded before transmission and Archer’s after it had been transmitted.
Mr Justice Potts found that, in these circumstances, there had been no interception of a communication during its transmission and, therefore, the requirements of RIPA did not apply. Different telephone systems and recording devices may give rise to different considerations. However, Mr Justice Potts’ ruling does give valuable reassurance to journalists that, provided only audible sound waves, and not the electrical signals being transmitted, are used as the source, the recording of a telephone conversation should not be illegal or otherwise actionable under RIPA.
However, difficulties regarding the infringement of privacy are likely still to arise and so journalists must nonetheless proceed with caution when secretly recording conversations, even if they are a party to them. In particular, close attention should be paid to the privacy requirements of any regulatory code, such as the Press Complaints Commission’s Code of Practice.
David Attfield is an assistant solicitor in the media group of Lovells