Is evidence still evidence if it is obtained illegally?

[Anonymouse2019]

For context, I had a routine procedure in an NHS hospital which went disastrously wrong and I needed resuscitation and a week in ICU. The lasting effects have been serious and varied (meaning it has affected my life very negatively in lots of different ways).

On the day of the procedure, I was seriously ill after it and my husband was with me. We both distrusted the doctor so my husband recorded audio (not video) of them talking about my state of health. At this point I was dangerously unwell and I didn't know he was recording.

Fast-forward to now, we've got a solicitor involved for clinical negligence and progress is being made.

Obviously recording (audio and/or video) a clinician without consent is not allowed. It's illegal.

I can't give specific details but I've only very recently found out about this recording. My husband had forgotten about it in the chaos of that day and found it by chance on his phone. He recorded the conversation BECAUSE he mistrusted the doctor and the things they said on the recording are absolutely damning and back up our story with indisputable evidence in terms of negligence.

Do we tell the solicitor we have it or could that land us in more trouble?

It probably can't be used in court as it is evidence obtained illegally.

Could be we counter-sued or could our solicitor drop the case if they knew?

I honestly don't know what to do, so any advice from those in the know would be hugely appreciated.

When you watch documentaries on television when they are investigating people, they regularly film them without either their knowledge or their consent. So I don't think it can be illegal?

It might not be admissable in court, I don't know. But I don't think it's illegal

Why do you think it's illegal?

IANAL but my understanding is, it's not illegal to record anyone, for personal use; but that recording can't then be used as evidence.

If it is in fact illegal, then obviously you shouldn't tell your solicitor. A hypothetical "if DH had secretly recorded..." maybe.

However it may not help your case either way, if it's not admissible as evidence.

It's not illegal. You're allowed to record for personal use, and can easily argue that due to the high stress situation your DH wanted to be able to recall what was said accurately.

Whether it's admissible is an entirely different matter and down to the individual judge. You may not even need the recording - just relay what was said in your particulars of claim, sign the statement of truth, and then cross that bridge when you come to it only if they deny it...

It’s not illegal per se to record someone.

people frequently record conversations with clinicians so they can replay when they are less stressed (imagine getting a cancer diagnosis : the conversation is recorded and played back to spouse who wasn’t there for example)

you’re not going to be counter-sued

your solicitor won’t drop the case

it may not be admissible in court but presumably your solicitor is looking for a mediated settlement rather than a court case

(I’m a solicitor but this is absolutely not my area and it’s been 20+ years since I read a case on surreptitious recording and evidence!!)

I assume you are looking for a settlement too (and it's what I would advise probably). In which case, it's fine. I sued a doctor for various issues and part of the evidence that my lawyer presented her team with were copies of WhatsApp messages that I had been provided by a third party (who had obtained them in a legal manner but who, probably, shouldn't have shared them with me).

It can be admissible, even if only as hearsay evidence. It is for the judge to decide whether to admit it and what weight it should be given. It will be for your solicitor to decide whether it is disclosable and if you're on a CFA it might even be part of your agreement with the solicitor to share it with them.

Id bet if you had your solicitor play the recordings to the NHS legal team you'll soon find they make you an offer to settle without going to court

Thank you so much for the replies. I didn't realise it's probably not illegal, I assumed, but I did wonder how 'undercover reporters' filming for TV programmes 'got away' with it!

Based on your replies we have decided we ought to tell iur solicitor about the evidence and let them decide what, if anything, we should do with/about it. They obviously need to listen to that recording but in any case, us being honest and transparent from the offset will allow them to make decisions and advise us better.

Thank you again (and we both laughed at @notbeenagreatday 's reply - not sure if you intended it to be funny, but it was!)

People do record conversations with medical people but likely have permission.

I think what your saying is you didn't have consent to record.

I would run it past solicitor.

Could you provide your solicitor with an accurate transcript of the recorded conversation? Your DH has an amazing memory of what was said and wrote it down afterwards

Just be honest with your solicitor about the recording. Don’t pretend that your husband has an amazing memory. Let your solicitor advise you about the admissibility and whether the recording helps your case or not. But I wouldn’t get too excited about the idea that it is damning evidence or that it will 100% mean you win your case - cases are very rarely that straightforward. Yours might be that rare exception, but try not to get your hopes up until your solicitor advises you.