This is a quirky little case. I should tell you at the outset that we don’t get a conclusion and all of the answers. Half of the answer, with perhaps another half to come at a later stage.
The question arose in care proceedings. One of the issues in the case was whether the mother had genuinely separated from the father, or whether they were simply pretending to have done so and carrying on the relationship in secret. This happens from time to time in care proceedings.
The Local Authority paid a private investigator to watch the father, and the private investigator produced evidence that the father was staying overnight at the mother’s home, for about a week. (However, the evidence did not show whether or not the mother was also there, allowing the parents to run a defence that the father had been staying at that property but that mother and the children had not been)
Two legal issues arose in the case.
1. Whether the LA had obtained the proper consents under the Regulation of Investigatory Powers Act (RIPA) to conduct covert surveillance of a person, whether this was a breach of article 8 of the Human Rights Act and thus whether damages should flow from it. (which is the really interesting bit of the case and which SPOILERS doesn’t get answered)
2. If there was a failure to obtain the proper RIPA consents, is the evidence inadmissible?
The latter is of interest, because it may impact on other scenarios where evidence is improperly obtained (and of course, we are thinking here of clandestine recordings whether audio or video, done without the knowledge of those being filmed)
We DO get an answer to that.
This is a decision of a circuit Judge, so it is not binding case law, but it is an interesting overview of the law (and I agree with the conclusions)
Re E and N (no2) 2017
2. In the course of the hearing before me the applicant local authority sought to rely on surveillance evidence which covered the period of 28 and 29 April 2017. The evidence showed that the father had stayed at the mother’s address in circumstances where the parents had maintained that they have been separated since November 2016. The local authority accepted that the evidence did not show that the mother was present during the aforementioned period. The local authority relied on this evidence as part of a wider canvas to prove an allegation that the parents have remained in a relationship despite their maintained assertion that they have separated.
3. Both parents agreed that due to the father’s difficult personal circumstances at that time, with the mother’s permission, he stayed at the mother’s address. The mother was staying at her own mother’s property and she was not present when the father stayed at her address.
4. At the conclusion of the hearing the parties made detailed submissions. This included submissions about the surveillance evidence and the local authority’s asserted overzealous approach to the parents in attempting to prove its case. The parents invited me to make a number of findings in this regard. I decided to give a separate judgment on these issues so as not to jeopardise an expeditious resolution to the last hearing before me.
5. The local authority in its written submissions dated 7 June 2017 and refined in its written replies to the parents’ submissions dated the same, invites me to;
a. Endorse the decision to conduct such surveillance as reasonable, or to make no findings in circumstances where the court has not received any evidence on this issue, or
b. Make no comment about it (given that it does not go to the central issue of the disputed findings), or
c. Find that it would be inappropriate to make any findings on the mother’s submissions that go to or are capable of going to the issues of alleged breaches of her Article 8 rights, or
d. Transfer the decision on this issue to a different tier of the judiciary, and
e. Confine my judgment to the issues arising out of the hearing.
6. The mother having taken the lead on these submissions and supported by the father, invites me to find that;
a. The actions of the local authority were misjudged and deeply unfortunate given the duty on the local authority to act in a fair way within litigation against individuals,
b. The authorisation for the surveillance (if any) and the surveillance itself were not fair, reasonable or proportionate,
c. The local authority has not complied with the terms of the Act (below),
d. The mother has been unlawfully subjected to surveillance;
e. This is an example of an over-zealous prosecution of the local authority’s case against her,
f. The directed surveillance is a breach of her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).
The father further submitted that there is no justifiable reason or purpose for the surveillance to have extended to following the father to the reception area at the contact centre and at the father’s solicitors’ offices.
The Judge looked at the safeguards about agencies of the State carrying out covert surveillance of members of the public, that are set out within RIPA – the surveillance needs to be properly authorised under s28, and the officer authorising it must be approved under s30 to do so. (Here, what seems to have happened is that a senior manager of Children’s Services authorised it, which is not RIPA compliant)
28 Authorisation of directed surveillance.
(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.
(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—
(a)that the authorisation is necessary on grounds falling within subsection (3); and
(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a)in the interests of national security;
(b)for the purpose of preventing or detecting crime or of preventing disorder;
(c)in the interests of the economic well-being of the United Kingdom;
(d)in the interests of public safety;
(e)for the purpose of protecting public health;…
(4)The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—
(a)consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
(b)is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation…
The real point of this is that the authorisation of covert surveillance is firstly not a rubber stamp, and secondly, the decision about whether or not to authorise is taken by a RIPA officer someone who is trained in the application of the Act and the principles within it and not have a stake in the outcome of the investigation – i.e to scrutinise whether cover surveillance is really appropriate and proportionate.
The Judge did not reach a conclusion on whether the LA had failed to comply with RIPA or whether the parents article 8 rights had been breached – they would have to issue a claim and have proper evidence about this issue before a Court could rule on it. However, from what is said, I don’t think that what the LA did complied with RIPA (That doesn’t mean that they DIDN’T – they may have got a RIPA authorisation and not put that before the Court – though that seems a strange decision if so…)
In addition to the surveillance report, the only direct evidence in this connection is a document entitled “REQUEST FOR AUTHORISATION TO COMMISSION A PRIVATE INVESTIGATOR”. This documents was signed on 26 April 2017 by the “Director of Children and Learning Skills”. It is far from clear if the signature is that of the person making the application or the person authorising the request. On the face of it, the form does not appear to be a form authorising surveillance. This illustrates the evidential difficulties in the relief that the parents are seeking. These are exacerbated by further fundamental difficulties which include the lack of any formal application and the consequential lack of any formal reply. Therefore, having regard to the guidance that I have detailed above and the evidential difficulties that I have identified, in my judgment it would be entirely inappropriate for me to make any findings in respect of the local authority’s conduct, decision making processes and any alleged breaches of the parents’ Article 8 rights. Similarly, in my judgment it would also be entirely inappropriate for me to endorse the local authority’s actions. If there is to be such an enquiry into these issues, it must be undertaken in accordance with the guidance that I have set out above and by way of a formal application following which the court will give the necessary directions. Inevitably this will include the filing and service of appropriate evidence.
Anyhow, that whole issue will have to wait for part 3, if there is to be a part 3.
What we are left with is whether evidence that may have been obtained improperly is capable of being admissible, or whether it should not even get before the Court if it was obtained improperly.
15. However it is clear that the surveillance evidence is relevant to the issues in the case. Goddard LJ in the Court of Appeal decision in Hollington v. F. Hewthorn and Company Limited, and Another  KB 587, at 593 and 594 explained the test in the following terms;
“Before dealing with the authorities, let us consider the question in the light of modern law relating to evidence … We say “modern law” because in former days, it is fair to say, the law paid more attention to competency of the witnesses that to the relevance of testimony …
It was not till the Evidence Act. 1843, that interested witnesses, other than the parties, their husbands and wives were rendered competent, and by the Evidence Act, 1851, the parties, and by the Evidence Act, 1853, their spouses, were at last enabled to give evidence …
But, nowadays, it is relevance and not competency that is the main consideration, and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”.
Furthermore, the test for deciding “relevance” was succinctly expressed in the House of Lords decision by Simon LJ Director of Public Prosecution v Kilbourne  1 All ER 440, at 460 J in the following terms;
“Your Lordships have been concerned with four concept in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant in the sense that I shall shortly submit). Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.”
16. Keeping the concepts of “relevance” and “admissibility” separate, I will first deal with the issue of relevance before turning to consider the issue of admissibility. The factual matters that the local authority sought to prove included an allegation that the parents remain in a relationship. Therefore on a cursory analysis of the facts that remained in issue and required the court’s determination, it is clear that the surveillance evidence was relevant to this allegation. Indeed no party has sought to submit that it was not.
17. As to the question of admissibility, I have made it clear earlier in this judgment I am not making any findings in respect of the local authority’s conduct or whether the surveillance is compliant with the provisions of the Act. However the questions of compliance and legality have a close connection to the question of admissibility. There is no automatic bar to admissibility of evidence that has been improperly or illegally obtained. In the context of family law, this was considered and illustrated in the Court of Appeal decision in Imerman v Tchenguiz and others  1 All ER 555where at paragraph 177 Lord Neuberger MR concluded that;
“Accordingly, we consider that, in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.”
A Local Authority v J  EWHC 1484 (Fam) is an example where surveillance evidence was admitted by the court, although Hogg J in this case was not asked to consider the provisions of the Act.
Furthermore, Re DH (A MINOR) (CHILD ABUSE)  1 FLR 679 whilst predating the Act and concerning an individual, Wall J admitted the covert recording of a child by the child’s father.
18. In these circumstances I have assessed the surveillance evidence to be relevant and admissible. Accordingly I have admitted the same as evidence in the case. I made the relevant findings in my first judgment after considering the surveillance evidence together with a number of other pieces of evidence and have considered it in the context of the totality of the evidence that was before me. However the issue of admissibility of evidence is entirely separate to the requirements of public authorities and public bodies to comply with statutory provisions that regulate their conduct and their duties to the public. In circumstances where a public authority or public body has acted in breach of statutory provisions and where any evidence that is adduced as a consequences of those actions is admitted by the court, this will not absolve the public authority or body from its duties under any relevant enactment
Evidence, if it is relevant, can still be admissible even if it was obtained unlawfully. I have wondered for a long time whether Re DH’s principle survived the HRA. As this is not precedent, and of course, a Circuit Judge can’t overrule the principle that Wall J set down in a superior Court, but it is an interesting debate that might be had at a later stage.
The Judge draws the interesting distinction that whilst the evidence itself might be admissible, that doesn’t stop a Court taking action about the improper or unlawful conduct – just because they got to use the evidence, doesn’t mean that they get away scot-free if they behaved badly in obtaining it.