The legality of covert recordings was seldom in the mind of Maltese legislators back in 1855, when procedural laws were consolidated into the Code of Organisation and Civil Procedure.

Thomas Edison would not patent the Cylinder Phonograph – the first ever mechanical recording device – for another 22 years, and even then, this machine would be too large to conceal at least for another 100 years.

Clandestine recordings of conversations between people was not a reality that the law had to deal with. At least, not at that moment in time.

Then came the mobile phone.

Audio recording became easier and people started recording.

Today, a few opt to use their recording apps on their phones for a private rendition of their favourite guilty pleasure song, worthy of an internet-viral X Factor audition.

Others hold recordings for more astute purposes; perhaps to prove or disprove an allegation in court. Some of these recordings are made covertly, without the other person knowing.

This leads to a pertinent question: are covert recordings admissible as evidence in a court of law?

The answer can be found in the decision delivered by the Small Claims Tribunal in the names of ‘Daniel Zammit v Rocco Bartoluccio’, on  February 3, 2020 (80/19 – adjudicator Dr Kevin Camilleri Xuereb). This decree followed a request made by the plaintiff to be allowed to exhibit recordings of conversations he had with the respondent.

The respondent objected to the request.

The tribunal’s decision was nothing but an impeccable compendium of each and every facet of the principle of admissibility within the law of evidence.

The tribunal stated that our law requires all evidence to be relevant to the matter at hand. Moreover, parties are required to produce the best evidence that the party may be able to bring forward. Any declaration made by a party against his interest, or any other writing containing any admission, agreement or obligation is admissible as evidence. Any writing, whether printed or not, and any inscription, seal, banner, instrument or tool of any art or trade, tally or score, map, sign or mark, which may furnish information, explanation or  ground of inference in respect of the facts of the suit, are admissible as evidence.

It can thus be safely stated that the law’s primary concern is its relevance and not its fons et origo (its origin). The search for truth is paramount and one must not lose sight of this objective – in a way, the end does justify the means.

It is largely immaterial how evidence is obtained, so long as it leads to the truth

In the US, the approach is encapsulated under the legal metaphor of the ‘Fruit of the Forbidden Tree’, depicting a logic that if the source (the ‘tree’) of the evidence is tainted, then so is anything gained (the ‘fruit’) therefrom.

There is no such thing in Maltese law.

The principle under our law is that any piece of evidence that makes more or less probable a fact in issue, is admissible, unless there exists an exclusionary rule of evidence that renders the piece of evidence inadmissible.

The tribunal, drawing inspiration from English law (where our law of evidence is born), stated that the admissibility of evidence is not affected by the means used to obtain it. The use of illegal or unfair techniques to obtain evidence does not generally make otherwise relevant and admissible evidence inadmissible.

A forbidden tree will nevertheless produce untainted (that is, permissible) fruit. As early English judges used to state: “It matters not how you get it; if you steal it even, it would be admissible in evidence.” It is largely immaterial how evidence is obtained, so long as it leads to the truth.

This legal understanding is clear, and also borrowed by our courts.

Evidence unlawfully, improperly or unfairly obtained is nonetheless admissible as a matter of law, as long as it is relevant to the matters in issue. If it is, the court is not concerned with how the evidence was obtained.

While this proposition may at first look preposterous, it is necessary for the path towards truth.

The tribunal quoted a past judgment which had point blankly stated that a person has the right to record a conversation with someone else, even without the other person’s consent. The recording is admissible as evidence, for it may serve as a means how that proponent corroborates his or her version of events.

Certainly, recordings must be approached with some caution, as there is always a risk that a recording is manipulated in order to draw the party who is unaware of the recording to state something which could easily be taken out of context. Nevertheless, one cannot deny the value of what is proven through recordings.

The tribunal examined the General Data Protection Regulation (EU Regulation 2016/679) and found that these rules had not created any exclusionary rules of evidence.

Furthermore, these regulations do not apply to the processing of personal data by a natural person in the course of a purely personal or household activity. Be it as it may, even if the recording had indeed been in breach of data protection regulations, it would have still been admissible as evidence, for the long-standing principle is that illegally obtained evidence can still be proposed in a court of law.

Furthermore, article 6 of the European Convention on Human Rights (basically, the right to fair hearing) does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.

The tribunal hence stated that the preservation of a telephone conversation may serve as a memorisation of a historical fact producible as evidence, if it satisfies the requirement of relevance. While graciously reprimanding respondent for quote-mining what was stated in past judgments, it elected to allow the production of the recordings as evidence.

The case continues.

Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.