Ever since the arrest of Ivor Bell, I’ve been reading and hearing folks who had previously argued that no criminal prosecutions would ever come of the Belfast Project subpoenas saying that the tapes can’t or won’t aid the UK authorities in the criminal prosecution.
Here is a recent example from Ed Moloney, who makes two basic points: (1) The PSNI hasn’t conclusively proved that the relevant tape, which contains the interview of a person identified as “Z”, is a tape of Bell; and (2) the tape is hearsay, and Bell or “Z” was speaking without receiving cautions from the police (an “interview under caution” is, roughly, the UK equivalent of police questioning of a person under arrest with Miranda warnings in the US).
Warning: I’m not a UK lawyer, and so I’m operating on the assumption, which I think is true in broad strokes, that the law of evidence in our two countries is roughly similar. You have been warned.
Let’s look first at the problem of identifying Bell as “Z”. Let’s assume that even if Bell is “Z”, neither Bell nor his interviewer (perhaps Anthony McIntyre, though I’m not sure) will ever admit it. Is that the end of the story? No. The issue is one of authentication, and a voice can be identified in many ways. One way would be through an admission of a person with personal knowledge of the circumstances of a recording. But under US law, “An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker” is sufficient to authenticate a voice recording. FRE 901(b)(5). No doubt there are other, more technical, ways of authenticating a voice recording. So the fact that there is no admission by Bell or his interlocutor will hardly stop the UK authorities from trying to prove by other methods that the recording is what they say it is, and it may be they will succeed.
What about the supposed problem of hearsay? Hearsay, generally, is a statement made out of court that is offered in evidence to prove the truth of what it asserts. Before the Bell arrest, when I was contemplating the use of the tapes in a criminal trial in the UK, my assumption was that a person who was interviewed would implicate someone else in a crime, which would present the hearsay problem pretty starkly. So, for example, if “Z” said, “I saw Gerry Adams do it!” then the tapes themselves would be hearsay if offered to prove that Gerry Adams did it. Of course, Z could testify at trial that he saw Gerry Adams do it without any hearsay problem.
But it turns out that the issue probably isn’t that complicated. Assuming, as I do (provisionally), that “Z” is Ivor Bell, anything Bell said on the tape can be used as evidence against him. In US federal law, we would say that an admission of a party opponent is defined not to be hearsay (FRE 801(d)(2)). In any case, as anyone who has seen enough crime dramas on TV knows, “anything you say can be used against you in a court of law.” Again, I am assuming that UK law is similar to our law here.
What about the fact that Bell was not cautioned before his interview? In the US, there would be no issue, because you are only entitled to receive a Miranda warning if you are under arrest, and here, Bell was not only not under arrest, he was not even speaking to the police! I understand that the notion of interviews under caution similarly applies to questioning by police, not to an interview with a private researcher.
So in short, it seems to me that if you are going to confess facts to a private person that may constitute a crime, and if your conversation is being taped, you probably aren’t going to be able to rely on the hearsay rule, or the fact that you weren’t warned before you made the confession, to save you. You may be able to avoid trouble if the prosecution can’t prove, one way or another, that it’s your voice on the tape. But if a jury believes that it is your voice, you’re probably in a bit of trouble.