The perils of virtual court hearings

BBC held in contempt following six second shot from a recording of a remote court hearing

25 March 2021

Author: Olivia O'Kane
Practice Area: Media and Defamation

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A hundred years ago, it was commonplace for photographs to be taken in the court room and published in the press. However, in the UK it became highly controversial and since 22 December 1925 it has been an offence for anyone to take photographs in court and/or to publish such photographs.

The reasoning behind this restriction is varied but it importantly protects any victims, the families of those involved, and avoids misuse of the footage (on social media etc.).

In R (Finch) v Surrey County Council [2021] the BBC was fined £28,000 for contempt of court after including a six-second shot taken from a recording of a ‘remote’ hearing in the High Court as background footage in a report on a planning dispute.

Background

In England and Wales, section 41 of the Criminal Justice Act 1925 (in Northern Ireland s.29 Criminal Justice (NI) Act 1945) makes it a criminal offence to take and broadcast pictures – including film and video footage – of proceedings in court. Section 41 creates a summary-only offence, punishable by a fine of up to £1,000; but serious breaches can amount to contempt of court at common law, exposing the wrongdoer to the more severe sanctions available in that jurisdiction, including committal to prison. Section 9 of the Contempt of Court Act 1981, which also applies in Northern Ireland, bans the making or publishing of unauthorised audio recordings of hearings.

The inclusion of the footage – which was used as background to a report of a 2-day judicial review of a controversial decision by Surrey County Council to grant planning permission to UK Oil and Gas to carry out “fracking” operations at a site at Horse Hill, Surrey – resulted from “a catalogue of serious errors by a number of people that should have been, but were not picked up by any of the internal systems and safeguards that were put in place to regulate what is broadcast”.

Further provisions, inserted into the Courts Act 2003 by the Coronavirus Act 2020, ensure that while court hearings can be held remotely, and be streamed specifically to allow the public to see and hear what is going on, it is nonetheless a criminal offence to make an unauthorised recording of transmission of the proceedings.

The reporter asked that technicians at a technical Hub should record the remote hearing as she would be unable to observe it as it took place because she would be at Horse Hill. The BBC recorded the hearing as it was being live-streamed via online meeting software – this was a breach of provisions in section 85B of the Courts Act 2003, the court said. The reporter was then sent, at her request, a minute’s footage of the proceedings.

Both the reporter and the news editor accepted that they knew that there was a prohibition on recording and broadcasting court hearings, both physical and remote. “However, against a background where most of their reports included online interviews and footage from virtual meetings, the fact that they should not have been recording the hearing of the JR proceedings, let alone broadcasting it, simply did not occur to either of them.”

Decision

There is no debate that the footage of the hearing was recorded, sent to the journalist, and then a six-second shot was included in the report which was broadcast to around 500,000 people. What was in debate was the level of the fine that should be levied against the BBC for such a breach, particularly due to their ‘confusion’ around virtual hearings being recorded.

In re Yaxley-Lennon [2018] EWCA Crim 1856 [2018] 1 WLR 5400 at [80], the Court of Appeal set out the factors which would be likely to be relevant to cases involving breach of reporting restrictions, namely:

  • The effect or potential consequences of the breach upon the trial or trials and those participating in them;
  • The scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;
  • The gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;
  • The contemnor's level of culpability and his or her reasons for acting in breach of the reporting restrictions;
  • Whether or not the contempt was aggravated by subsequent defiance or lack of remorse;
  • The scale of sentences in similar cases, albeit each case must turn on its own facts;
  • The antecedents, personal circumstances and characteristics of the contemnor; and
  • Whether a special deterrent was needed in the particular circumstances of the case.

It was decided that “the recording was a deliberate and pre-planned act, even though there was no intention on the part of those responsible to act unlawfully.” [71]

The Judge ordered the BBC to pay damages of £28,000. The contempt would have merited a fine of £40,000 - £45,000, but the figure was reduced by about a third because of the BBC’s swift acceptance of liability and apology.

Conclusion - A Warning to those in Zoom hearings

Notably, Warby J and Andrews LJ stated that “It is of very limited mitigation that all the journalists were operating in a world in which Zoom or similar remote platforms had become the new normality. Any competent journalist should know, without having to stop to think about it, that court proceedings are in a different category to proceedings in Parliament or other types of meetings which would have to be held remotely because of the pandemic, such as briefings by the police.” [75]

“It was an aggravating factor that the BBC is the principal news provider in this country and that this unfortunate sequence of acts in contempt of Court was a departure from the high standards that are rightly expected of it and which it sets for itself.” [80]

This is a stern reminder that it is not an excuse for journalists to argue that they were ignorant to the restrictions around recording court cases. What should be taken away from this case is that whether a hearing is on Zoom, Sightlink or in a courtroom, the laws around acceptable behaviour and recordings still apply.

Virtual Court is still Court.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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