The BBC has been 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.
The inclusion of the brief footage – which was used as background to a report of a planning dispute over fracking operations at Horse Hill in 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”, two High Court judges said in a decision R (On the Application Of Finch) v Surrey County Council  EWHC 170 (QB).
Section 41 of the Criminal Justice Act 1925 makes it a criminal offence to take and broadcast pictures – including film and video footage – of proceedings in court, while section 9 of the Contempt of Court Act 1981 bans the making or publishing of unauthorised audio recordings of hearings.
Further provisions, inserted into the Courts Act 2003 by the Coronavirus Act 2020, make clear 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 case arose over coverage of a remote High Court hearing on 17 November 2020 concerning judicial review proceedings against Surrey County Council over its decision to grant planning permission for fracking operations at Horse Hill, near Horley, Surrey.
BBC South East Today, which is based in Tunbridge Wells, planned to cover the case, a process which involved a senior journalist as reporter, a producer, an assistant news editor, and the programme’s editor.
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.
“Both the reporter and the news editor frankly accept that they knew that there was a prohibition on recording and broadcasting court hearings, both physical and remote, and that if anyone had raised a query about the legality of what they were proposing to do, the penny might have dropped,” said Lady Justice Andrews and Mr Justice Warby in their judgment.
“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 (judicial review) proceedings, let alone broadcasting it, simply did not occur to either of them.”
The BBC’s first contempt was when technical staff at the Hub 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 second came later that same day when the reporter was sent, at her request, a minute’s footage of the proceedings.
“Towards the end of the editing process, the reporter briefly looked at the footage and decided to include around six seconds from it as an ‘establishing shot’,” the judges said.
“She had in mind the remote equivalent of a shot from outside the court building to provide a visual illustration of the proceedings to which she was referring in the narrative. She was conscious that the proceedings were court proceedings, and even specifically considered whether anything said in her report could prejudice the proceedings, but still it did not dawn on her that the use of the pictures was prohibited or might amount to a contempt of court.
“Her primary focus was upon the words being used in the report, and trying to ensure that it was appropriately balanced. The image that she used was one of a conventional remote meeting with the Judge, solicitors, counsel and other participants shown in boxes in a gallery on the screen.”
But, said the court, at no stage did anyone involved in the process refer, or considering referring, the story to the BBC’s Programme Legal Advice department, of consult the duty lawyer.
The court said: “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.”
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.
A BBC spokesperson said: “We have apologised unreservedly for the mistakes that led to these online court proceedings being recorded and broadcast and have taken extensive action to prevent them from happening again.
“All our editors were reminded immediately after the errors were made of the restrictions around court proceedings and that they of course also apply to cases being heard online. We have also run training courses for the team involved and further training is planned.”
I’m a commercial litigation solicitor and we regularly have trials in the Commercial Court. We’re expected to take detailed verbatim note of much of the information, as we need it the same day and can’t wait several days for transcribers. In that context:
1. There is no practical difference difference between (a) making detailed contemporaneous notes; and (b) recording the hearing and then transcribing immediately afterwards.
2. Anyone can record remote proceedings. While only the court clerk should be able to record using Teams/Zoom’s integral recording facility, it is *always* possible to record what’s happening on one’s own computer, either using (a) third-party software (Google “FlashBack”); or (b) just one’s iPhone pointing at one’s laptop screen.
3. HMCTS cannot be trusted not to lose recordings. We have had several cases in which Skype or Teams recording have disappeared for weeks or months, and sometimes lost forever. This isn’t a criticism of hard-working court staff, simply a statement fact. Rendering unlawful the entirely (technically) sensible concept of making back-up recordings is a dumb idea of truly Luddite proportions.
4. Court rules were made decades ago and have been thoughtlessly parroted in the Covid era. Recording is now effortless. Consequently, the law risks becoming a mockery. Recording is undetectable and therefore unenforceable: as a general public policy point it is sub-optimal to enact laws which can not be effectively enforced.
5. The court’s comments in the judgment above show an out-of-touch judiciary who, in this respect at least, are living in a bubble. The comment, “Any competent journalist should know, without having to stop to think about it, that court proceedings are in a different category […]” is plainly wrong. I know experienced litigation partners who did not realise that recording remote hearings is forbidden – journalists certainly could not be expected to realise.
There are compelling arguments for changing the rules. Recognising the different sort of people who the criminal and family courts deal with, perhaps there is an argument for retaining the ban there. For the Business and Property Courts though, and the wider High Court (as in the BBC case above), the current rules are however archaic. No one is harmed because Zoom images of a planning dispute hearing are broadcast. To argue otherwise requires the obtuseness of Judge James Pickles himself.