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 [2021] 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.”