A reminder of contempt laws in age of Covid court hearings
09/02/2021
The BBC was recently fined £28,000 for contempt of court, and although the facts behind the fine are unusual, it serves as a timely reminder that contempt is still a concept that cannot be ignored.
Since March last year when the first national lockdown was imposed in response to Covid-19, there have been significant changes in how all types of court and tribunal hearings have operated.
The changes have resulted in large backlogs in the court system, both civil and criminal, due to fewer hearings being possible with the restrictions in place. However the court system is still operating, even though the wheels of justice are turning at a more sluggish pace than usual.
One of the main changes has been that in most cases only the key people are now present in the courtroom, with everyone else – including journalists in most cases – attending remotely via Zoom or Teams.
In this Covid-era we have all become very used to working from home, attending meetings remotely, and when the circumstances allow, recording meetings and discussions for future reference (with consent, of course).
But it is crucially important to remember that contempt of court rules apply to remote hearings in the same way that they would if you were sitting in the courtroom – and therefore, it remains unlawful to record or publish video and audio recordings of proceedings, as per the Criminal Justice Act 1925 and the Contempt of Court Act 1981.
If anyone needed a reminder of this, the BBC has just been fined £28,000 for recording and publishing a clip of proceedings in one of its evening news programmes.
The Corporation was covering, remotely, Judicial Review proceedings taking place at the Royal Courts of Justice. At the beginning of the hearing, the following warning was given:
“It is a contempt of court, a criminal offence, for anyone else to make a recording of any part of these proceedings… although we are conducting the hearing remotely, it is a formal court process and everyone should behave as they would if they were physically in court.”
A technical team at the BBC recorded the hearing for the journalists, and a six second clip was used in both the 6.30pm and 10.30pm South East Today news broadcasts. For good measure, it was also made available on iPlayer until the following morning. The clip was seen by around 500,000 viewers.
No BBC journalists heard the warning which was given at the beginning of the proceedings due to a technical glitch, but still, the law expects professional journalists to be aware of the laws of contempt of court.
The BBC apologised unreservedly for the error, sent an email to 3,000 journalists reminding them of the ban on recording proceedings, and South East Today staff were given training the following week.
The Judges who heard the contempt proceedings appreciated the BBC’s response, but they noted that they could not treat the BBC too leniently as it would “send out the wrong message to those with a more cavalier attitude towards restrictions on reporting, recording and broadcasting court proceedings”.
Mr Justice Warby described those involved with the production as having “collective brain freeze”, and the Judges said it “beggars belief” that none of those involved questioned whether it was lawful to instruct the technicians to record the proceedings.
The Judges went on to say: “None of them would have dreamed of making a video or audio recording inside the courtroom. It should have been obvious to them that the fact that it was possible to view the proceedings remotely made no difference.”
A representative for the BBC told the court that the recording and publication was “a genuine but serious and regrettable mistake made in reporting proceedings to provide some visual element to that report”.
A spokesperson also 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.”
It was suggested by the Judges that the organisation should have circulated a memo to all staff when the Covid restrictions were first put in place, to make it clear that the usual contempt of court restrictions still applied to remote hearings.
So what lessons can journalists learn from this collective brain freeze?
To state the obvious, editors should remind journalists of the law, and insist that nothing similar must happen to them. It might also be worth mentioning the consequences of this kind of mistake – financially, reputationally, and potentially for the administration of justice – if the rules are not followed.
Of course, official filming is allowed in some Supreme Court proceedings, and there has been a discussion over a number of years about allowing cameras into the criminal courts in specific circumstances.
However, this case is a reminder that although a lot has changed in the court system as a result of Covid, the contempt of court rules have not.
If there is a next time, the courts might not be so understanding!