The sight of a Texan lawyer having to deny he was a cat during a live court hearing last month was the source of much hilarity (and no doubt many a meme) across the world. For those in the legal sector however, that cat’s curiosity should act as a salutary reminder of the perils of virtual court hearings.
The Covid-19 pandemic has drastically changed the way we work over the past 12 months and courts have been similarly affected: many staff are now working from home and hearings that would normally require parties’ physical attendance are being conducted remotely.
To ensure the continued visibility of and public access to court proceedings during the pandemic, the Coronavirus Act 2020, passed in March last year, inserted a section into the Courts Act 2003 that allowed courts to broadcast court proceedings conducted by video “for the purpose of enabling members of the public to see and hear [those] proceedings”.
Whilst “attendees” are now able to observe live court hearings from far more relaxed environs than the formal courtrooms they would normally be sat in, the rules on how to do so remain strict. Rod Ponton, the lawyer who inadvertently found himself portrayed in feline form, escaped with little more than a red face (and a timely lesson in Zoom functionality) but for some, the implications have been more serious.
Almost 100 years have passed since the taking of photographs in courtrooms was outlawed in England. Since then, the 1981 Contempt of Court Act saw a further tightening of restrictions as the use of tape recorders was also prohibited. Those restrictions have been in place for 40 years now so there can be no doubt as to what is acceptable conduct in a courtroom.
The emergence of remote hearings, and the resultant ease of access to live court proceedings, has however blurred the lines between formal court procedure and casual online viewing. The Coronavirus Act, responsible for introducing live court broadcasts, recognised the risks posed by allowing such unfettered access to judicial hearings and duly extended the restrictions on reporting to ban the making of any unauthorised recording or transmission of a live court broadcast without the court’s consent.
Despite that clarification though, some who should know better still seem to forget the standards expected of them.
The Beeb’s broadcasting blunder
On 17 November last year, the Planning Court, a specialist court within the High Court of Justice, held a remote judicial review of the decision by Surrey County Council to grant UK Oil & Gas plc planning permission for fracking operations. Whilst perhaps not the most glamorous of cases, it was certainly one that merited local news coverage given the environmental ramifications the court’s decision would have.
The hearing was conducted via Microsoft Teams and later the same evening a six-second clip of proceedings was shown by the BBC during two of its regional news bulletins. The court’s consent had not been sought before the transmission and contempt proceedings were brought against the BBC accordingly.
The BBC admitted breaching the statutory rules mentioned above and accepted that they were aware of the prohibition on recording remote hearings but had “failed to join up the dots” on this occasion. With the proper process of justice at stake, the court had an important decision to make when deciding how best to deal with the BBC’s transgression.
In reaching its decision, the court had to assess the seriousness of the offence – namely the purpose for which the contempt was committed and the likelihood of any risk to the process of justice – and decide whether there were any aggravating factors to be taken into account.
The BBC’s role as the principle news provider for the UK; the number of viewers who would have seen the broadcast (around 500,000); and the fact that the journalists involved had many years' experience in broadcasting rendered the case one of “lesser harm but higher culpability”.
On the other hand, the BBC, having been notified of its breach by a judge’s clerk the following day, had removed the footage and made it permanently unavailable that same morning. It had also issued an immediate apology, admitting the recording, editing and broadcasts should never have happened and circulated a memo to its journalists, reminding them of the legal position regarding remote hearings.
Whilst the court was conscious of the message that treating the BBC too leniently would send to others “with a more cavalier attitude to reporting restrictions”, the BBC’s early acceptance of liability and apology mitigated its wrongdoing. A fine in the order of £40,000 to £45,000 would have been merited but was reduced by one third to reflect the BBC’s handling of the matter and a fine of £28,000 was imposed.
The old adage "ignorance of the law is no excuse" is one that applies regardless of circumstance but carries even greater significance during these unprecedented times. Many new laws have been passed in the last 12 months; some without much fanfare or press attention, and practitioners and the public alike need to be aware of those changes to ensure they do not fall foul of them. To claim unfamiliarity with any new rules will not suffice.
Indeed, the two senior judges hearing the BBC’s case remarked that the incident “could and probably would have been avoided" had the BBC had taken more "proactive steps" to ensure its journalists were aware of the rules.
Remote hearings are now commonplace and could be here to stay even after the nation, and its courts, returns to life as we knew it before the pandemic. Home working has allowed many to hold departmental catch-ups or even client meetings in their slippers, but that drop in formality does not extend to the standards expected of those attending court proceedings. Online hearings carry as much weight as their physical counterparts and attendees should treat them in exactly the same way, even if their shirt is tucked into their pyjama bottoms…