Weekly Notes: legal news from ICLR, 8 February 2021

Image via Shutterstock.

Court reporting

Should ban on photography remain?

The BBC was recently fined £28,000 after it admitted unlawfully broadcasting a short clip from a High Court hearing on a regional news programme: see R (Finch) v Surrey County Council [2021] EWHC 170 (QB). As Joshua Rozenberg explained on A Lawyer Writes,

“The clip was broadcast twice last November on one of the BBC’s regional news programmes, South East Today. It was included in a report of a hearing at which Sarah Finch, from Redhill, was challenging a decision by Surrey County Council to allow “fracking” operations six miles from her home.”

The hearing was conducted online and a link was obtained by a journalist for reporting purposes but then passed to technical staff who used it to make a recording and then broadcast a short clip as an establishing shot. Given that the BBC are hardly amateurs in the matter of court reporting it seems very surprising they should have made such a basic error, since it is well known that photography in court is not allowed. Although certain exceptions have been made, eg to permit live streaming of some senior courts and to enable video links and remote hearings, the basic rule established in section 41 of the Criminal Justice Act 1925 remains in place.

There have been calls for its reconsideration, however. Last November, the House of Lords Communications and Digital Committee’s report Breaking News? The Future of UK Journalism (HL Paper 176) in discussing the decline of court reporting (at pp 35–39) pointed out that:

“A central role of journalism is to publicise the work of public bodies, including courts. However, we have heard concerns about the limited availability of online data about court proceedings.”

“… restrictions on use of audio, photography and video in court … are arguably outdated in today’s multimedia news environment.”

“We recommend that the government review legislation banning the use of recording devices in court and consider permanently implementing the relaxation of live streaming of certain court hearings.”

In an earlier post on his blog, Cameras in court, Rozenberg after discussing some of the issues around reporting of live streamed remote hearings, speculated that:

“Maybe we should scrap these broadcasting restrictions completely. Shouldn’t reporters be able to cover a criminal trial in the same way as a tennis match, with instant replays and expert commentary? That’s what happened in the OJ Simpson murder trial in Los Angeles, which I briefly covered for BBC News in 1995.

I am fully in favour of televising appeals. I would extend broadcasting to judicial review claims in the High Court, provided there are no live witnesses. But giving evidence in court is always stressful, even for those who are used to it. Some witnesses would simply refuse to attend court if they thought their evidence might be televised.

Ultimately, then, it’s in the interests of justice for judges to keep control over what can be broadcast.”

The last point is one that was made by the judge, Warby J, giving directions before a recent live-streamed hearing in the Duchess of Sussex’s media claim against the Mail on Sunday. After reminding reporters and public attending the hearing of the ban on audio or video recording, he said:

“This in no way inhibits fair and accurate reporting of the hearing by those who attend, either by live text reporting, or by other forms of reporting that do not involve the making or use of recordings of the proceedings themselves.

It is important for the court to retain autonomous control over what records of its proceedings may be made and communicated.”

Feline right of audience

A cat may look at a king, and have a right of audience in court — at least in Texas, where a judge allowed a county attorney to appear in a remote hearing conducted on Zoom with a cat filter which neither he nor his assistant had been able to switch off.

The judge himself released a short video clip, essentially by way of practice guidance, tweeting (yes judges can do that over there): “IMPORTANT ZOOM TIP: If a child used your computer, before you join a virtual hearing check the Zoom Video Options to be sure filters are off.” It was the toast of Twitter for a day.

A fuller version of the story now appears in The Times. But joking aside (and there has been a lot of that), the video clip also operates as a clear reminder of the restrictions on photography that continue to apply online, since the image includes a sign stating that recording or streaming of the hearing is prohibited and punishable as contempt of court — just as it would be in our own jurisdiction. Judges over here have been considering how to incorporate such a sign in their own hearings but the simplest option seems to be to ask the court or judge’s clerk to join the meeting and use the sign as their background or avatar.

Courts

Extended operating hours rejected

The Criminal Bar Association has expressed its relief that HMCTS will not now be proceeding with proposals to introduce Extended Operating Hours in the criminal courts.

The CBA praised the “fantastic work” of barrister Lucie Wibberley from Garden Court Chambers and the court capacity working group she chaired, and said “We are forever grateful to” London law firm Mishcon de Reya “ for working on this important matter pro bono”. Legal Futures when reporting the decision (Profession claims victory in fight against extended court hours) said:

“The move by HM Courts & Tribunals Service (HMCTS) has been bitterly opposed by barristers and solicitors alike, amid wellbeing concerns and also that advocates unable to cover EOH — likely to be disproportionately women — would lose work and could be driven out of the profession as a result.”

The move is also bitterly opposed in other courts too, such as the family courts, though HMCTS has said it would not attempt to introduce EOH or Covid operating hours as they are sometimes known, in family courts. That has not stopped family practitioners nevertheless finding themselves under pressure to work extended hours, as we noted in Weekly Notes, 14 December 2020.

As for civil courts, the proposal appears to be still on the table, according to last November’s COVID-19: Overview of HMCTS Recovery for Civil and Family Courts and Tribunals:

“A civil working group, chaired by a designated civil judge, has reviewed options for temporary extensions of operating hours. It found that extended operating hours in the evening or at the weekend might be suitable for small claims and fast track hearings and recommended that designated civil judges should have the option to implement extended COVID Operating Hours where they deem the local situation requires it.”

Moreover, the MoJ has yet to confirm the victory claimed in the CBA’s tweet, according to the report in Legal Futures: “However, the Ministry of Justice was not prepared to confirm any of this when contacted by Legal Futures last night.”

Legal Profession

Bar under pressure

The Bar Council recently published its latest Self-employed Bar survey (December 2020) showing how barristers are coping in the current situation. According to Bar Talk, the responses “paint a troubling picture of a profession struggling to survive”. The survey summary says:

“We are seeing signs of recovery at the Bar. Court work is picking up, and workload and fee income are gradually returning towards normal levels. However, barristers remain stressed, weary and worried about the sustainability of their profession. In the absence of government financial support, many have taken on significant personal debt to prop up the faltering justice system in the last nine months.”

Bar Talk also points out that “there is free wellbeing and mental health support available via the Wellbeing at the Bar website” for anyone who might need it.

Bad behaviour

In a post on her blog, Sexual Misconduct; Time’s Up at the Bar, the barrister who tweets as Crime Girl drew attention to the “unacceptably lenient” sanctions imposed by the Bar Tribunals and Adjudication Service (BTAS) on some barristers, in respect of reported incidents of sexual misconduct, violence and fraud. In she lists a number of cases where the sanction seems unduly lenient, and compares them with cases of regulatory misconduct which appear to have been dealt with much more stringently. She also compares the sanctions with those imposed for similar offences in other professions, such as the military, medical and police.

She is not the only one to have raised concerns, eg via Twitter, and the BTAS together with the Bar Standards Board have now issued a statement saying they are reviewing their guidelines on sanctions.

Rule of Law

Hong Kong Bench and Bar

To mark the opening of the legal year on 11 January, the the Chairman of the Hong Kong Bar Association, Philip J Dykes SC, gave a speech in which he made clear the importance to the rule of law of judicial and professional independence:

“1. I wish to address you on the subject of independence. Of course, I mean judicial independence under the Basic Law and sometimes overlooked lawyers’ independence, which is necessary for judicial independence.

2. Both types of independence are necessary if the HKSAR is to hold itself out as a place where, in these difficult days, people can put their hands on their hearts and say that the Rule of Law is maintained.”

Although some of his remarks could apply in a general sense and to any jurisdiction, there were some that seemed directed particularly at his own in the light of recent events and controversies. What concerned him in particular was the growing amount of what had been described as “baseless attacks on the integrity or impartiality of courts or judges”.

“When there is a creeping barrage of baseless criticism that supposes that judges are politically biased, incompetent or dishonest, the damage is done not so much to the judges, who have broad backs, but to the Judiciary as an institution. If nothing is done about attacks, they will undermine confidence and respect for the courts and the administration of justice will slowly evaporate.”

The President of the Law Society of Hong Kong, Ms Melissa K Pang, also spoke on the topic in her speech, specifically referencing “what happened to Hong Kong from 2019 to 2020”. She said:

“Our Judiciary weathered an unprecedented amount of criticisms last year. This is by no means a phenomenon unique to Hong Kong. We live in an era where the public’s trust and confidence in the Establishment, including the Judiciary, is unfortunately fading. Unfair and misinformed criticisms against the Judiciary, if not responded to or clarified immediately, will undermine trust in the long term and open the way for measures that may affect judicial independence.”

It seems entirely right for the legal professions in Hong Kong to support the judiciary and its independence as a pillar of the rule of law.

However, there remains a risk that if the appointment of judges, or their selection for particular types of case, is controlled by the executive, then the perception of independence is compromised, and this is what can happen under the new Hong Kong Security Law imposed by China, as we have reported here before (see Weekly Notes, 18 January 2021). Moreover, when the executive brings apparently politically motivated cases against prominent human rights lawyers, that threatens the independence of the legal profession, and thereby also undermines the rule of law.

It’s not clear whether it was that, or perhaps more general concerns, which prompted the Law Society of Hong Kong on 27 January 2021 to issue a Statement in relation to upholding the independence of the legal profession and the criminal justice system, which concluded:

“The Law Society strongly condemns any attempt to assert pressure to inhibit the proper functioning of lawyers, contrary to the UN Basic Principles on the Role of Lawyers, and to interfere with DoJ’s power to control criminal prosecutions in Hong Kong, contrary to Article 63 of the Basic Law.”

Other recent publications

Silence in court: what is lost — and who gains — when the state bans people from speaking out?

Second in a series of panel discussions under the general title of “Law, Justice and the Spaces Between”, chaired by journalist Louise Tickle, director of Scrutiny, and hosted by Bath Publishing. Each of the series looks at a different aspect of openness (or lack of it) and press reporting of our courts and tribunals. We set out the details and personnel of all the sessions in the series in Weekly Notes, 11 January 2021. This one looks in particular at the way statutory restrictions on reporting and discussing family law cases, ostensibly to protect privacy and confidentiality, foster ignorance and undermine public trust in the justice system. The discussion is available as a video recording via Bath publishing, as will be all the events in the series.

Historical” Crimes: Ireland’s unmarried mothers and their children

In episode 135 of Law Pod UK, Emma-Louise Fenelon speaks to Máiréad Enright, about Ireland’s recent Mother and Baby Homes Commission of Investigation Report.

An Index of L&RUK Posts — Consistory Court Judgments

The Law & Religion UK blog provides (among other coverage) essential commentary on the latest ecclesiastical and religious law cases (the more significant of which are in due course reported by ICLR). This entry links to their extremely useful index of posts relating to such cases in recent years. We are in the process of indexing these comments alongside links to the judgments on ICLR, and there is also an official collection of judgments held by the Ecclesiastical Law Association. Other L&RUK indexes include those on marriage legislation and coronavirus COVID-19 legislation and guidance.

What Does a Human-Centric Justice System Look Like?

Article on SLAW in which Brad Regehr and Vivene Salmon, co-chairs of the Canadian Bar Association, look at what “putting people at the centre of our work means” in the context of the Covid-19 pandemic and the closure of courts and more traditional ways of accessing and communicating information, and how things might be improved in future.

Dates and Deadlines

After Strangeways webinars

22 — 26 February 2021, 9:30–11:30 gmt

The Centre for Crime and Justice Studies will be holding five webinars over five days discussing the past, present and future of prisons. The webinars are timed to coincide with the thirtieth anniversary of the report by Lord Justice Woolf into the the longest prison protest in British history, at Strangways prison in Manchester in April 1990. Thirty years on, the dysfunctions and problems of the prison system that gave rise to the protest are as pressing as ever. Indeed some would argue they are worse.

For more information, and to register, download flyer.

Diversification Within The Bar

Essex Law Society (online)—25 February 2021, 18:00–19:30 GMT

“An event where you can find people who faced adversity in the world of Law. How they worked to overcome these challenges.” Speakers include Alexandra Wilson, Sir Jo Sidhu QC, Dr Charlotte Proudman.

Booking via Eventbrite.

Legal News Exchange: Pension on Divorce Masterclass

Online — 17 March 2021, 5–6 pm
Barrister Rhys Taylor & Legal News Wales present a charity fundraiser Masterclass, in support of Neath Port Talbot Child Contact Centre. This event is intended primarily for current and aspiring family solicitors, CILEx lawyers, paralegals and barristers, but anyone interested is welcome to join — even if only to support the NPT Child Contact Centre.

Tickets cost £45. Details via Legal News Wales.

And finally…

Tweet of the week

is a welcome sign from criminal defence lawyer Lucinda Nicholls

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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The ICLR

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.