Cullinane, R. v

Deliberate and knowing unauthorised recording of court proceedings is a contempt under Contempt of Court Act 1981. Its seriousness depends on the recorder’s purpose and the likelihood of harm to the administration of justice.

Speculation that recordings might be published cannot justify a substantial custodial sentence without findings that publication would prejudice a fair trial, breach reporting restrictions or confidentiality, or that private conversations were recorded or targeted. The seriousness of illegal photography in court does not provide an exact analogy for unauthorised recording of an open-court hearing.

The appellant attended a murder defendant’s bail hearing at Bradford Crown Court. He attempted to address the judge after the hearing and was found to have recorded the bail application on a tape recorder. He was arrested for contempt of court with an associate who had taken photographs in the court precincts.

The Recorder of Bradford found the appellant guilty of contempt and sentenced him to four months’ imprisonment. On his sentence appeal, the central issue was whether that term properly reflected the seriousness and likely consequences of the unauthorised recording.

1. Appeal allowed. The four-month sentence for contempt was excessive. The court substituted a term of 26 days’ imprisonment, producing the appellant’s immediate release.

2. Section 9(1)(a) of the Contempt of Court Act 1981 expressly makes unauthorised recording of court proceedings a contempt. The Recorder was entitled to find that the appellant, given his experience of court processes, knew the rule and deliberately breached it. A sanction was therefore required.

3. The gravity of such a breach depends on its purpose and the likely risk to the administration of justice. The Recorder’s suggestion that the recording might appear on a website did not, without more, establish serious prejudice. Publication of the recording itself would be a further contempt under section 9(1)(b), but would not by itself be likely to prejudice justice.

4. A more serious case could arise where publication breached reporting restrictions, prejudiced a fair trial, disclosed confidential material, or where a recording captured or was intended to capture private court-related conversations. The Recorder made no finding that any such circumstance existed.

5. R v D (Contempt of Court: Illegal Photography), The Times May 13th 2004, remained unchallenged as to the seriousness of illegal court photography. It was not, however, an exact analogy to recording an open-court hearing.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted a 26-day term of imprisonment.

• Bradford Crown Court: The Recorder of Bradford found the appellant guilty of contempt for unauthorised recording and imposed four months’ imprisonment.