HM Attorney General v Scarth

Recording sound in court without permission is contempt, as is publishing a recording made in that way. The court has a discretion to permit recording and may impose conditions. Deliberate and repeated breach is not excused by age, infirmity, mental disorder, grievance or distrust of the courts. Those matters may nevertheless affect the court’s approach to permission and penalty. Where imprisonment is imposed for contempt, the court may suspend the committal. A court dealing with a vulnerable litigant may properly consider permitting a personal recording to address concerns about the reliability of official recordings, while refusing permission for subsequent publication.

The Attorney General applied to commit Norman Scarth for two contempts of court. It was alleged that he deliberately recorded proceedings at Leeds Magistrates’ Court without leave, contrary to section 9(1)(a) of the Contempt of Court Act 1981, and later published the recording on YouTube, contrary to section 9(1)(b).

The defendant did not attend and did not deny making the recording or being responsible for its publication. The court considered the evidence, his written material, his age and infirmity, and earlier concerns about his mental health. The central issues were whether the statutory contempts were proved and, if so, the appropriate disposal.

1. Findings of contempt. The court was satisfied on the evidence that the defendant had deliberately contravened section 9(1)(a) and section 9(1)(b) of the Contempt of Court Act 1981. The findings of contempt were therefore made.
2. Recording and publication. Section 9(1) creates a prohibition on using recording equipment in court without the court’s leave and on publishing a recording of legal proceedings made by such equipment. The court has a discretion to grant permission, subject to appropriate conditions. The defendant had never applied for permission.
3. Penalty. The available disposals included imprisonment for up to two years, suspension of the committal, and a fine under section 14 of the 1981 Act. The court also considered the statutory powers to obtain a report on mental condition and to make hospital, guardianship or interim hospital orders under sections 35, 31 and 38 of the Mental Health Act 1983. Those medical disposals were unavailable because the defendant was abroad, opposed them, and would not co-operate.
4. Age, infirmity and apparent mental disorder did not confer immunity from deliberate and repeated breach of the law. The court treated imprisonment as a last resort, but concluded that there was no practical alternative to committal.
5. The defendant was committed for 28 days on each count, concurrently. The committal was suspended for 12 months.
6. Future permission. The court stated that, had permission been sought, it would have allowed the defendant to record the hearing because of his age, infirmity, diminished hearing and profound mistrust of official recordings. That sympathy did not extend to publishing the recording or any part of the court process.