Finch, R (On the Application Of) v Surrey County Council

Unauthorised recording, transmission or publication of court proceedings may amount to contempt even where the material causes no actual prejudice to the proceedings and the conduct is not intended to interfere with the administration of justice. The court retains control over recordings because the risks extend beyond immediate trial prejudice to privacy, dignity, the authority of the court and public confidence in the justice system. In assessing penalty, culpability and harm are the principal starting points, followed by aggravating and mitigating features. Early admission and a genuine apology may justify substantial mitigation, but a deliberate sequence of unlawful acts by an experienced public broadcaster may involve high culpability despite the absence of unlawful intent.

The Divisional Court considered contempt proceedings brought on its own initiative against the BBC after it recorded part of a remote judicial review hearing and broadcast approximately six seconds of the recording in two regional news bulletins. The underlying proceedings concerned a planning permission for fracking operations at Horse Hill.

The BBC accepted that the recording and broadcasts breached the statutory restrictions on unauthorised recording and transmission of court proceedings. The issues were whether the conduct amounted to contempt of court and, if so, the appropriate penalty, having regard to the absence of actual prejudice, the BBC’s culpability, its subsequent conduct and the relevant statutory framework.

1. Contempt established. The BBC’s conduct involved multiple breaches of the statutory prohibitions on unauthorised recording and transmission. Although the short clip caused no actual or apparent prejudice to the judicial review, the conduct went beyond a mere summary offence and involved the actus reus of contempt of court.
2. Scope of the court’s control. The statutory prohibition on taking photographs in court extends to moving images and prohibits broadcasting or transmission of such images. The separate prohibition on unauthorised sound recording applies to remote hearings as well as proceedings conducted in a physical courtroom. Open justice does not confer a right on third parties to record or publish images, video or sound. Effective scrutiny and accurate reporting can occur without such recordings.
3. The court’s control is justified not only by risks of prejudice to particular proceedings. It also protects participants’ privacy and dignity, the authority and dignity of the court process, public confidence in the justice system, and the court’s ability to control what is disseminated outside the courtroom. The BBC’s assumption of an unfettered right to record and use the material, without seeking permission, aggravated the contempt.
4. Penalty. The assessment of seriousness starts with culpability and harm. The case involved lesser harm but higher culpability. The recording was deliberate and pre-planned, and the collective conduct was closer to reckless disregard than negligent oversight. Aggravating features included the BBC’s status as the principal national news provider, repetition of the broadcast and its exposure to approximately 500,000 viewers. Mitigating features included the early admission, sincere apology, prompt removal of the material, remedial training and the isolated nature of the incident.
5. But for the early acceptance of liability and apology, a fine of approximately £40,000–£45,000 would have been appropriate. Allowing approximately one-third mitigation, the court ordered the BBC to pay a fine of £28,000. The BBC had already been ordered to pay £1,000 towards the Defendant’s costs.

The contempt proceedings were initiated by the court on its own initiative under CPR r.81.6 and directed to a Divisional Court. The court determined the contempt and penalty at first instance.