20th February 2023
I am currently writing a post about what was said and not said by a judge at a public hearing.
The post should be up tomorrow or the day after – I had hoped to finish it today – but it does raise a prior question: why can we not just listen to a recording and put the matter beyond doubt?
It is not as if there is a want today of technology and surveillance and recording devices available.
But the old rule remains: it is a contempt of court for a lawyer or a member of the public to record a judge.
And this is even the position when what the judge says or does not say can make the difference to an outcome of a case, or a disposal of an appeal.
Of course, there are good reasons why the evidence of, say, a witness may not be recorded, and still less broadcast.
But unless a judge is discussing matters that should be kept private then the principle of “open justice” should prevail about what the judge themselves say.
There is no good reason for this general prohibition – and there is scarcely even a bad reason.
It is a tradition, a way of doing things, which judges do not want to change.
One suspects it is because judges like to control what comes out of a courtroom as much as they like controlling what is in a courtroom.
And even the courts where there is recording, and so official transcripts can be available, judges want to have prior approval before publication.
Perhaps judges tell themselves that there should not be recordings because there may be “misunderstandings” – but misunderstandings are more likely if we have to rely on recollection and incomplete notes.
The time has come for there to be no general prohibition on recording what a judge says in open court.
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yes, I think there is too much room for foul play in county courts especially at the moment, mind boggling how lax it all is and some of the people working there don’t really seem that bothered about it
Totally agree. Not good reason not to. In Ireland transcripts can be purchased and to do so firms recorded what is said in court. But it is expensive so poor litigants are disadvantaged.
The judge is arbiter of a case. A recording would be evidence of their performance, which may be a good thing, but what if the accusation is that a judge was leading a jury? How will that effect the case?
Obviously I’m not a lawyer but I can’t see why not.
I look forward to reading the comments.
Voice recognition technology permits an near-instantaneous, accurate transcript to be provided. It should be standard in all courtrooms, so there can never or hardly ever be an dispute about what some one has said.
I wrote this a couple of years ago, under a Law Society Gazette article (https://www.lawgazette.co.uk/law/bbc-fined-28000-for-broadcasting-footage-of-remote-hearing/5107273.article):
“I agree about the open justice point. I’m a junior solicitor and we regularly have trials in the Commercial Court. We’re often expected to take detailed verbatim note of much of the information, as we need it the same day and can’t wait for transcribers. In that context:
1. What’s the difference between making a detailed contemporaneous note and recording the hearing and then transcribing immediately afterwards, other than the fact that the court rules were made decades ago and have been thoughtlessly parroted in the Covid era?
2. The comment below about recordings being notified to other users is incorrect: first, if configured properly, only the court clerk should be able to record using Teams/Zoom’s integral recording facility, and second, it’s *always* possible to record what’s happening on your computer, either using third-party software (Google FlashBack), or just one’s iPhone pointing at one’s laptop screen.
3. HMCTS can’t be trusted not to lose recordings. We have had several cases in which Skype or Teams recording have disappeared for weeks or months on end, and sometimes lost forever. This isn’t a criticism of hard-working court staff, simply a statement fact. Rendering unlawful the entirely (technically) sensible concept of making a back-up recording is a dumb idea of truly Luddite proportions.
4. Given that the law has been thoughtlessly copied from the pre-Covid era, and that recording is so easy, the law risks becoming a mockery. Recording is undetectable and therefore unenforceable: as a general public policy point it is sub-optimal to enact laws which can not be effectively enforced.”
There are compelling arguments for changing the rules. Recognising the different sort of people who the criminal and family courts deal with, perhaps there is an argument for retaining the ban there. For the Business and Property Courts though, and the wider High Court (as in the BBC case above), the current rules are however archaic. No one is harmed because Zoom images of a planning dispute hearing are broadcast. To argue otherwise requires the obtuseness of Judge James Pickles himself.
On what’s the difference between a transcript and a recording .. one issue may be copyright. I’m not an expert in copyright law but I believe that if you make a transcription of something said by someone else, you own copyright of the transcription. Whose intellectual property a spoken / recorded speech (or song, or dramatic monologue) might be is frequently the subject of complex contract. I’d have thought that intellectual property rights would have to be very carefully considered before recordings could be made in court .. the point being that those recordings would inevitably have a market value outside of the court. Which may then become part of the optioned material or production assets in, say, a film dramatising a famous / infamous court case. The Katharine Gun / ‘Offical Secrets’ case and related movie being a fairly recent example.
More broadly, how, in practice, could you have recordings of what a judge says in court, without also recording what counsel or witnesses say, given that some of what a judge says is in dialogue with counsel or witnesses? Which sinks intellectual property rights into deeper mire.
As well as “poor litigants” being disadvantaged, so are lots of us who care passionately about upholding human and civil rights and / or other topics where what the courts decide (and why) affects everyone.
For example, in the “Stansted 15” case (where a deportation flight to Rwanda was stopped) a partial transcript (lawyers’ notes?) was put into the public domain. From memory, that transcript didn’t contain the material which later justified the appeals court in striking out decisions made by the first judge.
The “Stansted 15” included Quakers and (I think) Anglicans amongst others. Their co-religionists actively supported them and their fellow activists on this protest (and on others) with practical help, contributions towards costs, protests to MPs, petitions etc.
If we’d have had the full transcripts of the court cases then we’d have been able to do better jobs of explaining to the less involved public, MPs and local journalists what the key points at stake actually were and why they were of importance to people not involved in that particular protest.
Given that it’s perfectly legitimate for a journalist to sit in court, make notes of what the judge says, and report that in the media, this rule has always struck me as insane. Why should the accuracy of the report depend on the accuracy of the journalist’s note? Surely it’s in everyone’s interest that the report is as accurate as possible and therefore based on an audio recording (which in any event is a form of note)?
Well, quite.
Problem is that for example, Magistrates’ Courts not being courts of record, do not have recording equipment installed like the Crown Court for example. So what happens then to a recording made by a member of public of sentencing remarks for example in a high profile case which purports to be the recording but is edited or worse, manipulated. AI can now mimic voices pretty well. There is no master court copy of record. Or what about those down moments in court when we are trying to conduct business counsel to counsel before the court sits or arranging things. I wouldn’t be comfortable at being recorded though accept it may already be happening.
The answer is to install the same IT as other courts but cannot see that being an HMCTS priority. It should be but it won’t be as they need the money for things like repairs to the leaky roofs and broken toilets.
That said I was recently told off by a Crown court clerk because I had accidentally turned on the talk to type function in MS/Word in a break – all because it was deemed a recording!
For many years I sat as an Employment Judge. In the late 1990s there was an experiment to record the proceedings. I was one of Guinea pigs for this. A transcript of the proceedings was only asked for on about 3-4 occasions. On each occasion it was to address an issue of bias. Each time the allegation bias was rejected after the transcript was considered. Without that accurate recording allegations of bias were dealt with on the basis of what various people had recorded in their notes. As the person speaking I would have no notes. I had to rely on the lay members’ notes – often of dubious completeness. I’m all in favour of recording proceedings. As a judge you should be happy for what you say being accurately recorded or you should keep your mouth shut!
Thank you for this informative and insightful comment from one with experience from the other side of the bench.
Court of Appeal and Supreme Court cases are routinely live streamed with permanent recordings available on, respectively, YouTube and the SC’s own website. Seems weird that openness is the default for the most senior judges, but not their junior colleagues.
In my experience (civil litigation for over 20 years) unless expressly designated “in private”, every word spoken in court is recorded, from start to finish. A transcript from an authorised transcriber can be obtained of any part, for a fee (priced according to number of words transcribed). While the judge will be able to approve the judgment part of the hearing (where the judge has not typed the decision) the judge has no editorial control of anything else said by anyone else during the hearing. The transcript of the court proceedings is provided direct from the transcriber to the person who requested it whereas a transcript of an oral judgment goes direct to the judge for correction/approval and then back to the transcriber first.
I have never tried to obtain a transcript of a case where I was not representing one of the parties. A non-party requesting a copy of a document from the court file has to provide a reason and there is case law on what amounts to sufficient reason for the court to accede to the request. Presumably similar considerations apply to a non-party’s request for a transcript of the proceedings.
I agree that in the context of open justice and being physically able to Tweet live from court what has just been said, the rule about private recordings does appear a bit archaic, particularly when everyone in the court room knows the court is recording every utterance which could then turn up on paper.
In a recent successful appeal an Insolvency and Companies Court judge was criticised by the appeal court for interfering in counsel’s cross-examination of a witness at trial. Two exchanges, set out like play script, were included in the appeal judgment by way of example, taken from the verbatim transcripts of what was said at the trial.
I like the American system where proceedings are video recorded and yes, for evidence where there is a security issue, cameras can be turned off and paper and pen or stenography or whatever they use these days relied upon. How often is that the case? Rarely so the principle of justice being seen to be done must take precedence over a judges need to control information – although the human being in me understands why a judge might want that control!
Most judgments in our courts are given extempore, a fact which allows judges to work more rapidly and with less delay than would be possible if judgments were always handed down in writing, as they are, I believe, in civil law jurisdictions. Judgments are recorded by HM Court Service; if a copy is requested, it will be transcribed, approved by the judge and sent to the party making the request for a fee. The judge will almost always amend the judgment to improve its style – no-one speaks perfect prose – and clarify his or her intention and reasoning; the amendments make no difference to an appeal; it is the judge’s order, not the judgment, which is appealable. The reasons, then, why judgments may not be recorded in court are, generally, these: first, to ensure that the judge can amend the judgment to reflect his or her intention and, secondly, to allow the court to charge a fee. There is a further possibility: the judge may – though this is rare – change his or her order provided it has not been ‘drawn’, that is, sealed by the court (In the Matter of L and B (Children) [2013] UKSC 8); again, it is only the ability to amend a judgment that makes this possible.
On the topic of a judge editing his/her judgment, a case in Australia about what amendment is permissible
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC//2020/146.html
The same judge has been criticised several times by appeal courts over his conduct in court on the basis of recordings or transcripts which are apparently routine in the court in which he worked
Interesting, thank you.
In the field of the regulation of health professionals (where even the regulators are regulated! – by the Professional Standards Authority), we are required by our statute to record all our hearings so that a transcript can be created if necessary.
The transcript is available for a reasonable fee for those who ask, or at our own cost when a case goes part-heard and has to resume at a later date, so that the panel hearing the case can refresh their memories.
I wonder why courts operate so differently when the stakes can be even higher than a professional losing the right to practise their profession.