Author: David Allen Green

20th February 2021

Physician, heal thyself – proverb.

Yesterday the high court handed down its decision in the challenge to the government’s lack of transparency in respect of coronavirus-related procurement.

The court held that the government should have been more transparent.

This blog will examine that judgment once it can be properly digested – but in the meantime, there are some paragraphs of the judgment are interesting in and of themselves.

These paragraphs set out why the court – in a case about transparency and the public interest during the pandemic – refused an application for a production company to pre-record the hearing for broadcast under the very legislation that allows the courts to be more transparent during the pandemic.

Which is a little bit ironic.

Don’t you think?

The court’s reasoning on why the hearing could not be pre-recorded for broadcast is set out at the end of the judgment in a section with the title “Postscript: recording and broadcasting”.

The reasoning is worth going through step-by-step so one can understand the limits of public transparency of the courts when dealing with cases about the public transparency of the government.

(Please note that some of the mild teasing of the court below should not be taken too earnestly.)

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We start at paragraph 161 of the judgment:

‘161. Prior to the hearing, the Administrative Court Office indicated to the parties that, because of the COVID-19 pandemic, the hearing of this claim would take place remotely using a video-conferencing platform. The Claimants invited me to give permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. They made written submissions in support of that application. The Secretary of State resisted it, on jurisdictional grounds. I refused the application, indicating that I would give my reasons in writing at the same time as the judgment, unless the application was renewed orally at the hearing. The application was not renewed orally. These are my reasons for refusing it on paper.’

This is a useful reminder that judicial reasoning does not exist in a vacuum: judicial reasoning is about whether a court should do or not do a particular thing – usually whether to make an order.

Here, the reasoning is set out not because Mr Justice Chamberlain is going on some frolic of his own, volunteering his opinions on behalf of the judiciary of England and Wales on whether high court proceedings ought to be recorded and broadcast, but in response to a particular application by the claimants.

The government resisted that application – but not on its merits (though no doubt the government would not relish such proceedings being freely available). 

The application was instead resisted on ‘jurisdictional grounds’ – that is that such an order would not be open to any high court judge regardless of the merits.

You will also note that the judge mentions the application was ‘in the interests of open justice’ – and you will see that in nothing that follows does the judge deny that proposition.

The judge refused the application, and so what follows in this post tells why the judge made that decision – and why he did not (or could not) make any other decision on that application.

And the post ends by averring that this was an opportunity missed by the high court and such an application could have been granted on terms.

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Next is paragraph 162:

‘Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on the taking of photographs in court and on the publication of such photographs. This prohibition extends to video recordings: R v Loveridge [2001] EWCA Crim 973, [2001] 2 Cr App R 29. Exceptions have been provided by and under statute. None applies to proceedings in the Administrative Court. Section 41 therefore constrains the inherent jurisdiction of the court: R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), [2019] EMLR 16.’

The judge starts at, well, the starting point.

Taking photographs in court and publishing the photographs is generally prohibited – which means it is generally a criminal offence to breach the prohibition.

The prohibition is set out in a statute that is nearly one hundred years old, the Criminal Justice Act 1925, section 41(1) of which provides:

‘No person shall—

‘(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

‘(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof [… ]’

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But wait: the proposal is not to photograph inside the court – indeed the hearing is not even taking place inside a physical court room – so how is this prohibition relevant?

The judge explains that section 41(1) has been extended to also mean video recordings, even though such things did not exist as such in 1925 and the section does not expressly mention video recordings.

Unfortunately, the 2001 decision which the judge cites as being authority for section 41(1) extending to video recording – and thereby extending the scope of a criminal offence – is not itself easily found in the public domain.

The nearest one will find in a reasonable internet search is this brief case note – which tells us, unrevealingly, that the court of appeal decided an ‘appellant’s convictions were safe despite the police having unlawfully videotaped them at court and adduced the evidence of a facial mapping expert to compare that video with CCTV footage’.

How a member of the public could join that dot to what the court here is saying about section 41(1) applying to video recording is not plain – and so we have to take the judge’s word for section 41(1) prohibiting video broadcasts and recordings even though section 41(1) does not explicitly say so.

(Yes, I know one can access the 2001 judgment through subscription services – but this blog and and what it describes is an exercise in the public understanding of law using public domain materials.)

The judge then notes there are general exceptions to this general prohibition – see here – but tells us none of those exceptions apply.

As such he concludes section 41(1) binds the court’s ‘inherent jurisdiction’ – that regardless that the power of the high court is very mighty indeed, statute is even mightier.

And of course, the judgment he cites for this very important principle is also not (easily) found in the public domain either.

So again we have to take the judge’s word for it.

Welcome to open justice.

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We now come to paragraph 163, which deals with how the courts have been specially allowed to conduct video proceedings during the current pandemic:

163. The Coronavirus Act 2020 inserted provisions into the Courts Act 2003 about “proceedings conducted wholly as video proceedings”. The first provision inserted was s. 85A(1), headed “Enabling the public to see and hear proceedings”. It empowers the court to direct that such proceedings may be broadcast (i.e. live-streamed). It also empowers the court to direct that the proceedings be recorded, but only “for the purpose of enabling the court to keep an audio-visual record of the proceedings”. Parliament could have authorised recording for broadcast, but did not.

Here the judge is describing what the law says – but also, by implication, what the law is not saying.

The law is set out in a section inserted into the 2003 Act by coronavirus legislation, which provides:

‘Section 85

‘If the court directs that proceedings are to be conducted wholly as video proceedings, the court—

‘(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;

”(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings […]’

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Section 85 looks promising for the applicants – and the exception under sub-section (a) looks as if it could cover the envisaged broadcast.

On the face of it sub-section 85(a) could be read so to permit the pre-recording and broadcast as envisaged in the application – subject to any specifications of the court

(In my view, had parliament intended that such broadcasts could only ever be done simultaneously with the hearing then parliament would have said so, but it did not.)

But the judge dismisses this possible reading with a deft gloss in parentheses that the broadcast exception only means ‘live-streaming’ – but note, the relevant law does not explicitly mention live-streaming – just broadcasting.

And, of course, many things that are broadcast go through a pre-recorded stage.

There is not a rigid broadcast/record distinction in media production.

The judge decides the envisaged project would fall instead within sub-section 85(b), and he avers that any such recording can only be for the purpose of judicial record keeping.

(It would seem to me to be at least arguable that a direction would have been possible under sub-section 85(a) containing specifications as to the manner of how the proceedings should be broadcast – otherwise, it would ignore the fact that most broadcasts necessarily go through a pre-recording stage.)

As the court decides neither of the coronavirus-related exceptions apply under section 85, then the general prohibition stands.

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The judge then, in paragraph 164, sets out the criminal offence that parliament created in the coronavirus legislation in respect of certain unauthorised broadcasts and recordings:

‘164. The second provision inserted was s. 85B, headed “Offences of recording or transmission in relation to broadcasting”. This makes it an offence for a person to make an unauthorised recording or unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under s. 85A. Section 86B(6) provides that a recording or transmission is “unauthorised” unless it is (a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor.”

This means that if a hearing is live-streamed in accordance with an order, it will be an offence for anyone to record and re-broadcast such footage.

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The judge then deals with what appears to be an ingenious attempt by the Claimants to get around the statutory regime using the wording of the criminal offence:

‘165. The Claimants relied on s. 86B(6)(b). They argued that it would make no sense unless the court had power to authorise recording or transmission other than under s. 85A. This is topsy turvy statutory construction. Both the heading and operative language of s. 86B make plain that it is concerned with the creation of an offence and with the delineation of its scope. The function of s. 86B(6)(b) is to make clear that no offence would be committed by a person who records or transmits footage pursuant to an authorisation by the court. That is not surprising. One would not expect something authorised by a court to give rise to criminal liability.’

Topsy turvy.

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Of course, the language of ‘make plain’ and ‘made clear’ in law (as in politics) usually means that the thing being described is not actually plain nor clear.

And it would seem that the applicants do have a point here (if a weak one) as the relevant section does appear to acknowledge orders being made other than under the coronavirus legislation.

But such an acknowledgment does not, by itself, create jurisdiction to make an order – the applicants still need to show the legal basis for their application, and they did not convince the court that they had one.

Ingenious legal submissions almost always fail.

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Having asserted that the relevant law is ‘plain’ and ‘clear’ the judge, of course, has to explain the law yet further, and he does so in paragraph 166:

‘166. Nothing in s. 86B purports to define or expand the scope of the court’s powers to authorise broadcast and recording. Those powers are set out in s. 86A. That provision would not have been drafted as it is if the intention were to empower the court to permit recording other than for the purposes of record-keeping.’

Of course, if the law was actually ‘plain’ and ‘clear” then the judge would not need to keep on explaining it, as the law would, well, be plain and clear.

And again the court overlooks the fact that most broadcasting requires a pre-recording stage, and parliament did not expressly limit broadcasting to simultaneous live-streaming.

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Paragraph 167 then sets out that there is a general prohibition on pre-recording for the purposes of broadcast and that this prohibition stands in this particular case:

‘167. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.’

In other words: the court would not be able to make such an order even if it wanted to do so.

It is a question of jurisdiction, not the merits of the application.

The judge has therefore not decided against making the order as such, but has decided that he does not have the power to do so.

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But what about open justice?

For just as the roles of judges, lawyers and parties are now performed online during the pandemic, what about those who would sit in the public gallery?

In the last paragraph of the judgment, the judge explains how this important issue is addressed:

‘168. This does not generally, and did not in this case, prevent the public from having access to proceedings conducted wholly by video in the Administrative Court. In line with the Court’s usual practice, the cause list published on the day before the hearing included an email address through which any member of the public could apply for access to the online platform. All 19 who applied were able to access and watch and listen to the proceedings in this way. The proceedings were therefore at least as accessible as they would have been if held in court.’

This is a good point, well made by the judge.

Anyone who wanted to see the proceedings was able to do so, in the same way a person can go along and sit in a court if they want to do so.

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But.

‘Open justice’ does not mean openness only to the very limited extent of the time, effort and commitment of a determined stranger to sit in a far-away public gallery.

The high court should seize the opportunity provided by the coronavirus legislation to make its work more visible to the public generally – especially in public interest cases arising out of the government’s response to the pandemic.

The public gallery is just one manifestation of the principle of open justice, but it is not its only standard nor its only template.

That is, to invoke a phrase, topsy turvy.

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The mild teasing of the court above does have a serious point.

In public interest cases where the hearing comprises lawyer-on-lawyer action (and not any witness evidence) there is no good reason for the proceedings not to be more widely available.

This is not to suggest a free-for-all – such broadcasts can be done subject to the specifications of the court.

But a properly produced and professionally edited version of a public interest court case would be a boon for the public understanding of the law.

It is possible to read section 85A as permitting such a broadcast and, if so, the high court did have the jurisdiction.

Another judge may have taken a more robust approach to the opportunity provided by the coronavirus legislation for such a broadcast to be permitted.

It was a pity that such a production was not possible here.

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