Committal for Contempt of Court – making audio recordings in court
June 25, 2020
The Divisional Court recently considered an application by the Solicitor General for permission to bring committal proceedings against the Respondent in the case of Attorney General v Pritchard  EWHC 607 (QB),  2 WLUK 278. A solicitor’s clerk had been making recordings on his mobile phone for the purpose of assisting with note-taking. He said (and it was accepted) that he would use the recordings to later type up notes of hearings as his handwriting was poor and his typing skills insufficient. He made ten audio recordings during five different sets of criminal proceedings, recording both the content of the hearing but also private conversations in the well of the court, by setting his phone to record before entering the court and turning it off at the end of each hearing. The parties in those recorded private discussions were unaware of the fact their conversations were being recorded. The recordings were discovered during an investigation into a conspiracy to Pervert the Course of Justice, for which Mr Pritchard was acquitted.
Section 9(1) of the Contempt of Court Act 1981 provides that it is a contempt of court “to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court”.
This does not include an inadvertent or accidental pocket recording (Solicitor General v Cox  2 Cr App R 15) but covers a situation where a person knowingly recorded proceedings through any means.
In Pritchard, permission was sought to apply for an order of Committal using Part 81 Criminal Procedure Rules which deals with Applications and Proceedings in Relation to Contempt of Court.
Permission will be granted if;
- the application discloses a reasonable basis for seeking committal, and
- that it is in the public interest to pursue the proceedings.
It was held in the case of Pritchard, that there was a public interest in bringing proceedings for contempt. Any recording of criminal proceedings without permission is likely to be viewed as serious because the Court has no control of the publication of the proceedings, some of which may be subject to restrictions. Moreover, in this case private conversations were also recorded, which may have been privileged. The fact Mr Pritchard was part of a legal team in criminal proceedings was also considered to add to the public interest in pursuing proceedings, as did the duration he was recording proceedings (carried out from November 15 to February 18).
It is worth noting that each case will turn on its own facts and the ‘public interest’ test will be case specific. The purpose of the recording is likely to be a relevant consideration but even in a case such as Pritchard where the recording was for his own purposes, it seems any audio or visual recording is likely to create a public interest in pursuing proceedings, especially in the age of social media and the capacity for media files to reach others.
If a contempt is proved the Court has power to impose a fine or commit a person to prison for a period of up to two years. The sentence may be suspended.
In R v Cullinane  EWCA Crim 2682 Underhill J noted that “the seriousness of the offence depends on the purpose for which it is committed and the likelihood of any risk to the process of justice”.
The appropriate sentence will be fact specific. There are no guidelines for unlawfully committing contempt of court by recording court proceedings. There is a clear distinction between a case of a clerk recording for the purposes of note-taking and a person who directly interferes with the course of justice and / or in breach of reporting restrictions, as was the case in Attorney General v Yaxley-Lennon  EWHC 1791 (QB),  Crim. L.R. 534,  7 WLUK 120. In that case the former leader of the English Defence League had filmed defendants in a sexual exploitation trial as they arrived at court and live streamed the video over the internet, attracting 3.5 million views. Mr Pritchard, for his recording in the context of his work as a solicitor’s clerk, was sentenced to 4 weeks suspended for 1 year (the Divisional Court being mindful of time spent on remand before he was acquitted of the offence of Perverting the Course of Justice).
If there is a genuine reason for seeking to record proceedings an application can be made. In Attorney General v Scarth  EWHC 194 (Admin),  1 WLUK 401, the Respondent was an elderly man who was hard of hearing and extremely mistrusting of the court process, described in the Judgment as a ‘somewhat infirm individual’. In allowing the application to commit for contempt for recording without leave and publishing on the internet, the Divisional Court advised that any Court dealing with that particular individual in the future may wish to exercise the discretion given by s.9(1)(a) to permit recording of proceedings. It is perhaps a fair assumption however that had Mr Pritchard applied for permission to record court proceedings to assist with his dictation, that would not have been considered a good enough reason to potentially undermine the reasons recording in court is prohibited, that is, the risk to the process of justice.