Interested to see if colleagues elsewhere in the country have been receiving the following from the Court Service when Records of Proceedings are requested:
“ the Audio file and its contents should not be shared with other persons who are not connected with the proceedings. To do so would be an offence under Section 9(1)(b) of the Contempt of Court Act 1981 which makes it an offence to “publish a recording… by playing it in the hearing of the public or any section of the public, or to dispose of it with a view to such publication.” It may also breach Data Protection legislation.”
We have challenged this and have referred them to the Act itself, which states:
“Use of tape recorders.
(1)Subject to subsection (4) below, it is a contempt of court—
(a)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;
(b)to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication;
(c)to use any such recording in contravention of any conditions of leave granted under paragraph (a).
[F11(d)to publish or dispose of any recording in contravention of any conditions of leave granted under subsection (1A).]
[F12(1A)In the case of a recording of Supreme Court proceedings, subsection (1)(b) does not apply to its publication or disposal with the leave of the Court.]
(2)Leave under paragraph (a) of subsection (1)[F13, or under subsection (1A),] may be granted or refused at the discretion of the court, and [F14if granted—
(a)may, in the case of leave under subsection (1)(a),]
be granted subject to such conditions as the court thinks proper with respect to the use of any recording made pursuant to the leave and;
[F15(b)may, in the case of leave under subsection (1A), be granted subject to such conditions as the Supreme Court thinks proper with respect to publication or disposal of any recording to which the leave relates; and]
where leave has been granted the court may at the like discretion withdraw or amend it either generally or in relation to any particular part of the proceedings.
(3)Without prejudice to any other power to deal with an act of contempt under paragraph (a) of subsection (1), the court may order the instrument, or any recording made with it, or both, to be forfeited; and any object so forfeited shall (unless the court otherwise determines on application by a person appearing to be the owner) be sold or otherwise disposed of in such manner as the court may direct.
(4)This section does not apply to the making or use of sound recordings for purposes of official transcripts of proceedings.”
Subsection 4 above seems the most relevant part.
We have been told the matter has now been referred to the Regional Judge. However, I am concerned that
a) There has been no prior notice/consultation that this was going to be the approach by the Court Service
b) There has been no explanation of the rationale for this approach
c) There has only been a partial reference to the Act itself, which seems to exclude sound recordings for purposes of official transcripts of proceedings, so the communication is ‘potentially’ misleading
d) It seems to be at odds with the practice here https://assets.publishing.service.gov.uk/media/5fb7d6ded3bf7f573228a3a4/CSPIP-373_and_374-2019.pdf
e) What is the data protection legislation?
We also have been having issues around the failure to provide recordings full stop due to the recording having been destroyed. In at least one case, set -aside has been refused as it is not in the interest of justice to do so, even thought the conditions for set aside had been met. The case law around record of proceedings that is relevant is http://administrativeappeals.decisions.tribunals.gov.uk//aspx/view.aspx?id=2386
We have asked for leave to appeal on the basis that the Statement of Reasons did not mention arguments that had been raised during the course of the hearing, and a comment by the medical member that he wished he could see the appellant. We have also taken issue with the interlocutory procedures around the set-aside refusal.
As I said, interested to hear from others and sorry for the long post!