4.1 In June 1971 the Lord Chancellor appointed a committee under the chairmanship of Lord Justice Phillimore to consider whether any changes were required in the law of England Wales and Scotland relating to contempt of court. The committee reported in 1974. One of its general conclusions was that the law of contempt contained uncertainties which impeded and restricted reasonable freedom of speech. Accordingly, it recommended that the law should be amended by statute so as to allow as much freedom of speech as would be consistent with the objectives of maintaining the rights of the citizen to a fair and unimpeded system of justice and protecting the orderly administration of the law.1
4.2 The Phillimore Committee made a number of recommendations relating to the law of contempt generally. One was that in relation to publications it should be a defence to an allegation of contempt to show that a publication was a fair and accurate report of legal proceedings in open court published contemporaneously and in good faith2 or that the publication formed part of a legitimate discussion of matters of general public interest and that it only incidentally and unintentionally created a risk of serious prejudice to particular proceedings.3 The Committee further recommended that all distinctions between “civil” and “criminal” contempts in England and Wales should be abolished.4 Many of the Committee’s recommendations were enacted seven years later in the Contempt of Court Act 1981, which applies to England, Wales and Northern Ireland and in this report is referred to as the Contempt of Court Act 1981 (Eng).
4.3 The Committee was specifically asked by the Lord Chancellor to consider “the question of the unofficial use of tape recorders in court”. The Committee did not attempt in its report to outline the law relating to the use of tape recorders or other sound recorders in court. and did not refer to any judicial proceedings where this issue had arisen for consideration. The Committee simply stated that “difficulties about this do occasionally arise”.5 In chapter 2 we discussed several conflicting English cases where a Judge or a magistrate made a ruling concerning the use of a tape recorder or other sound recorder in court.6
4.4 The full text of the Phillimore Committee’s consideration of this matter is as follows:
“The basic principle in all such matters is that a court must have power to regulate its own proceedings, but some uniformity of practice is no doubt desirable.
We see no objection in principle to the use of recording machines. For many purposes they are no more than a modern substitute for shorthand and in some courts they are officially used as such. The main objection to the use of recorders is that they produce a more dramatic but not necessarily more accurate record of what occurred in court. We consider that it would be particularly undesirable for recordings to be broadcast or otherwise made public especially since, in the wrong hands, they can be tampered with so as to produce a false record of what occurred. Such a practice could well make witnesses even more nervous than they tend to be already.
We recommend that the general practice in relation to the unofficial use of mechancial records and recordings should be that:-
(a) no mechanical recorder should be used in court without the prior leave of the judge. Leave should not normally be given except to the parties to the proceedings and their legal advisers, and to members of the press as a substitute for short or long hand notes. Standing permission could be asked for by court reporters. Having given leave, the Judge should be empowered to prohibit the recording of particular parts of the case, or to revoke permission in his complete discretion if, for example, the use of the machine disturbed the proceedings or appeared to inhibit a witness in the giving of his evidence;
(b) the recordings themselves should normally be used only for the purposes of the litigation by the parties, or for compiling newspaper reports of proceedings or a wireless or television report to be read by a reporter or announcer. They should not themselves be broadcast or otherwise made public without the leave of the appropriate court and then only for specified purposes. Examples of the purposes for which leave might appropriately be given are certain education purposes (eg. at a police college) or the broadcasting of a historical account long after the trial.
We recommend that legislation should provide for penalties to be imposed in the event of any breach of these rules or of an order of the court. Where the breach occurs in court, the court should be empowered to deal with it as a contempt in the face of the court.”7
4.5 Section 9 of the Contempt of Court Act 1981 (E rig.) implemented these recommendations of the Phillimore Committee. This section provides:
9. (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).
(2) Leave under paragraph (a) of subsection (1) may be granted or refused at the discretion of the court, and if granted may 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 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.
“Court” is defined in section 19 to include “any tribunal or body exercising the judicial power of the State”.
4.6 In summary, section 9 provides that it is contempt of court to use in court or bring into court for use, any tape or other sound recorder although the court has a discretion to permit the use of such a recorder. It is also contempt to play a recording of legal proceedings in the hearing of the public or any section of the public. This would, by implication seem to preclude any broadcast of the recording. It is to be noted that section 9 allows any person to seek leave to record court proceedings. It is not limited to representatives of the news media but encompasses authors of books and articles, parties and their legal representatives and members of the public.
4.7 There are several differences between the recommendations of the Phillimore Committee and section 9 of the Contempt of Court Act 1981 (Eng.). First it is provided in the Act that the court may order the sound recorder or the actual recording, or both to be forfeited; and any object so forfeited shall be disposed of in such manner as the court directs. The Phillimore Committee made no recommendation on this point. Secondly, section 9 states that it is contempt to publish or broadcast a recording of legal proceedings. The Act makes no provision for the court to exercise a discretion to allow broadcasting or publication while the Phillimore Committee envisaged that the court should have power to grant leave to broadcast the recording for specified purposes.8 Moreover, the definition of “publication” contained in section 9 is not confined to broadcasts of court proceedings over radio or television but also includes playing the tape within the hearing of the public. It is also to be noted that section 9 refers to the “use” of tape recorders or other sound recorders in court which may, as a matter of interpretation include the playing of a tape already recorded.
4.8 In November 1981 a Practice Direction concerning the use of sound recorders in courts was issued by the Lord Chief Justice of England, Lord Lane, together with Lord Denning, Sir John Arnold and Sir Robert Megarry.9 The Practice Direction stated that the discretion given to the courts to grant withhold or withdraw leave to use sound recorders or to impose conditions as to the use of the recording is unlimited, but the following factors may be relevant to its exercise:
- the existence of any reasonable need for the recording to be made;
- the risk that the recording could be used for the purpose of briefing witnesses out of court; and
- any possibility that the use of a recorder would disturb the proceedings or distract or worry any witness or other participants.
4.9 It was suggested during the parliamentary debates on the Contempt of Court Act 1981 (Eng.) that section 9 should be amended to ensure that tape recorders or other sound recorders could be used as of right. A new clause was moved by the House of Commons Standing Committee in the following terms:
“(1) It is a contempt of court for anyone other than a solicitor acting in the proceedings in question to use in court any tape recorder or other instrument for recording sound while the proceedings are taking place in chambers or in camera and any such tape recording made by such a solicitor shall not be used for any purpose except for the conduct of those proceedings and shall not be played to the public or any section of the public.
(2) It is a contempt of court for anyone to reproduce any recording of proceedings for the purpose of a broadcast.
(3) Subject to subsections (1) and (2) above it is hereby declared that it is lawful to use in court and to bring into court for use any tape recorder or other instrument for recording sound and that the leave of the court shall not be required.”10
4.10 While maintaining the restriction on broadcasting a recording of the proceedings of a court the amendment would have allowed any person to use a sound recorder without first obtaining leave of the court. Where proceedings are taking place either in camera or in chambers, only a solicitor would have been able to use a sound recorder and then only for the purpose of the conduct of the proceedings.
4.11 One difficulty with the new clause identified during the parliamentary debates was whether the clause would effectively abolish the inherent jurisdiction or power of a court to regulate the use of sound recorders. One member of the House of Commons was of the opinion that despite the provisions of the clause, a judge would still have an inherent right to prevent the use of a sound recorder that was interfering with the course of the proceedings.11 The Attorney-General expressed a contrary view, namely, that Part 3 of the clause would provide an absolute right for any person to use a sound recorder in open court and this could not be prevented by a Judge.12
4.12 In order to overcome this difficulty, an amendment to the clause was moved by two members of the Standing Committee. This amendment provided that there was a general right to use a tape recorder or other sound recorder in court:
“except that the court may make an order prohibiting the bringing into court of such tape recorders or instruments for all or part of the proceedings in question on the grounds that there is a substantial risk that such recording will interfere with the course of justice in those proceedings.”13
This amendment was not adopted, but in any event the clause recommended by the Standing Committee which would have allowed the use of sound recorders in open court as of right was defeated.14 Opposing the suggestion that sound recorders should be used as of right Lord Roskill stated:
“... I can imagine nothing more alarming and more terrifying than to try a case, either criminal or civil which has perhaps attracted a large amount of public attention with an absolute battery of tape recorders around the court. Anything more distracting for witnesses, anything more distracting for counsel and anything more unnecessary to the successful trial of the action it is difficult to imagine.”15
4.13 However, criticisms of section 9 of the Contempt of Court Act 1981 (Eng.) have been echoed by others outside Parliament One commentator has stated:
“It is characteristic of the cautious conservatism underlying the Act that the presumption is against the use of tape recorders, rather than simply allowing a judge to prohibit if it is necessary for the conduct of orderly proceedings.”16
4.14 Given that the Contempt of Court Act 1981 (Eng.) makes the use of sound recorders in court an offence but allows the court a discretion to permit their use, it is important to ascertain to what extent the discretion contained in section 9 is being exercised. During the parliamentary debates on the Contempt of Court Act 1981 (Eng.) the Lord Chancellor, Lord Hailsham stated that he would:
“... certainly visualise a liberal use of the permission to be granted by judges, in the regulation of their own proceedings to authorise the use of a tape recorder to legitimate persons.”17
4.15 In February 1982 the High Court of justice in England allowed a reporter to use a tape recorder to record proceedings in the case of Attorney-General v. Lundin.18 Prior to this decision Lord Denning had refused an application by The Observer newspaper to tape record one of his judgments and the House of Lords refused an application to tape its proceedings.19 The Lord Chancellor’s Department has informed us that very few applications have been made and was unable to refer us to cases, apart from Attorney-General v. Lundin, where permission has been given pursuant to section 9 of the Contempt of Court Act 1981 (Eng.), to use a tape recorder or other sound recorder. We were informed that no sound recorders are allowed at all in the Central Criminal Court (Old Bailey), presumably because of the risk that the recording could be used to brief subsequent witnesses.20
4.16 For the purposes of this report, it needs to be determined whether section 9 of the Contempt of Court Act 1981 (Eng) provides a suitable precedent for regulating the use of sound recorders (and recordings made thereby) in New South Wales courts, Royal Commissions and Special Commissions of Inquiry. The main question is whether there should be a statutory right conferred on certain persons to use a sound recorder to record the proceedings of courts and Commissions. In Chapter 2 we examined the question whether in England a court could have prevented the use of a sound recorder in court prior to the enactment of the Contempt of Court Act 1981 (Eng.) and we referred to several occasions when English courts have had cause to consider the use of sound recorders in courts. The response of the Phillimore Committee was to recommend that sound recorders not be used in courts without the prior leave of the court, and this recommendation was enacted in section 9 of the Contempt of Court Act 1981 (Eng). However, representatives of the news media and other persons already have a right to take hand-written notes in court. If a sound recorder is to be used in substitution for hand-written notes, then there seems to be no reason in principle why a right to use a sound recorder should not be given on sensible conditions. This is the thrust of our recommendations in the following chapter.
FOOTNOTES
1. Report of the Committee on Contempt of Court (Cmnd.5794, 1974), para.216(4).
2. Id., para.141.
3. Id., para.142.
4. Id., para.176.
5. Id., para.42.
6. Para.2.33.
7. Note 1 above, paras.42-43.
8. Id., para.43.
9. [1981] 3 All E.R 848.
10. Parliamentary Debates (Hansard), House of Commons (1981), vol.6, col.882.
11. Id., col.894.
12. Id., col.S96.
13. Id., col.893.
14. Id., cols.900-901.
15. Parliamentary Debates (Hansard), House of Lords (1981), vol. 416, col.382.
16. J. Young, “The Contempt of Court Act 1981” (1981) 8 British Journal of Law and Society 243, at p.245. See also C.J. Miller, “The Contempt of Court Act 1981” (1982) Criminal Law Review 71, at p.83, for a similar criticism.
17. Note 15 above, col.383.
18. (1982) 75 Cr. App. R 90. Although no mention is made in the report of the use of a tape-recorder during proceedings: see The Observer, 21 February 1982.
19. Ibid.
20. Letters from the Lord Chancellor’s Department dated 15 July 1983 and 25 August 1983.
