I’m spending my Sunday morning watching the final Mission Impossible movie, which includes many clips from earlier films, including the very first from 1996 when I was eight.
One of the most prominent pieces of technology shown from the first Mission Impossible film (aside from the latex face mask) was glasses with a built-in camera, which played a crucial role in the plot (I won’t spoil why). I recall thinking how amazing it would be to have tiny cameras that could be integrated into everyday objects, so discreetly that no one would know.
Roll forward thirty years and we legitmiate glasses from manufacturers (such as Ray Ban) which, amongst other features, have a built-in camera. It’s incredible, but it does make me wonder how susceptible Courts will be to court users who could now be wearing recording equipment in everyday wear, such as glasses.
The Legal Prohibition on Courtroom Photography
The Courts of England and Wales are still subject to s41 Criminal Justice Act 1925, which makes it unlawful to take or attempt to take any photograph, or to make a sketch for publication, of judges, jurors, witnesses, or parties to proceedings in court. Many believe that taking any photographs within Court can amount to a breach of s41:-
41 Prohibition on taking photographs, &c., in court.
(1)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;
and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.
(1A)See section 32 of the Crime and Courts Act 2013 for power to provide for exceptions.
(a)the expression “court” means any court of justice (including the court of a coroner), apart from the Supreme Court;
(b)the expression “Judge” includes . . ., registrar, magistrate, justice and coroner:
(c)a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.
I previously wrote an article discussing how some interpret s41(1) as prohibiting taking photographs in courts and also forbidding a portrait or sketch of anyone involved in court proceedings for publication. Others see the restriction as applying to any photograph, portrait, or sketch of any person connected to the court proceedings.
Realistically, the safe approach is not to take photographs. However, there can be circumstances where a photograph is not a photograph in the conventional sense, but a scan of a document with a phone, immediately creating a PDF copy of the document. Would that amount to take a photograph? If one were to take the approach that photographs in court and sketch/portraits of people in court are two separate actions that are subject to s41, scanning a document in Court has the possibility of being a breach of s41.
Example – HM Solicitor General v Cox & Parker-Stokes [2016] EWHC 1241 (QB)
The Queen’s Bench Division considered whether secretly taking photographs in court and posting them on social media could amount to contempt of court.
The case came from a murder sentencing at Bristol Crown Court. Two friends of the offender used their phones in court to take pictures; one photographed the Defendant in the dock, and the other photographed the judge. Some of the images even showed Court signs warning about the prohibition of cameras. After the hearing, the photos were posted on Facebook, where they were seen by many and drew various comments. Members of the victim’s family later saw the posts, which caused them serious upset and they advised the police.
The Solicitor General brought contempt proceedings against the two individuals, rather than relying on a breach of s41 of the 1925 Act, because that was a summary conviction with a level 3 fine. It was the contention of the Solicitor General that the gravity of the conduct was the ‘wilful defiance and affront to the authority of the court’.
The High Court allowed the application for contempt. There was a specific act intended to prevent a photograph from being taken. The immediate impact can be a distraction to proceedings, including witnesses, jurors, parties, and Court staff. S41 of the 1925 Act was clearly intended to prevent this immediate impact. The Court then considered that more damage can be caused by sharing or publishing the photographs. The impact can then be more widespread, affecting more than just the hearing itself, such as impacting the victims, their families and undermining the authority of the court, essentially impacting the public’s confidence in the justice system.
Further, the Court made it clear that specific conduct of sharing the photographs goes beyond the statutory offence of s41 because whilst s41 was useful in giving the court the immediate power to deal with anyone seen taking photographs in court in order to ensure it maintained control over the proceedings, the later steps of sharing the photographs (whilst not in the face of the court) was contempt and could interfere with any subsequent hearings, appeals and so forth.
Discussion
As cameras become increasingly embedded in everyday technology, from phones to glasses, and the increase of apps utilising the camera, such as document-scanning apps, the boundary between ordinary, innocent use and unlawful conduct is becoming harder to see when at Court.
A rather innocent act, such as taking a photograph of a document at Court, could in fact fall within the scope of s41 of the 1925 Act. The varied interpretations could mean that a breach does not require a relevant person (Judge, juror, witness or party) to be within the photograph.
Although the consequences of a breach of s41 are relatively limited when compared with the potentially severe sanctions for contempt of court, being a summary offence punishable by no more than a level 3 fine, currently capped at £1,000 per offence, it’s still an offence and should not be taken lightly.
Undoubtedly, individuals who take and share photographs, whether intentionally or not, such as on social media, face the risk of contempt charges. Practically, I suggest court professionals avoid photographing documents altogether and reduce the chance of accidental violations of s41 by sharing documents via email or secure short-range wireless methods like Apple AirDrop.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
