Wrongful Transmission of Distanced Hearing
Gubarev and Another v Orbis Business Intelligence Ltd and Another: QBD 6 Aug 2020
<b>References: </b> EWHC 2167 (QB)
<b>Links: </b><a href='https://www.bailii.org/ew/cases/EWHC/QB/2020/2167.html' target='_n'>Bailii</a>
<b>Coram:</b> Dame Victoria Sharp P
In a defamation case, the solicitors representing one party had live streamed a video of a defamation trial to several individuals outside the jurisdiction without the Court's permission. The trial took place during the Coronavirus pandemic, and conducted at a distance. There had been discussions between the judge and solicitors in advance about the conditions and restrictions for remote access.
Held: 'The judge's Order (and his Reasons) could not have been clearer. The solicitors ought to have supplied copies of it to their clients, or at least to have explained its effect so as to avoid any possibility of a misunderstanding arising in the future. We would also have expected the solicitors to provide a copy of the Order to the transcribers, so that the transcribers could be in no doubt either as to what it was they were, or were not, permitted to do. Neither of these things happened.' The proceedings were recorded and transmitted via Zoom, the link to the broadcast having been given out to some individuals and then passed on by them.
The solicitors having referred themselves to the Solicitors' Regulation Authority the Court noted the seriousness of the breaches in this case.
'Once live streaming or any other form of live transmission takes place, however, the Court's ability to maintain control is substantially diminished, in particular where information is disseminated outside the jurisdiction, as happened in this case. The opportunity for misuse (via social media for example) is correspondingly enhanced, with the risk that public trust and confidence in the judiciary and in the justice system will be undermined. In these circumstances, it is critical that those who have the conduct of proceedings should understand the legal framework within which those proceedings are conducted, and that the Court is able to trust legal representatives to take the necessary steps to ensure that the orders made by the Courts are obeyed.'
<b>Statutes:</b> <a href='http://swarb.co.uk/?s=Contempt+of+Court+Act+1981+9'>Contempt of Court Act 1981 9</a>, <a href='http://swarb.co.uk/?s=Criminal+Justice+Act+1925+41'>Criminal Justice Act 1925 41</a>
<b>This case cites: </b>
- Cited - <a href='https://swarb.co.uk/spurrier-regina-on-the-application-of-v-the-secretary-of-state-for-transport-admn-2019/'>Spurrier, Regina (on The Application of) v The Secretary of State for Transport</a> Admn ( EWHC 528 (Admin),  EMLR 2016)
Live streaming of video and audio from a court room is prohibited. . .
- Cited - <a href='https://swarb.co.uk/hamid-regina-on-the-application-of-v-secretary-of-state-for-the-home-department-admn-30-oct-2012/'>Hamid, Regina (on The Application of) v Secretary of State for The Home Department</a> Admn (<a href='https://www.bailii.org/ew/cases/EWHC/Admin/2012/3070.html' target='_a'>Bailii</a>,  EWHC 3070 (Admin))
Sir John Thomas P said: 'The court . . intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this . .
- Cited - <a href='https://swarb.co.uk/sathivel-regina-on-the-application-of-v-secretary-of-state-for-the-home-department-admn-26-apr-2018/'>Sathivel, Regina (on The Application of) v Secretary of State for The Home Department</a> Admn (<a href='https://www.bailii.org/ew/cases/EWHC/Admin/2018/913.html' target='_a'>Bailii</a>,  EWHC 913 (Admin),  WLR(D) 257,  3 All ER 79,  4 WLR 89, <a href='http://iclr.co.uk/pubrefLookup/redirectTo?ref=2018+WLRD+257' target='_a'>WLRD</a>)
The court dealt with a complaint as to a solicitor's alleged failings to meet professional and ethical standards required of those conducting proceedings on behalf of clients in immigration and asylum cases. . . (This list may be incomplete)
<b>Jurisdiction: </b> England and Wales
<b>Last Update:</b> 12-Aug-20
Legal Professions, Contempt of Court
Legal Professions, Contempt of Court
See also: https://swarb.co.uk/gubarev-and-another-v-orbis-business-intelligence-ltd-and-another-qbd-6-aug-2020/
'Once live streaming or any other form of live transmission takes place, however, the Court's ability to maintain control is substantially diminished, in particular where information is disseminated outside the jurisdiction, as happened in this case. The opportunity for misuse (via social media for example) is correspondingly enhanced, with the risk that public trust and confidence in the judiciary and in the justice system will be undermined.
What actually is it that they seek to control?
Obviously if there is an actual record of the actual events, then that ties the court's hands in terms of what they record: they might have to record what actually happened, but that is what they ought to be doing anyway.
As for disseminating the information, aren't courts not normally open to the public?
Was this hearing closed for some reason?
There was here a possibility that witnesses yet to give evidence might see the evidence given before them. That wasn't the biggest problem.
Every attempt has been made to keep court hearings open to the public during this pandemic, and protocols have been established to achieve this. Those necessarily involve transmissions of hearings, but these take place still against a background of laws making it a criminal contempt to record court proceedings without the judge's consent. It is not for the courts to act against parliament's express wishes. A tight balancing act has taken place.
In this case the lawyer involved appears to have taken a high handed approach to the whole thing. Clear and express instructions were given, which were effectively ignored.
These take place still against a background of laws making it a criminal contempt to record court proceedings without the judge's consent.
What is the purpose of this criminality?
The only reason I can think of is as I mentioned before, and that is not convincing, so I trust there is a better one.
You will have to look back at Parliamentary history
Start with the Contempt of Court Act 1981, and look back. I suspect it was a restatement of the existing position.