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If I had a photograph of you

An imaginary judgment   (is scanning documents in a court building illegal?)

The Court is today dealing with a matter of great trivia, which at the same time has a great deal of import for the legal community and for once not merely in the omphaloskepsis manner of mere curiousity in the law, but in the day to day practice of advocates who appear before the Court.

The facts of the case are simple. Miss Rose Record is a family law barrister, who appeared before me today in a relatively straightforward case. At the conclusion of the case, a manuscript set of directions was prepared, and Miss Record left the court room, entered the robing room and at the request of her counterparts, used an electronic device (known as an ipad) to electronically scan a copy of those directions, which could then be emailed to the other advocates. This allowed all of the advocates to have their own copy of the document without delay, or the expense to the public purse of them all traipsing down to the court office to request photocopies of the document.

And that would have been the end of the matter, were it not for these factors. Firstly, a legal issue arose as to the legality or otherwise of what Miss Record had done. Secondly, the advocates concerned disagreed about this issue. Thirdly, the remainder of my list had collapsed, and finally, when my clerk alerted me to the nature of the debate, my curiousity was piqued. For the benefit of the taxpayer, I shall declare at the outset that all of the advocates dealt with the matter pro bono, my list had collapsed and I took the day off as leave. Any public costs that have been incidentally incurred, I shall myself meet.

Why should the issue of scanning be potentially illegal at all? The answer lies in section 41 of the Criminal Justice Act 1925.

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.
(2)For the purposes of this section—
(a)the expression “court” means any court of justice, including the court of a coroner:
(b)the expression “Judge” includes . . . F1, 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.

We have had some lively debate in this Court about whether there is a distinction to be drawn between scanning and photography. For my part, I am drawn to the simple argument laid out in this manner. The first stage in the scanning process is for a photograph to be taken of a document, then that image is stored electronically in a format that can be communicated electronically to any number of users. Clearly, the first stage therefore involves photographing the document, and hence taking a photograph. The ipad device, I am quite satisfied, has a camera built into it, and the scanning takes place by way of this camera. If the camera lens of the ipad were covered, the scanning process would not work. Scanning requires, therefore, the taking of a photograph.

Even if I had not been so convinced, the case of R v Loveridge [2001] EWCA Crim 973 makes the matter plain, I think. In that case, the Court of Appeal were tackling a case in which the alleged perpetrators of a robbery had been identified by witnesses to that robbery being shown video footage surreptitiously filmed of the alleged perpetrators on a mobile telephone by a police officer. That filming had taken place at a magistrates court, though not in the court room itself. The Court of Appeal had to grapple with the issue of whether video footage constituted photography and decided the matter thus :-

Obviously when the Act was passed in 1925, video cameras were not in contemplation. However, we have no doubt that the section should be applied in a way which takes into account the modern developments in photography. Accordingly we have come to the conclusion that a filming which took place at the court contravened s41. The conduct was therefore unlawful

I can see no reason to deviate from this – scanning is a modern development in photography, and the act of scanning involves the taking of a photograph.

Next, we have the issue that the scanning took place in the robing room, rather than in the court room itself. I am quite satisfied that this is entirely dealt with by s41(2) (c) which makes it plain that the prohibition is not confined to the court room but covers the entire building in which the court is housed, together with its curtilage.

The final matter involves an analysis of the placement of the commas in section 41 – in essence, whether the prohibition is on taking any photograph, or whether what was intended to be prohibited was the photographing, sketching or portrait making of any person within the Court (including the building).  This was not the most gripping part of the case, commas are seldom fascinating. My conclusion is that the framing of the Act is such that photographing is grouped separately to the prohibition of sketching or portrait making of a person within the Court, and it is photography of any kind and any subject that is prohibited. We did digress at this point to the realisation that were someone able to bring in clay and other such materials, a model could be made of any person without being in breach of s41, or even a block of marble (though I have doubts about whether the requisite chisel would make it through security in this difficult times in which we now live)

That seemed, very much to be that. Scanning would fall foul of section 41 and thus be unlawful, no matter how useful or harmless it is. There is not a discretion within the Act for the Court to permit or direct photography, and the offence is a strict liability one. To be sure, the financial penalty itself is not significant, but for advocates who depend on having a blameless criminal record to practice, the risk (no matter how small) of prosecution is not one to be sniffed at.

That would have been that, had we not risen following submissions for a short comfort break. On our return, Miss Rose Record took the unorthodox step of asking to call a witness. This was unexpected to say the least. Nobody had anticipated that oral evidence would be heard in this test case, nor that it would be of any particular value. Nonetheless, I allowed it.  Even more unexpectedly, although the witness was an expert witness, he had not been commissioned, nor invited or requested to attend. Miss Record had happened upon him, quite by chance, hard at work in the court building.

He was a photocopier repair man.

He gave evidence before me, unchallenged, as to the nature of a photocopier, and broadly, how it worked. There is a camera within the device, which takes a photograph of the document, which is then duplicated.

We all instantly saw the point, and I am not ashamed to say that a small peal of applause broke out in the Court room and that it was led by me. There is no fundamental difference between scanning a document and photocopying it. Both are photographing it.  And if s41 is valid law, both are equally illegal if they take place in the Court. And Miss Record reminded me that this was not restricted to the court room itself, but to the entire building.Every time the “copy” button is pressed on a photocopying machine within the Court building, an offence is committed.

Any advocate, or member of the court staff (or even the judiciary, who have been known to press a button or two themselves, being not entirely helpless) is in breach of section 41 if they use a photocopier which is situated within the court building. The court could not carry out its basic functions if they were deprived of the use of a photocopier and the same would be true up and down the land. Nor could it be feasible for every advocate who has ever used a court photocopying machine, or every judge who has asked for a document to be copied, nor every employee of Her Majesty’s Court Service to be prosecuted for breach of section 41. This would manifestly and plainly intefere with the right to a fair trial of every user of the Court  (since they would have no advocate, no judge, no court staff, who could progress their case); and if all copying machines were removed from the Court, the delays and costs of having to go out of the building to get copies – particularly in the Royal Courts of Justice, would be immense.

Therefore, section 41 as currently drafted, simply must be incompatible with article 6 of the Human Rights Act and I would be driven (were this not a hypothetical case) to make such a declaration of incompatibility. Photographing a person would remain validly prohibited, but a restriction on using photography to make an image of a document simply cannot be legitimately prohibited without making criminals of us all.

(I really should just go to sleep – thank you to Lucy for raising the question in my mind, and the peculiar answer that came to me in the middle of the night)

Postscript  – whilst this seemed ridiculously trivial when I started, the additional concerns now arise :-

1. If photocopying in the court premises is an offence, how is it legitimate to charge for it, and how much revenue has been generated by the courts in doing this since 1925?

2. If filming in court is a breach of s25 (pace R v Loveridge) and there isn’t discretion for the judge to waive s41 (I haven’t found such discretion) then how is video-link evidence whereby the court is filmed so that the witness sitting elsewhere can see the judge and advocates not a breach of s41?

3. Are adopters who attend for an adoption ceremony, who routinely take photographs and are generally welcomed by the judiciary in doing so, inadvertently in breach of s41? If they are not, then the Judge must have power to waive s41, but there isn’t that power specified anywhere I can find.

4. The amendments to s41 proposed in the Crime and Courts Bill relate only to ‘recordings’  and don’t affect photography  (although s22 of the Crime and Courts Bill suggests that the draftsmen believe, perhaps mistakenly that the prohibition on photographs applies only to photographs of persons present at Court)

 

I’d suggest that an easy solution would be for s22 to be amended (given that it is going through a process of finessing and polishing in any event, may as well get it right now)  to make it plain that the prohibition in s41 is of photographing or filming persons attending Court UNLESS the Judge authorises such photography or filming.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

One response

  1. Utterly brilliant analysis of a particularly thorny issue. Well done. You are elevated to the High Court bench.

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