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Taking photographs in Court

If you’ve ever been to Court, you probably saw at some point amongst all the pinstripes, cufflinks and bags under the eyes, signs telling you that you aren’t allowed to take photographs.

It is a criminal offence to take photographs in Court, you might even have had security staff take a camera away from you to be collected later.

The law about this is s.41 of the Criminal Justice Act 1925 (CJA 1925).   Of course, in 1925, it was probably an awful lot easier for a security guard to detect that you have come in with a camera in your possession

 

Are you illicitly taking a photograph? "No, just please stand very still for 20 minutes longer though"

Are you illicitly taking a photograph? “No, just please stand very still for 20 minutes longer though”

 

Nowadays, most people have camera phones. And not necessarily ones as obvious as this

 

As designed by Jermaine from Flight of the Conchords

As designed by Jermaine from Flight of the Conchords

 

Not only can you not take a photograph inside a Court room, any photographs within the building are within the offence. One of the photographs within a reported case R v Vincent D (Contempt of Court: Illegal Photography) [2004] EWCA Crim 1271 was taken in the Court canteen.  (You can insert your own Ronnie Corbett style joke about Court canteens if you wish)

You can’t make clay models of people either, or sketch them. Yes, even those Court artist sketches aren’t allowed to actually happen within the Court room, the artist has to do them later from memory, which explains a lot.

No, to be fair this witness MIGHT have been Kevin Bacon after twelve months in Guantanamo and then being possessed by a demon.

No, to be fair this witness MIGHT have been Kevin Bacon after twelve months in Guantanamo and then being possessed by a demon.

I wrote about the weird intricacies of the law on photographing in Court buildings years ago, here

 

https://suesspiciousminds.com/2012/07/03/if-i-had-a-photograph-of-you/

 

That was an imaginary judgment. It is quite unusual to see a real judgment about someone being prosecuted for doing this, but that’s the subject of this blog. In particular, it deals with the situation where the taking of photographs wasn’t something which just happened, but where it was indicative of defiance and contempt for the Court process, particularly where the photographs were then placed on social media and comments added to them.

 

HM Solicitor General v Cox and Another 2016

http://www.bailii.org/ew/cases/EWHC/QB/2016/1241.html

 

This case involved a nasty murder trial, where the accused (later convicted) was said to have filmed the murder and watched it on a mobile phone for enjoyment later. Two of his friends attended Court, and photographs were taken and placed on social media.

 

 

  • Parker-Stokes, aged 18 by 4 August 2014, had arrived at the Crown Court during the morning session. He noticed that another friend of his was appearing in Court 2. He went into Court 2. There, he took a photograph on his mobile phone of his friend on the screen, appearing by video-link. In the afternoon, Parker-Stokes was in the public gallery of Court 2 with Cox, Sheppard’s family and other friends, for the sentencing of Sheppard. From there, on his mobile phone he took five photographs and a short video of Sheppard in the dock. Some images show dock officers. Some images, and the video, include part of the notices prohibiting the use of mobile phones; the composition of the pictures suggests that that was deliberate.

 

Hint, if you are later going to argue that you hadn’t seen the signs saying that mobile phones and photography weren’t allowed – DON’T ACTUALLY PHOTOGRAPH the signs themselves.

 

  • Cox, now just 18, had also arrived at the Crown Court in the morning. He went into Court 10 where HHJ Picton was sitting. At 10.57 a.m. he used his mobile phone to take a photograph of the judge. The court was in session but it appears that no case was actually being heard. Cox was later present in Court 2 for Sheppard’s sentencing hearing.
  • Some of the images were uploaded on to various Facebook pages, with comments. On 4 August 2014, Parker-Stokes uploaded an image of Sheppard in the dock on to Sheppard’s Facebook page, adding the comment: “Respect g at least u had the balls to admit it accept some slaggy little girls who are two shock to admit it that had to try to blame it on u nuf love xx.” The two girls referred to were the acquitted co-defendant and a key prosecution witness. That same day, Cox uploaded the same image on to his own Facebook page, adding this: “Ride or Die Certified Southwest G”. It was not seriously disputed but that “G” was in common use as a shorthand for gangster, and “Southwest G” was a self-descriptor used among the likes of Sheppard and his friends, that is to say youth within the criminal justice system in Weston-super-Mare. Cox also commented on Sheppard’s Facebook page, under the image of Sheppard in the dock: “Ride it g love ya loads snm anyone got summat to say say it love ya kid xx”. On 6 August 2014, Cox uploaded on to his own Facebook page the picture which he had taken of HHJ Picton in court, adding the words “Fuk the judge!”.

 

Again, you have to admire the later chutzpah of Cox claiming that the comment ‘Fuk the judge!” was not directed at the Judge in particular, but the judiciary in general. I’m sure the Court loved that.

 

 

  • At that time, Sheppard’s Facebook page was accessible by 276 “friends”, and Cox’s by 1406 “friends”. 25 people “liked” the posting on Sheppard’s Facebook page, with 7 commenting on it. 63 “liked” the posting of the image of Sheppard, with commentary on Cox’s Facebook page, with 3 commenting; 43 “liked” the posting of the image of HHJ Picton, with its comment.
  • The family of the murder victim, Mark Roberts, brought the Facebook postings to the attention of the police team which had investigated his murder and, later, court staff did the same. HHJ Ford QC was informed of this and that the police were proposing to refer the matter to the Attorney General’s Office, once the investigation was complete. He asked that the Attorney General be informed that it was, in the judge’s view, important that the Attorney General appreciate that the image of Sheppard had been taken during the sentencing hearing for an offence of murder, and at a time when the deceased’s family was in court; and that the text material attached to the images suggested that they were being treated as “trophy images”.
  • Parker-Stokes was arrested and interviewed on 25 September 2014. He admitted taking the picture of Sheppard in the dock and posting it on Sheppard’s Facebook page, with the accompanying text, but said that he did not know it was an offence to take pictures in court. He “apologised” for his actions. It was only later that the other photographs and video on his mobile phone were discovered, and he was interviewed again in December 2014. He admitted taking them but maintained his ignorance that taking photographs was an offence. He denied having read or seen the signs at the Crown Court prohibiting the use of mobile phones in court. He again said that he “apologised” to the court and to the family of Mr Roberts, but continued to deny committing any contempt.
  • Cox was interviewed the day after Parker-Stokes was first interviewed. He admitted taking and posting the image of HHJ Picton, but also said, untruthfully, that he, not Parker-Stokes, had taken the image of Sheppard in the dock and had uploaded it to Facebook; indeed, he claimed that he had taken all the photographs. He refused to tell the police where the mobile phone was, giving “no comment” answers to questions about it. He too “apologised” for his actions, but denied knowing he was committing an offence.
  • Neither Cox nor Parker-Stokes are unfamiliar with courts and their procedures: Cox has been convicted on 9 occasions of a total of 16 offences, 4 of which related to police, courts or prisons. He was last convicted in March 2014, and was on licence on 4 August following a custodial sentence arising from earlier breaches of court orders; Parker-Stokes has been convicted on 21 occasions of 54 offences, with an extensive history of breaching court orders. 27 of his offences related to police, courts or prisons. His most recent conviction was in September 2014.
  • There are signs at the entrance to every court room at Bristol Crown Court, slightly larger than A4 size, saying: “Notice to All Court Users. The use of mobile telephones, recording equipment and personal stereos is not allowed in the courtrooms”. Another sign at the entrance to courtrooms, and it appears to be the one visible in the photographs taken by Parker-Stokes from the public gallery, states: “Switch off mobile phones. Please ensure all mobile phones are switched off before entering court or hearing room.” At the entrance to the public gallery for Court 2 is a sign saying, among a short list of requirements, “….Mobile phones should be switched off and remain out of sight.” The general information board has a notice saying: “It is an offence to take photographs, record video clips or make unauthorised audio recordings anywhere in this hearing centre.”
  • Parker-Stokes’ affidavit for these proceedings stated that his comments were meant to congratulate Sheppard for having the courage to admit what he did, unlike the two girls who were with him at the time, and who blamed it all on him. “Respect” was a greeting. “G” was simply something that his friends called each other; he did not know that it meant “gangster”. He wanted Sheppard to know that he was thinking of him. It was not done to glorify Sheppard. Mr Willmott on his behalf submitted that no alternative meaning had been put forward. He had no intention of interfering with the course of justice, and “did not foresee that justice might be interfered with”. He had not been to the Crown Court before and was unaware of the prohibition on taking photographs. He was distressed to learn that the victim’s family had seen the photographs and comment, since they would not understand what he was saying; he would like to apologise to them. Parker-Stokes was in custody at the time of the contempt hearing, and declined to come to court. He had the opportunity to give evidence before us, but in effect declined it.
  • Cox decided to give no evidence either, but he had failed to provide the required affidavit for that purpose anyway. We focus on the submissions made on behalf of Parker-Stokes, since, after the hearing, Cox admitted that he was guilty of contempt of court, and was therefore in a position to apologise for his contempt, as he did. This was a course of action for which he will receive credit.

 

 

The prosecution here were concerned that taking photographs in Court particularly of criminal trials, and particularly whereas here it seemed to be as a trophy and act of defiance, was increasing in prevalence, and the punishment required more than the level 3 fine of £1000 allowed by the 1925 Act. They sought to commit on the basis of contempt, which can obviously carry a custodial sentence.

For non-lawyers, the Latin here – actus reas and mens rea may seem a bit confusing. Any criminal act requires two ingredients – the guilty act (actus reus)  the thing you did, and the guilty mind (mens rea)  what was in your mind at the time.  The actus reas is always the easy bit to understand  “Did X stab Y, Did X take the DVD player from Y’s house, Did X take photographs inside a Court room?”.  The mens rea can be trickier – some offences can be Strict Liability  (just doing the act is enough, you don’t need the mens rea element – many driving offences, for example), some are “Intent”  – the prosecution need to prove that X intended to injure Y, or to dishonestly deprive him of the DVD player etc, and some are “Recklessness”  – that X did the act without proper care and attention as to what might be a likely or possible consequence of that.   [Sorry, I have just squashed about 3 weeks of Criminal Law into one paragraph, so it is necessarily a rough summary]

 

(a) Submission of the Solicitor General

 

  • Mr Watson on behalf of the Solicitor General submitted that the use of mobile phones to take photographs in courts, and in criminal courts especially, and then to disseminate the images on social media was an increasing concern. The Solicitor General sought to establish clearly that these were indeed contempts by both the taking of the photographs and by their subsequent publication on social media, which Parker-Stokes continued to dispute, and that these two forms of contempt were to be taken very seriously indeed, with commensurate punishment.
  • Although s.41 of the Criminal Justice Act 1925 (CJA 1925) makes it an offence to take pictures in court, and also to publish them, each punishable on summary conviction by a Level 3 fine, the Solicitor General considered that such summary proceedings would inadequately reflect the gravity of the conduct in the present case and the wilful defiance and affront to the authority of the court. The context in which the photographs were taken, followed by their publication on social media, together with the “trophy” or “glorifying” element of taking and publishing the images, were among the main factors aggravating the contempts; the murder itself had been videoed by a person present at the scene, and the images of Sheppard had been designed, it should be inferred, to capture the prohibition on what was being done in the images themselves. The contemptuous statements accompanying the images on Facebook were another serious aggravating feature, as was the distress which such postings would obviously cause (and had in fact caused) to the victim’s family. The criminal records of Parker-Stokes and Cox, and the nature of their offending, were further aggravating features.
  • Mr Watson submitted that the actus reus of the contempts was made out in relation to the taking of photographs in court and their publication by the very fact that each was an offence under s.41 of the CJA 1925: it is an offence to take in any court any photograph under s.41(1)(a), or to publish any photograph taken in contravention of s.41(1)(a) under s.41(1)(b). The fact that the photograph of HHJ Picton in his court was taken at a time when no case was being heard did not prevent that being an offence in view of s.42(2)(c), which deems a photograph to have been taken in court if it is taken in the courtroom or in the building or its precincts. The use of the mobile phones for taking the photographs was also in breach of the various orders posted around the court buildings, which should be taken as judicial or judicially sanctioned orders made for the purpose of preventing interference with the due administration of justice. The publication of the images through the Facebook postings constituted a contempt for the same reasons. It was itself an offence, and it compounded or was a purpose of the contempt committed by the taking of the photographs. Orders prohibiting the use of mobile phones and photography prohibit, by necessary and obvious implication, the publication or other use of images obtained by breaching them.
  • Mr Watson did not contend that, on the facts of this case, the comments relating to the images of Sheppard, although significant aggravating features, were separate acts of contempt themselves. Cox, in interview denied that he had any feelings of hostility towards HHJ Picton; “Fuk the judge” was directed at the judiciary in general, personified for these purposes by the image of HHJ Picton in court. Although the offence of scandalising the judiciary was abolished by s.33(2) of the Crime and Courts Act 2013, the Act provided that an act of “scandalising the judiciary”, remained punishable as a contempt if it was also another form of contempt. We agree that on the facts of this case those words may not amount to another form of contempt, but that they should be regarded as an aggravating feature of the contempt committed by Cox’s admitted contempts in taking and publishing the photograph of HHJ Picton.
  • Mr Watson contended that the mens rea of contempt relevant here was that each of those acts was deliberate, though he also submitted that if a specific intention to prejudice the course of justice were required, this Court should infer that that intention had been proved on all the evidence.

 

 

 

What did the defence say? Well, unsurprisingly, they focussed on the mens rea element, as they were bang to rights on having actually taken the photographs.

 

b) Submission on behalf of Parker-Stokes

 

  • Mr Willmott submitted on behalf of Parker-Stokes that the actus reus of contempt was the creation of a real risk that the course of justice, in some not insignificant way, would be prejudiced or impeded. The fact that taking photographs in court was a criminal offence did not make the act of itself a contempt of court; nor of itself would the fact that an act was done in disobedience to a direction of the court. It would not be right to extend the ambit of contempt in this way when the statutory offence under the CJA 1925 had been created to deal with this particular issue. There was no evidence that the signs about the use of mobile phones were based on any order of the court. There was nothing in the photograph of Parker-Stokes’ friend appearing by video-link which could interfere with the administration of justice. There had to be a specific intention to impede or prejudice the course of justice, and that could not be proved here.
  • The issues revolved therefore around the actus reus and mens rea for contempt of court in the illegal taking and publication of the photographs.

 

The defence here are arguing that for contempt (rather than the statutory £1000 fine under the CJA 1925) the mens rea had to be that there was a SPECIFIC INTENTION to impede or prejudice the course of justice. The prosecution would have to prove that.

 

What did the Court decide on actus reas?

(3) The actus reus of contempt

(a) The interference with the proper administration of justice

 

  • The taking and subsequent publication of the photographs on Facebook, in our view, each constitute the actus reus of contempt. First, illegal photography will in general interfere with the proper administration of justice through the very fact that it defies the criminal law relating to the administration of justice. Second, the statutory prohibition on photography in court is also a reflection of the serious risk to the administration of justice necessarily inherent in photography in court without the permission of the court which can be given under the relevant statutory provisions in very limited circumstances. This prohibition is underlined by the notices forbidding the use of mobile phones and photography in court buildings. These were plainly worded as orders, obviously made to protect court proceedings and clearly made with the approval of the court to protect its proceedings from interference. Such photography inevitably poses serious risks to proceedings or participants in them; those serious risks may be continued or enhanced by the use made of illegal photographs, whether by publication or some other use. The facts of this case illustrate both those serious risks.
  • The real and specific risk of serious interference with the proper administration of justice are evident. Although the taking of the photographs was not noticed by any responsible person at the time, and these illegal acts did not in those circumstances disturb proceedings, the serious risk posed by photographs taken during the sentencing hearing to its proper conduct is obvious. If the taking of the photographs had been observed, the proceedings would have suffered a grave distracting interruption, perhaps at a very sensitive stage, adding greatly to the stress and grief of the victim’s family and friends; and perhaps to some of Sheppard’s. It would have been obvious that it was a friend of Sheppard who had taken the photograph. Furthermore, and especially in the context of the previous use of a video to record and revel in the murder, it is not hard to see not only the immense distress it would have caused to the family of the murder victim but also the public order consequences which could have arisen. Some of the photographs included the dock officer, and although he could not be identified from the photographs directly, it is possible that digital enhancement could reveal who he was. The taking of the photographs was also the necessary precursor to the publication of one on two Facebook pages, with offensive commentaries.
  • The photograph, taken in breach of the criminal law and of the various orders posted around the court building, of Parker-Stokes’ friend appearing in the morning over the court video-link, created the real risk of interference through disruption of the proceedings, though less sensitive, even if no use was to be or had been made of them. The same also applies, as is now accepted, to the photograph of HHJ Picton, taken by Cox.
  • The publication of the illegally taken images was itself a contempt, and one which aggravated the contempt committed by the taking of the images. The publication of an illegally taken image is an offence. It was also by obvious and necessary implication, contrary to the orders posted in the court building which forbad the images being taken at all. Any such publication shows, even boasts, that the criminal law and authority of the court, in its orders, has been successfully flouted, diminishing its necessary authority over the conduct of its proceedings and its role in upholding the rule of law.
  • The illegally taken photograph of Sheppard was published as the vehicle for comments which on any view were designed to express public support to the murderer, on behalf of his friends. Parker-Stokes’ and Cox’s posting showed to the public, constituted by their selection of Facebook friends and others, a successful breach of the prohibition on photography, which one of them had got away with, and which those with access to the image could then use for their own amusement or for support of a murderer. Those involved in other cases, in whatever form, but not least the youth of Weston-super-Mare, would be aware that a prohibition which they might equally wish to breach, could be breached for their own purposes. Those involved in upholding the proper operation of the criminal justice system, including witnesses, would be aware of the publicity which could be given to them through the use of illegal photographs. That obviously creates a serious risk to the due administration of justice.
  • The sentencing stage of criminal proceedings is serious for all concerned, including the family and friends of the victim, who are entitled to see, their loss notwithstanding, that the law and the authority of the court has prevailed and their status as victims of the most serious crime were properly respected. Instead, publication of the photograph of Sheppard, and the opportunity this gave for the various comments, underlined his friends’ affront to the proper administration of justice. Here, at a time when it sentenced Sheppard for murder, the authority of the court had been flouted by a friend of the murderer by taking the photographs, and then again by his two friends in the publication of the image on the two Facebook pages, aggravated by the commentary. The publications told the murderer’s friends that Parker-Stokes and Cox had got away with breaking the law and breaching the court’s orders; that they had no regard to the feeling of the murder victim’s family. It is important to recall that the sentencing of a criminal and its immediate aftermath and the respect to which victims are entitled are an essential part of the due administration of justice; the actions of Parker-Stokes was a grave interference.
  • We reject Mr Willmott’s contention that there had been no real risk to the course of justice from publication, even if he were right that digital enhancement could not lead to the identification of the dock officer. True it is that no court official could be identified; the photographs gave no information about the layout of the court which could not be obtained from a quick glance from the public gallery; the trial itself was over; the Facebook postings could not interfere with the actual sentencing hearing since that stage, the last in the process, had concluded before they were made. However, he entirely overlooked the grave interference and serious risks which did arise, as we have set them out, in enumerating others which might not.
  • Although the criminal proceedings were ended, absent any appeal, at the conclusion of the sentencing hearing, the interests of the due administration of justice did not simply end there, as we have explained. The CJA 1925 prohibition on taking photographs does not end; the prohibitory notices in the court building continued to have effect. Participants, including witnesses and jurors, may face reprisal, intimidation, abuse. One witness and the acquitted co-defendant did face such abuse through the comments accompanying one of the Facebook postings. The judiciary faced abuse. The due administration of justice plainly also includes the protection of victims and their families from the use of illegally taken photographs for whatever purpose, including to undermine or belittle the outcome of the criminal process or the authority of the court.
  • The fact that taking photographs in court and publishing them are criminal offences, does not prevent those acts being punishable as contempts of court as, for the reasons we have given, these actions pose serious risks to and interfere with the due administration of justice: the court obviously has power, as it needs, to deal immediately with anyone seen taking photographs, in order to maintain control over its proceedings, and to avoid it standing powerless while the law designed to protect the administration of justice is broken before it. With the current technical capabilities of mobile phones and the internet, such photographs can be published almost immediately, or emailed from the phone for later retrieval or use by others. Whilst the later publication of such photographs may not be a contempt in the face of the court, it is still a contempt, quite apart from the fact that it is a criminal offence, since publication for a variety of reasons may be the very purpose behind the taking of the photograph illegally. While a summary criminal charge may be the appropriate response to some illegal photography, there are other cases in which it will not be and needs either swifter or more condign action by the court to uphold the due administration of justice; this was such a case. It clearly required the Attorney General to bring proceedings for contempt, taking into account the gravity of the risks and of the interference with the due administration of justice.

 

 

 

And on mens rea. Firstly, the Court gave a judgment as to whether on the facts of this case, even the highest form of mens rea “Specific intent” was made out, and were satisfied that it was

 

 

 

  • First we will assume that it is necessary to prove specific intent. On the facts of this case, we are sure that the mens rea was proved on that basis to the criminal standard. It is sufficient mens rea, for the specific intent to impede the course of justice, if the contemnor intends to risk impeding the course of justice by his acts, even if he did not intend the precise manner in which his acts will have that effect.
  • Mr Willmott submitted that the acts were not ones which would obviously interfere with the course of justice. Subjective foresight was required at the time the acts complained of were done. The photographs created no risk to the administration of justice, but even if they did, there was no basis upon which it could be concluded that a young man with no record of significant educational achievement, doing acts which were not obviously likely to affect the administration of justice, had any intention of creating such a risk. The comments with the postings did not target the victim or his family. Neither taking the photographs nor publishing them could show an intent to interfere with the course of justice unless that accorded with his understanding of the course of justice and what would interfere with it. We reject this submission.
  • First, we are sure that, although Parker-Stokes did not know of the CJA 1925, he did know that the use of a mobile phone was prohibited in court, and that would include its use for taking and publishing the resulting photographs. Parker-Stokes denied knowing that he was not allowed to take photographs at court, as he was “too worried about Ryan Sheppard to notice any signs”. We reject this evidence as plainly untrue. There were many and clear notices which he would have passed, during his idle time at the Crown Court, telling him what the position was. He was there for some time, and went into two courts. No one noticed him taking the photographs, which suggests that he took them surreptitiously; that was because he knew it was prohibited. He did read enough at court to enable him to go into a different court in the morning where he had seen that a friend was appearing over the video–link. He also managed to capture relevant parts of the signs in the photographs themselves – from which it is obviously to be inferred that he wanted to demonstrate his contempt for the prohibition, his deliberate defiance of it and his disregard for the proper administration of justice. He had experience of court precincts and procedures. He also had convictions for offences of dishonesty. Mr Willmott pointed out that dishonesty was not necessarily to be equated with untruthfulness and his previous convictions did not involve telling lies; however he also has convictions for offences which show a willingness to disregard court orders. Parker-Stokes did not attend to give evidence and to be cross-examined on the basis of his affidavit, and there were many questions which merited being asked. We are entitled to draw the inference that he did not attend because he had no good answer to them: how could he miss the signs? How could he have been so anxious as to miss them all? Did he not see them as he photographed them? How it was nobody noticed him if it were not done surreptitiously and if so why so? What did he think that the purpose of the prohibition was?
  • Second, we are satisfied that, just as he lied over not knowing of the notices, he lied over the absence of intent to impede the course of justice. He knew that the taking of photographs was prohibited. It follows that he must have realised that it was equally prohibited to publish prohibited photographs. He must have realised that the prohibition served the due administration of justice, even if he may not have known precisely how. We are sure that he understood well the problems which he risked creating if he were seen taking the photographs. The one of his friend on the video-link would also obviously have interrupted the proceedings. The ones taken during the sentencing hearing, aware as he says he was of the distress which the Facebook postings caused and which he had therefore not intended relatives to see, would have caused obvious distress and disruption as he was well aware, if he had been seen taking them.
  • We are also satisfied that he intended to impede or to risk impeding the course of justice by the publication of the image on Facebook. That demonstrated that he intended to show to his friends and associates that he had breached the prohibition, and had got away with it. He knew that, as the prohibition served the administration of justice, so its breach would impede it. His deliberate act intended what he knew would happen, putting the course of justice at risk in that or in some future case by showing that he could disobey a court order for his own and his friends’ amusement, and do so by adding his offensive comments supportive of a recently sentenced murderer. The comments which he posted on the Facebook entry are relevant to what intent we infer he had. He may not have intended that the relatives or the police or courts should see it. But he intended that his breach of the prohibition should be seen by others, among whom would be the criminal youth of his area. That is damaging to the course of justice in other cases as people realise that a protection for them can be breached, or court orders disobeyed for their own purposes.
  • Although our conclusion on these matters puts the guilt of Parker-Stokes beyond doubt, on the assumption that we accept Mr Willmott’s on the required intent, we will also express our view on whether specific intent is in fact required as we have heard full argument. We do so even though we consider that the lack of specific intent will rarely arise in practice, given the inferences that can generally be drawn.

 

 

But then went on to decide that specific intent was not going to be necessary  (although someone who is able to evidence, for example that they genuinely could not read the signs prohibiting photograpy – perhaps they don’t speak English or cannot read, could be found to NOT have committed contempt)

 

(d) Conclusion on the intent required for this type of contempt

 

  • The circumstances in which contempts of court arise are too varied, in our judgment, for one mens rea to be applicable to all forms of contempt. Nor is that the law. We are not concerned with contempt in publication cases, where there is no court order prohibiting publication, and what we say does not apply to it. Nor are we concerned with the sort of order or act involved in the Spycatcher or Leveller Magazine cases. Nor may all acts be readily pigeonholed in to one broad and general category of contempt or another. But we are concerned with acts which fall into the broad category of contempt in the face of the court or contempts closely related to such contempt.
  • The general description of the nature of contempt in Robertson and Gough, at paragraph [29] of its decision, is a good starting point: “conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”. The purpose of contempt proceedings is “effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented”; Salmon LJ in Morris v Crown Office [1970] 2 QB 114, 129, cited by the Law Commission in consultation paper 209 “Contempt of Court” at paragraph 5.8. A judge must be able to control proceedings so that they do not get out of order. Contempt in the face of the court, suggested the Law Commission at paragraph 5.3, borrowing from paragraph 10.2 of Arlidge, Eady and Smith on Contempt concerns “some form of misconduct in the course of proceedings, either within the court itself or, at least, directly connected with what is happening in court”. Such contempt need not be witnessed by the judge, and the concept of the face of the court is interpreted broadly; the photograph taken in the canteen in Vincent D is an example.
  • Contempt in the face of the court may require speedy action, whether by removing or detaining a person or lawful warning that that may happen if an act is repeated. If a person is seen taking photographs, the court has to have the power to seize his phone, for the images to be checked and if necessary deleted, for any onward transmission to be prevented, and for the person to be removed from court to the cells for inquiries to be made, followed by any punishment later that day. In the overwhelming majority of cases, it will no doubt be readily inferred that the person deliberately taking photographs intended to interfere with the due administration of justice.
  • However there may be rare cases where that is not the inference; in such cases it should be no bar to those steps for the person taking the photographs deliberately to say that he was unaware of the CJA 1925, or that he had not read or understood the prohibitory notices, for example if he were illiterate or foreign, or that he had no intention of interfering with the administration of justice, but had tried to take his photographs unobtrusively, just wanting a personal souvenir. It is therefore necessary to decide whether a specific intent is required. In our view, it is not. It is sufficient mens rea that the acts must be deliberate and in breach of the criminal law or a court order of which the person knows.
  • No specific intent is required beyond that. The substance of this part of the common law is to enable courts to prevent and punish interference with the administration of justice by acts done in the face of the court. The intent required cannot depend on the foresight, knowledge or understanding which the ignorant or foolish might have of the ways in which his acts risk or actually do interfere with the administration of justice. The ignorant and foolish, who are unaware of the law or who read prohibitory notices but do not understand their purpose, and do not realise the risks which their acts may create for the trial or other court process, and who may be right when they say that the risk or the actual harm was not what they ever intended, could not be dealt with at all for contempt in the face of the court. Yet they may cause the most serious harm. A defence that the contemnor is not guilty because he did not realise what could happen, and intended no interference, would put the court proceedings at greater risk the more ill-informed the contemnor was prepared to say he was, or actually was. The power of the court to react swiftly to acts of this sort, which risk interference with the administration of justice, cannot be dependent on any further specific intent to interfere with the course of justice, without creating a serious risk of neutering the court in the exercise of its powers when it may need them the most.
  • The fact that the contempt may not be noticed at the time and may be dealt with by an application for committal as here, cannot mean that the same acts must be accompanied by a different intent for the contempt to be proved. The question of what mens rea is required is not dependent on the form in which the contempt proceedings are brought. (There was at one time a suggestion on behalf of the respondents, but rightly not pursued, that the provisions of CPR Part 81 provided some assistance on these issues. But that is misconceived; those procedural provisions do not provide or change the substantive law of contempt.)
  • In the case of the person breaching the criminal law, it is not necessary that he should know what the law is before his deliberate and illegal act, risking interference with the due administration of justice, can be treated as a contempt; no court order, whether in the form of a notice or not, is necessary for that crime to constitute a contempt. A person cannot defend himself by evidence that, ignorant of the criminal law and unaware of the prohibition on photography, he could not intend to interfere with the administration of justice. If there were no signs prohibiting the taking of photographs in the part of the building where the act takes place or prohibiting the use of mobile phones in court, and there may be none say in canteens, the court could not be left powerless to deal with the risk created to the administration of justice as a result of ignorance of the criminal law on the part of the person whose acts create or risk creating the interference. The same applies to publication of illegally taken photographs in the Facebook postings.
  • Where the act which constitutes a contempt in the face of the court, or one closely akin to such a contempt, is not a crime, the deliberate breach of a court order of which he has notice will be sufficient. It is not necessary that the person additionally intended by his breach to interfere with the administration of justice, though for the reasons we have set out and which were considered in Dallas, it will generally readily be inferred that such an intention is established. It does not matter in principle whether the order is specific, as in a judge’s direction to a jury on internet searches, or general, as in the public notices in court buildings. The latter are there, either reflecting the criminal law, or, where not, expressing what every judge requires and relies on to let the public and participants know what is required for the administration of justice. Where a person knows of the court order and deliberately breaches it, he knows that the prohibition which he breaches was put in place to prevent interference with the course of justice. Therefore, the questions whether the breach was knowing and deliberate and whether it was intended to interfere with the course of justice amount to the same question, even if the person may not have realised or understood quite how the administration of justice could be interfered with. He would know that it would be put at risk.
  • The Facebook postings may not be contempt in the face of the court, as we have observed at paragraph 31 above. There were obviously no signs saying that illegally taken photographs could not be posted on the internet or published in some other way. However, even if such publication is not a contempt in the face of the court, the required mens rea should be no different from that applicable to contempt in the face of the court. First, the deliberate publication of illegally taken photographs is a crime under the CJA 1925. Second, the taking of photographs does involve a contempt in the face of the court, and their publication is directly connected to the purpose and effect of that contempt; it may take place almost simultaneously. Third, the prohibition in notices on the taking of photographs and the use of mobile phones must carry with it by necessary implication the prohibition on the publication of what their use achieves. The publication of what are known to be illegally taken photographs must be regarded as a breach of the same prohibitions. It is also a form of contempt which, in our judgment, can be dealt with by the summary procedure, if the circumstances are apt for it.
  • The authorities support this approach to mens rea for this sort of contempt. We do not need to repeat what is derived from Vincent D, Ivanov and Robertson and Gough; they plainly support it. We gain no assistance from authorities which do not deal with this sort of situation. The real issue is whether Dallas shows that to be wrong, as Mr Willmott contended. Mr Watson submitted that Dallas was not a case dealing with contempt in the face of the court, for which the tests were different.
  • Dallas did not consider the mens rea required for deliberate acts which were not in breach of some order of which the contemnor knew, but which were in breach of the criminal law. Whether ignorance of the criminal law by the contemnor is described as providing no defence, or whether there is a presumption that a person knows the criminal law, the contemnor is taken to know of the existence of the criminal law, and so a deliberate act, which is an offence, is treated as a knowing breach of the equivalent of an order. If punishable as a contempt in the face of the court on the basis of a deliberate act, it is punishable also on an application to commit on the basis of a deliberate act.
  • The Divisional Court did decide in Dallas, in our judgment, that a knowing and deliberate breach of a court order sufficed to provide the mens rea of contempt. The oral exchanges, noted but not relied on by the Strasbourg Court, support what is the clear meaning of [38] and [39] of the Divisional Court judgment in Dallas. We are satisfied that Dallas in the Divisional Court is wholly consistent with the conclusion to which we have come. The Strasbourg Court did not regard it as changing the law. This explains why Davey and Beard, above, in its very brief introduction to the law, treated Dallas in the Divisional Court as no different from cases which had referred to the need for a specific intent.
  • The Strasbourg Court was right that there is no difference in that sort of case between the answers to the questions of whether there was an intent to interfere with the course of justice, and whether the breach of the order was deliberate and knowing. The need for some specific intent over and above the deliberate and knowing breach of an order, made for the protection of the administration of justice, is not required. It is proven in reality by the deliberate and knowing breach itself.
  • In Schot and Barclay, to which we have referred at paragraph 51 above, it was accepted that mens rea was required but it suggests, p398 C-E, that evidence that someone did not want to disrupt proceedings by refusing to reach a verdict, had provided evidence that they lacked the relevant intent, and it was also for question whether they had foreseen that the judge would discharge the entire jury, rather than just the two jurors, so enabling the trial to continue. The real issues in that case revolved around the procedure adopted by the judge, and the exposure of jury deliberations. The debate about mens rea would now have to be read in the light of the several later decisions, and ones more applicable to the sort of acts of contempt here. Spycatcher shows that intent and desire are different; what the juror wanted is not the issue. It is interference which must be intended, and the precise course of disruption which followed does not have to be intended or foreseen. The risk of interference appears not to have been considered at all. This decision is not now, in our judgment, of any real assistance in ascertaining the mens rea for contempt.
  • If a deliberate act which breaches the criminal law suffices, as in our judgment it does, then Parker-Stokes would have been guilty of contempt of court by the deliberate taking of the photographs and by the deliberate Facebook posting of one of them, even absent the specific intent we have found as established to the criminal standard of proof.

 

 

 

[Just the deliberate act of taking the photographs and posting them on Facebook was sufficient. ]

The men were convicted of contempt. They have not yet been sentenced, but I would expect a custodial sentence. Obviously the Court are going to be much sterner on a criminal trial, particularly on a murder trial, but it is a warning that photographs taken for the purpose of defying the Court and put up on social media run the risk of not just the £1000 fine, but a prison sentence.

 

 

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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.