John Szepietowski reviews the law on the Recording of Remote Hearings

The Covid-19 pandemic has forced many businesses to close their doors and move online. This has also been the case in the courtroom as many hearings are now heard remotely using Skype for Business, Cloud Video Platform, Microsoft Teams, or the Video Hearing Service. The hearings consist of both audio and video to simulate in-person court hearings as much as possible. Government guidance suggests that parties should dress as if they were attending court and follow the same formalities as one would in an in-person court or tribunal hearing.

The High Court case of SLF Associates Inc v HSBC Bank Plc & Ors 2021 EWHC 5 (Ch) was heard remotely via Skype Business on 27 July 2021 in which Master Kaye heard submissions regarding a property dispute. During the course of the online hearing, someone signed into the hearing as a ‘Legal Friend’ of the defendant. In non-criminal cases, parties are allowed, with the permission of the court, to have a friend or family member unconnected with the case join the call to provide support to that party.

Once the hearing concluded, Master Kaye was informed that someone had taken screenshots of the hearing which were then circulated to a number of people. There was an investigation into who initially took the screenshot and it was determined that the person who had signed in as the defendant’s ‘Legal Friend’ was the culprit.

Master Kaye referred the parties’ attention to Section 85 of the Courts Act 2003 (as inserted by the Coronavirus Act 2020) which expressly makes it an offence to attempt or make an unauthorised recording or transmission which includes sounds and image.  Master Kaye deemed the screenshots of the hearing to be unauthorised recordings of court proceedings and therefore in breach of Section 85 of the Courts Act 2003. Therefore, the defendant’s ‘Legal Friend’ may be found liable on summary conviction and be fined up to £1000.00. Master Kaye also stated that anyone who is in possession of the screenshots should delete them and inform others who have the screenshot to do the same.

Section 85B(3) Coronavirus Act 2020 provides a defence for those charged with the offence of recording or transmitting image or sound of a court hearing without authorisation. In order to succeed in using this defence, one must prove that, at the time of the actual or attempted recording or transmission, they were not in designated live-streaming premises and they were not aware or could not have reasonably known that the image or sound was being broadcast.

Those who unlawfully take screenshots or recordings of remote hearings may also be held in contempt of court which can lead to up to two years’ imprisonment, a fine, or both. It is important to respect the rules of the court regardless of whether they are held in person or remotely. Master Kaye stressed the significance for people to comply with the rules to ensure the court system can continue effectively during the pandemic.

Please contact John Szepietowski at Audley Chaucer for details on this matter or any other legal topic

Larissa Bourgi

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