BBC in the Dock for Contempt of Court
The British Broadcasting Corporation (‘BBC’) found itself in the embarrassing position of being fined £28,000 recently after admitting being in contempt of Court.
Why was the BBC in trouble?
On the morning of 17 November 2020, the BBC made a video and audio recording of half a day’s hearing in the Planning Court before Holgate J. The Judge was hearing argument on the first day of a 2-day judicial review of a controversial decision by Surrey County Council to grant planning permission to UK Oil and Gas to carry out “fracking” operations at a site at Horse Hill, near Horley.
BBC South East Today is the BBC’s regional television news programme for the South East of England, covering Kent, East Sussex, part of West Sussex and part of Surrey. On the evening of 17 November 2020, South East Today broadcast in its 18.30 and 22.30 news bulletins a special report on the Horse Hill case, which included a short clip from the video. All of this was done without the knowledge or consent of the Court.
This behaviour, as the BBC admitted, was a breach of the statutory prohibitions on making and transmitting unauthorised recordings of court proceedings, and therefore involved at least two criminal offences. In the Court’s judgment (and as the BBC also admitted) the number and seriousness of the breaches makes this a case of contempt of Court.
There were two potential criminal offences, one under s 41 of the Criminal Justice Act 1925 (taking of photographs in Court), the second under section 85B of the Courts Act 2003 which was enacted due to the Coronavirus Act 2020.
A schoolboy error?
Given the BBC’s expertise in broadcast journalism, it is difficult to comprehend how such a basic mistake was made.
The Court observed:
‘This was not a minor oversight by an inexperienced individual within a large organisation, but a catalogue of serious errors by a number of people that should have been, but were not picked up by any of the internal systems and safeguards that were put in place to regulate what is broadcast. It beggars belief that a team of very experienced BBC journalists, all but one of whom did not need to hear the Judge’s warning at the start of the proceedings because they were well aware of the prohibition on recording court hearings, should have given no thought to the propriety of getting the Hub to record the morning’s proceedings that were being conducted in the Royal Courts of Justice and viewed through live links by those who were unable to be physically present.’
How was the penalty of £28,000 arrived at?
In re Yaxley-Lennon (Practice Note) [2018] EWCA Crim 1856 [2018] 1 WLR 5400 at [80], the Court of Appeal set out the factors which would be likely to be relevant to cases involving breach of reporting restrictions, namely:
i) the effect or potential consequences of the breach upon the trial or trials and those participating in them;
ii) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;
iii) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;
iv) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;
v) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;
vi) the scale of sentences in similar cases, albeit each case must turn on its own facts;
vii) the antecedents, personal circumstances and characteristics of the contemnor, and
viii) whether a special deterrent was needed in the particular circumstances of the case.
The BBC accepted that it was an aggravating factor that the BBC is the principal news provider in this country and that this unfortunate sequence of acts in contempt of Court was a departure from the high standards that are rightly expected of it and which it sets for itself.
The broadcast was repeated. The clip was seen by around half a million viewers, though none of them complained about it. The problem could and probably would have been avoided had the BBC taken more proactive steps to ensure that their journalists were properly advised of the restrictions that were introduced in the Coronavirus Act and reminded of the existing restrictions on recording and broadcasting court proceedings, at a time when more and more hearings had to be conducted remotely.
On the other hand, steps were taken to address the problem as soon as the BBC was made aware of it; it is obvious that senior personnel have taken the case extremely seriously. The offending material was swiftly removed from the iPlayer and the memo was circulated to journalists to remind them of the legal position. Counsel for the BBC also relied on the general reputation of the BBC and its staff for acting responsibly and to the isolated nature of the incident. He submitted that the BBC had taken the matter to heart and responded appropriately. It was highly unlikely that this would ever be repeated; all the journalists concerned have learned a salutary lesson. The BBC is a public service provider, funded by the licence fee, and any fine will detract from the services it can provide.
The Court thought that ‘there is an obvious danger that if the BBC is seen to be treated too leniently, it will send out the wrong message to those with a more cavalier attitude towards restrictions on reporting, recording and broadcasting court proceedings; on the other hand, the sentence must be fair and proportionate.’
In assessing the final penalty, the Court held:
‘Standing back, and making an overall assessment, we consider that but for the early acceptance of liability and the apology a fine in the order of £40,000 – £45,000 would have been merited. Discounting by approximately 1/3 for those matters, we will order that the BBC should pay a fine of £28,000.’
This case should stand as a warning to all that court proceedings must never be broadcast without permission, failing to heed this warning could be a costly reputational and financial mistake.
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We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Parole Board Hearings – Public Scrutiny
Currently, all parole hearings are held in private – this is set out in legislation in the Parole Board Rules. Following a consultation exercise, the government has now committed to opening up the hearings and allowing public access. Legislative change is expected in the next few months.
The government has stated that:
‘…we are persuaded that the current blanket ban in legislation on public hearings is unnecessary, and that victims, offenders, the media or the wider public should have the right to make a request for a public hearing, and to have that request considered.’
A “virtual” attendance, primarily through video link, is likely to be the preferred option in most cases where an open hearing is agreed. This has the advantage of minimising the risk of disruption, increasing capacity and allowing victims to easily step away if they become distressed or would rather not hear certain details of the case discussed.
New legislation will allow the Parole Board to consider an application for access mirroring the approach taken at the First-tier Tribunal (Mental Health), so that the Parole Board consider the “interests of justice” when making such a decision.
As the independent decision-making body, it will be for the Parole Board to decide the criteria for the interests of justice test it will use to determine applications for public hearings.
These will in due course be reflected in guidance the Board will produce on how it intends to approach applications. The types of factors the Board may wish to consider may include but not be limited to:
- If it would assist public understanding of how the decision is reached in a case of particular public interest;
- The participants in the hearings – in particular the prisoner and the victim (where there is one) – do not object to the hearing being heard in public;
- To hold a public hearing would not create an unacceptable risk (of mental or physical harm) to any of the participants;
- Whether the Board consider that the integrity of the evidence may be compromised and prevent a true and accurate assessment of the prisoner’s risk being provided by the witnesses;
- The presence of strong and valid objections from participants which could jeopardise their co-operation if the hearing were to be in public.
The Board will be able to consider an application for a public hearing submitted by anyone, but it would most frequently be victims, offenders, or the media.
The Parole Board will also be able to initiate the consideration process of its own volition if they see a need – for example, if there is significant public interest in a particular case.
Regardless of who has made the application, both the victim and the offender will be invited to submit their views before a decision is reached and the Board would take the final decision having taken account of the representations received. But ultimately the decision will depend on whether the Board is satisfied that it would be in the interests of justice to open up the hearing, having taken everything relating to the particular case into consideration.
Anyone who attends a hearing under these new provisions will be an observer to the proceedings in a similar way to attendance at court. They will not be entitled to intervene, ask questions of the witnesses or address the panel in any way – other than where a victim is presenting their Victim Personal Statement to the Board.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Sentencing and the issue of ‘psychological harm.’
A number of the definitive guidelines published by the Sentencing Council direct Judges and Magistrates to consider whether the victim of an offence has suffered severe psychological harm.
In some guidelines, that question has to be considered at step 1 of the sentencing process: a finding of severe psychological harm places the case into a higher category and thus increases the starting point for sentence.
In other guidelines, the issue of whether the victim has suffered psychological harm – and if so, the degree of that harm – falls to be considered at step 2 as a potential aggravating factor which justifies an increase above the guideline starting point for the relevant category of offence.
It is therefore critical that those defending criminal cases are fully versed in the law relating to this area, as it may greatly affect sentencing outcomes.
How does a Judge assess harm?
- Expert evidence is not an essential precondition of a finding that a victim has suffered severe psychological harm.
- A judge may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a Victim Personal Statement (VPS), and may rely on his or her observation of the victim whilst giving evidence.
- Whether a VPS provides evidence which is sufficient for a finding of severe psychological harm depends on the circumstances of the particular case and the contents of the VPS.
- A VPS must comply with the requirements of the Criminal Practice Direction and be served on the defence in sufficient time to enable them to consider its contents and decide how to address them. If late service gives rise to genuine problems for the defence, an application for an adjournment can be made.
When a sentencing guideline directs an assessment of whether the victim of an offence has suffered severe psychological harm or any other assessment of the degree of psychological harm, a judge is not thereby being called upon to make a medical judgment. The judge is, rather, making a judicial assessment of the factual impact of the offence upon the victim.
Thus, submissions to the effect that a judge who makes a finding of severe psychological harm is wrongly making an expert assessment without having the necessary expertise are misconceived.
The judge is not seeking to make a medical decision as to where the victim sits in the range of clinical assessments of psychological harm, but rather is making a factual assessment as to whether the victim has suffered psychological harm and, if so, whether it is severe.
The assessment of whether the level of psychological harm can properly be regarded as severe may be a difficult one. The judge will, of course, approach the assessment with appropriate care, in the knowledge that the level of sentence will be significantly affected by it, and will not reach such an assessment unless satisfied that it is correct.
But it is an assessment which the judge alone must make, even if there be expert evidence. It is the sort of assessment which judges are accustomed to making.
In making the assessment of whether the psychological harm in a particular case can properly be described as severe, or serious (if a different guideline is being considered), the judge will act on the basis of evidence and will be required in the usual way to give reasons for his or her decision in the sentencing remarks.
If the evidence was not such as could provide a sufficient foundation for the judge’s assessment, the point can be raised on appeal.
Save where there is an obvious inference to be drawn from the nature and circumstances of the offence, a judge should not make assumptions as to the effect of the offence on the victim.
The judge must act on evidence. But a judge will usually be able to make a proper assessment of the extent of psychological harm on the basis of factual evidence as to the actual effect of the crime on the victim. Such evidence may be given during the course of the trial, and the demeanour of the victim when giving evidence may be an important factor in the judge’s assessment.
The relevant evidence will, however, often come, and may exclusively come, from the VPS. The court is not prevented from acting on it merely because it comes from a VPS.
Double Counting
In assessing whether the psychological harm in a particular sexual case is severe, a judge must keep in mind that the levels of sentence which the sexual offences guideline sets out already take into account the psychological harm which is inherent in the nature of the offence.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Drug money & Sentencing – Is Cash Relevant?
When someone is arrested for supplying drugs, it is not uncommon for drug money to be recovered as well. In the case of Mahmood [2019] EWCA Crim 1532, the court dealt with the relevance of cash when determining which sentencing category an offence fell into.
A large quantity of drugs was seized from Mahmood’s premises along with around £30,000 in cash.
The Judge found that the offending fell into Category 2 harm, not Category 3 as had been submitted. The Judge aggregated not only the weight of the drugs found (in total, about half a kilogram), but also what the cash represented in terms of drugs. The Judge took the view that just under £30,000 of cash was equivalent to the value of about half a kilogram of heroin.
Together, drugs of about half a kilogram and cash equivalent to a further half a kilogram amounted to an overall weight equivalent of about 1 kilogram according to the Judge. This meant that the case fell into Category 2 and not Category 3.
On the Applicant’s behalf, it was submitted before the Judge that since the heroin found was 434 grams, the case fell into Category 3.
However, the Judge rejected the submissions advanced on the Applicant’s behalf. He found that the Applicant fell within the centre of Category 2, as if he had been in possession of 1 kilogram of Class A drugs.
Mahmood appealed his sentence.
What did the Court of Appeal decide?
The court held that:
‘…the Judge was entitled to assess the nature of the dealing and to find that the Applicant had a leading role. The evidence in particular of large quantities of drugs and cash, keys and safes at different addresses has more than one of the indicia of a “leading role” being satisfied. The purity of the heroin, which is not explained by the Applicant, indicated that he is likely to have had close links with the original source. It was not cut, and there was evidence that it was highly likely to be of high purity.
For the reasons which he gave, the Judge was also entitled to rely on the cash as evidence of an expectation of substantial financial gain. That was whether the cash was looked at simply as cash in hand from drug dealing or, as the Judge found, that it represented profit from drug dealing.
The fact that there was evidence of a number of addresses, two safes containing substantial quantities of cash at different addresses and keys in one property relating to another property, indicated and added to the ability of the Judge to find that a commercial operation was being undertaken which went beyond simply street dealing.’
However, we have to treat this decision with a degree of caution. Mahmood had pleaded guilty to money laundering so far as the cash was concerned, as it was the proceeds of crime. When the cash can not so clearly be linked to criminal conduct, caution must be exercised before too readily concluding that it is a proper factor in assessing harm for sentencing purposes. In all cases, those defending will need to examine such evidence with the utmost care.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Dog Theft; Barking Mad?
The theft of animals, and in particular dog theft, has been on the rise for some time. On LBC radio recently the Home Secretary Priti Patel described it as ‘absolutely shocking’ and said that she was in talks about upgrading pet theft to a more serious offence, meaning that more substantial penalties could apply.
The results of a BBC freedom of information request showed that five policing areas saw a double-digit increase in the number of dog thefts reported between January and July 2020, compared with the previous year.
Overall, about half of the 26 forces that responded to the BBC’s data request saw an increase over the last seven months, while the rest saw fewer reports.
Five forces had more report of dog theft between January and July 2020 than the whole of the previous year.
There was a significant increase across Northumbria, Devon and Cornwall and Leicestershire – compared to the same period in the previous year.
Northumbria Police saw the largest increase of reported dog thefts, rising from 27 to 67 reports.
In Leicestershire, there were 41 reports compared to 22, which was also more than the total for the whole of 2016, 2017 and 2018.
Do we need a new law?
The stealing of a pet amounts to Theft under s 1 of the Theft Act 1968, and in some cases could amount to a burglary. The offence of theft carries a maximum sentence of 7 years imprisonment, and burglary carries 10 years (for a non-dwelling) and 14 years for a dwelling house burglary.
It is inconceivable that any pet theft could result in a sentence anywhere near the maximums allowed for, making the creation of a new offence nonsensical, to say the least.
The Home Secretary is also mistaken in thinking that sentencing needs addressing at all. A court can always depart from a sentencing guideline to take account of novel issues, and in any event, the existing theft guideline already applies to pet theft.
The guideline assesses more significant harm having been caused where:
‘Items stolen were of substantial value to the loser – regardless of monetary worth.’
or
‘Emotional distress’ [resulted].
We might expect to see both in animal theft cases.
A general aggravating factor is ‘stealing goods to order’ as is ‘prevalence’.
Taking all these factors together demonstrates that existing maximum sentencing powers, and guidelines, are sufficient to deal with animal theft cases.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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