The BBC has been fined £28,000 for contempt of court after “a catalogue of serious errors” resulted in the recording and broadcasting of a clip from a virtual hearing to half a million people.
In November 2020, regional TV news programme BBC South East Today used a “scene-setting” clip of a judicial review hearing into a controversial decision to grant planning permission to a “fracking” site in Horse Hill, Surrey.
The Royal Courts of Justice hearing was held on Microsoft Teams because of Covid-19 restrictions and the judge, solicitors, counsel and other participants could be seen in boxes in the standard gallery layout during the six-second clip that aired.
The report was shown on the 6.30pm and 10.30pm news bulletins and was seen by a total of about 500,000 viewers, including on iPlayer.
The broadcaster could have received a fine of between £40,000 and £45,000 for both recording and transmitting proceedings, but this was reduced by about a third because the BBC immediately accepted liability and apologised.
The report was taken down from iPlayer within half an hour of the Horse Hill judge’s clerk emailing the BBC to express concern the following morning.
The BBC also sent a memo to 3,000 staff reminding them of the ban on recording court proceedings, and BBC South East Today staff were given refresher training just a week later.
However, Lady Justice Andrews and Mr Justice Warby said they could not treat the BBC too leniently as it would “send out the wrong message to those with a more cavalier attitude towards restrictions on reporting, recording and broadcasting court proceedings”.
The BBC’s head of litigation Nicholas Wilcox told the court that what happened was “a genuine but serious and regrettable mistake made in reporting proceedings to provide some visual element to that report”.
The judges said the BBC has a reputation for the highest standards and it “beggars belief” that a team of its experienced journalists gave no thought to the propriety of asking their technicians to record court proceedings.
“None of them would have dreamed of making a video or audio recording inside the courtroom,” the judges said in their judgment.
“It should have been obvious to them that the fact that it was possible to view the proceedings remotely made no difference.”
The judges put the journalists’ actions as “closer to reckless disregard than negligent oversight”.
The judge in the Horse Hill proceedings said at the start of the hearing: “It is a contempt of court, a criminal offence, for anyone else to make a recording of any part of these proceedings… although we are conducting the hearing remotely, it is a formal court process and everyone should behave as they would if they were physically in court.”
But no-one at the BBC heard this warning as the first link circulated by the court failed to work, meaning they were late to the hearing. Even if they had heard it, no journalists were listening live having asked the technicians to record while the reporter was out getting other shots.
Trevor Burke QC, who represented the BBC, said the journalists involved “failed to join up the dots”. All except the producer knew they could not record or transmit court proceedings, but at a time when most of their reports included online interviews and footage from virtual meetings the legal implications did not occur to them.
The judges raised concerns that the story’s producer was not even aware of the contempt of court rules, saying: “Her lack of knowledge of something so fundamental points to serious deficiencies in the information and training provided to BBC journalists.”
The BBC’s legal department does have a regular legal course which covers contempt, and had been updated to cover remote hearings, but only 100 journalists had undertaken this training since March last year – none of whom were from BBC South East.
The judges said the BBC should instead have circulated a memo to all staff in March last year when remote proceedings were first held making it clear restrictions on recording and broadcasting court hearings were still applicable.
A BBC spokesperson said: “We have apologised unreservedly for the mistakes that led to these online court proceedings being recorded and broadcast and have taken extensive action to prevent them from happening again.”