I could write a long old blog post venting about the daily rigmarole of getting through court security, but it would be all heat and little light (the predominant heat source being my freshly bought reactor core temperature cup of tea which I am sometimes required to ritually scald either my finger or mouth on in order to satisfy security that I am not an evil genius dressed as a lawyer (but seemingly only on days beginning with a T).

But instead, I thought I would write about cameras in court. There are often signs at the entrance to court buildings saying that cameras are not permitted. Of course this is something of a farce, and more honoured in the breach, because practically everyone these days has a device of one sort or another which features a built in camera – and particularly for professionals, such devices are now an integral part of how we work. I reckon that the last time I was asked whether or not I had a camera in my bag was about 2 years ago – until then it was pretty routine (and both parties to this ridiculous ritual knew (and knew that the other knew) that any answer given was meaninglessly arbitrary depending on whether the you interpreted the question as including the camera the security guard already knew was built into your phone or not). Fortunately, somewhere along the line we seem to have given up this pointless caper, and it has been dropped – someone somewhere realised that unless court security were prepared to confiscate a phone from every person on entry to the building, it was a redundant exercise (of course now replaced by other innovatively arbitrary security checks).

The signs on the walls remain however : NO CAMERAS – or in fact in my local court NO MOBILES (which of course are allowed in court, and we are even allowed to use them – as diaries and email devices if not as phones or cameras). Because we still don’t want people taking pictures in court rooms or court buildings that might impede the doing of justice, for example through the taking or publication of photos that might intimidate or deter witnesses.

Although technology has moved on, and the nature of security searches has changed, the law itself has remained essentially the same since 1925. And 1925 was just a few years before the invention of the iphone. Or indeed any kind of vaguely portable camera.

So anyway, I took a picture at court the other day. On my iphone that nobody now bothers to ask much about. A picture of some choice graffitti on counsel’s row in court (above). It is quite a riddle to imagine just how bad a day counsel must have had to have taken the risk of crafting this particular illustrated text, and to imagine that coinciding with a judge being sufficiently inattentive to have failed to notice the desk being painstakingly, delicately tattooed in front of him or her. It will cheer me up every time I go in that court room, and will remind me that however grim my day is, it probably not as bad as the Banksy of the bar’s day was on the day this was doodled…

Actually I joke, but I was quite shocked – had I not seen it I would never have imagined that a member of the bar would deface court property. Perhaps I’m making assumptions – maybe it was a disgruntled litigant in person who had been invited generously to sit along side the pompous ones and who didn’t enjoy it all that much. Who knows? But I thought it was perhaps a sign of the times and rather resonant. I wanted to record it for posterity.

I’ve gone off piste a little.

The taking of a picture in a court building is actually not, in and of itself, an offence (at any rate that’s my view). But the taking of pictures and making of images generally in a court building IS heavily restricted – and if you get it wrong the sanction is a criminal one – although not a terribly hefty one : the £50 fine probably seemed more substantial in 1925, but now it’s less than a parking ticket (It is also potentially a contempt of court, which the judge could punish you for).

Anyhoo, I thought it would be useful to look at what our almost a hundred year old law actually says, because in many ways it is outdated by both technological advances and current practice. There are two examples of the regular taking of photographs in court buildings which have been bugging me in the context of the current law :

• CCTV recording in court buildings
• the taking of photos of children and their adoptive families and the judge at adoption celebration hearings

Section 41 Criminal Justice Act 1925 says

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 later it tells us that :

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.

Section 32 Crime and Courts Act 2013 allows the Lord Chancellor to make exceptions to section 41 CJA and section 9 CCA, thereby permitting filming and taking of photos. This should be the answer! In fact, only two orders have been made setting out exceptions : in connection with the Court of Appeal and sentencing remarks in the Crown Court. As far as I can tell no order has been made permitting the taking of photographs of children (who are parties and in some cases witnesses) at adoption celebrations held in a court room.

Subsection (3) of section 32 CCA does provide a possible route out :

In the case of any particular proceedings of a court or tribunal, the court or tribunal may in the interests of justice or in order that a person is not unduly prejudiced—

(a)direct that a provision disapplied in relation to the proceedings by an order under subsection (1) is, despite the order, to apply in relation to the proceedings, or

(b)direct that a provision disapplied in relation to the proceedings by an order under subsection (1) is, despite the order, disapplied in relation to the proceedings only if conditions specified in the direction are met.

Some years ago we were given permission by HMCTS to make a film in a court building (see here) and although the local judiciary approved the project, on the face of it neither limb of section 32 Crime and Courts Act 2013 applied as no order had been made and we weren’t dealing with “particular proceedings”” (and actually I’m not sure it was in force when we filmed). We operated, as I’m sure did everyone else, on the basis that we could take photographs (including videos) in the court building but we couldn’t take photographs / videos of litigants, witnesses etc. For this reason we filmed on a Saturday when none were around. Films are made from time to time in court buildings and photos taken – with all appropriate permission. Whoever authorises those shoots must be interpreting s41 in the same way that I do, or there is a widespread flouting of the law by the judiciary and court service. Photos are ok IF they aren’t of people involved.

Adoption photos are clearly not made “for publication”, but because they are photos and not sketches the private nature of them doesn’t help. Section 32 could potentially be applied to specific adoption proceedings, but as far as I am aware no direction is ever formally made or recorded. I *think* it’s just routinely fudged. I may be wrong, there may be some standard direction under this provision that is made administratively in adoption cases, or there may be some other piece of legislation I’ve not rooted out that creates an exception to s41 – but I’m pretty sure it’s just an anomaly and represents an entirely unobjectionable practice that s41 never foresaw. s41 makes no provision for judicial permission.

The same issue arises with regard to CCTV cameras in court buildings, which continuously record lawyers, parties, witnesses and jurors as they go about their business in the court building. Again, I can find no provision which creates an exception to the bar in section 41 CJA, and assuming that I am right in interpreting video recording as falling within the definition of “photograph” (as it’s basically a sequence of photographs), section 41 appears to prohibit security CCTV recordings even though they are not “for publication”.

There is nothing problematic about either of these very common practices, which occur daily in court buildings up and down the country. Children who are adopted should have a photographic record of ther important day. And our security is no doubt enhanced by CCTV monitoring and recording. There is no good reason for either to be prohibited. I just can’t at the moment work out how they are compatible with section 41.

Anyone? There must be an answer. We can’t be prosecuting people for taking photos in court if court staff are routinely breaking the same law… I can’t help feeling there is some obscure Statutory Instrument or lost section of some Act somewhere that answers this question, but if there is nobody has ever been able to point me to it…If some clever clogs knows, do please put me out of my misery and pass it on.

POSTSCRIPT 22 DEC :

Thanks to the kind person who reminded me that in fact the fine has now been increased from fifty quid to a grand (this is what happens when you forget to cross check legislation.gov.uk with Lexis Nexis – another reminder of the sorts of mistakes litigants in person without access to subscription services may inadvertently make but which I have no excuse for other than laziness – sshhh!! Don’t tell anyone!).

Fortunately, I’ve also remembered the recent splashes on the front pages of many newspapers of various familiar faces of the great and good of family law guffawing at the charmingly awful jokes of Mr Justice Bodey at his valedictory at the RCJ. Now I’m pretty sure that the photographers who were taking snaps of them in court were not in contempt of court and that whoever let them in didn’t think so either – so if it’s good enough for the High Court Bench it’s good enough for me. Also, Suesspicious Minds reminds me he wrote about this topic himself many moons ago (see comments for links) and also came to the conclusion that it couldn’t be ANY old photo that amount to a contempt. So I’m pretty sure I’m not going to have to fork out a grand for taking a picture of someone else’s rude graffitti. Which is good news…

Please don’t take this post as legal advice by the way, and go and fill your instagram with pictures of court buildings. I may be a lawyer but lawyers are sometimes wrong and I am riffing here not advising. The safest course of action is not to take any photos in court because there just isn’t any need to do so. Don’t do as I say or as I do. No photo : no problem.