Transfixed by transcripts

The rules about recordings of hearings and transcripts are changing with effect from 6 July April (see the Statutory Instrument that makes the changes here). I wrote about some issues around transcripts at length here. The old and new rules are set out in full at the foot of this post. This post just looks at the differences between old rule 27.9 and the new one. They aren’t major, but having written about this rule before I thought I should record that they are going to be a bit different, and how.

The old archaic references to shorthand note which we all had to read as audio recording have finally been abolished. The rule now sensibly refers to tape or digital recording (yes, a few courts still use tapes, but most are now digital).

The wording around permission has been adjusted – in my experience courts sometimes interpreted the old rule as requiring permission in all cases where a transcript was sought (wrongly in my view – the old rule always said parties were entitled, others required permission, but some of the forms suggested otherwise). The new wording is I think clearer – a party may REQUIRE a transcript as long as they have paid the fee. The wording also makes clear that the court can make an order prohibiting the provision of a transcript if appropriate, but in my view that should be used sparingly – one example I’ve thought of is where a vulnerable witness has given her address on the court tape, at a hearing where a perpetrating party had not turned up, and the perpetrator subsequently tries to rely on their party status to obtain the transcript. They would be entitled to REQUIRE that transcript, but it might well be that the court would prevent that if provision of the transcript might place her at risk (a better way would be to avoid this situation by remembering that just because someone isn’t present doesn’t mean they aren’t entitled to know what is said – if an address is confidential it is better not to ask the witness to speak it into the recording equipment in the first place). There might be other examples.

It is also now clear that someone not connected to the case may apply for a transcript, with the court’s permission (e.g. a journalist or perhaps a lawyer involved in connected proceedings where there was some factual overlap).

A new addition is that the court may now give directions ‘to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of a note or other informal record of the proceedings made by another party.’

Now, Rule 29.11 already gives the court the power to direct a party to draw up its order or judgment (yes, I bet you didn’t know the court could direct you to draw up its JUDGMENT lawyer chums, did ya?), so all this really adds I think is a prompt to courts to consider directing this in cases where a litigant in person is involved, presumably mainly where an appeal is anticipated or where the cost of a transcript might be prohibitive for a litigant in person. More one way costs shifting to the legal profession. 🙁 

Finally, the rule spells out the existing prohibition on the making of informal recordings that is contained in the Contempt of Court Act. Again this seems to be about reminding and signalling, as the rule itself has no effect above and beyond the statute itself. It is a simple recital of existing law. However, this part of the new rule does make clear that the court has power to permit unofficial recording (again not an actual new power, its contained in the CCA). This might be for example where a journalist has made a case that this would be appropriate to aid accuracy in reporting of a case where the court has permitted or might permit recording at the end, or might be permitted to enable a person with a disability to make a record for their own personal use – in either case the court would I think want some reassurance the recording would not be misused or distributed.

So, nothing groundbreaking. But maybe an indication that the rules committee perceive that there are issues and confusions around obtaining transcripts and recordings that need clarifying, and / or problems with known delays and frustrations around appeals where litigants in person struggle to navigate the system to get hold of transcripts? Or possibly the rules committee just had a quiet moment (!) and finally got around to updating the language around shorthand, and whilst there had an opportunistic tidy up. Either way, probably an improvement on the old rule.

OLD (existing) RULE 27.9 :

  1. Unless the judge directs otherwise, an official shorthand note will be taken at the hearing in open court of proceedings pending in the High Court.
  2. An official shorthand note may be taken of any other proceedings before a judge if directions for the taking of such a note are given by the Lord Chancellor.
  3. The shorthand writer will sign the note and certify it to be a correct shorthand note of the proceedings and will retain the note unless directed by the district judge to forward it to the court.
  4. On being so directed, the shorthand writer will furnish the court with a transcript of the whole or such part of the shorthand note as may be directed.
  5. Any party, any person who has intervened in the proceedings, the Queen’s Proctor or, where a declaration of parentage has been made under section 55A of the 1986 Act, the Registrar General is entitled to require from the shorthand writer a transcript of the shorthand note, and the shorthand writer will, at the request of any person so entitled, supply that person with a transcript of the whole or any part of the note on payment of the shorthand writer’s charges authorised by any scheme in force providing for the taking of official shorthand notes of legal proceedings.
  6. Save as permitted by this rule, the shorthand writer will not, without the permission of the court, furnish the shorthand note or a transcript of the whole or any part of it to anyone.
  7. In these rules, references to a shorthand note include references to a record of the proceedings made by mechanical means and in relation to such a record references to the shorthand writer include the person responsible for transcribing the record.

 

NEW (from 6 July April 2020) RULE 27.9 :

(1) At any hearing, the proceedings will be tape recorded or digitally recorded unless the court directs otherwise.

(2) No party or member of the public may use unofficial recording equipment in any court without the permission of the court. (To do so without permission constitutes a contempt of court under section 9 of the Contempt of Court Act 1981(6).)

(3) Unless the court directs otherwise, a person to whom paragraph (4) applies may require a transcript of the recording of any hearing in proceedings to be supplied to them, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.

(4) This paragraph applies to—

(a)a party to the proceedings;

(b)the Queen’s Proctor; and

(c)where a declaration of parentage has been made under section 55A of the 1986 Act(7), the Registrar General.

(5) A person to whom paragraph (4) does not apply may be provided with a transcript of the recording of any hearing—

(a)with the permission of the court; and

(b)upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.

(6) At any hearing, the court may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of a note or other informal record of the proceedings made by another party.

2 thoughts on “Transfixed by transcripts

  1. So

    (1) the application is without notice, so that it is not to be held against the respondent that he is not there;
    (2) the applicant has been asked for and has given her, probably her and I will so assume here, address;
    (3) she has then made serious allegations against the respondent on with an order has been made;
    (4) the respondent wants the transcript to read what she said; he may want to appeal or to apply to set the order aside on notice.

    He is entitled to the transcript, isn’t he? He has a right to know what she said and what her counsel or solicitor said.

    There is a solution, and it is based on what happens in the High Court after a search-and-seizure order. After any hearing without notice at which the applicant has given evidence her solicitors should be required to get a transcript and send a copy to the respondent. They should be permitted to black out her address.

    • At an ex parte hearing for an injunction the applicant is unlikely to have given oral evidence and her address would be held separately on a confidential C8 form so this is unlikely to arise. I was really talking about hearings where a party doesn’t show up (for example final hearings where a parent has disengaged) and everyone forgets that the absent parent will have a right to the transcript and the address is read into the evidence at the start. Its a pretty unlikely scenario to be honest, but theoretically possible.
      In the case of an ex parte injunction application the procedure is well established – the applicant should provide a note of what was said (or in more recent times where the applicant is often not represented) the court should record what evidence was heard on the face of the order. The respondent would in any event be served with all the paperwork (statement in support) etc with the interim order, so they will know what is alleged – but it won’t have the address on it if the address is unknown and to be withheld.
      If for some reason it was necessary to provide a respondent with the transcript (say, nobody has a good note and there is some issue that needs to be checked about what the judge was told), and in the unlikely event there was an issue with an address having been spoken into the recording, I agree that the court would most probably permit a REDACTED transcript removing the address rather than denying the transcript entirely – but I was really trying to illustrate a theoretical situation rather than go into minute hypoethetical detail.
      So in short – yes, we do also have basic principles of fairness in family court.

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