Grumpy judges

The RT Hon Lady Justice Andrews, DBE and the Hon Mr Justice Warby laid into the BBC South East Today team yesterday, for using six seconds of court pictures, recorded from Microsoft Teams, as 'wallpaper' in a report of judicial review hearing about fracking. 

The fine was £28,000; the judges said that was something of a discount, because the BBC had apologised quickly and completely. But the BBC has had to cover its own costs (Trevor Burke QC and Jonathan Scherbel-Ball) plus the costs of the campaigner bringing the judicial review against Surrey County (who had granted planning permission to UK Oil and Gas to carry out “fracking” operations at a site at Horse Hill, near Horley).

The judges got plenty of details about the process by which the six seconds got to air, twice (at 6.30 and 10.30). 

In addition to witness statements from BBC England’s Head of Compliance, Mr Timothy Burke, the Head of the Litigation Department, Mr Nicholas Wilcox, and from the Head of TV and Online for England, Mr Declan Wilson, who oversees regional television programmes including BBC South East Today, (none of whom became involved until after the broadcasts), the BBC has served witness statements from four individuals who have described how part of the hearing came to be recorded and edited, and how the clips from the recording came to be broadcast. These are:
i) The senior journalist, reporter and presenter who fronted and edited the Horse Hill item (“the reporter”)
ii) The producer for BBC South East Today who produced the item (“the
producer”)
iii) The assistant editor of BBC South East Today who was responsible for producing the main evening news bulletin for the programme on 17 November 2020 (“the news editor”) and
iv) The editor of BBC South East Today (“the editor”), who was the most senior of the individuals concerned, although his involvement was most peripheral.

All these individuals have many years’ experience in broadcasting. Even the producer, the most junior of those directly involved, had been a full-time journalist, presenter, and
producer for almost 9 years at the time of the Horse Hill reports.

(Regular readers will remember Declan Wilson from the court case brought by Sir Cliff Richard, in which the judge said "Mr Wilson’s evidence of his post-search conversation was particularly unsatisfactory. The totality of his evidence needs to be approached with caution.") 

The judgement gives a detailed picture of how a regional newsroom operates in a pandemic.

A video conference was set up for the journalists working on BBC South Today for 09.15 on the morning of 17 November. Shortly before that meeting, the reporter spoke to the news editor about the Horse Hill story. She declined the offer of a crew to work on the story, preferring to work as a sole video journalist (which would mean that she would do her own editing). Since she was deployed to film interviews and footage at the site at Horse Hill, she knew she would be unable to watch the proceedings. Her recollection is that she asked for the Hub to be “across” the hearing, by which she meant getting them to record it.

Both the reporter and the news editor frankly accept that they knew that there was a prohibition on recording and broadcasting court hearings, both physical and remote, and that if anyone had raised a query about the legality of what they were proposing to do, the penny might have dropped. However, against a background where most of their reports included online interviews and footage from virtual meetings, the fact that they should not have been recording the hearing of the JR proceedings, let alone broadcasting it, simply did not occur to either of them. As Mr Trevor Burke QC, who appeared on behalf of the BBC together with Mr Jonathan Scherbel-Ball, put it, they and all the other journalists involved in this unhappy saga “failed to join up the dots”. 

The morning conference was chaired by the editor, who was working in his office adjacent to the newsroom. After some introductory housekeeping matters, he handed over to the news editor and got on with preparing for other matters he was dealing with that day, whilst listening in. He therefore did not pay any conscious attention to what was said about Horse Hill. The news editor gave a brief summary of the background to the Horse Hill story. The planning journalist added more detail about the story, and mentioned that he had received a link to the hearing which he had forwarded to the newsroom (it later transpired that the link did not work). The producer, who was in the office, and working as an item producer for the lunchtime and early evening news, was assigned to the story and told she would be working with the reporter. The news editor mentioned that the Hub would “sit across” the hearing. At the time, there was nothing that struck him as odd or strange about involving the Hub, as it was “normal practice” for links to live hearings such as parliamentary hearings or news feeds to be sent to the Hub. Nobody raised any concerns about this. 

Was nobody up to date with legal training ?

On 24 November 2020 relevant editorial staff at BBC South East Today (including those who were working on 17 November 2020) were given refresher training by a Programme Legal Advice lawyer on contempt and court reporting, which covered the prohibition on filming or otherwise recording court proceedings. Although we were not shown any of the training materials, we were told that this made it very clear that recording or broadcasting without express permission of the Court is completely prohibited, and that hearing links should only be obtained from the Court and should not be shared. 

However....

Mr Wilcox states in his evidence that lawyers from the Programme Legal Advice Department provide a course called “Beyond the Basics” on the BBC’s Academy intranet site which lasts several hours and is delivered monthly. One of the subjects covered is contempt, and reference is made to the prohibition on filming and taking photos in court precincts and using audio-recording devices in court. The course materials have been revised to reflect the change in the law since 25 March 2020 and refer to the “prohibition on recording images or sound – including remote hearings”.

However the course is a voluntary one, and only around 100 journalists had undertaken it since March 2020, none of whom were from BBC South East. Mr Wilcox has provided no information on how this training was rolled out to journalists.