Neil Sands
The Ministry of Justice wants to make taking unauthorised recordings of court proceedings a criminal offence as part of a plan to broaden the use of remote participation in the courts.
The suggestion is contained in a discussion paper the ministry released on Thursday, seeking feedback on options to reform the Courts (Remote Participation) Act 2010.
Courts Minister Nicole McKee says increased remote participation using audio-visual links or audio, rather than in-court appearances, has the potential to make courts more efficient and reduce delays.
“Appearing remotely can benefit court users by reducing the costs and time required to come to court in person,” she says. “It may also be a better option for people with accessibility concerns because of a disability, or who live rurally and who must travel a long distance to their nearest court.”
But the discussion paper raises concerns that increasing remote participation comes with a heightened risk that unauthorised recordings will be made of proceedings.
“Once taken, recordings can be posted online or shared with others,” it says.
“This could have adverse impacts on fair trial rights, safety, willingness of witnesses to give evidence and public trust in the justice system.”
It says conduct of remote participants currently falls under the Contempt of Court Act 2019, but points out the Act “does not itself set out express obligations for people participating remotely or include an offence for failing to comply with these obligations”.
The ministry argues for a statutory prohibition specifically relating to recording court proceedings without permission from the presiding judicial officer.
The discussion paper says this would make unauthorised recording a criminal office, adding: “The maximum penalty for the offence would likely be low.
“Introducing an offence could enable recordings to be taken down from online platforms more easily. It could also deter people from taking recordings in the first place,” it says.
“However, it is likely to be difficult to enforce penalties against international participants and observers.”
Another reform option outlined in the discussion paper is giving lawyers in civil proceedings an entitlement to participate remotely on request, where the technology is available.
It says a similar entitlement could apply to lawyers in criminal proceedings and defendants who are not in custody, potentially offering travel and time savings for lawyers who work across multiple courts and geographical areas.
“However, depending on the volume of requests, this option could fundamentally change the way the courts run (eg, list courts could look different),” it says.
“There are risks this option could create additional pressure on the courts, due to increased time required to schedule, set up and support remote participation.”
The discussion paper is available on the Ministry of Justice website. Consultation closes on December 6.
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