Recently there have been debates about the legality of the practice of journalists, litigants, and lawyers alike to electronically record the proceedings of the court without obtaining prior approval from the court. Again, the issue came to the front burners of legal discourse after an incident in the High Court of Akwa Ibom State, Nigeria, where a journalist was ordered out of the court room for recording the proceedings of the court with his phone without the prior permission of the court. The subsequent proceedings of the day eventually resulted in the committal of a lawyer to prison for contempt of court, although the committal was said not to be directly connected to the recording of the court proceedings. Upon application for a certified true copy of the record of proceedings of that day, the record was not readily available and by the time it was eventually provided, there was a lot of suspicion as to the accuracy of the record. Electronic recording of the day's proceedings could have obviated the suspicion if it had been allowed by the court.
The issue interestingly has taken up constitutional significance given the provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides in Section 36 (3) that the proceedings of any court shall be held in public. The question then is, if the proceedings of the court are to be held in public and members of the public cannot be excluded, except as permitted under the Constitution, is it proper for the court to prohibit the public from making a recording of its proceedings when the Constitution did not appear to do so? We examine this question in the light of what is obtainable in a few other jurisdictions.
Is it unlawful to Electronically Record Court Proceedings without Permission?
The answer to the question whether it is unlawful to record court proceedings in Nigeria without the permission of the court will invariably be found in a law prohibiting such recording. Nigeria operates a federal courts system where some courts are under the legislative competence of the federal legislature and others are under the legislative competence of the states' legislature. The implication of this is that to determine whether it is unlawful to record court proceedings in Nigeria without the permission of the court, one has to look at the statutes that set up both the federal courts and the states courts and the procedural rules under which the courts operate.
A review of the establishing statutes and the rules of most courts in Nigeria, including the High Court Laws and Rules of Lagos State and Akwa Ibom State, shows that these legislations do not make a provision for the regulation of the power of the public to record the proceedings of their courts. Where then lies the power of the courts to prohibit the public from making a recording of their proceedings?
A look at the practice in most courts around the world reveals that historically courts have generally been wary to permit the public to make a recording of their proceedings. For example, as early as 1946, long before handheld electronic recording devices became common place, electronic media recording of court proceedings was prohibited in criminal proceedings in the United States of America under the Federal Rule of Criminal Procedure.1 Subsequently, in 1972 the Judicial Conference of the United States of America adopted the Code of Conduct for United States Judges, which prohibited the "broadcasting, televising, recording, or taking of photographs in the courtroom and areas immediately adjacent thereto" in criminal and civil cases.2 In the United Kingdom, the broadcasting of image and sound recording from courts, except the Supreme Court, is prohibited by Section 41 of the Criminal Justice Act 1925 3 and Section 9 of the Contempt of Court Act 1981,4 respectively.
In more recent years, various court rules have been made in different parts of the world prohibiting the recording of court proceedings by members of the public without the permission of the court. For example, the California Rules of Court, Rule 1.150 provides that: "Except as provided in this rule, court proceedings may not be photographed, recorded, or broadcast." The Rules further provides that a person "proposing to use a recording device must obtain advance permission from the judge." A violation of the Rules is considered an "unlawful interference with proceedings of the court and may be the basis for . . . a citation for contempt of court." 5 Most courts in the world have similar prohibitions embedded in their Rules.6
In the United Kingdom, various exceptions have been made to section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act. For Example, The Crown Court (Recording and Broadcasting) Order 20207 permits the recording and broadcasting of sentencing remarks in the Crown Court made by the judge in open court. Recording takes place only with the permission in writing of the judge and in accordance with any conditions imposed by the judge. There are quite a number of reasons for the near-universal practice of courts not allowing the members of the public to record the proceedings of the court without the prior permission of the court. These reasons include the need to avoid a misrepresentation of the proceedings of the court and to protect the interest of the parties, victims and witnesses in court proceedings.
Even in some jurisdictions where livestreaming of court proceedings is permitted, unauthorized recording of the proceedings by members of the public is still prohibited. An example is the practice in the state of Connecticut in the United States of America where in a bid to expand public access to courts in the state, the Connecticut Judicial Branch in February 2021 began to livestream on YouTube civil and housing court proceedings in the state's courts. Although members of the public are allowed to view the proceedings online, the public is strictly warned that "other than the official recording prepared by the Judicial Branch, the recording of livestreamed proceedings is strictly prohibited. This prohibition is consistent with the rules currently in place regarding members of the public physically present in a courtroom. This includes audio recording, video recording through a cellphone, screen capture, screen shot, print screen, or any other recording types."
In Nigeria, the National Industrial Court has blazed the trail by starting a livestreaming of some of its proceedings. For physical court proceedings in Nigeria unlike the examples of the United States of America cited above, there is no express prohibition (either via statute or the rules of court) of the recording of the proceedings by members of the public, who stream the court proceedings. This would suggest that until such restrictions are put in place, members of the public are free to record the proceedings for their own records.
Whatever be the merits of such restrictions that may be put in place, it is necessary to note that a person cannot be punished for making a recording of court proceedings except there is a law that expressly prohibits such recording or makes the recording subject to the approval of the court. That does not however, mean that a judge cannot exclude from the court anyone found to be disturbing the proceedings of the court in an attempt to record the court's proceedings electronically. The judge is a master of his own court and has the power to regulate the proceedings in his court in any manner he finds fitting, but that does not extend to the imposition of an arbitrary punishment on any litigant or observer in court. It is also arguable that, except in a case where a person is disturbing the proceedings of the court, it would amount to a violation of the right to public access to court for a judge to exclude a person from the court room merely on the ground that the person tried to electronically record the proceedings of the court.
On the strength of the arguments advanced above, we suggest that any court that desires to restrict the recording of its proceedings without its permission should amend its rules to reflect such restrictions. Such restriction should, however, not extend to long hand recording of the court's proceedings by counsel for their own internal records. The court may require prior permission for electronic recording of its proceedings, but such permission should not be unreasonably denied, especially to counsel who may invariably want to rely on such electronic recording pending when they are able to obtain certified true copies of the official record of the proceedings of the court. This will, among other things, enhance transparency in the judicial process and further entrench public confidence in the judicial process. Afterall, as Lord Atkinson said in Scott v. Scott,9 "The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses... but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it public confidence and respect".
As long as there is no law in Nigeria expressly prohibiting the recording of court proceedings, courts may not be able to restrain persons from making an electronic recording of their proceedings. If a person nonetheless goes ahead to record the proceedings of the court, the courts may not be able to impose sanctions on such a person outside the provisions of the law. It is recommended that courts seeking to enforce a ban on the recording of their proceedings should borrow a leaf from courts in other parts of the world which have made rules and practice directions prohibiting the recording of court proceedings, except with the permission of the court. This will provide clarity to litigants and observers alike about what is required of them whilst in the court room. Until that is done, we contend that electronic recording of court proceedings in Nigeria by members of the public, even though frowned upon by the courts, is not unlawful.10
* Peter Olaoye Olalere, Associate Partner and Emmanuel Abasiubong Bassey, Associate Dispute Resolution
Department at S.P.A. Ajibade & Co., Lagos, Nigeria.
1. See, Rule 53 which states: "except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom".
2. See, https://www.uscourts.gov/about-federal-courts/judicial-administration/cameras-courts/history-cameras-courts accessed on 30th September 2022.
3. Section 41 of the Criminal Justice Act 1925 prohibits the taking of photographs, or making of sketches in and around the court. The publication of such photographs or sketches is also prohibited. A fine of up to 50 pounds may be imposed for any violation of the law.
4. Section 9 of the Contempt of Court Act 1981 prohibits the recording of sounds except with the leave of the court and section 9(2) makes it a contempt of court to broadcast recordings of court proceedings to the public.
5. See, Bey v. Gascon, Case No. 19-cv-03184-WHO (N.D. Cal. Oct. 15, 2019).
6. See, paragraph 99 and 100 of the Consolidated Provincial Practice Direction for Ontario Courts, available at https://www.ontariocourts.ca/scj/practice/practice-directions/provincial/#D_Electronic _Devices_in_the_Courtroom accessed on 30th September 2022.
7. See also, The Court of Appeal (Recording and Broadcasting) Order 2013 and Section 47 of the Constitutional Reform Act 2005.
8. See, https://jud.ct.gov/HomePDFs/CivilHousingLivestreams.pdf accessed on 28th October 2022.
9. Scott v. Scott (1913) AC 417.
10. See,https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/217307/broadcasting-filming-recording-courts.pdf accessed on 28th October 2022.
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