X V. British Broadcasting Corporation+lion Television Limited Trading As Lion Television Scotland
| Jurisdiction | Scotland |
| Judge | M.G. Thomson, Q.C. |
| Neutral Citation | [2005] CSOH 80 |
| Date | 22 June 2005 |
| Court | Court of Session |
| Published date | 22 June 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 80 | |
|
| OPINION OF M G THOMSON, Q.C. (sitting as a Temporary Judge) in the cause X Pursuer; against (FIRST) BRITISH BROADCASTING CORPORATION and (SECOND) LION TELEVISION LIMITED (trading as LION TELEVISION SCOTLAND) Defenders: ________________ |
Pursuer: Dewar, Q.C., D.M.Thomson; John McGovern & Co, Glasgow
First Defenders: Cullen, Q.C., Dunlop; BBC Scotland Legal Department
Second Defenders: Creally; Boyds
22 June 2005
Introduction
[1]The British Broadcasting Corporation ("the BBC") commissioned Lion Television Limited, trading as "Lion Television Scotland" ("Lion") to make a documentary film, provisionally entitled "The Courtroom", concerning the work of Glasgow Sheriff Court ("the Documentary"). In the course of making the Documentary Lion filmed Miss X and her friend, Miss Y, in and in the immediate vicinity of Glasgow Sheriff Court. This filming of Miss X and/or Miss Y took place on a number of days in April 2003. The first of these occasions was 10 or 11 April 2003. On that day Miss X and a representative of Lion signed a pre-printed "Contributor's Agreement" in terms of which Miss X was a contributor to the Documentary (No.6/2 of process).
[2]In due course filming by Lion was completed and the video film was edited to produce the Documentary. Lion recorded over four hours of video tape concerning Miss X ("the Rushes video") of which they used approximately five minutes towards the end of the Documentary which lasts for forty minutes. The material relating to Miss X in the Documentary is interwoven with another story line in the last ten minutes of the documentary.
[3]After various correspondence between solicitors on behalf of Miss X and the BBC's solicitor, the former wished to have all references to her removed from the Documentary which the BBC intended to broadcast and the latter, after making various changes to the material relating to Miss X contained in the Documentary, maintained their intention to broadcast the Documentary including the references to Miss X. In these circumstances Miss X raised the present action against the BBC and Lion in which she seeks production and reduction of the Contributor's Agreement or, alternatively, an order under section 3 of the Age of Legal Capacity (Scotland) Act 1991 ("the 1991 Act") setting aside (a) the Contributor's Agreement and (b) any other agreement between the parties in terms of which Lion filmed Miss X between about 11 and 23 April 2003, and for interdict against the BBC from broadcasting various categories of video film of or concerning Miss X between 11 and 23 April 2003. The case came before the court on the pursuer's motion for interim interdict. A video of the Documentary in the form in which the BBC intends to broadcast it was produced ("the Documentary video").
Factual background
[4]Historically the use of photographic and television cameras within Scottish Courts and their precincts was not permitted. That position changed by virtue of Directions issued by the then Lord President and Lord Justice General (Lord Hope) on 5 August 1992 ("the 1992 Directions"), which provided that filming might be allowed in certain circumstances. The 1992 Directions were headed "Television in the Courts" and provided inter alia as follows:
"The Lord President has issued the following directions about the practice which will be followed in regard to requests by broadcasting authorities for permission to televise proceedings in the Court of Session and the High Court of Justiciary. (a) The rule hitherto has been that television cameras are not allowed within the precincts of the court. While the absolute nature of the rule makes it easy to apply, it is an impediment to the making of programmes of an educational or documentary nature and to the use of television in other cases where there would be no risk to the administration of justice. (b) In future the criterion will be whether the presence of television cameras in the court would be without risk to the administration of justice. (c) In view of the risks to the administration of justice the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances. (d) Civil proofs at first instance do not normally involve juries, but the risks inherent in the televising of current proceedings while witnesses are giving their evidence justify the same practice here as in the case of criminal trials..... (h) Requests from television companies for permission to film proceedings, including proceedings at first instance, for the purpose of showing educational or documentary programmes at a later date will be favourably considered, but such filming may be done only with the consent of all parties involved in the proceedings, and it will be subject to approval by the presiding judge of the final product before it is televised."
Against this background Lion entered into a contract with the Scottish Ministers acting through the Scottish Court Service ("the Lion Contract") in terms of which Lion was authorised to film the Documentary. That authorisation was conditional upon the terms and conditions of certain guidelines laid down by the Sheriff Principal of Glasgow and Strathkelvin ("the Guidelines"). The Guidelines were entitled "Guidelines for Filming Documentaries of Criminal Jury Trials". The Guidelines then provided:
"The following comprises a list of rules with which the Sheriff Principal of Glasgow and Strathkelvin would require Lion to comply in the recording of any proceedings in the Sheriff Courts of the Sheriffdom and in the use of any material which Lion have recorded for the purpose of a documentary programme."
Notwithstanding the title of the Guidelines, rule 12 clarified that the rules would apply to both solemn and summary criminal business and "mutatis mutandis" to the recording of civil proceedings. The Documentary is principally concerned with criminal proceedings.
[5]The Guidelines provided inter alia:
"(1)The recording of proceedings in court at the trial will require the prior consent of the trial sheriff, and his consent will be subject to such conditions as he considers appropriate [subparagraphs (a) and (b) detailed information to be provided to the sheriff by Lion with regard to the nature of the proceedings which Lion wished to film and the lighting, cameras and microphones which they proposed to use.]
(c)In dealing with the above the [sic] trial the sheriff will have the right to satisfy himself that the recording of the proceedings will not interfere with the working of the court and that there will be no risk to the administration of justice.
(d)Where the trial sheriff has given his consent it will be open to him to revoke or qualify his consent as he thinks fit at any stage in the light of circumstances which emerge in connection with the proceedings. In particular he will be entitled to require that any part of the proceedings be excluded from recording where he is satisfied that its recording would not be in accordance with the interests of justice.
[There is no rule 2].
(3)The agreement of the Procurator Fiscal and the defence agent or agents must be obtained for the proposed recording of proceedings in court at any criminal trial before any approach is made to any of the likely individual participants in the trial, particularly witnesses.
(4)The consent of all those who are to be filmed will be required, whether or not they are to be named in the documentary.
(a)The main groups whose consent will be required are:-
(i)The trial sheriff, the clerk of court, the court officer and the shorthand writers;
(ii)The accused, his counsel and solicitors;
(iii)If appearing, the advocate-depute and the members of the staff of the procurator fiscal's offices who are in attendance;
(iv)The procurator fiscal depute;
(v)The witnesses;
(vi)The members of the jury;
(vii)Any police officer who may appear either as a witness, escort or in any other capacity.
(5)The following particular rules apply in regard to the witnesses:
...
(b)Before the beginning of the trial Lion shall send to such of the Crown and Defence witnesses as Lion have selected for filming an explanatory Statement and a form which the witness is invited to sign and to return to Lion indicating his/her consent to be filmed. See Schedule 2 attached.
(c)No witness is to be filmed at any stage during the giving of the evidence unless he or she has given his or her prior written consent and the trial sheriff is satisfied that such consent has been given.
(d)If a witness does not consent to be filmed, this is to be taken as a conclusive indication that consent is being withheld. Witnesses are not to be approached with a view to negotiating the conditions on which they would give their consent.
(e)If a witness does consent to be filmed, it will be open to the witness to withdraw that consent at any time up to twenty four hours after the conclusion of his or her evidence. The effect of withdrawing the consent is that the filmed evidence of that witness is not to be transmitted in the documentary.
(f)The withdrawal by a witness of his or her consent is not to give rise to a claim by you [Lion] for damages or reimbursement of expenditure against the witness, nor is it to give rise to any such claim against the prosecution or the defence or the court administration or any member of it.
(g)In the explanatory statement mentioned in paragraph 5(b)(i) [sic] the witness is to be provided with information as to the conditions under which proceedings are to be recorded and the uses which may be made of the recorded material. The witness will also be advised that he or she has an opportunity to consider and take advice in regard to the giving of consent, and has to [sic] the right to withdraw consent as mentioned above.
(h)Subject to what is stated in paragraph (5)(b) you are not to approach any witness immediately prior to or during the...
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