Cullinane, R. v [2007] EWCA Crim 2682

Case No 200704767 A3[2007] EWCA Crim 2682
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 4th October 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE UNDERHILL
MR JUSTICE GRIFFITH WILLIAMS
Between
R E G I N ACrownv
Between
PATRICK CULLINANE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Wood appeared for AppellantJ U D G M E N T
[1]MR JUSTICE UNDERHILL: The applicant in this case is a man of 57 who apparently has a close interest in the administration of justice. He has on various occasions acted as a McKenzie Friend in courts up and down the country.[2]On 7th September 2007 he and two associates were in the public gallery in the Bradford Crown Court, attending a bail hearing in a murder case. The defendant was a Mr Castree. The appellant was convinced that Mr Castree should not be facing prosecution and had indeed offered him his services as a lay advocate. At the conclusion of the hearing the appellant rose and tried to address the judge, but he was not prepared to hear him.[3]It then transpired that reports had been received that the appellant or his associates had been taking photographs within the precincts of the court. They were accordingly detained. One of the other men, a Mr O'Gara, was indeed found to have taken on his mobile phone some photographs of police officers in the concourse area. The appellant was found to have a tape recorder on him on which he had recorded the bail application in Mr Castree's case.[4]The appellant and Mr O'Gara were arrested for contempt of court and brought before the Recorder of Bradford. He offered them legal representation, which at that point they declined. They were detained overnight. The following morning they decided that they did require legal representation. Counsel were instructed and a hearing took place that afternoon. The Recorder found them guilty of contempt of court. He sentenced Mr O'Gara to 14 days' imprisonment and the appellant to four months' imprisonment.[5]As regards the appellant, the Recorder said this:
"You, Cullinane, I am told have attended courts up and down the country to assist as a McKenzie Friend people who are before the court. I am told, effectively, that the use of the tape recording device was in effect a naive act by you, not designed to impede the court process, and that it only produced that which you might have been able to obtain lawfully from the shorthand writers. What a recording device can do is also pick up other speech from other court users within the court building. The use to which such recordings could have been made one can only speculate about. I anticipate they might well have appeared on a website before very long. If you have that much experience of the courts and the court processes you knew perfectly well that what you were doing was an unlawful activity."
[6]We have no doubt that the sentence imposed by the Recorder was excessive. Some sanction was undoubtedly appropriate. There is an explicit statutory prohibition on the unauthorised taping of court proceedings: see section 9(1)(a) of the Contempt of Court Act 1981, which renders the making of such recordings a contempt of court. The Recorder was entitled to find that the appellant knew of that rule and that he broke it deliberately. Deliberate breaches of that kind require to be punished, but the seriousness of the offence depends on the purpose with which it is committed and on the likelihood of any risk to the process of justice. The Recorder believed that the appellant may have intended to publish the recordings in due course "on a website". That may be the case, though we are not entirely clear on what he based that belief. Such publication - that is, of the recordings themselves as opposed to any transcript - would be a further contempt (see section 9(1)(b) of the 1981 Act) and would no doubt be undesirable. It would not however by itself be likely to prejudice the administration of justice. It would be a different matter if the publication were in breach of reporting restrictions or would otherwise prejudice a fair trial or involved disclosure of other material which had been ordered to be kept confidential, but nothing in the Recorder's findings justifies the conclusion that that was the appellant's purpose or the likely effect of his actions. It would also be a different matter if the recordings contained, or were made in the hope that they would contain, not simply what was said in open court but the private conversations of those involved in the court process. The Recorder did indeed refer to that possibility, but again he made no finding that that had occurred or was the appellant's purpose.[7]In all those circumstances, this does not appear to us to be so serious a contempt of court as to deserve any substantial prison sentence. If the judge concluded that the clang of the prison gate was required at all, the period of detention which the appellant has already suffered has amply met that need. We will accordingly pass a term of imprisonment such as will produce his immediate release, which we understand would be a term of 26 days.[8]We should say in conclusion that we were referred to the decision of this court in R v D (Contempt of Court: Illegal Photography), The Times May 13th 2004, in which this court emphasised the seriousness of breach of the rules against the taking of photographs in court. But there is no exact analogy between cases of that kind and what happened in the present case. We certainly would not wish it to be thought that we disagree with the observations which the court there made.

Cited in 2 later judgments