4.8 Other points to note when filming, photographing and recording in court

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Sensitive cases

There are additional considerations and rules in relation to filming, photographing or recording court cases relating to sexual offences.

The Crown must notify the registrar of the complainant's views about your media coverage application, and if the complainant opposes the application, the judge is likely to decline your application.

If the complainant supports the application but only on certain conditions, the judge will show special regard for their views and permission to cover the case may be subject to relevant restrictions.

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Witness protection

In a criminal trial, witness protection from identification is normally available for any witness who seeks it. This does not apply to the defendant or certain official witnesses.

Protection under this rule can be sought from the presiding judge at any time before the witness gives evidence.

Witness protection means the witness should not be recognisable if published or broadcast giving evidence. In the case of still photography, the witness should not be photographed while they are in court or giving evidence.

The judge may also rule that the witness may not be filmed, photographed or recorded by anyone anywhere between the time of the protection ruling and the end of the trial.

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Additional discretionary witness protection

All witnesses in criminal trials or hearings, including official witnesses and the defendant, can apply for an additional level of protection.

Any witness, or party proposing to call that witness, may apply for a ruling that the witness not be filmed, photographed or recorded.

When additional witness protection is applied for, the applicant must notify all other parties, including any media who have been granted authority to cover the trial.

The judge will consider any application for additional discretionary witness protection, having regard for matters such as whether:

  • media coverage of the trial is likely to adversely affect the quality of the evidence to be given by the witness
  • the presence of a video camera, a photographer or sound recorder is likely to deter the witness from appearing to give evidence
  • being filmed or photographed or recorded may cause undue stress or anxiety to the witness, or may lead to intimidation or harassment of the witness
  • the witness's privacy interests outweigh the public interest in publishing or broadcasting that witness's evidence.

In a case where the judge has ruled that the witness must not be filmed at all, the video camera should be either removed from the court or turned away from the witness so that it is obvious to the witness that they are not being filmed. The judge may impose additional conditions at any time.

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Suppression

In accordance with the Criminal Procedure Act 2011, a judicial officer or registrar may make an order forbidding the publication of a person's name, address, occupation, or other particulars likely to lead to identification, and of evidence, or submissions in a criminal case.

In some instances suppression applies although no court order has been made. This is because there is a statutory provision which provides that there will be automatic suppression.

If reporting on matters of a sexual nature, the law forbids identifying people or publishing details that may identify people. If you are unsure about matters concerning suppression orders or reporting cases of a sexual nature, we suggest you seek legal advice.

If a suppression order is made, or there is automatic suppression, in relation to a person's name, the law says you may not publish, show or repeat that person's name or any particulars likely to lead to the person's identification. In some cases there may also be other details in addition to the person's name that are suppressed.

When suppression is dealt with under the Criminal Procedure Act 2011, the media have the right to tell the court their views on any application to make or change a suppression order. The media also have the right to appeal a court's decision on an order and to apply for a suppression order.

You can check with the registrar if you are unsure whether suppression was granted in respect of any details of a case.

Each case will be different and your media organisation is advised to seek legal advice if any doubt exists.

For high profile trials in the High Court, media representatives will be invited to provide their contact details so that during the course of the trial any suppression orders made will be emailed to the registered media representatives.

There are penalties available to the court if a suppression order is broken. Note that although not all information may be suppressed, it is important to ensure that you do not publish anything that would prejudice a fair trial.

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Bail applications

General suppression on reporting bail applications is outlined in section 19 of Bail Act 2000. If you are in court and wish to report on a bail application, it is advisable to seek clarification as to whether that is permissible from the judge. There may be material discussed in submissions, or in the judgment, which if reported, could prejudice the defendant's fair trial rights, such as the defendant's criminal record, or the judge's assessment of the strength of the evidence against the defendant.

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Jurors and juries

In a jury trial, jurors should not be filmed, photographed or otherwise identified, and no publication or broadcast may show the jury or any member of it.

In addition, the jury should not be interviewed and no comment offered by a juror or jury may be reported.

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Recording equipment

Where an application has been approved for media to record or film a trial, you must provide all your own recording equipment.

Court audio and visual equipment is specifically set up to conduct the business of the court and cannot be used by media.

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Courtroom sketches

The same approvals are necessary for sketching a courtroom scene as for photographing in court, and you should use the application form included as Schedule 1 of the In-Court Media Coverage Guidelines 2012 to 2016 in Appendix C.

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Courthouse boundaries when recording

Where an in-court media application has been granted, any such recording is limited to the courtroom and does not authorise filming in any other public areas of the court building. All conditions for recording set by the judge must be adhered to at all times and in all locations.

If the media wishes to film or photograph outside the courtroom (but within the court building) please contact the registrar.

Media may still exercise their common law rights to take photos in a public place, such as in the street.

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Outside the courthouse

Filming outside the courthouse from outdoors areas which are part of the court

If media wish to film or photograph on court land, please seek permission from the court manager. This means any outside area that is adjacent to, and belongs to, or services the building in which courtrooms are located.

If you are filming or taking photographs outside the courthouse you should be aware of any people included in your footage. If you film someone entering or leaving the courthouse you will need to check that there is no suppression order, or automatic suppression in place, prior to the broadcast or publication of those images.

If there is a suppression order, or automatic suppression, you should ensure that any images that are broadcast or published are treated in a manner that does not contravene the terms of the suppression order.

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