When Claude Skelton-Cline’s attorney Tana’ania Small-Davis asked High Court Justice Vicki Ann Ellis in May to bar reporters from recording the trial involving her client’s lawsuit against government, Ms. Ellis responded that she would not prohibit recordings unless the lawyer could cite a legal provision that gives her the authority to do so.
Ms. Small-Davis did not cite any such provision, and the trial proceeded accordingly.
However, when the issue was raised again by an attorney in another trial last week, Ms. Ellis said she has received multiple complaints from the legal community in both the High Court and the Commercial Court, and that she is reviewing whether judges can ban the recording of trials and other hearings in the Virgin Islands.
“I haven’t appreciated what the relevant rules in this territory are [pertaining to reporters recording legal proceedings], and it is for that reason that I’ve asked the attorney general on a previous occasion to advise the court on an amicus basis on what exactly is the position in this territory with respect to that,” she said last week during a trial involving two VI-registered companies that are fighting to keep their records from being turned over to Russian investigators (see page 8).
For years, VI journalists have routinely used recorders at the High Court and the Commercial Court, though the devices are banned at the Magistrates’ Court. The recorders help journalists ensure that they report accurately on what is said in the courtroom.
That may soon change, though, pending what opinion the AG’s Chambers provides Ms. Ellis. Attorney General Baba Aziz did not respond to requests for comment on the matter.
“We’ll get to the bottom of this at some point. If necessary, we’ll have the registrar communicate with the press corps,” Ms. Ellis said, adding, “There are very good reasons [to have recording restrictions], not the least of which is that the only accurate record this court is going to recognise as to what proceedings took place is this one here being recorded by the official court reporter.”
What holds abroad
Rules for recording legal matters vary throughout the world.
In the United Kingdom, the country’s Contempt of Court Act prohibits recording hearings without permission, which can be granted or refused by the court.
When that provision was enacted in 1981, a memo on the subject was also circulated to the courts at the time, encouraging “sympathetic consideration … for applications [to record] on behalf of those directly concerned with proceedings and also for properly accredited media representatives,” according to On Contempt, a 1982 textbook by UK legal scholars that focuses on contempt-of-court-related issues.
The textbook adds, “It was also made clear that courts should feel free in appropriate circumstances to withdraw permission if problems were being caused by the presence of the equipment — for example, through distraction or disturbance of the hearing. Particular factors to be taken into account would be sensitivity of the subject matter of the proceedings, and the possibility of causing embarrassment or inhibition on the part of nervous witnesses.”
In spite of the UK restrictions, the London-based Judicial Committee of the Privy Council streams its hearings on its website.
Around the region
In the Caribbean, rules vary by jurisdiction.
In Cayman Islands courts, for example, recording is generally prohibited, although the territory’s Law Reform Commission reviewed the issue in January 2014 and advised that reporters should be granted leave to record in most cases, and that the “position” of whether reporters can record without permission “at common law is uncertain.”
The Cayman Islands is similar to the VI in its legal system — both participate in the Privy Council system — and in its status as a British overseas territory. Moreover, unlike in the UK, neither Cayman nor the VI has provisions in its contempt-of-court act that specifically ban recording court proceedings.
However, the Cayman Islands Law Reform Commission stated in its January 2014 paper that even though the practice is not explicitly prohibited by law, permission should probably be sought before recording.
“We would not be disposed to recommend that sound recording devices could be introduced without the leave of the court,” the paper states.
The paper adds that judges should generally allow journalists to record hearings.
“Insofar as the media are concerned, as long as the apparatus is not such as to disrupt the proceedings, we find it difficult to see on what basis leave could properly be refused,” it explains.
US system
Permission is also required to record in the United States federal court system, according to Carla Minet, the executive director of the Puerto Rico-based Center for Investigative Journalism, who added that such permission is rarely granted in Puerto Rico’s district courts.
However, Ms. Minet said that official transcripts are available to the public. This is not the case in the VI: When this reporter asked Ms. Ellis last week whether such transcripts would be available to the public if recordings are banned, the justice asked the court reporter at the hearing, who stated that such documents are available only to the parties of a case.
Other countries in the region have more relaxed policies.
“In Costa Rica, the police investigation is private, but the trial is completely public and the press can record everything, except when there are victims of sexual crimes and children,” stated Hulda Miranda, a journalist for the Costa Rican newspaper La Nación.
A similar situation holds for court proceedings in Trinidad, according to Caribbean Communications Network journalist Mark Bassant.
“[A recording ban] would be viewed as a serious attack on democratic freedoms and principles,” he stated.
In the Dominican Republic, journalists are even allowed to broadcast trials live, stated Fausto Rosario Adames, the editor of the DR-based digital newspaper Acento.
“This weekend, a lawsuit was filed in the Supreme Court over appeals filed by the defendants in the Odebrecht case, and there was no restriction,” he said, referring to a case involving bribery charges against multiple current and former DR government officials. “The country saw the trial on television.”
Wesley Gibbings, the president of the Association of Caribbean Media Workers, said that while there may be specific instances where it would be wise to prohibit recording and televising court hearings, the practice should be allowed in most cases.
“I think as a general rule — and the televising of [Caribbean Court of Justice] proceedings is a good example of this — the default position should be greater openness to media activity in the courtroom,” he said. “This ensures that citizens are exposed to the inner workings of the justice system that regulate their lives.”
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