Case Law, Strasbourg: Pinto Coelho v. Portugal (No.2), Open Justice, Article 10 and Broadcasting recordings of hearings – Hugh Tomlinson QC

26 03 2016

18726989_VefAtIn the case of Pinto Coelho v Portugal (No.2) ([2016] ECHR 296)(only in French) the Fourth Section of the Court of Human Rights held (by a 6:1 majority) that the imposition of a fine on a journalist who had published unauthorised audio recordings of a criminal trial was a breach of Article 10.  The case has potentially wide implications for jurisdictions such as England and Wales which continue to prohibit the transmission of recordings of criminal trials.

Background

The applicant, Ms Pinto Coelho, is a journalist and crime reporter for a Portuguese television channel.  On 12 November 2005 the news programme on the channel broadcast a report prepared by her about the criminal conviction of an 18-year-old man for aggravated theft of a mobile phone.

The programme claimed that the young man was innocent and that the judges had made a mistake.  Ms Pinto Coelho backed up her argument with interviews with several of the lawyers.  She included in her report shots of the courtroom, extracts of sub-titled sound recordings and the questioning of prosecution and defence witnesses, in which their voices and those of the three judges were digitally altered.

The sound recordings were from the official tape recording of the proceedings which was available to the parties.

The excerpts were followed by Ms Pinto Coelho’s commentary, in which she attempted to prove that the victims had not recognised the young man during the trial; indeed, he alleged that he had been at work at the time of the incident.

After this report was broadcast, the president of the division which had judged the case lodged a complaint with the public prosecutor against Ms Pinto Coelho, complaining that permission had not been given to broadcast extracts of the sound recording of the hearing and film shots of the courtroom.

The prosecutor’s office brought proceedings for non-compliance with a legal order against Ms Pinto Coelho and three managers of the 8 o’clock evening news programme, on the ground that the failure to obtain authorisation was in breach of the provisions of the Code of Criminal Procedure and of the Criminal Code.

Before the court, Ms Pinto Coelho alleged an infringement of the freedom of the press, but in a judgment of 6 August 2008 she was convicted of non-compliance with a legal order and ordered to pay a fine of €1,500  This judgment was upheld by the Lisbon Court of Appeal on 26 May 2009. On 15 February 2011 the Constitutional Court dismissed an appeal by Ms Pinto Coelho.

Ms Pinto Coelho applied to the Court of Human Rights on 14 July 2011 complaining that her conviction for non-authorised use of the recording of a court hearing was violation of Article 10.

Judgment

It was clear that Ms Pinto Coelho’s conviction for unauthorised use of a recording of the hearing was an interference with her right to freedom of expression under Article 10 [32].  It was, however, “prescribed by law” namely Article 88 of the Portuguese Code of Criminal Procedure [33].  The interference pursued the legitimate aim of protecting the proper administration of justice and the rights of others [34].

The Court noted the fact that freedom of expression is an essential foundation of a democratic society and the particular importance of the role of the press ([36] and [37]).

In this case, the right of the applicant to inform the public and the public’s right to receive information had to be balanced against the right of those who testified to respect for the private lives and the impartiality of the judiciary [41].  The Court noted that in principle the Article 10 and Article 8 rights deserved equal respect.

First, the report clearly concerned a subject of general interest. Reference was made to Council of Ministers Recommendation Rec (2003) 13 on the provision of information through the media in relation to criminal proceedings.

Second, the Court considered the conduct of the applicant. She owed “duties and responsibilities” in the exercise of her freedom of expression. Article 10 did not release journalists from the obligation to respect the criminal law.

The Court noted that the applicant had not obtained the recording illegally and that the voice of judges and witnesses had been distorted to prevent their identification by the public.

Although the government criticised the news broadcast, Article 10 also protected the mode of expression of ideas and information and it was not for the Court to substitute its own views for those of the press as to how a story should be presented.

Third, in relation to the balancing carried out by the domestic courts, the Constitutional Court held that the requirement for judicial authorization for the distribution of sound recording statements held during a hearing, without any time limit was not improper and excessive solution. That Court did not consider that this was a restriction on the exercise of press freedom but only a certain modality of this exercise: the transmission of the audio recording of a hearing [48].  It did not invoke the need to protect the authority of judiciary but relied, rather, on the personality rights of the those at the hearing.

 When the news report was broadcast the case had already been decided and as a result the Government had not established how the broadcast of audio extracts could have a negative influence on the proper administration of justice [49].

The Court had to consider whether a fair balance had been struck between freedom of expression and the right to respect for private life.  The “right to speak” of those at the hearing did not have the same weight as the right to reputation.  The hearing was public and none of those whose evidence was broadcast had filed any complaint.  Their voices were distorted.

The Government had not sufficiently justified the sanction imposed on the applicant under Article 10(2).

Fourthly, in relation the proportionality of the penalty, the fine clearly had a deterrent effect.

In all the circumstances, there was a violation of Article 10 [56].

There was a concurring judgment from Judge de Gaetano (reported in the Times of Malta).  He said that if the Government had invoked the need to ensure the authority of the judiciary they would have had to show that the prohibition was reasonably necessary for that purpose on the facts of the particular case.

Judge Zupančič dissented.  He noted that Article 88 of the Portuguese Code of Criminal Procedure was clear: prior authorization was required.  The applicant had not even attempted to get it.  He referred to H L A Hart’s. The Concept of Law, and the distinction between “prescriptive” and “instrumental” rules, taking the view that a proportionality analysis was inappropriate on this issue.  He concluded that

“The Convention makes the protection of the authority and impartiality of the judiciary absolutely mandatory, in a prescriptive not instrumental way, as a prescriptive derogation from the freedom of the press”.

Comment

This judgment has potentially wide ranging implications.  The applicant contravened a clear statutory prohibition on the transmission of recordings of judicial proceedings without prior authorization. She was well aware of the prohibition – having a previous conviction for the same offence ([17]).

The Court of Human Rights nevertheless found that the imposition of a fine on the applicant was a violation of her Article 10 rights.

One reason for this was the way in which the matter had been dealt with in the prior  domestic courts which had not considered whether there were “general” justifications for the prior authorization requirement but had focussed on the rights of those whose voices had been broadcast.  Bearing in mind the fact these were digitally altered the interference with rights was limited and it is perhaps not surprising that the majority held that Article 10 rights prevailed.

The dissenting judge raised the more general question as to the “maintaining the authority and impartiality of the judiciary” – albeit in slightly surprising terms.

None of the Judges considered the question as to whether a system of authorization was “necessary and proportionate” to ensure that audio recordings were not used improperly – with potentially damaging impact on the fair trial rights of defendants and the Article 8 rights of witnesses and judges.

Nevertheless, the decision is one which the English Courts must now “take into account”.  At present, section 9 of the Contempt of Court Act 1981 provides that it is a contempt of court to to use sound recording equipment in court without permission and

“to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication”.

This does not apply to sound recordings made for the purposes of official transcripts but access to these is strictly controlled “To minimise the risk of misuse of such recordings” (Practice Direction: Access to Audio Recordings of Proceedingspara 2).

The journalist and Freedom of Information activist Heather Brooke has long campaigned against the rules forbidding anyone other than official transcribers from tape recording proceedings.  The judgment in the Pinto Coelho will provide useful ammunition for this campaign.  Furthermore, the judgment may provide grounds for a media challenge to the compatibility of section 9 of the Contempt of Court Act with Article 10.

Hugh Tomlinson QC is a barrister at Matrix Chambers and an editor of Inforrm


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