By Dr Finbar Markey
As many well-versed Lay-litigants know there is no actual statute or Court rule prohibiting the use of a recording device by a Defendant for the purpose of assisting himself/herself in their case. There is however an unspoken rule that it is never allowed. Indeed, I once witnessed a free-lance journalist prostrating himself before a Judge of the High Court to let him know someone might be recording in the court, and the Judge making a gloating speech about his “inherent jurisdiction” to find out who was recording and demand it stop. So why stop Defendants recording proceedings that our Constitution states must be publicly heard and fair (not to mention numerous other international agreements)?
Well one shot probably not far off the mark is that the recording systems in the courts are a great money spinner, and who wants to damage industry eh? There’s a recession on. No thought is spared for the lay-litigant homeowner and their inability to access expensive court recordings. Meanwhile, the banks can well afford multiple copies, can afford to have them digitally remastered and released as a Christmas album if they so desire.
Currently it would appear no-one is taking this serious prejudice against the lay-litigant homeowner very seriously and yet it is at the very least another ground for appeal into the future if denied the right to record. Some might even be cheeky enough to seek an indefinite adjournment of their cases until such matters are deliberated in a Higher Court: if of course someone files such a case.
What would it look like? How would one introduce the matter in let’s say the Circuit Court and in doing so at the least set on record for the future your request to record proceedings on your own device. Well it might begin by the lay-litigant politely letting the court know (maybe even in a bridging affidavit) that as a litigant representing him/herself and a novice note-taker the defence would be best served by recording proceedings.
I can imagine the Registrar or Judge making utterances to the effect it is not allowed, the lay-litigant in reply asking if there is any other way to obtain recordings.
“You can get the DAR (Digital Recording System) recordings” says the Judge in a hurried fashion, such matters being beneath Judges of course.
“Is there a cost to that Judge?” says the Lay-litigant innocently.
“Oh I don’t know. What matter you are not recording in this court!!” says the Judge.
“Is that your last word on the matter Judge, you are stopping me from recording my own matters in Court in the knowledge that I cannot afford access to the DAR?” Says the Lay-litigant calmly.
“Erm, its is” says the Judge edgily and after a long suspicious squint down on the Lay-litigant.
“Thank you Judge”.
Now refusal may not be the outcome and the Judge, maybe seeing the fix he is getting caught up in, or maybe genuinely listening, might say that you can record. It’s highly unlikely however, and you have just established grounds for an appeal and/or if you feel up to it a judicial review, either of which may be used by all other Lay-litigants into the future.
We have posted below what the Law Reform Commission has to say on the issue. This extract is taken from a broader report examining Contempt of Court, the link to which is also posted below the text extract.
“(3) Tape Recorders
No statute regulates in express terms the use of tape recorders (or other sound recorders) in court.
The matter appears to fall within the inherent jurisdiction of the court to regulate its own procedure. The precise rationale for, and consequent scope of, this jurisdiction in general is a matter of uncertainty, which impinges on the specific question of the use of tape recorders.
On one view, the purpose of the jurisdiction is to prevent any obstruction of, or interference with, the administration of justice.
As an American commentator stated of the experience in the United States,
“inherent powers may be used only when reasonably necessary for the court to be able to function …. Courts may not exercise inherent powers merely because their use would be convenient or desirable.”
On another view, the exercise of the court’s inherent power should not be confined to cases of strict necessity and is permissible whenever its purpose is to secure or promote convenience and expedition in the administration of justice.
The difference of approach – or perhaps mere tendency – may be important in relation to the use of recorders in court. Is a judge entitled to prohibit their use in all circumstances or only in particular cases? It is clear that recordings are capable of being put to improper use in certain circumstances: they may, for example, interrupt the flow of proceedings, or intimidate a witness, or they may be re-played to coach a person who has yet to give evidence.
Of course in cases where there is a specific risk of any misuse of this type, a judge would be perfectly free to prohibit the use of a recorder; but it is not entirely beyond argument that a judge may invoke such hypothetical risks, so as to prohibit the use of recordings in all circumstances.
One suspects that, if the issue were tested, an appellate court might well uphold the propriety of even an absolute prohibition on the basis that it is never possible to exclude these risks, even if there is no question about the integrity of the would-be user of the recorder, since there may be an unauthorised use of the recording by someone else. Whether such an a priori resolution of the issue would commend itself to the court, however, is impossible to predict.
So far as general principles are concerned, it is relevant, though not conclusive, that the right of persons in Court to take notes has been recognised, and it may be argued that this represents a general entitlement to record the evidence. More broadly, on constitutional grounds, it may be contended that open justice would not be fully guaranteed if it is limited to what those who attend court can recall or record by taking notes. The reply to these arguments, no doubt, is that sound recordings are not the same, as notes. A note-taker may be less obtrusive than a sound recorder; sound recorders can, moreover, be used far more effectively to coach witnesses than a mere transcript, however full. Whether this is a fully effective refutation, however, may be debated”.