BBC fined £28,000 for recording part of hearing of legal challenge to grant by county council of planning permission for fracking

The BBC has been fined £28,000 after it made a video and audio recording of a half day’s hearing in the Planning Court.

Mr Justice Holgate had been hearing argument via Microsoft Teams on the first day of a 2-day judicial review of the decision by Surrey County Council to grant planning permission to UK Oil and Gas to carry out “fracking” operations at a site at Horse Hill, near Horley.

On the evening of 17 November 2020 BBC South East Today – the BBC’s regional television news programme for the South East of England, covering Kent, East Sussex, part of West Sussex and part of Surrey – broadcast in its 18.30 and 22.30 news bulletins a special report on the Horse Hill case.

This included a short clip from the video. All of this was done without the knowledge or consent of the Planning Court.

The BBC admitted to the Divisional Court (Lady Justice Andrews and Mr Justice Warby) that this behaviour was a breach of the statutory prohibitions on making and transmitting unauthorised recordings of court proceedings, and therefore involved at least two criminal offences.

The Divisional Court said that in its judgment (and as the BBC also admitted) the number and seriousness of the breaches made this a case of contempt of court.

All the individuals involved at BBC South East Today – the reporter, the producer, the news editor and the editor concerned – had many years’ experience in broadcasting but it was acknowledged that there had been a failure “to join up the dots”.

In its decision on penalty in Finch, R (On the Application Of) v Surrey County Council [2021] EWHC 170 (QB) the Divisional Court concluded that this was a case of lesser harm but higher culpability, which would place it in the medium category were there a sentencing guideline.

Lady Justice Andrews and Mr Justice Warby then went on to consider any specific aggravating and mitigating factors that had not featured in its assessment thus far.

The Divisional Court said: “Mr Burke [the QC for the BBC] rightly accepted that it was an aggravating factor that the BBC is the principal news provider in this country and that this unfortunate sequence of acts in contempt of Court was a departure from the high standards that are rightly expected of it and which it sets for itself.

“The broadcast was repeated. The clip was seen by around half a million viewers, though none of them complained about it. The problem could and probably would have been avoided had the BBC taken more proactive steps to ensure that their journalists were properly advised of the restrictions that were introduced in the Coronavirus Act and reminded of the existing restrictions on recording and broadcasting court proceedings, at a time when more and more hearings had to be conducted remotely.”

On the other hand, the Divisional Court said, steps were taken to address the problem as soon as the BBC was made aware of it; “it is obvious that senior personnel have taken the case extremely seriously”.

The offending material was swiftly removed from the iPlayer and a memo was circulated to journalists to remind them of the legal position.

Mr Burke also relied on the general reputation of the BBC and its staff for acting responsibly and to the isolated nature of the incident. He submitted that:

• The BBC had taken the matter to heart and responded appropriately.
• It was highly unlikely that this would ever be repeated; all the journalists concerned had learned a salutary lesson.
• The BBC was a public service provider, funded by the licence fee, and any fine would detract from the services it could provide.

Lady Justice Andrews and Mr Justice Warby also bore in mind that the BBC would have to bear its own costs, and had already been ordered to pay the costs of Surrey County Council’s attendance at the directions hearing to assist the Court, an order which it did not resist.

“Last, but not least, we have already referred to the immediate, genuine and fulsome apology and acceptance by the BBC that they had acted in contempt of court and that the recording, editing and broadcasts should never have occurred.”

The Divisional Court considered the authorities to which it was referred by Mr Burke, and the value today of the fines imposed in the older cases.

“There is an obvious danger that if the BBC is seen to be treated too leniently, it will send out the wrong message to those with a more cavalier attitude towards restrictions on reporting, recording and broadcasting court proceedings; on the other hand, the sentence must be fair and proportionate,” the judges said.

“Standing back, and making an overall assessment, we consider that but for the early acceptance of liability and the apology a fine in the order of £40,000 - £45,000 would have been merited. Discounting by approximately 1/3 for those matters, we will order that the BBC should pay a fine of £28,000.”

On 21 December 2020 Mr Justice Holgate dismissed the legal challenge to Surrey County Council’s grant of planning permission.

The main issue raised by the challenge in Finch, R (On the Application of) v Surrey County Council [2020] EWHC 3559 was whether a developer's obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to provide an environmental statement describing the likely significant effects of a development, both direct and indirect, required an assessment of the greenhouse gas emissions resulting from the use of an end product said to have originated from that development.