News organisations win Court of Appeal ruling forcing release of video footage shown at trial

Media organisations should have been allowed access to video footage shown at a manslaughter trial following the death of a man who was put in a police cell after being forcibly restrained, the Court of Appeal has ruled.

The material should be released at the end of the evidence of the third defendant in the case rather than at the end of the trial after the jury had delivered its verdicts, the court held.

The case is the first time media organisations have appealed against a judge’s refusal to release footage which has been shown to a jury in open court.

It also makes clear that media organisations can use the provisions of section 159 of the Criminal Justice Act 1988 to appeal against refusals by courts to release such material.

The hearing took place in February last year, and the Court of Appeal handed down its decision on March 17, but it postponed reporting of the appeal until the end of the proceedings in the criminal trial.

Devon and Cornwall Police Sergeant Jan Kingshott and detention officers Simon Tansley and Michael Marsden were charged with unlawful act manslaughter and gross negligence manslaughter in connection with the arrest and subsequent death of 32-year-old paranoid schizophrenic Thomas Orchard in October 2012.

The Court of Appeal lifted the reporting restrictions after being told that the jury had been discharged and a new trial ordered, and that verdicts had been returned in a separate and unconnected trial.

Lord Justice Gross, who was sitting with Mr Justice Globe and judge James Burbidge QC, said a group of media organisations comprising the Guardian News and Media, Times Newspapers, Independent Print and Associated Newspapers, had asked Mr Justice King for access to video footage which was shown to the jury in open court at the Kingshott trial.

The footage showed Orchard being arrested in Exeter city centre and, subsequently, his handling and restraint by custody staff and police officers – including the use of an Emergency Response Belt (“ERB”) – in the custody suite at Heavitree Police Station.

“The video footage from the custody suite is central to the prosecution case and has been a major focus of the trial, displayed on large screens and viewed by the jury, the public and reporters in open Court,” said Lord Justice Gross.

“It has apparently been analysed to the jury over two days; frames were paused, stopped and re-run to give them the opportunity to see what can be seen.”

The judge decided that the media would be allowed to see and use the material – but only after the trial was over.

The media organisations appealed under section 159 of the Criminal Justice Act.

In the Court of Appeal Guy Vassall-Adams QC, for the media group, argued that Mr Justice King erred in:

  • Failing to consider whether rejection of the application was necessary; or, in the alternative, in concluding that the risk of prejudice outweighed open justice and freedom of expression,
  • Failing to give any or adequate consideration to the importance of contemporaneous reporting,
  • Concluding that the requested footage was unnecessary for accurate and effective reporting,
  • Failing adequately to identify the mechanism/s by which access to the requested footage would prejudice the proper conduct of the trial,
  • Failing to follow the authorities on jury robustness.

Lord Justice Gross said there was no dispute that the relevant part of judge Justice King’s order came within the provisions of section 159 of the Criminal Justice Act, and that the court had jurisdiction to entertain the appeal.

On the law, he said the importance open justice had the “highest standing”, which was also supported by paragraph 5B of the Criminal Practice Directions 2015 (CPD).

There was also the need for the courts to trust juries when considering issues of reporting restrictions and potential prejudice.

Lord Justice Gross said: “Looking at this appeal in the round, two features loom large. The first is that the CCTV footage in question was played extensively to the jury, in open court and without any restriction. Why it might be asked, as a matter of common sense, should it not be released to the media without more ado?

“The second is the judge’s understandable concern not to prejudice the fairness of a high profile jury trial, leading him, as a matter of timing, to refuse access to the material in question until after verdicts have been given. Did the judge strike the right balance? If not, what balance should we strike?”

He added: “In our judgment, principle and authority furnish a strong launching pad for the Media Organisations’ case.”

Lord Justice Gross said that while the court had reservations about whether release of the CCTV material was “necessary” for accurate and effective reporting, a number of points could nonetheless be made in support of the Media Organisations’ request:

  • As underlined by the CPD 2015, paragraph 5B.30, it was not for the Court to exercise “editorial judgment” on the adequacy of the material already available for journalistic purposes,
  • The most effective manner of accurately, fairly and contemporaneously reporting the proceedings in this trial – given the centrality of the CCTV material – was by using that material itself,
  • In the light of the CPD 2015 it was plainly no bar to releasing the CCTV material that it was or might be characterised as an “exhibit” or form part of the Jury Bundle,
  • Thought the application of the open justice principle was a matter for the court’s inherent jurisdiction and the practice of the court was “not frozen”, on the evidence, the request in this case was in no sense breaking new ground.

Lord Justice Gross said the court differed from Mr Justice King’s view with “with reluctance” but felt that he had fallen into error in balancing the conflicting rights and principles with which he had to deal.

“While acknowledging the justifiable caution required to avoid prejudicing the fairness and safety of the trial, we are unable to accept that the facts before the Judge demonstrated the risks upon which he relied in coming to his decision,” said Lord Justice Gross.

None of the defendants featured in the footage taken in the city centre, and the court could not see any risk to the trial process or, indeed, any basis for refusing access to this material.

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