Tuesday 27 November 2018

Application to make an unofficial sound recording of proceedings

I was getting a little frustrated with the lack of progress on my repeated requests for court transcripts during this trial. I had been assured that both the claimants and defendants had agreed in principle I should receive them, but I still wasn't getting them.

In court I could either bosh out blow-by-blow live tweets of proceedings (as parahphrases and notes), or stay alert for a newsworthy couple of quotes/exchanges and make sure I had them 100% accurate before sending them on to contacts in the media for possible publication. I didn't feel able to do both.

I went down the live tweets route, but it made for a very difficult daily post-proceedings write-up - by not being able to supply verbatim quotes to newspaper and broadcast colleagues I was limiting the effect of my reporting.

On Friday I wrote to the judge and circulated a letter to the claimants and defence teams. It is an application to make an unofficial sound recording of proceedings, which you can read here. I wasn't expecting much.

When I sent the letter to the judge's clerk via email on the Friday I got her out of office reply, which said she wasn't back until Tuesday. I realised I was going to have to get the letter to the judge by hand on Monday morning before court started.

I wrote a cover note and printed it out, along with several copies of the letter, in case the email I sent on Friday hadn't reached the claimants or the defence. I arrived early at the Rolls Building and made sure the claimants and defence team were given hard copies.

Thankfully, as I did so, both parties confirmed they had already seen it. I went into court 26 about an hour before proceedings were due to begin and waited for an usher to arrive.

A brisk gentleman soon appeared and started putting out jugs of water around the court. On my inquiry he identified himself as an usher, so I asked if he would be kind enough to hand my proferred letter and covering note to the judge. He viewed it with suspicion. The usher said he was prepared to hand it to the judge at the beginning of proceedings, but not before.

I told him both parties in the trial had confirmed to me they had sight of my letter already. He stood his ground. Then he asked me which trial I was covering.

"Bates v Post Office" I said.
"This isn't the court for Bates v Post Office" he said.
"Really? But it's been the court for the last two weeks."
The usher eyeballed me. "This is a private hearing..."
Then he looked at my note.
"Who is the judge?" he asked.
"Mr Justice Fraser." I said. He looked again at my note again.
"Oh s***!" he started. "I'm in the wrong court! Tell the next usher the water is fresh!" he said, racing away through a door in the wall.

The transcribers came in. They were nice but not chatty. Eventually another usher came in and said something to the transcribers about the water. This was my in.

"Hello! "I'm a journalist." I gabbled, "The last usher who came in told me to tell you that the water in the jugs is fresh. He got the wrong court."
The new usher narrowed his eyes.
"Anyway" I said, flourishing my letter, I would be most grateful if you could give this to the judge."

The new usher told me he would hand it to the judge when the judge was about to walk into the court. I explained that I was not big on springing things on judges, and that I'd be really grateful if he could give it to the judge in chambers, rather than just as he was about to start cracking on with quite an important trial.

He looked uncertain.

I also told him both the claimants and the defence had already seen the letter. I explained I had tried to get my letter to his Lordship on Friday but his clerk was away.

He wavered.

I hinted the other usher, before he ran out of court, indicated that taking my letter to the judge's chambers might be feasible.

The usher gave me the once over. "I could give it to him when he comes down. How long is it?"

I showed him.

"Okay" he said. "I'll give it to him when he comes down."

And he did.

Read the letter and then have a look at the transcript of what happened next (below).

As I said to his lordship at the time - I am very grateful.

                                       Monday, 26 November 2018
   (10.30 am)
   MR JUSTICE FRASER:  I have had an application from the
       press.  I don't know if you both ...
   MR CAVENDER:  My Lord, I have a copy of the letter, yes.
   MR JUSTICE FRASER:  From Mr Wallis.  I would ordinarily say
       we would deal with it after we have dealt with today's
       evidence, but on the basis it relates to what we do
       today I think I ought to deal with it first.
           I will hear from Mr Wallis first, then I'll ask you
       for any observations and then I'll decide what to do.
           Mr Wallis, I am not going to rigorously interrogate
       you so you don't need to worry.  You want to record the
       proceedings, is that right?
   MR WALLIS:  I would like to, yes, if I may.
   MR JUSTICE FRASER:  Would you like to explain the basis for
   MR WALLIS:  Yes.  I am live-tweeting notes of the
       proceedings to give quite a committed audience
       a blow-by-blow account of what is happening.  There are
       an awful lot of claimants who obviously can't be in
       court and some of them say they are relying on my notes
       of what is happening to get a gist of what is going on.
       However, I'm not always confident that I  can send out
       direct quotes unless I have heard them perfectly.
   MR JUSTICE FRASER:  Understood.
   MR WALLIS:  So at the end of the day I would like to review
       my notes so that I am able to send out direct quotes
       against an audio recording of what has transpired in
       court, particularly the most newsworthy ones.  So that's
       why I've made the application, because I'm not in
       a position to do both.
   MR JUSTICE FRASER:  I understand.  And as you can see, it
       actually takes two or three people properly to record it
           So is it therefore the case that it is effectively
       to give you an accurate recording at the end of the day
       of what has happened during the day so you can make sure
       any quotes you use are accurate, is that a fair summary?
   MR WALLIS:  Yes.  I also have a number of people who are
       following this in the media and they require
       100 per cent accurate quotes which I am not always able
       to send them because I have been busy taking notes, if
       that makes sense.
   MR JUSTICE FRASER:  Understood.  I am going to counsel for
       any observations, but before I do that, is it right,
       therefore, to summarise what you are asking for: it is
       not going to give anything that the official transcript
       of the day wouldn't give you, it is just for you to
       basically record it yourself, is that right?
   MR WALLIS:  It would allow contemporaneous --
   MR JUSTICE FRASER:  The daily transcript actually is
       finalised usually by about 5.30 in the evening.
   MR WALLIS:  I have made repeated requests for daily
       transcripts and haven't received any so far.
   MR JUSTICE FRASER:  I didn't know that.
           Mr Green, any observations?
   MR GREEN:  My Lord, just on that last point, we have no
       objection at all to Mr Wallis having the daily
       transcripts, but the process as your Lordship knows is
       that Opus does the recheck and then sends out to all of
       us, and then we then submit our corrections, any
       corrections that they haven't picked up, and we pass
       those across to the defendants and they then go on to
       Opus.  Just so your Lordship has a feel for the timeline
       on that, Day 1 I think has now been sent by the
       defendant and approved to Opus.
           So although we had agreed to Mr Wallis having the
       transcripts --
   MR JUSTICE FRASER:  It is quite an unusual way of doing it,
       though isn't it?  We use Opus almost routinely in this
       court.  So you are saying it is taking a number of days
       if not weeks for the finalised version of Day 5 actually
       to be finalised, is that right?
   MR GREEN:  My Lord, yes.  I'm not approving it or -- I am
       just saying --
   MR JUSTICE FRASER:  I'd just like to summarise exactly what
       you are telling me.
   MR GREEN:  To be fair to Mr Wallis, he has not had the
       transcripts that we agreed he could have because --
   MR JUSTICE FRASER:  Did he know you had agreed he could have
   MR GREEN:  I understand he did know we'd agreed.  But he has
       not been able to have them because the actual finalised
       version -- as I understand it, consent was based on him,
       the consent of the two parties was based on it being the
       very final version, and the very final version, as
       matters have played out, hasn't come to him --
   MR JUSTICE FRASER:  Is today Day 11 of this trial?
   MR GREEN:  My Lord, yes.  So it's not ideal for him that he
       hasn't been able to see those.
   MR JUSTICE FRASER:  That is a process point rather than any
       sort of principled point about him not having the
       transcripts.  It is a process and timing point.
   MR GREEN:  My Lord, indeed.
   MR JUSTICE FRASER:  That is the last point.  What about the
       first point?
   MR GREEN:  We would have no objection at all to what is
       essentially a recording being made anyway also being
       made by Mr Wallis.
   MR JUSTICE FRASER:  Okay, but then -- well, if the aim of
       all of this is transparent and public justice it seems
       rather foolish to have two recordings that might say two
       different things of what has happened.
   MR GREEN:  Yes, my Lord, it might be possible for --
   MR JUSTICE FRASER:  Mr Cavender.
   MR CAVENDER:  My Lord, I don't object to it, I am concerned
       in a number of respects.  Firstly, the point is it
       necessary that your Lordship has alighted on and it all
       seems rather unsatisfactory.
   MR JUSTICE FRASER:  This is the recording point?
   MR CAVENDER:  Exactly.  And whether he needs the final final
       version.  Perhaps he does if he is going to quote from
       it.  But he seems to be saying he wants it at the end of
       the day to do an almost contemporaneous sort of blogging
       type thing.
   MR JUSTICE FRASER:  As I understand it from Mr Wallis's
       written application, he actually tweets during the day,
       which as a member of the press he is allowed to do, but
       obviously while he is tweeting things are happening.
       And I understand the point about accuracy of quotations.
       And it is also group litigation, there are 500-odd
   MR CAVENDER:  Indeed, so I am not objecting to it.  But if
       your Lordship is minded to do it, there are a couple of
       things in my submission you ought to consider.  One is
       making any onward disclosure by him subject to an order
       of the court, because he could be made the subject of an
       access request and have to provide it.  And point two,
       I don't know what equipment he has, but it would be
       rather unfortunate if he picked up other conversations
       in the courtroom, potentially privileged conversations.
   MR JUSTICE FRASER:  That is as to his doing his own -- you
       are currently still focused on him doing his own
   MR CAVENDER:  Yes.  If you were minded to do that and go
       down that road, one, I think you'd have to make it
       subject that the onward disclosure not be permitted
       subject to order of the court.  But secondly, be
       absolutely clear what device he has, what is the
       capability of the microphone and where he is going to
       place that in the court, because otherwise he could pick
       up privileged conversations.
           Subject to those points I have no further
   MR JUSTICE FRASER:  That is on the recording point.  What
       about him having the -- well, it cannot be perfected on
       the basis that the perfected transcript seems to be
       taking about two and a half weeks to get perfected.  But
       what about him having a copy of the transcript at the
       end of the day?  Because it seems to me that is as
       likely to be accurate, if not more accurate, than
       anything he might record.
   MR CAVENDER:  The words he will record would be more
       accurate because the transcript, although very good,
       does, as you will have seen from the first draft,
       inevitably in parts of the conversation with heavy
       traffic there are bits missing --
   MR JUSTICE FRASER:  This is on the LiveNote one.  But they
       are not there when it comes out in the perfected version
       which I am usually getting about 5.30/6 o'clock.
   MR CAVENDER:  My Lord, yes, it is certainly obviously one
       better than that, but there are still points that,
       subject to concern, are corrected in fact.  The question
       is whether the risk of him reporting that from
       a transcript where there are inaccuracies, whether that
       is a good idea, and then when the perfected one comes
       out it is different.  That is not --
   MR JUSTICE FRASER:  But whatever that risk is, Mr Cavender,
       and I understand that there is a possibility of slight
       differences in wording, that risk is probably less based
       on the Opus recording than it would be based on his own,
       isn't it, because that risk is there anyway?
   MR CAVENDER:  My Lord, that is right.  So I'm not --
   MR JUSTICE FRASER:  All right.
   MR CAVENDER:  I am not making any massive point.
   MR JUSTICE FRASER:  I am not approaching your submissions as
       if you are in any way being either unhelpful or --
   MR CAVENDER:  Or objecting.
   MR JUSTICE FRASER:  It is just a question of mechanics
       really, isn't it?
   MR CAVENDER:  Indeed.
   MR JUSTICE FRASER:  Right, Mr Wallis, I am going to tell you
       what my intention is and then we will just have a quick
       exploration of how that is best achieved.  I'm not going
       to allow you to record using your own equipment but I am
       going to order that each day you be given the transcript
       of that day's proceedings, and the correct phraseology
       for the order which would just occur to me is the
       perfected transcript but it seems there might be a more
       accurate way of describing it.
           But just so you know, the realtime transcript which
       comes out during the day is then processed, it's subject
       during the day and immediately at the end of the day to
       some sort of a polishing exercise and a polished version
       is produced usually at about 5.30 pm, that comes out on
       email, both PDF and Word, and I am going to order that
       that be sent to you then.
           It is not, however, as you have heard, the precisely
       100 per cent approved by all the parties final in every
       respect version, but in my judgment it is going to be
       better than anything you might have off your own
       recording equipment, so that is why I am going to order
       you to have it.
   MR WALLIS:  I am very grateful, my Lord.
   MR JUSTICE FRASER:  How that is distilled in words in any
       order I would like you to try and agree between
       yourselves and we can maybe revert to it at the end of
       the day.
   MR GREEN:  My Lord, it might be we can just say the daily
       revised versions, and then I think the perfected one is
       literally --
   MR JUSTICE FRASER:  Yes.  It is obvious that Mr Wallis
       should also have the perfected one if he is getting the
       daily revised one, but I think the daily revised one
       needs to be sent to him.
           What you do with it and how you treat it, based on
       your knowledge that it isn't 100 per cent perfected, as
       far as I am concerned, is not a matter for me at the
       moment because these proceedings are open to the public,
       but the aim of this order is to allow you to have as
       complete and accurate a record as possible each day for
       the purpose of the press.
   MR WALLIS:    I am very grateful, my Lord.  Thank you.
   MR JUSTICE FRASER:  Does that make sense?  Right.
           There are a number of other things that we will end
       up dealing with at the end of the day but I think we
       will get on with the last three witnesses.
           Mr Cavender.

If you would like to read about what happened in court after my little cameo, the full report is here.

If you'd like to read the full transcript of the day - it's here.


If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts. Click here to see how and where your money is being spent.

If you want to find out a little bit more about the underlying story, click here.
Choose an amount