Richard Glover, senior lecturer in Law
Court on Camera: the sensational and the salacious or open justice?
The principle of open justice, in one form or another, has rarely been out of the news recently. Although the first few televised Court of Appeal cases have been aired, the introduction of legislation to permit the filming and broadcasting of court proceedings has been the subject of much debate. The Crime and Courts Act 2013 provides that existing legislation, which prohibits photography, drawing in court and sound recordings, can be disapplied in certain circumstances. So far, only Court of Appeal hearings have been affected, although it should not be forgotten that the Supreme Court has been open to cameras since its inception and now has live streaming http://news.sky.com/info/supreme-court. The broadcasting of court proceedings is popular with the media but, perhaps, more surprisingly it has also been welcomed by the judiciary, for example, Lord Dyson, the Master of the Rolls is supportive http://tinyurl.com/q643k54.
It remains to be seen whether the judiciary will be as enthusiastic if cameras are allowed into other courts, but the indications are that the arguments in favour of broadcasting court proceedings have been largely accepted. Lord Thomas, the Lord Chief Justice, summarised these neatly in a recent speech: ‘I and my fellow judges welcome the recording of the proceedings. We believe it will help assist understanding of the way in which the courts work and enable the public to see the way justice is delivered in an even more open and transparent manner than at present’ http://tinyurl.com/kvxjw7n .
There is the argument that cameras are simply unnecessary because the public is already entitled to watch most criminal trials by sitting in the public gallery. However, it is clear that there has been a steep decline in public attendance at trials over the years, albeit with some notable exceptions such as the current phone hacking trial. Televising proceedings would step into this breach so that, in the words of the old maxim – justice was not only done, but also seen to be done.
Opening up the courts to greater public scrutiny would bring greater transparency to the court system, but there may be pitfalls. It is sometimes said that cameras would distort the trial process because jurors would become ‘star struck’ and lawyers ‘grandstand’. That is a danger but similar comments were made when Parliament was to be televised and there is little evidence that politicians have been affected. Furthermore, there was no evidence of these problems in the trial of Nat Fraser, a Scottish case filmed for the excellent Channel 4 documentary ‘The Murder Trial’, which was screened in July 2013 http://tinyurl.com/ko8knpc .
The lawyer, Baroness Helena Kennedy, has been a prominent opponent of the introduction of cameras. She has argued that ‘a corporate agenda’ is at the heart of the pro-camera camp and that television companies are only interested in ‘the salacious and the sensational’. She fears that the public would only see exciting edited highlights of Crown Court trials and not the full story http://tinyurl.com/mr66l5d. However, the same criticisms might be equally laid at the door of newspapers. As a defence lawyer she will know that newspapers often report the prosecution case at length, as if it is the unmitigated truth, and then devote much less time to the defence. A casual perusal of daily newspapers also often reveals stories that highlight the sensational nature of a trial, and, furthermore, wasn’t it ever so? Kennedy is surely right that we should be concerned about the effect of cameras on the participants in a trial, but there seems no reason why, as now, proper arrangements could not be made to protect their interests, e.g. by screening them or excluding cameras where necessary. Anonymity, where appropriate, should also be preserved (see ‘Open Justice: Michael Le Vell and Anonymity of Defendants’). However, there is an element of Kennedy’s argument that should give us further pause for thought.
Kennedy argues that if ‘the political class’ was really concerned with open justice it would not be supporting the ‘disgraceful spread of secret courts’. By this she means the Closed Material Procedure hearings that have proliferated in recent years due to concerns about terrorism, and which have been extended recently by the Justice and Security Act 2013.
So what does the future hold? It seems likely that televising the Court of Appeal will be just the first step in the broadcasting of court proceedings in general, but the crucial step will be when Crown Court trials are opened up. Clearly, that will have to be closely regulated to protect the participants in the trial and to avoid coverage degenerating into the worst of ‘reality TV’, as appears to have happened on at least one occasion in New Zealand http://tinyurl.com/p3smpq3 . But this should not be impossible. Many of the arguments against the presence of cameras in court recycle arguments against televising the UK Parliament and, with proper regulation it is likely that broadcasts would not resemble ‘I’m a Celebrity…Get Me Out of Here!’ but The Parliament Channel or, perhaps more to the point, the broadcasts of the International Criminal Court for the Former Yugoslavia, which are freely available on the web with a 30-minute delay: http://www.icty.org/. Finally, it is to be hoped that the broadcasting of court proceedings will also herald an era of greater openness and transparency in the courts, so that Closed Material Procedures will be abolished as an appalling anachronism.
*For a further discussion of ‘PII’ and the development of Closed Material Procedures, see Chs. 13 & 14: Glover & Murphy,'Murphy on Evidence', 13th edition, Oxford University Press (2013)