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Open Justice – the principled case for televising courts

By Richard Glover. School of Law, University of Wolverhampton, co-author, Murphy on Evidence

The purpose of this article is to briefly examine the case for televising court proceedings based on the principle of open justice. 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,[1] but it is anticipated that cameras will spread gradually to other courts, including the Crown Court and, in time, perhaps even the magistrates’ court.  This will complete the process begun by the Supreme Court, which has allowed cameras into its proceedings since its inception in 2009, has its cases streamed live on Sky[2] and its own YouTube account.[3]

The broadcasting of court proceedings is popular with the media but, perhaps, more surprisingly the arguments in favour have also been largely accepted by senior members of the judiciary. Lord Dyson, the Master of the Rolls, favours opening up trials as well as appeals to cameras and has argued that televising proceedings is necessary to ‘secure public scrutiny of the courts’.[4]  Similarly, Lord Thomas, the Lord Chief Justice, has stated: ‘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’.[5]

The common thread running through these speeches is the principle of ‘open justice’. It is a principle that, in recent times, has rarely been out of the news. In September 2013, Judge Peter Murphy ordered Rebekah Dawson to remove her niqab when she gave evidence at her trial for witness intimidation and justified this, in part, on the grounds of open justice.[6] Then, in November, Mr Justice Sweeney questioned the need for open justice to be compromised in a terrorism trial held ‘amid unprecedented secrecy’.[7] The case is adjourned until March. More recently, following the acquittal of the Coronation Street actor, William Roache, issues relating to the principle of open justice were again in the news, as there were renewed calls for defendants, as well as complainants, to benefit from anonymity in sexual offence trials.[8] Accordingly, it appears evident that ‘open justice’ is an increasingly important principle governing the practice of the courts. It may be regarded as a principle related to the rule of law, which requires a level of ‘fair warning and predictability’[9] in respect of how authority is to be exercised, but is also a distinct principle. How, then, should it be defined? Judge Peter Murphy, drawing on Lord Diplock’s speech in Attorney-General v Leveller Magazine Ltd.,[10] puts it neatly:

The primary meaning of open justice is that criminal proceedings should be held in open court, in public, and be open to reporting by the press… Any derogation from open justice should occur only in exceptional circumstances and where the interests of justice require it[11]

However, this definition begs the question - how do we secure such a public hearing in the 21st century? Should it be sufficient that the public is simply entitled to attend court, even though it is apparent that it is relatively rare for the entitlement to be exercised? The journalist Duncan Campbell has noted:

When I first started covering criminal trials in the early 1970s, long queues were still common for high-profile murder cases. The public gallery would be full, people craning their necks to see the accused brought up from the cells. Today many murder trials take place without a single person in the press box or a single member of the public in the gallery.[12]

It is contended that the absence of a public to witness a trial, with notable exceptions such as the phone hacking trial, is a significant lacuna in the open and public nature of the trial process. The televising of proceedings steps into this breach and, to quote Mr Justice Bayley’s judgment in the pre-television authority of Daubney v Cooper, is the best means of securing a position where ‘all parties who may be desirous of hearing what is going on’ are able to be ‘present for the purpose of hearing what is going on’.[13]  People unable to attend court because of work or other commitments will be enabled to be ‘present’ in order to witness the trial.

 

Opening up the courts to greater public scrutiny would bring greater transparency to the court system but there will, of course, also be potential pitfalls.  It is sometimes said that cameras would distort the trial process because jurors would become ‘star struck’ and lawyers ‘grandstand’.[14] That is a danger, but similar comments were made when the United Kingdom Parliament was to be televised[15] 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 Channel 4 documentary ‘The Murder Trial’ screened in July 2013, which revealed ‘the reality’ but also ‘the banality of the courtroom’.[16]

The lawyer, Baroness Helena Kennedy, has been a prominent opponent of the introduction of cameras and is sceptical of arguments based on open justice. She has argued that television companies are only interested in ‘the salacious and the sensational’ and fears that the public would only see exciting edited highlights of Crown Court trials and not the full story.[17] 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 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, for example:  ‘Coronation Street’s Michael Le Vell “held teddy over girl’s mouth as he raped her” ’.[18] Moreover, the use of exciting edited highlights is largely beside the point. The key question is whether, in principle, trials should be televised and not whether the full story will be presented because of superficial news reporting. Again, the televising of Parliament provides  a helpful comparison - the fact that news bulletins often provide only edited highlights of the ‘knockabout’ Prime Minister’s Question Time, and not the complexity of a full parliamentary debate, does not usually lead to the suggestion that Parliament should not be televised at all.

Baroness Kennedy is surely right that we should be concerned about the effect of cameras on the participants in a trial. However, there seems no reason why, as now, proper arrangements could not be made to protect their interests, for example, by screening, ‘pixelating’ images or excluding cameras where necessary. The fact that there may be difficulties, for instance, regarding the use of the trial highlights for television or in how witnesses may be protected from intimidation, should not detract from the principled case for opening up the courts to the public gaze. These are all matters that can be managed. However, there is one element of Kennedy’s argument that should give us some further pause for thought.

Kennedy argues that if ‘the political class’ was really concerned with the principle of 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 were extended by the Justice and Security Act 2013. In relevant cases, instead of the Public Interest Immunity regime,[19] the court appoints special advocates who are not responsible to the defendant/applicant and there is restricted disclosure of material to lawyers for reasons of national security. The procedure resembles something from Franz Kafka’s The Trial, where ‘the proceedings were not only kept secret from the general public, but from the accused as well’.[20] In Al-Rawi v Security Service the Master of the Rolls said this in criticism of the Closed Material Procedure: ‘In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is… fundamental’.[21] The Supreme Court was of a similar view and in Bank Mellat v HM Treasury described the Procedure as ‘obnoxious’.[22] It may be countered that the circumstances leading to the use of the Closed Material Procedure are exceptional but, arguably, as the appeal courts have maintained, the principles of open and natural justice that are compromised are so fundamental that even exceptional infringement is unacceptable. It also seems, following the recent judgment in ZZ v Secretary of State for the Home Department,[23] that the limited disclosure regime may be incompatible with European Union law.  

So what does the future hold for cameras in courts? Lord Justice Toulson commented in 2012 that ‘the purpose of the open justice principle… is to enable the public to understand and scrutinise the justice system’.[24] It is evident that the presence of cameras in courts will aid this process and, moreover, the absence of cameras appears increasingly anachronistic when it is already possible for reporters to ‘tweet’ from court.[25] It seems likely that televising the Court of Appeal will, as Lord Dyson envisaged,[26] be the first stage in the cautious development of the broadcasting of court proceedings. Of course, the crucial step will be when Crown Court trials are opened up. This will have to be very closely regulated in order to protect the trial participants and to avoid coverage degenerating into the worst of ‘reality TV’, as appears to have happened on at least one occasion in New Zealand, where in-court television began in 1995.[27]  The procedure in New Zealand is currently under review in the light of 18 years’ experience and changes in technology,[28] but the intention appears to be to review rather than remove cameras from courts. No doubt the findings will make interesting reading for the judiciary in England and Wales.

Finally, it is to be hoped that the introduction of cameras into courts, in the name of open justice, will also mean that it becomes increasingly difficult to justify the Closed Material Procedure. This may appear optimistic but, after all, as Lord Hewart CJ stated in R v Sussex Justices, ex parte McCarthy: ‘it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.[29]  The principle remains the same, whether we are considering the use of cameras in court or the legitimacy of the Closed Material Procedure.


[1] The Court of Appeal (Recording and Broadcasting) Order 2013.

[2] http://news.sky.com/info/supreme-court.

[3] https://www.youtube.com/user/UKSupremeCourt.

[4] ‘Advances in Open Justice in England and Wales’, Hong Kong, 18 October 2013 at [35] http://tinyurl.com/q643k54.

[5] ‘Justice in One Fixed Place or Several?’ The Birkenhead Lecture, Gray’s Inn, 21 October 2013. http://tinyurl.com/kvxjw7n

[6] R v D(R), Blackfriars Crown Court [2013] Eq LR 1034 and online http://tinyurl.com/qfpvr4o.

[7] David Brown, ‘Judge questions need for secrecy in terrorism trial’, The Times, 19 November 2013.

[8] The arguments for and against were well-rehearsed following the acquittal of Roache’s Coronation Street colleague, Michael Le Vell, and engage directly with the principles of open justice. See my blog ‘Open Justice: Michael Le Vell and the Anonymity of Defendants’ http://tinyurl.com/mebsmnk.

[9] A. Ashworth & J. Horder, Principles of Criminal Law 7th edn. (Oxford: Oxford University Press, 2013) 81-2.

[10] [1979] AC 440.

[11] R v D(R), Blackfriars Crown Court [2013] Eq LR 1034 and online http://tinyurl.com/qfpvr4o at [28].

[12] Duncan Campbell, ‘The decline of the British trial’, New Statesman, 12 November 2013.

[13] (1829) 10 Barnewall and Cresswell 237 at 240.

[14] As noted by Paul Mason, Court on Camera: Electronic Broadcast Coverage of the Legal Proceedings, http://usf.usfca.edu/pj/camera-mason.htm.

[15] HC Deb 19 October 1972 vol. 843, cols. 465-585.

[16] Catherine Baksi, ‘Channel 4 was right to screen The Murder Trial’, The Law Society Gazette, 15 July 2013.

[17] Cameras in court are a threat to justice, The Guardian 3 November 2013 http://tinyurl.com/mr66l5d.

[18] Jenny Booth, 2 September 2013.

[19] For a further discussion of Public Interest Immunity and the development of the Closed Material Procedure, see Chs. 13 & 14: Glover & Murphy, 'Murphy on Evidence' 13th edn. (Oxford: Oxford University Press, 2013).

[20] Franz Kafka, The Trial (Aylesbury: Penguin Books Ltd., 1972) 129.

[21] [2010] 3 WLR 1069 at 1079.

[22] [2013] 3 WLR 179 at 210.

[23] [2014] EWCA Civ 7.

[24] R (Guardian News and Media Ltd.) v City of Westminster Magistrates’ Court [2012] QB 618 at 649.

[25] Following the Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from Court for the Purposes of Fair and Accurate Reporting [2012] 1 WLR 12. E.g. the jury question ‘tweeted’ by David Brown of The Times from the Dave Lee Travis trial – ‘if sure complainant telling truth, must they find guilty despite passage of time & lack of supporting evidence?’ https://twitter.com/DavidhBrown.

[26] ‘Advances in Open Justice in England and Wales’, Hong Kong, 18 October 2013 at [15] http://tinyurl.com/q643k54.

[27] The Scott Guy murder trial. Review of court TV promised, The New Zealand Herald, 24 September 2012 http://tinyurl.com/p3smpq3.

[28] Media in Courts Review http://www.courtsofnz.govt.nz/In-Court-Media-Review.

[29] [1924] 1 KB 256 at 259.

 

R.Glover@wlv.ac.uk, @MurphyEvidence 

 

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