The case for televising court proceedings in the UK may seem pretty much unanswerable to anyone with a commitment to open justice – the centuries old principle that justice must not only be done but must be seen to be done – and yet progress toward such coverage becoming a reality remains halting and painfully slow.
The latest step in that long journey was taken when the Ministry of Justice announced in April of this year, the launch of a pilot scheme under which the sentencing remarks of senior judges at eight Crown Courts, including the Old Bailey, would be filmed but not actually broadcast. The courts taking part in the three month long pilot are the Old Bailey, Southwark Crown Court, Manchester Crown Court, Birmingham Crown Court, Bristol Crown Court, Liverpool Crown Court, Leeds Crown Court, and Cardiff Crown Court.
In the statement announcing the pilot scheme, Justice Minister, Shailesh Vara, said:
“My hope is that this will lead to more openness and transparency as to what happens in our courts. Broadcasting sentencing remarks would allow the public to see and hear the judge’s decision in their own words.”
Although judges will be filmed there will be no possibility of coverage featuring others present in the court such as defendants, victims and witnesses, and the move comes, somewhat belatedly, in the wake of other concessions which the UK court system has made to the existence of the moving image and devices capable of capturing and broadcasting said images. The use of somewhat archaic language is all but irresistible when considering the arguments put forward against televising court proceedings, in as much as such arguments seem to be based upon a concept of television which is rooted in the kind of moral panic which greeted its initial emergence more than half a century ago. The distinction drawn between television (and for that matter radio) and the press and ordinary spectators – both of whom are more than welcome to attend and observe the vast majority of court cases – seems more arbitrary the more one considers it, and the ‘evidence’ used to maintain the status quo amounts to little more than fear that this particular broadcasting medium (which, let us not forget, is all that television is) is able to effect a uniquely distorting and corrosive impact.
Under current rules, filming and recording is banned under section 41 of the Criminal Justice Act 1925 and the Contempt of Court Act, although it has been allowed in the Court of Appeal, based in the Royal Courts of Justice in London, since 2013, whilst the Supreme Court has been filmed since it was established in 2009. Somehow, both of these august bodies have managed to survive the presence of cameras without the somewhat apocalyptic scenarios painted by those opposed to television coverage coming to pass.
In Scotland, meanwhile, things have actually moved slightly further and broadcasters have been able to apply to film court proceedings since 1992. Although such applications are relatively rare, the retrial of Nat Fraser, previously found guilty of “instructing, instigating and organising” the murder of his estranged wife Arlene Fraser, was filmed for a Channel 4 documentary when it took place at the High Court in Edinburgh. The resulting documentary, filmed over six weeks and broadcast under the title ‘The Murder Trial’, went on to win the 2014 BAFTA for best single documentary, a corrective to the belief that televised coverage of trials will naturally tend to gravitate toward the shrill, the exploitative and the sensational.
The painfully slow progress being made on this topic is highlighted by the fact that as long ago as 1991 a working party of the Bar Council, chaired by Jonathan Caplan QC, spoke to politicians, barristers, broadcasters and judges and visited the many jurisdictions around the world in which trials are televised before coming to the following conclusion:
We have found the objections to television are based largely on fears which in practice are revealed to be unfounded, and in part upon an emotive reaction to television which does not do justice to the skill and responsible attitude of the broadcasters.
That this message has yet to be widely accepted is a damning indictment of the attitude which successive governments seem to have toward not only broadcasters but also members of the legal profession and the public in general. The consensus seems to have been that broadcasters can’t be trusted to give a full and balanced picture (unlike, presumably, the legal coverage contained in print journalism), barristers and Judges are in no way to be relied upon to contain their inner thespian in the face of a television camera and the consumers of the coverage, the general public, are basically too dim to understand the workings of a legal system which purports to operate on their behalf. The self-same arguments could, of course, be utilised to negate the concept of open justice per se; why allow journalists to summarise sections of evidence lifted from the wider trial context? How can we assume judges are not speaking with one eye on tomorrows headlines? Shouldn’t we protect witnesses or defendants from the risk of becoming tabloid fodder? If it is accepted (as it presumably is by any dispassionate observer) that some existing coverage of court proceedings is ill-informed, sensationalist, lurid, selective and difficult for those involved, then it is surely simultaneously accepted that this is a small price to pay for the kind of open justice which allows people to have faith in the wider justice system, and means that the law is practiced in a free, open and democratic manner.
It is instructive to compare the arguments against television cameras in court to those which were once used to oppose the introduction of cameras into the Houses of Parliament.
Now that clips from both debates and PMQ’s make up a part of virtually every news bulletin it can be difficult to remember that there was a time when the concept of cameras in Parliament was viewed, by many, as being dangerously subversive, and likely to distort the proceedings being captured. The presence of cameras became permanent in 1990, but the argument had raged long before then, as a quote form 1978 illustrates. These words were spoken by Sir John Stokes, Conservative MP for Halesowen and Stourbridge, and capture a virtually primitive fear of television combined with an almost heroic missing of the point:
“Television would ruin the character and the intimacy of the House… The cameras, more than sound broadcasting, are bound to emphasise the trivial. For instance, if a lady Member is speaking, there is bound to be as much emphasis on her dress as on the content of her speech. Every idiosyncrasy will be seized upon, and if an Hon Member should be asleep – and sleep is sometimes the best thing when some of our colleagues are speaking – the cameras will not fail to want to have a close-up.”
As it happens, the rules covering filming in the House forbid close ups of sleeping MP’s, but the actual argument should surely be that well remunerated members of Parliament, charged with the responsibility of debating and setting the laws of the land, shouldn’t actually be sleeping on the job, rather than any concern that they might be filmed doing so. As with court cases, the worry that ‘bad behaviour’ might be captured on film ignores the behaviour in question whilst concentrating on its recording – somewhat like a shoplifter complaining about the intrusive nature of the CCTV camera that captured them filling their pockets.
Many of those opposed to the televising of court cases point to high profile examples such as the OJ Simpson murder trial, which took place in America in 1995 and which, undoubtedly, became something of a media circus. The question, however, is whether the trial frequently plunged to the level of low farce merely because the TV cameras happened to be present, or whether the cameras were simply there to capture what would have happened anyway. If it is true that attorneys on both sides of the case sometimes behaved in a rather outrageous manner then that is surely due to the fact that they were involved in a high profile case which had divided Los Angeles, and indeed the wider United States, along almost wholly racial lines, in which allegations of police malfeasance were rife and on which many millions of dollars had been spent. It would have been a sensational and high profile case with or without the television cameras capturing the court room activity, and surely nobody looking back at the case from a distance of 20 years could come to the conclusion that the most troubling aspect – or indeed one of the many contentious long term issues – was the fact that what happened in the courtroom happened to be captured on television.
The question boils down to a basic principle; should justice be open, and if it should, then should certain media enjoy more or less access than others? Is there something intrinsically and uniquely corrosive about the nature of television coverage which sets it apart from every other kind? Since December 2011 it has been legal, unless specifically stated otherwise, for journalists to tweet live coverage of trials as they unfold. Delivering permission to “Twitter as much as you wish”, lord chief justice Lord Judge said:
“A fundamental aspect of the proper administration of justice is open justice. Fair, accurate and, where possible, immediate reporting of court proceedings forms part of that principle”
This creates the deeply illogical situation in which it is possible to transmit a contemporaneous written account of the cross examination of a witness, for example, or a summing up speech, but against the law for the same circumstances to actually be seen, even at a later date.
As the law stands, television viewers in the UK have been able to learn about the workings of the Italian legal system via coverage of the Amanda Knox trial(s), the American legal system thanks to the OJ Simpson trial and the workings of a South African court in the case of Oscar Pistorius, whilst still being told that they lack the intellectual rigour to process coverage of the legal system on which they themselves depend. Given that it is surely not beyond the wit of the powers that be to set up safeguards to ensure that coverage is always an adjunct to, and never an impediment to, the delivery of justice, the time for a change, surely, is long overdue.
Paul Oliver is an experienced solicitor who specialises in criminal law cases, ranging from minor offences to larger, serious cases.
Stokoe Partnership Solicitors are a leading criminal law firm specialising in defending very serious crime.