Since 1925 and the dawn of public broadcasting, with the exception of a short pilot experiment in the Court of Appeal, Britain’s court doors have been firmly shut to cameras, TV and radio. That is why newspaper court reports carry those sketches by court sketch artists which depict judges, lawyers and witnesses in action, but in a thoroughly artificial way. Even Paul McCartney’s solicitor getting her hair wet at the hand of Heather Mills was covered in this archaic fashion.
Now we have nothing against Court sketch artists, but there can be no justification in the television age for a blanket ban on broadcasting court proceedings. Indeed, quite the contrary: the principle of open justice requires that there be a presumption in favour of allowing court broadcasting. Liberals and democrats have always believed that justice should be done in public. That is why we have always had public access to the courts except in a restricted category of cases – family cases for example. The European Convention on Human Rights guarantees the right to a “fair and public” hearing of both civil and criminal cases. If cases are to be heard in public then members of the public should be able to gain access to the courts in the most convenient way possible and whoever wishes to watch and listen to court proceedings should be able to do so.
Yet although a consultation exercise on broadcasting court proceedings carried out by the Department of Constitutional Affairs in 2005 produced a broadly favourable response – and in particular stimulated detailed and well argued papers in favour from Justice and the Bar Council – Jack Straw appears to have backed away from reform, except possibly for hearings before the new Supreme Court.
Openness, transparency, scrutiny, accountability, accessibility, public information and understanding – these are all Liberal Democrat watchwords and all would be promoted by opening up the courts to TV and radio broadcasting. Standards of advocacy and judicial performance would be enhanced. Shoddy preparation, lax advocacy and bad judging would be exposed and reduced. The public and the courts would benefit from the greater understanding of the justice system that broadcasting would bring. The same considerations apply to public hearings before tribunals and enquiries, which should also be generally opened up.
Of course there must be safeguards. Juries need to be protected from outside influence and from intimidation and so jurors should not be filmed. Some cases are not suitable for broadcasting: cases involving sexual offences and family and children’s cases should not be broadcast. There will also be cases where there are good reasons in the interests of justice to restrict the broadcasting of some witness evidence. Judges should have the power to restrict broadcasting in appropriate cases and in particular where broadcasting might imperil national security or the safety of any person or property.
But the over-arching principle remains. Public court hearings are an essential feature of an open liberal democracy and in a high technology age hearings are not properly public if access is restricted to personal attendance and court reporting in the press.
Jonathan Marks QC was Chair of the Liberal Democrat Lawyers’ Association from 2001 -2006 and is a member of the FPC. He is moving the Broadcasting Motion at Conference (33-34 in the Agenda) on Monday 15 September at 1420.
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32 Comments
I disagree with this – unless it is of national interest.
A lot of people are put off by cameras etc – it could prevent them putting their best efforts in court – whether or not they are defendants or CPS witnesses.
Totally disagree. The first and foremost task of the court is to reach a just decision. The cameras can only detract from this. It suffices that the record is public.
I see no problem with virtually all House of Lords hearings, most Court of Appeal and all Judicial Review hearings being filmed (there are no juries and rarely witnesses).
Filming of criminal trials should be limited to opening speeches, summing up and sentencing. It would not be fair to film juries or lay witnesses. I would make an exception for expert witnesses, as these are paid specialists whose opinions are often the subject of controversy.
Have cameras and extra reporting hurt parliament?
It might be true to say the greater subsequent transparency and accountability of parliamentary decisions has been offset by reduced party membership, but the level of democratic participation is now wider, more accessible and more representative.
Who’s to say that the same cannot be applied to the courts?
Personally I’d love to see the daily humiliation of pompous celebrity in libel cases at the Old Bailey as a means to prick the bubble of their inflated sense of self-worth. Also coverage of serious cases where legal precedent is set could perform a valuable public service if protected from narrow commercial interests in a sensitive and professional manner – BBC Court channel here we come!
Parliament is totally different. They are our elected representatives who have freely opted for a degree of public life.
It would provide a much better court record, catching gestures and facial expressions much better than any written record could. And it would be more open.
But I can honestly say that I can’t decide if this is a good idea or not.
A few “funniest court video” shows might surely improve the quality of our lawyers? How about world’s stupidest witness?
I remember the OJ Simpson trial and the coverage of that had less to do with justice and openness than with entertainment of the “big brother” variety.
Do we want a spectacle.. or do we want justice? How do we get the latter without the former? Would we need a whole raft of other laws to protect how the film is used?
I disagree with cameras in court. Even if cameras are in court, only the judge and jury are witness to the whole trial and are entitled to make a judgement on someones alleged guilt of an offense.
The media will be selective of what they show and for that reason are likely to give a misleading impression.
They do that now, but TV cameras will make that even worse.
If you commit a crime you freely calculate your vilification and punishment against your chances of being caught.
Court is a public arena in exactly the same way as parliament – why should any good citizen be afraid of the truth, the whole truth and nothing but the truth?
And what if you didn’t commit the crime? One day you were minding your own business, the next thing you find yourself in a reality TV show. I’m really surprised this is coming before conference.
Whatever one may think of the arguments pro and con, this kind of debate is exactly what Conference is for.
Laurence, I doubt any TV channel will be interested in the vast majority of cases which are brought to court up and down the country on a daily basis as most are depressingly typical.
Anyway if you are innocent then it will be the prosecutors who will be embarrassed.
I’m surprised you’re surprised, usually you are in favour of using technology to speed social evolution…
I’ll ignore that last remark which makes little or no sense. It is neither just nor fair to be thrust unwillingly in front of the camera. Remember David Kelly? Just let the courts get on with their job. The record is public and that is enough.
Actually that’s where I strongly disagree. This is less an issue of whether cameras should be allowed but more an issue of what the actual public record is.
My understanding is that the public record is what the judge allows to be placed there, not what’s actually said or done in court.
If the judge doesn’t like a comment or piece of evidence or even a particular phrasing, I understand that he can have it removed from the record and direct the jury to ignore it.
That way it’s not in the public record but anyone who thinks the jury will ignore it (even if they conscientiously try) is naive. Therefore someone could well be convicted on something said or done that’s not in the public record; and that’s wrong.
Of course, I could be wrong about just how such incidents are handled in the record.
“If the judge doesn’t like a comment or piece of evidence or even a particular phrasing, I understand that he can have it removed from the record and direct the jury to ignore it.”
. . . which he will presumably do for sound legal reasons. And then the cameras will undermine this.
Disagree with Paul Griffiths. This is school debating chamber stuff and pretty trivial.
NeverAPriest @ 16:07
Huh? If it was being debated on the floor of the House, as part of a legislative proposal, would it still be trivial?
If not, it might help our parliamentarians if we had some policy on the issue. Which is what Conference is for.
Laurence, you’re confusing live feeds with edited highlights. I think we can agree that there should be guidelines which reflect the ‘official’ view and must be adhered to as part of any license to report.
This country is suffering a crisis in court reporting – I mean how many cases recieve more than cursory coverage in your Evening News?
And if they do it will be to exploit the lurid, gruesome or downright bizarre details which dramatise and sensationalise the human interest to gain headlines and sales at the expense of informative examples of how everyday life can and does go wrong.
Or would you prefer more media output of the likes produced by Jeremy Kyle to form the basis of common understanding?
A crisis in court reporting? A crisis? What is it exactly that we are not being told? Give me the short newspaper column any day. I don’t particularly want to see ordinary folk breaking down in tears and so on.
“Oranjepan Says:
If you commit a crime you freely calculate your vilification and punishment against your chances of being caught.”
Which makes one or two suppositions about those who end up in court. Do you have any more enlightened ideas, such as forgetting about the trial altogether or maybe you prefer the Queen of Hearts’ approach?
Yes, Laurence, a crisis. And it’s been getting progressively worse for the past thirty years.
Increasing commercialisation in a proliferating media environment has squeezed out many generalist subjects which provide benefits to the public in favour of specialist forms which are either inaccessible or unreliable.
I’m guessing here, but you probably don’t trade in Brent Crude all that much, but all the same you’re probably closely aware of the price it trades at because the link between the fact of that figure and the multifarious ways in which it impacts on your life is widely accepted. Possession of this knowledge is helpful to you in providing you the ability to tailor you behaviour more closely to your means.
Market reporting and court reporting are essentially no different, except the link between crime and court reporting has been lost.
If we want to cut crime, then we must report the process properly.
The best tool we have is knowledge.
The majority of people neither understand nor are interested in the minutiae of court cases. Therefore I can see the rapid emergence of dangerous vigilantism from those who do not follow the detail of a case and come to a different decision than the jury regardless of whether we allow edited summaries to be shown.
It is right that the public be allowed to observe in court. I don’t think that right should be extended to the television.
“The majority of people neither understand nor are interested…”
is what they said about politics.
The plebs, whadda we know? and so long as we’ve got beer in our glass and footie on the telly, whadda we care?
No, of course it’s best we never find out how to make out minds up for ourselves, because we might just hurt ourselves in breaking free of the chains which bind us!
I think LB’s problem is that he knows very little about the law. In fact, I doubt if he has read a law report in his life.
The highest court in the land, the Judicial Committee of the House of Lords, sits in a Committee Room in the Palace of Westminster. Five Lords of Appeal in Ordinary (wearing suits) listen to arguments presented by QCs in wigs and knee-breeches. Much of what is said will send the average punter to sleep. But it is of vital importance to all of us. And those who are interested and have specialist knowledge should be able to watch it at home. When the Law Lords read out their opinions from the red benches, they are filmed.
Much the same applies to Judicial Review hearings, and most of the cases that come to the Court of Appeal. There are no juries and usually no witnesses.
As I say above, I think it would be wrong to film lay witnesses and juries. But I see no problem broadcasting opening and summing up speeches and sentencing.
Would Michael Argyle have got away with his incompetent, bilious summings up had he had a camera trained on him? Might Roy Meadow have been just a little bit more self-critical if he had known that Joe public was listening in? And how many judges would dare go to sleep?
In the early 1980s, a TV programme entitled “Circuit 11 Miami” proved to me that the US criminal justice system is complete rubbish. Only television could do that.
Yes. I do remember Dr David Kelly. His killers have still to be brought to justice, I think?
“I think LB’s problem is that he knows very little about the law.”
That’s right Senesco. Indeed this is something I have in common with most people. But now we are all going to be watching a few minutes of court drama and arriving at our own superficial judgements.
David Kelly committed suicide. I doubt that this was directly caused by his select committee appearances, but they were nevertheless an ordeal which in my view should have been recorded only in writing.
“But now we are all going to be watching a few minutes of court drama”
Er… Where is the drama in five hours of argument about equitable estoppel or Quistclose trusts?
“David Kelly committed suicide.”
Ah right. That’s why there was no blood; and why Dr Kelly’s DNA wasn’t found on the knife; and why the police helicopter didn’t find any body. Oh, sorry. Lord Hutton said it was suicide, so that’s OK.
Oh, BTW. LB should acquaint himself with the Basque word for “bull” and note the correct spelling. Sesenco lived 2,000 years ago in the upper Cidacos valley, FYI.
What is the Basque word for bullshit?
LB wrote:
“What is the Basque word for bullshit?”
With regard to that particular item, I would expect you to be polyglot, Lawrence.
I don’t think juries or lay witnesses should be broadcast either. Filming them for the record is one thing: broadcasting them on TV is another. Of course, if we actually WANT to add yet another disincentive to women to report rapes…
I thought the Hutton Inquiry was a perfect case for broadcast and the fact that it was obviously shows how the issues at stake and the consequences of the examination of those issues continues to touch nerves.
The Pinochet extradition case was another example with far-reaching public interest and implications which I remember viewing with increasing anticipation as the decisions were read and explained.
Libel cases such as Mucca vs Macca simply provide some light relief in the intervening period.
We could technically provide coverage with commentary and analysis to the same level as we do for sporting events. After all, watching the action is the best way to learn the rules – and who can fully comprehend contentious offside decisions without multiple replays from different angles and at different speeds.
If radio phone-ins can be awash with outrage at refereeing mistakes, why do we do we let the mistakes and travesties of justice which impact real lives just stand or lie as they are put to us?
If TV is the best way of improving scrutiny then bring it on.
I see no reason why most cases would have an identifiable public interest in their broadcast, but those such as current terrorist trials have clear public safety, social cohesion and political implications which we should be aware of and be free to discuss.
Can we trust government authority to make a fair case or are they exaggerating threats for political gain and as a means to justify their legislative programme?
This is a vital question and one which remains hanging in the balance as far as I’m concerned.
If we believe the most secure way of deciding is to have evidentially-based cases then let’s scrutinise the evidence.
Bad luck mate, but it was a terrible idea.
No worries Laurence. Just wait until we’re in government…