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Cameras in the Courtroom: Justice must be seen to be done

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

Transparency and openness – these are not just simple tag words, but are necessities of a sound constitutional practice of a good democratic state. One of the key mechanisms used to achieve transparency and openness is through media, press and scrutinizing bodies. When this convention is fused with the judicial system, however, difficulties arise, which, summarily, should be answered to determine whether too much media-access to the functioning of the courts is detrimental to its duties.

The creation of the Supreme Court in 2009 following the Constitutional Reform Act 2005 brought with it a breath of fresh air to the English Legal System. Since its creation we have seen the Supreme Court create its own YouTube page which provides videos of its decisions, there is a Supreme Court twitter account (@UKSupremeCourt), and you can watch proceedings via its partnership with Sky News and the live stream they provide. Lord Neuberger, the President of the Supreme Court, states that he hopes the audience that comes with these advances will ‘will open up another window on our work and the reasoning behind our decisions, and broaden our audience.’ These media-friendly advances are not the only measures that assist with the transparency and openness of the English Legal System. Lord Neuberger’s BAILII Lecture last year emphasized how the access to judgments and statutes ‘provides a unique and constitutionally vital service for UK citizens and others which as the number of self-represented litigants, as litigants-in-person are now known, inevitably increases, will become even more important.’ Inductively, from those two points from the President of the Supreme Court, it appears that the benefits of transparency and openness of the courts can be summarized thus:

  1. Public awareness of the courts functioning;
  2. Public awareness of legal developments;
  3. Educational to those faced with an interest or legal challenges.

Whilst there have been considerable developments in the Supreme Court, the lower courts of the English Legal System have not been as forward in increasing their transparency and openness. Despite members of the public being able to sit in the public gallery of court proceedings (something that all aspiring lawyers should take advantage of) and journalists being allowed access, the idea of open justice has not run parallel with technological developments that have been made.

Thankfully, on 31st October 2013, cameras appeared in the Court of Appeal for the first time. The move comes following the passing of the Crime and Courts Act 2013 (see s. 32), as Courts Minister Shailesh Vara’s announcement explains. Lord Chief Justice Thomas resonated the sentiments of Lord Neuberger, by stating that this change in the law will ‘help a wider audience to understand and see for themselves how the Court of Appeal goes about its work.’

There are basic concerns of the introduction of cameras in courts, namely, that their introduction will create an entertainment factor. Yet, as Joshua Rozenberg commented in reflection to the introduction of cameras in the Supreme Court, the introduction has ‘yet to make the impact it must have hoped for.’ In reality, it should be realized that the extent of the “entertainment” that would derive from broadcasting of court procedures is only likely to hit the heights that Prime Minister’s Questions as received by its BBC coverage. In anticipation of such mass-media coverage providing an entertainment element, however, s. 32(3) of the Crime and Courts Act 2013 allows for the provision allowing cameras to be disapplied ‘in the interests of justice or in order that a person is not unduly prejudiced.’ Not only would this prevent an English example of the OJ Simpson trial seen in the United States, but also it facilitates adherence to the right to a fair trial under Article 6 of the European Convention on Human Rights. Admittedly, it does remain to be seen whether a celebrity element of a case would lead to the application of s. 32(3). Take for example the media attention that was directed at Ryan Giggs following his super-injunction debacle: would this scenario be sufficient to prevent the use of cameras if the case concerned reached the Court of Appeal?

A notable restriction on the introduction of cameras into the Court of Appeal is the exclusion of access to Criminal Law appeals. Nevertheless, openness and transparency is trickling down the English Legal System; Justice Minister Damian Green had been quoted as saying that the next development should be broadcasting of sentencing decisions in the Crown court, and Shailesh Vara’s announcement confirms the same. Further, Simon Bucks of Sky News has also demonstrated how media providers seek to press for coverage of criminal trials. Comparatively, criminal trials can be televised in the Scottish courts, but only upon agreement from all involved with the case.

The more that the public are educated as to the functioning of the court the better; the more the public are made aware of how to approach settlement of disputes and enforcement of rights the better. Whilst it is understood that concerns may be raised of the editorial distortion that media outlets could create, faith should be given to those editors, and the watching public, to appreciate the sensitivities of court decisions, and to not treat the granted access as a source of entertainment. Still, as Baroness Helena Kennedy QC has stated, media leaders should not push for greater media coverage, i.e. of criminal trials, simply for them purportedly being “juicy”. Further, I do not believe that barristers will utilize the increased media coverage as a means to “showboat” to the cameras (or, as I have decided to term it: “stars in their eyes decisis”), not least because of their ethical codes of conduct.

The 2013 Act is demonstrative of a commitment to open justice, which underpins the rule of law. Returning to the original question of whether the increased media coverage will affect the duties of the courts, there is no visible, unnerving criticism of the developments that has not been already convincingly answered. Perhaps the question to be asked should be whether more could be done for open justice, or whether any further increase would leave too much openness and potential injustice.

For example, that cameras will only be allowed in one courtroom on one particular day calls for development already. Whereas with the proposed considerations of introducing cameras to the Crown Court appearing to be the next advancement, one cannot help but think that increased media reports, or summaries, of those decisions would better assist with increasing open justice at that level. This approach ensures the protection of witnesses and juries present at that level of the courts, and demonstrates a pragmatic approach to the workload that the Crown Court handles.

Alternatively, if cameras are permitted into the Crown Court, the Crime and Courts Act 2013 offers protection of witnesses, jurors, defendants and victims as the Act does not provide for them to be filmed, and a 70-second time delay will prevent the broadcasting of sensitive material. These are important considerations included in the passing of the Bill by the coalition government, as it will ensure the safety of those involved in addition to avoiding the possibility of media exploitation (imagine how much more publicity Chris Huhne and Vicky Pryce would have received earlier this year had their trial been televised).

However I submit that, all things considered and without undermining the importance of the Crown Court, the proceedings of the Court of Appeal and the Supreme Court, being of greater legal significance, should be the only courts fitted with cameras.

The developments that have been made must be welcomed, and for aspiring lawyers you have been provided with a privilege that should be utilized to assist you in your current awareness of legal developments. In addition, the public at large has a depth of resources now available to them to bridge the gap that once existed between them and the reclusive legal world. Challenges await the judiciary in determining when in the interests of justice cameras should not be allowed. Lord Hewart CJ stated in R v Sussex Justices [1924] 1 KB 256 that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ Just how far that aphorism will extend following these recent developments remains to be seen.

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Tagged: Courts, Justice

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