In an article published in Legal Week, Robert Brown, partner, Corker Binning looks at the impact that televising court proceedings will have on justice.
On camera – what impact will televised court proceedings have on justice?
Television cameras were yesterday allowed to record the sentencing of David Gilroy in the High Court in Edinburgh. This is the first time that sentencing in a UK court has been filmed for broadcast the same day – normally proceedings in Scotland are only occasionally filmed for documentaries to be broadcast weeks or months later and are heavily edited by lawyers involved in the case. Filming in most English courts has been banned since 1925.
Gilroy, who was convicted of the murder of Suzanne Pilley in May 2010, was sentenced to life imprisonment with a minimum term of 18 years. Lord Bracadale’s sentencing remarks were broadcast on television only minutes later (they are widely available to stream online). Lord Bracadale allowed cameras to film proceedings, but with strict limitations. They were only allowed to focus on the judge and were not permitted to film the defendant or any other parts of the courtroom. The filming did not include any part of the evidence in the case, the delivery of the jury verdict, or mitigation prior to sentencing, but the unusual concession by Lord Bracadale in Scotland offers a glimpse of the future of media coverage of the criminal courts in England and Wales.
The coalition Government has indicated that they plan to bring forward legislation in the Queen’s Speech in May which would introduce provisions which could eventually allow the televised sentencing of offenders and other criminal proceedings in England and Wales. Justice Secretary Ken Clarke has said that the aim of the proposals will be to improve transparency and public understanding of the courts.
It is believed that the legislation will initially allow filming of Court of Appeal judgments only, but will subsequently be widened to include some criminal trials in the Crown Court. It is understood that coverage is likely to be strictly limited to judges’ summing up and sentencing remarks, not the trials themselves or the verdicts delivered by the jury. Proceedings in the Supreme Court have been available to television broadcasters since its opening in 2009 and Sky News has offered a continuous streaming of Supreme Court hearings since March 2011.
It is impossible to predict at this stage what the substance of the legislation will be in respect of televising criminal proceedings in England and Wales. The government may adopt the well-established test for Scottish judges in deciding whether to allow cameras into their courtrooms, that is “whether the presence of television cameras would be without risk to the administration of justice”.
In practice, this means that cameras have rarely been allowed into Scottish courtrooms and generally only for appeal court cases. The fact that Lord Bracadale allowed a television crew to film his sentencing remarks today sets no precedent for future cases, and each application to film proceedings will be assessed on its own merits. The risk to the administration of justice is much lower in allowing filming at appeals or sentencing than it would be during a trial and it seems unlikely that a full trial (either in Scotland or in England and Wales) will be broadcast in the foreseeable future.
Proposals to allow more filming of criminal proceedings have been welcomed by many. Media outlets are actively lobbying for more and more access to the courts. In a joint letter to the three main party leaders (all of whom support proposals to televise some court proceedings) BBC, ITN and Sky argued in February this year that “the administration of justice is a key part of a democracy. It shapes and defines a civilised society. The ability to witness justice in action, in the public gallery, is a fundamental freedom. Television will make the public gallery open to all.”
Many argue that our criminal justice system needs improvement and the focus of television cameras on inefficiencies and injustices can only be a good thing. It is arguable that a person’s trust in the criminal justice system is proportionate to their understanding of the process and filming sentencing remarks may well help the public to understand how offenders are being punished. It may also assist governments who often come in for criticism when a sentence may appear lenient.
But who will actually watch? Apparently the Supreme Court live streams attract up to 90,000 viewers each day, suggesting that not only lawyers and law students are watching. But judgments in appeal cases tend to be long and often quite dull unless you’re directly involved. Filming of the summing up and sentencing remarks in criminal cases will arguably add little more to public understanding (and confidence) than the detailed reporting of trials in the press that we see already, especially if the pictures are of the judge alone as we saw in Scotland today.
Rightly or wrongly, Twitter has already been allowed to broadcast up-to-the-second reporting of some high profile cases and it is unclear what difference live footage of sentencing would make.
Maximum publicity for every court case and every courtroom participant is not a requirement for open justice. Broadcasters may be keen to see a further widening of the types of proceedings that they can film – attracted to the tantalising prospect of filming the real drama of witness testimony, jury verdicts, and reactions from the dock and public gallery – but while these aspects of proceedings may make for sensational television in the most high-profile trials, edited highlights of the drama of criminal trials won’t necessarily improve the openness of justice and public understanding of our courts system. The sensationalism and the trivialisation of the legal issues that would follow the broadcast of criminal trials may even damage criminal justice, which must be about a fair hearing of the evidence and not 24 hour rolling news reports.
The Attorney General Dominic Grieve QC said in September that there was a “big question mark” over allowing cameras in courts, and warned: “The issue that then arises is, is this going to help public understanding or might it contribute to the whole thing being turned into a piece of theatre, which might also be undesirable? Clearly filming people actually being sentenced is likely to be undesirable as it would probably encourage theatricals.”
While moves to abolish the anachronistic ban on cameras in our courts is to be welcomed, we shall have to wait and see what the scope of this new legislation will be. Based on yesterday’s performance in Scotland, it seems many viewers will have to stick with Britain’s Got Talent for real-life drama.
Robert Brown is a partner at Corker Binning.