 As the first cameras are set up in the Court of Appeal for a pilot experiment, the key question is – will televising cases enlighten the public about the justice system or will the legal process just become fodder for the demands of reality television?
The Lord Chancellor, Lord Falconer, who announced the experiment at the Edinburgh Television Festival last month, is planning to issue a wide-ranging consultation paper later this year, which will examine in depth the issues centred on televising the courts in England and Wales.
The plan is for small and remotely controlled cameras to be installed for several weeks during the coming legal term in the Master of the Rolls’ and the Lord Chief Justice’s courts. The cameras will be on the judges and counsel – neither the witness box nor the dock will be filmed. Control over filming will be in the hands of the judges, while anyone involved can ask not to be filmed.
The material is solely for evaluation and will not be broadcast. The idea is that the broadcasters involved in the pilot will show examples of reports of cases that were broadcast and compare them with examples of how the same cases would have been televised if cameras were present in court.
While Lord Falconer accepted that the greatest interest is bound to be in criminal trials, he suggested that the prospect of being televised would reduce witnesses’ willingness to give evidence.
He told the festival: ‘Cameras in the courtroom would be a big step. We have to make sure that any such step would benefit justice, not burden justice. We must protect witnesses and jurors and victims. We must make sure that the process does not reduce justice. It must increase justice. We don’t want our courts turned into US-style media circuses... Our watchword in the debate will be clear. Justice should be seen to be done. But our priority must be that justice is done.’
He made his distaste for ‘OJ Simpson-style trials’ clear. However, Alistair Bonnington, solicitor for BBC Scotland, points out that, at the same festival, Denise Brown – the sister of Simpson’s murdered wife – made it clear she felt it was important that his trial was televised.
Mr Bonnington says: ‘She didn’t agree that the fact that the case was being televised made her anymore nervous or stressed out than she already was. She also said she found giving evidence in front of the cameras and therefore the American nation made it very compelling that she stuck absolutely to the truth.’
Scotland has been able to film cases, including criminal trials, since 1992. However, the film can only be shown at the end of the trial.
The rules also allow parties to refuse to be filmed, and witnesses and defendants can withdraw their permission up to 48 hours after giving evidence.
Mr Bonnington says: ‘The BBC televised the whole of the Lockerbie appeal live on an Internet site, which was very well used by people from all over the world. However, the courts here have made it very clear that contemporaneous televising of trials is not on the agenda.
‘Some of the rules make the system not very attractive or workable and we are trying to make progress with the judges. The huge number of permissions we need to get mean the number of trials that have been televised is very limited. We tried recently to film an appeal hearing in the Ice Cream War case [in which two men successfully overturned their murder convictions] but that was objected to by one of the defence lawyers.’
 | Falconer: justice must benefit from camerasHe dismisses Lord Falconer’s concern that witnesses might be put off giving evidence. ‘The reality is, people who intimidate witnesses will go to the court, not watch it on television. It is also nonsense for lawyers to say cameras should not be allowed because the courts are already open to the public. That presupposes you are in the right city and can take time off work.
‘I have watched a bit of Court TV in America and, while it is not to everyone’s taste, if you start from the principle that justice has to be seen to be done, that means in today’s world that it has to be televised. The key issue is accountability – surely the public is entitled to see how their millions of pounds are being spent on the court system?’
Barrister John Battle is head of compliance at ITN and a member of the broadcasters’ group for the pilot scheme. ‘The pilot is not everything we hoped for. The cameras will be focused on the judges and lawyers, while we would have preferred the right to film witnesses and defendants. But judges and the Department for Constitutional Affairs said that is not acceptable. We debated it and decided it was still worth pursuing.’
He says they looked at the system in Scotland when drawing up the protocol for the pilot. ‘It was clear that control must rest with the judge and the judge alone. Clearly the parties should be able to make to make representations but they shouldn’t have a veto.’
He does not believe lawyers will be encouraged to play up to the cameras. ‘Let’s remember that we are talking about the Court of Appeal. I don’t think the judges will be impressed if anyone starts grandstanding.
‘I think there is a very high chance that criminal trials will eventually be televised under controlled conditions. But there are many bridges to cross yet. People say televising trials will sensationalise them. In the end, we can’t apologise for broadcasting news – that’s what we do. We will be looking for stories that are newsworthy. But that might mean cases involving a miscarriage of justice, policy decisions on sentencing, disputes concerning the power of politicians, judicial review or human rights issues.’
Rodney Warren, director of the Criminal Law Solicitors Association, says the Court of Appeal is the right place to carry out the experiment because it is a very controlled environment with very experienced participants.
He says: ‘I am against cameras in criminal trials because we need to understand the consequences and dynamics of the process before moving down that road. I am always nervous about the colossal damage to reputation that follows trials which get lots of publicity and then end in an acquittal.’
William Bache, a partner with Pye-Smiths in Salisbury, Wiltshire, represented Angela Cannings, one of three women released from prison last year in high-profile decisions to overturn convictions for murdering their babies. ‘I can’t see in logic why cases shouldn’t be televised. Plainly everything has to be done in such a way that it preserves the dignity of the court and is sensitive to those involved. But it seems to me that if the cutting and editing is done properly, then the public is getting its information from the horse’s mouth rather than second or third hand.
‘You would have to be very much more careful about broadcasting criminal trials because of the danger of something influencing the minds of the jury. But issues in cases like Angela Cannings are extraordinarily important and it is important to show how the court deals with them.’
Fifteen years ago, Jonathan Caplan QC’s report for the Bar Council recommended the televising of courts. Bruce Houlder QC, a former chairman of the Criminal Bar Association, has been asked to set up a group to review the pilot and respond to the consultation paper.
He agrees that the Court of Appeal is the right place for the experiment. However, he says: ‘I don’t buy into the argument that court TV will educate the public – you can get that by going to court or serving on a jury. It will be public entertainment. Most trials are rather boring so broadcasters will pick the big soap opera trials.
‘It might also encourage lawyers to grandstand. We have seen that in the US – many of those involved in the OJ Simpson trial stopped practising law after the case and are now working in the media.’
Mr Bonnington observes: ‘There is a generally fairly negative attitude from the criminal bar. It may be they don’t particularly want the way they behave in court to be seen by a wider audience – a lot is pretty juvenile stuff.’
Mr Houlder says he is not clear what Lord Falconer means about cameras ‘increasing’ justice. He explains: ‘I am not sure televising Parliament has improved our politicians. But it will increase awareness of what judges do – maybe people will realise judges aren’t all the Daily Mail suggests they are, and that they have got brains and feelings.’
Grania Langdon-Down is a freelance journalist
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