Watching briefs

Televising the Court of Appeal will not lead to live broadcasting of criminal trials in England and Wales, I argued in a newspaper article a couple of weeks ago. Judges were well aware of the risks.

They are indeed, but that does not mean they regard those risks as insurmountable. On the very day I predicted that judges would block the idea of televising trials, the Judicial Communications Office released a speech by Lord Dyson in which the master of the rolls gave it cautious support.

‘The general consensus in England and Wales, so far as one can tell, is that the camera should be excluded from trials at which witnesses give evidence and from all jury trials,’ he noted. ‘Some may say that this is rather pusillanimous.’

Dyson himself is clearly made of sterner stuff. ‘My personal view is that, as a general rule, we should not exclude the camera even from witness trials, but that the judge should have the power to direct that certain cases are not televised if he considers this to be necessary in the interests of justice,’ he said. ‘For example, it is difficult to conceive circumstances in which it would be in the interests of justice to televise proceedings involving children.’

That must be right; and one would include other vulnerable witnesses. Very reasonably, Dyson thought the judiciary should proceed on a step-by-step basis, pausing for a pilot study before each new step. But, answering questions after his speech, the master of the rolls predicted that appeal courts – where he sits – would not be the only ones to be televised.

‘I have no doubt that we are not going to stop at where we will be in a few weeks’ time,’ he said. ‘I think the day will probably come when we will have television in all our court proceedings.’

Dyson acknowledged the need to ensure that broadcasting would not damage justice itself. But he thought it ‘absurd to worry about prurience’. In 1912, photographs were taken in court of the the murderer Frederick Seddon as he was being sentenced to death. That led to a ban on photography in the courts of England and Wales that lasted from 1925 until its partial lifting last week.

The master of the rolls was addressing a conference on media law and policy at the University of Hong Kong. In a speech that, ironically, secured little media attention, he took the opportunity to explain how judges were taking the initiative and securing open justice in an age when people were no longer willing to sit through ‘long and often rather dull hearings with no guarantee of excitement’.

This included judicial support for the use of social media, which Dyson thought was ‘enabling important advances to be made in opening up the courts to the public’. At the end of 2010, the lord chief justice had allowed mobile phones to be used by reporters who wanted to cover hearings on Twitter. There were some teething problems: one judge discovered that sports reporters were unfamiliar with the rules of court reporting.

Another judge banned the use of Twitter during a trial because of the extraordinary speed at which evidence and arguments could be reported; without such a restriction, there would not have been time for the court to prevent reporting of impromptu remarks that might prejudice later proceedings or were in some other way unreportable.

Another way of securing open justice was for judges to speak out in public. Lord Taylor of Gosforth, who was lord chief justice from 1992 to 1996, even took part in the BBC1 programme Question Time. His appearance, as Dyson recalls, ‘was generally regarded as unsuccessful’. But another of Taylor’s innovations – the judicial press conference – has been adopted by all his successors.

Even so, an annual appearance before reporters will not stop them looking for judges to interview. In the past, they had to make do with retired judges, ‘usually people who had fairly undistinguished judicial careers’. So a ‘judicial media panel’ was created: media-savvy judges who could be called upon to give interviews. Its members have never been named and its existence is not widely known among broadcasters, which perhaps explains Dyson’s conclusion that ‘the panel has not been called upon to speak as often as might have been expected’.

Dyson explored one idea that I myself had suggested: that the judicial panel might explain complex judgments to a lay audience. Having one judge explain another’s decision could undermine judicial independence, as Dyson says. But it is not so far-fetched for press officers to tell reporters that they have misunderstood a judgment. It’s something the Supreme Court press office does, or so I’m told. And, these days, the European Court of Human Rights seems to do little else.