Earlier this year the Director of Public Prosecutions, Keir Starmer, QC, was guest of honour at a Society of Editors lunch - one of its regular “Chatham House Rules” events to discuss issues of the moment. The DPP had an immediate request: that the event should be off-the-record. As a lawyer he understands the subtle difference: at Chatham House attendees are free to repeat what is said but not who said it; off-the-record meetings are not reportable at all.
The editors agreed and settled down to a robust exchange of views on legal issues affecting the media. Then something remarkable happened. I asked Mr Starmer about his views on television cameras in courtrooms. What, in particular, did he think of the idea put to Ken Clarke by Sky News, the BBC and ITN for the televising of sentencing remarks and judgments as an initial step?
The DPP did not miss a beat: he supported the idea, and what’s more he didn’t care who knew it; he was quite happy for his remarks to be on the record.
This was a double surprise for the editors - guests from outside the media world usually pay lip service to press freedom whilst avoiding any commitment to change; and on the rare occasions that they are actively supportive they make doubly sure their remarks stay unreported.
In hindsight, it seems clear that Mr Starmer’s public intervention was a key factor in persuading the Government to announce in September that they would change the law to allow the televising of some elements of court cases. Messrs. Cameron and Clarke may also have been swayed by the Master of the Rolls, Lord Neuberger, who told the the Judicial Studies Board on 16 March 2011 that broadcasting some cases could boost public engagement in the court process. He said:
“Public awareness of what happens in our courts serves to bolster public confidence in the administration of justice. Providing fair trials in the public eye bolsters public confidence in the administration of justice, and hence in our democratic form of government. It is therefore a matter of concern if members of the public rarely come into our courts to observe what goes on in them. Stating that our courts, as a general principle, are open to all is one thing. But it must be a reality...
“…If we wish to increase public confidence in the justice system, transparency and engagement, there is undoubtedly something to be said for televising some hearings, provided that there were proper safeguards to ensure that this increased access did not undermine the proper administration of justice. Such an idea would have to be looked at very carefully, and it would not be sensible for me to try and make any firm suggestions. But, if broadcasting of court proceedings does go ahead, I think it would be right to make two points, even at this tentative stage. First, the judge or judges hearing the case concerned would have to have full rights of veto over what could be broadcast; secondly, I would be very chary indeed about the notion of witness actions or criminal trials being broadcast - in each case for obvious reasons.”
The modest proposal which the broadcasters put to Ken Clarke at a meeting in October 2010 and followed up with separate letters was to allow the televising of sentencing remarks in criminal trials, and an executive summary of judgments delivered by the presiding judge in civil cases. It seemed to us such an innocuous and uncontroversial proposition, since it would impose no pressure on witnesses or others in the case, that it must be difficult to oppose it. Surely judges, of all people, are immune to the presence of a television camera? The benefits of such an initial step are self-evident. Sentencing policy has been one of the British coalition government’s hottest potatoes, and one that arouses deep suspicion in the mind of the public. If they could hear judges explaining, in their own voices, their thinking in deciding on a particular sentence it would surely improve public confidence.
This may well require judges to give more detail than they do at the moment, but as Lord Neuberger said in his Judicial Studies Board speech: “…if justice is seen to be done it must be understandable. Judgments must be open not only in the sense of being available to the public, but, so far as possible given the technical and complex nature of much of our law; they must also be clear and easily interpretable by lawyers. And also to non-lawyers. In an age when it seems more likely than ever that citizens will have to represent themselves, this is becoming increasingly important.”
The Director of Public Prosecutions would not stop at the Government’s initial proposals to televise the Appeal Court and sentencing in Crown Courts. He advocates televising lawyers’ opening and closing statements and does not rule out televising witnesses, though he is careful to add the caveat that nothing should adversely affect their ability to give their best evidence to the court.
Mr Starmer’s view is clear: that transparency and visibility would help the public understand how the criminal justice system works, and shining a light on the workings of the court room could only serve to boost its efficiency and effectiveness.
Both he and Lord Neuberger also take a practical, rational view of the way to solve objections to televising specific types of cases which could be affected by the presence of cameras, for example sex offences and family disputes. The presiding judge would decide, and would always have the right of veto over the televising of any case.
Once the law has been changed, there will need to be a period of consultation when the rules are drawn up. The broadcasters think the default position should be that cases can be televised, with the news organisations deciding which cases it will actually cover.
The judge could make an exception if he or she decided there was a risk the presence of cameras might prevent justice being done.
We must avoid the situation in Scottish courts where TV is not explicitly banned but the rules are so complex and restrictive that in practice the only type of coverage possible is in documentary form after the case has ended.
The argument for televising courts remains, as much as anything, one of democratic rights, since the judicial system is a key component of our democracy and is funded with taxpayers’ cash. This year we saw a series of cases involving former MPs and peers, accused of fiddling their parliamentary expenses: public representatives accused of the theft of taxpayer’s cash in courts funded by the taxpayer, and yet not visible to the vast majority of taxpayers.
Later, in the Appeal Court, the former head of social services for Haringey, Sharon Shoesmith won her appeal against her summary sacking over the Baby Peter case. Lord Justice Maurice Kay did not mince his words: “I find it a deeply unattractive proposition that the mere juxtaposition of a state of affairs and a person who is “accountable” should mean that there is nothing that that person might say which could conceivably explain, excuse or mitigate her predicament. “Accountability” is not synonymous with ‘Heads must roll’.”
Outside the court Ms Shoesmith’s solicitor repeated the Judge’s words for the assembled media, surely an unsatisfactory way of transmitting to the public a judicial conclusion of such public importance. Once again, this was a case in which public money, and public confidence was at stake, but the proceedings were only available to a tiny number of people with the time and opportunity to attend in person.
Opponents of TV in court consistently argue that the presence of cameras would incite lawyers and judges to “act up” - or grandstand. Certainly, a few minutes viewing Sky News’ stream of the Supreme Court Live (skynews.com/supremecourt) confirms that in the one British court which permits live televising, lawyers and judges behave completely normally, and seem oblivious to the cameras.
A similar conclusion was reached by all those who saw the not-for-broadcast pilot in the Appeal Court, in 2004. Bruce Houlder QC, then Chairman of the Bar Council’s Public Affairs Committee argued the pilot “demonstrated clearly that televising the courts has the power to educate, and to generate respect for the idea of Law and Justice, and the professional guardians of these ideals…we may soon begin to wonder what all the fuss was about.”
Despite its apparent success, tape copies of the pilot gather dust in the broadcasters’ vaults and nothing came of it.
Since Jonathan Caplan’s 1989 report “Televising The Courts” the legal fraternity has, on the whole, been a great deal more supportive of the idea than the politicians. The Bar Council’s response to Lord Falconer’s consultation in 2005 concluded that “the importance to a society of open justice is considerable. The fact that the technology exists which could assist greater public knowledge and confidence in the process should not be ignored. The Council recommends that the absolute bar to televising court proceedings should be removed.”
In fact since the Caplan report, technology has moved on dramatically, and the robotic cameras used in the Supreme Court are small, noiseless and unobtrusive. By contrast, the technique used by broadcasters and newspapers for illustrating courtrooms hasn’t changed in a century: pastel drawings executed from memory, because the artists aren’t allowed to even make a sketch in the courtroom, and bearing various degrees of resemblance to the real thing. Sky News has decided to abandon these artists’ impressions because by continuing to use them we were propping up the ancien régime.
Today video is ubiquitous not just on television but on the websites of nearly every news organisation, and it is significant that the Society of Editors threw its weight behind the campaign by Sky and the other broadcasters to end the camera ban. My perception, based on conversations and correspondence, is that the majority of lawyers are now in favour of some support degree of televising; almost certainly a factor which helped convince the Government that the time was right to change the law. Since television is the largest source of information for the public, it it fair to ask why it has taken so long to persuade politicians that it should be allowed inside the courtrooms. The answer may be that successive governments have lacked the political will to make it happen, since they cannot see any short-term gain in doing it.
It is to this Government’s credit that they have taken a different view. In Keir Starmer’s words, “shining a light” on the court’s working will inevitably pay dividends in allowing the public to see the legal system, which they fund, in action, understand how it works and how it reaches its decisions.
I personally have been campaigning on this issue for eight years so I am delighted to have finally persuaded the Government to change the law. I have no illusions, though, about the strength of feeling of those who take a different position, and I respect those views.
Simon Bucks, Associate Editor Sky News
Of the many issues that I’ve dealt with for the Bar in the press in the last 20 years, cameras in the courts have stirred up the most heated debates. Few are neutral. Many are against. A handful are for. Let’s take a look at the arguments for.
1. It will promote public understanding of (and confidence in) the justice system.
Parliament is televised. You can potentially watch nearly all of it. However, unless you are a professional user of Parliamentary broadcasting, as I sadly am, what you get is bite-sized chunks, reductions of debate, and, yes, sound bites.
Although the media is not asking for coverage of full trials at the moment, they do wish to show opening and closing speeches and the judge’s sentencing. But what kind of coverage would even that get?
In my view, what we’d get is “telling extracts”, Tweeted clips, concertina’d cases, which miss out the dull (but vital) bits.
And what would be the result of this selective atomisation of what would inevitably be the most high-profile trials?
The chances are that, if the broadcast editor or public didn’t like the look or sound of a defendant who was subsequently acquitted, the murmur would still go up that justice hadn’t been done. The trial had gone wrong, it would be said. We all know. We’ve seen the clips. We’ve read the Tweets.
The consequences for justice could be truly horrible and dangerously destabilising. AND THEN THE POLITICIANS WOULD FEEL OBLIGED TO REACT.
2. The public will value the work of the Bar more if it can see it in action and ...
3. ... support its calls for increased legal aid funding as a result
The work of trial advocates is painstaking and meticulous. The presentation of a client case must be fair, lucid, proportionate and effective. But, while cameras themselves are not intrusive, the knowledge of their presence risks forcing a change in the advocate’s behaviour. The temptation towards hyperbolic advocacy would be heightened.
The public already sees many public servants at work. That visibility doesn’t always convert to gratitude or support for better rates of pay. When it comes to televising the courts, be careful what you wish for.
The Bar has been inconstant on the subject. The excellent Gavin Millar QC, with whom I have worked on the issue, is pro-cameras and summarised the history thus in the Observer earlier in the year:
“Indeed the legal establishment has flirted with the courtroom camera for the last 20 years. In 1989 Jonathan Caplan QC wrote a prescient report for the Bar Council which said that justice would not be imperiled if televising was subject to strict rules of coverage. He thought legal argument before judges, as in privacy cases, could be televised. Ten years on, the Lord Chancellor, Derry Irvine, thought about it. But that was all he did. In 2004 some Court of Appeal cases were filmed but not shown. Irvine’s successor, Charlie Falconer, flirted a bit more in 2005, starting a full-scale consultation. The Bar was in favour but again nothing happened.”
Actually, behind the scenes, I encountered much more division at the Bar over this subject than the summary suggests. Caplan’s report made a big impact, but it was never fully embraced. The Bar’s 2005 response used Caplan as its starting point, but again it was diffident.
Gavin argues that the change would enrich and rebalance our democracy, saying that biased media coverage would be righted by the presence of the cameras to show the unvarnished truth.
But that assumes that the choice of content from trials by broadcasters who be in some way corrective and instructive. Take it from me - that is not how modern broadcasting works.
Today it is driven by “breaking news”, usually an event happening live, in the UK on Sky News and the BBC News channel, followed on all channels (terrestrial, web, Twitter, YouTube etc) by a regularly repeated single extract once the news room editor has decided which 8 seconds (tops) best capture the day’s events in the story.
That level of reduction will not achieve the laudable aim of helping the public to understand our justice system. That task has to start in schools, with a properly structured national curriculum and a (currently deeply unfashionable) commitment to teaching our slightly odd constitutional arrangements.
At the other end of the spectrum from the ‘sound bite justice’ I am warning about in this article, is the continuous “circus coverage” that the rolling news channels risk engendering.
I am not persuaded that coverage of the bail proceedings relating to former IMF boss Dominique Strauss-Kahn were particularly just. His appearance, unwashed and dishevelled, straight out of his New York cell, were used to underline the inference that this was a man who had fallen from grace, and who was by implication every bit as wicked as the prosecution lawyers making the bail applications were arguing.
Of course, the truth was far more complex than that, and those proceedings, once a seeming certainty in the eyes of broadcast editors, are now palpably receding as a subtler and, some would say, more accurate picture emerges.
Strikingly, Gavin argues that broadcasting the courts would enable the public to make its own mind up about the case on TV.
“The public could have decided for themselves whether Sienna Miller’s claims for compensation held water,” he says of that brave celebrity’s tenacity in seeing through her civil hacking claim almost alone and before it became fashionable to deplore hacking.
Leaving aside that case, I am not sure I want the public to “decide for themselves” what should or shouldn’t happen in a case. That’s for the judge, the jury when there is one, and the appellate courts if there is a challenge to the first-instance decision.
As I’ve already said, the “public”, whatever that term means, is not going to sit through a complex trial in its entirety, seek to balance the facts and the law, and produce a reasoned reaction to that. They don’t have the time.
I am certain there is public demand to see celebrities on trial, or to take a prurient interest in the unhappy details of a murder or abuse case. But that is not an interest driven by a desire to learn more about our court system.
On the contrary, it is courtroom rubber-necking of the worst kind.
This issue has moved on considerably since 1925 Criminal Justice Act effectively banned cameras. Yes there was mass media then. But now we have the capacity for instant dissemination, editing, and distortion.
My advice when it comes to cameras in the courts? Don’t even go there.
Jon McLeod, Weber Shandwick