Section 32 of the Crime and Courts Act 2013 allows the Lord Chancellor, with the concurrence of the Lord Chief Justice, to disapply s 41 of the Criminal Justice Act 1925. Section 41 banned photography in court in answer to concerns that defendants, usually those on trial for murder – and most famously Dr Crippen – were being photographed while in the dock.
The statutory framework
Central to the process of permission is judicial control. The Act ensures that the decision on filming rests with the judge, not the parties or the broadcasters. The judge may in the interests of justice, or to prevent undue prejudice, direct that filming is not allowed. There is no appeal against such a direction.
A statutory instrument, The Court of Appeal (Recording and Broadcasting) Order 2013, grants the permission to film in the Court of Appeal.
The SI’s explanatory memorandum states the aim is “to increase public engagement with, and understanding of, what happens in courts by allowing judgments to be filmed and broadcast in certain circumstances”.
Broadcasters are subject to strict controls. The statutory instrument states filming is only of submissions of the lawyers, exchanges between the lawyers and the court, and the court giving judgment. Where a person is not legally represented, recording is only allowed of the judgment. The defendant will not be filmed.
Where there is a possibility of a retrial arising from a criminal conviction appeal, or an application to appeal against conviction, a recording must not be broadcast until the court gives permission. If the court does not order a retrial, permission to broadcast is not required.
Like the filming of Parliament, the footage can only be used for news and current affairs. Any use of the film in a light entertainment programme is forbidden. The copyright in any recording is assigned to the Lord Chancellor on behalf of the Crown.
The BBC, ITN, Sky and the Press Association have been jointly working with the Ministry of Justice, senior members of the judiciary and personnel from the Royal Courts of Justice, to work out the practical implementation of cameras in the Court of Appeal.
A protocol for filming addresses practical issues. It states, for example, that there will be no recording or broadcasting of what is said in private discussions of counsel and no broadcasting of private discussions of the Justices.
The cameras will hardly be visible in court. There is no need for extra lighting or tripods. An experienced court reporter has been employed to manage and direct the cameras and act as the liaison person for the filming.
While the issue of cameras in court has been debated in England and Wales, filming in court proceedings is fairly common across the globe. When ITN covers court cases abroad, our news reports often include footage from the court proceedings – usually the defendant coming into court, the judges entering the court and parts of what is said in court.
The legal system of Scotland is also ahead of England and Wales on this issue. Since 1992 some filming in court proceedings has been allowed in Scotland, following a practice note by the Lord President, Lord Hope. In April 2012, the sentencing of David Gilroy for murder was televised. A documentary showing the full murder trial of Nat Fraser in Edinburgh was broadcast by Channel 4 in July.
In England and Wales a century ago, the seminal case of Scott v Scott in 1913 set the standard on open justice. Lord Shaw quoted Jeremy Bentham: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” But on the issue of cameras in court, we are behind many jurisdictions.
There have been incremental steps that have brought us to this day. Nearly 25 years ago, the forward-thinking Report of the Bar Council in 1989, chaired by Jonathan Caplan QC, recommended televising of court proceedings.
In a pilot study in 2004, the Court of Appeal was filmed by BBC, Sky and ITN but was never broadcast because of the 1925 ban. The pilot showed how easily and quickly the cameras became part of the fabric of the court and how little effect they had on the proceedings. The broadcasters have little doubt that filming can occur in the Court of Appeal without undermining the dignity and proper administration of the court.
In 2005, the (then) Department for Constitutional Affairs conducted a public consultation. Although there were concerns about filming the full trial, the majority of respondents supported the filming of judges’ decisions and sentencing remarks.
Leading figures such as the former Director of Public Prosecutions, Keir Starmer QC, and the President of the Supreme Court, Lord Neuberger, have added to the debate in favour of broadcasting in some circumstances, subject to appropriate safeguards for victims and witnesses.
As stated, the public has been able to view proceedings in the Supreme Court via Sky News since 2009 and footage has been included in news reports. This year, for example, ITV News has shown footage from the Supreme Court judgments in Prest v Petrodel Resources Ltd (2013) – lifting the corporate veil with wider implications for divorce proceedings – and Smith and others v The Ministry of Defence (2013), the case brought by families of soldiers who died in Iraq against the MoD claiming breach of Article 2 of the European Convention on Human Rights (the right to life).
Relevant developments outside court include the filming of Parliament since November 1989 and filming in public inquiries. The Shipman Inquiry under Dame Janet Smith allowed some filming, the Hutton Inquiry permitted the broadcast of the closing speeches by counsel and last year’s Leveson Inquiry was broadcast more or less in full, including witnesses’ testimony.
Reporters have been able to tweet from court without the permission of the judge since December 2011.
It is noticeable that these developments in reporting and filming have occurred without problem. The sky has not fallen down.
It is unlikely there will be wall-to-wall coverage of the Court of Appeal, but with the footage available there is likely to be more coverage of the court and less use of court sketches. In the first week of broadcast, footage was seen on the ITV News at Ten of an appeal hearing concerning Government plans to scrap the independent living fund for disabled people.
Filming the courts is not really that different from any other type of court reporting. It will be led by news judgments. Cases involving miscarriages of justice, high profile appeal cases and appeals of decisions by politicians and human rights issues are likely to shown.
The major benefit will be to the public. Cameras in court gives greater effect to the public’s right to see justice being done. It should also bring greater public understanding of individual cases and basic legal issues such as sentencing, how our legal system works and what happens in court.
Some myths about our courts may also be dispelled. The public often believe sentencing generally is too lenient. Many would say this view is not fair or factually based. The public will now get a better understanding of issues such as sentencing.
Once we get used to the Court of Appeal being filmed, the next big issue will be whether to extend filming to Crown Court trials. There are a lot of points in the trial that could be filmed, such as sentencing, opening or closing speeches, or the defendant and judge walking into court. Many countries around the world allow some filming of the defendant walking into court – why not here? And if filming of a full trial can take place in Scotland, why not in England and Wales?
Televising proceedings is compatible with justice being done and filming in the Court of Appeal is really not a radical move. I envisage it will quickly become part of the system and the real question will be: “Why did we take so long to get here?”
John Battle is Head of Compliance of ITN, a barrister and a member of the broadcasters’ group on televising the courts