Broadcasting of Court Proceedings
John Whittingdale (Maldon, Conservative)
I am pleased to have the opportunity to hold a short debate on the subject of the broadcasting of court proceedings. I should perhaps make it clear at the start that I am not a lawyer. I have appeared in court, but only in the jury box—never as counsel and not yet in the dock.
However, during the past few months, both in my capacity as Chair of the Select Committee on Culture, Media and Sport and as Chair of the Joint Committee on Privacy and Injunctions, I have had dealings with many lawyers. In respect of the Joint Committee on Privacy and Injunctions, I read the report of the committee on super-injunctions recently prepared by the Master of the Rolls. I want to quote the opening section, in which the Master of the Rolls states:
“It has been a fundamental principle of the common law since its origins that justice is conducted, and judgments are given, in public.”
He then goes on to quote the Lord Chief Justice, who said only last year:
“Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law…In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.”
I could almost end there, but I want to go on to say a bit about the background to the matter.
The ban on television cameras stems from a section of the Criminal Justice Act 1925, which I understand was passed to prevent the distraction caused by exploding flash bulbs of cameras in court. Of course, at that time television had not even been invented. Since then, there has been a long debate about whether our courts should be opened up to allow greater access to the media.
The debate about television cameras has been going on for more than 20 years. In 1989, Jonathan Caplan on behalf of the Bar Council produced a report that came out broadly in favour of allowing television, subject to certain very strict controls. Nothing then happened until 2004 when, after discussions between the Department for Constitutional Affairs and the broadcasters, it was agreed that a pilot scheme would be allowed to operate for a few weeks in the Lord Chief Justice’s court and then in the Master of the Rolls’s court.
That pilot scheme was never broadcast, but it demonstrated that the televising of court proceedings could be done without causing great distraction or disruption, or creating the dangers that people had spoken about. The broadcasting of proceedings could be done very discreetly and, most importantly, it could be completely controlled by the judge. During the pilot scheme, on a couple of occasions the judge pressed the button he had to shut off broadcasting. A large number of people have seen the results of that pilot and, as far as I am aware, it is generally regarded as a success. The pilot scheme did not lead to any great concerns being expressed and most people felt that it was a step forward both in allowing people to see the workings of the court and increasing understanding of the judicial procedure.
Although the pilot scheme was generally deemed to have been successful, nothing then happened. However, there have been one or two developments outside the English and Welsh court system. For instance, the Scottish courts have allowed very controlled broadcasting, but because anybody can object, it has not been used very much. When the Supreme Court was established, it allowed some televising of its judgments. Despite the fact that those are largely fairly detailed legalistic debates, I understand that the streamed feed from the Supreme Court made available by Sky has had a lot of viewers. Indeed, there have been around 50,000 this year, with 14,000 recently watching the ruling on the Assange case.
There have been other judicial procedures during which television cameras have been allowed, such as the Chilcot inquiry, the Hutton inquiry and, of course, most recently the inquiry carried out by Lord Justice Leveson. Given the fact that I am involved in considering similar material, I have been watching the proceedings of Lord Justice Leveson’s inquiry with great attention. Those proceedings have been carried in considerable part on both the Sky News channel and the BBC News channel. There are also plenty of examples in other countries. In fact, Britain is one of very few countries left that does not allow any televising of its judicial proceedings. Most comparable countries in the developed world allow broadcasting; indeed, even China and Russia allow broadcasting of their court proceedings.
So if the arguments are so strong, why has it not happened? There have been objections. A long-standing objection is that broadcasting proceedings might lead to grandstanding and that people will play to the cameras and want to become celebrities in their own right. I was not a Member when television cameras were introduced in the House of Commons, but I was active in politics and I remember precisely the same arguments being made then about what would happen with MPs’ behaviour and that they would similarly perform to the cameras. In large part, that has not occurred. Indeed, I think most people regard the broadcasting of Parliament as having been a great success.
There have also been objections that somehow the media might distort coverage, presenting a slanted view, and that there will be a loss of objectivity. Of course, any televising of court proceedings would be subject to the same restrictions on court reporting that exist at the moment for other forms of media—for example, not revealing the identity of jurors or of potential rape victims. Those rules would apply equally to television cameras as they do to newspapers. One has to say that in general—not just in terms of the coverage of judicial proceedings—television has a better record than newspapers for impartiality and objectivity because it is governed by strict rules requiring it to be impartial and objective.
I shall illustrate a recent case where the televising of proceedings certainly had a beneficial effect for me. I had read a great many fairly lurid accounts, particularly in the tabloids, of the Amanda Knox case and the murder in Italy. Many people felt such reports were not entirely objective and, indeed, that they suggested very strongly that Amanda Knox was guilty. I happened to be away at the time of the appeal hearing in the Italian courts, which was carried in large part on Sky News, and I watched much of the proceedings, including the broadcast of Amanda Knox appearing in the witness box. At the end of the proceedings, I had considerably
more doubt about the case. Therefore, when the court delivered its verdict that she should be released and was not guilty, it came as less of a surprise than it would have done to those people who had only read about the case in the tabloid press. That is an area where broadcasting can increase understanding and serve justice well.
It is easy to think of cases that will obviously be attractive to the broadcasters. Such cases will not only be sensational, lurid murder trials, although I have no doubt that some of those will be broadcast. I shall give three recent examples where there would have been real merit in having broadcast coverage. The first—this is a painful subject for all of us in this place—is that of the recent trials of MPs for abuse of their expenses. There was a huge public interest in people who were paid from the public purse, and it was very important that it was shown that nobody should be above the law. If those trials had been broadcast, they would have received a lot of interest and coverage.
Secondly, there were the riots, and the cases involving those who were convicted of rioting last summer. Again, there was a very big public interest. There was, perhaps, a lack of understanding about some of the sentencing policy. If people had had the opportunity to see the judge deliver a sentence and explain why he had reached that decision, that would also have increased understanding.
Thirdly and most recently, there was the Stephen Lawrence case. The fact that justice was finally done received huge coverage in the newspapers. It would have been even more powerful if the case had been broadcast and people had had the opportunity to see justice finally being done.
I was therefore extremely pleased to hear the announcement by the Lord Chancellor last September that the Government intend to move towards allowing the televising of court proceedings. Of course, there should be a step-by-step approach.
Andrew Smith (Oxford East, Labour)
I congratulate the hon. Gentleman on securing this important debate. I agree with the thrust of his argument. It is important that justice is not only done, but, as he says, seen to be done.
“from a public interest perspective might there not be an argument now for its hearings”—
that is, the Supreme Court—
“and some hearings of the Court of Appeal, being televised on some equivalent of the Parliament Channel, or via the BBC iPlayer.”
Broadcasting court proceedings could start there. We could then see how that goes, and extend it later.
John Whittingdale (Maldon, Conservative)
I agree entirely with the right hon. Gentleman. The pilot scheme started in the Court of Appeal. In their review of the pilot scheme, the broadcasters said that they would have liked it to have gone further, and that it should have been allowed to cover Crown court proceedings, and perhaps to have shown witnesses as well as the counsel and judge. That needs to be done
in a step-by-step way. There are genuine concerns and to allay them, we need to proceed gradually. I hope that in due course we will have much greater access, but let us start, as the right hon. Gentleman and the Master of the Rolls say, with the Court of Appeal. That would be a major step forward and is, I think, what the Government hope to do.
The obstacle is the requirement for primary legislation. There is no doubt that it will take time for the rules to be worked out, and secondary legislation will probably be needed to set out in detail how this will work. However, none of that can begin to happen until there is primary legislation. The broadcasters—in a letter that was sent this week by the head of BBC news, the chief executive of ITN and the head of Sky news: a joint letter from all three of the main news broadcasters in this country—have stated that they are very keen for the process to get under way, but that primary legislation would be required in the Queen’s Speech. My request and plea to the Minister this morning is not just to confirm the Government’s intention to move gradually and carefully down this road, but to do so at the first opportunity—the Queen’s Speech.
In conclusion, this is a reform whose time has not just come, but is long overdue. I hope the Minister agrees and is able to provide us with more details this morning.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
I congratulate my hon. Friend Mr Whittingdale, who is the Chair of the Culture, Media and Sport Committee, on securing this timely debate. In an impressive and knowledgeable speech, he presented a view that is fairly close to that of the Government.
Open justice is a long-standing and fundamental principle of our legal system. Justice must be done as much as it must be seen to be done if it is to command public confidence. As my hon. Friend set out, the Master of the Rolls said last year:
“Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence”.
Very few people have direct experience of court proceedings. In principle, our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to observe what happens in our courts in person. For many, the criminal justice system is still seen as opaque, remote and difficult to understand. We need to make it a reality that our courts are open and accessible to as many people as are interested in seeing them work.
Media coverage is often the prime source for public understanding of the criminal justice system, and many people base their views of the courts on their portrayal on television or film. Those dramatised accounts inevitably do not give an entirely accurate portrayal of what happens in a court case. The Government and the judiciary are committed to improving the public’s understanding of the criminal justice system through increasing transparency. The more informed people are about the justice system, the more confidence they will have in it.
Our evidence shows that a key element of confidence in the criminal justice system is how fair the public believe it is. People want information that has not been
spun about what happens to criminals and why. The majority of respondents to the Department for Constitutional Affairs consultation on broadcasting in courts in 2004 believed that broadcasting could increase understanding of court processes and make courts more accessible. That is why the Government believe that removing the current ban on filming in courts will improve public understanding of the justice system.
The Lord Chancellor and Secretary of State for Justice announced last year that the Government plan to allow judgments and sentencing decisions in cases before the Court of Appeal, in both the criminal and civil divisions, to be broadcast. We intend to introduce legislation to give effect to those reforms as soon as parliamentary time allows, although I cannot, as I am sure my hon. Friend the Member for Maldon appreciates, pre-empt the Queen’s Speech. We are working very closely with the judiciary to take that work forward.
My hon. Friend made a case for the eventual full recording of all trials. That is not being reviewed at the moment, although I appreciate that he understands that a step-by-step approach, which was how he put it, will be required. Over a longer period, we expect to extend broadcasting of sentencing remarks to the Crown court, given a reasonable time after the introduction of broadcasting in the Court of Appeal.
All hon. Members will remember the media furore over the O. J. Simpson trial in the United States of America, and, more recently, the trial of Michael Jackson’s doctor. My hon. Friend mentioned selected excerpts from the Knox case. The Government and the judiciary will not permit our courts to become show trials for media entertainment. We therefore have no current plans to allow the broadcasting of trials from the Crown courts, other than sentencing remarks.
Currently, the Criminal Justice Act 1925 prohibits anyone taking, or attempting to take, a photograph in any court except the Supreme Court. Furthermore, the Contempt of Court Act 1981 prohibits the use of a tape recorder, or other device, to record the audio of the court proceedings. Primary legislation, as my hon. Friend made clear, will be required to amend that legislation, and any proposals the Government bring forward will be subject to proper parliamentary scrutiny and debate.
With certain limited exceptions, most courts are open to the public, and journalists are allowed to be present in court and report what they see and hear, subject to reporting restrictions. At the end of last year, the Lord Chief Justice published new guidance for journalists wishing to use live text-based communications, including Twitter from mobile phones, in courtrooms during the conduct of a court case. Journalists and legal commentators no longer need to apply to use text-based devices to communicate from a court during a case, although the presiding judge always retains full discretion to prohibit such communications in the interests of justice.
Broadcasting of court proceedings is not without precedent in this country, as my hon. Friend made clear. We already allow broadcasting of live footage of the UK Supreme Court, and many people watched Julian Assange’s appeal to the Supreme Court last week. All hearings in the Supreme Court can be viewed online from anywhere around the world through the live stream on Sky’s website. Figures from the first three months of broadcasting from last summer show that that stream was seen 139,000 times, proving there is a public appetite
for watching court proceedings. Limited televised excerpts from inquiries—my hon. Friend mentioned the Hutton and Leveson inquiries—have been broadcast, and have engaged the public as they have progressed.
We must remember, however, that the courts deal with very serious matters that can affect the liberty, livelihood and reputation of the parties involved. It will be vital that proper safeguards are introduced to ensure that the parties are treated fairly, and that their rights are respected. Our paramount concern in opening up our courts to broadcasting must remain the proper administration of justice.
We are very clear that television must not give offenders opportunities for theatrical public display. Offenders will not be allowed to be filmed, and we are clear that the judge will have the right to stop filming in the event of any demonstration or disruption in the courtroom. We will also not allow victims, witnesses or jurors to be filmed. Victims and witnesses will be protected, and we will not introduce any measures that would make their court experience even more difficult or make them even more reluctant to give evidence. We are seeking the views of victims’ groups on our proposals, and potential safeguards to ensure that the identities and rights of victims, witnesses and jurors are protected.
John Whittingdale (Maldon, Conservative)
I accept, of course, that this will be a step-by-step process, but I hope that the Minister will not close his mind completely to the suggestion that eventually witnesses should be allowed to be televised. I know that it is not the same, but I chair televised hearings, one or two of which have achieved quite large audiences. I know that appearing before a Select Committee may be intimidating, but I do not think that it makes a great deal of difference if it is broadcast. The fact that witnesses are appearing in a parliamentary forum may be intimidating, as it might be in a court, but the cameras are very discreet, and people are largely unaware of them.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
Such an inquiry may be similar to a criminal trial, but often it is not. The circumstances and sensitivities may be different, as may the outcome.
Existing reporting restrictions on cases will continue to apply to broadcasting, and in all cases the judge will have the final say on whether proceedings should be broadcast. We are considering how to ensure that any use of the footage is appropriate to the dignity of the courts as part of the legislative framework. This will not happen overnight. The 2004 pilot of filming in the Court of Appeal, which was not for broadcast, demonstrated that it is possible for cameras to be allowed into courts without disrupting the administration of justice. However, before any plans can be agreed, we must take into account the views of a wide range of interests, and we will have discussions with the judiciary and others to ensure that we have considered the complex legal, practical and technical issues.
Allowing the broadcasting of judgments and sentencing remarks is one of a number of measures intended to open up the court process to the public, including to those who do not have the occasion or opportunity to attend court in person. The Government are committed to providing the public with information on the operation of public services in their area, and the justice system is no exception. We are taking significant steps to open up
the courts to the public, and to get as much information as possible about their performance at local level into the public domain.
In addition to the new data we have published on court performance, the Government have taken other steps to provide the public with information on how the criminal justice system works. For example, our release on court-level sentencing data in October 2010 was made available in a user-friendly format on the “Making sense of criminal justice” microsite, and was significantly more popular than normal statistical releases. Crucially, the data were released alongside the award-winning “You be the Judge” tool, which aims to promote public understanding of the sentencing process. The Government believe that providing adequate contextual information to increase public understanding of the criminal justice system is key to making data meaningful to the public, and we plan to provide such information with every transparency-data release.
I believe that the crime and justice sector is at the vanguard of transparency across Whitehall, and good progress has been made to date. However, we are committed to making the justice system more transparent, and I am confident that we will continue to make good progress in this area. The Government believe that television has a key role to play in increasing public confidence, and that is why we plan to introduce broadcasting from courts. However, although it is important for justice to be seen to be done, it is more important that justice is done. The administration of justice remains our primary aim, and our proposals to permit broadcasting from courts will not be allowed to affect that in any way.