Crown Court (Recording and Broadcasting) Order 2020 - Motion to Approve

– in the House of Lords at 5:46 pm on 8th June 2020.

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Lord Keen of Elie:

Moved by Lord Keen of Elie

That the draft Order laid before the House on 16 January be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, these draft orders would remove current prohibitions on the recording and broadcasting of certain court proceedings. In the Crown Court, this would enable the broadcast of judges’ sentencing remarks and in the Court of Appeal would make permissible the broadcast of judgments and advocates’ arguments in selected family proceedings. Currently, the recording and broadcasting of court proceedings in England and Wales is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981.

Section 32 of the Crime and Courts Act 2013 enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make an order specifying circumstances in which the prohibitions on recording and broadcasting may be lifted. This has been done to allow recording and broadcasting of proceedings in the Civil and Criminal Divisions of the Court of Appeal, which has proceeded successfully since 2013. Section 32 does not apply to proceedings in the Supreme Court, which has its own provision allowing for broadcasting of its proceedings.

The two draft orders vary in effect and scope but share the common intent of increasing transparency, public engagement and understanding about what happens in courts. Very few people have the time or opportunity to attend and observe this in person. Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to these changes in technology and society and allow cameras into our courts. There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it.

I will briefly summarise the intended purpose and impact of the two orders before your Lordships today. The Crown Court (Recording and Broadcasting) Order will lift current restrictions to the extent necessary to enable recordings to be made where remarks made in passing sentence are delivered in the Crown Court by a High Court judge or a senior circuit judge. Recordings will be made by broadcasters only with written permission to do so from the Lord Chancellor.

Parliament first considered the proposal to extend broadcasting to the Crown Court in 2016 during debates on the Crown Court (Recording and Broadcasting) Order, which lifted the prohibition on recording, to enable a not-for-broadcast test in eight Crown Courts across England and Wales. This test gave us the opportunity to consider the practical implications of filming in Crown Courts. We have taken into account the concerns raised by both Houses when considering the results of that test. Our learning from this, and from some years filming in the Court of Appeal, has informed the drafting of the current order and the safeguards contained within it.

We have listened to concerns regarding the potential impact of court broadcasting on victims and witnesses, and indeed on the dignity and integrity of our courts. The welfare of victims and witnesses is of paramount importance, and the order does not permit the filming of victims or witnesses, or of any other person present in court, including staff, defendants, jurors and advocates.

Broadcasters must make an application to film a case, and the trial judge has full discretion to allow or deny the application. Filming will not be permitted if a case is considered unsuitable for broadcast—for example, if it is particularly sensitive in some way—and it will not be possible to appeal a judge’s decision to allow or refuse filming. Existing reporting restrictions will continue to apply, and the court will be able to stop or suspend filming in the interests of justice, or to prevent prejudice to any person. Any breach of the terms of the order could amount to contempt of court.

We have given much consideration to concerns that filming might impact on the dignity of the courts and the integrity of the trial process. The decision to limit filming to sentencing remarks has been done with this in mind, and we have introduced a number of other safeguards in the order.

Only those media parties granted permission in writing from the Lord Chancellor will be able to record proceedings, and the Government will retain copyright of the film footage. The order makes clear that the contents of any broadcast must present sentencing remarks in a fair and accurate way. The complete footage of any broadcast will be easily accessible to the public online, so that they can see and hear the judge’s remarks in full and in context.

There will be only one camera, and one experienced cameraman, present in the court, to minimise disruption. In most cases, sentencing remarks will be filmed and the edited footage broadcast later the same day. Live broadcasts are likely to be very limited and only in cases of significant public interest. There will be a time delay on live broadcasts, to ensure that all necessary edits can be made to the footage before it is released to the public. The trial judge will have the power to refuse an application to broadcast live, if he or she considers that this would be inappropriate.

The second draft order before noble Lords today amends the Court of Appeal (Recording and Broadcasting) Order 2013, which sets out the conditions under which the visual and sound recording, and broadcasting, of proceedings in the Court of Appeal may take place. The 2013 order specifically prohibited the recording and broadcasting of Court of Appeal proceedings where the appeal followed from a decision in family proceedings. The draft amending order repeals that prohibition, with the specific purpose of bringing family proceedings within the scope of the current project to test the live streaming of selected Court of Appeal civil proceedings.

Family proceedings have long faced criticism in Parliament, and indeed in the media, for being insufficiently transparent. Historically, family proceedings have been more closed than those in the criminal and civil justice systems, with cases usually being heard in private. However, both the Government and the judiciary recognise the need for greater transparency, while at the same time protecting the privacy of often very vulnerable children and families. A careful balance must continue to be struck. Steps have been taken, and continue to be taken, to make family proceedings more open. This instrument should be seen in this wider context, as well as that of making the Court of Appeal, and the courts in general, more accessible to the public.

Repealing the prohibition on the recording and broadcasting of family proceedings of the Court of Appeal will allow selected cases to be included within the existing live streaming of judgments and advocates’ arguments in appeal cases. This pilot, initiated by the Master of the Rolls and launched in November 2018, has so far tested the live streaming of selected civil proceedings in the Court of Appeal. These have been broadcast through a dedicated YouTube channel, with a link placed on the judiciary website.

The pilot has provided a successful test for the broadcasting of appeal proceedings. No technical issues have been identified with the live feed to date, and no objections have been raised by the parties involved in the hearings selected for live streaming. The pilot includes a delay mechanism and enables the judge to cut the live stream immediately to prevent the inappropriate broadcast of sensitive matters. To date, judges have not needed to use this facility.

There is currently no intention to broadcast family proceedings in the Court of Appeal, other than as part of the ongoing live streaming pilot. However, it is anticipated that if the pilot has a successful outcome, it should become standard practice for selected family proceedings in the Court of Appeal.

The confidentiality and sensitivity with which family proceedings are dealt with remains of paramount importance. It is important to note that family proceedings in the Court of Appeal are already open to the public, who can attend in person, unless the court itself decides otherwise.

The Crime and Courts Act 2013 allows discretion for the judge in any case to prevent broadcasting to protect the interests of justice and prevent undue prejudice to anyone involved. The broadcast of individual appeals will require the agreement of a judge. Judges are always able to stop live streaming at any time, either before or during the hearing, should they consider it necessary. Parties are also given the opportunity to object to having the hearing broadcast. These safeguards will apply to family proceedings, as they do to other proceedings already within the scope of the 2013 order.

This instrument will only allow the broadcasting of judgments and advocates’ arguments in family cases in the Court of Appeal. Appeal cases do not commonly involve family members or other witnesses giving evidence in person, except when they are representing themselves, and safeguards are in place to protect their interests. These have been found to work well already in the broadcasting of civil proceedings.

The Government are committed to ensuring that the justice system is open and transparent. Public understanding of how the courts work, and how judicial decisions are made, is important if we are to maintain confidence in the system. I believe that both orders before the House today will further these aims. They will give the public access to and insight into court decisions, while continuing to protect the integrity of the court and the rights of victims and defendants. I commend these instruments to the House and beg to move.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 5:57 pm, 8th June 2020

My Lords, I am grateful to the noble and learned Lord for his explanation of the orders. I have to wrestle with two competing influences in dealing with issues of this kind: on the one hand, the need for justice to be seen to be done, and, on the other, the danger of outside influences such as sensationalism influencing court proceedings. I regret that I first opposed, and then supported, the broadcasting of the House of Commons. Time has proved that I was right the second time round.

Other than when I was a Minister—under three Prime Ministers—I have spent all my professional life practising in the criminal courts. I venture to think that I have met near as many alleged murders, rapists and fraudsters as most in your Lordships’ House. The first order is very limited, applying only to senior judges in the Crown Court, and would not have applied to a part-time recorder like myself sitting as a Crown Court judge. So we are only putting our toes in the water, so far as the criminal courts, and I commend this approach.

Sentencing remarks can unexpectedly become very sensational. I suspect that a consequence of the order will be that judges will in future exercise extra care in their sentencing remarks. That would be for the good. The only publicity I had, in many years sitting as a judge, was around my sentencing remarks in a rare triple bigamy case. The offences had taken place many years before, but the accused was fairly young. The years had gone by, and he was now happily married, with a wife and children. Every tabloid splashed my sentencing remarks, “Judge tells bigamist: You get on with it”. What I meant was that, given the passing of so many years, he should now get on with his settled life. I was much more careful in my other cases after that.

I particularly welcome that the broadcast should not be in breach of any applicable restriction order, which could be of fundamental importance in, I surmise, a small number of cases. The results of a breach of such a restriction can have appalling and costly consequences. On the basis that this is not the thin edge of the wedge, I welcome the order. I suggest, if I may, that, in perhaps two or three years, the Lord Chancellor should report to Parliament on its operation. What should be paramount in our consideration is ensuring that there is no infringement of the right to a fair trial. I am content with the second order.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 6:00 pm, 8th June 2020

My Lords, this significant development is being introduced by statutory instrument without any up-to-date consultation. As the Explanatory Memorandum shows, the Government rely on a consultation from 2005—15 years ago—to justify its introduction in 2020. That is not proper consultation. Broadcasting has changed since 2005, as have the courts. At a practical level what control will be exercised over the broadcast of sentencing remarks on the internet, and on social media, which was not at all obvious in 2005? Article 10 imposes restrictions on use, but are they enforceable in the current age?

The Explanatory Memorandum makes it clear, as the Minister did a moment ago, that the policy behind this provision is

“to increase transparency in the justice system and public engagement with, and understanding of, what happens in courts.”

To confine the broadcasting proceedings to the judge’s sentencing remarks seems to do little to achieve those objectives. In a straightforward case, the sentencing remarks may be only very brief. Even in a serious case, they may reflect little of the issues played out in the trial process. In R v Chin-Charles last year, the Lord Chief Justice made it clear that sentencing remarks should be merely a brief explanation of the reasons for sentencing; the issues in the trial should not be rehearsed. The noble and learned Baroness, Lady Hallett, was a party to that judgment. I cannot imagine the public waiting anxiously to be educated at their television sets, or at their laptops and iPads, at the precise moment the judge comes into court to deliver his sentence. Surely providing clips for news programmes must be low on the priorities of a court service desperately requiring money for repairs and refurbishing.

On the issue of cost, in the Court of Appeal project the broadcasters agreed to bear the cost of installing and operating the cameras. Have they agreed to bear the cost of these provisions, both for now and stretching into the future? If not, what is the projected cost? In any event, the time and money spent even in the training of court staff cannot be justified for the limited purpose of “educating the public” or upholding the dignity of the court. There is a lengthy waiting list for trials in the Crown Court and the focus should be on speeding up the trial process.

It used to be said that the pace of a trial was linked to the judge’s pen. Today it is more likely to be dictated by his or her ability on the keyboard, but it remains the judge’s responsibility to take a full note of the proceedings to assist him in his rulings and to remind the jury in his summing up of the evidence that has been given. If courts are to be fitted up with cameras, why should they not be used for wider purposes—let us get into this century—to record the evidence and demeanour of witnesses, should the jury wish to refresh their memories; to assist counsel in the preparation of argument before the jury; or to take the pressure of note-taking away from the judge? Their use will always be regulated by the judge in the interests of justice.

We have seen in this House, with the detailed and indexed recordings of proceedings on parliamentlive.tv, how quickly the record can be accessed. Like some elderly Members of this House, jurors can be trained to use the system. The coming generations, I fear, will of course require no such training. I remember a time when some jurors were illiterate and could not read the oath. I have to say that the defence rarely objected to their serving on the jury. A Daily Telegraph in a prospective juror’s pocket was enough to have him off. But today’s jurors are frequently faced with documents and photographs online and they deal with them. They are capable of dealing with them. They could deal equally with a filmed record of the proceedings.

My remarks apply equally to the inclusion of family proceedings in the current Court of Appeal arrangements. I suggest that the Minister withdraws these SIs and has a proper consultation in today’s terms to consider where they should go, and to encourage broader use of recordings in Crown Court proceedings.

Photo of Lord Garnier Lord Garnier Conservative 6:05 pm, 8th June 2020

My Lords, I wholeheartedly support the implementation of these two orders. It is essential that proceedings in our courts should be as open to the public as possible, subject to any overriding public interests, such as the interests of justice generally and in a particular case before the court. While I bear in mind the more cautious and charmingly self-deprecating contributions of the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Thomas of Gresford, the restrictions outlined by my noble and learned friend the Advocate-General are, in my mind, proportionate and sensible.

My noble and learned friend and I have appeared as advocates in the Supreme Court, where, as he said, proceedings are recorded and live-streamed—I hope he will agree, to the public benefit. Although not every case is necessarily interesting to the public and some are, frankly, pretty dry, that they can be seen and heard live, or later by people who cannot get to Parliament Square, helps demystify the Supreme Court’s procedures and the work of those who take part in appeals as justices, advocates or litigants. It also helps the wider understanding of the law and its development through decisions of the court. I am sure that is true of broadcasts of the Court of Appeal, even if they are not routine.

I have some questions about the Crown Court order, which I sent to my noble and learned friend earlier this afternoon. Regarding that order, can he tell us how long the general permission to record sentencing remarks given by the Lord Chancellor lasts? Will there be a list of people or organisations, or only one designated recording organisation, permitted to record by the Lord Chancellor under the order, whereas those who wish to broadcast what has been recorded will need to apply to the sentencing judge on each occasion? Is the judge’s permission to broadcast limited to the particular case in which he or she is the sentencing judge, or can a High Court judge or a resident judge give permission to broadcast the sentencing remarks of another judge sitting at the same Crown Court?

Who may ask for permission to record and broadcast sentencing remarks? Will they have to apply in open court, or can it be done administratively and in writing? Will the broadcaster have to pay either to apply for permission or to broadcast the recorded material? Is broadcasting limited to traditional television or radio broadcasters such as the BBC, ITN or Sky, or may individuals and organisations outside the traditional media—for example, bloggers or people who post on social media—be given permission? Who, if dissatisfied by a decision to give or to refuse permission for a recording to be broadcast, has the right to appeal that decision? Who decides whether a broadcast was fair and accurate, and what is the consequence for the broadcaster if it is not?

Finally, is there a statutory or relevant definition of the phrases “light entertainment” and “satire” in Article 10(2)(c) and (d)? These are terms often easier to recognise than to define, but how will the judge know, when asked for permission to broadcast his or her sentencing remarks, whether they are to be edited in such a way as to invite contempt, ridicule or gentle amusement, or as to encourage academic legal interest or intellectual curiosity?

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge 6:09 pm, 8th June 2020

I too warmly welcome the proposed orders. They are an important yet incremental step in ensuring that justice is as open as possible. Courts have always sought to do this using modern methods of communication. That is because it is always essential that justice is seen to be done openly, in the interests of not only the defendant but society as a whole, so that everyone can see that justice is being done.

For some time, the judiciary has made available transcripts or notes of sentencing remarks to ensure that they are reported accurately. This has proved very successful in ensuring that what a judge says is accurately reported in the press, but it is right that we now go further than this.

The experience the courts had in the Court of Appeal —both the Criminal Division and the Civil Division—and the Supreme Court has shown that broadcasting is a very important part of open justice. To allay some of the fears expressed by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Morris of Aberavon, there have been few problems. There have been no real problems with matters being repeated on the internet or social media. The courts have always tried to take into account the views of the parties. Particularly in hearing criminal appeals, they have been anxious to protect the position of the victims, or the family if the victim is deceased.

It is a tribute to our broadcasters that they have shown very real responsibility. The cameraman who used to sit in court and record what happened was always acutely sensitive to what was being said and transmitted. Therefore, bearing in mind the way this is being taken forward, we can be reasonably sure that the problems have been looked into.

It is important that the broadcasting will be restricted to the most important cases. It will therefore be possible for the public to see and hear from the judge’s own words what has been said. That is much better than the prosecutor, for example, appearing on the steps and explaining what the judge has said.

I have three more observations about this order. First, it is and has been a very complex process; it had to be piloted to check it works properly. Secondly, there has been consultation. This process has been going on for a considerable period of time at the Bar and among solicitors, the judiciary and the broadcasters. Thirdly, a number of safeguards are in place to try to ensure that everything is done properly and that the system is not abused. It seems we can safely proceed with this incremental step in accordance with the orders.

I will briefly add a word in respect of the Court of Appeal order. I too welcome it, as it extends transparency to family court proceedings. That is always something the judiciary has welcomed when appropriate and suitable.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour 6:13 pm, 8th June 2020

My Lords, I confess that—unlike, I think, all the previous speakers—I am afraid I do not fall into the “noble and learned” category, since I have neither legal qualifications nor the experience of serving in court proceedings that was so evident from the previous contributions. I am not sure that my service as Home Secretary compensates for that absence or necessarily endears me to those who are entitled to be referred to as noble and learned Lords. Nevertheless, perhaps I could make a few short layman’s points about the proposals before us. If I repeat some elements of the opening contribution by the noble and learned Lord, Lord Keen of Elie, it is because I cannot remember any occasion when I have agreed more with him than today.

It seems obvious that increasing the transparency of our court proceedings is an important step forward for our legal system. It may not be a major step—as my noble and learned friend Lord Morris said, we are dipping our toe another little bit into the water here—but it is a step in the right direction. As several noble Lords have pointed out, it is a truism that justice should not only be done but be seen to be done. The fact is that, although theoretically our courts are accessible to the public, we all know that in practice there is severely limited access to the average person, for reasons that are self-evident. This proposal increases that accessibility and transparency, even if in a somewhat limited fashion.

Secondly, it seems likely to increase understanding of how the courts actually work. It is a system that is still largely shrouded in mystery and misunderstanding for the ordinary member of the public. Thirdly, I would like to believe that in turn this will engender more widespread confidence in our justice system—although, unlike my noble and learned friend Lord Morris, I do not think it self-evident that televised parliamentary proceedings engender increased respect or understanding, so perhaps I am expressing a rather overoptimistic view. Nevertheless, it is possible that it will do this and, if so, it is to be welcomed.

In any case, it is obvious to us all that we live in what is called the information age, in which there appears to be an unquenchable thirst for information—very often gained through media and social media, as has been pointed out, and sadly not all reliable or accurate. So it seems wise to at least allow direct access, however partial, to legal judgments, rather than only to second-hand and sometimes anonymous reportage of them.

I welcome the fact that, in this move forward, victims, staff and legal professionals will be protected from exposure under the order. However, that is not the case for judges. It would be interesting to know what assessment the Minister and Government have made of any potential adverse consequences of this and what measures, if any, they intend to put in place to mitigate those consequences.

As I mentioned, the proposal is partial. Only the judge’s sentencing remarks are to be broadcast in the Crown Court. This may include a summation of the main points of the prosecution and defence cases. However accurate, this obviously cannot be comprehensive. I wonder whether the Government could not have gone a little further; perhaps the Minister could explain that. Despite these minor reservations, I welcome and support the proposal and look forward to the Minister’s response.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Chair, International Relations and Defence Committee, Chair, International Relations and Defence Committee 6:18 pm, 8th June 2020

My Lords, I support the making of both orders but shall speak only to the Crown Court order. My only reservation is that it may be too limited in its scope to meet effectively the stated objective of increasing transparency in our judicial system and public engagement with, and understanding of, what happens in our courts.

It has taken a long time to reach this modest stage. I well remember the consultation carried out by the Labour Government in 2005. At that stage I had been a magistrate and was the Opposition spokesperson on home affairs and, from time to time, matters covered by the Department for Constitutional Affairs.

The Crown Court order will authorise only certain judges sitting in the Crown Court to permit the recording and broadcasting of their sentencing remarks. The judges will be High Court judges, senior circuit judges who are also the resident judge of a Crown Court centre, or a senior circuit judge whose base court is the Central Criminal Court. All circuit judges have a base court but may sit at other courts. The permanent judges based at the Central Criminal Court are senior circuit judges, but other non-senior circuit judges may be requested to sit there from time to time. Those other judges will be excluded from the provisions of this order.

High Court judges and senior circuit judges preside over trials of class 1 offences, which include murder, attempted murder, rape and other serious sexual offences, but other circuit judges may be authorised to try some of these offences too. On occasion, Crown Court judges are criticised by the police—sorry, by the public—and the press for the perceived inadequacy of their sentences. Perhaps my slip of the tongue may be true as well, judging by the source of some criticism. Sentences in certain types of offence, in particular, often attract a public outcry or criticism: for example, not only those given for serious sexual offences such as rape but for other sexual offences too. Some serious sexual offences are tried before non-senior circuit judges or, indeed, as mentioned earlier today, before recorders. Sentences in such cases will be excluded from the provisions of this order. For clarity, I do not refer to the honorary recorders of major city Crown Courts who are senior circuit judges—for example, Liverpool, Manchester and Leeds, to name but a few.

Other sentences that attract a lot of public attention, and sometimes a strong emotional response leading to open criticism, are those for causing death by dangerous or careless driving. These offences are frequently tried before non-senior circuit judges or, again, on occasion before recorders. These sentences, too, would be excluded under the provisions of this order. There would be considerable benefit to the judiciary and the public if the reasons for such sentences could be recorded and broadcast. It would promote even better transparency and enable the public to have a better understanding of the judge’s reasoning and all the factors taken into consideration.

Accordingly, while I welcome the Crown Court order, I hope that my noble and learned friend the Minister may be able to reassure me that the provisions of this order are just a first step—more than just the putting of the tip of a toe in the water; I want to see the whole foot and more in there—and that these measures may be extended in due course to the decisions of a wider category of judges.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour 6:23 pm, 8th June 2020

My Lords, I am grateful to the noble and learned Lord for his usually thorough and precise introduction. I will confine my remarks to the order that relates to Crown Courts, and I say at the outset that I welcome it as an initial step. However, I share, almost word for word, the views and reservations just expressed by the noble Baroness, Lady Anelay.

I chair National Trading Standards, which is responsible, on behalf of BEIS, for delivering national and regional consumer protection enforcement activities in England and Wales. Scotland has similar but distinct arrangements. The teams we fund are located within local authorities and use local authority trading standards powers to investigate and bring prosecutions against organised crime groups, which perpetrate consumer scams targeting often vulnerable consumers, and which, as a side-effect, thereby undermine legitimate businesses and traders. Clearly, the objective is to bring the perpetrators to court. A typical example would be Allan John Coutts, a rogue trader who ran a tarmac repair business across England and Wales, operating under several trading names to avoid detection. He used a lorry specifically designed to resemble an official vehicle to cold-call customers to obtain driveway repair work. The work itself was often of very poor quality; sometimes he simply dumped loose chippings on existing driveways with no solution to hold them in place. He demanded cash for this work, often accompanying people to their banks to “help” them withdraw the cash. Very rapidly, the customers would then discover that the five-year guarantee that he offered was worthless, and Coutts and their money had vanished. When it came to court, Anthony Rees from the NTS investigation team received a judge’s commendation for his work on bringing Coutts to justice, and Coutts himself received a prison sentence of five and a half years. That was a good outcome, but justice needs to be seen to be done.

It used to be the case that the staple content of local news media was the court reporter, who would take down a shorthand note of the remarks of a judge in passing sentence. However, local news media are in decline, and, even if they have reporters, often can no longer send them to the Crown Court to cover the end of anything but the most high-profile trials. However, it is important that not only such cases as the one I described but all of them are reported. First, the outcome of a case may provide some sense of relief and closure to those who have been exploited and victimised by the criminals. Secondly, the sentences handed down may be a deterrent to other potential scammers. Thirdly, the cases act as a warning to those who may be taken in by scammers such as Coutts, and they serve as a reminder that an offer which sounds too good to be true is almost certainly too good to be true. That is why I welcome the order introduced by the noble and learned Lord. However, I would like confirmation of three points from him.

First, will all such sentencing remarks in Crown Courts be recorded and broadcast in this way? Obviously, there will be an exception for those where the judge feels that it would not be in the public interest to report it. However, I am concerned that part-time recorders may not have their sentencing remarks broadcast in this way. If that is the case, can the noble and learned Lord tell us why, and when will it be extended to all criminal sentencing in Crown Courts? I hope that the presumption will be that this will soon apply to virtually all cases. Secondly, will the remarks be broadcast on the internet in a timely fashion on the day that they are made? Timeliness is important if the sentencing remarks are to be picked up by the news media. Finally, will judges be encouraged to provide enough of a summary of the case and the impact on the victims for the public who are listening to have a clear understanding of the offence committed, its seriousness and the reasons for the sentence passed? I look forward to the noble and learned Lord’s reply.

Photo of Lord Wei Lord Wei Conservative 6:27 pm, 8th June 2020

My Lords, I declare my interests as in the Lords register and thank my noble and learned friend Lord Keen for his eloquent introduction.

I welcome this move towards recording sentencing, whether online or for broadcast, especially in these times. It is wise, whether by accident or design, that this is being trialled quite extensively. It is true that we, as a people and as a nation, need to understand the law better, and the reasons decisions are made need to be explained more transparently. Although I have not worked in the judiciary, I had the experience of sitting on a jury in the Old Bailey just a few years ago, and I came away from it incredibly enlightened about and respectful of our system, which is one of the best, if not the best, in the world. I also came away with a much clearer understanding of the challenges faced by the police in particular. Apart from in court, they do not often get to explain their side of the story as regards the work they have to do to collect evidence and the hurdles that are sometimes there when it comes to prosecuting, based on lack of evidence or of the right kind of evidence; in that case it related to digital evidence.

Many citizens are expressing a sense of powerlessness, even in the last few days. That will only increase, and people may take matters into their own hands more often if they do not understand our system and cannot understand and see that justice has been done. A measure such as this one can help people to understand that there are processes for enabling the law to be put into action. By the way, delays in cases do not help. If you have to wait two years to see justice done, there may often be the temptation to take matters into your own hands.

I see this as all part of bringing into the internet age the legal system but also bringing about a better understanding of our ancient common law, which I admire greatly. It has been a great sadness to me to see in recent decades our system of common law, not just in the legal environment but in other, extra-legal areas, supplanted by what we might call a caricature of Roman law, whereby decisions are not always subject to jury, innocence is not always assumed before guilt and so on. Much of the technology world that I come from works on the principles of Roman law rather than common law. When the algorithm tells you that you cannot have a mortgage or cannot have a job, it does not always give you the reasons behind that decision and you are certainly always presumed guilty before innocent. If the computer says no, then it is generally a no. Educating people, including our tech entrepreneurs, about common law and natural justice is therefore important. I hope that this can be a way to ensure that our culture, our quangos and our code are defined in a way that is not Roman but based more on common law.

Like other speakers, I urge the Government to move faster and not just to use technology introduced in the past 20 or 30 years but to start to look ahead. I take note, for example, of the use of virtual reality. In Manchester, there is a collaboration between the University of Salford and the Manchester civil court to familiarise families and children with how the court process works using virtual reality so that it is not so scary for them when they enter court. I wonder whether this can be done by those who view sentencing, so that they can understand that a judge’s final decision is part of a long process that we should all be more familiar with than we are now.

I have a number of questions to ask and caveats to add. I worry about the risk of grandstanding by judges, especially in high-profile cases, and ask what guidance will be given to avoid that. If certain cases are not to be televised, how transparent will the decision be as to why a case was chosen to be televised or not? I am keen to understand whether we can learn in this House and the other House from the changes in the law that are required. Will judges be allowed to say, as they sometimes do, “The law needs to change in this area because it has tied my hands”? The link that used to be there when judges sat in the Lords previously needs to be re-established. Can it be created again through this process?

Finally, what measures are being taken to provide extra security to judges in case protesters leap into their place and incapacitate them to prevent them shutting down a broadcast? There may be a need to review this.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

I now call the next speaker on the list, the noble Baroness, Lady Jones of Moulsecoomb.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 6:32 pm, 8th June 2020

My Lords, it always delights me to hear my name mispronounced in so many different ways.

As a lay person, the broadcasting of sentencing remarks seems to me a welcome step forward in modernising the English courts system and increasing public awareness of justice issues. It is also important that the public be given the right information about why a particular sentence has been given to an offender. Too many cases are sensationalised in the media, giving an impression that sentences might be too short or too lenient, with no information given about the reasoning behind them. I agreed strongly with the dangerous radical on the Conservative Benches, the noble Baroness, Lady Anelay, and want much bigger steps to be taken in the future.

I have two questions. First, how will the Government work with the media and civil society to improve public understanding of justice issues, so that these newly broadcast sentencing remarks can be more fully understood by the public? The orders contain restrictions relating to the misuse of broadcasts, but can the Minister make clear how the Government will ensure they are not misused on social media—for example, by far right groups, who increasingly doctor and selectively edit such broadcasts to create a dangerously warped world view among their followers?

On the Court of Appeal broadcasting order, I welcome the extension. It is very timely.

I want to make some points on open justice in the age of Covid-19, because there are some areas where we are losing transparency and openness. For example, many court cases are taking place remotely at the moment. That represents a rapid modernisation in our justice system, which tends like the House of Lords to move and develop at a fairly glacial pace. However, unlike with physical proceedings, where members of the public can just turn up at a court and watch them, it has become much harder to join, whether virtually or in person. Many people have been trying to access remote proceedings as observers but have found it impossible. For example, some court websites direct members of the public to contact a judge’s clerk but provide no contact details, and instructions on how to contact the said clerk are also missing. What will the Minister do with Her Majesty’s Courts & Tribunals Service to uphold the principles of open justice and ensure that members of the public are able quickly and easily to observe remote proceedings?

Photo of Baroness Kennedy of Cradley Baroness Kennedy of Cradley Labour 6:35 pm, 8th June 2020

My Lords, I welcome measures that seek to open up our criminal justice system. I believe that the public want transparency and accountability; people should know how and why justice decisions are made. As many noble Lords have said, more accurate information in the public domain leads to greater understanding and, in turn, to increased confidence and trust in the system.

As noted by the noble and learned Lord, Lord Keen of Elie, in his opening remarks, public research for England and Wales carried out by the Sentencing Council last August showed how important it is to put in place measures to build public trust. It found that confidence in the criminal justice system was mixed and that only slightly more of the public were confident in the effectiveness and fairness of the system than were not. When asked about their views in general of sentencing, a minority said that sentences were about right, whereas most were likely to say that they were too lenient. Interestingly, the same research showed that, overall, the public get their information from the news and their engagement was high, with the majority of those getting their daily news from watching broadcast media news and current affairs programmes. These research findings therefore provide a supportive context for the orders before us today. It is evidence that more understanding of sentencing is needed to build confidence in the system, and that using broadcast as a way to achieve it is an appropriate response.

Allowing the public to hear judges’ sentencing remarks in Crown Courts, where they set out the full picture of the facts, the background to their decision and any mitigating or aggravating factors that framed their thinking, should help increase understanding of the sentence passed. Of course, even after hearing the judge’s remarks, there may be those who disagree with the conclusions drawn, but at least they are able easily to hear in full the rationale for the decision. I hope, too, that broadcasting rights will lead to fuller reporting of sentencing decisions and therefore more generally help to reduce uninformed or inaccurate comment.

As many have noted, judges may of course come under more scrutiny due to these measures and they will potentially be put in the public eye like never before. What measures or guidance will be in place to deal with personal and any unwarranted behaviour towards judges?

In the interim, I support judges having discretion to withhold consent for broadcasting, but I hope that permission to broadcast will become the default position. I am sure that cases will arise where this discretion is necessary, but will guidance be drawn up for its use and will the Government consider a review of the discretionary power after an appropriate time has passed?

Before closing, I want to make a broader point about the use of technology in our criminal justice system. At the start of the year, it would have been hard to imagine that our justice system could continue virtually, but it has. Weeks later, we have seen some cases where reporters have been able to join court proceedings via Skype or telephone, have instant message chats with clerks and receive documents digitally. Great leaps forward in the use of technology have been made at break-neck speed. Although the technology has not been without its problems, there are many examples of remote proceedings running smoothly.

At an appropriate point after this pandemic, will the Government review how technology has been used to keep our justice system turning over the past few months? Were the right technological solutions developed for different court settings? What worked well and what did not work at all? Essentially, will the Government assess whether the case has been proven during the lockdown that technology can be used to deal with cases faster, improve people’s access to justice and increase the reliability of data about the justice process and its outcomes? If so, how can we retain the best technological advances from the last few months to improve public transparency and accountability for the future?

I support these orders as measures to give our justice system greater transparency and accountability. They are long overdue and I agree with the noble Baroness, Lady Anelay of St Johns, that they are a modest step forward but a step forward none the less. They will help build public confidence and trust in our system.

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth Conservative 6:41 pm, 8th June 2020

My Lords, I thank my noble and learned friend Lord Keen for presenting these orders so ably. Like other speakers, I support them strongly and, like some other speakers, I hope they lead to a further extension of transparency and provision of information, which would be very welcome. However, I agree with the noble Lord, Lord Thomas of Gresford, that the last consultation was some time ago, so it is all the more important that we subject the orders to appropriate scrutiny.

I therefore have some questions for my noble and learned friend. First, to what extent has his department consulted with the DfE about the importance of these educationally for universities and their appropriate use as we see more tuition online? No doubt we will see an extension of that in the post-Covid world. Secondly, I share some of the budgetary concerns—that there may be costs for courts in introducing this—and I would particularly welcome some reassurance that, if there are costs, they will be minimal. Thirdly, who will be able to take up these rights? The BBC, ITN and Sky certainly look as if they can, but how much wider will it go? I hope it will go more widely. Could my noble and learned friend explain how that will be brought about?

Like the noble Lord, Lord Reid, my noble friend Lord Wei and the noble Baroness, Lady Kennedy, I am a bit concerned about the potential security implications for judges. This would clearly involve costs and risks, so could my noble and learned friend say something on that as well? Linked with that, I am slightly concerned about the potential for celebrity judges. One great strength of our system in England and Wales, and in Scotland and in Northern Ireland too, is that our judges are anonymous. Long may that continue. We do not want a sort of Disneyland legal forum such as in the USA. What are we doing to ensure as we go forward with these proposals and the greater transparency, which I welcome, that we do not run the risk of celebrity judges—or, if we run the risk, that we counter it?

My noble and learned friend spoke about the pilots run in eight Crown Courts. Could he say a bit more about them? I have tried in vain to find out more about how those pilots have run and what we have learned from them.

In his introduction, my noble and learned friend talked about the fact that the judge’s decision as to whether proceedings could be broadcast was not appealable. I see a slight danger in that. Is that the case in every circumstance? There may be circumstances in which an appeal cannot be ruled out.

Most of what I have said applies in both the Crown Court and the Court of Appeal in relation to family law matters. I have two further points on that. First, in relation to the family law extension, the Explanatory Memorandum says that the parties may object to the summing up—the concluding remarks—being broadcast. What happens if they do? Does that conclude the matter such that they cannot then be broadcast, or is that just a consideration? Secondly, is there not a danger that some litigants would be put off proceedings by the thought of them being broadcast, even in a perhaps rather minor way in terms of exposure? If there is a danger of that, how do we counter it? I am sure that some thought has been given to this but would appreciate my noble and learned friend’s thoughts on it.

Subject to those concerns, to which I am sure my noble and learned friend has answers—to those that he does not as yet I would appreciate a response in writing—I am strongly in support.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 6:45 pm, 8th June 2020

My Lords, I join in the thanks to the Minister for the way in which he introduced these orders, which I welcome. I agree that awareness of what goes on behind the courtroom door is pretty low in Britain as a whole. For many, it is influenced by what we see in courtroom scenes in film or on television. My favourite is “Judge John Deed”, which I think, or at least hope, is untypical of what really goes on behind the courtroom door.

As the Minister rightly said, these orders’ intention is to create greater transparency and openness in our criminal justice system. I welcome that. Broadcasting judges’ remarks on high-profile cases can offer an opportunity, albeit limited, to improve public understanding. As a Scottish Peer, I say to the noble Lord, Lord Thomas of Gresford, and others from outwith Scotland that the option to broadcast sentencing in Scotland has been available for some time, as the Minister knows better than anyone. Scottish judges have allowed cameras in courts several times in the past 20 years, since it was first allowed in 1992—mainly for documentaries, with footage heavily vetted.

An early example was in 1996, when Lord Ross allowed cameras to watch the sentencing of two armed robbers, which was a very good way of getting the message over, as my noble friend Lord Harris said. Another example is the 2012 retrial of the infamous Nat Fraser for the murder of his wife Arlene in 1998. It was filmed by Channel 4 and shown as “The Murder Trial” documentary in 2013. In 2012, legal history was made in Edinburgh High Court when David Gilroy became the first person convicted of murder to have his sentencing filmed for TV. This was the first time in a UK court that a sentencing was filmed for broadcast on the same day. As my noble friend Lord Harris said, that is important.

While broadcasting judges’ sentencing opens the courtroom to the public, there is a question of whether these orders go far enough to provide real transparency, as a number of noble Lords have said, as the showing of a judge passing a sentence is not fully representative of what takes place in a trial. While these orders are useful, I am sceptical that they will advance public understanding and knowledge on their own, as these remarks are likely to be taken completely out of context without the knowledge of what evidence has been presented in the trial for the judge to reach their decision.

That raises the question of how much we should open courts to the public and what the impact of such a move could be. I am not suggesting that we go as far as the United States, where live broadcasting transmission has presented some trials as something of a spectacle. A recent Netflix documentary, “Trial by Media”, demonstrated its influence in the United States in the past and the negative impact of the trials that are broadcast in full for everyone to see. It hampers the fair judicial process. Many cases have received so much media attention that they have been described as soap opera trials. This is highlighting extreme examples, but it shows what must be avoided when examining a broadcast system for judicial trials.

As I mentioned, Scotland has allowed sentencing to be broadcast for some time. Since then, work has been under way to implement the recommendations of a review that took place in 2015 into the broadcasting experience in Scottish courts. Key elements include the relaxation of the rules, including the broadcasting of civil and criminal appeals, and allowing the filming of some criminal trials for documentary purposes. Of course, as others have said, trials of a sensitive nature involving children or sexual offences are understandably excluded.

Since this review, an entire trial has been filmed—albeit with necessary edits to protect those involved—as part of a documentary called “Murder Trial: the Disappearance of Margaret Fleming”, which was aired in April this year. Importantly, this represents the first accurate and holistic depiction of a trial process, offering even greater transparency and openness.

With all that in mind, given the desire to create greater transparency and openness within our judicial system, are the Government planning to consider further options beyond this order for broadcasting in courts in England and Wales, as other noble Lords have asked? Specifically, will the Minister consider a similar review to that undertaken in Scotland? Having said that, I repeat that I support these orders.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 6:51 pm, 8th June 2020

My Lords, I have long argued for more broadcasting of court proceedings on the simple ground that open justice is generally better justice—a point endorsed by the noble and learned Lords, Lord Morris of Aberavon and Lord Thomas of Cwmgiedd. The noble Lords, Lord Reid, Lord Wei, Lord Foulkes and others have also eloquently emphasised the importance of the public understanding of the justice system.

We have long seen open justice as central to the rule of law and to our liberties, but, until recently, public access to proceedings was limited to the admission of the public to open court hearings and to their fair and accurate press reporting. In principle, I see little distinction between admitting the public to open court proceedings and permitting press reporting, and allowing broadcasting of those proceedings. I accept that there should be limits to broadcasting in the interests of justice, particularly to protect jurors and witnesses, including vulnerable witnesses in sensitive cases, from being inhibited or frightened. Nevertheless, I would argue that we can move, incrementally certainly, towards a more open system. These two orders take small but significant steps along the road to more open justice, and I support them.

On broadcasting judges’ sentencing remarks, we have all seen how, too often, public perception of sentencing is distorted by sensationalist coverage in the printed media. Broadcasting would increase awareness of the reasoning behind sentencing in particular cases—a welcome benefit. But I agree with the noble Baroness, Lady Anelay, and the noble Lords, Lord Harris and Lord Bourne, that we should go further, with pilot schemes and further consultation, as appropriate, in the future.

I agree with lifting the exception to broadcasting family appeals to the Court of Appeal. That is in line with the general recognition that family proceedings have been too secretive in the past and should be more widely understood.

Perhaps I may make a few further general points. First, the broadcasting of Supreme Court proceedings has clearly been a great success. In many cases, members of the public follow the argument in detail and with care. We have heard today from the noble and learned Lords, Lord Keen and Lord Garnier, who appeared in the Miller and Cherry cases on the unlawful prorogation of Parliament last year. Many who would have missed it without broadcasting will remember the decisive contribution that the noble and learned Lord, Lord Garnier, made to the argument in that case on behalf of Sir John Major.

For my part, I do not believe that the current blanket bar on broadcasting evidence in trials is supportable. It is permitted in a number of common-law jurisdictions to a greater or lesser extent: not only in the United States, where it is widely permitted, but—subject to limitations—in New Zealand, Australia and Canada. While I accept that there are risks in the unlimited broadcasting of lay witness evidence, I am unconvinced that expert evidence needs or ought to be similarly protected. There may be an important public interest in more scrutiny of expert witness evidence in securing genuinely impartial evidence that is less likely to be skewed in favour of their clients in a case.

More controversially perhaps, I also believe that the public have a right to witness first-hand the conduct of parties’ advocates and the reaction of judges to their conduct of litigation. When broadcasting cases was first mooted, there was much talk of a fear of counsel grandstanding for the camera. But we have seen little evidence of that in the Supreme Court and other appellate courts.

Finally, I would mention a little-noticed but significant effect of the coronavirus lockdown; this point was mentioned by the noble Baroness, Lady Jones of Moulsecoomb, and others including the noble Baroness, Lady Kennedy. Civil trials have gone ahead virtually, in accordance with paragraphs 8 and 22 of the Protocol Regarding Remote Hearings published on 26 March by the senior judiciary. Paragraph 8 says that

“remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways:”

The third of those ways is

“live streaming of the hearing over the internet, where broadcasting hearings is authorised in legislation (such as the new s85A recently inserted into the Courts Act 2003).”

That section authorises video broadcast of proceedings, where the court agrees.

The protocol goes on:

“The principles of open justice remain paramount.”

I agree with that. During lockdown, I have conducted a High Court trial with a significant number of witnesses in accordance with that protocol. The trial worked well, although I agree with the noble Baroness, Lady Jones of Moulsecoomb, that such trials must not be difficult to access. Private evidence in that trial was kept private; the principle of open justice was maintained. I endorse it and suggest that it could be extended when we get back to normality.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice) 6:58 pm, 8th June 2020

My Lords, I too open by thanking the noble and learned Lord, Lord Keen, who introduced these draft orders in his customarily thorough way. The first draft Crown Court order would essentially update the proceedings of the Supreme Court, which have been broadcast since 2009; some TV broadcast of the Court of Appeal has been possible since 2013. This order extends broadcasting to the Crown Court, where sentencing remarks may be broadcast by specified judges. It will be tightly controlled to protect the interests of victims and witnesses. The second draft order before us will enable the recording and broadcasting of appeals from decisions in family proceedings, which is currently not permitted by the 2013 order.

I support the two draft orders. They are a step in opening up justice to the general public, so that they can see the full explanation of the sentences given and the judgments made. They build on the positive experiences in Scotland and the pilot test, which we have heard about, in locations in England and Wales. It is right to give the public access to a broadcast of judges’ remarks, because it means that they will hear the whole of the remarks, unmediated by the interpretation of journalists or truncated because of a lack of time. It is likely that the cases broadcast will be of public interest. A full exploration of the aggravating and mitigating factors that led the judge to his or her final sentence, or whatever the order may be in a family case, is surely in the courts’ interests as well as the public’s.

However, I have some concerns about the vulnerable people who are very often involved in the court process. They may be victims, witnesses or children; they may be people with particular mental health concerns. It is important to protect their interests and privacy. I remind the House that I sit as a magistrate in adult, youth and family courts in London. Youth and family courts are of course not open to the public.

I remember a discussion with a BBC TV producer who sat in on one of my family court sessions. She attended that session with a view to assessing whether it would be possible to make a series about the work of the family court. This producer was very candid; she explained to me that it would be difficult to make such a TV series because she would be unable to broadcast anything that led to the identity of the children being revealed. She said—very candidly, as I say—that abstract points of law are of much less interest to the public than real-life human dilemmas and problems. I do not know whether the series was made, even though the BBC producer said that she could see how interesting and important the process was to the families concerned. So a balance needs to be struck between publicising the work of our courts and protecting the interests of those who find themselves caught up in the court process.

I think all noble Lords who spoke did so in support of the orders. For some, this is, in the words of the noble and learned Lord, Lord Thomas, just a “toe in the water”. A number of noble Lords, including my noble friends Lord Harris and Lady Kennedy, were hoping for a greater opening up of the process, which I support as well. My noble friend Lady Kennedy made an interesting point about reviewing the technologies being used at the moment. I have taken part in a number of remote hearings over recent weeks, in both criminal and family courts. A lot of issues are raised; it is very interesting. I hope that the Government are reviewing the use of technology; I know that the judiciary is. Some of it is an improvement in the process; some leaves questions to be answered.

I support these orders. I hope that, in his reply, the Minister will address the issues which have been raised constructively.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 7:01 pm, 8th June 2020

My Lords, I thank noble Lords for their contributions to this debate. The noble and learned Lord, Lord Morris of Aberavon, was quite prescient when he described these moves as a “toe in the water”. That point was supported, or commented on, by a number of noble Lords. We are proceeding here very carefully. On that point, I will address some of the observations of the noble Lord, Lord Thomas of Gresford. He talked about there having been no consultation since 2005, and the need for this. With great respect—this point was made by the noble and learned Lord, Lord Thomas of Cwmgiedd —we have been informed in the development of these orders by the work that has been ongoing since 2013, with the introduction of the means of live streaming into the Court of Appeal, and 2018, with the pilot. It is not as if we have approached this cold. Regarding the matter of costs which the noble Lord raised, these will be borne by the broadcaster who seeks to broadcast the relevant sentencing provisions under the Crown Court order. We have already established a live stream of non-family business in the Court of Appeal on a YouTube channel. There will be a process by which broadcasters can seek permission to broadcast from that.

My noble and learned friend Lord Garnier raised a number of points, with particular reference to the provisions in the Crown Court order. There will be a list of permitted broadcasters, approved by the Lord Chancellor. The BBC, ITV, Sky and the Press Association will receive permission. It could be withdrawn at some point in the future, but I do not understand there to be any time limit to it. Thereafter, it will be for the judge sitting in any one case to determine whether he will permit broadcasting of his sentencing remarks. He will not do that on behalf of any other judge or court. His determination will not be liable to appeal; it will be a final determination. Making an application will be an administrative process that the broadcaster will carry through by way of a written application, for which there is no charge. There will then be a decision on a case-by-case basis.

The noble and learned Lord, Lord Thomas of Cwmgiedd, outlined that it is already the practice for written sentencing guidelines to be available, and they have greatly assisted in the sentencing work of the criminal courts. He made three observations: that this is a complex area, and I agree; that there has been consultation, and, again, I agree; and that a number of safeguards have been developed in the light of our experience, particularly since 2013, to guide us with respect to both the Crown Court and family cases in the Court of Appeal.

The noble Lord, Lord Reid, and a number of other noble Lords raised the question of potential adverse consequences for judges from this process. That has been considered, and the view of both the Government and the senior judiciary is that there will not be any significant increase in such consequences. Of course, judges can already come in for criticism of their sentencing decisions. They are well able to deal with that and they have broad shoulders, but we do not consider that there will be any significant adverse effects as a result of this process.

My noble friend Lady Anelay of St Johns was one of the speakers who felt that the reach of the orders was perhaps too limited. We have developed them in the light of experience, particularly since 2013. We are moving carefully in this area and at present we do not have any intention to extend these provisions beyond the current orders. The decision with regard to the Crown Court order that permission should be available only from a High Court or senior circuit judge was arrived at after consultation and discussion with the senior judiciary, who felt that this was the appropriate way forward at this time.

The noble Lord, Lord Harris of Haringey, encouraged the idea of providing more than just the sentencing guidelines when broadcasting and mentioned the need for immediate attention to what is going on. Where a broadcaster seeks to broadcast in the Crown Court, I cannot say that that will be done live. There might be exceptional cases where it occurs, but I suspect that they will be unusual. One cannot anticipate the speed with which a recording of such a sentencing event would be broadcast, although one would have thought that it would have limited public impact if delayed for long.

My noble friend Lord Wei raised a number of points, the first being the risk of grandstanding by judges. I cannot imagine that any such thing could ever happen, and I do not believe that we need to guard against that in the present context. He also raised the question of security. There is a 60-second delay in the live stream so that it can be shut down if there is an extraordinary or outrageous event in the court. That has never been required but it has been tested on a number of occasions and has been found to work.

The noble Baroness, Lady Jones, asked how we can improve public awareness. I agree that that is important, but I suggest that these are small steps in the right direction. She also asked how one regulates against misuse of the material. Of course, the contempt-of-court process is there for that purpose, and we can police the use of this material in just the same way as when it is recorded in the written press.

The noble Baroness, Lady Kennedy, raised the question of guidance on the behaviour of judges. There are sentencing guidelines that the judiciary is obliged to follow when applying these matters. Over and above those, there have from time to time been cases—they were mentioned during the debate—where the Lord Chief Justice and the Court of Appeal have indicated how these matters should be approached by the judiciary.

My noble friend Lord Bourne raised a number of questions, and I shall touch upon them briefly. I am not aware of any consultation with the Department for Education, although I note that there may be a point to be considered there. As regards costs, they are essentially minimal because the broadcaster will provide the cameraman and the camera, and there will be only a single camera for this purpose. As to who will take up the rights to broadcast, I think I mentioned who the permitted parties are going to be. My noble friend also mentioned security, which I hope I have touched upon, and the need for guidelines for judges. There are sentencing guidelines. I emphasise that the decision of the trial judge to allow or not to allow broadcasting will not be appealable.

My noble friend raised two points on the extension of Court of Appeal broadcasting to family cases. Parties may object, but that objection will be a consideration, not a determination of any application. He raised the question of whether litigants might be put off by the prospect of broadcasting. That is something that we have considered and we do not consider that that would be a material issue. Of course, any litigant’s case that would go to the Court of Appeal would be heard in public, and we do not believe that the element of broadcasting that is being extended here will give rise to any real difficulty.

The noble Lord, Lord Foulkes of Cumnock, pointed to the experience in Scotland, which has been instructive. He asked whether we would consider further broadcast options. I have to emphasise that that is not our present intention. I note that the noble Lord, Lord Marks, would like to see us go much further so far as remote hearings are concerned. That is not something that we intend to pursue at the moment.

I will take up one or two further points about vulnerable persons. This is clearly a material consideration. Witnesses’ and victims’ concerns have to be taken into account in approaching this matter, and we have sought to ensure that there are appropriate safeguards in place for the fairly limited steps we are taking in these two orders.

I hope that that largely covers the points that were raised by noble Lords and noble and learned Lords in the debate. I hope noble Lords will agree that these instruments are an important, necessary and, I would say, sensible and proportionate next step in ensuring that our courts are open and transparent. I observe that we are learning from the Covid experience of carrying on court processes remotely while ensuring that there is public access to those processes. We will continue to learn from the steps that are being taken. In the circumstances, I commend these draft instruments to the House.

Motion agreed.