Televising the appeal courts of England and Wales will increase transparency and improve public understanding of the courts, the lord chief justice said in a lecture this week. But it’s a slippery slope, according to Helena Kennedy QC. Interviewed on the Radio 4 programme Law in Action, Baroness Kennedy of the Shaws told me that the television was a “voracious beast with an appetite that is never fully fed”. Its producers wanted “the most salacious, sensational, celebrity-ridden cases that they could possibly get their hands on”.
Since 1925, it has been an offence to take photographs of judges, jurors, parties or witnesses in the courts of England and Wales. They can’t even be photographed in the precincts of the building in which the court is held, although this law has been broken on a daily basis ever since security cameras were first installed. It has never applied in Scotland, where criminal cases were first televised 19 years ago.
But that innovation was followed within a few months by the trial in Los Angeles of the American football star OJ Simpson. Though Simpson was acquitted of murdering his ex-wife and a friend of hers, the case was televised worldwide and set back the cause of broadcasting the courts of England and Wales by at least a decade. Now, all that is about to change.
Live broadcasting from the court of appeal is expected to start next Monday, provided the necessary legislation is brought into effect as intended. In fact, the broadcasts will be not quite live: the system has a built-in delay of 70 seconds. That gives everyone involved just over a minute to work out that something should not be heard or seen in public before the recording leaves the courtroom.
The problem could be mild profanity: the sort of swear words that some newspapers are now willing to print but most television companies still prefer to avoid broadcasting, at least during daytime. Bad language is often read out in court, though no attempt is made to capture the user’s accent.
Somebody might quote information that is protected by a court order or is unreportable for some other reason. Perhaps the cameras might catch a glimpse of someone whose face must not be included in court broadcasts, such as the appellant or a witness. Apart from a wide-shot of the courtroom, viewers should see only the lawyer or judge who is speaking at the time – though evidence given by any witnesses may be reported so long as their faces are not shown.
Fortunately for the judges, they are not expected to keep their fingers on the pause button. The responsibility for controlling the cameras and switching them off when necessary has been given to a single video-journalist, Matt Nicholls – although he will, of course, obey any orders from the court. Nicholls works jointly for the four newsgathering organisations that are funding the project: Sky News, ITN, BBC and the Press Association news agency. PA will be providing video clips for use on newspaper websites, such as this one. Only he or a stand-in can take pictures in court.
Nicholls will work from a control desk that has been designed by a team from Sky News. Custom-made to blend in with the Victorian wooden benches, it looks like a tea-trolley and is almost as unobtrusive as the small grey cameras perched on the bookshelves.
The four newsgatherers’ resources do not stretch to covering more than one court at a time and they will have to decide among themselves which court that should be. Subject to the judges’ approval, Nicholls can wheel his trolley into any of around 15 courtrooms in which the court of appeal may sit. The cameras, some of which are operated completely wirelessly, can easily be moved from court to court. Only five of the courtrooms are currently wired for “as-live” broadcasts but recordings made in the other courtrooms can be on the air within a matter of minutes.
Delivering the Birkenhead lecture on Monday night, Lord Thomas of Cwmgiedd, the new lord chief justice of England and Wales, said that he and his fellow judges welcomed court broadcasting. “We believe it will help assist understanding of the way in which the courts work and enable the public to see the way justice is delivered in an even more open and transparent manner than at present,” Thomas said in the version of his remarks released for publication.
Speaking at Gray’s Inn, he added: “I therefore very much look forward next week to a wider audience than I have had the pleasure of addressing tonight; and the pleasure of being seen whilst doing it.”
For the time being, the only cases to be broadcast will be civil or criminal appeals. Appeals against conviction will not be shown while there is any possibility of a retrial.
Some of the most newsworthy cases are likely to be applications by the attorney general to increase what he considers to be unduly lenient sentences. There have been several such high-profile cases recently involving sex attacks on children. But cases of this sort are unlikely to be shown live on the continuous news channels. They tend to include details that broadcasters believe their audiences would prefer not to hear.
If the project proves successful, ministers have said they would be willing to sentencing remarks to be broadcast following trials in the crown court. Kennedy sees this not so much as a slippery slope as a sheer drop.
Television companies want more than anything to get into the criminal courts, she told me. “They want to be able to show that which is salacious, that which is sensational… they want to give a sense of the drama of the courtroom.”
But this isn’t drama, I reminded her. This is something that any member of the public can see by dropping in at any criminal court.
People don’t watch television in the way we see real life, she responded. In court, a member of the public can take in much more than a television viewer. And court proceedings would be edited for television.
Isn’t that what any journalist would do? The difference, she explained, was that people who watch trials on television imagine they have seen the trial itself. Television companies would be interested only in the key moments and it would be a “distortion of reality”.
Kennedy makes a persuasive case. But there is little chance that broadcasters will ever be allowed to televise criminal trials before the verdict has been delivered. Judges and ministers are well aware of the risks.
It is almost 25 years since a committee of barristers chaired by Jonathan Caplan QC recommended televising the courts. In 1992, my request to televise the law lords proved unsuccessful because the BBC rightly refused to surrender editorial control to the judges.
Almost 20 years ago, I wrote that “televising of hearings at the court of appeal is now on the long-term agenda in England”. I predicted: “sooner or later it will happen and the public will at last begin to see how justice is dispensed in its name”.
That time has now come.
• This article was amended on 24 October 2013. We originally stated that ITV was one of the organisations funding the project. In fact, it is ITN