17.11.03

Live Justice - Cameras in Court

As The Guardian reports today, senior judges have agreed to a pilot scheme to examine the issues concerning cameras in the court room.

The Hutton inquiry paved the way for more open justice with its online reports and resources as well as allowing the televising of opening and closing statements. It did however fall short of allowing the entire proceedings to be televised.

Following Hutton's online lead, Sky News is breaking new ground in the current Soham murder trial with its live ticker feed of evidence from the trial.

So why are we still having to put up with artists impressions , dramatic reconstructions or 3-d graphics?

Well, the courts are not yet comfortable with the idea of being televised. The hype surrounding trials in the United States such as that of OJ Simpson has made sceptics more reluctant to let the cameras roll. There is a fear that cameras might lead overacting in the courtroom or, for the less confident or publicity keen, intimidation.

But surely it is time to embrace new technology and let the cameras in.

Reference will often be made to what’s called the ‘open justice’ principle that demands that justice be seen to be done. This dates back to ancient times and the notion that the public should see the punishment of those they condemned – be it stoning or crucifixion or the stocks or guillotine in medieval times to jury trial or death by lethal injection nowadays.

So why not have cameras in court? – the majority of people get their news from television so it would make sense to be able to see proceedings rather than have abbreviated reports in newspapers or the spectacle of dramatic reconstructions – forget the drama and the added expense of producing it (with the exception of programmes like crime watch which serves a serious purpose and where – thankfully, there is no opportunity to broadcast the real thing in the first instance) why not just televise proceedings – after all, there is so much live news coverage. But for some reason this seems to pose problems for both the courts and the broadcasters. We watched in horror as live pictures of the twin towers collapsing were beamed across the world. We are shown pictures of live guided missile attacks on Iraq and hear reporters tell us of the fireballs in the night sky behind them – omitting to tell or show the horrific consequences that such fireball has certainly killed the innocent along with the guilty. Yet when it comes to sticking a camera in a courtroom people suddenly seem aghast – that would be too close for comfort. Surely open justice would be best served by live broadcast? People might then be less likely to lie and that crucial testimony – both verbal and in terms of body language – would be available for all to see. There could then be no bias in reporting as there would be little if no opportunity to edit a live broadcast. By not allowing cameras in court are we creating edited rather than open justice as far as a right to see and hear proceedings is concerned.

However there have been previous attempts to prise open the doors of the courtroom – albeit through the medium of tribunals. Ironically it was American broadcaster CNN that made significant progress in it’s application to televise the Shipman Enquiry into the mass murdering activities of the doctor Harold Shipman. In making its application CNN relied on the little used provision of the 1921 Tribunals of Enquiry (Evidence) Act that does not prohibit photography. CNN claimed that the 1921 Act along with principles of open justice and Article 10 ECHR gave them a right to broadcast proceedings. Ruling on the matter Dame Janet Smith was reluctant to go as far as acknowledging that broadcasters had any right to televise inquiries but she did allow access based on televising testimony of witnesses who didn’t object. She thus allowed cameras access but imposed a protocol that inserted a 60 minute delay between the recording and actual broadcast. This allowed time if the need arose for a judicial or similar edit to be made.

This provided a significant breakthrough and has was cited in defence of a similar application made before Lord Hutton in the Inquiry into the circumstances surrounding the death of weapons expert David Kelly.

Lord Hutton acknowledged the request and the principle but given the sensitive nature of the case and in particular the suggestion that media pressure had contributed to the tragedy, he declined the request for live broadcast. Lord Hutton revisited the ruling made by Dame Janet Smith and having examined the arguments put to him by counsel, decided to adopt Dame Janet Smith’s reasoning.

In doing so Lord Hutton sought to clarify the application of Article 6 (right to a fair trial) and Article 10 ECHR as they may apply to media.

This point was also raised in the trial of the Lockerbie bomber. Lords Kirkwood and Marnoch stated that Art.10 had no application to information which was NOT already available to petitioners and which the person in possession or control did not want to impart.

In the Shipman trial Dame Janet Smith made the point that Art.10 says nothing about information that is not yet available. In that sense there is a difference between freedom of expression and right of access to information.

So Art. 10 is about Freedom of Expression rather than access to the information that the media may wish to express. Such rights as are available in relation to access to public proceedings are described in Art. 6 which allows access to trials but gives courts the scope to exclude media or public in the interests of morals, public order or national security.

Having moved to online justice with Hutton and through Sky's current feed the next logical step has to be the breakthrough to live justice. So let the cameras roll.

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