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Courtroom drama?

8 September 2011 Please leave a comment below

Judges on camera1 e1315489759172 150x150 Courtroom drama?By Felicity Gerry

So, David Cameron and Ken Clark want televised court cases to give greater transparency and enable the public to understand the process. The suggestion has received some support from the Bar Council. Whilst bowing to the inevitable, I have only three words in response: Mock the Week. I can see that my whole world is about to change and it is hard to see that it will be for the better. Will TV in court teach the brilliance of our advocates? Will it expose shortcomings in a prosecution or reveal unmeritorious defendants? Will it bore everyone to death and leave us to the mercy of commentators anyway, handing them along the way a great deal more material at our expense? Rumpole was really only a star because he was fictional. If Hilda had been a barrister she would have gone shopping.

Whether the public will come to understand the process watching court TV or whether the process will change in consequence, only time and TV scheduling will tell. Ken Clark apparently said that he could see “no good reason” why court proceedings should not be televised and the Lord Chief Justice has been in favour for years. The problem is that there are courts and there are courts. What might work for the Supreme Court and the Court of Appeal cannot work for Crown Court trials and is unlikely to work for sentencing hearings without significant regulation. Whatever the decision of Parliament on this issue, it will have to be for judges to decide which cases should be filmed. It’s hard enough getting a rape victim to court without telling her she’ll be on national TV and the detail of the case would have to be censored at the sentencing hearing to protect the identity of such an individual.

In the US, state courts allow cameras but federal courts do not (subject to a pilot scheme) so we may have to look to them for guidance, which sticks in the craw a bit after the debacle of the O.J. Simpson murder trial.

Do the politicians really know what they are starting? Do they watch prime time TV? On the now infamous Woman’s Hour programme where David Cameron chose boxer shorts over pants seemingly winning him an army of middle class voters, when asked “EastEnders or Corrie” he answered “Spooks”. I cannot imagine that the Justice Secretary sits down on a regular basis to “I’m a Celebrity”, “X Factor” or “Hollyoaks” and without Sally Bercow, may not have heard of BB.

Getting down with the general public is not an easy business. Striking up the cause for televised courts suggests that they would at least expect some viewing figures (ironically apparently regardless of the expense of installing all this technology at a time when the funding of the system itself is being cut). Rachel Wilkes got it right in March 2011 writing on the Law Law Land blog about the decision by Los Angeles Superior Court Judge Michael Pastor to allow cameras in the courtroom for the involuntary manslaughter trial of Michael Jackson’s former doctor, Conrad Murray:  “Judge Judy and The Peoples Court — brace yourselves, people — those ‘courts’ aren’t really courts at all”.

The reality is that The Supreme Court and the Court of Appeal can accommodate the cameras and allow the public to see important judgments. William Harbage QC and Catarina Sjölin from my chambers both appeared some years ago in R v Speechley, the first televised proceedings in the Court of Appeal. They take the view that the technology exists, the cameras are small and unobtrusive and advocates forget about them very quickly.

However attractive their submissions, it is unlikely that such hearings would attract many more viewers than the Lords debates (one man and his dog) and in the Court of Appeal the only appeals which will inspire the general public will be those where there is already profound media interest. My bet is that it will still be the commentary that is aired on the news programmes rather than the full judgements and reasons and the commentary will start to include the personnel.

The general view seems to be that cameras will enable Jo public to see how the bad people are dealt with. However, interestingly US lawyers have recognised that a defendant may have a vested interest in the free speech and due process entitlements in a televised trial. Tim Moynahan, an attorney in Connecticut who represented the Commissioner of transportation in the first televised trial in Connecticut history writes: “Arguably, the right to a public trial is to be interpreted within the context of the available means of communication at any given point in time.” It follows that we must bow to the inevitable and see how it can be achieved fairly for all sides.

As Peter Lodder QC, Chairman of the Bar Council also points out; proper court reporting is a good thing, an essential tool for communicating court proceedings. Of course, proper court reporting has recently played second fiddle to the unbalanced insults and editing emanating from the pens of tabloid journalists and the consequences are readily available in uninformed online postings. He cautiously welcomed the idea of televising proceedings but drew the line at Crown Court trials. Mr Moynahan agrees, “Those of us who are trial lawyers are well aware of the pros and cons of allowing trials to be televised:  The overriding concerns, with or without cameras, is that the dignity of the proceedings be maintained. A carnival like atmosphere must be forbidden whether on film or without spectators. Such principles and considerations and others more finely tuned are obvious”.

For most experienced counsel in the UK, “playing to the cameras” would be an anathema as we are trained to give primacy to the case. However, there will always be cases that attract press interest and always characters that the press will seek to follow. It will be impossible to prevent editing and the use of sound bites. No pressure there then. Trials involving a celebrity, or sex, or perverted violence will be watched and the result will be inevitable change. Perhaps in the end it is the trial of Michael Jackson’s doctor that will demonstrate whether we have moved on from the circus that was O.J. Simpson to something more suitable and fair. After all, maintaining public trust and confidence in the judicial system is just as important as the system itself. Whether or not this is possible with cameras on board remains to be seen. Imagine the tweets either side of a sensational sentencing hearing and you can already see how difficult an exercise this could be.

In the US, Ms Wilkes wrote of the litany of factors which have to be considered in televising a trial; the importance of promoting public access to the judicial system; the parties’ support of or opposition to the request; privacy rights of participants; the maintenance of the orderly conduct of the proceeding together with rules prohibiting filming or photographing proceedings held in chambers, proceedings closed to the public, jurors or spectators (apparently invoked when Brad Pitt was called for jury service).

In the end, the only information that the public have at the moment comes from programmes that comment on the content. I can already hear Dara O’Briain and friends sharpening their comedy pencils for the enormous amount of material about to be handed to them on a plate if Crown Court trials are added to the list starting with, “Did you hear about that barrister in Cardiff last week …” However, even barristers need to move with the times, and showing people the important things we do is somehow better than Jedward. So I had better sharpen my sound bites and pop out to buy a new lipstick.

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