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The Lex Factor

I adopt the same approach to legal blogging as I do with parties: arrive fashionably late or simply not show up at all. Where the news that the ban on filming in criminal courts is to be lifted is concerned, I’ve opted for the former course. Now, I’ll admit that when I read Allegra Stratton’s piece in the Guardian, I felt relatively unmoved. I wasn’t ‘bovvered’. The plan, according to Kenneth Clarke is as follows:

Broadcasting will initially be allowed from the court of appeal, and government will look to expand to the crown court later. All changes will be worked out in close consultation with the judiciary.

The rationale:

The government and judiciary are determined to improve transparency and public understanding of courts through allowing court broadcasting. We believe television has a role in increasing public confidence in the justice system.

Kier Starmer, the DPP, added a bit of flesh to the proposal, especially where proceedings in the crown court are concerned. “In principle”, says Starmer, “I would support a proposal that judgments, judges’ closing remarks and judicial sentencing in criminal cases could be televised.” The reception of evidence from complainants and witnesses is to be strictly off limits, however. Quite right too.

All seems fair enough. No one could sensibly argue that ‘improved transparency’ in the criminal justice system is, of itself, a bad thing. But is more transparency the same as improved transparency? Well, the blawgosphere is divided, but there are two posts at opposite ends of the spectrum of opinion that are worth taking a look at in particular. The first is a pithy, ever so sligthly tongue-in-cheek (surprise, surprise) piece by CharonQC: Law Review: “Ave, Camcorderdirector, morituri te salutant” … Prime Minister calls for sentencing to be televised in Courts. The second is Louise Restell’s rejoinder in The Lawyer.

Charon opens…

At first assessment it seems to be a sensible idea in part.  It will give the public a chance to see how our criminal justice system works and is all very worthy.  Many judges and experienced practitioners support the idea.


HOWEVER… this being Britain and the attention span for detail  (and *fact*) being limited for most of us in busy 21st century online overload lives, I suspect that it will be a short lived wonder. The TV companies and tabloids will want corrupt MP’s, ‘paedos’ and the flotsam and jetsam of a Hogarthian nightmare on trial.

Restell is having none of it…

I think he [CharonQC] is assuming the public is entirely made up of celebrity-hungry, voyeuristic tabloid readers. Even if true, these “sensational” trials are, very often, the ones in the public interest.

For my own part, on the one hand, I doubt we’re intended to read too much into Charon’s hyperbole. On the other hand, Restell’s point about the public interest carries some force. The sensational cases (Restell cites the cases of Baby Peter, Sarah Payne or Rachel Nickell as examples) are in the public interest. But aren’t all criminal cases?

Restell is also guilty of a bit of exaggeration:

Beyond the sometimes crazy US examples there are plenty elsewhere in the world that make our system of keeping everything behind closed doors rather archaic, as if you lot in wigs and gowns have something to hide.

“Behind closed doors”? Have I missed something? I was under the impression that the crown courts were always open to members of the public. Apart from those cases sitting in camera. And you can’t have a camera in a court that’s sitting in camera. There’s a little bit in each court called the public gallery. They even have little tea shops run by benevolent old women with mini-multipacks of Jammy Dodgers.

I was even more baffled when I got to the paragraph that reads:

The courts, after all, are public [make your mind up — what happened to the “closed doors”?!]. It is rather absurd that we aren’t allowed to broadcast at least some of what goes on. Instead, unless we have time to kill [!] and can attend the court in person, we have to rely on the interpretations of the media and those really rather quaint drawings. They don’t do much to illuminate or demystify the court process or make the judiciary in any way accountable. That’s quite patronising – it’s my society and I want to see how it works, thank you. [Emphasis mine]

What strikes me as absurd is the notion that transparency rests on being able to watch something on the telly! Surely, anyone that interested, that impassioned by open justice might, just for a moment, cogitate taking a day off work, leaving the house and actually going to the court itself. Sure, it’s easier to sit on the sofa in front of the telly with a cup of tea, scratching your behind and playing with your phone. But if you’re that keen to engage in your society, surely you’d want to be there in person to see the worried faces of the families (complainant and defendant), to see and hear the evidence, to watch the juror second from the left on the back row pick his nose. Because that’s the point: the criminal courts are about real life, real people, real fear, real mistakes, real cruelty. The criminal courts are not there for spectacle, Hogarthian or otherwise.

Every aspect of the criminal process is about context, particularly sentencing. Anyone who has sat in court and listened to a case from opening to sentence will know how fluid things really are. By the time you’ve heard the Crown close, you might lay money on the defendant being bang to rights, only for your view to change as the defence case develops. I’m not dead against cameras in court, it just smacks of being a bit of a cop-out, as if showing fragments necessarily improves the situation. Somehow more is automatically to be equated with better.

Court’s are strange places. There is something civilising about being in them. I remember as a law student feeling petrified of going through security, finding a court with something interesting going on and pushing the door open as quietly as possible. That civilising ritual, the palpable gravity of the court environment, is an important part of the experience. It makes you sit down, shut up and listen.

If you’re so keen to see how your society works, get out there and engage with it. All of it. Sometimes things just require a bit of effort. If you want transparency, you’ve got it. Switch your telly off, get off your arse and go to court. And have a Jammy Dodger while you’re at it.

Thanks to Paul Magrath for the title of this post.

Filed under: Courts, Criminal law, Crown Courts, Evidence, Open Justice, Shorter pieces

About the Author

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I am a law reporter employed by the Incorporated Council of Law Reporting for England & Wales. I write law reports for the Official Law Reports, the Weekly Law Reports and the Public and Third Sector Reports. I also write on a freelance basis for the Road Traffic Reports and the Times Reports.


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