Television and the Courts: The Current Position in England and Wales
Taking a photograph inside of a court has been strictly prohibited since 1925 in England and Wales. This is pursuant to section 41 of the Criminal Justice Act 1925. This piece of legislation was most likely in response to the publication of photographs taken at the trials of notorious criminals such as Hawley Harvey Crippen, George Joseph Smith and Fredrick Seddon. There has been little trouble applying this section to the filming of court proceedings (R v Loveridge, Lee and Loveridge (2001)). This piece of legislation still subsists today with carve outs. One carve out is achieved by removing the Supreme Court from the definition of “court” under the section. Whilst the second carve out is under section 41(1A) of the 1925 Act, which states that the prohibition is subject to the power to provide for exceptions given to the Lord Chancellor (with concurrence of the Lord Chief Justice) under section 32 of the Crime and Courts Act 2013.
Similarly section 9 of the Contempt of Court Act 1981 prohibits the broadcasting of sound recordings that have been made in courts. Nonetheless, sound equipment can still be used with leave of the court. Ultimately, however, it is contempt of court to broadcast the resulting recording. This is subject to two similar carve outs to those which apply to section 41 of the Criminal Justice Act 1925 (above). The first being that sound recordings made in the Supreme Court can be broadcast with leave of the court, and secondly section 32 of the Crime and Courts Act 2013 gives the Lord Chancellor power to provide for exceptions in relation to this section also.
In short, audio-visual recordings are permitted in the Supreme Court (with leave of that court) and the Lord Chancellor has the power to provide for circumstances under which other courts can be similarly recorded and broadcast. This means that there is no need for any more primary legislation to permit the filming of certain trials in England and Wales. To date, however, the Lord Chancellor’s permission has only been extended to the Court of Appeal under certain circumstances. Yet this has been cited as a “first step,” with the suggestion that the government wishes to extend court filming to the Crown Court where criminal proceedings are conducted. So England and Wales may well be looking to the Pistorius trial to see how the media handle the televising of a high profile criminal trial.
Is This Trial Not A “Repeat”?
There has been a history of cameras in Scottish Courts. where television cameras were first given access in 1994. Scotland has never had legislation restricting television cameras in their courtrooms. Instead, permission to televise court proceedings has largely followed a practice direction given by Lord Hope in 1992. This allowed broadcasting authorities to apply for permission to televise proceedings in the Court of Session and the High Court of Justiciary. It has been reported that on averagethree to four requests are made each year to film inside Scottish Courts.
To date, recordings made in Scottish courts have been heavily edited or vetted prior to broadcast, and the broadcasts have taken place at a later date after proceedings have finished. One of the most recent examples of this was the re-trial of Nat Fraser in Scotland’s High Court in 2013. This was one of Scotland’s most high profile murder trials. The trial was filmed from start to finish for a period of six weeks. However the trial was distilled down to two hours of footage. This edited footage was aired by Channel 4 in a program entitled “The Murder Trial.” The program seemed to give weight to the proposition that cameras should be allowed in courtrooms. A Consultation Paper issued by the Judicial Office for Scotland suggests that the six remotely controlled cameras that were used were unobtrusive and “simply merged with all the other equipment with which a modern court is familiar.” Only one witness raised an issue with the filming but later withdrew any objection, and the administration of justice was not affected in anyway. Commentators have also noted how it gave a glimpse of the banality and everyday nature of the proceedings. However, concerns were still raised over how the program was edited as Nat Fraser was shown to have “smirked” at a less than opportune moment.
So why is the Pistorius trial relevant to the debate on allowing cameras in court? Surely we have practised it enough in our neighbouring jurisdiction to decide whether it is a good idea, and on how to go about doing it? The types of lessons that can be taken from the Pistorius trial are based on the form of broadcast involved. The trial has displayed the capabilities and demands of our modern media landscape. The media’s approach to the Pistorius trial has been to make it as “live” as possible. This can be contrasted with the Scottish approach. Peter Lockhart of the Law Society of Scotland’s Criminal Law Committee has said;
We’ve done the documentary where there’s much more control and time for editing. But I think we’re now moving towards – if it’s a high-profile trial – the media wanting to cover it there and then. Saying we can’t do it is a non-starter. We have to accept technology has moved on.
When they allowed television cameras into the Court of Appeal, the government made it clear in their Impact Assessment on Court Broadcasting that their expectation was that the broadcasting of the footage would be close to “live” in some cases. Suggesting that “live” coverage has more currency and utility than the documentary broadcasts that have been seen in Scotland. It is, therefore, more likely to be the form of broadcast that will be used in the future. Perhaps this is the Court of Appeal learning from the Supreme Court, who moved from simply making recordings available to the broadcast media, to providing live streaming of the court in 2011.
Media and the Pistorius Trial
The Pistorius trial has brought about a first for South Africa, a dedicated twenty-four hour channel for a criminal trial (The Oscar Pistorius Trial- A Carte Blanche Channel). The media services provider GlobeCast provides a live feed from the court room, andsupplies this feed to the dedicated channel. They also distribute the live feed to other global media organisations, including the BBC, Reuters, Associated Press, CNN, Sky, ITN and Channel 7 Australia; as well as other media organisations in South Africa (SABC and eNCA). It is in every respect a “live” event, or “gavel-to-gavel.” It will, therefore, provide an interesting insight into the best way to conduct live media coverage of a criminal trial, rather than edited coverage.
In South Africa, freedom of expression is constitutionally protected (Section 16 of the SA Constitution). However, as is the case under English law, this freedom has to be balanced with other competing rights. It is not a near absolute freedom as is the case in the United States. Another shared principle between South Africa and England is that of sub judice, i.e. comments cannot be made by the media that are likely to prejudice proceedings “under judgment.” Therefore the protection afforded to freedom of expression in South Africa is not entirely removed from that which pertains in England and Wales. Although the media will only be in contempt of court in South Africa if there is a real risk of demonstrable and substantial prejudice to the administration of justice.
The Lessons
There are a few aspects of the media coverage in the Pistorius case which will be of particular interest to England and Wales. These are;
- The Witnesses: In England and Wales witnesses may be called to the Court of Appeal to give fresh evidence. However, this is a rarity rather than a common occurrence. Even so, under section 6 of the Court of Appeal (Recording and Broadcasting) Order 2013 recordings in the Court of Appeal can only be of submissions made by legal representatives, exchanges between legal representatives and the court, and the court giving judgment. This suggests that witnesses will not be recorded when giving evidence. It could also be inferred that defendants and victims will similarly not be filmed in court. If, however, the live streaming from the Court of Appeal is in fact a “first step” in the rolling out of cameras in this jurisdiction, then the media might start to fight for coverage of witnesses. Helena Kennedy warns that the media is; “a voracious beast that will keep seeking bloodier meat […] This is not a slippery slope; it is a long game.” The companies want into the criminal courts because that is where the drama is.If live streaming of criminal trials, including witness testimony, is inevitable in England and Wales, then the Pistorious trial may be scrutinised to see how it handles its witnesses. The well rehearsed argument against filming witnesses in court is that many may not come forward because they fear the media spotlight, whilst others may be more guarded when giving evidence. This would have a negative impact on the proper administration of justice. Another argument, which is particularly relevant to “gavel-to-gavel” coverage, is that witnesses may watch other witnesses give evidence live and then alter their testimony based on what they have seen. After all, witnesses are not allowed to attend court when other witnesses give evidence for this very reason. So how has the media coverage of the Pistorius trial fared in its approach to witnesses?
The South African court has sought to protect witnesses from media exposure to some extent in the Pistorius trial. State lay witnesses can only be filmed and broadcast if they consent to it. In Multichoice (Pty) Ltd and others v The National Prosecuting Authority and another ([2014] ZAGPPHC 37) (the case where the media sought access to the Pistorius trial), Mlambo JP, was “persuaded that there [was] merit in [Pistorius’] fears and that of his witnesses that they may be disabled somewhat in giving evidence.” The knowledge and awareness of camera presence was deemed inhibitory.
In a rather remarkable judgment, Mlambo JP decided that audio coverage did not carry the same “inhibitory or intrusive potential as the audio-visual form of coverage.” Therefore audio was taken of Pistorius and lay witnesses when they testified. One reason for this decision was the fact that the audio format was less amenable to being used to misrepresent the testimony as it was given. Whether this is a credible argument has yet to be seen.
The media proved that it was not infallible when it accidentally showed a picture of Michelle Burger, Pistorius’ neighbour, when she was giving her testimony in court.
There has also been some concerns that “gavel-to-gavel” coverage has had a negative effect on witness testimony. Important testimony from Darren Fresco, an old friend of Pistorius, was cast into doubt when he admitted to following the trial on Twitter.
- The Lawyers: The concern here can be summed up in one word “grandstanding.” Put another way; ‘playing up to the cameras.’ “Grandstanding” is a term that has been used to describe the performance of OJ Simpson’s lawyers in his trial (most notably Johnnie Cochran). However, in Scotland the advocates in “The Murder Trial” were praised for how they conducted themselves in front of the cameras. As mentioned above, legal representatives can be filmed in the Court of Appeal (which is also true for proceedings filmed in the Supreme Court). Therefore “grandstanding” could be an issue in these courts. To date, however, there has been no suggestion that it has in fact taken place. Nonetheless, “grandstanding” might have to be scrutinised when considering whether to roll out cameras into the more ‘watchable’ criminal trials. Has there been any allegations of “grandstanding” at the Pistorius trial? In comparing the Pistorius trial to the OJ Simpson trial, John Hiscock wrote in the Telegraph;
Pistorius’s defence lawyer, Barry Roux, is an energetic rottweiler prone to bullying prosecution witnesses. He reduced one to tears and another hyperventilated as soon as she came into court. In a Johnnie Cochran-style moment, he put a state forensic witness through a gruelling workout, telling him to swing a cricket bat again and again, on his knees, standing up and bending.
State prosecutor, Gerrie Nel, has received a lot of attention for his aggressive approach in cross-examining Pistorius. He has earned the nickname “the pitbull” for his fierce prosecuting style. However, a former National Prosecuting Authority head has been quoted as saying that Nel is simply doing what he always does “[h]e is not playing to TV or the audience.” In fact, both lawyers have been described elsewhere as “reluctant celebrities,” preferring to shy away from too much publicity. So although there is some suggestion of “grandstanding,” it seems that the lawyers in the Pistorius case are just doing what they would usually do at any trial of this type.
- Judge and Jury: In South Africa, jury trials were abolished in 1969. Therefore, there is no chance of juries being affected by saturated media coverage. In England and Wales, cases before the Court of Appeal and Supreme Court are similarly not held before a jury. One of the main concerns relating to cameras in court involves how heightened media attention could affect jury deliberations. The media rely heavily on eye catching headlines when they report on the days proceedings. Richard Gabriel has commented on how reporters usually talk about news events as “shocking” or containing “disturbing new revelations,”which can then inform a potential juror on how they should feel about the proceedings. Furthermore, the media often treat the proceedings like a “sporting event.” An event where the public are asked to pick a side. This has been seen with the Pistorius trial, where the bookmakers PaddyPower offered a bet on the outcome of the trial. Richard Gabriel has observed that “[i]n most high-publicity cases, initial press is typically pro-prosecution, and the public tends to ignore the word “alleged” in front of the defendant’s charge.” This inevitably has a profound effect on the jury. However, this is not a real concern where there is no jury. Yet how can the public be certain that judges could not similarly be affected by such media tactics. As yet, there has been no suggestion that media coverage has had any influence on how Judge Masipa has conducted the trial. Nonetheless the argument needs to be considered.
- Open Justice: This principle is used endlessly to promote the importance of allowing television cameras in the courtroom. In McCarton Turkington Breen (a firm) v Times Newspapers Ltd[2001] 2 AC 277 it was noted that;
In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of their society… It is very largely through the media… that they will be so alerted and informed.
In the recent case of PNM v Times Newspapers Ltd [2013] EWHC 3177 (QB) Mr Justice Tugendhat made the observation that;
A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.
The benefit of “gavel-to-gavel” reporting is that media presence acts more like an extension of the public gallery, rather than what Mlambo JP described in the Pistorius case as “summarised versions” which were “second hand” and “liable to be inaccurate” as they depend on the understanding and views of the journalist covering the proceedings.
- The Media and Sensationalism: Mlambo JP did have some concerns for what he said was “so-called trial by media inclinations,” which he believed were not in the interest of justice and were likely to undermine court proceedings. Judge Masipa, the presiding judge of the Pistorius murder trial, has warned that the court was not “an entertainment place… [or] a picnic nest.” This comment followed from reports that those watching the live link in a nearby courtroom were acting in an unruly manner. Yet it could be argued that the Pistorius trial has, in fact, turned into a ‘media circus’ with very little focus on what the open justice principle actually imbues. The media is not seeking to comment on whether the trial is being properly conducted, but rather they focus their attention on the guilt or actions of the accused. This is where proceedings of this kind turn into trial by media, rather than a reflection of open justice. Of course by streaming proceedings live there is, arguably, less potential for editing and comment by the media. After all, the public can watch it as it happens. However, this is not how the general public consume legal proceedings through the media, not even the most high profile ones. A US Federal Pilot Scheme found that “snippets” of footage from courts were used more often to illustrate what a reporter was narrating, and reports focused mainly on the facts of the case rather than the legal process involved. This raises the risk of unbalanced reporting and media sensationalism. Aspects of the Pistorius trial have been treated with triviality and sensationalism. For example; one website has documented ten of the “top Barry Roux parodies,” whilst the trial itself has spawned a meme culture in its own right. One particular sensational news story alleged that Pistorius had taken acting lessons in the lead up to his trial, which was later denied by Pistorius. This kind of treatment of a grave criminal trial has significant implications for the integrity of the judicial proceedings.
- Education and Public Interest Debates: Nonetheless, widespread media coverage can have educational value. Mlambo JP mentioned this when he decided to permit television camera access to the Pistorius trial. He said that many members of South African society (particularly the poorer members) had found it difficult to access the justice system. By allowing cameras into the courtroom these people will have a “first-hand account of the proceedings involving a local and international icon.” It would also clear up the perception that the rich and famous have been treated “with kid gloves” by the South African courts. Anton Harber of the Freedom of Expresion Institute in South Africa has observed that South Africans are better informed now about the workings of the court. Furthermore, the New York Times has reported on how the “case has highlighted the wide gap between celebrity justice and the treatment meted out to ordinary South Africans.” Therefore it has added to the debate envisaged by Mlambo JP, but perhaps not in the way the court had hoped. Nevertheless, many debates that could be taking place around the trial have been dismissed in favour of more sensational news stories. As Anton Harber observed;
What we have not seen much of yet in the South African media is an examination of some of the issues which arise out of the trial. These include the gun culture of much of South Africa’s elite which makes the carrying and firing of weaponry a routine part of everyday life; the high levels of gender-based violence, particularly between intimate partners; and the fear of faceless intruders which runs through a society with high levels of violent crime.
Conclusion
The media treatment of the Pistorius trial seems to be yet another example of the industry confusing what interests the public with the public interest. This is an unfortunate result, since live streaming of court proceedings lends itself well to the open justice principle. With a live stream, one could argue, it is almost as if the public was in fact watching from the public gallery. However, as the Pistorius trial has shown, such 24 hour coverage still gives way to editorial narration, “analysis” and sensationalism which can still have serious implications for witnesses, juries and victims’ privacy.
Therefore, the Pistorius trial is unlikely to lend much weight to the argument for broadcasting criminal trials in the Crown Court of England and Wales. Under the Court of Appeal (Recording and Broadcasting) Order 2013, criminal appeals or applications for permission to appeal criminal convictions before the Court of Appeal can only be broadcast with the permission of the court. All broadcasts of Court of Appeal proceedings have to comply with any reporting restrictions that have been applied, and reports or presentations of proceedings must be fair and accurate. Furthermore, broadcasts must not be used for certain purposes; including use in light entertainment programming and satire. It can be inferred from this Order that the legislature is averse to giving the media an opportunity to sensationalise and satirise high-profile trials, this could be why they approach the issue of allowing cameras in courts with so much caution. As mentioned above, the Court of Appeal (Recording and Broadcasting) Order 2013 does not permit the filming of victims, witnesses or the accused. This is most likely due to the inhibitory and intrusive nature of this form of media reporting. Although the Supreme Court and the Court of Appeal are now open to television camera scrutiny, the truth is it is still a highly regulated aspect of the media industry. The Pistorius trial does little to discredit this kind of regulation, and is unlikely to be the trial that will lend itself to a movement for further reform.
This post originally appeared on the Mediabelf blog and is reproduced with permission and thanks.