This week has seen news that the Crown Court is to begin to live stream sentencing remarks. Hot on the heels of that announcement came reports that the Court of Appeal will soon begin to live stream appeals in some family cases. There has been quite a lot of coverage about these reforms (mostly on the criminal side), not all of it quite right, and some people have expressed concern in comments on our tweets and posts and on social media more generally – both about the impact on vulnerable people and whether it will actually achieve the desired aim of more transparency and accountability. We think that there are assumptions and worries that the reforms are more radical and sweeping than they actually are.
Here is what we know, followed by a sample of comment so far.
First of all, here is the official announcement from yesterday : Cameras to broadcast from the Crown Court for the first time (the sharper ones will spot this announcement from the Ministry of Justice doesn’t mention any reforms to family appeals anywhere).
So where do the reports about family appeals come from? Well, tracking it back as best we can, they come from a speech given by the Master of the Rolls (senior judge) given on Monday 13 January to the UK Association of Jewish Lawyers and Jurists. The full text of the speech hasn’t been published yet but it is quoted in the Law Society Gazette. It will probably appear in due course on the Judiciary website and we’ve contacted the UKAJLJ to see if they are going to publish it. The Gazette report that :
Family cases which reach the Court of Appeal should be broadcast online to dispel fears about judicial prejudice, the master of the rolls has said.
Sir Terence Etherton MR, the second most senior judge in England and Wales, said the public ‘should be able see how we do our job’ …
‘We are hoping to get a change to regulation which will allow us to live stream family cases in the Court of Appeal. At the moment, you cannot do that at all.
‘There are some family cases that are really important…and people want to know how we are doing things. The motive for live-streaming is people should be able to see how we are doing our job.’ Televising cases could dispel concerns about prejudice or bias among judges, he suggested.
So it seems that the family reforms are in a different category to the Crown Court reforms – we’ve been given a pretty clear steer the family reforms will happen, but it hasn’t in fact yet been formally announced. The Court of Appeal has already been live streaming certain appeals in non-family cases for a number of years, and this would be an extension of that scheme in similar types of hearing, albeit with different subject matter.
An important point is that appeals don’t involve live evidence from witnesses. The Crown Court scheme is different because it is the first time the courts in England and Wales have allowed filming of part of an actual trial rather than an appeal (although these reforms won’t allow filming of the bit with witnesses giving evidence so we won’t be seeing the likes of the coverage of the OJ Simpson trial, for example).
The Supreme Court has been live streaming hearings since its inception, and uses multiple cameras. The Court of Appeal live streaming information can be found here. It shows a list of the cases coming up that have been selected for live streaming – so far none are family. That is because, as Sir Terence notes, before these sorts of cases can be streamed, there needs to be some wand waving in Parliament to make it lawful, and that is probably going to take a few months (we can’t see anything so far that relates either to the criminal changes or to the family ones).
The original announcement from 2018 provides some further information about what is and isn’t allowed in the Court of Appeal:
The image broadcast will be of a split screen, with simultaneous broadcast of the judicial bench and the front rows of counsel in the case.
…The proceedings are subject to a short delay, as per the Supreme Court’s system, which allows for a case to be halted to ensure that (for example) an inadvertent breach of a reporting restriction would not be broadcast.
Any extension to cover appeals in family matters is likely to adopt the same approach.
It is worth noting for those not familiar with legal matters, that in the Court of Appeal and Supreme Court family cases are usually heard in public, so the public can listen in if they are physically present. So these changes will be about making publicly held hearings more accessible, not about making private hearings public.
The responses to these announcements
On the announcement about Crown Courts, the News Media Association are very pleased.
The Secret Barrister however is not so sure. S/he raises two main issues –
- why this is a priority at a time when the justice system is crumbling
- whether this will actually be any more informative for the public – he thinks not.
What The Secret Barrister says about this is that the reforms will not allow the public to see anything other than the actual reading out of the sentencing decision – they won’t know about the arguments either way. This is necessary to avoid the risk of deterring victims whose victim impact statements are read out as part of this process and who might not come forward if filming starts at that stage. Secondly, because of a recent decision of the Court of Appeal the sentencing remarks they hear read out will be stripped right back to basics, and rather than reading in the detail of the guidelines or the facts that have led to a decision, the judges are now told they must give bare bones only. Which, says Secret Barrister (we paraphrase), is a fat lot of use. So it seems there is some force in the suggestion that this might be a bit of a waste of time unless sentencing guidelines are written with a public audience in mind (i.e. with a bit more plain English explanation of what’s gone before and why the decision has been made). We also note that the MoJ announcement states that in any case where the sentencing guidelines are televised, the sentencing remarks will be published in writing online anyway [update/correction : actually, looking more closely at the wording of the announcement this might mean the video of the sentencing remarks will be published on line – the words ‘in writing’ were inferred by us, perhaps wrongly – we do think that a full text version of any sentencing remarks broadcast should be made available online to protect against the risk of confusion caused by selective broadcast of small clips].
For our part it is frustrating how infrequently sentencing remarks are published – there are often connected criminal and family proceedings – and it’s really hard to make sense of things if you don’t have the sentencing remarks, so we would like to see remarks published more often and in a format that the public can make sense of and journalists can make use of – whether or not the reading out of the remarks is televised.
Lawyer David Burrows also rightly flags the fact that it’s all very well having a live stream, but without some access to the documents that are being talked about it might be hard to follow – journalists of course do sometimes have access to skeleton arguments (written legal arguments) to help them make sense of an appeal hearing and to ensure their reporting is accurate, but not necessarily to all the documents in the court appeal bundle. It isn’t clear if they will be given access to any documents associated with the sentencing hearings (such as pre-sentence reports).
Counsel of Perfection (criminal Barrister Max Hardy) is cautiously optimistic and thinks we have nothing to fear from more openness.
@JudicialImages (Professor of Law and researcher on a project on judicial images) is not getting over excited about the reforms :
Chair of the Bar Council Amanda Pinto writes in the Times today (paywall) :
…But, necessarily, this is not the whole picture of a criminal trial and care must be taken to enable the public to understand the context…
So, even with this new openness, the public, viewing a clip of a judge saying a phrase that strikes the imagination, may well not fully appreciate why a particular punishment has been given…
At a time when trolling and even the face-to-face abuse of those in public office is on the rise, not to mention scathing headlines about judges when they make “unpopular” decisions, measures to televise our judges, who are renowned across the world for being impartial and independent, must protect them from becoming unfair targets.
There is lots more chatter and discussion about these reforms on twitter for those interested.
Did the media get it right?
Sky reported on the announcement about sentencing remarks here :
After a century-long ban, cameras to capture courtroom drama again
They are right that there was a time right at the start of the 20th Century, when cameras were not banned (though we don’t think there were ever ‘movies’ in court, only still photos) and that, after the Dr Crippen trial, steps were taken to ban cameras in court. But since 1925 the law has been the same – it has prevented the making of images in the courtroom, whether on your mobile phone, with a TV camera or by doodling or sketching (for those interested its s41 Criminal Justice Act 1925).
There have been modest and very specific reforms to enable the live streaming of appeals we’ve talked about above, but Sky saying that at some point the law was changed to allow courtroom sketches to be made during the hearing is inaccurate. That ban is still in place everywhere apart from the Supreme Court – any courtroom sketch you see from an English courtroom will be one made from memory after the hearing. You may notice that courtroom sketches from courts in places like the USA are much more detailed and accurate, and this is because they may be sketched from life during hearings. The Guardian got this point right when they wrote about this in 2006 when courtroom cameras were first discussed.
Our guess is the confusion here arises from the fact that the Supreme Court, when created in 2009, has different rules about openness because of its status as the most senior court in the country. We will ask Sky to correct their error because it would be awful if someone did a doodle of a judge in the public gallery thinking it was now lawful and found themselves in the dock for it.
But on one level the more important error is the idea conveyed in the headline that the cameras will now be able to capture ‘courtroom drama’. Whilst not wishing to downplay the importance of the sentencing stage, there is no proposal to allow cameras into the main part of the trial or to let them see the drama of witness examination. They won’t even be able to see the whole sentencing hearing, just the reading out of the decision. There is no proposal for any reporter (or member of the public) to be able to bring in a camera and film at will. Cases will be carefully selected and probably few in number, and filming and broadcasting carefully planned and managed. The delivery of sentencing remarks is unlikely in itself to make particularly scintillating viewing (unless delivered through the medium of song), though the length of sentence in some cases is of acute public interest and highly newsworthy.
What impact might the live streaming of family appeal hearings have?
Not everyone can go to London and spend a day sitting listening to an appeal. Not many (whether lawyer, journalist or member of the public) would understand everything that was going on in a hearing where lawyers in wigs are talking in code, referring to children by initials, and constantly referring to documents that the listener doesn’t have access to.
There are likely to be similar difficulties in the case of live streamed cases, although we note that for civil appeals some very basic background information about the case is generally published in advance.
For our part, we are more likely to be able to ‘attend’ family court appeal hearings as a remote legal blogger than we are to travel to London to sit in as a reporter. That might mean we can summarise and explain cases we’ve watched on live stream and comment usefully on news reports (accurate or otherwise) even whilst a transcript or judgment is awaited. But of course, if we don’t attend in person how will we as reporters gain access to skeleton arguments that we might well have been provided with at court? The rules do require the parties to provide journalists with copy skeleton arguments, but, so far, legal bloggers are not included in that category so we would have to request on a case by case basis even if in person.
We would like to see anonymised skeleton arguments and a summary of the grounds of appeal published prior to any live streaming where possible.
Although there is no obvious direct connection, the Gazette article links the proposals in respect of family appeals to a recent case which has been reported in the media, where HHJ Tolson is said to have expressed outdated views about rape when dealing with a family case, leading to an appeal. Information on this case, by the way, has been difficult to clarify – the Gazette suggest the appeal has been granted permission and is due to be heard, other reports suggest it has already been fully allowed – we understand a judgment on that case is expected next week and we will write about it when we have that to hand. This is the sort of case that would have been interesting to see live streamed, and had it been live streamed it might have been clearer by now what had really gone on. Whether it is the sort of case that is ever likely to be approved for live stream is another matter.
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Really helpful post, thank you. A teeny quibble in that I don’t think the MOJ press release states the public website record for broadcast cases will be “written” remarks; they could be video clips.
A few further thoughts –
1. It’s interesting that the legal profession concerns seem to be centred on judges and I’ve seen very little/no discussion on the impact on the subjects of cases – the defendants in particular. In some ways, this could be a positive move as the Lammy Review in 2017 (into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System) identified an issue for offenders wishing to access their sentencing remarks after the event. On the other hand, it could lead to more enduring online coverage for individuals and this needs consideration in view of ongoing stigma, rehabilitation etc. (that said, the cases likely to be broadcast are probably the ones that would have been reported anyway).
2. The issue of access to sentencing remarks in written or audio form – for all types of cases not just the newsworthy ones – is left unaddressed – a number of us have proposed the creation of a database, though its design needs to be given careful thought – it may not be necessary to publish it to the open web – but allow people to access data upon registration.
3. It’s another example of policy that appears to have been driven by the traditional media organisations’ agenda – this may well align with the public interest but it does mean that other views – such as the Secret Barrister’s – are neglected during the policy formation stage. We need proper research and consultation among the public and a range of stakeholders – not just those from news organisations.
If sentencing remarks are to be broadcast it must be in full or not at all. No editing.
In practice the media will only be interested in those which are salacious or exceptionally violent or involve public figures – or any combination thereof – and then not if sentence follows conviction on the same day because they won’t be there.