Article: Switch on to the principle of open justice

The Times
Law section: November 16, 2004
by Heather Brooke

The American experience shows that televising court proceedings does a lot more good than harm

The pilot scheme in which TV companies will from today be allowed to film, but not broadcast, proceedings in the Court of Appeal comes decades after similar steps were taken in America, Australia and other countries. Why has it taken so long for Britain to follow suit? The reasons have more to do with fear than facts.

I have covered trials as a newspaper reporter in South Carolina and although I accept that the presence of recording devices can affect the quality of evidence and witness testimony it is in exactly the opposite way claimed by many British people. The evidence the State brings forth is much stronger because prosecutors know they face tough scrutiny, and witnesses behave better because they know more people are watching them.

The fears raised by British opponents of televised court proceedings are not supported by the solid empirical evidence that has been collected in the US since cameras were introduced into courtrooms in the 1950s. These studies show that cameras have little effect on the outcome of a trial. Thousands of televised trials are going on every day in America. Footage from these cases provides the public with a factual record of the way in which the judicial system works. Inefficiencies or prejudices are quickly exposed and this transparency has led to a judiciary that better reflects those whom it judges.

Repeatedly, I have seen the trial of O.J. Simpson used in this country as an example of the danger inherent in filming court cases. The O.J. Simpson case may have been “entertainment” for many, but it also educated people about what went on in court. If lawyers decide to behave more as celebrities than we think is proper, the fault lies with the judge for not keeping control of his courtroom, not with the presence of cameras. Grandstanding is just as likely outside the courtroom if lawyers or witnesses desire a public profile.

The lengthy, detailed proceedings that take place inside court are an excellent antidote to this kind of hype. In the Soham murder trial there was no objective record accessible to interested members of the public. Instead they had to rely solely on the sensationalised highlights picked by the media. An opportunity to show the British public how the judicial system works should not be discarded so easily.

And isn’t it ironic that the British citizen, who is subject to the most extensive CCTV regime in the world, has no right to see filmed images of what takes place in an “open” trial of a “public” courthouse? Either we believe in a system of open justice or not. If we do, then the public’s inability to attend court in person should not limit their democratic right to see justice being done. The most effective method is to broadcast court cases just as we now broadcast debates in Parliament (also once considered unthinkable). Otherwise, we risk allowing the courts to become the preserve of a coterie of lawyers and those involved in a case. If you think this is how it should be, at least drop the pretence of believing in open justice.

Won’t being on TV put off potential witnesses? First, the pilot scheme is in the appeal courts, where there are no witnesses. If eventually it is extended to other courts, we should remember that there are many reasons for witnesses’ reluctance to testify.

Even without cameras, witnesses are rightly subjected to public scrutiny. We must be able to judge whether they are giving us an accurate account of events. A hundred years ago, witnesses were testifying in front of friends, neighbours and relatives. That we live in a very different society today does not mean that witnesses can expect privacy.

Where there are fears for a witness’s safety a judge can already limit public scrutiny. Public distrust of the police and judicial system could already be putting off more potential witnesses than the fear of being on camera. Other factors such as loss of income and time wasted while waiting to be called could also play a part.

The real reason for the reactionary distrust of cameras may have more to do with a deep-seated aversion by the legal profession to being held accountable to the public, and possibly even looking silly. There can be no doubt that cameras will increase the public’s knowledge of the judiciary. Steps can be taken to protect witnesses. Whether or not the judiciary’s image will be enhanced or tarnished depends on what goes on in court, and the stubborn opposition of judges leads one to think that they may be worried that the public will not like what it sees.

If they see a system of inefficiency and poor evidence overseen by old-fashioned, elitist white men then doubtless reputation will be lost. But before faults can be fixed they must first be exposed. One thing is clear: the status quo of inaccessibility will lead only to greater distrust and disillusion, whereas transparency has the potential to engage the public and reform the system.

Heather Brooke is the author of Your Right to Know (Pluto Press), an examination of Britain’s culture of secrecy and guide to using the Freedom of Information Act

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