In any democracy having an open and accountable court system is an important pillar. Justice should be conducted in an open fashion whenever possible and this, I believe, should include the televising of some court proceedings.
Scotland is not averse to having cameras in the Courts. The BBC were granted exclusive access to film in Glasgow Sheriff Court to produce the TV Series “Sheriff Court” and cameras were permitted into the High Court of Justiciary to film the handing down of the Appeal Courts decisions in the appeals against conviction of Nat Fraser and Luke Mitchell.
There is certainly room for television cameras in courts. However, I remain concerned about their impact on the trial process if trials were to be televised. I would say that this extends to some civil proofs as well as criminal trials, but the concerns relate mostly to criminal trials.
A lot of things happen during the course of a criminal trial that cannot, for obvious reasons, be broadcast on the television. If a full days sitting at the High Court, for example, was to be televised then it is quite likely that a significant amount would need to be cut out. This could cause difficulty for live broadcasting.
Throughout a case at court a jury may be required to leave the court room while legal debates take place. These could be on a whole range of things including whether to admit or exclude a piece of evidence. The jury are generally not permitted to hear such debates for a number of reasons. Firstly, matters of law are for the presiding judge alone and not the jury. Secondly, it’s rather pointless holding a legal debate to exclude, for example, a piece of evidence and permitting the jury to be present and to hear/see the evidence in question. These legal debates are rather boring, even for those sitting on the public benches who have an interest in/knowledge of the law and the probability of anyone wanting to sit and watch is not very probable. However, if this debate was to be broadcast then matters which should not be within the knowledge of a juror might well become into the knowledge of a juror. That could potentially undermine the trial process and the accused’s right to a fair trial.
Jurors are not supposed to discuss cases when outside of the jury room and when they are not all gathered together. There is little doubt that some jurors already go home and offload to a spouse or partner about what they saw or heard that day in court. To think otherwise is foolish, some of the evidence which jurors will see and hear is so harrowing that they have to discuss it with someone. It’s no different to, for example, a police officer going home and talking about their day to their spouse/partner (again, they shouldn’t be but it does happen). However, what if that spouse or partner had seen some of the trial on the television while in the house? Could we then start to get opinions of those who are not jurors influencing the decisions of juries in our courts?
What about showing the jury or witnesses on TV? Yes, anyone could in theory turn up at the court and sit in the public gallery and see witnesses or jurors. However, in my experience court staff do not expect people to be in the public galleries and will often make enquiries as to the person’s reason for being there. With someone in the public gallery arousing suspicion then someone in the public gallery acting in a suspicious manner is likely to get the alarm bells ringing in the minds of the court police officer, court clerk and possibly even the presiding judge. Having witnesses or jurors appearing on the television could make it far easier for there to be interference with or intimidation of witnesses or jurors during the course of a trial. That impacts upon the administration of justice and could render the trial process unfair.
Undoubtedly, news editors will likely want footage from the trial for their news bullet-ins. Would this be appropriate? Taking what might be 30 seconds of evidence from up to 5 hours worth of evidence? Jurors will obviously have already heard the evidence. However, could this 30 second clip taken entirely out of context affect a juror’s perception or memory of the evidence? It could do so in a good way, but it could equally do so in a bad way.
You can create all the criminal offences you want to help avoid the above problems, but if one of the above problems does arise then retrospective criminal action against the offender won’t stop the damage that may already have been done to the trial in question. Serious breaches as a result of television broadcasts might well result in an expensive retrial having to take place.
However, I would be highly supportive of TV cameras capturing just about every other aspect of court proceedings. Undoubtedly a murder trial might be more appealing to the public than a proof on whether a line in a contract means X, Y or Z but should a murder trial be broadcast live in its entirety? I would say no.