Crown Court (Recording and Broadcasting) Order 2020

Lord Foulkes of Cumnock Excerpts

Monday 8th June 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I join in the thanks to the Minister for the way in which he introduced these orders, which I welcome. I agree that awareness of what goes on behind the courtroom door is pretty low in Britain as a whole. For many, it is influenced by what we see in courtroom scenes in film or on television. My favourite is “Judge John Deed”, which I think, or at least hope, is untypical of what really goes on behind the courtroom door.

As the Minister rightly said, these orders’ intention is to create greater transparency and openness in our criminal justice system. I welcome that. Broadcasting judges’ remarks on high-profile cases can offer an opportunity, albeit limited, to improve public understanding. As a Scottish Peer, I say to the noble Lord, Lord Thomas of Gresford, and others from outwith Scotland that the option to broadcast sentencing in Scotland has been available for some time, as the Minister knows better than anyone. Scottish judges have allowed cameras in courts several times in the past 20 years, since it was first allowed in 1992—mainly for documentaries, with footage heavily vetted.

An early example was in 1996, when Lord Ross allowed cameras to watch the sentencing of two armed robbers, which was a very good way of getting the message over, as my noble friend Lord Harris said. Another example is the 2012 retrial of the infamous Nat Fraser for the murder of his wife Arlene in 1998. It was filmed by Channel 4 and shown as “The Murder Trial” documentary in 2013. In 2012, legal history was made in Edinburgh High Court when David Gilroy became the first person convicted of murder to have his sentencing filmed for TV. This was the first time in a UK court that a sentencing was filmed for broadcast on the same day. As my noble friend Lord Harris said, that is important.

While broadcasting judges’ sentencing opens the courtroom to the public, there is a question of whether these orders go far enough to provide real transparency, as a number of noble Lords have said, as the showing of a judge passing a sentence is not fully representative of what takes place in a trial. While these orders are useful, I am sceptical that they will advance public understanding and knowledge on their own, as these remarks are likely to be taken completely out of context without the knowledge of what evidence has been presented in the trial for the judge to reach their decision.

That raises the question of how much we should open courts to the public and what the impact of such a move could be. I am not suggesting that we go as far as the United States, where live broadcasting transmission has presented some trials as something of a spectacle. A recent Netflix documentary, “Trial by Media”, demonstrated its influence in the United States in the past and the negative impact of the trials that are broadcast in full for everyone to see. It hampers the fair judicial process. Many cases have received so much media attention that they have been described as soap opera trials. This is highlighting extreme examples, but it shows what must be avoided when examining a broadcast system for judicial trials.

As I mentioned, Scotland has allowed sentencing to be broadcast for some time. Since then, work has been under way to implement the recommendations of a review that took place in 2015 into the broadcasting experience in Scottish courts. Key elements include the relaxation of the rules, including the broadcasting of civil and criminal appeals, and allowing the filming of some criminal trials for documentary purposes. Of course, as others have said, trials of a sensitive nature involving children or sexual offences are understandably excluded.

Since this review, an entire trial has been filmed—albeit with necessary edits to protect those involved—as part of a documentary called “Murder Trial: the Disappearance of Margaret Fleming”, which was aired in April this year. Importantly, this represents the first accurate and holistic depiction of a trial process, offering even greater transparency and openness.

With all that in mind, given the desire to create greater transparency and openness within our judicial system, are the Government planning to consider further options beyond this order for broadcasting in courts in England and Wales, as other noble Lords have asked? Specifically, will the Minister consider a similar review to that undertaken in Scotland? Having said that, I repeat that I support these orders.