Court of Appeal (Recording and Broadcasting) Order 2013

Lord McNally Excerpts

Tuesday 15th October 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Court of Appeal (Recording and Broadcasting) Order.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, when I first looked round the Committee, I thought we were at a casting session for a future television programme.

The order before us today sets out the conditions under which the recording and broadcasting of footage in the Court of Appeal Civil and Criminal Divisions will be permitted. Before setting out further details about this order, I will briefly explain some of the background to this policy.

There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Few people have direct experience of court proceedings, and public understanding of how the justice system works is limited. In principle, the majority of our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to see what happens in our courts in person. The justice system is viewed by many as opaque and complex. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings.

Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society and to allow cameras into our courts, but it is important to do so in a balanced way which will protect the individuals involved and preserve the dignity of the courts.

Currently the recording and broadcasting of footage in courts below the UK Supreme Court is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to create an order specifying the circumstances in which the prohibitions contained within the Criminal Justice Act and Contempt of Court Act may be disapplied. The Court of Appeal (Recording and Broadcasting) Order 2013 is the first order to be made under that power, and sets the conditions under which the statutory prohibitions on recording and broadcasting will be disapplied to allow for recording and broadcasting of footage from the Court of Appeal. Any breach of the terms of the order may amount to contempt of court.

Recording and broadcasting of footage will be only of specified proceedings, as laid out in Article 5 of the order, where these proceedings are in open court and in front of a full court. Media parties may film only advocates’ submissions, exchanges between advocates and the court, and the court giving judgment. Filming of any other individuals—including appellants, members of the public, victims and witnesses—is not permitted. In cases where any party is not legally represented, only the court giving judgment may be recorded.

So long as any applicable reporting restrictions would not be breached by broadcasting, in many cases footage may be broadcast “almost live”, subject to a 70-second time delay, as agreed between media parties and Her Majesty’s Courts and Tribunals Service. We believe, however, that in some cases it is necessary to impose restrictions on broadcast in order to prevent prejudicing any potential future retrials, and to protect the interests of justice.

For this reason, any footage of proceedings where a retrial has been ordered may not be broadcast unless the court gives permission to do so. This means that in those cases where a retrial might be ordered, such as appeals against conviction, the court must give its permission before any part of those proceedings may be broadcast. Where a retrial is not ordered by the court, media parties may show footage immediately after the conclusion of proceedings. In certain limited circumstances, the court may give permission to broadcast even these cases from the outset. But until the conclusion of the case, the decision is solely for the judges in that appeal.

It is important for justice to be seen to be done but this cannot be at the expense of the proper administration of justice or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all the parties involved. Therefore, we have taken steps in order to ensure that any report or presentation using footage recorded in the Court of Appeal should be presented in a fair and accurate way. It will have to have regard to the overall content of the presentation, and to the context in which the broadcast footage is presented. Furthermore, footage may not be used in party political broadcasts or for the purposes of advertisement or promotion. It cannot be used for the purpose of light entertainment or satire.

The technical and operational details governing the recording and broadcasting of footage from the Court of Appeal will be set out in writing and agreed between the judiciary and the media parties. This will be annexed to the written authorisation of the relevant media parties by the Lord Chancellor.

When the broadcasting provisions were debated in this House during the passage of what became the Crime and Courts Act 2013, concerns were expressed that the introduction of cameras into the Court of Appeal, while broadly supported, might be the thin end of the wedge and lead to the undesirable broadcasting of trials and proceedings in the lower courts. I reiterate the assurance given at that time that any extension to the circumstances set out in this order will require a new order that will require the agreement of the Lord Chancellor and the Lord Chief Justice, and the approval of both Houses of Parliament under the affirmative procedure.

We are conscious of the concerns that were raised regarding victims and witnesses, and of the perceived potential detrimental effects that court broadcasting might have on their experiences in court. In particular, the comments made by the noble Baroness, Lady Kennedy, during the passage of the primary legislation through Parliament, as well as a report by the Joint Committee on Human Rights, led directly to the publication of a full impact assessment alongside this order, and to our continued engagement with interested parties.

It is rare that a victim or witness will appear in person at the Court of Appeal, as the majority of cases will be appealing a point of law rather than the facts of the case. However, in the event that they are present, a number of safeguards will be in place to minimise any potential impact that broadcasting may have. As I said, the order does not permit filming of any victim or witness. Nor does it permit the broadcasting of any footage of them. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming, or prohibit broadcast, in the interests of justice or to prevent prejudice to any person.

The Government are committed to increasing transparency and to providing the public with the information they need on the operation of public services. The justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work is critical to confidence in the system and to its effectiveness in ensuring that justice is done. This order will allow for greater visibility of the courts, without undermining the seriousness and diligence that are central to the quality of our justice system.

I hope that, in making the presentation, I made it clear that we know that we are going into new territory. Certainly the observations of this Committee will be greatly valued. In the mean time, I commend the order to the Committee.

[Lord Hope of Craighead (CB)]

My Lords, I very much welcome the order. I rise to speak because I have some experience of the operation of a very similar system, which I introduced 20 years ago in Scotland. The position there is that there is no statutory restriction on the filming or audio recording anything that happens in any court. The matter is controlled entirely by the judiciary. When I became Lord President, it seemed to me—very much for the reasons given by the Minister in his opening remarks—that the public would benefit from seeing a little of what happened in the courts, and would thereby understand a bit more about how the process of justice was being administered. The opening remarks of the Minister were precisely to the point, and I very much agree with the reasons he gave for making this order.

On the other hand, I set as my criterion in deciding what to do about the other point that the Minister made, which was that the administration of justice and the respect that is due to the court itself were absolutely fundamental to any relaxation that might be made on any blanket restriction on the use of cameras or audio recording. The system which I set up was rather a modest one, but is almost exactly that which the Minister has put before this Committee. It depended entirely upon the consent of the court to the use of this equipment. Since we were allowing trials to be considered for audio and television purposes, it would require the consent of a lot of other people as well.

This is a very modest step, because it looks only to the Court of Appeal process. That is a good deal easier than the system at which I was looking. Nevertheless, I have one or two remarks. It is of course very different from the system from which I have just come in the UK Supreme Court, where there is a live feed of the hearings on Sky, and our judgments, when we give them, are reported instantly on YouTube. I understand from comments that have been made to me that both these systems are widely used by the universities, which like to keep track of what arguments have been presented to the court and what judgments have been given.

I do not think that, in not going that far, the Minister is making a mistake. When one looks to the Court of Appeal, as I was doing in Edinburgh, one has to be extremely cautious and move step by step. This step is carefully judged and very appropriate. However, I would like to suggest one or two points. First, the Minister might care to look for the future at the practice direction which I gave in 1992, which set out one or two other points to which people were expected to adhere. I do not have a copy with me today, but it is available in the usual way and provides some guidance to the way the system is operated in Scotland.

Secondly, to give noble Lords a little idea of how the system is actually used, one of the points which came over clearly to us was that the broadcasting corporations want quick feed for news broadcasts but do not have available space for a good deal of dispute and discussion in court unless, as Sky does, they provide it live on a feed which is simply available all the time. I cannot see the live system working here because, quite rightly, there is a check on what is being put out, so that the court must give its permission. The Minister said it could be almost live but cannot be actually live; I fully understand that. That being so, the use that could be made of argument would be rather limited.

However, I see real value in the broadcasting of, at least excerpts from, what judges are saying when dealing with an appeal against sentence. I confess that once or twice in the past two or three years I have wished that the noble and learned Lord, Lord Judge, who was sitting as Lord Chief Justice, had been seen on television. I knew that his remarks were extremely well judged, but I would have thought that they would have carried much more weight if people had seen him actually saying them. That will be the great value of this in the future, almost certainly the most valuable from the court’s perspective and also from the point of view of the broadcasters.

Two things may be missing here. First, in Scotland, we find that the television companies now mostly use the system for ceremonies that take place in court. When a new judge is introduced, which happens fairly frequently these days, there is a fairly colourful ceremony which takes place in court. When the First Minister for Scotland is sworn in, that takes place in court as well. These things do not happen, of course, in the Court of Appeal. On the other hand, things do happen in the Lord Chief Justice’s court which might be of interest to the public, and they are not on the list of things which can be broadcast. It may be that experience will allow for a little bit of relaxation to allow that kind of thing to take place; for instance, when a new Lord Chief Justice is sworn in.

The other thing is documentaries. I think—but I would be grateful if the Minister could confirm—that the recordings referred to here would be available for broadcasters for use in documentaries. That was what happened in our experience in Scotland. Six programmes were made to show trials as they happened and, in one or two cases, the appeals that followed after trial. There has been another one very recently in Scotland, the case of Nat Fraser, where the same technique is being used. It has been broadcast, using recorded material from the proceedings in court. I can see some interest in the way this is done, although of course it will lack the draw for the broadcaster of having the evidence, but at least some of the argument could be helpful. It would be interesting to know whether documentaries would be covered.

Those are the three points for further reference: first, checking how it is done in Scotland for some guidance as to how the system actually works in practice; secondly, ceremonies; and thirdly, documentaries. Otherwise, I very much welcome this measure and I am sure that in due course we will find it beneficial.

[Lord McNally]

I really appreciate what the noble and learned Lord has said. Perhaps it is a factor of age but it is fair to say that I was the least enthusiastic of Ministers about this. I have used in ministerial discussions the term “slippery slope”. The noble and learned Lord’s endorsement is very clearly on the record. I am interested to know whether there has been any downside in Scotland. Has any abuse by the television authorities been later used to call into question a court judgment or anything like that?

[Lord Hope of Craighead]

No. I think I had the upper hand, to be perfectly frank. When I introduced it in 1992, the broadcasters understood that if they abused the rules, that would be the end of the system. My experience was that they stuck precisely to what we asked them to do. I was not aware of any abuse of the system. My noble and learned friend Lord Mackay of Drumadoon, who is more familiar with Scotland than I am, may have other experience, but that was my experience. Of course, as far as the Supreme Court is concerned, we have to keep a careful watch on what is being used and what is done with what is being used, but in my experience we have not been let down by that either.

I think the broadcasters will appreciate that this is very much up to them. If they abuse the system, that will be the end of it and judges will not give their consent. That is why that particular part of this order is so important. It is a crucial point of the whole system.

[Lord Mackay of Drumadoon (CB)]

I am conscious that not every Lord Mackay has any right to say anything about the judicial system in England, and he should confine himself to the system to which he belongs, in Scotland. However, it might help Members of the Committee if I endorse what the noble and learned Lord, Lord Hope, has said here today.

My impression of the proceedings recorded in Scotland is that the lawyers and judges who took part were confident that the trust placed in the broadcasters was merited. I have heard no criticism of the recording or, ultimately, transmission, of the broadcasts. On the other hand, among one’s lay friends—including legal friends—who watch some of these programmes, there is a range of opinions on the success of the venture. Sometimes it is clear from questioning the viewer that he or she has not followed everything that was broadcast. One reason may be that a documentary can only last an hour or so but must represent filming of a trial lasting 10 days or 20 days, or whatever. To some extent the fact that programmes are sometimes misunderstood or not fully appreciated may—in a funny way—be a further justification for taking a small but very well thought-out step towards deciding whether broadcasting has a role to play in the judicial system in England.

[Lord McNally]

My Lords, I am extremely grateful to both noble and learned Lords for giving us the opportunity to hear about the Scottish experience. I notice that the two juniors of the noble and learned Lord, Lord Hope, have remained silent during this debate, but I know that their presence is nevertheless welcome.

I think the Scottish experience has been trailblazing, and none of the fears I had about broadcasting the courts have applied to the Supreme Court. It has greatly enhanced public appreciation and awareness of the Supreme Court to have the live feed and the ability for the public to watch it at work. I am sure my officials have already taken note of practice direction 1992. The noble Lord is quite right that the question of ceremonies and swearing-in is not covered by this order, and I will reflect on that, because it would be useful. It would be nice, when a Lord Chief Justice hands over, if there was some kind of accompanying televisual ceremony. I agree with that. Furthermore, the broadcasters will be able to create documentaries. I understand there have been some good ones. There is one in my pile about a Scottish trial, made by Channel 4. I have not watched it yet but am told it is very good.

To be fair, the evidence is that this can be helpful. I am sure that all our views are coloured by the images of the OJ Simpson trial and the trial in South Africa, which seemed to move from court of law to three-ring circus very quickly. I remain cautious in this area, but the Committee can be doubly reassured because the Lord Chief Justice has gone through this at every step and, equally, any changes will have to be agreed by the Lord Chief Justice of the day. As I said, both Houses of Parliament will also have to be convinced. We have put in the safety catches—that is, if you can put safety catches on a slippery slope.

I am very grateful to the noble and learned Lords, Lord Hope and Lord Mackay, for what they said. We will review the arrangements in due course, including with the senior judiciary to make sure that it is comfortable with how they are working.

Motion agreed.