Administration of justice

TV in the Crown Court: judges' sentencing remarks to be broadcast

Television cameras will be allowed to broadcast from Crown Courts in England and Wales for the first time, following draft legislation laid by the government in January.

About the author: Simon Parsons is a CILEx Criminal Practitioners Specialist Reference Group Adviser.The Crown Court (Recording and Broadcasting) Order 2020 (when it comes into force) enables media organisations to broadcast and record the sentencing remarks and sentence by High Court judges and senior Circuit judges in Crown Courts in England and Wales. This means that only sentencing for serious offences will be broadcast.

The broadcast must be of an open court sentence and be fair and accurate. There will be a short time delay so that any reporting restrictions will not be breached. Recording is limited to the sentencing remarks, so the defendant, victim, witnesses, jurors and court staff will not appear. Nor will counsel’s mitigation arguments or any probation reports.

The draft Order follows a three-month pilot, where sentencing remarks were filmed (but not broadcast) in eight Crown Courts. Section 41 of the Criminal Justice Act 1925, which prohibits the taking of photographs in a court in England and Wales (except in the Supreme Court) and section 9 of the Contempt of Court Act (CCA) 1981, which prohibits tape recording, will not apply to sentencing remarks in the Crown Court. There are limitations on the use of a recording so that it cannot be used in a party political broadcast; an advertisement; light entertainment; or satire. Also, recording requires the written permission of the judge and is subject any conditions s/he may impose.

What are the benefits of this change?

It is a fundamental principle of the criminal justice process that justice should be open. ‘[J]ustice should not only be done, but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices; ex p McCarthy [1924] 1 KB 256, 259). This means that criminal proceedings should - in most cases - be open and accessible to the public and there are public galleries for this purpose.

The mass media is able to report on contemporaneous criminal proceedings, so long as the report is fair and accurate and a contemporary report of who is in court and what they have been charged with. Such a report has a defence to an offence under the CCA and under the Defamation Act 1996. However, any more than this - for example, disclosure of jury deliberations or publication of something exempt from disclosure such the identity of rape victim - will be sub judice (under judgment) material and amount to a contempt of court. A witness being embarrassed to give evidence in public is not reason enough to override the principle. There must be a real risk to the administration of justice that requires the court to sit in camera, for example, in cases under the Oficial Secrets Acts.

The broadcast of sentencing comments and the sentence will support the principle of open justice and, for that reason, is to be welcomed. The change has been approved by the BBC, ITN and Sky. The government believes that the change will help to improve public understanding of the criminal justice process and allow justice to been seen to be done to serious offenders by members of the public who may never visit a court.

However, as Amanda Pinto QC, chair of the Bar Council, points out the public may not understand the context of a sentence where there has been a trial because there will be no broadcasting of the evidence given in the trial.

Nonetheless, it should be remembered that the vast majority of defendants in the Crown Court plead guilty (likewise in the magistrates’ court). This is the most important decision in the underfunded criminal justice process as, otherwise, the process would grind to a halt.

But even with guilty pleas, there will be no broadcast of the prosecution arguments for a particular sentence or mitigating arguments by the defence which would help the public to understand why a particular sentence was imposed. Amanda Pinto goes on say:

We must guard against unwarranted attacks on judges where the sentence isn’t popular with the public. ‘Enemies of the People’ type proclamations, where judges have been personally attacked and their independence questioned, simply for doing their job, are completely unacceptable.

Contrast the Court of Appeal (Recording and Broadcasting) Order 2013 SI No 2786, which allows for the broadcast in the Court of Appeal (Criminal Division) of counsels’ submissions, exchanges between counsel and the court, and the court giving judgment. However, there are other benefits in favour of the change. It may assist defence lawyers where their clients wish to appeal against a sentence, as a person convicted on indictment may appeal to the Court of Appeal (Criminal Division) against any sentence passed on them by the Crown Court for the offence (Criminal Appeal Act 1968 s9).

The principal situation in which an appeal is likely to succeed is when a sentence is manifestly excessive. The broadcast of the sentence could help to ascertain this, which could avoid miscarriages of justice. Although, as Emily Bolton of the law charity Appeal has pointed out, ending the destruction of trial audio recordings after seven years (which, incidentally, are not available to the public) and making transcripts of trials more accessible and affordable would be of more assistance in preventing miscarriages of justice. Also, it may be that the sentence is a nullity in that the trial judge passed a sentence which was not available for that particular offence: the broadcast may assist with that.

The change will also assist the prosecution as, since 1988, the Attorney General has also been able to refer to the Court of Appeal for rectification of an unduly lenient sentence passed on a defendant convicted in the Crown Court (Criminal Justice Act 1988 ss35 and 36).

A sentence is unduly lenient if it falls outside the range of sentences that a judge could reasonably consider appropriate (Attorney-General’s Reference (No 4 of 1989): CACD 1990 (1990) 90 Cr App R 336, 371).

What law prevents the broadcast of Crown Court trials?

In other common law jurisdictions, whole trials are broadcast. For example, in the US state of California in the 1990s, the trial of OJ Simpson for the murder of his former wife Nicole Brown Simpson and her friend Ronald Goldman was broadcast live on national television. This does not happen in England and Wales.

The law governing this area is mainly CCA ss1 and 2. The CCA imposes a strict liability offence on publications addressed to the public which create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. Proceedings are active from arrest or summons until acquittal or sentence, or if the case is discontinued. The consequence of strict liability is that a publisher cannot avoid liability by arguing that it did not know the material was sub judice or did not intend to prejudice active criminal proceedings. Thus, this law prevents the broadcast of trials.

Contempt of court is a serious offence which can be punished by up to two years’ imprisonment. Although, in most cases, a fine is imposed for publication of material in contempt of court. The last editor to be imprisoned for contempt was Silvester Bolam, editor of the Daily Mirror, for a report in 1949 on the arrest of John George Haigh also known as the ‘Acid Bath Murderer’ (R v Bolam ex p Haigh (1949) 93 Solicitors Journal 220). The headline was ‘Vampire - a man held’ above the report which stated that Haigh, the ‘vampire killer’, would never murder again. The report was published in March 1949, four months before Haigh stood trial for murder. Ironically, Silvester Bolam was held in the same prison as Haigh. In 1997, the London Evening Standard was fined £40,000. The newspaper’s editor, Max Hastings, forced to apologise for a report that halted the trial of IRA terrorists accused of escaping from Whitemoor prison in Cambridgeshire.

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Why not allow for the live broadcast of trials of serious offences?

It all depends on whether defendants could get a fair trial when allowing the mass media to broadcast a trial. Despite the rebalancing of the criminal justice in favour of victims which has occurred in the past 20 years, defendants still have a right to a fair trial.

The right to a fair trial, under article 6(1) of the European Convention on Human Rights ('the convention'), is part of English and Welsh domestic law by virtue of Human Rights Act 1998 s1(1) and Schedule 1, which create, in that law, convention rights. These are most of the rights contained in the convention. Article 6(1) gives the right to a ‘fair and public hearing’, within a ‘reasonable time’, before an ‘independent’ and ‘impartial’ tribunal ‘established by law’ when there is a determination of a person’s civil rights and obligations or any criminal charge. This applies to the whole process, including possible appeals and review. It is not whether the decision is right or liked, but whether the procedure was fair.

Broadcasting a trial could lead to unfavourable publicity, which could in turn result in unconscious bias by the actors in a criminal trial, so that the trial is unfair and there is a miscarriage of justice. This may particularly affect jurors who decide on guilt in criminal trials dealing with indictable offences. Lawyers can be trained to deal with such bias but it would be naive to conclude that counsel and the judiciary are immune from the effect of hostile media coverage. On the other hand, broadcasting in relation to someone accused of a serious offence is an incentive for the actors in a criminal trial to act efficiently and correctly.

So, the question is whether the broadcast of a trial of a serious offence would increase the risk of the defendant’s right to fair trial being violated because the actors in the trial would be influenced by the court of public opinion as revealed in the mass media and social media. This risk may be increased because the crime is sufficiently horrendous so as to shock the public. However, surely judges could effectively warn juries to act only on the evidence given in the trial.

Currently, there is evidence that social media could be putting the right to fair trial at risk. In 2016, two teenage girls were convicted of the murder of a vulnerable woman in a second trial (R v F & D). The first trial, in 2015, had to be abandoned because there had been a torrent of abuse on social media, including threats to the teenage girls and attacks on the court process, which lead the judge to conclude that a fair trial was not possible. During the retrial, restrictions prevented details of the proceedings being published on social media and required editors to disable comments on website message boards.

This was the first time this had happened and, as a result, the Attorney General issued a call for evidence to gather information on the impact that social media has on the criminal justice process.¹ The conclusions were, first, was that prejudicial social media posts are not uncommon.² The Attorney General’s Office has agreed points of contact with social media companies, so that relevant posts can be identified and, if necessary, removed. Second, many of those who use social media were unaware of reporting restrictions and the risk of committing contempt of court. Third, the judiciary is equipped to mitigate the effects of adverse social media posts, but this can delay the trial process.

Conclusion

The change to broadcasting judges’ sentencing remarks and the sentence passed is to be welcomed as a move to open justice. But further change is needed to include counsels’ submissions as these would give context to the judge’s remarks and sentence. Whether Crown Court trials will ever be broadcast is unlikely because of the reasons mentioned above and for other reasons, such as the fact that participants in a trial have the right to privacy, particularly if they are victims or witnesses.

  1.  'The impact of social media on the administration of justice: call for evidence’, 15 September 2017
  2.  'Response to Call for Evidence on the impact of social media on the administration of justice', March 2019
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