Looking down to the ground floor.  People entering the building.

Lights, camera, legal action

07 August 2017. Published by Charlotte Thompson, Associate

The law has proven a popular subject of television programmes for decades. Charlotte Thompson explores whether the drama of real life trials may soon reach the small screen.

TV fans have enjoyed some classic legal television programmes recently. Channel 4's The Trial proved gripping viewing earlier this year. Similarly, The People v OJ Simpson was surely one of the best shows of the last few years (although the lawyer in me fact-checked the plot as I watched).

However, despite the public's appetite for law on TV, most of England and Wales' court rooms are banned from broadcasting court proceedings. Why?

Cameras in the courtroom

In June, Lord Pannick QC called for restrictions on broadcasting of court proceedings to be reconsidered. Lord Pannick has experienced cameras in the courtroom first hand – he represented Gina Miller in her Supreme Court case against the Government on Article 50, which was live streamed over the internet to the delight of constitutional law nerds worldwide.

Section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981 prohibit the recording and broadcasting of proceedings of a court or tribunal in England and Wales. There are exceptions. The Supreme Court has been outside this restriction since its creation. Footage from the Court of Appeal has also been broadcast since 2013, due to section 32 of the Crime and Courts Act 2013 which allows exemptions to the ban. However, there are restrictions to filming in the Court of Appeal – recording is limited to lawyers' submissions, their exchanges with the court, and the court's judgment. Broadcasts of proceedings cannot be made for "light entertainment" or "satire".

Cameras remain banned from other English and Welsh courts, although moves towards the extension of cameras from the Court of Appeal and Supreme Court are being made. In a 2016 pilot scheme, several Crown Courts were filmed for the first time, albeit covering only judges' sentencing remarks. In Scotland the situation is different: since 1992 broadcasters have been allowed to apply to televise trials, if all parties involved give their consent. In reality, permission is given infrequently.

Order, order... me some popcorn?

The arguments for and against the broadcasting of trials are well trodden. Lord Pannick argues that "open justice should be open to the cameras". The argument is a compelling one. The broadcast of trials, complete with adequate protection for witnesses, could increase confidence in the court system, encourage transparency and inform viewers about the legal process. Members of the public are allowed to enter courtrooms in person and watch proceedings; why should we not be able to choose to watch in our own sitting rooms?

However, Lord Pannick's point of view is not held universally. Some fear the impact of cameras in the courtroom. Even if not shown on tape, witnesses may be less inclined to give evidence if cameras are present. Lawyers might be more inclined to "showboat" for viewers at home.

In 2013, Baroness Helena Kennedy QC spoke against the introduction of cameras into the courtroom, arguing that TV companies, which are desperate to broadcast criminal proceedings, would wield too much influence over the legal process. She suggested that the broadcasting of trials on TV will turn them into a spectacle; trials would be edited for dramatic effect, with legal realities distorted. Certainly, it is said that the OJ Simpson trial, and the media circus that surrounded it, severely undermined arguments for broadcasting from English and Welsh courts.

As for the difference between allowing the public into a courtroom and allowing the public to watch at home, Baroness Kennedy has suggested that one watches television in a different way from how one looks at real life. Certainly, in court, you are struck by the gravity of the moment. On television, court proceedings may just seem like a crime drama, the goriest or most star-studded cases proving the most popular. However, such fears may be underestimating the sophistication of viewers.

It is interesting to compare these debates to those which preceded the decision to broadcast proceedings from the Houses of Parliament. Whilst for some cameras in Parliament is the norm, it was not until the late 1980s that television broadcasting was permitted. Opponents presented similar arguments to those used by opponents to courtroom cameras, such as over-emphasis of the most dramatic moments of debates. Parliamentary proceedings and court proceedings are undoubtedly different in some respects, but in years to come, will opponents' arguments against cameras in court seem as regressive as arguments against cameras in Parliament?

For now at least, we must make do with fictionalised or reconstructed drama on the box, as opposed to the real thing.