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Caution ahead! Consideration of live broadcasting of trials

16 Jun 2020

Karl Shirran is a practising barrister in his third year at the Irish Bar. His civil practice
includes, employment law, company law, tort law and defamation law. He holds an
undergraduate BCL degree (Hons) from University College Dublin, an LL.M degree (Hons) from the University of Dublin as well as an M.Litt. degree (research masters) from the same university. Finally, he is Secretary of the British and Irish Commercial Bar Association.

 

A fully referenced article is available here.

 

 

Dear Editor,

 

Introduction

Proposed legislation in England and Wales will result in sentences passed by Crown Court judges being broadcast live from that court for the first time.  The broadcast will require the permission of the presiding judge and may be subject to necessary restrictions. In Ireland, in recent times, aside from audio visual images showing judges entering and leaving the courtroom, our Supreme Court has only occasionally taken to allowing live broadcasting of judgments delivered in Court.

 

Whilst England and Wales proscribe recording of proceedings (including by sketch artists present in court) since at least 1925,  this jurisdiction has no law underpinning the lack of broadcasting from courts.  As Conor Gallagher suggests, the practice of preventing court proceedings being broadcast has simply developed with nothing preventing a trial judge (or court) from allowing cameras cover proceedings. Indeed, agreement reached between the judiciary, the Court Service and RTÉ enabled the recent coverage of Supreme Court judgments delivered live.

 

The Law

The seminal case of In Re R Ltd  is not directly relevant to televised proceedings. Nonetheless, it does lay down important general principles relating to the constitutional requirement for public trials, having regard to Article 34.1° of Bunreacht na hÉireann.  The Supreme Court ultimately rejected the application made by the CEO of the company seeking to have the case heard in camera. The Court held that the applicant must show a public trial ‘would deny justice as between the parties’ as opposed to simply prejudicing the company’s interests.  In addition, the case made clear that the courts did not retain an inherent jurisdiction to exclude the media without legislative prescription subsequent to the adoption of the 1937 Constitution.  Casey suggests uncertainty exists around the constitutionality of mandatory statutory provisions excluding members of the public from court proceedings. 

 

Furthermore, judgments of the European Court of Human Rights (ECofHR) may in time influence the requirement of justice to be administered in public and the specific issue of broadcasting court proceedings. In Axen v Germany,  the ECofHR considered whether a decision of the Federal Constitutional Court of Germany was pronounced publicly, as required per Article 6 of the European Convention on Human Rights (“the Convention”), the Court states

 

that in each case the form of publicity to be given to the "judgment" under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 para. 1

 

In Diennet v France  domestic legislation ensured a medical disciplinary hearing was heard in private. The aim of the legislation was to prevent a participating medical professional from breaching his/her confidentiality obligations. No discretionary power rested with the disciplinary body to hold a public hearing and the Conseil d’Etat could not be viewed as ‘a judicial body that has full jurisdiction’, which if met, would have ensured part of the legal process was open to the public. In short, the ECofHR held that the private hearing amounted to a complete ban on members of the public attending, which was not strictly required by the circumstances.  The Court held if there was a risk that the duty of confidentiality would be breached by the presence of members of the public, the body should have been able to hold that part of the proceedings in private. 

 

Finally, and most significantly, in Pinto Coelho v Portugal (No.2)  the ECofHR considered audio recordings of a proceedings, made by a journalist without the permission of the domestic court (required by domestic law) and later distributed as part of a report highlighting a wrongful conviction. Despite the audio recordings including examination and cross-examination of witnesses, the witnesses, lawyers and judges’ voices were digitally altered as part of the produced report. The Applicant journalist was convicted of breaching domestic law and fined €1,500. The Court held that the Applicant’s Article 10 right to freedom of expression was breached.  Though the domestic law was prescribed by law and pursuing a legitimate aim of protecting the proper administration of justice and the rights of others, the restriction was not necessary or proportionate to the said aim. The Court was conscious that the audio used was distorted to protect the identity of those involved and the broadcast was subsequent to the trial. Tomlinson highlights a number of points concerning the case.  First, the Court did not consider the matter through the lens of Article 6, Article 8 or for ‘maintaining the authority and impartiality of the judiciary’ as per Article 10. Secondly, he states the judgment ‘may provide grounds for a media challenge to the compatibility of section 9 of the Contempt of Court Act 1981 with Article 10’.  Finally, he notes the Court did not consider whether a system of prior authorisation of audio tapes was ‘necessary and proportionate’.  Despite the judgment being fact specific and not considering the additional ground under Article 10 of protecting the judiciary, it is difficult to see any future broadcast including an audio recording of proceedings (subsequent to the matter being finalised and with appropriate distortion) not protected by the Convention. Whether this could extend to audio visual transmission and in what context remains to be seen. Nonetheless, the Pinto judgment may be a timely indication of the direction in which Strasbourg jurisprudence is moving.

 

Concern

What follows are the arguments (and concerns) against televising court proceedings – some are well rehearsed with others more nuanced. In general, the desire for public education on the one hand competes with protecting the proper administration of justice on the other hand. There are additional concerns for broadcasting trial courts as distinct from appellate courts. However, this article is concerned with proceedings generally.

 

By far the greatest concern amongst jurists and commentators in allowing cameras into the courtroom, is that the quality of justice will suffer. The fear is lawyers and judges may be prone to grandstand and judges more inclined to censor their interjections.  The United States Supreme Court is the most interesting institution to analyse when considering this topic, being one of the only institutions of state in that jurisdiction which does not allow proceedings be broadcast.  Despite legislation allowing some lower courts in the US broadcast their proceedings, the Supreme Court only allows audio recordings to be published at the end of the week of legal argument. Notably, all of the serving US Supreme Court justices, bar the two most recent appointments (Justice Gorsuch and Justice Kavanaugh) have signalled their opposition to the broadcasting of the Court’s proceedings.  Justice Breyer and former Justice Anthony Kennedy raise a number of less obvious concerns with cameras in court.  First, Justice Breyer notes that oral argument before the Supreme Court only constitutes approximately 2% of the Court’s work.  As a result, not only will the public likely lay too much emphasis on this reality; human nature tends to personalise the case (and it’s participants) rooting for one party (and perhaps in part the more appealing advocate) and by consequence against the other. In contrast, the Court must clinically decide each case based on legal principles for 300 million people. Secondly, he suggests that his practice of playing devils advocate – probing advocates before the Court with exaggeration, thereby, clarifying and refining legal points, would be threatened by quotes taken out of context and used to undermine judges.  Justice Kennedy argues cameras would change the dynamic of proceedings, lessen cordiality between colleagues and the conversational nature of the Court.  Finally, Chief Justice Roberts argues that the Court is not there to educate rather to reach the correct legal decision. He does not believe that any public institution has improved from television coverage.

 

Part of the difficulty with this issue, is the lack of certainty surrounding the effects of publicity on the justice system.  There are issues which should be carefully considered before any system of justice moves to broadcasting routinely, many of which specifically relate to the audio visual medium. Once a broadcast of proceedings exists, regardless of copyright, it exists to be copied and exist going forward. Claire Callanan argues that there is potential for any unsuccessful litigant to have a You Tube video (or similar record) as a permanent reminder of an unsuccessful case.   Other questions arise; would the public benefit from video clips of judges presiding in court subjected to some form of editing on social media? Perhaps playing their part in a meme.  Will broadcasting of proceedings invariably lead judges into a more confrontational role with the media and wider society? Furthermore, leaving aside the ‘attraction’ of cameras ‘for the exhibitionist - lawyer, party or witness’,  cameras in courts of first instance may unwittingly create an additional platform for the crank simply seeking publicity.

 

Conclusion

It is difficult to assess whether understanding (as distinct from legitimacy) of the justice system has improved by the broadcasting of cases in jurisdictions which allow for this.  Whatever developments may transpire in Ireland, the ‘quality of justice’ must be the preeminent and guiding principle.  Surely the questions which must be addressed before proceedings are broadcast include: – (1) What is it about the medium of television, when compared to other mediums, that risks damaging the justice system to a greater extent?; and (2) Can that potential for damage be sufficiently negated?  

 

Is mise le meas,

 

Karl Shirran

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