I have given this heading to my contribution. What I have to say represents an entirely personal view, an exclusively personal view. It does not reflect the views of any other judge, let alone the views of the judiciary as a whole.
Secondly, I should say that the views which I express today are not informed by the results of the television pilots which were completed just before Christmas. I have seen the technological arrangements, the cameras, and the behind the scenes processes, but not yet the results. They may of course alter my views. After all, judges are supposed to reflect on evidence, and are free to change their minds in the light of any evidence.
My starting point is simple.
The system of justice - criminal, family, civil - the whole system of justice belongs to the community at large. It is not the private property of judges and lawyers. Judges serve the community. The laws we apply are largely laid down and are always capable of amendment by the community through Parliament. The necessary independence of each judge to administer the law as he best understands it is a reflection of a civilised community’s need for justice to be administered impartially and neutrally, and free from outside interference and pressures, direct or indirect. Nevertheless, it remains the community’s system. It is not my system, save that it belongs to all of us inside this lecture hall, and of course, to everyone outside it.
There is, and although today is not the occasion for analysing the reasons, a great deal of public misunderstanding and lack of awareness of what the court system does, what is it intended to achieve, and how it works, and if I may say so, how good it normally is.
Where there is misunderstanding, confidence cannot thrive. I need not explain to this audience the potentially damaging social consequences which can follow when the community loses faith in its judicial system.
Perhaps I should also briefly observe that I am as committed as anyone to the principle of open justice. Justice carried out in cloistered hall is open to abuse, and pressure. That is an argument against secret justice. It is an argument that means that journalists are welcomed into court as the eyes and ears of the public. The courts do not become secret courts because they do not fill the airways and television screens. They were not secret courts before television and radio were invented, and the public was informed exclusively by the press. They are not secret courts now. They are open.
I very much wish the community to be better informed about our system of justice than it is, and I say that because I am totally confident in the system’s ability to stand up to detailed and sustained scrutiny. That cannot be done by television and radio alone, but television in particular is one such medium, always powerful, always influential, sometimes banal and trivial, sometimes informative and educational, and sometimes like the independent press, rightly shedding light in darker corners. But, even in our open system, the public remains under-informed.
You will however all have noticed that my starting points relate to the system and to the educational and informative potential of broadcasting to the community as whole. But, and it is a critical and fundamental but, the paramount concern, the exclusive concern of any system of justice is that justice should be done. The interests of justice in each individual case, and to those individuals involved in each individual case, always and without question, comes first. As against those considerations, even the desirable advantages of television and radio broadcasting – which I am the first to recognise - have to come second. In this context, in court, in a civilised community, the ultimate public interest is that justice should be done, and to the extent that broadcasting may inhibit the doing of justice, it should not be allowed in court.
May I take a few examples.
I do not want witnesses, any potential witness, whether for the prosecution or the defence, to be unwilling to reveal himself or herself simply because he has no wish to be seen on television screens being cross-examined simply so that the public can see a wise sensitive trial judge at work. That gain is not worth the loss of a single witness. Anything which deters victims and witnesses from coming forward, and when they do come forward, giving of their best in court is unacceptable. Over the last few years considerable steps have been taken to try and reduce the pressures on victims and witnesses, and we do not now want to start increasing them.
Again, speaking broadly, the victim of a crime is entitled to the verdict of the jury: so is the defendant. This is not the judgement of the television camera or the public, basing its views on what the editor chooses to broadcast, and neither the victim nor the defendant should be exposed to the risk, and the risk is present, of being victimised by becoming the titillating object of spectator sport.
This is the great difference between televising witnesses and victims and television of Parliament. Members of the House of Commons and the House of Lords are public servants: victims and witnesses are not.
Jurors, too, must be free of improper but inevitable pressures arising from public discussion which may influence their views. It is not quite enough to say that they would be protected by keeping cameras away from them, and not showing them. The risk is that everyone living around them would be tempted to express views which they had derived from broadcasting, views which might in the end influence the jurors.
So if we are to broadcast justice, the product to be broadcast must indeed be justice, uninhibited, uninfluenced, by the presence of broadcasters, cameras in particular, in court.
The logical conclusion of my present approach is that the blanket prohibition against broadcasting in court should be re-examined, and where we can be entirely satisfied that justice will not be inhibited, the prohibition should be relaxed.
That may have a number of consequences, which I offer for discussion. It may mean that we could end up with different results for television and radio coverage. Or perhaps broadcasting which is not immediately live, but prepared at the time and during a hearing could be broadcast later. There issues of consent. It does not seem to me right to have a principle which says that the parties to litigation should decide for themselves whether broadcasting should take place. Either it should, or it shouldn’t. Consent may be an ingredient leading to the conclusion that it should. And, and I am about to hear a huge collective intake of breath, there are issues of editorial control of the product. Should it be vested exclusively in the media?
Some of the risks identified by me may not arise in cases heard in appeals, where there are no witnesses.
I am not commenting on individual cases. But consider a number of issues of public interest. Deep vein thrombosis on long flights. Issues of life and death, and whether doctors should be forced to keep someone alive by every means available to them, or be allowed to exercise their own professional judgment whether to revive and resuscitate, and when not to do so. In this country, does the law permit detention for indefinite periods of individuals who have never been charged with any offence. In criminal cases, there is a genuine public concern about sudden baby deaths, and cases in which mothers have been convicted of murdering their children.
The assumption is that judges will not be influenced in their decision by the presence of broadcasters. I assume that this assumption is right. When issues of public interest like these arise, I myself doubt whether greater public discussion and involvement would inhibit judges from applying the law as they find it to be. And then the public might better understand how and why the particular decision came to be reached.
The long term concerns are of course the criminal trial. We shall have to think about them. I have been, I hope, quite unequivocal in the broad position I have taken. But some may argue that perhaps part of a criminal trial, the judge’s summing up, or his sentencing observations could perfectly well be broadcast without risk to justice.
The point of discussing these issues today is to see where they take us. There are all these matters of detail. We must however first establish the principle against which the detail has to be set. In summary, my position is this. Provided there is no risk that justice will be inhibited or unheeded, there would be much to be gained from increased public awareness of the court process and the administration of justice. But in the end, if we return to the title of this contribution, we must have broadcasting of justice. Not even a little less than justice. Not, say, 97% of justice. Just justice.
Please note: speeches published on this website reflect the individual judicial office-holder's personal views, unless otherwise stated. If you have any queries please contact the Judicial Communications Office.
