Stephen McGinty: Trial by television

LORD Hewart was the Lord Chief Justice of England and a man with a face like well-pummelled dough. What he lacked in looks, he made up for with intellect. He regarded the English legal system as the finest in the world and the jury system as impeccable, though, on one occasion at least, capable of grave error. In 1931 Hewart made legal history by dismissing a guilty verdict for murder on the grounds of a clear lack of evidence. He is also remembered as the man who coined the aphorism: “Not only must justice be done; it must also be seen to be done.”

However the question at the heart of the debate over televised trials is that, while all may agree that justice “must also be seen to be done”, the key matter is by whom? At the moment our Scottish courts are public. Anyone can pass through the metal detectors, turn out their pockets and take a seat outside a court room, be it, sheriff or High Court, and when the staff spring open the doors stroll inside and take a seat in the public gallery. If discreet and careful to avoid the impertinent rustling of cellophane paper, they may suck on a boiled sweet or peppermint as one of the greatest shows on earth is played out before them.

They can watch enraptured as a witness describes finding the body of a murder victim, be educated about crime scene investigations and moved to tears by the extenuating circumstances of poverty and abuse that prompted the accused to lash out, at least, according to his or her defence. They can watch as the cold-hearted are sentenced and the innocent set free. They can spend a long time, days, weeks, even, on occasion, months staring at the members of the jury, pondering where they live and what they do and if, judging by their body language, any of them have grown a little too close. They can follow their favourite QC, perhaps the one with the mutton chop sideburns who is regularly in the news, and whose oratory is such that even the driest case can appear as animated as a Raymond Chandler novel.

At no point will anyone ask why they have decided to attend this case or that, why they have opted for a murder over a sexual assault or a drug deal over the twisted assault in Court 6. The court’s function is not to entertain, but nor is it to snuffle out the motivation of those members of the public who take advantage of their civic right. Ever since there have been courts of justice there have been members of the public fascinated by their proceedings and entertained by their outcome. In the 18th and 19th century, the public gallery in Britain would frequently resemble the crowd for a pantomime, so vigorous was their behaviour.

So the precedent is set: we, as members of the public, are permitted to watch the mechanism of justice. The only condition that is currently set is that the individual must attend in person and, given the size of the average court room, there must be no more than, say, 30 members of the public. The same principle has applied to debates in the Houses of Parliament, the Scottish Parliament and local councils across Britain. The public is free to attend, with their numbers only restricted by the available space. Technology, however, has allowed the principal to remain the same, that the public has the right to view, and expanded the size of the public gallery. So, in 1989, television cameras were allowed, for the first time, to film the proceedings of the House of Parliament and now, today, every cough and splutter of the Scottish Parliament is available to view on the web. There is an argument that the same should be done in our court rooms. The technology is available for proceedings to be streamed live to a government website, so that, for example, the retired couple who so enjoy a visit to the High Court for a good drugs trial, need not even put on their coats. If we accept the right of a single member of the public to watch every second of a trial, then what difference does it make if we facilitate 1000 people or 100,000 people?

What is interesting is that in Scotland there has been no debate in the Scottish Parliament about the issue of to what extent television cameras should be permitted into the court room. Instead of the public’s representatives weighing in on the pros and cons of expanding the public’s access, or, the convenience of such access, the decision rests with the Judiciary and there the matter seems even more complicated and confusing.

Up until 5 August, 1992, the matter was rather simple and clear cut. No television cameras, of any size or sort, was permitted within the court’s precincts. However it was the BBC who challenged the old ruling and argued that times had changed and was it still necessary for the principal image of the nation’s court room to come from a charcoal sketch, a form of media unchanged in 17,000 years since the cave painting of Lascaux? As a result the then Lord President, Lord Hope, issued a note – Television in Courts – which stated: “While the absolute nature of the rule makes it easy to apply, it is an impediment to the making of programmes of an educational or documentary nature and to the use of television in other cases where there would be no risk to the administration of justice.”

As a consequence, television cameras were permitted into Scotland’s court rooms for the first time. A murder case was filmed and, after the conviction, later broadcast as part of a series The Trial. Later, in 1996, Lord Ross was content to be filmed, sentencing an individual with the footage broadcast on that evening’s news. It is only to be expected but the people pushing for the TV cameras in court are broadcasters. The recent spate of footage being filmed, such as Luke Mitchell’s appeal, or the sentencing of David Gilroy for the murder of Suzanne Pilley, which was filmed by STV, was as the result of a request being granted.

It was the broadcaster themselves who, in their request, said they would restrict the filming to the judge, Lord Bracadale. There is no legal reason why Gilroy himself should not have been filmed. Or is there?

The simple matter is that the question of what can and cannot be filmed remains the prerogative of the Judiciary led by Lord Hamilton. Next week, a major criminal case will begin and there will be TV cameras filming until the conclusion. However, once again, it will not be broadcast until after the verdict as part of a new documentary series on trials in Britain. Back in 1992, Lord Hope said that: “In view of the risks to the administration of justice the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances.” What this meant was that there would be no blow-by-blow filming of a trial with updates on the nightly news, but it seems that, in time, this will eventually become a reality.

This week the world watched as Anders Breivik was tried in Denmark for mass murder. For me the quiet efficiency of the court, the courteous manner in which he was tried and the patience of the judge with his ramblings was illustrative of a society with deep respect for the rule of law and its ability to deal judiciously with even the most horrendous cases. However I’m not sure if I agree with the decision to censor his right-wing justifications, on the grounds that light and air should be the antiseptic to such poison. By hiding them away, his tracts can become charged with greater meaning and power for those who would seek them out.

The same can be said for the issue of cameras in our courts. The broad protective dam that kept out cameras prior to 1992 has been breached and new technology can make extensive coverage of our judicial system far easier. While I accept day-by-day coverage could prove problematic, it has been surmounted in countries such as America and Denmark and so we turn, once again to Lord Hewart and whether we agree that for justice to be done, justice has to be seen to be done, preferably in high definition.

Stephen McGinty: Trial by television – in HD