Not only must justice be done; it must also be seen to ...

Not only must justice be done; it must also be seen to be done.

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LLB Law with Criminology student Jack Harvey recently won second place in the annual Kevin De Silva competition with this essay on whether cameras should be allowed in court.

 

NOT ONLY MUST JUSTICE BE DONE; IT MUST ALSO BE SEEN TO BE DONE.” R v SUSSEX JUSTICES, EX PARTE MCCARTHY ([1924] 1 KB 256, [1923] All ER Rep 233) SHOULD THERE BE CAMERAS IN COURTS?

Ever since public executions by the Anglo Saxons in the 5th century to the last hanging in the UK in 1964; justice has been seen to be done. In many cases, crowds of spectators have witnessed justice by the hanging, beheading and burning of heretics, criminals, kings and queens. Although an extreme example, it can be seen that this form of punishment is the way in which the public could witness or see justice being done. In a modern setting, one can attend any court, except for a family court case, to learn or just to spectate as the public did centuries before. If the addition of cameras were to be installed into all court rooms around the United Kingdom, one must ask the purpose of the cameras, whether it is to reach a wider audience and draw in a larger crowd, or for the purpose of checking the courts for any miscarriages of justices.

Currently in the United Kingdom it is very rare any images or video recording will take place in the court room. The Criminal Justice Act 1925 section 41 (1)(a)dictates that to,

take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal… and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.”

This meant that no footage or photograph of any kind is allowed in the courts under any circumstances. However, more recent legislation, The Crime and Court Act part 2 section 42, relaxes these rules slightly by allowing some filming to take place in appeal courts and under special permission by the Lord Chancellor in collaboration with the Chief Justice. This highlights at least a step towards a more foreign idea of broadcasting trials for news and reporting purposes, although this is only permitted in civil proceedings and not criminal trials like many famously broadcasted cases are.

Installing cameras in the courts for spectator/reporting purposes would most likely cause controversy.

For the public to witness justice being done in any case at the touch of mouse or television remote would allow the general population to watch and follow significant cases taking place in their local county court, criminal court or all the courts in the judicial system. Internationally, this is common in the most high profile cases, most recently the Oscar Pistorius murder case in South Africa (The State v. Oscar Pistorius (2014)). The High Court ruled that the trial would be broadcast live on television, however only the lawyers speeches, expert testimony, court rulings, judgements and the sentencing would be broadcast. This ruling allowed not only the people of South Africa to watch the trial, but also the international public to become intrigued by the unfolding events of the murder trial. At the time of the case in 2014, one of South Africa’s leading broadcasting companies created their own channel dedicated to following the case in depth, showing nothing else but the trial. This example of a ‘media frenzy’ over an individual and controversial case is common, but if we were to have cameras in the courts in the United Kingdom, should the media adopt the same approach of creating a channel dedicated to showing the trials of the day, similar to that of the channel BBC Parliament which shows the highlights of what has happened in Parliament every day. This would allow the public to watch for the same purposes that attending spectators of courts do, but instead from the comfort of their own homes.

On the other hand, the media could install cameras exclusively in the criminal courts as these types of cases are most likely to capture the wider audience as criminal trials are intense, dramatic and similar to that of a drama series like Law and Order UK. However, this is not necessarily for the purpose of seeing justice being done, rather if the media wants to convey that message other than solely focusing on the entertainment value, they should place cameras in all the courts to witness justice being done in civil procedure, such as a breach of contract dispute which still highlights justice being done.  This prospect is ‘ideal’ being able to watch justice unfold in the court room, but commonly, the reason the media dedicate themselves to a case, such as the Oscar Pistorius trial, is because of their nature as a celebrities fall from grace. This attracts the general public not to see justice being done necessarily, rather just because the person is famous and in such a controversial position.

Following on from this idea of the media’s influence of using the cameras in the court room for reporting purposes, it is possible to explore the idea that, rather than for reporting, the cameras are used merely as a way for the court to check and balance trials for any miscarriages of justice and, therefore highlighting justice being seen to be done.

Filming the whole court case would allow Judges and senior officials to check various aspects of the case including the questioning of witnesses and possibly jury deliberations.

One could argue that the idea of filming jury deliberations would stop many cases of bias, dismiss any uses of evidence the judge has asked the jury to set aside, allow checks on jury members introducing extrinsic evidence and stop cases of racism by the jury.

Controversial cases such as R v. Mirza (2004) and R v. Conner and Rollock (2004) could have possibly been easier to conclude as cameras would prove whether during jury deliberations a miscarriage of justice had occurred.  In the case of R v. Mirza, on appeal, the plaintiff made the argument after a letter from a concerned juror, that the jury had been racist towards the offender because he required an interpreter during the trial. The letter read that some of the jurors considered the interpreter as “a devious ploy” when the judge had directed the jury to set aside the fact there was an interpreter present. However, the appeal was denied as due to the common law, there is an ‘absolute rule’ that all jury deliberations are secret, established in many cases including R v. Thompson (1962), Ellis v. Deheer (1922) and R v. Miah (1997). This appeal case was combined with the appeal from R v. Conner (2004) where another possible miscarriage of justice by the jury occurred. The plaintiff’s argued that another letter from an upset juror confessing that during jury deliberations they could not decide whether one or both of the defendants were guilty or not. Therefore, the jury did not want the already six-day trial to continue so decided both were guilty without really considering the evidence. The reasons for this that concerned jurors raised in their letter were that the jury had been in the narrow mind-set that the defendants would be taught a lesson, and the judge would give a lighter sentence to the two young defendants. The appeals were dismissed due to the common law.

From these two infamous appeal cases, it seems that installing cameras in jury deliberation rooms for the sole reason of checking that the jury are following the correct codes of the justice system could prevent any miscarriages of justice, and cementing justice being seen to be done. Furthermore, the cameras would highlight any corrupt jurors who are using external beliefs and prejudice to influence their decisions, such as possible racism in the R v. Mirza (2004) case. The cameras could also prevent any extrinsic evidence being exposed in the deliberations. An example of this would be the case of R v. Young (1995) where a group of undecided jurors used an Ouija board to decide whether the defendant murdered a young woman by speaking to her spirit and asking her. This is an absurd example of extrinsic material being applied to a case and swaying a decision of guilty or not guilty. Although, in this case due to the extrinsic material; there was an exception to the established common law on jury deliberations. However, this was only due to a disgruntled juror coming forward to express what had happened during the jury deliberations. Whereas if the deliberations were recorded and checked then justice will be seen to be done as the evidence would be clear and concise as to whether there has been a miscarriage of justice or not.

Realistically, although this situation would be arguably ideal for witnessing justice taking place, it is still not completely faultless or possibly not even ethical.

In the joint appeal of R v. Mirza and R v. Conner and Rollock the Lords came to the conclusion that the common law rule of secrecy in jury deliberations should be held because if it was not, in other cases it would endanger the members of the jury. This is especially true if the case were a gang related incident where the gang could intimidate or threaten the juror who was bias or wanted to see a conviction. If cameras were installed; on a re-trial these tapes would have to be shown as evidence and this could lead to any jurors involved in the miscarriage being put in danger. In the Canadian Supreme Court, Arbour J gave a rationale for this secrecy rule explaining in the case of R v. Pan (2001), “free to explore out loud all avenues of reasoning without fear of exposure to public ridicule”. This ruling cements the point once again that if cameras were installed to possibly show justice being done, the safety of the juror’s ability to admit their true views towards the case may be affected, therefore creating a new form of corrupted decision making. In connection to this idea, it could be argued that if cameras were installed in the jury rooms the jurors Human Rights Act (1998) Article 8 right to privacy could be infringed. This is because the right protects, “any unnecessary and heavy-handed…intrusion into your personal life.” It can be argued that the jury deliberations being filmed could amount to a breach as “personal life” could include part of a person’s personal views about the case and the defendant.

The Article 8 right to privacy would also expand to the filming of the court case itself where the defendant’s privacy in the court room, especially when it concerns charges such as sexual harassment, rape or murder could be breached. Although the media has access to what has occurred in the court room, no pictures or video are ever produced. The case of O.J Simpson in 1994, (People of the State of California v. Orenthal James Simpson (1994)) is a prominent example of media manipulation that arises from the installation of cameras; making the defendant seem guilty in all forms of media before the trial had even begun and the evidence presented. An example of this was Time magazine’s cover which read, “Trail of Blood” with a darkened image of O.J Simpson which caused a considerable amount of controversy. This highlights the way justice is seen to take place in the courts; that if cameras were installed in the court room, a greater level of media influence would affect the courts and create an unnecessary amount of coverage, especially when the coverage we currently have is perfectly adequate.

The UK courts are currently in a state where cameras are not installed in every court room or jury deliberation room. The reasons that surround this issue are where the cameras would be placed, be it in the court room itself during the trial or in the jury deliberation rooms, and why place them there, be it for the media to report on it or for the court to check for any miscarriages of justice. These reasons are vital as they possibly justify why these cameras are necessary for a court system that portrays justice being done consistently and functions adequately without any cameras whatsoever. One must compare the other courts around the world which utilise cameras in their court rooms and it seems that the prime examples focus largely on media reporting, which is in itself controversial as the media become too involved in the case. It seems that if cameras were installed in UK courts, the focus would be less on showing justice being done, rather showing who the justice is being done too.

You can also read the news story on Jack’s success on the Nottingham Law School website.

 

Bibliography:
Legislation:
  • The Criminal Justice Act 1925 s. 41 (1)(a)
  • The Crime and Court Act 2013 part 2 s. 42
  • Human Rights Act 1998 Article 8
Case Law:
  • S v Pistorius (CC113/2013) [2014] ZAGPPHC 793 (2014)
  • R v. Mirza (2004) UKHL 2
  • R v. Conner and Rollock (2004) UKHL 2
  • R v. Thompson (1962) 1 All ER 65,66, Lord Parker CJ
  • Ellis v. Deheer (1922) 2 KB 113, 117-118, Bankes J
  • R v. Miah (1997) 2 Cr App R 12, Kennedy LJ
  • R v. Young (Stephen) (1995) QB 324
  • R v. Pan (2001) 2 SCR 344 Arbour J, pp 373-375
  • People of the State of California v. Orenthal James Simpson (1994) BA097211

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