By Paul Mason
It was announced back in January that the sentencing remarks of senior judges in Crown Courts could be filmed and broadcast. The Crown Court (Recording and Broadcasting) Order 2020, limits such broadcasts to High Court Judges, Resident Judges and Senior Circuit Judges at the Central Criminal Court. No other court users, including victims, witnesses, jurors and court staff would appear on camera. The legislation, yet to come into force follows a three-month pilot in which remarks were filmed but not broadcast in eight Crown Courts.
The Court of Appeal (Recording and Broadcasting) Order 2013, permitted the televising of criminal appeals for live broadcast. This included a number of detailed safeguards including a 70-second delay to allow for redaction of any material which contravenes broadcasting regulations or reporting restrictions. Further, Judges retain the power to prohibit filming or broadcasting if it is in the interests of justice or to prevent undue prejudice. Like the new Crown Court Order, footage can be used in a news and current affairs context only, not other genres such as satire, entertainment or commercial use in advertising.
Both Orders provide an exception to s.41 of the Criminal Justice Act 1925 which prevents filming in courts; and s.9 of the Contempt of Court Act 1981 which prevents the use of tape recorders. Part 16C of the Criminal Practice Direction 2015 Amendment No 3  EWCA Crim 430 provides that a journalist or legal commentator who wishes to use live, text-based communications such as Twitter or email may do so without making an application to the court. This is because it is presumed that they will be doing so for the purpose of preparing fair and accurate reports of the proceedings, which does not interfere with the proper administration of justice. A member of the public who wishes to do the same is required to make an application for permission, which may be done informally by communicating a request to the judge through court staff. All users of electronic devices to make live, text-based communications must also comply with the reporting restrictions set out in ss. 1, 2 and 4 of the Contempt of Court Act 1981.
It would appear the tide is turning in favour of broadcasting criminal proceedings. Something broadcasters have been pushing for over the last 20 or so years. The reticence for broadcasting criminal appeals is perhaps obvious. For every call for transparency, there is the sober warning of sensationalism, salaciousness and showboating. The spectre of the OJ Simpson trial coverage back in 1994 still looms large.
Paul works with the DSC international media defence team on freedom of expression issues. He has published widely on the use of electronic broadcasting in courtrooms and was consulted by the, then Lord Chancellor’s Department on proposals for cameras in UK courts.
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