1 December 2003
31 October 2013
29 July 2013
Aereo v Aereokiller: New York and California district courts disagree on what constitutes a public performance under the Copyright Act
12 July 2013
28 January 2013
26 February 2013
This month, the powers-that-be gave a rather tentative green light to a pilot scheme to allow cameras into the Royal Courts of Justice (RCJ). In the US, it was business as usual. The Colorado town of Eagle, home to around 3,500 people, was recently besieged by hordes of television crews readying themselves for a hearing that involved allegations of a sexual assault by the basketball legend Kobe Bryant on a 19-year-old female employee at a Colorado hotel.
“I think that the OJ Simpson case was the legal version of The Perfect Storm,” said Dan Abrams, the chief legal correspondent with US television network NBC. “I think this case will be a Category 4 hurricane when it comes to media coverage – but it won’t be The Perfect Storm.”
The Bryant trial has been billed as one of the biggest celebrity trials of the century, joining that of the former American football star accused of murdering his wife and her lover in 1995 and boxer Mike Tyson’s rape hearings.
It is widely believed that the debacle of the OJ Simpson trial derailed the prospects of cameras in courts on this side of the Atlantic; it also saw many states in the US review their own policies. Up until that time, the then Lord Chancellor, Lord Mackay had been persuaded of the merits of cameras in courts and the judiciary’s historic reluctance was thawing. A sign of this was the BBC2 documentary The Trial, which used footage of some trials filmed in the Scottish courts in 1992.
“We had a big launch for The Trial south of the border for English lawyers, which coincided with the OJ Simpson trial, and all they could think of was that they could be watching OJ, albeit in a wood-lined court with some blokes in wigs,” recalls Nick Catliff, now an executive producer at Lion Television, but who was still with the BBC when he directed The Trial. “That was a murder trial which was all about race with a dysfunctional judge, but it still blew us out of the water.”
Since then Catliff has worked in the US filming trials, most notably for the BBC series Boston Law, shown a couple of years ago. More recently the producer applied to film the Lockerbie trial.
Lord Irvine, then the Lord Chancellor, was keen on a relaxation of the ban on cameras. In March this year a dozen broadcasting companies and producers (including Catliff) were invited to draw up rules for a pilot project to film cases that come before the Court of Appeal. The proposals went to the Lord Chief Justice, Lord Woolf and other senior judges for approval. It appears that this month they agreed to a non-broadcast pilot. “It’s a very positive development,” Catliff says. “You can talk to various lordships until you’re blue in the face, but it makes more sense to just go ahead and shoot a film and prove that it can be done responsibly.”
The present ban on cameras dates back to the trial of Dr Crippen and concerns about photographs being published in newspapers. The statutory restriction (under the Criminal Justice Act 1925, Section 41) does not apply in the appeal courts, hence the possibility of the pilot. Nor was the legislation extended to Scotland, which enabled the filming for The Trial.
Mark Stephens, head of media law at Finers Stephens Innocent, acted for CNN in its applications to film the inquiry into the Harold Shipman murders and the trial of the Lockerbie bombers. With the Shipman inquiry, Dame Janet Smith allowed cameras in for some parts of the evidence, which was a first. However, the inquiry into the deaths of 400 patients was not a trial and so not covered by the 1925 legislation.
“It was the first application to film post the Human Rights Act, and I think what it did was presumptively open up the tribunals,” Stephens says. “But even the courts are susceptible to a challenge from the European Court for not being compliant with Article 10, because it’s a disproportionate interference with the right to free speech.”
Stephens also provided a comparative analysis on how different countries around the world dealt with cameras at this year’s Commonwealth Law Conference. “There’s this view that America is somehow the avant-garde of the movement of filming trials, but it’s not the most advanced country by any manner of means,” he comments. “In fact, many countries have free and unrestricted access to the courts, which they regard as a virtual public gallery that opens up the justice system to the people.” He cites high-profile examples such as the filming of the Truth and Reconciliation Commission in South Africa and the more commonplace use of cameras in Australia.
The justifications for a blanket ban on television cameras in court are well rehearsed. Rodney Warren, chair of the Criminal Law Solicitors Association, identified two main areas of concern, one a genuine threat and the other a more perceived than real danger. “First, that witnesses and jurors may, at the prospect of being seen by an even wider audience, be more apprehensive or nervous than they already are. It’s very important that they are relatively comfortable, sufficiently so to give evidence,” he says. The second problem is that the lawyers would act up for the cameras, although Warren dismisses this fear.
David Hooper, a media law specialist and partner at Reynolds Porter Chamberlain, is not so sure. “Once you involve jury trials you’re going to see people acting up to the camera and then you’ll have the sort of publicity that happens outside the courtroom being shipped in,” he reckons.
Despite his reservations, Hooper accepts the public interest benefit in allowing the public to follow more closely the workings of the courts. “I don’t think one should necessarily ban TV from court, but I certainly don’t think there should be an unfettered right of access,” he says.
Stephens believes that many of these practical concerns are adequately policed in other jurisdictions by the drafting of sensible codes of conducts. For example, he reports that some countries do not allow ‘reaction shots’ and most (but not all) ban the filming of jurors. “There are a variety of rules, but ultimately the judge has control to prevent certain information, if it isn’t in the public interest, being disseminated more broadly. They have that inherent power, but the overriding factor is that justice is done and seen to be done,” he says. “I started off as a sceptic, but once you look at the research you have no alternative but to think that this is a good thing.”
It is wrong to depict the US courts as some kind of media free-for-all where anything goes provided it delivers the viewing figures. “We’re struggling with the same issues here,” says Catherine Crier, a talk show host on US channel Court TV and formerly a Dallas County district judge. “There are individual states that don’t want the cameras and our federal system doesn’t want them in either.” Crier believes that the concerns commentators have about Court TV are groundless. “It’s a real shame because, prior to the OJ trial, [the federal authorities] were doing an experiment in the federal courts and they found that there was no disruption of the courts whatsoever – and then this one trial affected the whole debate,” she says.
The recent furore over the Bryant case has reopened the debate, but as Crier points out, it is nothing new. She cites the Scopes ‘monkey’ trial in Tennessee in 1925, when a biology teacher was arrested for teaching evolution in contravention of state law. A press report at the time described how the “battalion” of newspaper photographers and movie men “literally wrestled for advantageous positions; just outside the bar enclosure muffled telegraph instruments ticked and reporters for the big dailies, Associated Press and similar services, sat dripping with sweat; people stood in aisles and three-deep against the back walls. Even the big prize fights and national conventions have been covered both by a lesser number and by a lesser calibre of writers,” it said.
“There’s a lot of hand-wringing over the issue here, but the concern is misplaced,” Crier argues, citing explosive cases from Jack Ruby, to Charles Manson and Patty Hearst. “An examination of these trials, spanning nearly a century, demonstrates no correlation between the attitudes of the media and the decisions by the juries,” she continues. “In fact, despite the seeming bias towards conviction in most cases, the final results are relatively balanced between conviction and acquittal. The only consistency is the relentless coverage by an insatiable press.” As for the OJ trial, she calls that “an aberration”.
Back in the UK, judges seem to be softening their hard line on cameras. As Geoffrey Robertson QC pointed out (on behalf of ITN, Sky News and Independent Radio) at the beginning of the Hutton Inquiry, they are fighting a losing battle given the huge interest of the public and media. “My Lord, your inquiry will appear on television anyway,” the silk reasoned. “It appears by way of what is called a dramatic re-enactment. It usually begins as a play at a theatre in North London, then transfers to the BBC.”
That particular dramatic re-enactment – otherwise known as Justifying the War: Scenes from the Hutton Inquiry – is being staged at the Tricycle Theatre in North London this month. The theatre has also staged the inquiries into the sales of arms to Iraq and the death of the London teenager Stephen Lawrence. Artistic director Nicholas Kent describes their work as “public service theatre” and acknowledges that they would not put on the productions if there was no ban on cameras. “Hutton is a public inquiry and it should be held in public, and giving 10 seats out is not an effective way of letting ordinary people understand the proceedings, nor is refusing to have it broadcast,” he argues.
Sir Michael Burton, president of the Employment Appeals Tribunal, will appear in next month’s all-lawyer production of Are You Now or Have You Ever Been at The Tricycle. It is a fundraiser for an upcoming production of the Lord Saville inquiry into the events of Bloody Sunday – but Burton shares the reticence of many of his colleagues on the bench about cameras in courts. “I suppose I just know what an awful bore it would be,” he says. “Frankly, you’re probably better off reconstructing it from transcripts.” Burton describes himself as “not hostile to the idea of TVs in public inquiries”, but not in ordinary trials, “because people are putting on too much of an act anyway”.
While broadcasters put forward public interest arguments about using the cameras to illuminate the obscure workings of the courts, the reality is that the courts do not necessarily make great television.
Liam Robertson, a Scottish defence solicitor from Liam Robertson & Co, was involved in the making of The Trial. He says there was a public interest in the making of the programme, but only insofar as it showed the public “how boring, long and drawn-out” the Scottish legal process can be. “The only thing that was likely to arise out of televising a trial was an action for damages when someone fell over a cable or into a camera,” the solicitor says. Stephens was also unimpressed by the series and reckons that its “watery sunsets over Glasgow” approach did little to enhance the prospects of opening up the courts to television cameras.
However, the enthusiasm of broadcasters continues apace. Sky News recently decided to recreate the daily highlights of the Hutton Inquiry with transcripts and actors. According to executive editor John Ryley, the court’s cooperation was a significant step towards greater openness because it sanctioned the use of modems in an annexe that allowed evidence to be broadcast within minutes of it being given.
It also paved the way for Sky’s present reporting of the Soham trial, which has the channel providing a transcript via a courtroom-based Sky stenographer recording the exchanges. A runner then files copy straight back to Sky. There is only a 20-minute time lag between evidence being given in court and it being broadcast line by line on television, and breaking news, such as one-line quotes from witnesses or lawyers, can be on the screen within 90 seconds.
“In the 21st century it’s an anachronism that the public can’t see what’s going on in court,” argues Ryley. “TV news has been reporting court cases since TV news began. By allowing cameras to go into the courts and with 24-hour news channels to report it, it can reduce the chances of people manipulating events and making it more salacious.”
Stephens argues that Sky’s forays into dramatic re-enactments could advance the argument for cameras in court – albeit inadvertently. “You only have to look at the ludicrous nature of the Hutton reconstructions, which puts one in mind of the broadcasting restrictions on the IRA, where Gerry Adams’ voice would be dubbed by an actor,” he says.
He believes that there is something faintly ridiculous about broadcasters having to go to such lengths to report. But he also says that it is a matter of “critical importance”, because actors do not do justice to the legal process. “People already have a fairly warped sense of what the justice game is all about,” he says. “They see it as something to do with Ally McBeal.”