Court on camera

Eversheds stuck its neck out this year when it became the only firm to set up a public inquiry practice, but if CNN has its way, the firm – and the inquiry process itself – will come under unprecedented scrutiny. Jon Robins reports

So far, Eversheds is the only firm to focus on this area of work. “We have a particular niche in the market,” says Peter Jones, the Cardiff-based partner who heads the unit. And Eversheds clearly believes, with an increasing number of inquiries taking place, that it is well placed to capitalise on it. “We've devoted a lot of our time and resources to it,” says Jones. “We have a lot of lawyers who've been involved and fascinated by the work we've done and it's an area where we believe we have the market lead.”
The investment has been enormous. Eversheds can field a special investigative team of more than 50 lawyers trained in cognitive interviewing techniques, evidence analysis and systems management. And if you consider that to be specialised enough, then it becomes even narrower on closer inspection.
According to Jones, there is a particular type of inquiry to which the firm is suited, which is constituted under the Tribunals and Inquiries Act 1921. “[The act] enables the Government in cases of urgent public importance to commission an inquisitorial inquiry,” says Jones. “A 1921 Act inquiry means that a judge is appointed and has an obligation to do all the investigation themselves.”
But can Eversheds sustain a practice in such a small area? As Jones acknowledges, it is a particularly narrow niche and so far there have only been “a handful” of inquiries. He was first involved in such an inquiry when he worked pro bono in the North Wales child abuse inquiry. At the time he was advising HTV, the ITV station that exposed the scandal in the first place, and subsequently came to advise some of the children involved.
Given that Eversheds is currently acting on both the Shipman and Bloody Sunday inquiries, the firm has had to handle an immense amount of evidence-gathering. In the Bloody Sunday inquiry, Eversheds took more than 1,500 witness statements, while the Shipman inquiry will look into the deaths of 466 patients.
This has meant that a lot of lawyers have had to be deployed with little notice. For Bloody Sunday, 50 lawyers from the firm have been involved, and the Shipman inquiry is taking up 20 lawyers.
Jones, though, argues that Eversheds' national resources mean that it is well placed to manage the “peaks and the troughs” of inquiry work. “If you need 80 litigation lawyers, not many firms – if indeed any other – could do that overnight,” he claims. “We can take three or four lawyers from our various offices and thereby create small holes rather than one massive hole.”

“You are interviewing everyone on all sides of the spectrum and you have to convince them that you haven't got a prejudice and that you're genuinely impartial”
Peter Jones, Eversheds

Inquiry lawyers also have to be mobile and ready to move to where the inquiry is. As Jones explains, the act states that any inquiry must “inspire public confidence”. “You inspire confidence,” he says, “by going to the venue where the inquiry is, and that often means setting up a mobile office with IT and secretarial support.” For example, there have been up to 30 lawyers working from a temporary office in Londonderry for up to nine months at a time.
So far, so good. But Eversheds could garner a lot more publicity than it bargained for if Geoffrey Robertson QC and Finers Stephens Innocent partner Mark Stephens have their way. Earlier this month, CNN – advised by Stephens and Robertson – applied to Dame Janet Smith, the High Court judge who is heading the Shipman inquiry, to televise the proceedings; but it remains to be seen whether a film crew will be able to take their cameras into the inquiry. It might be a public inquiry, but there could well be limits as to just how public Smith wants it to be.
“CNN doesn't want to create the news, it just wants to report the news,” argues Stephens, adding that the Shipman inquiry is not receiving much exposure outside Manchester, despite a significance which extends beyond the North West.
“It doesn't matter whether you're in Kazakhstan, a suburb of Brussels or on the planes of the Mid-West of the US – those checks and balances in the system that Shipman managed to cheat are important,” he argues. “CNN has come gradually to realise the wider importance of those issues. If there was another Shipman out there, televising the inquiry might alert people to it.”
Presently there is a total ban on cameras in court under the Criminal Justice Act 1925. However, no such ban exists in public inquiries and cameras have been used in a limited capacity in, for example, the Bloody Sunday and Ladbroke Grove railway crash inquiries. The Bloody Sunday inquiry is not televised. However, as Jones points out: “There are cameras in the hall that transmit the proceedings to a cinema in town and selected offices. The families of those shot have set up a Bloody Sunday office.”
Nick Catliff, a director at Lion Television, specialises in televising trials. He hopes that CNN will succeed in its application to televise the Shipman inquiry and pave the way for the more open use of cameras in courts. “If they film it and it's deemed to be done well, editorially sensible and not too hysterical – and I've no reason to believe that it wouldn't be done well – it could strengthen our hand and they could let us have a go at filming in court,” he says.
Catliff made this year's BBC documentary Boston Law as well as The Trial, which in 1994 took cameras into Scottish courts, where there is no ban, for the first and only time. “All the evidence shows very clearly that cameras in court add a certain degree of heat to the public perception of the trial, but they don't have any effect whatsoever on the witnesses,” he says.
Anthony Speaight QC of 4 Pump Court also believes that the present ban on cameras is “mistaken”. He believes that the Shipman inquiry is of “considerable public interest”. “The purpose of a public inquiry is, because there's public interest, to discover things,” the barrister argues. “Most people get their information from the television and I find it difficult to see why you shouldn't use the medium of television to persuade people to discover as much as is reasonably possible about what's happening.”
As Stephens points out, public inquiries were made possible under the Tribunals and Inquiries Act in 1921, and four years later cameras were banned after pictures of Dr Crippen in the dock at the Old Bailey were published by newspapers.
“Nobody had thought to ban cameras in public inquiries,” says Stephens. “Our position is that, in the absence of the specific restriction, there is a presumptive right to go into the inquiry on the principle that if something is not specifically restricted by statute, you're allowed to do it.”
The CNN legal team argue that Article 10 of the European Convention on Human Rights (ECHR), which is concerned with freedom of expression, applies to the inquiry. According to Stephens, Smith has the right to put a stop to the filming under the ECHR if there is “a pressing social need”, such as a witness refusing to give evidence because of the presence of the cameras.
He says that the purpose of the application of cameras is not to provide “a blow-by-blow account” with “football-style analysis”, but rather “gavel-to-gavel” coverage featuring ordered presentation and investigation of the facts.
Tony Maddox, CNN's senior vice-president for Europe, has argued that there is a “genuine matter of public interest at stake”, which is best served by allowing cameras into proceedings “to shed light on how the standard protection systems failed on this occasion”.
But once an inquiry is put under the spotlight of the television cameras, the stakes are suddenly raised. Jones declines to comment on whether cameras should be allowed, but points out that, even as things stand, inquiry lawyers have to be scrupulously careful about their evidence-gathering methods. “You're interviewing everyone on all sides of the spectrum and you have to convince them that you haven't got a prejudice and that you're genuinely impartial,” he says.
Such independence is particularly important in the sectarian environment of Northern Ireland. Eversheds lawyers have spent half their time on the Bloody Sunday inquiry investigating the civilians allegations that they were shot at by the British army. “And then, lo and behold,” says Jones, “the next job is to interview the army themselves.”
Interviewing witnesses in such emotive situations requires a special skill from the lawyers. They need to be “people strong” as opposed to “paper strong”, believes Jones. For the Bloody Sunday inquiry, lawyers were briefed on the history of Londonderry. “You need to understand the politics of the troubles,” he says. “About 26 people were shot at marching for civil rights, and you need to understand the background as to why those people were on the streets and why there was a confrontation with the army and the police. It was absolutely fascinating, but you had to be well briefed to do it properly.”
If CNN gets its way and the Shipman inquiry is televised, then Eversheds' job may be even more pressurised.

Cameras in the courtroom – the lawyers' view
There is still a great deal of reticence about the further use of cameras in court. According to a survey by witness training company Bond Solon Training published this month, 90 per cent of solicitors object to television cameras. It is not a stance with which director Mark Solon agrees. “Why should the number of people who observe the trial be limited by the architecture?” he asks.
At the end of last year, the debate appeared to be back on the agenda when ministers were reported to be looking at allowing cameras to be free to film court proceedings with the exceptions of jury trials and Magistrates Courts. However, the momentum appears to have flagged this year and Lord Justice Auld's report into the criminal justice system makes no mention of it.
Franklin Sinclair, chairman of the Criminal Law Solicitors' Association and a partner in Manchester firm Tuckers, supports CNN's application. As he puts it: “The very words 'public inquiry' mean that it is clearly in the public interest for it to be done as publicly as possible.”
But he opposes any further intervention by cameras into the courts. He points to the “farce and fiasco” of the trial of former US American football star OJ Simpson, which “dragged their system into disrepute”. “We can live without all that,” he comments.
The experience of cameras in court on the other side of the Atlantic appears to have irreversibly damaged the movement here. “What's frustrated me is that, pre-OJ, there was a move in Scotland and south of the border to begin experimenting with cameras and a recognition of the need for more open justice. But OJ totally derailed everything,” says Nick Catliff, a director at Lion Television, which specialises in filming court proceedings. His view is that the US experience is “totally irrelevant” because it is a “different country with a different system”.
Solon believes that, while high-profile trials such as those for Simpson or the UK nanny Louise Woodward have increased public awareness of the judicial system, they have not “detracted from the conduct of the trial”. He continues: “The effect of a camera shows the best and worst sides of the justice system; it's then up to the public to make their minds up. It seems anachronistic that we still have to rely on the remembered sketches by artists of the performances of witnesses.”
Certainly, Anthony Speaight QC of 4 Pump Court was persuaded as to the merits of televising trials when visiting the US to look into the matter of a Bar Council report from 10 years ago. The silk came back “wholly convinced”, provided that filming is done subject to “strict rules of coverage”. The key to effective enforcement, he adds, is judicial control.
“In the US, you can't have cameras in court at all unless the broadcaster makes an application,” he explains. “If a judge decides that cameras should come in, then he retains control.” If at any stage the cameras interfere with the conduct of the case, they are switched off, and according to Speaight, judges who preside over televised trials do so without a problem.
The barrister adds that some cases, such as those covering sexual assault and rape, would never be suitable for televising because “a prurient interest would outweigh the educational and open justice value of having the cameras in”.
Last year, the BBC's application to film the trial of the Lockerbie suspects was blocked. As the trial is held in a Scottish court, albeit in The Hague, there is no statutory ban. It is a source of great frustration to Catliff, who hoped to film the proceedings, and he remains mystified as to why the application was banned and why no one else seems to know.
“I suppose with Lockerbie the stakes were so high, and if something went wrong they didn't want it to be filmed,” he observes. “But that's no good reason not to allow cameras in, is it?”

Cameras in the courtroom – the families' view
Ann Alexander is the managing partner of Cheshire firm Alexander Harris, which represents a group of 200 relatives of the Harold Shipman victims. She reckons that her clients were the “driving force” behind the Government's decision to hold a public inquiry.
Alexander has now twice consulted her clients concerning filming in court, first when the BBC made an application at the onset of the inquiry and later with CNN. While the relatives welcome the television crews, they want their presence to be limited to the latter phases of the inquiry, dealing with the failure of professionals. The first phase, which is presently underway, concerns the relatives' own testimonies, which they want to remain off-limits.
“What they felt was that this was a very personal tragedy for them and that they were in a witness box talking about their grief and their loved ones who had died,” says Alexander. “At law, we believe, like CNN, that Article 10 applies, and we believe on that basis that it should be broadcast; but the evidence of the relatives should be treated differently, on the grounds that there is a pressing social need for the evidence not to be broadcast.”
Alexander went to Manchester, where the inquiry is being held, to explain to a public meeting how that interest was best served by CNN filming the proceedings.
At this month's hearing, the High Court judge heading the inquiry, Dame Janet Smith, said that she would treat the CNN application as “a fresh matter altogether” from the BBC's. However, she expressed surprise and noted: “If this inquiry was so important to CNN, why didn't it make the application some months ago?” In a surprising turn of events, the judge made an order allowing the BBC and an independent production company from Manchester to film the application.