Audio-visual Coverage of Courts: A Comparative Analysis

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AUDIO-VISUAL COVERAGE OF COURTS

Researched over a period of fifteen years and written by an author who has participated in each country’s debate, Audio-Visual Coverage of Courts is the first book to undertake a comprehensive comparative study of televised court proceedings in Great Britain, the United States, Canada, Australia and New Zealand. Exhaustive in his identification and analysis of relevant law and key developments, Daniel Stepniak also relies on hitherto largely unpublished primary sources to provide unprecedented coverage of the experiences of courts. Through analysis of common law courts’ regulation of audio-visual reporting Daniel Stepniak proposes a theoretical framework and proven action plan for the attainment of the potential benefits of audio-visual coverage, and argues that technological advances, the entrenchment of rights and, above all, the recognition by courts of their vested interests in facilitating greater public access and understanding of judicial proceedings have all led to audio-visual coverage becoming increasingly perceived as desirable. DANIEL STEPNIAK

teaches law at the University of Western Australia.

AUDIO-VISUAL COVERAGE OF COURTS DANIEL STEPNIAK

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521875271 © Daniel Stepniak 2008 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2008

ISBN-13 978-0-511-39469-0

eBook (NetLibrary)

ISBN-13

hardback

978-0-521-87527-1

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

TABLE OF CONTENTS

Table of Legislation Table of Cases xii List of Abbreviations 1

Introduction A B C D E

2

page vii xix

1

An overview of the history of the debate Current issues of the debate 3 The key arguments 6 Structure 7 Scope and terminology 9

United Kingdom

1

11

A Introduction 11 B The Caplan Report 13 C Towards greater openness of justice 15 D Broadcast of parliamentary proceedings 20 E First broadcasts of judicial proceedings 21 F Relaxation of the Scottish common law prohibition 22 G Impact of the broadcast of overseas trials 29 H House of Lords broadcasts 32 I The Lockerbie trial and appeal 35 J Televised public inquiries 41 K Implications of recent rulings for current restrictions and statutory prohibitions 45 L Impact of the Human Rights Act 1998 on rights and UK judges M Pilot recording of appeal proceedings and public consultation N Conclusion 64

3

Key American experiences

69

A Introduction 69 B Early concerns regarding court reporting C Televising as a constitutional right 83

v

71

52 56

vi

CONTENTS

D Experiences of state jurisdictions 96 E Streaming or webcasting of state courts F Experiences of US federal courts 128 G Conclusion 146

4

Canada A B C D E

5

122

148

Introduction 148 Appeal courts 150 Coverage of trial proceedings Rights 181 General implications and issues

Australia

162 208

210

A Introduction 210 B Restrictions on courtroom broadcasting 211 C Features distinguishing Australia’s experiences 221 D Early experiences of Australian courts 233 E Specific experiences of Australian courts 237 F Quasi-judicial and parliamentary experiences with televising 281 G What do Australian experiences with televising reveal? 290

6

New Zealand

300

A Introduction 300 B Decision to undertake an experiment C The Pilot Programme 326 D Evaluation 335 E Recent studies 339 F Post-Pilot Programme developments G Conclusion 348

7

301

341

Comparative analysis of findings and conclusions A B C D

Introduction 351 Evidence as to effects Determinative factors Conclusion 414

Appendices

351

352 406

417

1. Persons Consulted 417 2. Guidelines for Electronic Coverage of Judicial Proceedings, Western Australian Courts (1996) 423

Bibliography Index 486

425

TABLE OF LEGISLATION

(a) International instruments European Convention for the Protection of Human Rights and Fundamental Freedoms 1950: 2, 5, 13, 52, 53, 54, 64, 228, 229, 409 art 10 4, 19, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 50, 93, 222, art 6 43, 47, 222 International Covenant on Civil and Political Rights 1966 230 s 14(1) 229 s 19(2) 227, 228, 229

(b) United Kingdom Asylum and Immigration Bill 2004 55 Broadcasting Act 1990 s 6(i)(b)(c) 50 The Constitutional Reform Bill 2004 cl 37 68 Contempt of Court Act 1981 pp 14, 19 s 4 19 s 8 15, 59, 377, 382 s 9 12, 15, 45, 57, 59 Courts (Research) Bill 1991 15, 382 Criminal Justice Act 1925 s 41 11, 12, 13, 14, 15, 18, 21, 41, 57, 58, 60, 61, 68 Criminal Justice Act 1988 19 Human Rights Act 1998 2, 8, 13, 37, 52, 53, 54, 64, 209, 228, 229, 409 s 3 53 s 6(2) 53 Tribunals of Inquiry (Evidence) Act 1921 13, 41

Northern Ireland Criminal Justice Act 1945 s 29 11

Scotland Scotland Act 1998 37

vii

viii

TABLE OF LEGISLATION

(c) United States of America (i) Federal Constitution of the United States of America American Bar Association Code of Judicial Ethics Canon 35 76, 77, 78, 79, 81, 103 American Bar Association Code of Professional Responsibility (1972) Canon 3A(7) 81 American Bar Association Model Code of Judicial Ethics Canon 35 (1952) 76 Bill of Rights 2, 8, 85, 222, 229 First Amendment 71, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 94, 110, 143, 202, 222, 309, 408, 410 Sixth Amendment 71, 80, 83, 84, 85, 87, 91, 143, 222, 309, 408, 410 Code of Conduct for United States Judges (1972) Canon 3A(7) 81, 82, 128, 129 Federal Rules of Criminal Procedure r 53 77, 128, 136, 140 United States Code s 331 (28 USC 331) 77

(ii) State California Rules of Court r 980 112, 113, 114, 115, 116, 117, 118 r 981 112 Code of Professional Responsibility (NYCRR) 29.1-3. 103 District Courts of the State of New Hampshire, General Rules r 1.4(a) 97 Florida Rules of Judicial Administration 2.170. 98 Idaho Court Administrative Rules 45, 46 121, 122 Judiciary Law (NY) s 218 90, 103, 105, 107 Maryland Rules Annotated (1999) r 16-109 96 New York Civil Rights Law s 52 88, 89, 90, 103, 110, 111 New York State Constitution art 1.8 89, 110 New York Code of Judicial Conduct Canon 3A (7) 103, 104, 119 Rules of the Chief Administrative Judge (NY) s 131.1. 104 Rules of the Chief Justice 2004 (NY) ss 29.1, 29.2 103, 104 South Carolina Appellate Court Rules r 605 101 Tennessee Supreme Court Administrative Rules r 30 99 Utah Code of Judicial Administration (2000) r 4-401 96 Washington Court Rules GR 16 119

(d) Canada Canada Act 1982 182 Canadian Bill of Rights Act 182

TABLE OF LEGISLATION

ix

Canadian Charter of Rights and Freedoms (1982) 2, 8, 53, 181, 182, 183, 186, 193, 200, 201, 202, 204, 207, 209, 228, 229, 307, 309, 310, 408, 409 s 1 4, 183, 186, 187, 188, 190, 193, 194, 197, 198, 199, 309, 310 s 2(b) 93, 183, 186, 187, 188, 189, 191, 192, 193, 196, 197, 198, 199, 222, 310, 311 s 11(d) 183, 184, 207, 222, 309, 410 Courts of Justice Act, RSO 1990, c 43, s 136 169, 178 Criminal Code, RSC 1985, c 46, s 539(1) 205 Judicature Act, RSO 1970, c 228, s 67, 68a 205 R`egle 38 des R`egles de pratique de la Cour sup´erieure du Qu´ebec en mati´ere civile, RRQ, 1981 c 25, r 8 167

(e) Australia (i) Commonwealth Australian Constitution 222, 224, 226, 230, ch 3 224, 225, 272 Family Law Act 1975 (Cth) 270, 271 s 121(1) 211 s 121(3)(b) 388 s 121(3)(c) 388 s 121(9)(g) 218, 271 Family Law Rules 2004, r 1.19 218, 270 Federal Court of Australia Act 1976 s 17(4) 212 Human Rights and Equal Opportunity Commission Act 1986 schedule 2 228 Judiciary Act 1903 s 30(3) 272 Native Title Act 1993 256 Television Program Standards 1990 st 15 395 st 24 395

(ii) New South Wales Children (Criminal Proceedings) Act 1987 (NSW) s 10(a) 212 s 10(1)(b) 212 Jury Act 1977 (NSW) s 68 211, 374 s 68A 211, 377 s 65 211

x

TABLE OF LEGISLATION

(iii) Victoria Adoption of Children Act 1984 s 121(2) 211 County Court Act 1958 s 81(1) 212 Judicial Proceedings Reports Act 1958 s 3(1) 212 Juries Act 1967 s 69 211, 374 s 69A 211 s 69A(2) 211 Magistrates’ Court Act 1989 s 126 212 s 126(1)(b) 212 s 126(1)(c) 212

(iv) Queensland Jury Act 1995 s 70 374 s 70(1)(b) 211 s 70(2) 211 s 70(3) 211 s 70(4) 211 s 70(11)(b) 211

(v) Western Australia Acts Amendment (Family and Domestic Violence) Act 2004 s 70(2) 211 Juries Act 1957 s 57 374 Justices Act 1902 s 66 212

(vi) South Australia Children’s Protection and Young Offenders Act 1979 s 92(2) 212 Criminal Law Consolidation Act 1935 s 246 374 Evidence Act 1929 s 69 212

(vii) Tasmania Criminal Code 1924 s 365 211 Appendix D Forms I, II 211

TABLE OF LEGISLATION

Evidence Act 2001 s 194J 211 s 194K(1) 211 s 194K(4) 214 s 194L 212 Youth Justices Act 1997 s 31 211

(viii) Australian Capital Territory Evidence Ordinance 1971 (ACT) s 82 212 s 83(1) 212

(ix) Northern Territory Evidence Act 1939 (NT) s 57(1)(a) 212 s 57(1)(a)(ii) 212 Juries Act 1962 s 49B 374

(f) New Zealand Bill of Rights Act 1990 2, 8, 65, 93, 209, 228, 229, 300, 301, 304, 309, 310, 311, 349, 408, 409 s 5 309, 310 s 14 222, 309, 310, 311 s 23(5) 319 s 25 309 Children, Young Persons and their Families Act 1989 s 438(1) 300 Criminal Justice Act 1985 s 138 300 s 139 300, 346 s 140 300

xi

TABLE OF CASES

(a) International Coulter v. HM Advocate [2000] ICHRL 74 47 Montgomery v. HM Advocate; Coulter v. Advocate [2000] ICHRL 74 47 News Verlags GmbH & Co. KG Application No. 31457/96, 11 January 2000(ECHR) 39 Sunday Times v. United Kingdom [1979] 2 EHRR 245 19, 48 Tyrer v. United Kingdom [1978] 2 EHRR 1 54

(b) United Kingdom Abdelbast Ali Mohmed Al Megrahi v. Her Majesty’s Advocate [2002] SCCR 509 40 A-G (UK) v. Times Newspapers Ltd [1974] AC 273 315 Attorney General (UK) v. Leveller Magazine Ltd and Others [1979] 1 All ER 745 12, 213, 217, 218 Attorney General (UK) v. Times Newspapers Ltd [1974] AC 273 19 British Broadcasting Corporation, Petitioners (No. 1)(High Ct) 2000 Scots Law Times 845; BBC Petitioners (No. 1) 2000 JC 419 36, 37, 38, 39, 40, 48, 55 British Broadcasting Corporation, Petitioners (No. 2)(High Ct) 2000 Scots Law Times 860; BBC Petitioners (No. 2) 2000 JC 521 39, 48, 55 Harman v. Secretary of State for Home Department [1983] 1 AC 280 19, 50, 219, 401 Home Office v. Harman [1982] 1 All ER 532 19, 401 J. Barber & Sons v. Lloyd’s Underwriters and Others [1987] 1 QB103 12 Lord Advocate v. Dunbarton [1900] 1 All ER 1 58 McLeod v. Justices of the Peace for Lewis (1892) 20 R 218 46 The Queen v. Gray [1900] 2 QB 36 213 R v. A [2002] 1 AC 45 54 R v. Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No. 1) [1998] 3 WLR 1456 34 R v. Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272 34

xii

TABLE OF CASES

xiii

R v. Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827 34 R v. Connor [2004] UKHL 2 59 R v. McIlkenny (Birmingham Six Case) [1992] 2 All ER 417 51 R v. Secretary of State for Home Department; Ex Parte Venables & Thompson [1998] AC 407 33 R v. Young (Stephen) [1995] QB 324, 327–30 59 Re St Andrews, Heddington [1977] 3 WLR 287 12, 18 Reg v. Felixstowe JJ Ex parte Leigh (Dc) [1987] 1 QB 551 12, 19, 49 Regina v. Socialist Worker Printers and Publishers Ltd and Another, Ex Parte Attorney General [1974] 1 QB 637 217 Scott (Otherwise Morgan) and Another v. Scott [1913] AC 417 17, 18, 217, 219, 225, 388, 402 Thompson and Venables [1998] AC 407 33

(c) United States Associated Press v. Bost 656 So. 2d 113 (Miss., 1995) 99 Billie Sol Estes v. State of Texas 381 US 532 (1965) 77, 78, 79, 80, 81, 83, 84, 88, 91, 95, 177, 358, 366 Bush v. Gore 531 US 98 (2000) 144, 145 Cable News Network v. American Broadcasting Co., 518 F. Supp. 1285 87, 89 Commonwealth v. Louise Woodward 7 Mass L Rptr 449 (Mass., 1997) 30, 31, 32 Courtroom Television Network LLC v. State of New York NY Slip Op 05386 (1st Dept June 22, 2004) 89, 111 Cox v. New Hampshire 312 US 569 (1941) 90 Denise Katzman v. Victoria’s Secret Catalogue 923 FSupp 580 (SDNY, 1996) 88, 89, 91 Edward Lee Lyles v. the State of Oklahoma 330 P.2d 734 (Okla Crim Ct App, 1958) 77 Gannett Co. v. DePasquale 443 US 368 (1979) 84 Globe Newspaper Company v. Superior Court 423 N.E.2d 773 (Mass., 1981) 86 Green v. State 377 So. 2d 193 (1979) 366 Grutter v. Bollinger 593 US 306 (2003) 145 Irwin v. Dowd 266 US 717 (1961) 95 Marisol A., et al., v. Rudolph W. Giuliani, et al., 929 F. Supp. 662 (SDNY, 1996) 138 Marshall v. United States 360 US 310 95 New York v. Davis, No. 99-131 (NY Sup Ct, Cayuga Cty, 2000)-21 111 New York v. Taylor, 284 AD 2d 573 (2001) 111 Nichols v. District County Court of Oklahoma County 6 P 3d 506 (Okla Crim App 2000) 91 Noel Chandler and Robert Granger v. State of Florida 449 US 560 (1981) 81, 82, 83, 84, 86, 92, 112, 129, 358, 359

xiv

TABLE OF CASES

People v. Boss 701 NYS 2d 891 (2000) 88, 89, 91, 110 People v. Menendez No. BA068880 (Cal. Sup. Ct, 1996) 113 People v. Simpson No. BA097211 1995 WL 686429 (Cal. Super. Ct. LA County 27 Sept. 1995) 3, 29, 30, 32, 113, 114, 117 Petition of WMUR Channel 9 (New Hampshire Supreme Court, 13 December 2002) www.courts.state.nh.us/supreme/opinions/2002/0212/wmur156.htm at 12 April 2005 97, 397 Press Enterprise Co. v. Superior Court of California for the County of Riverside 478 US 1 (1986) 87 Re: Petition of Post-Newsweek Stations, Florida Inc. For Change in Code of Judicial Conduct 370 So.2d 764 (Fla., 1979) 82, 88, 354, 358 Richard Nixon v. Warner Communications Inc. 435 US 589 (1978) 84, 91 Richmond Newspapers Inc. v. Commonwealth of Virginia 448 US 555 (1980) 71, 85, 86, 89, 90, 129, 184, 227, 400, 401 Samuel H. Sheppard v. E. L. Maxwell 384 US 333 (1966) 95 State v. Hauptmann, 180 A. 809 (NJ, 1935) 12, 73, 88, 357 Stroble v. California 343 US 181 (1952) 95 Turner Broadcasting Sys. Inc. v. Federal Communications Commission 512 US 622 (1994) 90 United States of America v. Alcee L. Hastings 695 F.2d 1278 (C.A.Fla., 1983) 86, 90, 91, 92 US v. Criden, 648 F 2d 814 (1981) 187 US v. O’Brien 391 US 367 (1968) 86 Waller v. Georgia 467 US 39 (1984) 87 Ward v. Rock Against Racism 491 US 781 (1989) 90 Westmoreland v. Columbia Broadcasting System 752 F.2d 16 (CANY, 1984) 87, 88, 89, 92

(d) Canada Canadian Broadcasting Corp. v. Lessard [1991] 3 SCR 421 185 Canadian Broadcasting Corp. v. New Brunswick [1996] 3 SCR 480 184, 195 Committee for Commonwealth of Canada v. Canada [1991] 1 SCR 139 192, 193 Dagenais v. Canadian Broadcasting Corp. [1994] 3 SCR 835 185, 187, 190, 192, 193, 194, 195, 196, 197, 199, 205, 206, 310, 311 Edmonton Journal v. the Attorney General for Alberta (1989) 64 DLR (4th) 577 (SCC) 607 183 Edmonton Journal v. the Attorney General for Alberta and the Attorney General of Canada and the Attorney General for Ontario (1989) 2 SCR 1326 183 Her Majesty the Queen v. Shane Robert Ertmond (Unreported, New Westminster Registry, No. X059360, 3 May 2002) 165 Hill v. Church of Scientology [1995] 2 SCR 1140 190

TABLE OF CASES

xv

Irwin Toy Ltd v. Quebec (Attorney-General)[1989] 1 SCR 927 192 New Brunswick Broadcasting v. Nova Scotia [1993] 1 SCR 319 184, 401 R v. Banville 145 DLR (3d) 595 185 R v. Bernardo (1995) 38 CR (4th) 229 166, 202 R v. Butler [1992] 1 SCR 542 193 R v. Cho et al. (2000) 146 CCC (3d) 513 164, 168, 172, 173, 175, 356 R v. Clow (1985) 44 CR (3d) 228 163, 170, 174, 175 R v. Fleet (1994) 137 NSR (2d) 156 (SC) 166, 188 R v. McSorley (2000) BCPC 114 165 R v. Mentuck (2001) 158 CCC (3d) 449 184, 185, 190, 192, 194, 195, 199, 205, 311 R v. Oakes (1986) 24 CCC (3d) 321 (SCC) 194, 195 R v. Pickton [2002] BCPC 526 205, 206, 384 R v. Pilarinos and Clark (2001) BCSC 1332 162, 165, 166, 167, 174, 175, 176, 179, 188, 194, 195, 196, 197, 198, 199, 354, 355, 356, 363, 364, 370 R v. Sharpe (2001) 194 DLR (4th) 1 (SCC) 194, 195, 196 R v. Squires (1986) 25 CCC (3d) 44 (Ont Prov Ct Crim Div) 186, 307, 310, 311 R v. Squires (1989) 69 CR (3d) 337 (Ont Dist Ct) 186 R v. Squires (1992) 78 CCC (3d) 97 (Ont Ct App) 170, 187 R v. Thatcher [2000] SCCA 554 (QL) 167 R v. Vande Zalm [1992] BCJ no. 3065 166, 187, 189, Reference Re Smith 148 DLR (3d) 331 185 Reference Re the Secession of Quebec from Canada [1998] 2 SCR 217 152 Rodriguez v. British Columbia (Attorney General) (1993) 3 SCR 519 151 Sierra Club of Canada v. Canada (Minister of Finance)2002 SCC 41 190 Symes v. R (1993) 4 SCR 695 151 Thibaudeau v. R [1995] 2 SCR 627 151 United Mexican States v. Metalclad Corp. (2001) BCSC 664 160, 161

(e) Australia Attorney General for NSW v. Time Inc. Magazine Co. Pty Ltd (Unreported, New South Wales Supreme Court of Appeal, Gleeson CJ, Sheller & Cole JJA, 15 September 1994) 223 Attorney General for the State of NSW v. X [2000] NSWCA 1999 224 Australian Capital Television v. Commonwealth (1992) 177 CLR 106 182, 222, 224 Australian Olympic Committee v. Big Fights Inc. (1999) 46 IPR 53 258 Beach Petroleum NL v. Abbot Tout Russell Kennedy [1999] NSWCA 408 237 Button v. The Queen [2001] WASCA 7; [2002] WASCA 35 239 Berry v. GJ Coles & Company Ltd Nos. 8140/81-8145/81 (unreported) 235 Cain v. Doyle (1946) 72 CLR 409 59

xvi

TABLE OF CASES

Chu Kheng Lim v. Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 225, 226, 229 Cubillo v. Commonwealth (2000) 103 FCR 1 253, 254 David Fasold v. Allen Roberts (1997) 70 FCR 489 252 David Syme & Co. v. General Motors Holden Ltd [1984] 2 NSWLR 294 217 Dickason v. Dickason (1913) 17 CLR 50 219, 225, 227, 401 Director of Public Prosecutions v. Dupas (2007) VSC 305 268, 296 Director of Public Prosecutions v. Wran (1987) FLR 92 216 Dow Jones & Company Inc. v. Gutnick (2002) 210 CLR 575 206 Ex Parte Attorney General, Re Truth & Sportsman Ltd (1961) 61 SR (NSW) 484 217 Ex Parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 217 Friends of Hinchinbrook Society Inc. v. Minister for Environment (No. 2) (1997) 69 FCR 28 253, 258, 259 Gallagher v. Durack (1983) 152 CLR 238 217 Glenmont Investments Pty Ltd v. O’Laughlin (2000) SASR 185 242 Ha v. New South Wales (1997) 189 CLR 465 246 Hall v. Victorian Amateur Football Assoc. (1999) 15 VAR 183 269 Hill v. Church of Scientology [1995] 2 SCR 1140 190 Hinch v. Attorney General for Victoria; Macquarie Broadcasting Holdings Ltd v. Attorney General for Victoria (1987) 74 ALR 353 216 John Fairfax & Sons v. Police Tribunal of NSW (1986) 5 NSWLR 465 219, 220 John Fairfax & Sons Pty Ltd v. McRae (1955) 93 CLR 351 216 John Fairfax Publications v. Doe (1995) 37 NSWLR 81 223 Johnston Tiles Pty Ltd v. Esso Australia Pty Ltd [2003] VSC 27 269, 396 Kable v. Director of Public Prosecutions for NSW (1997) 189 CLR 51 225, 226 Kartinyeri v. Commonwealth (1998) 72 ALJR 722, 156 ALR 300 229, 246 Kruger v. Commonwealth (1997) 190 CLR 1 222, 226, 246 Lange v. Australian Broadcasting Co. (1997) 189 CLR 520 182, 222, 223 Levy v. Victoria (1997) 146 ALR 248 182 Mabo v. Queensland (No. 2) (1992) 175 CLR 1 228 Mallard v. The Queen [2003] WASCA 296 (3 December 2003); [2004] HCA Trans 421 (27 October 2004) 240, 279 Maritime Union of Australia v. Patrick Stevedores (No. 1) Pty Ltd (under Administration) (1998) 77 FCR 456 253 Members of the Yorta Yorta Aboriginal Community v. Victoria (1996) 1 AILR 402 254 Members of the Yorta Yorta Aboriginal Community v. Victoria (1999) 4 (1) AILR 91 255 Members of the Yorta Yorta Aboriginal Community v. Victoria (2001) 110 FCR 244 255 Mickelberg v. The Queen (2004) 29 WAR 13 240 Minister of State for Immigration & Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR 273 228, 229

TABLE OF CASES

xvii

Moularas v. Nankervis [1985] VR 369 212 Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1 182, 217, 222, 226 Nemer v. Holoway (2003) 87 SASR 147 242 Patrick Stevedores Operations (No. 2) Pty Ltd v. Maritime Union of Australia (1998) 165 CLR 1 253 Polyukhovich v. Commonwealth (1991) 172 CLR 501 226 R v. Chamberlain (Unreported, NTSC, Muirhead J, 29 October 1982) 234 R v. Glennon (1992) 173 CLR 592 383 R v. Hamilton (1930) 30 SR (NSW) 277 219, 401 R v. Nathan John Avent (Unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway J, & McDonald AJA, 27 November 1995) 214, 219, 260, 262, 264, 265, 266, 267, 269, 390 R v. Socialist Workers Printers & Publishers Ltd [1975] QB 637 217 R v. Tait & Bartley (1979) 24 ALR 473 212, 218, 219 Raybos Australia Pty Ltd & Another v. Jones (1985) 2 NSWLR 47 219, 227 Re Andrew Dunn v. the Morning Bulletin Ltd [1933] Sr R Qd 1 212 Re Nolan: Ex parte Young (1991) 172 CLR 460 226 Regina v. Bilal Skaf; Regina v. Mohammed Skaf [2004] NSWCCA 37 297 Riley McKay Pty Ltd v. McKay (1982) 1 NSWLR 264 219 Roberts v. Nine Network Australia Pty Ltd (Unreported, Supreme Court of Victoria, Cummins J, 18 December 1995) 265, 267, 388 Ruddock v. Vadarlis (2001) 110 FCR 491 257 Russell v. Russell (1976) 134 CLR 495 219, 225, 401 Ryan v. Great Lakes Council (1999) ASAL (digest) 55-023 257 Stack v. Western Australia [2004] WASCA (20 December 2004) 394 Stephens v. West Australian Newspapers Ltd (1994) 182 CLR 211 182 Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104 182, 222, 223 Tracey Ex parte Ryan (1989) 166 CLR 518 225 Victoria v. Australian Building Construction Employees & Builders Labourers’ Federation (1982) 152 CLR 25 216 Victorian Council for Civil Liberties Inc. v. Minister for Immigration & Multicultural Affairs (2001) 110 FCR 452 256 Viner v. Australian Building Construction Employees & Builders Labourers’ Federation (1982) 2 IR 177 217 Wik Peoples v. Queensland (1996) 187 CLR 1 246 Witham v. Holloway (1995) 183 CLR 525 213

(f) New Zealand Greensill and Others v. Tainui Maori Trust Board (Unreported, Hamilton High Court, Hammond J, 17 May 1995) 328, 331 Peters v. Collinge [1993] 2 NZLR 554 308, 313

xviii

TABLE OF CASES

Phipps v. Royal Australasian College of Surgeons [1997] 2 NZLR 598 328 R v. Anderson (Unreported, Hamilton High Court, Penlington J, 26 November 1997) 328 R v. Beattie (Unreported, Auckland High Court, Penlington J, 1997) 332 R v. Calder (No. 1) (Unreported, Christchurch High Court, Tipping J, 12 April 1995) 328, 329 R v. Calder (No. 2) (Unreported, Christchurch High Court, Tipping J, 31 August 1995 and 5 September 1995) 328, 329 R v. Carter (Unreported, Auckland High Court, Cartwright J, 17 March 1995) 327, 328 R v. Chapman (Unreported, Wellington High Court, McGechan J, 1996) 333, 337 R v. Hesketh (Unreported, Auckland High Court, Tompkins J, 3 February 1997) 333, 337 R v. Lory [1997] 1 NZLR 44 332, 337 R v. Moresi (Unreported, Auckland High Court, Baragwanath J, 23 April 1996) 332 R v. Ramstead (Unreported, Wellington High Court, Ellis J, 23 September 1996) 332, 337 R v. Thompson (Unreported, Christchuch High Court, Holland J, 12 February 1996) 328 Taylor v. Attorney General [1975] 2 NZLR 675 331

ABBREVIATIONS

A ABA ABAJ ABC AC ACT AIJA AILR ALJR All ER ALR ALRC ASAL BBC BCCLA BCJ BCLR BCPC BCSC BCTV Cal. Super Ct CBC CBS CCA CCC CCTV CJC CKVU CLR

Atlantic Reporter (US) American Bar Association; Australian Bar Association American Bar Association Journal Australian Broadcasting Corporation Law Reports, Appeal Cases (UK) Australian Capital Territory Australian Institute of Judicial Administration Australian Industrial Law Reports (Australia) Australian Law Journal Reports All England Law Reports (UK) Australian Law Reports Australian Law Reform Commission Annual Survey of Australian Law British Broadcasting Corporation British Columbia Civil Liberties Association British Columbia Judgments (Canada) British Columbia Law Reports (Canada) British Columbia Provincial Court British Columbia Supreme Court (Canada) British Columbia Television California Superior Court Canadian Broadcasting Corporation Columbia Broadcasting System Court of Criminal Appeal (Australian State Court) Canadian Criminal Cases closed circuit television Canadian Judicial Council Citytv Vancouver Commonwealth Law Reports (Australia) xix

xx

CMC CNN CPAC CR C-SPAN Cth CTV DLR DPP EHRR EMC F F. Supp FCR FLR HC Debs. HCA High Ct ICAC ICCPR ICH ICHRL ICT ICTY IPI IR ISP IT ITC ITN ITV JC KNBC Leg. Rep. LRCWA LSUC

LIST OF ABBREVIATIONS

conventional media coverage Cable News Network Canadian Public Affairs Channel Criminal Reports, Canada Cable Satellite Public Affairs Network Commonwealth Canadian Television Network Dominion Law Reports (Canada) Director of Public Prosecutions European Human Rights Reports electronic media coverage Federal Reporter (US) Federal Supplement (US) Federal Court Reports (Australia) Federal Law Reports (Australia) House of Commons Debates (UK) High Court of Australia High Court (UK) Independent Commission Against Corruption (NSW) International Covenant on Civil and Political Rights Internet Content Host Interights Commonwealth Human Rights Law information and communications technology International Criminal Tribunal for the former Yugoslavia International Press Institute Industrial Reports (Australia) Internet Service Provider information technology Independent Television Commission Independent Television News Independent Television Justiciary Cases (Scotland) NBC 4 Legal Reporter (Australia) Law Reform Commission of Western Australia Law Society of Upper Canada (Ontario)

LIST OF ABBREVIATIONS

MALR NAFTA NSJ NSR NSWCA NSWCCA NSWLR NSWLRC NTSC NY Slip. Op. NY Sup. Ct NYCRR NYS NZLR Okla. Crim. Ct App Ont. Dist. Ct PIO QB RSC RSO RTNDA SASC SASR SBS SCC SCCR SCNSW SCOLAG SCR SR (NSW) St R Qd TVNZ TVW UNSW UNTS U.S. U.S.C. VAR

xxi

Media and Arts Law Review (Australia) North American Free Trade Association Nova Scotia Judgments (Canada) Nova Scotia Reports (Canada) New South Wales Court of Appeal (Australia) New South Wales Court of Criminal Appeal (Australia) New South Wales Law Reports (Australia) New South Wales Law Reform Commission Northern Territory Supreme Court (Australia) New York Slip Opinion New York Supreme Court Reports (US) New York Codes Rules and Regulations (US) New York Supplement (US) New Zealand Law Reports Oklahoma Criminal Court of Appeal (US) Ontario District Court Public Information Officer Law Reports, Queen’s Bench (UK) Revised Statutes Canada Revised Statutes of Ontario (Canada) Radio-Television News Directors’ Association South Australia Supreme Court South Australian State Reports (Australia) Special Broadcasting Service (Australia) Supreme Court of Canada Scottish Criminal Case Reports Supreme Court of New South Wales Scottish Legal Action Group Supreme Court Reports, Canada New South Wales State Reports Queensland State Reports New Zealand Television Network Washington State’s Public Affairs Network University of New South Wales United Nations Treaty Series United States Supreme Court Reports United States Code Victorian Administrative Reports (Australia)

xxii

VR VSC VTV WAR WASCA WLR

LIST OF ABBREVIATIONS

Victorian Reports (Australia) Victoria Supreme Court (Australia) Vancouver Television Western Australian Reports (Australia) Western Australia Supreme Court, Court of Appeal (Australia) Weekly Law Reports (UK)

1 Introduction

A An overview of the history of the debate Whether media organisations should be permitted to photograph or otherwise record vision and/or sound of court proceedings has been debated for as long as such technology has existed. Thus the debate in Britain dates back to the introduction of press photography, while in the United States the issue first gained prominence through the filming of trials for cinema newsreels. Several factors account for the disquiet caused by the media’s incorporation of visual images in courtroom reporting, which led such visual coverage to be prohibited in Britain and virtually banned in the United States. Early courtroom photography was undoubtedly disruptive and distracting to participants, not only because it involved the use of cumbersome and obtrusive technology, but also because it was novel. Courts and other authorities also deemed visual coverage undesirable because it facilitated unprecedented levels of public access, further fuelling interest in and debate of judicial proceedings. Disquiet at the potential impact of such intrusive publicity on courtroom participants and on public respect for legal institutions has continued to dominate the debate long after technological advances eliminated the bases of concerns relating to physical distraction and disruption. The belief that respect and confidence in the judiciary is promoted and protected through the maintenance of judicial mystique and detachment has also served to provide a rationale for a denial of electronic media access to proceedings, even where the interests of parties and participants cannot be adversely affected. Judicial resistance to audio-visual reporting may also be explained in terms of judges’ traditional distrust and ambivalence towards media reporting, a factor predating audio-visual technology. It is only in recent years that courts in common law jurisdictions have begun to view media publicity not as a necessary evil but as a desirable aid to ensuring that 1

2

AUDIO-VISUAL COVERAGE OF COURTS

justice is done and is seen to be done, and to maintaining public confidence in the law and judicial system. The pervasive culture of rights in the United States, largely attributable to the freedoms of speech and of the press enshrined in the Bill of Rights, ensured that the unqualified prohibition on audio-visual reporting of court proceedings first imposed in the 1930s was lifted as soon as it could no longer by justified on the basis of disruptive and distracting technology. While all American states now permit some proceedings to be broadcast, in practice many judges choose to exercise their discretionary power to deny such coverage. Federal judges and in particular the Justices of the Supreme Court of the Unites States remain opposed to the televising of court proceedings. Though largely unheralded and overshadowed by negative publicity surrounding the televising of high profile cases, the most positive and informative American experiences have been those of state courts which in increasing numbers actively and routinely promote and facilitate public access via media broadcasting or even their own webcasting. The enactment of similar rights in Canada via the Charter of Rights and Freedoms and in New Zealand via the Bill of Rights Act 1990 has also led to a recognition that prohibitions on audio-visual reporting are, as a matter of legal principle, no longer able to be maintained. Due in large measure to the commitment of key judicial figures, in the late 1990s New Zealand successfully experimented with and adopted closely regulated audio-visual reporting of its proceedings. In Canada, where the relaxation of common law bans on cameras in courts had been largely championed by the media, the courts have been more reluctant to permit camera access. However, with judicial opposition waning, Canadian jurisdictions are beginning incrementally to permit audiovisual coverage. American and Canadian experiences reveal that where camera access is perceived in terms of media rights, it may be accepted in principle, yet in practice may continue to be resisted by the courts. The British government has recognised that its enactment of the Human Rights Act 1998, which implements the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms into British domestic law, called for the promotion of a culture of rights, requiring a re-examination of the role of the judiciary and public access to courts. While in the early 1990s Scottish courts recognised that the new legal culture was incompatible with the maintenance of a prohibition on cameras in courts, a revision of the

INTRODUCTION

3

statutory prohibition on cameras in English and Welsh courtrooms is currently under way. Australia’s position is distinguishable in that Australian law has not moved towards entrenching or even enacting a statute protecting or guaranteeing fundamental rights. However, the Australian judiciary continues to move towards embracing a more proactive role in facilitating public access and understanding of court proceedings. This has led courts to take significant steps designed to assist and promote accurate reporting of court proceedings. Even in the absence of pressure from the media, some Australian courts have instigated and encouraged restricted audio-visual coverage as a means of addressing public criticism of judicial activism and of promoting greater understanding of the role of courts.

B Current issues of the debate The key issues of the current debate are identified and addressed throughout this book. A number of key issues relate to the impact of developments in communication and information technology. Technological advances have ensured that audio-visual recording of court proceedings need not distract nor disrupt proceedings. The utilisation of recording technology by courts has also made it increasingly possible for audio-visual recordings of proceedings to be undertaken utilising courts’ installed recording equipment. While the mere knowledge of being recorded may still have an effect on participants, it could be said that the pervasiveness and extensive public use of audio-visual communication and information technology makes audio-visual coverage less daunting for courtroom participants and more acceptable to the public. While technology provides the means for enhancing the openness of judicial proceedings, it also provides public access to information relating to court proceedings, the unavailability of which appears to be assumed in traditional principles regulating courtroom reporting through the balancing of principles of open justice and fair trial. This has served to temper the extent to which courts relying on preventative measures to counter the effects of prejudicial publicity embrace technology to promote open justice. Another set of key issues flows from the perceived inconclusiveness of evidence regarding the effect of televising. In seeking to balance the interests of open justice and rights to access and publish information

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about court proceedings on the one hand with the right to a fair trial on the other, the inconclusiveness of evidence as to the effect of broadcasting on participants has led many judges to deny camera access. This factor has caused the central question of the debate to be whether inconclusive evidence as to the effects of televising justifies prevailing statutory and other prohibitions and restrictions and common law presumption against such coverage. The perceived inconclusiveness of evidence continues to play a key role in the enforcement of the legal rights of those seeking to record and broadcast or gain access to audiovisual recordings of court proceedings and in the judiciary’s exercise of discretionary powers to authorise audio-visual coverage. A number of further key issues concern the impact of the recognition of legally enforceable rights of those seeking to record, broadcast or access audio-visual recordings of court proceedings. The experiences of Canada and Britain illustrate some aspects of the impact of the recognition of rights on the debate and in particular on the impasse created by the perceived inconclusiveness of evidence and on judicial reluctance to address the issue. Thus in Canada, the question whether rules placing the onus of establishing the absence of detrimental effect on those seeking to record and broadcast proceedings or making audio-visual coverage subject to the consent of parties are justified under section 1 of the Charter of Rights and Freedoms remains hotly contested and yet to be ruled on by the Supreme Court of Canada. However, even in the absence of such a ruling, the embracement of a rights culture and the acceptance of the benefits of courtroom publicity make routine broadcast of at least appeal proceedings inevitable. In the United Kingdom, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is forcing the courts and government to address the issues of whether court televising should be permitted and what restrictions are compatible with the provisions of the Convention, in spite of continuing concerns regarding the inconclusiveness of evidence as to the effects of recording and broadcasting. In Scotland the issue appears to be whether the potentially detrimental effects of televising justify the blanket prohibition on the televising of current trials. In England and Wales, the government’s promotion of a rights culture, judicial reforms and focus on enhancing public participation, debate, access and understanding of law has led the government and senior judges to conduct an experiment with the recording of appeal proceedings. If the experiment is deemed a success it is highly likely to lead to the amendment of the statutory

INTRODUCTION

5

prohibition on audio-visual coverage and thus to permit at least the televising of appeal proceedings. Irrespective of this development, it remains doubtful whether the retention of a blanket statutory ban on the televising of first instance hearings could withstand a direct challenge of its compatibility with the Convention. A key issue also addressed throughout this book relates to the decisive role played by the attitude of judges. Thus the view held by some judges in all the jurisdictions considered in this book – that the requirements of open justice are satisfied in the absence of televised proceeding – is shown to pose an ongoing obstacle to the introduction of audio-visual coverage. The American experience also reveals that a lack of judicial support can in practice severely restrict the implications of legal rights to record, broadcast and access audio-visual recordings of proceedings. Thus, with few exceptions American courts continue to reject media argument seeking the recognition of a presumptive constitutional right to televise proceedings. Even if federal legislation were to override the objections of the Federal Judicial Council and grant federal judges the discretion to permit the televising of their proceedings, it would be unlikely to lead to a significant increase in the number of cases broadcast as public antagonism towards trial by media is currently causing courts in high-profile cases to restrict media coverage in order to safeguard the right to a fair trial and avoid the perception of trial by media. New Zealand’s experiences as outlined in this book reveal the decisive role played by influential members of the judiciary in the admission of audio-visual coverage, and illustrate that judicial willingness to accommodate and cooperate with the electronic media is required for such coverage to become accepted. Thus, although New Zealand courts have permitted proceedings to be routinely televised since 2000, and have recognised a presumption in favour of such coverage, the severity of restrictions imposed on such coverage had caused court televising to remain contentious. However, recent relaxation of the regulations and the acceptance by New Zealand’s new Supreme Court of audio-visual coverage of its proceedings as a norm appear to have finally made extended coverage acceptable to all stakeholders and to the public. This book also identifies and addresses issues flowing from the factors which distinguish Australia’s experiences of court televising from those of the other common law countries – the lack of relevant legally enforceable rights, and the Australian judiciary’s dominant role in the introduction of court televising. With Australian courts rather than the media instigating the occasional broadcasting of proceedings,

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audio-visual coverage remains ad hoc and largely confined to documentaries, judgment summaries, sentencing remarks and occasionally some legal argument. In the absence of enforceable rights, on the basis of which a legal challenge to Australia’s de facto prohibition of televising could be mounted, further innovations remain in the hands of the judiciary. In view of a lack of media interest and continuing judicial reservations regarding media access, it is likely that regular televising of proceedings will only occur through arrangements with public or dedicated broadcasters or through webcasting by the courts, which is currently under consideration by some Australian courts.

C The key arguments The cameras in courts debate has been dominated by arguments over the effects of the recording and broadcasting of court proceedings. Yet, studies, experiments and experiences in the United Kingdom, the United States, Canada, Australia and New Zealand have revealed such effects to be incapable of being established conclusively. What they have revealed is that appropriate regulations and controls are capable of minimising if not eradicating potentially detrimental effects, and that personal experience of televised court proceedings tends to make participants more favourably disposed to such coverage. However, factors such as judicial and public distrust of the electronic media’s motives for seeking access to record and broadcast court proceedings and the absence of evidence substantiating the touted potential benefits have served to stalemate the debate. It is submitted in this book that the effects of audio-visual coverage are intrinsically incapable of being conclusively established and thus ought not to be the focus or determining factor of the debate. Accepting the inescapable fact that effects can only be measured in terms of perceptions has implications not only for how the effect of audio-visual coverage is assessed but also for whether and the manner in which such coverage is introduced, by whom it is introduced, and the basis on which it is regulated and controlled. The continuing insistence on a substantiated absence of effects as a prerequisite to audio-visual recording and broadcast of court proceedings, it is argued in this book, is also incompatible with the principles of open justice, which recognise inherent costs and dangers of the public administration of justice, and with the contemporary reality in which television is the dominant source of public information regarding court proceedings.

INTRODUCTION

7

In this book it is proposed that while the minimisation of and acceptance of unavoidable risk is contingent on numerous factors, whether proceedings are subject to audio-visual coverage and whether the benefits of audio-visual coverage are attained is ultimately determined by three factors: the recognition of a legally enforceable right to record and broadcast and/or access audio-visual footage of court proceedings; the availability of technology capable of ensuring that such coverage is compatible with judicial proceedings; and above all, judicial attitudes which deem such coverage to be in the interests of the administration of justice and do not see it merely as a media right. The analysis of the experiences in the common law jurisdictions considered in this book reveals that a willingness by courts to facilitate open justice, the presence of or a promotion of a culture of rights and the availability of suitable technology have been determinative in the successful introduction of audio-visual coverage. On this basis, it is submitted that whether audio-visual coverage of court proceedings is permitted and how it is regulated ought to be determined not as a media right acceded to on the basis of conclusive evidence that it will not affect judicial proceedings, but rather as a medium of public information capable of enhancing public access and understanding of judicial proceedings.

D Structure Chapters 2 to 6 undertake an examination and analysis of the experiences of British, American, Canadian, Australian and New Zealand courts with audio-visual reporting of court proceedings. In the light of the history of each country’s experiences the chapters evaluate the two key arguments regarding the determinative factors and the inconclusiveness of evidence as to effects. The choice of the United Kingdom, United States, Canada, Australia and New Zealand as the countries whose experiences with audio-visual coverage would be the focus of my comparative study is attributable to a number of factors. To ensure that meaningful inferences could be drawn, the chosen jurisdictions needed to share key legal and political traditions. Thus, all five jurisdictions share a British common law tradition, an independent judiciary in which judges perform a comparable role in adversary proceedings and appeal hearings, and have a commitment to democratic rights and a transparent publicly accountable judicial system. Chosen countries also had to have sufficient experience with audio-visual

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coverage for meaningful comparison. In this respect, the inclusion of the United Kingdom, Canada and New Zealand was partly motivated by a desire to reveal their significant experiences which are relatively unknown outside and in some cases even within their borders. While the United States was included because of the wealth of its studies and experiments, its jurisprudence in this area, and because it continues to be popularly equated with courtroom television, the book has confined its attention to those aspects of the American experiences which influence or carry inferences for the other countries considered. The characteristics which distinguish these five common law countries were found to be equally relevant to the focus of this book, in that the identification of differences has served to highlight the implications of the adoption of differing policies and approaches to what this book presents as the key variables or determinative factors in the success and acceptability of audio-visual reporting of court proceedings. Thus, the significance of the presence of a culture of rights was able to be considered through an analysis of the influence of the American Bill of Rights, Canada’s Charter of Rights and Freedoms, New Zealand’s Bill of Rights Act 1990 and the United Kingdom’s Human Rights Act 1998, and able to be contrasted with the absence of any relevant entrenched rights in Australia. A consideration of the different ways in which technology has affected the nature and debate of court reporting in these comparably affluent Western societies, and the divergent manner in which the judges have responded to the prospect of audio-visual coverage of courts, has facilitated comparisons conducive to the drawing of translatable inferences and substantiated conclusions. Chapter 7 undertakes a comparative review and analysis of the findings of studies, experiments and experiences of the jurisdictions dealt with in Chapters 2 to 6. It emphasises that such findings reveal the detrimental and beneficial effects of electronic media coverage to be incapable of being established conclusively to everyone’s satisfaction. It is argued in Chapter 7 that although some deem the findings to be inconclusive, those evaluating audio-visual coverage have consistently found feared detrimental effects to be either unfounded or capable of being acceptably minimised through appropriate regulation and control. Chapter 7’s discussion also notes that though such findings have tended to reassure other jurisdictions considering electronic media coverage, they are shown not to be determinative of whether such coverage is permitted. Pilot projects and experiments are shown to have been undertaken only after jurisdictions have become persuaded

INTRODUCTION

9

of the desirability for such coverage. The function of such experiments is consequently held to be largely to reassure those unconvinced of the desirability of such coverage, to acclimatise courtroom participants and the public, and to determine the most appropriate and effective methods of regulation. The comparative analysis is shown to confirm that the key determining factors are the presence of a legal rights culture, which ultimately promotes an acceptance of audio-visual coverage; changes in courts’ perceptions of their role (sometimes imposed on courts) which lead them to alter their relationship with the media and proactively promote public access to and understanding of judicial proceedings in order to bolster public confidence in the judiciary; and technological developments, which have eliminated some of the perceived dangers, concerns and adverse effects of televising. In conclusion, Chapter 7 posits a new context in which audio-visual coverage of court proceedings should be considered and regulated. It proposes that in the light of earlier discussion and analysis audio-visual decisions as to whether the recording and broadcast of court proceedings ought to be permitted and how it should be regulated should be determined not in terms of the right of the electronic media’s access to court proceedings, but rather as the utilisation of courtroom technology to enhance public access and understanding of proceedings and court rulings by the wider public.

E Scope and terminology While the main focus of this book is on television camera recording and broadcast of courtroom proceedings, the book also incorporates the consideration of related media issues such as still photography by the press, audio recordings by radio broadcasters, and courts’ webcasting of their own audio and or visual recordings of proceedings. Terms such as ‘courtroom televising’, ‘broadcasting of proceedings’, ‘audio-visual coverage’, ‘extended media coverage’, ‘in-court televising’ and ‘electronic media coverage’ are used interchangeably throughout. However, whenever relevant, factors distinguishing various forms of media, nature of recordings and broadcast formats are highlighted and addressed. For example, live broadcasts may be distinguished from delayed transmissions; audio recordings and broadcast from video recordings; civil proceedings from criminal proceedings; first instance hearings from appeal hearings; overlay footage from actual excerpts of

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hearings; the recording and broadcast of segments of hearings from ‘gavel to gavel’ coverage; edited from unedited broadcasts; and broadcast with commentary from broadcasts without commentary. The term ‘access to courtroom proceedings’ may encompass levels of access ranging from severely restricted access, bordering on prohibition, to unrestricted access. While the book argues against an unqualified absolute ban on audio-visual coverage of court proceedings, it does not advocate a particular minimum level of access. It is the basis on which access is restricted or prohibited rather than the extent of permitted coverage which the book challenges. Thus, the book argues that whether and to what extent access is granted ought to be determined not in terms of such access being a media right, or contingent on it being established that such access will not adversely affect proceedings, but rather on the basis of such access being seen as the utilisation of a medium capable of enhancing public access to information and understanding of court proceedings. This suggests that various levels of access may be appropriate for different types of judicial or quasi-judicial proceedings, with the nature of some proceedings and other issues justifying a total exclusion of audio-visual media coverage while others may warrant virtually unrestricted access. The term ‘open justice’ as used in this book relates to the principle that deems it desirable that the public be afforded access to court proceedings and to information about the work of courts in order to enhance public confidence in and ensure meaningful public accountability of the administration of justice through informed commentary and criticism. This book argues that it is undesirable and inappropriate to equate the concept of ‘open justice’ with rights, as such an approach tends to lose sight of why it is deemed important that justice be administered openly.

2 United Kingdom

A Introduction Statutory prohibitions bar television cameras from courtrooms in England, Wales and Northern Ireland. Since 1925, section 41 of the Criminal Justice Act 1925 has imposed an absolute ban on the taking of photographs in courtrooms and in the precincts of courts in England and Wales.1 Section 29 of the Criminal Justice Act 1945 imposes an identical prohibition with respect to courts in Northern Ireland.2 Though section 41 does not expressly prohibit the televising of court proceedings, its prohibition on the taking and publishing 1

Criminal Justice Act 1925 (15 & 16 Geo 5 c 86), s. 41 states: 1. No person shall: (a) 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 criminal or civil; or (b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provision of this section or any reproduction thereof; and if any person acts in contravention of the foregoing provisions of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding level 3 on the standard scale. 2. For the purposes of this section – (a) the expression ‘court’ means any court of justice, including the court of a coroner: (b) the expression ‘judge’ includes recorder, registrar, magistrate, justice and coroner: (c) a photograph, portrait or sketch is taken or made in court if it is taken or made in the court-room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court-room or any such building or precincts as aforesaid.

2

Set out in Broadcasting Courts: A Consultation by the Department for Constitutional Affairs (November 2004), Annexure A. See www.dca.gov.uk/consult/courts/broadcastingcp28-04.htm at 29 March 2007.

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of photographs in courts has been held to apply to television cameras.3 Prior to 1925, courtroom photography in England and Wales had been regulated and sometimes prohibited by judges’ exercise of their inherent power to control proceedings, and the law of contempt of court.4 As section 41 does not apply to Scottish courts, such inherent power has governed camera access to courtrooms in Scotland.5 A rule of practice flowing from the courts’ inherent power effectively banned cameras from Scottish courts prior to 1992, and continues to severely restrict such coverage. Since 1981, sound recording of British court proceedings has also been prohibited by section 9 of the Contempt of Court Act 1981, which imposes an absolute prohibition on the publication of sound recordings of legal proceedings and restricts the use of recording devices to occasions where leave is granted by the court and to the recording of official transcripts of proceedings.6 Though the televising of proceedings involves the recording and broadcast of both vision and sound, it has generally been accepted that section 9 does not extend to the use of television cameras.7 The statutory prohibition and common law restrictions imposed by the law of contempt of court and inherent judicial power on television coverage of judicial and quasi-judicial proceedings have been 3

4

5

6

7

Re St Andrew’s, Heddington [1977] 3 WLR 287, 289–90 (Judge Ellison); J Barber & Sons v. Lloyds Underwriters [1987] 1 QB 103, 105 (Evans J). See Martin Dockray, ‘Courts on Television’ (1988) 51 Modern Law Review 593 and the view expressed by English Barrister Albert H Robins, that English sub judice laws would have prevented the trial by media which took place in the 1935 American case of State v. Hauptmann 180 A 809 (1935): Albert H Robins, ‘The Hauptmann Trial in the Light of English Criminal Procedure’ (1935) 21 American Bar Association Journal 301. For contempt of court and the courts’ inherent power see also Attorney-General (UK) v. Leveller Magazine Ltd [1979] AC 440; Watkins LJ in R v. Felixstowe Justices, ex parte Leigh [1987] 1 QB 551. For an historical explanation see Lord Hope, ‘Television in the Scottish Courts’, paper presented at Meeting of Chief Justices and Attorneys-General of the European Union, Lisbon, May 1994, at p. 3; see Daniel Stepniak, Electronic Media Coverage of Courts: A Report Prepared for the Federal Court of Australia (1998), Appendix 22. Contempt of Court Act 1981, s. 9. See discussion of the 1974 recommendations of the Phillimore Committee on Contempt of Court in Clive Walker and Debra Brogarth, ‘Televising the Courts’ (1989) 153 Justice of the Peace 637, 638; Martin Dockray, ‘Free Press or Fair Trial?’ (1989) Law Society’s Gazette 17, 17–18. See Hope, ‘Television in the Scottish Courts’, above n. 5, at p. 2. However, in the Shipman Inquiry Dame Janet Smith held s. 9 to govern the recording of the soundtracks of audio-visual recordings: Dame Janet Smith, The Shipman Inquiry: Decision on Application by Cable News Network (CNN), 25 October 2001, para. 17, www.the-shipmaninquiry.org.UK/ruling_20011025.asp, at 29 March 2007.

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increasingly questioned over the past twenty years. In light of technological developments and the television medium’s prominence as a source of public information, the prohibition and restrictions are increasingly perceived to be inconsistent with common law principles of open justice; with the freedom of speech provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’) which were incorporated into British domestic law by the Human Rights Act 1998; with changes to the structure and role of the judiciary; and with government policies seeking to build a human rights culture which emphasises openness and accountability of public institutions and public participation in public affairs, and appear to reflect the values of a bygone era. The significance and impact of these and other factors suggesting a need to review the restrictions on audio-visual coverage of court proceedings is revealed in the following analysis of Britain’s debate and experiences, which, though significant, have been confined to coverage permitted by the Lord President’s 1992 directions in Scotland; of the Appellate Committee of the House of Lords which the Law Lords do not regard as a ‘court’ for the purposes of the statutory prohibition; and the quasi-judicial proceedings of public inquiries established under the Tribunals of Inquiry (Evidence) Act 1921 to which the statutory prohibition also does not apply.

B The Caplan Report In 1988, some sixty-three years after the enactment of the Criminal Justice Act 1925 prohibition, the Public Affairs Committee of the General Council of the Bar set up a working party to ‘enquire into the feasibility and desirability of televising court proceedings in England and Wales’.8 After studying overseas experiences with cameras for over twelve months, the working party released its Report (hereinafter ‘the Caplan Report’).9 In challenging the rationale and appropriateness of

8

9

The working party consisted of Jonathan Caplan (Chair), Michael Kalisher QC and Anthony Spaeight. Public Affairs Committee of the General Council of the Bar, Televising the Courts: Report of a Working Party of the Public Affairs Committee of the General Council of the Bar (May 1989) (‘Caplan Report’). For a summary of the Report see ‘Bar Working Party Reports’ (1989) May-June Counsel 5. For analysis of the Report see Walker and Brogarth, ‘Televising the Courts’, above n. 6, who also note other assessments at 640, note 31.

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the statutory ban the Caplan Report’s findings and recommendations have greatly influenced the cameras in courts debate in Britain and other common law countries.10 In their unanimous findings, the working party noted that the principle of open justice could no longer depend on public attendance of court proceedings,11 and that public scrutiny and debate of court proceedings had become overwhelmingly reliant on media and especially television reporting.12 The working party’s research had convinced them that objections to the televising of courts were ‘based largely on fears which, in practice, are revealed to be unfounded, and in part upon an emotive reaction to television’,13 and that in view of available ‘nonintrusive technology’, such risks as there may be could be ‘effectively removed or controlled by the rules of coverage and the trial judge’s discretion and they are not a justification for banning the camera altogether’.14 Reviewing the arguments for and against televising in the light of evidence as to the effects of televising revealed by overseas experiences led the working party to declare ‘that the benefit of televising outweighs the arguments against it’15 and warranted a presumption in favour of permitting television access.16 On this basis they concluded that they could ‘see no legitimate reason in 1989 in continuing to exclude the major source of news for the great majority of the population’.17 Consequently they recommended that the Criminal Justice Act 1925 and Contempt of Court Act 1981 be amended to permit pilot projects of radio, television and photographic coverage of civil, criminal and of appellate proceedings to be undertaken.18 The Caplan Report’s recommendations as to the scope of coverage which should be permitted and the restrictions to be imposed revealed a cautious approach, which sought to allay even unsubstantiated concerns. Thus, for example, the working party recommended that rules governing coverage stipulate that recorded material ‘should only be used for news documentary or educational purposes [and] should prohibit use in any light entertainment context’.19

10

11 13 16 18

See in particular discussion in chapters 4 to 6, dealing with Canadian, Australian and New Zealand experiences. Caplan Report, above n. 9, at para. 1.6. 12 Ibid. p. 26, para. 4.2. Ibid. p. 47, para. 6.1. 14 Ibid. p. 46, para. 6.1. 15 Ibid. p. 35, para. 4.13. Ibid. p. 41, para. 5.6(i). 17 Ibid. pp. 46–7, para. 6.1. Ibid. p. 49, para. 7.1, recommendations iv–v. 19 Ibid. p. 43, para. 5.6(iii).

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In 1990, the working party’s proposals were endorsed by the Bar Council and led to a private member’s Bill, the Courts (Research) Bill 1991, being submitted to the House of Commons by Dr Mike Woodcock JP. The Bill sought to amend section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981 only so far as to enable the pilot projects to be undertaken.20 The Bill was vigorously debated in the House of Commons,21 and though the government ‘took a neutral stance in the debate’, it was ‘talked out on its second reading and stood over for further parliamentary time’,22 which it did not subsequently receive. The main grounds on which the Bill was opposed appeared to reflect criticism of the nature of some recordings and broadcasts in the United States, concerns regarding the additional pressure which such coverage would impose on parties and witnesses, and fears that proceedings would be trivialised and ‘showmanship’ would turn courts into a ‘media circus’.23 As the issues which section 41 raised extended beyond the question of whether televising of court proceedings ought to be permitted, the Caplan Report’s recommendations were quite appropriately described as ‘inevitable developments’ in light of increasing calls for a more open system of justice,24 and warrant further consideration in that context.

C Towards greater openness of justice 1 Enactment of the statutory prohibition Circumstances surrounding the enactment of the section 41 prohibition reveal that it was imposed in reaction to the introduction of regular publication of courtroom photographs in newspapers, and to their 20

21 22 23 24

The Bill also sought to amend s. 8 of the Contempt of Court Act 1981 to permit jurors to be interviewed and thus enable research to be carried out into how juries reach their decisions: Jacline Evered, ‘Televised Justice: Considered Proposals for the Controlled Use of Television Cameras in the United Kingdom Courts’ (1997) 11(4) Contemporary Issues in Law 23, 26; Mike Woodcock, ‘Open Justice’ (1991) February Counsel 20. Surprisingly this amendment is said to have provoked considerably less controversy than the other two amendments. See ‘Bar Support for Television Pilot Scheme’ (1991) 141 New Law Journal 190. See HC Deb, vol. 186 cols. 549–67 and 615–678, 22 February 1991. Evered, ‘Televised Justice’, above n. 20, at 26. Sir Michael Hutchison, cited in ‘Bar Support for Television Pilot Scheme’, above n. 20. Ibid.

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contribution to the reporting of several notorious cases in the early 1920s.25 It was intended to be an experimental measure,26 aimed specifically at curbing the publication in newspapers of courtroom photographs taken without leave of the court.27 A particularly significant photograph was that taken of Old Bailey Judge Bucknell in the act of passing sentence of death on convicted murderer Frederick Seddon, apparently without the consent of the court,28 and published in the Daily Mirror newspaper on 15 March 1912.29 Described in parliamentary debates some twelve years later as ‘a most shocking thing to have taken, or to have published, dreadful for the Judge, dreadful for everybody concerned in the case’,30 the photograph had led to the compilation by the Home Office of a file of published courtroom photographs and was cited as evidence of the need to prohibit courtroom photography.31 The publication of the sordid details of evidence in a divorce case and the high level of media and public interest in two criminal cases in 1922 appeared to reinforce calls for restriction on courtroom reporting, and on photographic coverage in particular,32 and to provide the final impetus for the enactment of the prohibition. The new phenomenon of press photography33 was perceived to be of ‘limited public benefit’, press photographs being deemed to only exacerbate the media’s intrusion into the court proceedings by exciting ‘prurient or morbid curiosity’.34 In voicing his support for the curtailment of their publication, in 1923 the Director of Public Prosecutions observed: ‘Whether it is that 25 26

27

28 29

30 31 33

34

Dockray, ‘Courts on Television’, above n. 4, at 593–7. Sir William Joynson-Hicks, Home Secretary, 1924–1925, HC Deb vol. 188 col. 849, 20 November 1925. This discretion was removed during the Bill’s passage through the House of Commons: Caplan Report, above n. 9, at para. 2.2. Dockray, ‘Free Press or Fair Trial’, above n. 6, at 17. For a discussion of this incident see Martin Dockray, ‘A Sentence of Death’ (1989) May–June Counsel 17 and see Dockray, ‘Courts on Television’, above n. 4. For further discussion see Susan Prince, ‘Cameras in Court: What Can Cameras in Parliament Teach Us?’ (1998) Contemporary Issues in Law 82, 83; Daniel Stepniak, ‘British Justice: Not Suitable for Public Viewing?’ in Paul Mason (ed.), Criminal Visions: Media Representations of Crime and Justice (2003), p. 254 at pp. 255–8; Joseph Jaconelli, Open Justice: A Critique of the Public Trial (2002), pp. 315–16. Lord Darling (1924) HL Deb vol. 56 col. 313, 26 February 1924. Dockray, ‘Courts on Television’, above n. 4, at 595. 32 Ibid. 596. In 1904 the Daily Mirror ‘became the world’s first newspaper to be regularly illustrated with photographs’: ibid. 594. Ibid. p. 597.

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the Press creates a morbid demand for the pictures of criminal cases or whether the public taste has sunk so low as to require newspapers to provide them with these pictures, I am not sure.’35 Though playing a key role in the enactment of the prohibition, the desire to restrict the media’s promotion of public interest in the more lurid details of judicial proceedings in 1925 appeared to have little relevance to the concerns expressed later with regards to televising of proceedings. Thus, referring to the publication of the notorious Daily Mirror photograph, Dockray observed: It did not trivialise or distort the legal process; nor did it sensationalise a trial which was already notorious. Where is the vice in the picture? Was vulgarity the objection? And was it really so dreadful for everybody in the case? There is no evidence that it disturbed Seddon.36

By seeking to restrict media reporting and public commentary on judicial proceedings the prohibition appeared and continues to appear inconsistent with principles of open justice and in particular with increasing recognition of the important role which media reporting plays in facilitating public understanding and scrutiny of the judicial process. In seeking to protect the privacy of and avoid pressure on parties and witnesses, and to prevent public discussion of salacious details of cases, the prohibition endeavoured to avoid the very costs of open justice which had been deemed as acceptable in 1913 by the House of Lords in Scott v. Scott.37 In his judgment Lord Atkinson had stated: The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent to both parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it public confidence and respect.38

In observing why publicity was an essential element of open justice, Lord Shaw cited Jeremy Bentham to observe: ‘Publicity . . . is the keenest spur 35

36 38

Letter from Sir Archibald Bodkin to Sir John Anderson, Under Secretary of State at the Home Office Public Record Office, 1923: reference LC0 2/775 cited in Caplan Report, above n. 9, at p. 8, para. 2.2. Dockray, ‘A Sentence of Death’, above n. 29. 37 Scott v. Scott [1913] AC 417. Ibid. at 463.

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to exertion . . . It keeps the judge himself while trying under trial.’39 Yet, the purpose of the prohibition has been interpreted by some judges as a protection from the glare of publicity. For example, in Re St Andrews Heddington40 Judge Ellison saw the purpose of section 41 as ‘clearly to afford necessary privacy to judges and others concerned from unwelcome intrusion or feelings of such which is essential for the proper conduct of proceedings’.41 He went on to explain that: Justice could not be properly administered if judges or witnesses suffered the pressures, embarrassment and discomfort of being photographed whilst playing their particular role with the expectation that every sign, mood or mannerism or observation should later be displayed to the public media.42

2 Reforms of the 1980s Two extra-judicial pronouncements made in 1987 appeared to signal an acceptance of the desirability of judicial involvement in enhancing public understanding in order to facilitate informed public debate of judicial matters. The Master of the Rolls declared that it was ‘crucially important that the judiciary should explain to the public what they are seeking to achieve, how they are seeking to achieve it, what problems they are encountering, what success is attending their efforts’.43 Lord MacKay, the Lord Chancellor, appeared to make such involvement possible when he relaxed the Kilmuir Rules, which since 1955 had sought to protect judicial reputation, impartiality and avoid public criticism through a convention of judicial reticence,44 stating that ‘Judges should be free to speak to the press, or television, subject to being able to do so without prejudicing their performing of the judicial work.’45 Key judicial pronouncements of the 1980s also emphasised public debate and criticism as crucial elements of open justice which should not be stymied through unwarranted restrictions on media reporting. Thus, Lord Scarman observed: ‘Justice is done in public so it may be discussed 39 42 43

44 45

Ibid. at 447. 40 Re St Andrews Heddington [1977] 3 WLR 286. 41 Ibid. at 289. Ibid. at 289–90. Court of Appeal (Civil Division) Annual Review 1987, cited in Dockray, ‘Courts on Television’, above n. 4, at 598. A. W. Bradley, ‘Judges and the Media: the Kilmuir Rules’ (1986) Public Law 383, 384. ‘New Lord Chancellor urges end to restraints: ‘‘Judges should be permitted to speak out’’’, The Times (London), 4 November 1987, p. 3.

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and criticised in public.’46 He emphasised that the purpose of facilitating public debate was ‘so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification’.47 The implication of this judicially recognised encouragement of public debate for the regulation of court reporting was spelt out by Lord Justice Watkins in R v. Felixstowe Justices ex parte Leigh,48 where he held that: not only must nothing be done to discourage the fair and accurate reporting of proceedings in court, but that no exercise of the inherent power of the court to control the conduct of proceedings must depart from the general rule of open justice to any greater extent than the court reasonably believes it necessary in order to serve the ends of justice.49

Concerns relating to a perceived trend towards secrecy and the curtailment of reporting restrictions had also led to legal challenges and to legislative changes such as the relaxation of the strict liability rule of the common law of contempt of court in the Contempt of Court Act 1981,50 and the reforms introduced by the Criminal Justice Act 1988.51 However, such reforms were still perceived not to adequately address concerns relating to the openness of justice.52 In calling on the Lord Chancellor to embrace the principle of open justice in the Citizen’s Charter, the Guild of British Newspaper Editors pointed to prohibitions on the reporting of committal proceedings introduced in 1967 and the significant percentage of hearings which were subject to reporting restrictions under the Contempt of Court Act 1981 as illustrations of how far British justice had ‘slipped from its once avowed policy of being open to examination’.53 The Caplan Report noted that while section 4 of the Contempt of Court Act 1981 permitted the reporting of contemporaneous proceedings, the section had been used to prevent the 46 47 48 50

51

52 53

Home Office v. Harman [1982] 1 All ER 532, 547. Harman v. Secretary of State for the Home Department [1983] 1 AC 280, 316. [1987] 1 QB 551. 49 Ibid. at 593. Following a ruling by the European Court of Human Rights in Sunday Times v. United Kingdom [1979] 2 EHRR 245 in which the Court found that the House of Lords decision in Attorney-General (UK) v. Times Newspapers Ltd [1974] AC 273 had violated Article 10 of the European Convention on Human Rights. See David Newell, ‘Media Law Review’ (1989) 86 Law Society’s Gazette 23; Debra Brogarth and Clive Walker, ‘Court Reporting and Open Justice’ (1988) 138 New Law Journal 909. See Walker and Brogarth, ‘Televising the Courts’, above n. 6. ‘Open Justice’ (1989) 142 New Law Journal 957.

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broadcast of re-enactments of ongoing proceedings on the grounds that such broadcasts posed ‘a substantial risk of prejudice to the administration of justice in those proceedings’.54 As the Caplan Report had been perceived by some as ‘an opportunity to look afresh at the wider implications’,55 it caused some commentators to criticise the Report as being too cautious, and for reasons of political expediency of being willing to accept ‘restrictions on broadcasting not warranted by the principles of fairness and justice’.56 Thus, it was suggested that the strict restrictions which the Report proposed reflected an: excess of zeal for the dignity of the courts, possibly based on the misguided belief that the whole edifice will crumble if fun is poked at barristers and Judges. Yet a legal system in a democracy must ultimately survive on its merits rather than by way of censorship.57

D Broadcast of parliamentary proceedings Calls for greater openness in the administration of justice also coincided with changing attitudes towards public participation in public affairs. Thus, early calls such as those by the Royal Commission on the Press in 1949, which urged that the ‘democratic form of society demands of its members an active and intelligent participation in affairs of community’,58 led to the parliamentary proceedings of both the House of Commons and House of Lords being broadcast by radio from 1977. Parliament’s favourable experience with radio broadcasting in turn led to proposals in the mid-1980s for the televising of parliamentary proceedings.59 Though initially unsuccessful, the proposals led to experimental televising in 1989 and permanent coverage from 1991.60 While the initial parliamentary debates of the televising of Parliament proposal appeared to be the catalyst which led to the questioning of the 54 55 56 58

59 60

Caplan Report, above n. 9, at p. 10, para. 2.4. ‘Tele-Justice’ (1989) 139 New Law Journal 705. Walker and Brogarth, ‘Televising the Courts’, above n. 6, at 640. 57 Ibid. 640. Royal Commission on the Press (Cmd 7700 1949), para 362, cited in Dockray, ‘Courts on Television’, above n. 4, at 599. See Martin Dockray, ‘In Camera’ (1985) 135 New Law Journal 1254. Prince, ‘Cameras in Court’, above n. 29, at 84. See also Department for Constitutional Affairs, Broadcasting Courts, above n. 2, Annexure B, ‘Televising Parliament’, www.dca. gov.uk/consult/courts/broadcasting-cp28-04.htm, at 29 March 2007.

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statutory ban on cameras in courts,61 broadcasting of Parliament was to play a much more direct role by enabling the first radio and television broadcasts of British judicial proceedings.

E First broadcasts of judicial proceedings Though not authorised under the general provisions governing radio broadcasting of Parliament, ‘provision was made for a broadcaster to apply to the Select Committee on Sound Broadcasting for permission to broadcast proceedings of a judicial nature . . . [a] similar regime was applied to TV broadcasts when television was introduced into Parliament’.62 This provision was utilised to permit the radio broadcast of a 1986 judgment by Britain’s highest court, the Appellate Committee of the House of Lords. Shortly following the commencement of experimental television broadcasting of Parliament in 1989, BBC Television was granted permission to record and broadcast the Appellate Committee delivering their opinions to the House of Lords.63 As the Law Lords appeared not to regard the Appellate Committee as a ‘court’ subject to the provisions of the Criminal Justice Act 1925,64 in 1992 the BBC sought permission to televise in a documentary not only the delivery of the Law Lords’ judgment in the parliamentary chamber of the House of Lords, but also legal argument conducted in a committee room.65 While the Law Lords indicated a willingness to permit such coverage, in reaction to an earlier television programme by another broadcaster which had ‘made the judges look rather silly’ they insisted on certain conditions. In particular, members of the committee reserved the right to prevent the broadcast of any segments depicting them to which they objected. As such editorial control was not acceptable to the BBC, the broadcasts did not proceed.66

61

62

63

64 65 66

See Dockray, ‘In Camera’, above n. 59; Martin Dockray, ‘Cameras in Court’ (1985) 6 Journal of Media Law and Practice 244. Lord Taylor, ‘Justice in the Media Age’, paper presented at the Commonwealth Judges’ and Magistrates’ Association Hertfordshire Symposium, Hertfordshire, 15 April 1995, at 10. Ibid. Lord Taylor had observed (at 10) that since 1978, ‘permission to broadcast judicial proceedings [had] been sought on several occasions’. Joshua Rozenberg, ‘The Pinochet Case and Cameras in Court’ (1999) Public Law 178. Joshua Rozenberg, The Search for Justice: An Anatomy of the Law (1994), p. 190. Ibid. pp. 190–1; Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 178–9.

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F Relaxation of the Scottish common law prohibition 1 Reasons for the relaxation While access to the hearings of the Appellate Committee of the House of Lords appeared destined to remain a stalemate, the endeavours of British broadcasters to gain greater access to court proceedings were buoyed in August 1992 when Lord Hope, the Lord President of Scotland, announced a relaxation of the rule of practice which had barred cameras from Scottish courts. As he later explained, Lord Hope had sensed that the common law rule which had served to deny cameras access to Scottish courts would not survive and consequently decided to take the initiative in order ‘to control events’.67 At Lord Hope’s request, Lord Cullen, a Scottish High Court Judge, had consulted the legal profession and broadcasters and prepared a report,68 revealing Scottish lawyers to be generally in favour of a relaxation of the strict rule of practice, and technology capable of permitting proceedings to be televised without undue impact on proceedings.69 Lord Hope’s consultation of other Scottish judges also revealed a majority in favour in principle to a relaxation of the ban.70 Arguably the judiciary’s support may at least in part be attributable to Scottish judges being far less likely than their English counterparts71 to find media reporting to adversely affect participants in judicial proceedings and thus be deemed to constitute contempt of court. As Bonnington has noted: There has never been a successful plea advanced in Scotland by an accused person to prevent his trial proceeding because of adverse pre-trial publicity. Nor has there ever been a successful appeal against conviction on the basis of prejudice caused by the media.72

67 68 69

70 71 72

Hope, ‘Television in the Scottish Courts’, above n. 5, at 3. ‘Scots Look at Televised Courts’ (1992) 142 New Law Journal 79. Lord Hope ‘Television in the Scottish Courts’, above n. 5. The legal profession’s support for the relaxation of the ban had been disclosed, following the release of the Caplan Report, in remarks by the President of the Law Society of Scotland that the televising of sentencing could act as a deterrent to crime: Prof. Ross Harper, ‘Court TV Deterrent?’ (1988) 138 New Law Journal 906. Hope, ‘Television in the Scottish Courts’, above n. 5. See the Caplan Report, above n. 9, for a discussion of the English judges’ approach. Alistair J. Bonnington, ‘Press and Prejudice’ (1995) 145 New Law Journal 1623.

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2 Lord Hope’s Directions On 6 August 1992 a practice note, containing ‘Lord President Hope’s Directions re Television in the Courts’ and an explanatory memorandum were issued to the legal profession and the media.73 Noting that the practice had been to refuse all requests for permission to televise court proceedings, Lord Hope set out an explanation for why he did ‘not think that it is in the public interest in the long term that such an absolute restriction should remain’. The Lord President noted that advances in modern technology meant that proceedings could be televised ‘without undue interference in the conduct of proceedings’. Lord Hope also observed that cameras had been admitted, and proven to be acceptable to Parliament, to religious services and in some European courts. He further observed that visual aids were increasingly being utilised to help the public understand court proceedings, and noted that the broadcast of overseas proceedings may lead to ‘misunderstandings about the way in which court proceedings are conducted in our own country’. Lord Hope held that it would also be ‘in the public interest that people in Scotland should become more aware of the way in which justice is being administered in their own courts’. Having found ‘sufficient support within the judiciary and the legal profession in Scotland for such a change to be made’,74 Lord Hope concluded that ‘[i]t would be in keeping with these and other developments for the televising of some proceedings in the Scottish courts to be permitted’. Though relaxing the absolute prohibition on televising, Lord Hope’s Directions stopped well short of the Caplan Report’s call for a presumption in favour of televising. While the Caplan Report had urged that camera access be decided on the basis of criteria indicating ‘whether justice could be endangered’ in each individual case,75 the criterion by which Scottish courts were to determine whether to permit televising was ‘whether the presence of television cameras in the court would be without risk to the administration of justice’.76 Lord Hope noted that his determination of the appropriate extent of relaxation had been guided by his consultations with judges and the legal profession.77 73

74 75 77

For text of note and the Directives see Department for Constitutional Affairs, Broadcasting Courts, above n. 2, Annexure C. See Harper, ‘Court TV Deterrent?’, above n. 69, at p. 16. Caplan Report, above n. 9, at pp. 41–2, para. 5.6(i). 76 Directions, para (b). Hope, ‘Television in the Scottish Courts’, above n. 5.

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The Directions distinguished broadcasts of current proceedings from broadcasts following the conclusion of hearings, and appellate proceedings from first instance trials. Thus, while permitting the televising of current appellate proceedings with the approval of the presiding judge, the televising of current civil and criminal proceedings at first instance was to remain totally prohibited. The retention of this prohibition was deemed justified in the case of first instance trials by perceived ‘risks to the administration of justice’.78 The concerns which accounted for this cautious approach appeared to be fuelled by reactions to the broadcast of some American trials, as even supporters of the proposal to permit cameras in Scotland were said to have had second thoughts after seeing broadcasts of the Florida rape trial of William Kennedy Smith.79 Though the recording of ‘proceedings, including proceedings at first instance for the purpose of showing educational or documentary programmes at a later date [were to] be favourably considered’, the Directions noted that ‘such filming may be done only with the consent of all parties involved in the proceedings, and it will be subject to approval by the presiding judge of the final product before it is televised’.80 As the Scottish media had expressed support for the televising of court proceedings prior to Lord Hope’s announcement,81 and the Lord President had acknowledged that he had been assisted in his decision ‘by the fact that most people in key positions in broadcasting in Scotland were known to me personally’,82 it was no surprise that the Directions provoked significant media interest. This led Lord Hope to conclude that ‘detailed guidelines were required to lay down the procedures to be followed’.83 This in turn led to protracted and often tense discussions before agreement was reached on specific rules which would govern the proposed televising. As had been the case with House of Lords’ televising, the issue of editorial control proved particularly difficult to resolve. The ultimate compromise left judges able to make suggestions as to the final edit of stories to be broadcast but without a power of veto.84 The stringency of the Guidelines may explain why permission to record was only granted in ‘one per cent’ of the applications lodged by 78 80 82 84

Directions, paras. (c) and (d). 79 ‘Scots Look at Televised Courts’, above n. 68. Directions, para. (h). 81 ‘Television in Scotland’ (1992) 142 New Law Journal 1149. Hope, ‘Television in the Scottish Courts’, above n. 5. 83 Ibid. 9. Sean Webster, ‘Year-long struggle allows TV only restricted view of the courtroom’, Independent (London), 16 November 1994.

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BBC producer Nick Catliff.85 Particularly problematic was the guideline which permitted parties to withdraw their consent up to twenty-four hours after courtroom footage had been recorded. Noting that this almost inevitably happened,86 Catliff described the process as a ‘ritualistic dance’.87 The difficulties of gaining the consent of parties to proceedings were also said to have been exacerbated by the ‘frustratingly off-putting’ wording of the consent form approved by Lord Hope.88 Somewhat surprisingly in view of Lord Hope’s determination that a majority of judges supported the relaxation, obtaining the consent of judges was said to pose the greatest obstacle.89 Also somewhat inexplicably in view of the Directions’ strict safeguarding of the integrity of the judicial process, Lord Hope acceded to the BBC’s request that verdicts be kept secret until they were broadcast to ensure that viewers would watch entire programmes.90 In the absence of further information explaining why this decision was taken, it can only be surmised that Lord Hope agreed to this request in order to appease broadcasters who had complied with the demanding preconditions to recording. As the complex application process and consent requirements in actuality asked the media to devote substantial time and resources to applications and even recordings which they could not count on being able to broadcast, it is not surprising that a number of media networks lost interest.91 It was only the BBC’s determination to broadcast educational programmes containing courtroom footage and its willingness to devote resources far exceeding those it would expend on other documentaries and programmes,92 that led to the recording and broadcast of a number of Scottish trials. 85

86 87

88 89

90 91

92

Alexandra Frean, ‘BBC presses Mackay to allow cameras in court’, The Times (London), 24 August 1994, p. 4. See Nick Catliff, ‘On Camera not in Camera’ (1994) 144 New Law Journal 1597, 1597–8. Nick Catliff, ‘His Lordship regrets that this particular case. . .’, The Times (London), 15 November 1994, p. 29; Liz Fisher, ‘Through the Camera Lens: When Justice Is Not, Seen to Be Done’ (1995) 69 Australian Law Journal 477, 479. Nick Catliff, ‘His Lordship regrets that this particular case. . .’, above n. 87, at 29. Webster, ‘Year-long struggle’, above n. 84. For criticism of this decision see Stepniak, Electronic Media Coverage of Courts, above n. 5, at p. 105, para. 5.27. Fiona Bawdon, ‘TV on Trial’ (1994) 91 Law Society’s Guardian Gazette 10. The difficulties experienced by the media are outlined in Webster, ‘Year-long struggle’, above n. 84; Catliff, ‘On Camera Not in Camera’, above n. 86. Nick Catliff, ‘The Trial and the British Experience’, paper presented at the Cameras in the Courtroom Conference, Southampton Institute, 12 February 1999.

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3 Reactions to the broadcast of Scottish proceedings The first trial to be recorded by television cameras in a British court was a shoplifting and assault trial in the Edinburgh Sheriff Court. It was recorded by BBC Television on 31 May 1993, and broadcast in April 1994. Broadcasts by BBC Scotland included two, one-hour documentaries on the behind-the-scenes workings of Scottish courts and the investiture ceremony of a new judge of the Scottish Criminal Court of Appeal. However, the most notable recordings were those undertaken at great expense93 over two years by BBC 2 for The Trial, a five-part documentary series on Scottish criminal trials.94 The series was broadcast nationally in late 1994 and overseas in subsequent years. Domestically it attracted some eight million viewers, averaging 2.5 million viewers per episode and an estimated 3.3 million for the first episode alone.95 While the strictness of the governing rules and the huge expense could not be sustained by the media beyond the initial recordings, a sufficient number of proceedings had been recorded to enable the judiciary, the legal profession and the public to form informed views as to the desirability and viability of courtroom televising. Lord Hope was reported to have been ‘reassured’ by what was televised.96 His 1994 comment that ‘Justice is not a private matter. The public have a right to know and to understand what goes on in court. Access to proceedings by means of a television camera will assist this process’,97 suggested that the experience had not altered his views as to the benefits of televising proceedings. A 1995 BBC survey of viewers’ reactions appeared to vindicate Lord Hope’s assessment. It revealed that 80 per cent of viewers had found the broadcasts to be thought-provoking, with some expressing surprise at how the legal system worked in practice. Sixty-nine per cent disagreed

93

94

95

96 97

According to the producer, ‘at a cost of £180,000 an hour, which is almost as much as Eastenders, three times the price of Top Gear and six times that of BBC Sport’: ibid. For a detailed review of the series see Roderick Munday, ‘Televising the Courts: An Appraisal of the Scots Experiment’ (1995) 159 Justice of the Peace and Local Government Law 37, 57. Evered, ‘Televised Justice’, above n. 20, at 30 citing BBC Broadcasting Research Report TV 94/154 (January 1995), p. 2. Fisher, ‘Through the Camera Lens’, above n. 87, at 480. Lord Hope quoted in The Times (London), 8 November 1994, p. 37, as cited in Fisher, ‘Through the Camera Lens’, above n. 87, at 477.

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with the suggestion that it was wrong to show real-life cases on television.98 Those who participated tended to come away from the experience with a favourable view. Thus, Lord Stephen noted that he was ‘happy’ with the experience,99 a Queen’s Counsel indicated that he would like to ‘do it again’,100 and another advocate observed that participants ‘soon forgot the cameras were there’.101 Ian Ryan, the solicitor representing Colin Stagg, cleared of a murder charge in a hearing which had not been televised, suggested that his client would have benefited from the hearing being televised: With something like the Stagg case you are very dependent on how the newspapers decide to report it. There has subsequently been a slight whispering campaign about the judge being too robust. But if the people had seen or heard four or five days of evidence, and then heard his judgment, they would not have any doubt that he was right.102

The legal profession’s assessment, though mixed, was generally positive and deemed the broadcast to have been educational and an accurate presentation of the workings of the courts.103 While concerns regarding lawyers playing up to cameras did not eventuate,104 some comments revealed lingering concerns about the additional pressure which televising exerted on parties to proceedings.105 Most of the criticism appeared to suggest that while the recorded footage had been used to produce high-quality documentaries, broadcast programmes did not reflect the true nature of proceedings. Thus, one commentator described the broadcasts as manipulative and as imposing a dramatic format on legal events,106 while another saw The Trial series as recreating trials as drama.107 Even some who actively advocated camera access to court proceedings questioned the benefits of the broadcasts. Media lawyer Mark Stephens questioned whether the documentary series had been able to 98 99 101 102 104 105 106 107

Evered, ‘Televised Justice’, above n. 20, at 30. Fisher, ‘Through the Camera Lens’, above n. 87, at 480. 100 Ibid. p. 480. Webster, ‘Year-long struggle’, above n. 84. Cited in Bawdon, ‘TV on Trial’, above n. 90. 103 Ibid. p. 10. Webster, ‘Year-long struggle’, above n. 84. Ian D Willcock, ‘Television in the Courts’ (1994) 210 SCOLAG 41. Munday, ‘Televising the Courts’, above n. 94, at 57–8. Fisher, ‘Through the Camera Lens’, above n. 87.

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convey what really happens in court.108 Stephen Brill, managing director of US Court TV, said he was ‘appalled’ by the overdramatised and overproduced series, and argued that The Trial series had hurt the cause of cameras in court more than the Simpson trial.109 Such criticism appeared to reflect a frustration with televising which would show newsworthy current proceedings and permit the public to gain an unsanitised glimpse of judicial proceedings being prohibited, while recordings and broadcasts which were so regulated and constrained that they failed to present the reality of proceedings, and on that basis provided opponents of televising with a basis for suggesting that televising would distort rather than educate, were permitted. Fiona Bowden suggested that ‘programme makers bring a set of different values and priorities to bear in deciding what is important in a case’.110 The distinction between what was deemed legally significant about the cases and what the producers apparently thought would be of interest to the public led some critics to question the desirability of opening the judicial process to greater media coverage and public commentary. For example, a New Law Journal editorial expressed the view that ‘the problem with all forms of reporting [is that] the public at large is only interested in salacity’.111 Revealing even greater disdain for the value of public opinion as to legal matters another legal commentator remarked: As for public opinion, Bertrand Russell said all one needs to know on the subject: ‘One should respect public opinion insofar as is necessary to avoid starvation and to keep out of prison, but anything that goes beyond thus is voluntary submission to an unnecessary tyranny’.112

While the delayed broadcast of the documentary led some to suggest that the experiences did not provide a true indication of what would happen in news television broadcasts of current proceedings,113 the televising of Scottish proceedings had been well received by key members 108

109

110 111 112 113

Mark Stephens, ‘Justice on the Box? The Televising of Trials Panders to the Current Trend for True-Life Crimes Rather Than Showing the Reality’ (1994) 91 Law Society’s Gazette 2. Robert Verkaik, ‘Cameras Cross Atlantic: the USA’s Trial Broadcasters Are Making a Pitch to Televise UK Hearings’ (1995) 92(19) Law Society’s Gazette 14. Bawdon, ‘TV on Trial’, above n. 90. ‘The Thoughts of Sir Thomas’ (1994) 144 New Law Journal 593. Munday, ‘Televising the Courts’, above n. 94, at 61. Robin Day, ‘Injustice Seen to Be Done’ (1995) Spectator 11.

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of the English judiciary, and appeared to foster a perception that such broadcasts would be of public educative value. Though some judges such as Lord Taylor remained opposed to television access, largely ‘on the grounds that it would expose victims of crime and witnesses to unnecessary pressure’,114 others, such as Master of the Rolls Sir Thomas Bingham, favoured the admission of television cameras ‘because it would encourage understanding of the way courts operate’.115 The Lord Chancellor, Lord McKay, was said to have reacted enthusiastically to a preview of the first episode of The Trial116 and became a keen observer of the Scottish experiences. Consequently, in ensuing discussions with the BBC in 1993 and 1994 he revealed himself to be receptive to the idea of opening courts to television cameras.117

G Impact of the broadcast of overseas trials It is important to note that much of the criticism of the Scottish broadcasts may in large measure be attributed to the negative reactions to broadcasts of American trials, and in particular the O.J. Simpson trial, which to some extent overshadowed the comparatively sanitised presentation of Scottish trials. While reflecting a distaste for what was perceived as American ‘trial by media’, such comments also highlighted a resistance from sectors of the legal profession to the television media’s facilitation of greater public access to information about and discussion of trial proceedings – a view which in 1925 had accounted for the imposition of the statutory ban on photography in English and Welsh courtrooms. This underlying basis for opposition to the televising of judicial proceedings was exposed by one commentator who, in rejecting criticism of the broadcasting of the O.J. Simpson trial and arguing that it was ‘compelling television which is actually good for you’, noted ‘there is a large element of snobbery in the resistance to trial television – a belief that what the general public is avidly interested in must in some respect be base’.118 While most British courts remained closed to television cameras, British viewers were growing accustomed to viewing not only Scottish proceedings but also broadcasts of trials in American and international 114 115 116 117 118

Webster, ‘Year-long struggle’, above n. 84; see also Lord Taylor, above n. 62. Webster, ‘Year-long struggle’, above n. 84. Frean, ‘BBC presses Mackay’, above n. 85, at p. 4. Verkaik, ‘Cameras Cross Atlantic’, above n. 109. Thomas Sutcliffe, ‘May justice be done, and be seen to be done’, Independent (London), 3 August 1994, p. 14.

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courts. Court TV programmes and broadcasts of war crimes trials at The Hague had secured a significant viewing audience.119 While attracting viewers, broadcasts of some American trials appeared to heighten concerns regarding trial by media and the impact of such coverage on witnesses and parties to proceedings. Ultimately it was the broadcast of the two American trials that attracted the largest viewing audiences in Britain – those of O.J. Simpson and Louise Woodward – which turned public opinion against the idea of introducing cameras into British courts and strengthened opposition by the judiciary, legal profession and authorities. Broadcasts of O.J. Simpson’s pre-trial hearing were watched by 4.2 million Britons.120 Live weekday evening coverage of the trial by Sky News, from January to October 1995, secured an estimated 7 million viewers, while weekly reviews broadcast by the BBC attracted a further average of one million viewers.121 While clearly captivated by the drama of the trial, the sensationalist reporting came to be attributed in large measure to its television coverage. As media commentator Robin Day observed, while there were many reasons for why the trial ‘became a deplorable circus . . . these problems and difficulties were intensified and magnified by the continuous presence of the television camera, and by the awareness in that LA courtroom of the huge audience outside’.122 In contrast to the Scottish broadcasts’ bolstering of support for the admission of cameras into British courtrooms, the negative public reaction to the broadcast of the O.J. Simpson case was said to have ‘brought a pendulum swing in the opposite direction’.123 It even led some prominent previous supporters to alter their stance. Broadcasts of the Simpson trial were reported to have led Lord Browne-Wilkinson to the view that television coverage distracted participating lawyers and appeared not to favour the administration of justice.124 The Lord Chancellor was also said to ‘go cold on the idea’.125 119

120 121 122 123 124 125

For example, Sky Channel’s weekly programme of War Crimes on Trial with footage of war crime trials at The Hague was watched by some 500,000 British viewers and Justice This Week, a round-up of American cases, had up to 100,000 viewers: correspondence between Nyan Oo of Sky News and Rob Golden, 25 September 1996. This is further supported by ratings figures provided by Robert Golden of Court TV: correspondence between Robert Golden of Court TV and author, 17 January 1997. BBC Bristol Head Office, ‘The OJ Simpson Trial’, Press Release, 2 September 1994. ‘BBC2 to air OJ Simpson trial special’, Broadcast, 6 October 1995. Day, ‘Injustice Seen to Be Done’, above n. 113, at 11. Fax from David Hamilton-Rump to Daniel Stepniak, 31 January 1996. Day, ‘Injustice Seen to be Done’, above n. 113. Verkaik, ‘Cameras Cross Atlantic’, above n. 109, at 14.

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Public opposition to courtroom televising appeared to further strengthen following the broadcast of the Boston trial of English nanny Louise Woodward in late 1997. Criticisms of the broadcasts, which attracted even more viewers than the O.J. Simpson trial did two years earlier, appeared to revolve around the perceived undesirability of American-style justice and court reporting.126 The Woodward trial broadcasts appeared also to further entrench official opposition to televising. Following the live broadcast of Louise Woodward’s sentencing, the Lord Chancellor’s Department issued a press release setting out the Lord Chancellor’s reasons for not being able to ‘countenance the televising of court proceedings’.127 Broadcasts of these two cases made televising of court proceedings synonymous with sensationalist coverage, trial by media and an administration of justice deemed undesirable not only in Britain but also in countries such as Canada, New Zealand and Australia, which also relied on reporting restrictions to protect the rights of parties to a fair trial and public respect for the judicial process.128 What most commentators appeared to overlook was that the most objectionable aspects of these cases were attributable to factors unrelated to the presence of television cameras. While opposition flowing from the broadcast of the Woodward trial was kept alive by Louise Woodward’s campaign to highlight ‘the dangers of allowing television cameras into courtrooms’,129 proponents of televising increasingly challenged opposition founded on these cases. Even as the O.J. Simpson trial was being broadcast, prominent members of the Bar had voiced their continuing support for the televising of British courts. Jonathan Caplan QC argued that in view of British contempt of court laws and other legal restrictions on media reporting, the excesses of the media coverage of the O.J. Simpson case could not be replicated in Britain.130 Former Chairman of the Bar Anthony Scrivener QC also expressed his support and noted that ‘the vast majority of judges 126

127

128

129

130

See e.g., Robert Lusetich, ‘OJ and the morning after’, The Australian (Melbourne), 5 October 1995, p. 9. Press Release, 31 October 1997. See full text and discussion in Stepniak, Electronic Media Coverage of Courts, above n. 5, at para. 5.13. For an example of Australian criticism of the trial see William Cash, ‘British nanny reprieved via the American way of justice’, The Australian (Brisbane), 12 November 1997. Cosmo Landesman, ‘Courage of her conviction’, The Australian (Perth), 11 September 1998, p. 13. Day, ‘Injustice Seen to Be Done’, above n. 113, at 11–12.

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would not mind television in their courts’.131 Paul Whitehouse, the police Chief Constable of Sussex, was also reported to be strongly in favour.132 Commentators, such as Evered, emphasised lessons to be learned from the American experience and called for an experiment with courtroom televising.133 A press report even suggested that due to the lobbying of ‘some of the country’s most eminent lawyers’ broadcasting of British trials was imminent.134

H House of Lords broadcasts While the focus of the British cameras in courts debate had turned to Scotland and almost floundered in reaction to the Simpson and Woodward trials, the Appellate Committee continued to permit its judgments to be televised. In addition to earlier discussed broadcasts, the Law Lords permitted their delivery of a judgment in the chamber of the House to be broadcast in a 1994 television documentary.135

1 The Law Lords’ reasons for restricting access In response to a 1996 BBC application seeking to record the proceedings of a murder appeal for news broadcasts, the Law Lords spelt out their reasons for continuing to deny permission for broadcasts of argument before the committee, at least in the absence of their final editorial control.136 In replying to the application on behalf of the Appellate Committee, Lord Goff, the senior Law Lord, noted that while the Appellate Committee was not bound by the statutory prohibition applying to other courts and thus permission to televise the appellate committee should not be seen as setting a precedent, ‘the question of allowing television coverage of argument before the committee had to be considered in the context of the administration of justice in this country’.137 He noted that the Law Lords were of the view that ‘to allow television coverage of arguments before the appellate committee for the purposes of use on news or current affairs programmes on television is not consistent with the good administration of justice and indeed is 131 134

135 136 137

Ibid. 11. 132 Ibid. 11. 133 Evered, ‘Televised Justice’, above n. 20. Fiona Barton, ‘Murder trials to be broadcast on British TV within two years’, Mail on Sunday, 10 September 1995, p. 17. Taylor, ‘Justice in the Media Age’, above n. 62, at 10. Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 179–80. Ibid. 179.

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objectionable in principle’.138 The explanation Lord Goff gave for this view was that, as the: value of argument before the committee lies in its totality, [including] the open and wide ranging discussion and hypothetical questions, the broadcast of brief passages suitable for presentation on television will inevitably present to the general public a most incomplete and therefore misleading picture of proceedings.139

For this reason the Law Lords insisted on retaining the ultimate power to prevent material from being used. Expressing their desire to avoid the friction over editorial control this was likely to provoke, the Law Lords denied the BBC’s request to record and broadcast the proceedings of the Appellate Committee. However, noting that they had ‘had no wish to prevent broadcasters from televising their judgments given in the chamber’,140 the Law Lords permitted the BBC to broadcast their judgment.141 In so doing, however, Lord Goff observed that the Law Lords considered that the broadcast of such purely formal proceedings could communicate nothing about the nature of the hearing or the substance of the appeal or the conclusion of the House upon it, and consequently wondered what value members of the public would derive from such recordings being broadcast. Despite this reservation, Rozenberg noted that by 1998 the Law Lords ‘were allowing their formal judgements . . . to be filmed as a matter of routine in important cases’.142 Though the BBC’s reluctance to surrender editorial control to the Law Lords on this occasion and in 1992 may be understandable, its willingness to accept such control at least while the Law Lords grew accustomed to such coverage would have provided invaluable guidance for the televising of appeal proceedings and may well have led the Law Lords to relax this requirement after such broadcasts became routine.

2 The Pinochet hearings The Law Lords, on the other hand, revealed their desire to enhance the public value of broadcasts of their judgments, when, in late 1998, they permitted more meaningful radio and television coverage in the three 138 141

142

Ibid. 139 Ibid. 179–80. 140 Ibid. 180. R v. Secretary of State for the Home Department, ex parte Thompson and Venables [1998] AC 407. Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 181.

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Augusto Pinochet hearings. In so doing they appeared to reignite the cameras in courts debate in Britain. In response to the high level of public interest in their decision on whether General Pinochet had immunity from arrest and extradition,143 the Law Lords not only authorised the live radio and television broadcast of their judgments,144 but in order to make the broadcast more meaningful to the public, the five Law Lords departed from the Appellate Committee’s traditional practice of simply stating whether they would allow or dismiss the appeal by presenting oral summaries of their judgments.145 Public interest was just as high in the second Pinochet appeal, in which the Law Lords had to decide whether to set aside their original decision because of a perceived bias by Lord Hoffmann, one of the Law Lords who heard the first appeal.146 Although the nature of this appeal meant that it was heard by an appeal committee rather than by an Appellate Committee, and it had not been the practice for appeal committees to report their findings in the House of Lords Chamber, to facilitate the broadcast of their ruling, the appeal committee assembled in the Chamber and Lord Browne-Wilkinson outlined the facts, decision and reasons for the decision of the appeal committee.147 While denying permission for the hearings of the third appeal148 to be televised, the Law Lords once again permitted their judgments and brief explanations to be televised live. In addition, Lord Browne-Wilkinson read out a five-minute summary of the effect of the decision.149 The steps taken by the Law Lords to make their decisions meaningful to not only those viewing or listening to the broadcasts, but also to the assembled Law Lords, may be said to have highlighted the chasm between the principles and reality of the open administration of justice. The broadcasts of the Pinochet judgments suggest that considerations of whether and how audio-visual media reporting can enhance public administration of justice may also necessitate a re-evaluation of traditional court practices. 143

144

145 147 148 149

R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 1) [1998] 3 WLR 1456. Chilean as well as British radio stations broadcast the reserved judgments live: Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 181 note 8. Ibid. at 181–2. 146 Ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272. Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 182–3. Ex parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827. Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 183.

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I The Lockerbie trial and appeal Shortly after the Pinochet hearings, a case commanding perhaps even greater international interest and public attention became the vehicle for a further significant development in the televising of British court proceedings.

1 The Lockerbie trial Two Libyans, charged with causing the death of 270 people by setting off an explosive device on board a Pan Am jumbo jet over Lockerbie in December 1988, were to be tried in the Netherlands but under Scottish law.150 As the trial was bound to attract great international interest, particularly of overseas relatives of the victims, and was to be conducted in the absence of a jury, and with largely professional witnesses, it appeared particularly suited to being broadcast by television.151 It had also been suggested that the broadcast of this trial would be of benefit to international relations in that it would openly address suggestions that ‘the government had something to hide about the activities of its secret services’.152 In view of the international nature of the trial, proposals for its televising caused it to be compared with the International Crimes Tribunal for the Former Yugoslavia. Since its first hearings in 1994 the Tribunal had routinely recorded its own proceedings without any detrimental impact to its hearings, and by making such footage readily available to the world’s media had enabled an international audience to view its proceedings.153 Thus, Nick Catliff observed: ‘Imagine how 150

151

152 153

See Alistair Bonnington, ‘Scots Criminal Procedure and the Lockerbie Trial’ (1999) 11 International Legal Perspectives 11 for an explanation of Scottish criminal procedure in the context of the BBC’s application to record and broadcast the trial. Ibid.; Rozenberg, ‘The Pinochet Case and Cameras in Court’, above n. 64, at 183–4; Dan Hogan and Paul Mason, ‘Let the people see the Lockerbie trial’, The Times (London), 9 February 1999, p. 21; Ros Mcinnes, ‘Scotch Mist: The Lockerbie Trial and Article 10’ (2001) 46 Journal of the Law Society of Scotland 21; Paul Mason, ‘Justice Seen to be Done? Electronic Broadcasting of the International Criminal Tribunal for the Former Yugoslavia’ (2001) 95 American Society of International Law Proceedings 210. Brian Mcnair, ‘Counterblast’, Sunday Herald (Sydney), 12 December 1999. See Paul Mason, ‘Court on Camera: Electronic Broadcast Coverage of the Legal Proceedings’ (2000) Picturing Justice: The Online Journal of Law and Popular Culture (University of San Francisco School of Law) www.usfca.edu/pj/camera-mason.htm at 29 March 2007; Stepniak, Electronic Media Coverage of Courts, above n. 5, at para. 2.37.

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bizarre it will be if Lockerbie takes place out of sight of the world while nearby in The Hague war crimes trials are being filmed regularly.’154 At the request of the US Office for Victims of Crime, and following negotiations with the Lord Advocate, the presiding trial judge granted permission for the trial proceedings to be recorded and for an encrypted signal to be transmitted to sites in Dumfries, London, New York and Washington, DC so that persons with a ‘compelling interest’ would be able to view the proceedings.155 However, as both accused declined to consent to the proceedings being televised, the Lord President declined to consent to television networks’ requests to access and publicly broadcast the recordings of the trial. Consequently the BBC and other broadcasters petitioned the nobile officium of the High Court of Judiciary, seeking the Court’s consent: to televise the proceedings of the trial, (a) for the purpose of broadcasting simultaneously the entire proceedings of the trial, (b) for the purpose of broadcasting edited portions of the proceedings of the trial in news broadcasts and other broadcasts of topical or other interest, and (c) for the compiling and broadcasting after the ending of the proceedings of the trial one or more documentary programmes on the circumstances surrounding the subject of the trial and including parts of the proceedings of the trial, and that subject to such conditions as [the court] shall deem proper.156

While not challenging the legality of Lord Hope’s 1992 Directions (which prohibited the televising of current first instance proceedings and their broadcast at the conclusion of proceedings in the absence of the consent of the accused) the petitioners pointed to the unique circumstances of this case, and in particular the absence of a jury, as warranting a departure from a strict interpretation of Lord Hope’s 154

155

156

Nick Catliff, ‘Lockerbie: a trial for television’, Guardian (London), 22 February 1999, http://search.guardian.co.uk/search97cgi/s97networkr_cgi?QueryText=%28+%28Catliff% 29+AND+%28VdkPublicationDate+%3E%3D+01%2D01%2D1999+AND+VdkPublication Date++%3C%3D+31%2D12%2D1999%29%29&ResultColSize=&ResultTemplate= Archive%5FArtifact%2Ehts&Collection=&SortSpec=score+Desc&Query=Catliff&Result Start=1&ResultCount=10&ResultMaxDocs=1000&Dtv=&remote_address=193%2E122% 2E208%2E99&Action=FilterSearch&Filter=FltArchive%2Ehts at 29 March 2007. See Donna E. Arzt, ‘Http://lockerbie.syr.edu: Using the Web to Connect Victims and Prosecutors’ (2002) 52 Syracuse Law Review 1253 for an outline and discussion of this coverage. British Broadcasting Corporation, Petitioners (No. 1) (High Ct) 2000 Scots Law Times 845, 847, para. 2.

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Directives, which they argued was open to the court.157 In arguing for such permission to be granted, Alistair Bonnington, the Solicitor to BBC Scotland observed that there had ‘already been some relaxations of the strict interpretation of the 1992 guidelines. For example, Lord Justice Clerk Ross has allowed the BBC to film him sentencing accused persons, which is something otherwise prohibited by the guidelines’.158 The petitioners also sought a review of the manner in which the Directions had been applied, alleging that in permitting transmission of the proceedings to remote sites but denying permission for their public broadcast, the Lord Advocate had acted in a manner incompatible with the petitioners’ freedom of expression rights protected by Article 10 of the European Convention.159 Though the Human Rights Act 1998, which incorporated the Convention into the domestic law of the United Kingdom, had not yet come into force,160 the petitioners relied on the Convention having been given effect by the Scotland Act 1998, and on the unlawfulness of the court acting in a way which is incompatible with a Convention right. In his decision on 7 March 2000,161 Lord Macfadyen accepted that by granting permission for recordings of proceedings to be transmitted to remote sites, but denying permission for public broadcast, a member of the Scottish executive had acted in a manner incompatible with Convention rights as the petition raised a ‘devolution issue’.162 157 158

159

160 161 162

Ibid. at 852, para. 34. Alistair Bonnington, ‘Scots Criminal Procedure and the Lockerbie Trial’ (1999) 11 International Legal Perspectives 11. BBC, Petitioners (No. 1) 2000 Scots Law Times 845, 859, para. 61. Article 10 provides: 1. Everyone has the right to freedom of expression. This shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. It was to come into force in October 2000. BBC, Petitioners (No. 1) 2000 Scots Law Times 845; BBC, Petitioners (No. 1) 2000 JC 419. BBC, Petitioners (No. 1) 2000 Scots Law Times 845, 859, para. 61. In the Scotland Act 1998, Sch. 6 para. 1(d) a ‘devolution issue’ is defined as a ‘question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law’.

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However on the grounds that the authority for the transmission to remote sites came from the court rather than the Lord Advocate, and that the transmission of proceedings to remote sites was an internal arrangement within the court and distinguishable from public broadcasting,163 he held that the Lord Advocate’s actions could not be deemed incompatible with the petitioners’ rights under Article 10. The petitioners also argued that the denial of consent to televise the trial recordings amounted to an infringement of their rights under Article 10 of the Convention, in that it interfered with their ‘legitimate wish to impart information about the trial by broadcasting in the public interest the television images which are to be taken of the proceedings of the trial’.164 As Article 10’s guarantee of ‘freedom of expression’ recognised a ‘freedom to . . . receive and impart information and ideas without interference by public authority’,165 the question was whether the denial of consent to broadcast, and more broadly the restrictions and prohibitions imposed by Lord Hope’s Directions, could be justified under Article 10(2), which subjects the freedom: to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

While the imposition of a blanket prohibition on the broadcast of current trials appeared to exceed restrictions necessary in a democratic society, such was not Lord Macfadyen’s conclusion. Noting that the purpose of Lord Hope’s prohibition of broadcasting of current proceedings in criminal cases at first instance was ‘to protect the rights of others, in particular the rights of the accused to a fair trial’, Lord Macfadyen held that ‘It may therefore, well within the available margin of appreciation, be regarded as ‘‘necessary in a democratic society’’.’166 Consequently he ruled that ‘any restriction on the petitioners’ right to receive and impart information effected by refusal of the prayer of the petition is a restriction which is legitimate in terms of Article 10(2)’, and concluded: ‘I therefore do not consider that in refusing the prayer of the 163 166

Ibid. at 857, para. 53. 164 Ibid. at 855, para. 45. 165 Article 10(1). BBC, Petitioners (No. 1) 2000 Scots Law Times 845, 859, para. 63.

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petition I would be acting in a way which is incompatible with a Convention right.’167 Significantly, however, relying on the decision of the European Court of Human Rights in News Verlags GmbH & Co KG,168 Lord Macfadyen deemed it arguable that the refusal of permission to broadcast the proceedings could be characterised as an interference with the petitioners’ right to receive and impart information and ideas ‘since it restricts the form in which they may do so’.169 He held the consent requirement to be applicable to live broadcasts,170 and rejected the argument that the absence of a jury warranted a departure from the prohibition on the broadcasting of a current trial, noting that the prohibition also applied to current civil trials not normally conducted with a jury, and thus suggesting that risks in respect of witnesses were deemed sufficient to justify the prohibition.171 He further held that as Lord Hope’s Directions had not created a presumption in favour of consent to televising, the applicants bore the onus of establishing that proposed televising involved no risk to the administration of justice. On the basis of submissions as to the additional pressure which televising placed on witnesses, raising a real risk of prejudice to the administration of justice, he held that the petitioners had not discharged this onus. On this basis he held that apart from the prohibition of the Directions, consent to the application should also be denied on its merits.172 Lord Macfadyen’s decision is significant for its acceptance of the argument that restrictions imposed on televising may be deemed to constitute an interference of broadcasters’ Article 10 right to receive and impart information and ideas, by restricting the form in which this right is exercised. It also underlines the crucial role which inconclusiveness of evidence as to the effect of televising on witnesses plays where applicants are required to bear the onus of establishing that proposed televising will be free of any risks to the administration of justice.173 In their subsequent appeal to the Appeal Court, High Court of Justiciary,174 the petitioners did not seek a review of Lord Macfadyen’s denial of consent to the televising of the trial and ruling that the restrictions imposed on the transmission of the proceedings did not constitute 167 169 171 173 174

Ibid. 168 Application No. 31457/96, 11 January 2000. BBC, Petitioners (No. 1) 2000 Scots Law Times 859, para. 63. 170 Ibid. at 858, para. 58. Ibid. at 858, para. 59. 172 Ibid. at 859, paras. 60, 63. Discussed at length below chapters 5, 7. BBC, Petitioners (No. 2) 2000 JC 521; BBC, Petitioners (No. 2) (High Ct) 2000 Scots Law Times 860.

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an infringement of their rights under Article 10; they sought only a review of the decision on the devolution issue with a view to ultimately bringing that issue before the Judicial Committee of the Privy Council. The Appeal Court disagreed with Lord Macfadyen’s opinion that the petition raised a devolution issue, and held that the right conferred by Article 10(1) is merely a right to receive information ‘from persons who are willing to impart it to them. Article 10(1) does not give the petitioners a right of access to information which is in the hands of others who are unwilling to impart it to them.’175 Even if the restrictions imposed on the transmission were capable of being deemed to infringe Article 10(1), the Appeal Court held that permission for transmission could be withdrawn altogether as ‘restrictions on televised transmissions are clearly justified by Article 10(2)’.176 In denouncing the Scottish judiciary’s denial of permission to televise the Lockerbie trial as ‘foolish’, Geoffrey Robertson QC continued to express the hope that the ‘freedom of communication’ clause of the Human Rights Act 1998 ‘might open the way to TV coverage of tribunal inquiries and some court proceedings’.177

2 The Lockerbie appeal Though television networks had been denied access to the footage of the Lockerbie trial, on 9 January 2002, two weeks before the start of the appeal hearings, Lord Cullen, the chair of the bench of five judges appointed to hear the appeal, granted permission for the appeal proceedings to be broadcast by television and to be streamed on the Internet. Consequently, with the exception of the evidence from new witnesses, the concurrent broadcast of which was prohibited under Lord Hope’s Directions, the entire appeal proceedings and decision on 14 March 2002178 were broadcast live by BBC television and streamed live in English and Arabic via the BBC’s website179 and via a number of other overseas websites.180 175 176 177 178 179

180

2000 Scots Law Times 845, 860 (Lord Kirkwood), 866 at E–F; 868 at I (Lord Marnoch). Ibid. at 866 at F (Lord Kirkwood). Geoffrey Robertson QC, ‘Court on candid camera’, Evening Standard, 28 September 2000. Abdelbast Ali Mohmed Al Megrahi v. Her Majesty’s Advocate 2002 SCCR 509. See BBC, Watch/ Listen to Lockerbie Appeal (2002) http://news.BBC.co.UK/1/hi/world/ 1766508.stm at 29 March 2007. According to the Scottish Courts website, see www.scotcourts.gov.UK/index1.asp at 29 March 2007. See also Francis Gibb, ‘Irvine ready to allow cameras into Appeal Court’, The Times (London), 10 March 2003, p. 4; Murdo MacLeod, ‘Top advocate calls for TV cameras to roll in Scot courts’, Scotland on Sunday (Scotland), 30 June

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It remains to be seen whether the live broadcasting and Internet streaming of the entire proceedings of the Lockerbie appeal will serve to persuade the House of Lords and the Judicial Committee of the Privy Council (the broadcast of which is arguably also not subject to statutory prohibition181) to consent in an appropriate case to similar coverage. The Internet’s capacity to provide public access to recordings of entire proceedings, without being subject to the programming pressures of television broadcasting, would appear to provide a means of addressing the concerns expressed by the Law Lords regarding the broadcasting of extracts of its hearings.

J Televised public inquiries The relevance of the rights conferred by Article 10 of the European Convention was further addressed in two recent and high profile public inquiries, set up under the Tribunals of Inquiry (Evidence) Act 1921, and thus not subject to the Criminal Justice Act 1925’s statutory prohibition of photography.182

1 The Shipman Inquiry In March 2001, shortly after the commencement of the Shipman Inquiry’s investigations into Britain’s most prolific serial killer, Dr Harold Shipman,183 the Chairman of the Inquiry, High Court Judge Dame Janet Smith, received a number of applications from media organisations seeking permission to record the proceedings for broadcast on radio and television, streaming on the Internet and for incorporation in a film.184 Dame Janet initially declined to grant permission for such coverage. In response to requests that she provide full reasons for her refusals to permit the hearings to be recorded and

181 182

183

184

2002, p. 8; Alistair Bonnington, ‘Lockerbie appeals will create TV history’, The Times (London), 22 January 2002; Gerard Seenan, ‘The BBC can show Lockerbie appeal’, Guardian (London), 10 January 2002, p. 4; ‘BBC being given Broadcast rights to Lockerbie appeal’, Angence France-Presse (France), 9 January 2002. Caplan Report, above n. 9, at para. 2.3. The Shipman Inquiry: Decision on Application by Cable News Network, above n. 7, at para. 16. He was convicted in 2000 of the murder of fifteen patients, though ultimately the Inquiry found that he had killed at least 215. He committed suicide in January 2004. The Shipman Inquiry: Decision on Broadcasting Requests, 11 June 2001, para. 7, www.the-shipman-inquiry.org.UK/ruling_20010611.asp at 29 March 2007.

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broadcast, Dame Janet issued a Ruling on 11 June 2001,185 in which she explained that after inviting ‘the opinion of those most likely to be affected’ she had concluded that broadcasting would increase the pressure on witnesses, particularly in the first phase of the hearings, when relatives of victims were expected to testify.186 She had also decided not to permit the broadcast of the second phase of the Inquiry, when a variety of persons would give evidence, on the basis that ‘the additional distress and anxiety which is likely to be suffered by non-professional witnesses outweighs the public interest in seeing the faces and hearing the voices of witnesses’.187 As to the final phase, which was to consider the monitoring of procedures for prescribing, dispensing and collecting controlled drugs, Dame Janet doubted ‘that there would be sufficient interest to warrant [its] broadcast’.188 After considering the key arguments for and against the broadcasting of proceedings, and the decisions of other Inquiries on the issue of broadcasting, Dame Janet concluded that the benefits of permitting broadcasting were outweighed by the likely detrimental effect of the broadcasting on witnesses.189 Dame Janet also dismissed arguments based on Article 10 of the Convention, noting: ‘The Inquiry proceedings will be held in public and with media access . . . in my view it cannot be said that my decision to refuse permission to broadcast is interference by a public authority with a citizen’s right to receive information abut the Inquiry.’190 On 27 July 2001, Dame Janet heard an application by Geoffrey Robertson QC on behalf of CNN, in which the network sought permission to broadcast the Inquiry hearings by taking a ‘feed’ from the Inquiry’s own cameras or alternatively installing its own cameras. Robertson QC submitted that CNN had a presumptive right to film and broadcast the Inquiry proceedings flowing from the common law and Article 10 of the Convention. In response, Dame Janet issued a ruling on 25 October 2001191 in which she partially acceded to CNN’s application by provisionally agreeing to permit the broadcast of the second phase of hearings on condition that it was ‘done without jeopardising the process of investigation or disrupting the hearings’,192 while reiterating her prohibition on the broadcasting of phase 1. 185 186

187 191 192

Ibid. The Shipman Inquiry: Decision on Broadcasting Requests, above n. 184, at para. 2, www.the-shipman-inquiry.org.UK/ruling_20010611.asp at 29 March 2007. Ibid. para. 8. 188 Ibid. 189 Ibid. paras. 4–7. 190 Ibid. para. 10. The Shipman Inquiry: Decision on Application by Cable News Network, above n. 7. Ibid. para. 92.

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In examining the freedom of expression right afforded by the Convention, Dame Janet adopted the above discussed view of the Scottish Court of Appeal in BBC’s Lockerbie application, and rejected the view that Article 10 imposed a presumption in favour of televising. She held that Article 10 ‘guarantees the right to receive information from those who are willing to impart it . . . It does not bear upon the right of access to information that another holds but has not made accessible and does not wish to impart.’193 She also rejected the suggestion that such a presumption had been created by the Convention, at least with respect to information already in the public domain, and that consequently restrictions on the publication and broadcast of proceedings open to the public and media needed to be justified under Article 10(2). Arguing that such an interpretation would entitle everyone to record and broadcast proceedings194 and mistakenly interpret Article 10 as enshrining a right of access to information, she noted that the issue of access to information regarding court proceedings was unaffected by Article 10 and governed by courts’ power to control proceedings, and that only Article 6 provided a qualified right of access to information in some court proceedings.195 In support of this view, she noted that as the European Court of Human Rights did not permit the broadcast of all of its proceedings, it clearly did not accept that the Convention afforded a right to televise.196 The value of the Shipman Inquiry lies not only in Dame Janet’s discussion of and rulings on applicable common law principles and statutory provisions but also in the manner in which she regulated the permitted broadcasting, which is further discussed below in chapter 7.

2 The Hutton Inquiry Prior to the commencement of his Inquiry into the circumstances surrounding the death of Dr David Kelly,197 Lord Hutton issued a Press Notice advising that while proceedings would be recorded and transcripts made available to the media, and via the Inquiry’s website to the public, it was Lord Hutton’s intention to permit radio and television 193 197

Ibid. para. 7. 194 Ibid. para. 57. 195 Ibid. para. 48. 196 Ibid. para. 67. Dr Kelly had committed suicide after being cross-examined in televised parliamentary committee hearings following allegations by BBC defence correspondent, Andrew Gilligan, that he was the source of a story which alleged that the British government had ‘sexed up’ an intelligence dossier regarding Iraq’s ability to deploy weapons of mass destruction at forty-five minutes’ notice.

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broadcasts only of opening and closing statements. However he did indicate a willingness to hear submissions on this issue at his first sitting.198 Consequently, on 1 August 2003, Lord Hutton heard an application by Geoffrey Robertson QC on behalf of several television networks, seeking permission to broadcast all or part of the Inquiry in news programmes and documentaries.199 The application relied on the common law principle of open justice and on Article 10 of the European Convention. Lord Hutton also heard from Dr Kelly’s widow’s counsel, Jeremy Gompertz QC, who on her behalf appealed for television cameras to be kept out of the courtroom, so as not to turn her ‘private loss’ into ‘the nation’s entertainment’.200 While some press editorials supported the application to televise,201 the Guardian’s editorial on 2 August 2003 argued that televising would intensify the Kelly family’s ordeal and would exaggerate the excitement of the Inquiry. However, the editorial also conceded that ‘Newspapers – it must be admitted – have an interest in hoping cameras are excluded but the case for this is strong in itself.’202 In his ruling on 5 August 2003,203 Lord Hutton expressly adopted Dame Janet’s ruling on Article 10 as his own.204 He also rejected arguments based on the principle of open justice for two principal reasons: the additional strain which televising would place on witnesses, and his view that the Inquiry would be as public as required by the concept of the principle of open justice without the additional publicity of television coverage.205 Lord Hutton’s reluctance to subject even government officials to the pressures of television coverage may have been understandable in view of the subject matter of the Inquiry – the suicide of a government scientist following his cross-examination in televised parliamentary committee hearings. Nevertheless, Lord Hutton’s decision was subject 198

199 200

201 202

203 205

See Hutton Inquiry, Press Notices: General Matters 24 July 2003, www.the-huttoninquiry.org.uk/content/hi-pn240703.htm at 29 March 2007, cited in Lord Hutton, Ruling by Lord Hutton (2003), The Hutton Inquiry, www.the-hutton-inquiry.org.uk/ content/rulings/ruling01.htm at 29 March 2007, para. 1. Discussed in Lord Hutton, Ruling by Lord Hutton, above n. 198, at para. 4. See Tom Leonard, ‘Hutton Inquiry television ban’, Daily Telegraph (London), 6 August 2003, p. 4. See e.g., ‘Hutton’s hunt for truth’, Daily Telegraph (London), 2 August 2003, p. 21. ‘Fair and exact: Lord Hutton’s inquiry has started well’, Guardian (London), 2 August 2003, p. 23. Lord Hutton, Ruling by Lord Hutton, above n. 198. 204 Ibid. para. 10. Ibid. paras. 19–23.

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to criticism, in particular from the media. ITN’s Chief Executive Mark Wood argued that ‘TV offers a different perspective to newspapers. Seeing and hearing the actual evidence will allow the public to understand more fully and interpret for themselves what is happening throughout the inquiry.’206

K Implications of recent rulings for current restrictions and statutory prohibitions The unsuccessful applications in the Lockerbie trial and the Shipman and Hutton Inquiries appeared to suggest that British courts are not prepared to accept that current restrictions and prohibitions on televising exceed those permitted by the Convention and principles of open justice. However, it is important to note that the validity of the statutory prohibition on televising has yet to be challenged and ruled on by a court bound by the prohibition. It is also significant to note that neither the petition to televise the Lockerbie trial nor the appeal of that decision sought a ruling on the validity of Lord Hope’s Directions. As only Lord Macfadyen had been asked to grant consent exceeding that able to be granted under the Directives, it is significant that he acknowledged that a denial of permission to televise may be held to ‘restrict a form of information’ and thus to infringe the electronic media’s freedom to impart information, which is guaranteed by Article 10(1) unless its restriction can be justified under Article 10(2). An acceptance of Lord Macfadyen’s view as to the restriction of a form of expression appears to be dictated not only by the Convention but also by the principles of open justice. In view of television’s position as the dominant source of public information about court proceedings, it appears unsustainable to maintain, on the one hand, that radio and television remain free to report on proceedings though prohibited from using recording equipment, while on the other hand providing for closed circuit transmission to media rooms207 and permitting the press to sound record proceedings to ensure accuracy and completeness of reporting.208 206 207

208

Mark Wood, ‘Let us show the full picture’, Independent Review, 12 August 2003, p. 10. In 1998 the Lord Chancellor’s Department advised that ‘when approved by the trial judge, a fixed, non-recording CCTV link between the courtroom and the media annex (established at high profile trials) would not contravene s 41’: fax from Mike Wicksteed to Daniel Stepniak, 21 October 1998. As provided for in the Contempt of Court Act 1981, s. 9.

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British courts’ unwillingness to admit television cameras appears particularly indefensible in view of the acknowledged realities of open justice in Britain. Courtroom facilities are inadequate to cater for public attendance, even if members of the public were able to attend court proceedings.209 If, as Lord Young observed in McLeod v. Justices of the Peace for Lewis,210 ‘the reporting of proceedings in court is simply an enlargement of the audience which hears them in Court, but which is limited by the size of the courtroom’,211 why should the enlarged audience be deprived of the benefits of seeing justice being administered for themselves? Not only does the British public rely almost entirely on media reporting for information, its reliance is overwhelmingly on the television medium, which the public appears to trust more than the press.212 The public’s reliance on television may also be attributed to a reduction in press coverage of the courts. In this respect Prince has noted: With pressure on space, many newspapers’ reports of cases or proceedings have been truncated, and over the length of the trial or enquiry there may be many days when little is reported at all. In consequence the public rely on the television more than the press, radio and all other branches of the media for a comprehensive insight into the workings of government and information about what is going on in local as well as global communities.213

That not everyone can attend proceedings as well as the value of being able to see rather than just read or hear reports of proceedings appeared to be recognised by Scottish authorities when they permitted audiovisual recordings of the Lockerbie trial to be transmitted to remote sites. The recording of the Lockerbie trial and willingness to relax the statutory prohibition on cameras to permit closed circuit cameras to transmit images and sound to media rooms in high profile cases suggests that such recordings are capable of being undertaken without unduly 209

210

211 212

213

The difficulties of seeing justice done in the Old Bailey are illustrated in Peter Hansen, ‘Seeing justice is a trial’, Sunday Mail (Scotland), 23 November 1997, p. 121. Prince has also pointed out that facilities have proven inadequate for high profile cases such as the 1995 trial of Rosemary West: Prince, ‘Cameras in Court’, above n. 29, at 90. (1892) 20 R 218 cited in Ros Mcinnes, ‘Scotch Mist: The Lockerbie Trial and Article 10’ (2001) 46 Journal of the Law Society of Scotland 21. (1892) 20 R 218, 221. According to research funded by the Independent Television Commission and the Broadcasting Standards Commission and relied on by Robertson QC in Lord Hutton, Ruling by Lord Hutton, above n. 198, at para. 14. Prince, ‘Cameras in Court’, above n. 29, at 90.

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affecting the proceedings, and thus cannot be said to be the basis for the presumption against televising. Consequently, the better view would appear to be that public and media access to court proceedings in Britain should be determined in accordance with common law and statutory regulation and media access and as guaranteed under Article 6 of the European Convention. Media reporting of proceedings should only be subject to restrictions dictated by the principles of open justice, and statutory restrictions conforming to protection afforded to freedom of expression by Article 10 of the Convention. British courts regulate media reporting by balancing the interests of the administration of justice and right to a fair trial, on the one hand, with the interests flowing from the open and publicised administration of justice, on the other. While the media’s rights to access and impart information are no greater than the public’s,214 clearly it is the media’s dissemination of information regarding proceedings rather than that of the handful of public gallery spectators which determines restrictions imposed on reporting and ensures public scrutiny and debate of what takes place in court. On this basis some aspects of judicial proceedings and categories of cases are conducted in closed courts, while proceedings conducted in open courts are subject to restrictions on the reporting of certain evidence or disclosure of information such as the identity of witnesses or parties.215 As the European Court of Human Rights recognised in Montgomery v. HM Advocate,216 in the event of conflict between freedom of expression and the right to a fair trial, the latter must prevail. As media reports utilising audio-visual recordings would also be subject to the same restrictions imposed on other forms of reporting, it appears inconsistent to deny that medium of reporting the presumptive right enjoyed by other less relied on forms of reporting. This argument does not suggest that a presumptive right to televise would mean a right to televise whenever the press is permitted to report. Clearly the impact of audio-visual recordings and broadcasts may warrant additional restrictions with respect to certain categories of 214

215 216

See discussion in The Shipman Inquiry: Decision on Application by Cable News Network, above n. 7, at paras. 52–3. See Caplan Report, above n. 9, discussion at paras. 1.4, 5.6(i). Montgomery v. HM Advocate; Coulter v. HM Advocate [2000] ICHRL 74, www.worldlii. org/int/cases/ICHRL/2000/74.html at 29 March 2007.

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cases, or segments of proceedings, and would clearly be justified under Article 10(2) to rebut the presumption. Thus, in his application to the Hutton Inquiry, Geoffrey Robertson QC recognised the additional pressure of televising justified restrictions on the recording and broadcast of the testimony of vulnerable witnesses.217 As Article 10(2) justifies restrictions necessary to protect the rights of others, in particular the right of the accused to a fair trial and to maintain the authority and impartiality of the judiciary,218 it may arguably justify Scotland’s prohibition on the televising of the testimony in current cases, at least to the extent that interests of justice deem it necessary to impose restrictions on the publication of the testimony of earlier witnesses.219 Professor Clive Walker has observed that, while the traditional means of achieving the balance between conflicting interests has relied on restricting publication through contempt of court and sub judice laws, there has been a discernible move away from the traditional English approach of leaving the conflict to be resolved by the courts themselves, towards greater reliance on open justice, freedom of speech and the public’s right to receive information.220 The factors which have been responsible for the shift away from the traditional reliance on restricting reporting in balancing the competing rights also suggest that the relaxation of current restrictions on reporting of court proceedings is inevitable. While the imposition of international rights and standards on the administration of British justice has led to a relaxation of restrictions on publicity and secrecy as means of protecting the administration of justice,221 restrictions on publicity continue to be deemed justified by their perceived detrimental effects. The continuing imposition of a presumption against televising appears to reflect a view that the prohibition on televising enables justice to be administered without exposing parties and witnesses to the stresses

217

218 219 220

221

As acknowledged by Lord Hutton in Lord Hutton, Ruling by Hutton, above n. 198, at para. 16. BBC, Petitioners (No. 1) 2000 Scots Law Times 845, para. 49. Ibid. at para. 26. Clive Walker, ‘Fundamental Rights, Fair Trials and the New Audio Visual Sector’ (1996) 59 Modern Law Review 517, 517–18. Beginning with Sunday Times v. United Kingdom [1979] 2 EHRR 245, mentioned above, p. 19 n. 50. See ibid. for further discussion.

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of being televised and without facilitating a significantly higher level of public interest and public discussion of judicial matters. This view is certainly evident in Dame Janet Smith’s and Lord Hutton’s rulings. Yet, as noted earlier, the pressures and public interest which they sought to avoid, by denying television camera access, appear to be recognised as the acceptable cost of ensuring that justice is done and is seen to be done. The impact of publicity on accused persons was an issue of public debate which coincided with the start of the Hutton Inquiry. John Leslie, the co-host of ITV’s This Morning programme, had been linked with an alleged rape disclosed in the autobiography of a former girlfriend. As a result of being named while under police investigation, he became the subject of much public speculation and debate and consequently was dismissed from his high profile media job.222 This led to calls for the imposition of restrictions on the public identification of accused. The Lord Chief Justice questioned whether those accused of sexual offences should enjoy the same anonymity as complainants.223 The basis of this call for an extension of publicity restrictions was questioned by the Daily Telegraph in its 1 August 2003 editorial, which noted that while it may be appropriate to consider implementing guidelines on naming people before they are charged: ‘Parliament should think twice before imposing new restrictions on the media with unintended and unwanted consequences . . . The purpose of granting anonymity . . . is not to spare the feelings of [the accused and accuser] but to ensure that justice is done.’224 Restrictions imposed on fair and accurate reporting of court proceedings out of concern for the feelings of parties and witnesses and family members or for any other reason are clearly only warranted, as Lord Justice Watkins observed in the 1980s in R v. Felixstowe Justices ex parte Leigh,225 to the extent that ‘the court reasonably believes it necessary in order to serve the ends of justice’.226 It is difficult to reconcile Lord Watkins’ view that inherent power should only be used to restrict reporting where necessary, with the view of the scope of inherent power outlined by Dame Janet in the Shipman Inquiry, or in the Law 222

223

224

225

See John Steele, ‘I’ve been to hell and back but justice prevailed, says Leslie’, Daily Telegraph (London), 1 August 2003, p. 1. For a discussion of this issue, see Mark Lawson, ‘Smoke that lingers: it’s the media – not the courts – that decide guilt or innocence’, Guardian (London), 2 August 2003, p. 21. ‘A hard case’, Daily Telegraph (London), 1 August 2003, p. 29. See also ‘Trial by media: the Leslie case raises key issues’, Guardian (London), 1 August 2003, p. 25. [1987] 1 QB 551. 226 Ibid. at 593.

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Lords’ insistence on permitting televising if subject to editorial control. The Law Lords concern regarding misleading selective reporting is clearly just as applicable to the press yet does not serve as a presumption against press reporting, and as Geoffrey Robertson QC submitted in the Hutton Inquiry, also appears unwarranted in light of laws and industry standards requiring dispassionate, balanced, impartial and accurate reporting by broadcasters.227 Arguments based on the principle of open justice and the right of freedom of expression guaranteed by Article 10 of the European Convention do not preclude the imposition of restrictions on television coverage necessary in recognition of conflicting rights and interests. However, they do raise legitimate questions about the appropriateness and sustainability of the statutory prohibitions, common law restrictions imposed in Scotland and restrictions imposed on the reporting of quasi-judicial proceedings and exercise of judicial jurisdiction to control proceedings, which appear to be based on assertions as to risks which such coverage poses to the administration of justice through its effect on parties and witnesses which remain unsubstantiated by experiences in Britain and elsewhere. Restrictions currently imposed on the televising of court proceedings in Britain appear not only to overlook realities of open justice and recognised costs of justice, but may also be said to fail to give adequate weight to why courts are required to be administered openly. As Lord Scarman observed in Harman v. Secretary of State for the Home Department,228 the purpose of subjecting the administration of justice to public scrutiny and making evidence and argument publicly known is ‘so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification’.229 This statement clearly emphasises that the principle of open justice seeks to promote public confidence in the judiciary, not through restrictions on publicity and protection of the law’s mystique but rather through its insistence on public administration of justice, and through the informed public debate and scrutiny it facilitates. As discussed above, British courts had sought to protect the independence of and public confidence in the judiciary by shrouding the judicial 227

228

See Broadcasting Act 1990, s. 6(i)(b)(c); ITC Programme Code, January 2002, para. 3.4, relied on by Geoffrey Robertson QC and cited in Lord Hutton, Ruling by Hutton, above n. 198, at para. 14. [1983] 1 AC 280. 229 Ibid. at 316.

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process in secrecy and by seeking to protect judicial proceedings from becoming the subject of public entertainment and interest. While reforms such as the relaxation of the Kilmuir rules have signalled the judiciary’s acceptance of the desirability of judges playing an active role in assisting public understanding and debate of the function and operation of courts, restrictions on audio-visual reporting of court proceedings clearly restrict public scrutiny of judicial proceedings. Consequently it can be said that in spite of judicial pronouncements suggesting otherwise, public confidence in the British judicial system has relied, and to some extent continues to rely, ‘on those undertaking the judicial role and principles of due administration of justice, rather than [on] public knowledge of the working of the courts and the resolution of proceedings’.230 Responses to the miscarriage of justice cases of the early 1990s revealed competing views as to how loss of public confidence in the judiciary ought to be addressed. While the Royal Commission on Justice 1993 led calls ‘for reform of procedures and methods by which justice is administered in the UK’,231 urging greater public accountability and transparency,232 others have preferred to attribute the loss of confidence to adverse publicity.233 The traditional protection of confidence in the administration of justice through the imposition of restrictions on publicity has also come under attack from public inquiries into access to justice234 and from subsequent legal and judicial reforms emphasising public access, efficiency and transparency and adoption of information technology policies seeking to enhance public understanding and access to judicial proceedings.235 The manner in which the Shipman and Hutton Inquiries utilised the Internet illustrates the implementation of such policies and recognition of the need to promote public understanding 230 231 232 233

234

235

Prince, ‘Cameras in Court, above n. 29, at 87. Ibid. 84. See further discussion in Walker, ‘Fundamental Rights’, above n. 220, at 517. Prince, ‘Cameras in Court’, above n. 29, at 87. Thus e.g., Bronwyn Naylor cites miscarriage of justice cases such as ‘the Birmingham six’, R v. McIlkenny [1992] 2 All ER 417, as illustrations of adverse publicity making fair trial impossible. See the Right Hon. Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (1996), Lord Chancellor’s Department, www.dca.gov.UK/civil/final/ at 29 March 2007. See e.g., Lord Chancellor’s Department, Resolving and Avoiding Disputes in the Information Age (1998), Department for Constitutional Affairs, www.dca.gov.UK/ consult/itstrat/civindex.htm at 29 March 2007.

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and confidence in the judicial process.236 These innovations are difficult to reconcile with the continuing denial of public access to the most relied on source of public information about court proceedings. They also appear to be irreconcilable with judicial recognition that public understanding can be assisted by televising as expressed by the House of Lords, and acknowledged by the Lord Chancellor, Lord Irvine, in 1993.237 The motivation for the greater emphasis being placed on publicity has also come from other reforms. Thus, in part due to devolution in the United Kingdom, Scottish courts and authorities have embarked on promoting public understanding of Scottish law.238 In 2002, the Lord Advocate, Colin Boyd QC,239 called for greater cooperation between the courts and the media. In so doing, he not only emphasised the potential benefits of greater audio-visual coverage but also suggested that broadcasts of proceedings could be used to counter the inaccuracies and sensationalism of existing media reporting. Such recognition of the value of televising to promote public understanding of Scottish law, no doubt in large measure attributable to Scotland’s favourable experiences with televising, has led Scottish authorities to relax some of the more onerous rules developed in implementation of Lord Hope’s Directions in the latest recordings of proceedings.240

L Impact of the Human Rights Act 1998 on rights and UK judges Arguably the greatest significance of the Human Rights Act 1998 lies not in its incorporation of the European Convention on Human Rights into British domestic law but its recognised impact on the way in which law 236

237

238

239

240

See The Hutton Inquiry (2003), www.the-hutton-inquiry.org.UK at 29 March 2007; Dame Janet Smith, The Shipman Inquiry (2001), www.the-shipman-inquiry.org.UK at 29 March 2007. It was reported that Lord Irvine told the Home Affairs Committee that ‘televising some high-profile cases might have a valuable educative effect on the public’s perception of the judicial system’: Frances Gibb, ‘Irvine ready to allow TV cameras in Appeal Court’, The Times (London), 10 March 2003, p. 4. On Scottish devolution, see Stephen Tierney, ‘Constitutionalising the Role of the Judge: Scotland and the New Order’ (2001) 5 Edinburgh Law Review 49. Colin Boyd QC, ‘The Media, the Public and the Judicial Process: the Kenneth Younger Memorial Lecture’, paper presented at the Playfair Library, Old College, University of Edinburgh, 19 February 2002. Following two years of negotiations between BBC Scotland and the Glasgow Sheriff Court, agreement was reached on rules to govern the recording by Lion Television of a thirty-minute pilot programme to precede a six part series on cases in the Sheriff Court. See Firm Scotland, May 2003.

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and the constitution is viewed in the United Kingdom.241 Thus, on the basis of her comparative study of the impact of Canada’s Charter of Rights, Prince suggests that the inevitability of courtroom televising may ultimately flow not from the rights provisions themselves but from the culture of rights, which accompanies their embracement by British society.242 The wider implications of the Human Rights Act have been recognised and championed by the British government. In the course of the parliamentary debate on the Human Rights Bill in the House of Commons, the Home Secretary, Jack Straw, spoke of the Act bringing a ‘culture of human rights’ to the United Kingdom.243 In a public address entitled ‘Building a Human Rights Culture’, the Home Secretary set out the government’s vision and addressed the legal and social significance of the Human Rights Act.244 Describing the Human Rights Act as ‘one of the defining events in British constitutional history’, Jack Straw noted that the Act’s legal significance was that it allowed Convention rights to be enforced in British courts, and required British law to be given a meaning compatible with the Convention. The Home Secretary noted that ‘public confidence in key public institutions such as our justice system, the police, the courts, Parliament, education, has diminished. It does need to be increased. It must be increased if we want a healthy democracy.’ In this respect, he suggested that by ensuring that British law and administration do ‘uphold and reflect certain fundamental principles’, the Human Rights Act 1998 would ‘give people confidence that they will’. The Human Rights Act and the ‘culture of rights and responsibilities’, which the government has set out to build, have significant implications for the role of British judges. By requiring courts to interpret legislation in conformity with the European Convention as far as possible,245 and to give effect to rights under the Convention unless prevented from doing so by statute,246 the Human Rights Act calls on judges to engage in 241

242 243 244

245

Sue Prince, ‘Televising Courtroom Proceedings in Canada: Relevant Considerations for the UK’ (2002) 7 Communications Law 188, citing Murray Hunt, ‘The Human Rights Act and Legal Culture: the Judiciary and the Legal Profession’ (1999) 26 Journal of Law and Society 86. Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 241. Jack Straw, HC Deb vol. 317 col. 1358, 21 October 1998 cited in ibid. Jack Straw, ‘Building a Human Rights Culture’, address to Civil Service College Seminar, 9 December 1999. Human Rights Act 1998, s. 3. 246 Human Rights Act 1998, s. 6(2).

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unprecedented judicial review. As Prince notes: ‘This involves judges engaging in a more value-oriented purposive European style of interpretation than the traditionally accepted, more formalistic styles of judicial reasoning’247 and requires engaging the media and the public in the sorts of value debates necessary to create a ‘healthy democracy’ and the ‘shared understandings’ foreseen by the creation of a ‘human rights culture’.248 As Prince notes, not only has this new role led the government to undertake the Human Rights Act training of 35,000 ‘full and part-time members of the judiciary and magistracy’ through the Judicial Studies Board, which Jack Straw has noted,249 it has also raised more general questions about unelected and ‘unaccountable’ judges being asked to address not just law but also questions of values.250 The British judiciary’s new role in society is far removed from that of a judiciary which traditionally only formally declared the law on the basis of precedents and remained removed from social and political debate – a view of the courts which led to the enactment of the statutory prohibition on courtroom photography and sought to confine and discourage public interest in and debate of judicial matters. Requiring judges to interpret the Convention as a ‘living instrument which . . . must be interpreted in the light of present-day conditions’251 ‘brings the courts far more into the political spotlight as they are required to balance the rights of the individual against the needs and interests of the community’.252 Tierney notes that the more central role for judges in interpreting and developing changes is being most keenly felt in Scotland, where, due to the establishment of devolved government, judges are called upon not

247 249 250

251 252

Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 241. 248 Ibid. Straw, ‘Building a Human Rights Culture’, above n. 244. ‘Power shifts to the judges’, Guardian (London), 11 September 2000, cited in Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 241, at 188. Tyrer v. United Kingdom (1978) 2 EHRR 1, para. 3.1. Lord Steyn in R v. A [2002] 1 AC 45, 68. For a comparison of judicial review versus parliamentary supremacy as protectors of individual rights and especially freedom of speech, and discussion of the influence of ECHR obligations and implications for publication bans and freedom of speech, see Russell L. Weaver and Geoffrey Bennett, ‘Banning Broadcasting: a Transatlantic Perspective’ (1992) Media Law and Practice 179. On the new role of judges, see Lord Irvine, ‘Activism and Restraint: Human Rights and the Interpretative Process’ (1999) 4 European Human Rights Law Review 350; Prince, ‘Cameras in Court’, above n. 29, at 84.

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only to interpret and develop constitutional changes but also to reconsider their own role in the process.253 The judiciary’s exercise of their new role through engagement in political debate has been illustrated in Lord Woolf’s publicly voiced grievance at the judiciary not being consulted with respect to the government’s proposal to abolish the Office of Lord Chancellor,254 and in the clash between the government and judiciary over the 2004 Asylum and Immigration Bill by which the government has sought to stop courts from ruling on asylum and immigration appeals.255 Britain’s embracement of a culture of rights also suggests that reporting of court proceedings needs to be seen not in terms of restrictions on media reporting but in terms of the promotion of a culture of rights and of public confidence in the courts through public understanding and debate. A recognition that freedom of expression and of the press is valued and must be protected because of the role which media reporting plays in building a culture of rights and confidence in public institutions must surely lead to an acceptance of courtroom televising. The inevitable acceptance that audio-visual transmission is desirable subject to restrictions required in recognition of the interests of the administration of justice and conflicting interests also reveals the inappropriateness of making such coverage contingent on those wishing to provide such coverage establishing, as Scottish courts currently require, ‘that proposed televising involved no risk to the administration of justice’,256 and suggests a recognition of a presumptive right to televise court proceedings. While courts and authorities have taken the initiative to promote public access and understanding through other media they have been less proactive in embracing audio-visual transmission of proceedings. While current prohibitions and restrictions reflect a perception of audio-visual coverage as a restraint on and reaction to media interest, the Department of Constitutional Affairs has begun to assume a more proactive role in its

253

254

255

256

Tierney, above n. 238. For a recent exposition on the ‘impact of the Human Rights Act on the courts and its effects on judicial thinking’, see Rt Hon. Lord Carswell, ‘Rights or Wrongs? The Human Rights Act in the Courts’ (2005) 79 ALJ 36. See Frances Gibb, ‘Lord Chief Justice warns ministers he is not crying wolf’, The Times (London), 2 August 2003, p. 6 ; Joshua Rozenberg, ‘Woolf to delay retirement over legal reforms’, Daily Telegraph (London), 1 August 2003, p. 6. ‘Law Lord attacks asylum rethink’, West Australian (Perth), 5 March 2004, p. 26; Philip Johnston, ‘Judges denounce Blunkett’s policy on asylum claims’, Daily Telegraph (London), 1 August 2003, p. 6. BBC, Petitioners (No. 1) 2000 Scots Law Times 845, 859, para. 60.

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regulation of the recording and reporting of the Hutton Inquiry. John Ryley, executive director of Sky News, described the authorities’ handling of the Hutton Inquiry as ‘a watershed’ in that news organisations were permitted ‘to take modems into an annexe, allowing evidence to be broadcast within minutes of it being given’.257 However, of perhaps greatest significance has been the Department’s initiation and conduct in late 2004 of a pilot programme in the televising of appellate hearings, undertaken in association with a public consultation on court televising.

M Pilot recording of appeal proceedings and public consultation 1 Foreshadowing an experiment In late 2000 the Lord Chancellor’s Office announced that the government was considering allowing the televising of appeal proceedings.258 In October 2002, a technical feasibility study of the recording of proceedings in certain courts of appeal was presented to the Lord Chancellor’s Department.259 This led to a meeting on 7 March 2003 in which several broadcasting companies, judges and staff of the Lord Chancellor’s Department, and other interested parties, discussed the development of rules to govern experimental televising of proceedings in the Court of Appeal.260 The outcome of this meeting formed the basis of a proposal submitted to the Lord Chancellor and senior judges. The implementation of this proposal was delayed by the British government’s June 2003 announcement of a major restructuring of the judiciary. Seeking to create greater separation of powers between the three arms of government, the government proposed to replace the Law Lords’ Committee of the House of Lords with a Supreme Court and to abolish the post of Lord Chancellor, who was a member of all three arms of government.261 Of particular significance to the prospects of 257

258

259

260 261

Matt Wells and Clare Dyer, ‘First step to put cameras into courtroom’, Guardian (London), 17 November 2003. ‘Court TV plan under way’, BBC News, 27 December 2000, http://news.bbc.co.uk/1/hi/ uk/1089017.stm at 29 March 2007. Shortly after, on 23 January 2001, the Lord Chancellor advised the House of Commons Home Affairs Select Committee that he had no objection to the televising of civil court proceedings. Email communication from Mike Wicksteed, Chief press officer/Internet editor, Lord Chancellor’s Department/Court Service, 30 January 2003. Gibb, ‘Irvine ready to allow TV cameras in Appeal Court’, above n. 237. The reforms have been controversial, see e.g., Patrick Wintour and Clare Dyer, ‘Reshuffle ends job as Lord Chancellor’, Guardian Weekly (London), 19–25 June

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experimental televising was the replacement of Lord Irvine, who appeared to be the driving force behind the proposal, with Lord Falconer as the last Lord Chancellor. In July and August 2003, the public debate and the Hutton Inquiry’s investigations of the role which the pressures of being subjected to cross-examination in televised parliamentary committee hearings played in bringing about the death of Dr Kelly, and concurrent debate of the impact of media publicity on John Leslie, appeared also to endanger the prospect of such an experiment going ahead. However, in late 2003 senior members of the judiciary and the Department for Constitutional Affairs262 approved the pilot project and produced a ‘Protocol Governing Pilot Filming in the Appellate Jurisdiction of England and Wales’. The terms of the Protocol confine the pilot to appeal proceedings in designated courtrooms and prohibit the broadcast of any recordings made during it.263 Two reasons appear to explain why no broadcasting of the recordings was permitted. The predominant reason appears to be that the restriction ensured that before any broadcasts are permitted to be broadcast, judges will be afforded the opportunity to personally experience the recording of proceedings by television cameras and thus be able to assess the impact of cameras and the resulting news items, documentaries and feature stories which media organisations will produce utilising the recorded footage.264 As Lord Falconer noted, referring to the recorded footage: ‘These will never be broadcast, but they will show us how film of proceedings might be used, for example in news programmes or in documentaries.’265 The secondary, but nevertheless significant, reason is that the broadcast of recordings would be more likely to be deemed to be in breach of section 41 of the Criminal Justice Act 1925 and possibly of section 9 of the Contempt of Court Act 1981 prohibitions than audio-visual recordings which were not broadcast. To the extent that concerns regarding the infringement of the statutory prohibitions account for the Protocol’s ban on broadcasting of

262 263

264 265

2003, p. 8. The House of Lords has delayed the passage of the legislation, see ‘Ministers Stick by Supreme Court’ BBC News, 9 March 2004, http://news.BBC.co.UK/1/hi/ UK_politics/3545959.stm at 29 March 2007; ‘Lords query overhaul of legal system’, West Australian (Perth), 10 March 2004, p. 30. Formerly known as the Lord Chancellor’s Department. See Department for Constitutional Affairs, Broadcasting Courts, above n. 2, Annexure D, p. 99. Gibb, ‘Irvine ready to allow TV cameras in Appeal Court’, above n. 237. Lord Falconer, Broadcasting Courts Seminar, Department of Constitutional Affairs, www.dca.gov.uk/consult/courts/speeches/falconer.htm at 29 March 2007, at p. 2.

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recordings authorised by the Lord Chancellor and presiding judges during the pilot,266 they would appear to reflect very conservative interpretations of the immunity of the Crown and contempt of court. The deletion by the House of Commons of a provision, permitting courtroom photography with the leave of the court, from an earlier draft of clause 41 of the Criminal Justice Act 1925 suggests that Parliament intended the prohibition to be absolute, and not subject to the exercise of judicial power to control proceedings. However, it is clear that the prohibition has not been strictly enforced. On a few occasions photography267 and even audio-visual recording268 has been permitted in courtrooms. The routine filming and photographing of judges269 and parties to proceedings entering and leaving courtrooms has not led to anyone being charged with breaching section 41.270 Security cameras and audio-visual recording by transcription services has been permitted and non-recording CCTV links between courtrooms and the media annexe in high profile trials are deemed not to contravene section 41.271 This has led to suggestions that section 41 permits photography with consent, or more persuasively that it does not bind the authorities, as executive government is only bound by statute through express or necessary implication.272 As Dockray has noted, there is no reason to believe that the purpose of the enactment would be frustrated if the Crown were not bound,273 or that the statutory prohibition 266

267

268

269

270

271 272 273

This reason for the materials recorded during the pilot not being able to be broadcast is supported by Lord Irvine’s remarks that while at the moment such footage could not be broadcast, ‘if the project was judged a success, Parliament would legislate to lift the ban’: ibid. According to Dockray, in the late 1920s and early 1930s, Lord Chief Justice Hewart authorised the taking and publication of court photographs, apparently in the belief that he had the power to do so notwithstanding the statutory prohibition: Martin Dockray, ‘Cameras at the Door of the Court’ (1990) 140 New Law Journal 548, 549. On the basis that the Lord Chancellor’s Department had permitted him to film in empty courtrooms for educational purposes over two days in 1981, Dockray suggests that perhaps photography in empty courtrooms for educational or documentary purposes not associated with legal proceedings may be permissible: Dockray, ‘Cameras in Court’, above n. 61, at 244–5. An example is the photograph of Lord Hutton posing for the photographer in front of the High Court, which appeared on the front page of the Guardian on 2 August 2003. Rolph notes that prohibition on photography in the precints of the court or of judges, jurors, witnesses or parties to proceedings has not been enforced: C. H. Rolph, ‘In Camera’ (1990) 140 New Law Journal 382. Fax from Mike Wicksteed to Daniel Stepniak, 21 October 1998. Lord Advocate v. Dunbarton [1900] 1 All ER 1. Dockray, ‘Cameras in Court’, above n. 61.

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would be interpreted as an attempt to impose criminal liability on the Crown.274 Though it is highly unlikely that a court could be found to be in contempt of itself,275 section 9 of the Contempt of Court Act 1981 appears to distinguish between the use of sound recording equipment and subsequent use of such sound recordings with the leave of the court, on the one hand, which do not constitute a contempt of court, and the publication of sound recordings, for which leave would not appear to be able to be given. Negotiations regarding issues such as consent requirements continued into mid-2004. In September 2004 the Lord Chancellor announced that a pilot programme would be undertaken in the Court of Appeal, and that the subsequent evaluation of the pilot will serve as the basis for a decision as to the desirability of amending the statutory ban to permit the broadcast of, initially at least, appeal proceedings.276

2 The Pilot Programme On 16 November 2004, a three-week experiment commenced in the Royal Courts of Justice. The day before the experiment began, the Department for Constitutional Affairs announced a twelve-week public consultation277 and published a consultation paper,278 which noted with respect to the experiment that: Only appeal cases will be filmed. There will be no jury, and no witnesses will be filmed. Judicial consent will have to be obtained in order to film a case. Proceedings will be recorded by two stationary cameras, and the film will be pooled between the broadcasters. Examples of the possible use of such material for the purposes of news reports, documentaries and educational material will then be produced for study and analysis. The

274 275

276

277 278

Cain v. Doyle (1946) 72 CLR 409, 424 (Dixon J). See e.g., discussion with respect to Contempt of Court Act 1981, s. 8(1) in R v. Young (Stephen) [1995] QB 324, 327–30; and R v. Connor [2004] UKHL 2, www.parliament. the-stationery-office.co.uk/pa/ld200304/ldjudgmt/jd040122/conn-1.htm at 29 March 2007. See ‘OJKO as pilot allows cameras into Court of Appeal’, Law Gazette, 9 September 2004, www.lawgazette.co.uk/news/pressroundup/view=newsarticle.law?GAZETTENEWSID= 191539 at 29 March 2007. To run until 28 February 2005. Department for Constitutional Affairs, Broadcasting Courts, above n. 2.

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footage will never be broadcast. Filming will be governed by a protocol drawn up by the DCA, the judiciary and media representatives.279

Detailed information regarding the pilot programme and its evaluations are yet to be made public.280

3 The Consultation Paper While inviting submissions on the desirability of televising proceedings, the Foreword by Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor,281 set a rather cautious if not negative tone, stressing potential difficulties and problems, and only briefly stating the potential rationale for such coverage through a mention of the reality that knowledge of what goes on in court is ascertained from television, the medium which is not allowed in the courts.282 Notably absent from the Lord Chancellor’s Foreword and indeed from the entire consultation paper is any suggestion that the subject matter of the consultation was related to government policies seeking to promote a more transparent and accessible judicial system. Instead, it was presented as a public consultation on how the government should react to broadcasters and others pressing for change. In identifying peripheral and extreme concerns, such as those relating to ‘televising cases involving children’, Lord Falconer may be said to have largely predetermined the tenor of public submissions.283 The consultation paper itself284 conveyed the sceptical and concerned tone set by the Lord Chancellor. It examined the history of restrictions on courtroom televising in Britain, outlined issues specific to different types of proceedings, briefly considered the implications of technological developments, considered how televising might impact on different 279 280

281 282 283

284

Ibid. paras. 36–7. The Bar Council is said to have conducted a survey of participants in recorded proceedings. Dr Paul Mason and I had also been commissioned by the Department to evaluate the impact of the recording of proceedings, however to date, no word has been received as to whether our questionnaires were distributed and collated. Department for Constitutional Affairs, Broadcasting Courts, above n. 2, at p. 5. Ibid. In a speech on 10 January 2005 the Lord Chancellor provided some insight into submissions received. See discussion below chapter 4 M.4. The consultation paper draws extensively on materials provided to the Department for Constitutional Affairs by the author over the past six years. In early 2004 the author briefed a junior Minister at the Department on options for the experiment and had been invited to assist with research relating to the enactment of the s 41 amendment.

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participants, and offered some remarks regarding the principle of open justice and possible regulation of television coverage. The paper annexed a selective summary of the experiences and regulation of televising in the United States, Canada and New Zealand.

4 Consultation Seminar On 10 January 2005, a seminar was held in London to ‘debate the issues surrounding the possibility of broadcasting court proceedings and consider the impact any changes to the current prohibition would have’.285 The speakers at this seminar were Lord Falconer, Lord Justice Judge, Deputy Chief Justice for England and Wales, Sir Louis Blom-Cooper QC and John Cooper. Justice Robert French, of the Federal Court of Australia, and I also presented papers via video link from the Federal Court in Perth. In his introductory speech286 Lord Falconer noted that 120 completed questionnaires had been received in response to the consultation paper and that an overwhelming majority had ‘said that we must ensure that ‘‘justice is done’’ and that this must be the most important factor in any consideration whether to broadcast’.287 While stressing the neutral stance taken by the government, the Lord Chancellor presented the consideration of in-court televising as a response to changes in technology and in people’s behaviour, and reiterated his numerous concerns regarding televising. He stressed that ‘the last thing we want to see in Britain is trials which would be US-style media circuses’.288 This negativity was also observed by Frances Gibb, who in writing about the seminar in The Times,289 noted: At a seminar last week, judges, lawyers and broadcasters debated whether the ban on cameras in courts (in the Criminal Justice Act 1925) should be lifted. But the gap between the legal profession and the media remains wide. And Lord Falconer of Thoroton, the Lord Chancellor, in what looked to be a pre-empting of his own consultation, even confessed that the outcome might favour the status quo. 285 286

287 289

Department for Constitutional Affairs, Broadcasting Courts, above n. 2. Lord Falconer, Broadcasting Courts Seminar, Introduction from Lord Falconer, Speech by Lord Falconer, the Lord Chancellor and Secretary of State for Constitutional Affairs (2005), Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/ speeches/falconer.htm at 29 March 2007. Ibid. p. 2. 288 Ibid. p. 2. Francis Gibb, ‘Televising of courts: don’t hold your breath’, The Times (London), 18 January 2005, Law 5.

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He renewed his pledge not to introduce any reform that would damage the justice process; and while insisting that the Government had no view, he noted – of the televising of Parliament – that ‘MPs and peers took 20 years from the first consideration of the issue to when the first pictures were seen’. There would be no ‘headlong rush to change’, he said. ‘We won’t have change for change’s sake.’

In his speech Lord Judge noted that ‘the exclusive concern of any system of justice is that justice should be done’ and outlined a number of ways in which broadcasting may inhibit the doing of justice. However, he concluded by noting that ‘the blanket prohibition against broadcasting in court should be re-examined, and where we can be entirely satisfied that justice will not be inhibited, the prohibition should be relaxed’.290 Sir Louis Blom-Cooper QC recounted his favourable experiences of televising while presiding over public inquiries. He argued that as courts are able to control what happens inside courtrooms, the only problem related ‘to what goes out from the courtroom into the homes of the ordinary citizen either over the radio or TV’. This he suggested ‘was a matter of editorial control – clearly to be worked out between the judicial administration and those who are responsible for the media’.291 John Cooper, a barrister and broadcaster, acknowledged certain concerns but emphasised the benefits of televising, permitting the public to see what really happens in court.292 Justice French outlined Australia’s experiences, his own experiences on the Native Title Tribunal, and the incremental steps taken by the Federal Court of Australia. He foreshadowed and endorsed my argument urging the consideration of a proactive approach being taken by British courts.293 In my paper, I argued that international experiences suggest that the acceptability of televising was not determined by studies as to effects but 290

291

292

293

Lord Judge, Broadcasting Courts Seminar, Speech by Lord Justice Judge (2005), Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/speeches/ judge. htm at 29 March 2007, p. 2. Sir Louis Blom-Cooper, Broadcasting Courts Seminar, Speech by Sir Louis Blom-Cooper QC (2005), Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/ speeches/blom-cooper.htm at 29 March 2007, p. 2. John Cooper, Broadcasting Courts Seminar, Speech by John Cooper (2005), Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/speeches/cooper.htm at 29 March 2007. Justice French, Broadcasting Courts Seminar, Speech by Justice Robert French by Videolink from the Federal Court of Australia, Perth (2005), Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/speeches/french.htm at 29 March 2007, p. 4.

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rather by the availability of suitable technology, an acceptance of the rights involved and crucially by judicial attitudes. I concluded that: on the basis of the experiences of other common law jurisdictions, the most appropriate way forward will not be revealed by asking whether cameras ought to be permitted – as such an approach is not only rhetorical (at least with respect to appeal proceedings) but suggests a passive role for the courts. The more appropriate question – and one which ensures cooperation between courts and the media and leaves the courts an appropriately active role – is to ask how televising of court proceedings may be best employed to supplement the courts’ promotion of public access to and understanding of judicial proceedings.294

In an interview for the seminar, prominent London media lawyer Mark Stephens explained why he had ceased to be a sceptic as to the value of televising, and urged that less attention be paid to comparisons with the United States and greater attention be paid to the more relevant experiences of jurisdictions such as Australia and to my research.295 The panel discussion which followed highlighted the gulf existing between the senior members of the judiciary and the media, which Frances Gibb had noted. However, some participants sought to identify common ground. Thus, Justice Roger suggested that the differences related to particular types of proceedings rather than the central issue and consequently surmised that ‘There seems to be quite a consensus that we should be in favour of broadcasting so far as it doesn’t affect the process of justice.’296

5 Public responses to the consultation Apart from the 120 consultation submissions to which the Lord Chancellor referred in his seminar speech,297 a further indication of public responses may be ascertained from the online discussion forum.298 294

295

296 298

Daniel Stepniak, Broadcasting Courts Seminar, Speech by Daniel Stepniak by Videolink from the Federal Court of Australia, Perth (2005), Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/speeches/stepniak.htm at 29 March 2007, p. 4. Mark Stephens, Broadcasting Courts Seminar, Sceptic No More, An Interview with Mark Stephens by Marcel Berlin (2005), Department for Constitutional Affairs, www.dca.gov. uk/consult/courts/speeches/stephens.htm at 29 March 2007, p. 2. Ibid. 297 Lord Falconer, Introduction from Lord Falconer, above n. 286, at p. 2. Department for Constitutional Affairs, Discussion Forum Topics (2005), www.dca.gov.uk/ consult/courts/discuss/index.htm at 29 March 2007.

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On 30 June 2005, the Department for Constitutional Affairs issued a Response to the public consultation.299 The Department’s analysis of public responses identified limited support for ‘widespread broadcasting’ and ‘grave concern about potential impact on participants, especially witnesses and jurors, and on the trial process’. However, the Department also noted that many respondents felt ‘that broadcasting could increase understanding of court processes and make courts more accessible’. Reflecting a central dilemma faced by courts wishing to promote understanding but fearful of potential negative effects on proceedings, the Response concluded by advising that the Department was exploring ‘options which might achieve these benefits, without risking harm to participants or any negative impact on the administration of justice’.300

N Conclusion The relaxation of the current statutory prohibition and common law restrictions on in-court televising in UK courts appears to be imminent. The inevitability of this development flows largely from British authorities’ growing realisation that the extent and nature of current restrictions on incourt televising is incompatible with the contemporary application of the principles of open justice. This is a recognition which the British government and judiciary have to some extent been forced to confront by the European Convention on Human Rights, as implemented in British law by the Human Rights Act 1998, and in their implementation of government policies promoting a culture of rights and judicial reform designed to enhance confidence in the law through enhanced understanding of, access to and transparency of the legal process. Lord Carswell has noted that the scheme of the Human Rights Act is based on a modified version of the New Zealand model of rights legislation. It is designed to preserve the supremacy of Parliament, but to do so the legislature had to accommodate that principle to the enforceability of the rights specified in the Convention. Each branch of the polity, legislature, executive and judiciary, has a responsibility to give effect to Convention rights in exercising its powers.301 299

300

Department for Constitutional Affairs, Broadcasting Courts: Response to Consultation CP(R) 28/4, www.dca.gov.uk/consult/courts/broadcasting-cp(r)28-04.pdf. at 29 March 2007. Ibid. p 42. 301 Carswell, ‘Rights or Wrongs?’, above n. 253, at 37.

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In view of this similarity with the New Zealand Bill of Rights Act 1990 perhaps British courts should be considering more closely the New Zealand televising experience, especially as much of the impetus for New Zealand’s experiment arguably flowed from the implications of the Bill of Rights Act.302 Some senior members of the British judiciary are beginning to openly recognise that televising may facilitate public appreciation of the work of and issues addressed by courts. Thus, for example, Lord Justice Brooke303 made the following observation with respect to a case of great significance and which generated enormous public interest: Whether it would have been much more difficult for the three members of the Court of Appeal, of whom I was one, to conduct the Conjoined Twins appeal three years ago if we had been exposed to live television broadcasting, is hard to assess. But it would certainly have brought home to a mass audience the complexity of the issue we were facing.304

Though such recognition of the link between media reporting and public understanding may not always be expressly recognised by some senior British judges, it appears to have been at least grudgingly acknowledged in recent developments such as the above discussed November 2004 to February 2005 public consultation and the November to December 2004 pilot programme in the Court of Appeal, both of which were authorised by a Lord Chancellor who clearly is yet to be persuaded as to the potential benefits of televising. The role which new technology and its promotion by senior British judges have recently played to make the prospect of televising much more acceptable must also be underlined. While Britain may be said to have led the way in respect of the adoption of some courtroom technology,305 Barnett suggests that ‘efforts by judges, professional bodies and court administrators to continue the modernisation process [have been] hampered by a body of lawyers and litigants who are reluctant to embrace new technology’.306 302 303 304

305

306

See discussion below chapter 6 B.3. Vice President of the Court of Appeal of England and Wales. Henry Brooke, ‘The Legal and Policy Implications of Courtroom Technology: the Emerging English Experience’ (2004) 12 William and Mary Bill of Rights Journal 699, 704. See Department for Constitutional Affairs, Broadcasting Courts, above n. 2, at ch. 4; Jeremy Barnett, ‘The United Kingdom’ (2004) 12 William and Mary Bill of Rights Journal 687, 687. Barnett, ‘The United Kingdom’, above n. 305, at 687.

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That, until recently, Britain has been reluctant to embrace some courtroom technology, Barnett suggests, may also in part be attributed to ‘the failure of a number of high profile government IT programmes’307 and the ongoing debate about ‘who should develop and finance the new technology for the legal system’.308 Lord Justice Henry Brooke, who since 2000 has ‘represented the judiciary on the Court Service Board, which runs the modernisation programme’,309 and whom Lord Woolf, the Lord Chief Justice, appointed in January 2001 ‘to lead the judges’ involvement in the modernisation programme’,310 observed: ‘I have watched the very slow process by which our judges, lawyers and court administrators have come to realise that applications of modern technology offer real benefits in the world of litigation.’311 He noted the irony of this situation, stating: ‘The land whose industrial revolution changed the world in the eighteenth and nineteenth centuries was slow to embrace ICT [information and communications technology] into its legal and judicial culture.’312 It must be noted that the use of technology in British courts has been championed by senior judges such as Lord Woolf and Lord Brooke.313 The court modernisation programme instigated by Lord Woolf 314 has led to significant changes in the use of technology by British courts.315 Thus, by April 2006, Lord Brooke expects ‘150 leading court centres in England and Wales’ to ‘posses a modern IT infrastructure’.316 Technology has also been utilised to enable broadcasters to circumvent the statutory prohibition on cameras in courts. The Department for Constitutional Affairs Consultation Paper notes that in an endeavour to provide British viewers with visual presentations of high profile court proceedings, British broadcasters have not only recreated courtroom

307 309 311 312 313

314 315 316

Ibid. 308 Ibid. 688. Brooke, ‘Legal and Policy Implications’, above n. 304, at 700. 310 Ibid. Ibid. 699. Ibid. 699. As Barnett noted: ‘In court, rather surprisingly, support for the introduction of technology has come not from the profession, but from the senior judiciary.’ See Barnett, ‘The United Kingdom’, above n. 305, at 689. See discussion of the Woolf Report above chapter 2.K, L. See discussion in Brooke, ‘Legal and Policy Implications’, above n. 304, at 700–1. Ibid. 700.

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scenes,317 but have used computer-generated images with voice-overs. For example, in the trial of Princess Diana’s former butler Paul Burrell, ITV News is said to have ‘pioneered the use of 3-D representations of the courtroom and trial participants to give viewers a clearer picture of the events of the hearing’.318 The Department for Constitutional Affairs identifies a particularly noteworthy method of coverage pioneered by Sky News during the Soham murder trial.319 The Sky News channel and its website320 are said to have published a ‘rolling transcript’ of the Old Bailey hearing, in ‘apparent ‘‘real time’’ – though in fact live evidence was subjected to a delay to provide an opportunity to delete any swear words, breaches of court rules etc’.321 Journalists are reported to have ‘also read sections of the court transcripts over 3-D representations of the courtroom and participants’.322 This coverage resulted in Sky News winning the ‘Innovation’ award at the Royal Television Society Journalism Awards 2003 for having ‘devised a range of radical and imaginative solutions to the enduring problem of covering judicial proceedings where cameras are banned’.323 Similarly, Lord Brooke noted that: In the criminal trial of The Queeen v Huntley & Carr, conducted by Mr Justice Moses and a jury at the Central Criminal Court between October and December 2003, the court transcripts were released to the media very soon after the relevant words were spoken in court. Actors played the parts of witnesses, counsel, and the judge in almost contemporaneous recreations of the proceedings in court.324

317

318 319

320 321 323

324

Just as in the United States, Sky News and Cable Channel E! have reconstructed Michael Jackson’s trial. See ‘Faux Jacko’s days in court’, Weekend Australian (Perth), 12–13 March 2005, p. 23. Such reconstructions are not new as O.J. Simpson’s civil trial was also reconstructed and not confined to television, and as Melbourne radio station 3AW had hired an actor to read the text of Justice Teague’s judgment, when denied permission to broadcast the actual judgment. See discussion of Justice Teague’s judgment below chapter 5 E.4(c). Department for Constitutional Affairs, Broadcasting Courts, above n. 2, at para. 18. R v. Huntley and Carr, Old Bailey, 17 December 2003, cited by Department for Constitutional Affairs, Broadcasting Courts, above n. 2, at para. 19. Sky News, July 2003, www.sky.com/skynews/home at 29 March 2007. Ibid. 322 Ibid. Ibid. Also see discussion in Matt Wells and Clare Dyer, ‘First step to put TV cameras into courtroom’, Guardian (London), 17 November 2003. Brooke, ‘Legal and Policy Implications’, above n. 304, at 704.

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The effective use of technology in a number of recent public inquiries has also highlighted the benefits of audio-visual coverage.325 Such coverage has led Lord Brooke to observe: ‘I believe that the televising of proceedings in our appeal courts and in those courts, like the Administrative Courts, which do not receive live evidence from witnesses, cannot be far away.’326 While continuing resistance to televising has clearly been made evident in the recent public consultation, it is important to note that the desirability of the continued televising of appeals heard by Britain’s highest court of appeal has been enshrined in proposed legislation. The Constitutional Reform Bill which seeks to replace the Law Lords with a new Supreme Court contains clause 37, which would amend section 41 of the Criminal Justice Act 1925 by adding ‘apart from the Supreme Court’ to sub-section 41(2(a), which currently reads: ‘For the purposes of this section: the expression ‘‘court’’ means any court of justice, including the court of a coroner.’ The Department for Constitutional Affairs’ November 2004 Consultation Paper, Broadcasting Courts, stresses that: ‘The inclusion of this clause is simply to replicate the existing arrangements. It is not an indication of a Government position on the wider issue of broadcasting considered in this paper.’327 This statement may be said to sum up the current attitude of the British government and senior judiciary to court televising: a quiet and somewhat reluctant concession of the inevitable, accompanied by a loud qualification that the prohibition on televising will only be partially relaxed. 325

326 327

Note discussion of the Shipman and Hutton Inquiries above. Note also the observations of Sir Louis Blom-Cooper, above n. 291 and remarks regarding the ‘Bloody Sunday’ Inquiry in Brooke, ‘Legal and Policy Implications’, above n. 304, at 704–5; Barnett, ‘The United Kingdom’, above n. 305, at 692–6. Brooke, ‘Legal and Policy Implications’, above n. 304, at 704. Department for Constitutional Affairs, Broadcasting Courts, above n. 2, at para. 14.

3 Key American experiences

A Introduction The televising of proceedings in American courtrooms has been the subject of countless articles, books, studies and experiments.1 Consequently, this chapter does not propose to go down the well trodden path of outlining the history and experiences of American courts. Instead, it focuses on those aspects of the American experience which other common law countries regard as precedents, against which their experiences are measured, to which they are compared, and which inevitably serve as reference points in any analysis of the televising of court proceedings. This chapter begins with an analysis of the virtual banning of cameras from American courtrooms in the early twentieth century in order to facilitate a clearer understanding of the technological, legal and other reasons why courtroom televising was initially banned and has 1

The vast body of literature includes Ronald Goldfarb, TV or Not TV: Television, Justice, and the Courts (1998); S. L. Alexander, ‘Cameras in the Courtroom: A Case Study’(1991) 74 Judicature 307; Eugene Borgida, Kennneth G. De Bono and Lee A. Buckman, ‘Cameras in Courtroom: the Effects of Media Coverage on Witness Testimony and Juror Perceptions’ (1990) 14 Law and Human Behaviour 489; Richard Kielbowicz, ‘The Story Behind the Adoption of the Ban on Courtroom Cameras’ (1979) 63 Judicature 14; Matthew D. Bunker, Justice and the Media: Reconciling Fair Trials and a Free Press (1997); Marjorie Cohn and David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice (1998); Molly Treadway Johnson and Carol Krafka, Electronic Media Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals (1994); New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom: Cameras in New York Courts (1997); Paul Thaler, The Watchful Eye: American Justice in the Age of the Television Trial (1994); Ernest Short and Associates Inc., Evaluation of California’s Experiment with Extended Media Coverage of Courts (1981); New York State Defenders Association, The Intrusion of Cameras in New York’s Criminal Courts: A Report by the Public Defense Backup Center (12 May 1989); Ruth Ann Strickland and Righter H. Moore Jr, Cameras in State Courts: A Comparative Examination of Experimental Versus Permanent Usage by State (1994); William E. Francois, Mass Media Law and Regulation (1986); Judicial Council of California, Report by Task Force on Photographing, Recording and Broadcasting in the Courtroom (February 1996).

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subsequently come to be accepted, though often subject to significant restrictions, in all state jurisdictions in the United States. It also facilitates a consideration of the introduction of televising as a step in the evolution of courtroom reporting. The dominant role which constitutional rights issues have played in determining the nature of the debate, and the manner in which courtroom reporting is regulated in the United States, are then examined and shown to contain important lessons for other common law jurisdictions. This chapter’s examination of some of the major studies undertaken in American courts not only discloses invaluable precedents for regulation or administration of courtroom televising, but also reveals why such studies are inevitably deemed inconclusive. The televising of American court proceedings has become almost synonymous with high profile celebrity trials, causing some of the most instructive innovations and experiences to be overshadowed or overlooked. This chapter’s analysis of the experiences of a wide range of state and federal courts seeks to provide a more balanced view of the American experience and to challenge some popularly held views as to the prevalence of televising and the attitudes of American judges. Two larger states and two smaller states were chosen specifically to highlight a variety of distinct aspects of American experiences. Thus, the New York state experience provides not only a valuable source of data but an illustration of why the evaluation of experiments and studies remains inconclusive. A study of the Californian experience is included in large measure to redress popular misconceptions regarding televising in the United States, and to examine the repercussions of the media coverage of the O.J. Simpson trial. The experiences of Idaho and Washington State are considered to illustrate significant developments in the courts of smaller states, experiences which are perhaps of great relevance to the courts of Australia and the other common law jurisdictions considered, but which are not widely known and usually overshadowed by high profile cases in the more populous American states. Other jurisdictions are also briefly considered in order to illustrate specific developments. Some American courts’ proactive, innovative and successful utilisation of communications technology to facilitate public and media access to audiovisual recordings of court proceedings are also outlined and identified as accessible precedents for overcoming some of the concerns of the cameras in courts debate. Thus, for example, the discussion of Florida courts is largely confined to their pioneering work in the streaming of proceedings.

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Finally the experience of US federal courts is considered because of the valuable data flowing from the early 1990s pilot programme and because it facilitates a closer examination of judicial opposition to courtroom televising.

B Early concerns regarding court reporting 1 Introduction An often unspoken assumption of arguments raised in opposition to the televising of court proceedings is that, unlike traditional court reporting, the television medium presents unprecedented dangers to the administration of justice. However, even a cursory examination of early American debates regarding the reporting of court proceedings reveals that public disquiet about the impact of court reporting, and in particular concerns that reporting was depriving defendants of a fair trial, predates not only television but even press photography. This was acknowledged by Justice Warren Burger, who described the perceived threat, implicit in the apparent conflict between the First Amendment protected freedoms of speech and of the press on the one hand and the defendant’s right to a fair trial, guaranteed by the Sixth Amendment, as being ‘almost as old as the Republic’.2

2 Concerns predating photography Early press reporting of high profile celebrity trials was little different to the sensationalist coverage of televised cases of the late twentieth and early twenty-first centuries. The almost instinctive link drawn between the presence of television cameras and the periodic so-called ‘trial of the century’ is clearly challenged by a number of American nineteenthcentury trials, each of which was also described as the ‘trial of the century’, subjected to saturation press coverage, and not unlike contemporary equivalents conducted in a carnival-like atmosphere attended by thousands of curious members of the public.3 It is on this basis that some 2 3

Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 564 (1980). J. Anthony Lukas, ‘Big Trouble: Celebrity Trials and the Good Old Days that Never Were’ (1998) 12 Media Studies Journal 46; see also Goldfarb, TV or Not TV, above n. 1, at pp. 1–19. For example in the 1925 ‘Scopes monkey trial’, proceedings were moved to the lawn outside the Dayton, Tennessee courthouse in order to house the five thousand spectators and prevent the courtroom floor from collapsing. See Ray Ginger, Six Days or Forever? (1985), p. 103.

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American judges assert that the coverage of the O.J. Simpson trial would have been excessive irrespective of whether cameras were admitted into Judge Ito’s courtroom.4 A closer analysis of the commentary and criticism of sensationalist early press reporting reveals that they were not only motivated by concern for the rights of defendants but also reflected official disquiet at court proceedings being made the subject of mass interest and entertainment. An illustration of such concerns is the reaction of President Theodore Roosevelt to the reporting of the lurid details of the 1907 trial of Harry Thaw, one of the first of the twentieth century’s countless ‘trials of the century’. In endeavouring to limit the publication of the salacious news accounts, the President is said to have written to the national postmaster seeking to prohibit their transmission, stating: ‘It is disgusting that people should be willing to read such loathsome matter.’5 Though concerns regarding media coverage of judicial proceedings are rarely expressed in terms of the potential for such coverage to undermine public morals or the mystique of the judicial process, such rationale may often constitute the real underlying cause of opposition to court reporting, and in particular reporting by the most popular medium, television.6 The history of the American debate over courtroom reporting reveals the issue of televising to be the latest manifestation of a long trend, which Ronald Goldfarb summed up in the following terms: During the nineteenth century, a public of local spectators was supplemented by reporters who came to trials and reported what they observed to a distant reading audience. With the invention of the telegraph, immediate reports of criminal trials could be communicated quickly to larger and more distant audiences. As the media presence and impact grew, problems arose. The very ubiquity of the press threatened to make differences in the kind as well as the degree of publicity pertaining to trials. From the earliest days of this country’s history to the present, there have been excessive publicized criminal trials. Television is only the latest chapter in a long and evolving continuum of institutional and constitutional dynamics.7

4

5 6

7

Judge Richard S. Arnold and Judge Gilbert S. Merritt, ‘Justice by the Consent of the Governed’ (1998) Winter Media Studies Journal 80, 8 0 – 1 . Lukas, ‘Big Trouble’, above n. 3, at 49; see Goldfarb, TV or Not TV, above n. 1, at pp. 6–7. See Daniel Stepniak, ‘British Justice: Not Suitable for Public Viewing?’ in Paul Mason (ed.), Criminal Visions: Media Representations of Crime and Justice (2003), pp. 254–77. Goldfarb, TV or Not TV, above n. 1, at pp. 2–3.

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When considered in the context of long-standing reservations regarding courtroom reporting, concerns regarding the impact of courtroom televising are more likely to be addressed in their entirety and less likely to be confined to real and imagined issues deemed unique to the medium of television.

3 Press photography and newsreel cameras Courtroom photography and in particular the utilisation of moving picture technology to record and screen newsreel footage of American trials in the early years of the twentieth century appeared to harness already existing concerns relating to press reporting of court proceedings, converting them into a movement which led to the prohibition of audio and visual reporting of trials. While it has been said that ‘from their earliest appearance, courtroom cameras evoked controversy’,8 in large measure this was due to the fact that press photography, and in particular moving picture technology, facilitated unprecedented levels of coverage for not only local and national, but international consumption. This was recognised and sometimes apparently welcomed by American judges. For example, Judge John Raulston, who in 1925 allowed unprecedented radio broadcast as well as newsreel and press camera coverage of the Dayton, Tennessee, ‘Scopes monkey trial’, is said to have declared: ‘My gavel . . . will be heard around the world.’9 However, not all American courts were as welcoming of the presence of cameras. In the first two decades of the twentieth century a number of American courts banned cameras from their courtrooms.10

4 The Hauptmann trial Concerns regarding the intrusiveness, sensationalism and disruptiveness of media reporting reached their peak following the 1935 trial of Bruno Hauptmann,11 for the kidnapping and murder of the 20-month-old son of famous aviator and national hero Charles Lindbergh, and led to the imposition of a virtual nationwide prohibition on the photographic coverage of judicial proceedings. 8 9 10 11

Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 14. Ginger, Six Days or Forever?, above n. 3, at p. 103. See Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 14. State v. Hauptmann, 180 A. 809 (NJ, 1935).

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The level of American and international interest in the trial was such that some 700 media personnel and 132 press photographers and newsreel cameramen were reported to have been involved,12 with up to 141 newspaper reporters and photographers, 125 telegraph operators and 40 messengers said to have been present in the Flemington, New Jersey, courtroom at the one time.13 In assessing the impact of media reporting of this case it is important to note the atmosphere of the courtroom, which was crowded well beyond its capacity with spectators who were often admonished by the judge for their outbursts of laughter.14 Adding to the newsworthiness of the occasion, or perhaps because of its newsworthiness, the proceedings were flamboyantly attended by celebrities such as Ginger Rogers and Jack Benny.15 Though the presiding judge, New Jersey State Supreme Court Justice Thomas W. Trenchard, is said to have been initially inclined to prohibit all photography in the courtroom, after meeting with media representatives he agreed to permit a maximum of four photographers to take photographs in court, on condition that they did so only when the court was not in session. Following a demonstration of a muffled camera and unobtrusive lighting equipment, the judge also permitted newsreel camera coverage, subject to the same restraints as applied to press photography – that no recording would be undertaken while the court was in session.16 Criticism of the media coverage included allegations that, in breach of the conditions imposed by the judge, press photographers took photographs of Lindbergh and his wife testifying, and of Hauptmann as the guilty verdict was read out.17 It was also reported that outside the courtroom, ‘[w]itnesses, jurors, anyone remotely associated with the trial were fair game for the press’.18

12

13 15

16 18

‘News Forces to Pack NJ Town for Trial’ (1934) 20 October Editor and Publisher 16; ‘Flemington’s Cooperative Darkroom Produced 120 Pictures in 80 Minutes’ (1935) 12 January Editor and Publisher 5, cited in Kielbowicz, ‘The Story Behind the Adoption’, above n. 1, at 18. Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 15. 14 Ibid. Reminiscent of the O.J. Simpson jokes which circulated in the mid-1990s, Jack Benny is said to have ‘quipped of the defendant, ‘‘what Bruno needs is a second act’’’: ibid. p. 15. For a description of the circus like atmosphere of the trial see ibid. pp. 15–17. Kielbowicz, ‘The Story Behind the Adoption’, above n. 1, at 18. 17 Ibid. at 18–19. Francois, Mass Media Law, above n. 1, at p. 358. See also Cohn and Dow, Cameras in the Courtroom, above n. 1, at pp. 15–16.

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The accounts of the actions of a newsreel camera operator, which are said to have caused the judge to prohibit further camera coverage, vary. Kielbowicz suggests that cameras were banned after the judge discovered that one of the newsreel cameras had recorded several days of proceedings in violation of the agreed restrictions.19 He notes that even though the chief prosecutor demanded that the newsreel be withdrawn from screenings, only three of the five companies involved withdrew distribution and then only in New York and New Jersey. This resulted in the recorded footage being screened in 10,000 of the United States’ 14,000 cinemas.20 This version would suggest that the withdrawal of permission to photograph proceedings was entirely due to the camera operator’s breach of the imposed conditions and not due to any distraction or disturbance which such recording may have caused, as arguably such would have been apparent to the judge or brought to his attention during the several days on which the camera is said to have been filming. The alternative version of events is presented by Cohn and Dow, who suggest that in spite of the restrictions imposed by the judge, ‘Sheriff John Curtiss made a gentlemen’s agreement with five newsreel companies, allowing them to film the trial provided they showed no footage until after the verdict’.21 This version of events appears to be supported by such accounts as ‘[e]fforts to augment the dim courtroom lighting by installing high-intensity bulbs in overhead fixtures helped boost temperatures in the gallery to uncomfortable levels’.22 This account would provide some evidence of the intrinsic disruptiveness and adverse effect of such filming, while still leaving the dishonouring of the agreement as to the terms of the coverage as the cause of the prohibition of further coverage. Extensive public criticism of the reporting of the Hauptmann trial led the American Bar Association (ABA), at its 1935 convention, to appoint a Special Committee on Publicity in Criminal Trials. It is significant to note that the main areas of concern identified by this committee, and the subsequently appointed Special Committee on Cooperation Between the Press, Radio and Bar against Publicity Interfering with Fair Trial in Judicial and Quasi-Judicial Proceedings (formed to gather input from the media and consisting of twelve press and five Bar representatives)

19 21

Kielbowicz, ‘The Story Behind the Adoption’, above n. 1, at p. 19. Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 15.

20 22

Ibid. Ibid.

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were extra-legal comments23 and ‘the surreptitious procurement of pictures or sound records’,24 and not the impact of cameras on court proceedings. In its report to the 1937 ABA convention, the Special Committee on Cooperation Between the Press, Radio and Bar against Publicity Interfering with Fair Trial in Judicial and Quasi-Judicial Proceedings somewhat dramatically described the media coverage of the Hauptmann case as ‘the most spectacular and depressing example of improper publicity and professional misconduct ever presented to the people of the United States in a criminal case’.25 The Committee’s report reveals that while reluctant to impose a total prohibition on cameras, the Committee ultimately conceded that, in its then current state, recording equipment tended to distract trial participants from their primary task.26 The Committee’s recommendations led the ABA convention to adopt Canon 35 of the ABA Code of Judicial Ethics. Titled ‘Improper Publicizing of Court Proceedings’, Canon 35 provided that: Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the minds of the public and should not be permitted.27

The singling out of photography was challenged by the New York Daily News, which in commenting on the characterisation of the Hauptmann trial as a ‘Roman holiday’, noted that ‘[i]t was not the action of photographers, per se, but the very nature of the entire story that created the conditions that prompted such a characterization . . . and which was unfairly blamed on photographers’.28 The adoption of Canon 35 coincided with the enactment of similar state legislation and rules by Bar and judicial organisations, prohibiting 23

24

25 27 28

Oscar Hallam, ‘Some Object Lessons on Publicity in Criminal Trials’ (1940) 24 Minnesota Law Review 453, 477 (quoting Report of Special Committee on Publicity in Criminal Trials given to the Section of Criminal Law of the American Bar Association). Special Committee on Cooperation between the Press, Radio and Bar, ‘Report’ (1936) 62 Annual Report of the American Bar Association 851, 862. Ibid. 26 Ibid. at 864. Model Code of Judicial Ethics Canon 35 (1952). Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 17.

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photography and broadcasting in courtrooms.29 Though Canon 35 was not binding on courts,30 by 1965 all state courts (with the exception of Colorado, Texas and Oklahoma)31 had banned television cameras from their courtrooms.32 The ban was extended to federal courts in 1946, when Congress enacted Rule 53 of the Federal Rules of Criminal Procedure, banning the taking of photographs and radio broadcasting of criminal trials in the federal courts.33 In 1962, the Judicial Conference of the United States unanimously condemned audio-visual recording of court proceedings, deeming ‘such practices to be inconsistent with fair judicial procedure’.34 Looking beyond the official reasons given for the impositions of the bans, Kielbowicz suggests that the prohibition on cameras and radio broadcasting in the pre-television United States ‘marked the new media’s vulnerability – the apprehension photography and broadcasting engendered as new technologies; their second class status in the journalistic world; and film’s negligible constitutional protection’.35 The factors responsible for the banning of cameras from American courtrooms appeared to be many and varied. They included public 29 30

31

32

33

34

35

Kielbowicz, ‘The Story Behind the Adoption’, above n. 1, at 20. In Lyles v. Oklahoma, 330 P. 2d 734, 738 (Okla. Crim. Ct App, 1958), ABA Canons were described as a ‘system of principles of exemplary conduct and good character’ not having force of law. It is unlikely to be a coincidence that the courts of Oklahoma, Kansas, Texas and Colorado experimented with television coverage in their courtrooms during the 1950s. See Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 18. For an outline of the development of the Canon 35 prohibition, see ‘Appendix to Opinion of Mr. Justice Harlan’ in Estes v. Texas, 381 U.S. 532, 596–601 (1965). For the text of the rule and discussion, see Laralyn M. Sasaki, ‘Electronic Media Access to Federal Courtrooms: A Judicial Response’ (1990) 23 University of Michigan Journal of Law Reform 769. Annual Report of the Proceedings of the Judicial Conference of the United States, 8–9 March 1962, p. 10; see also Erwin N. Griswold, ‘The Standards of the Legal Profession: Canon 35 Should Not be Surrendered’ (1962) 48 American Bar Association Journal 615, 618. In 1948, Congress established the Judicial Conference of the United States as the principal policy-making body concerned with the administration of the US courts, to replace the Conference of Senior Circuit Judges. The Conference consists of twenty-six Federal Judges and the Chief Justice of the United States, who acts as the Presiding Officer. Specific functions of the Conference are set out in s. 331 of title 28, United States Code (28 U.S.C. x 331). Kielbowicz, ‘The Story Behind the Adoption’, above n. 1, at 20, where in support of this contention Kielbowicz notes that in response to the drafting by the Judicial Council of New York of a rule barring all photography in courtrooms and even in the vicinity of courts, the New York Daily News had argued that ‘written and pictorial journalism were too much alike to justify an inferior constitutional status for photographers’.

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unfamiliarity with the new medium of reporting; the novelty of the implications for the regulation of court reporting of the visual media’s scope and nature of coverage; the media’s non-compliance with restrictions on coverage; perceptions as to their detrimental impact on the dignity of judicial proceedings, in particular their distraction of courtroom participants, disruption of proceedings, the legal profession’s perception that camera coverage tended to degrade and demystify courts by making them and their proceedings the subject of public entertainment interest and discussion;36 the low journalistic status of audio-visual reporting37 and the consequent lack of legal protection.38

5 Television The three decades between Hauptmann and the Supreme Court’s definitive ruling in Estes v. Texas39 witnessed the arrival of television as a medium of news reporting. While the ABA’s response was to amend Canon 35 in 1952 to encompass television and add ‘distract the witness in giving his testimony’ to the Canon’s rationalisation, some state courts began to permit television recording and broadcast of their proceedings.40 The first recorded instance of television cameras being admitted into an American courtroom took place in December 1953 when segments of an Oklahoma trial were recorded and broadcast in newscasts by WKY-TV,41 while the first live television broadcast took place in Waco, Texas. In January 1956 the Colorado Supreme Court held the first state hearing on the issue of cameras in courts, ruling that Canon 35 should not be categorically enforced in Colorado and that individual judges should have the discretionary power to admit cameras into their courtrooms.42

36

37 38 40

41

The ABA made it clear that it was opposed to the broadcast of court proceedings because it considered such coverage to change ‘what should be the most serious of human institutions . . . into an enterprise for the entertainment of the public . . . Using such a trial for the entertainment of the public or for satisfying its curiosity shocks our sensibilities.’ See ‘ABA Committee on Prof Ethics and Grievances, Formal Opinion 67’ (1932) 18 American Bar Association Journal 550. A factor which continues to explain much criticism, especially by the press. Further discussed below chapter 3 C. 39 381 U.S. 532 (1965). Gilbert Geis, ‘A Lively Public Issue: Canon 35 in the Light of Recent Events’ (1957) 43 American Bar Association Journal 420; Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 18. Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 18. 42 Ibid.

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6 Estes v. Texas Such experimentation with televising in American courts was shortlived, as in 1965 the Supreme Court of the United States held televising to be inherently disruptive and an infringement of a defendant’s constitutional right to a fair trial. In so doing the Court appeared to vindicate many of the concerns which led to the enactment of Canon 35 and similar prohibitions following the Hauptmann trial. In Estes v. Texas,43 the US Supreme Court ruled that the media’s presence and behaviour at the 1962 pre-trial hearing and trial of celebrity Texan financier Billie Sol Estes, for fraud and false pretences, had deprived the defendant of his Sixth Amendment constitutional right to due process. The Court described the media’s presence at the pre-trial hearing, somewhat ironically held to decide whether to permit television coverage of the trial,44 in the following terms: These initial hearings were carried live by both radio and television, and news photography was permitted throughout. The videotapes of these hearings clearly illustrate that the picture presented was not one of that judicial serenity and calm to which petitioner was entitled. Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge’s bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings.45

The Court went on to find that the physical distraction and disruption occasioned by the television recording of the preliminary hearing and trial had ‘inherently prevented a sober search for the truth’.46

43 44

45

46

381 U.S. 532 (1965). The preliminary hearing and parts of the trial of celebrity Texan financier Billie Sol Estes were recorded and broadcast on television in spite of his objections. Estes v. Texas, 381 U.S. 532, 536 (1965). The Court referred to a New York Times newspaper report of ‘a television motor van, big as an intercontinental bus’ parked outside the courthouse, which described the courtroom as ‘a forest of equipment’ with six television cameras, numerous microphones and cables and wires snaked over the floor and mentioned a ‘jury box, now occupied by an overflow of reporters from the press table’: at 536, 553 (Warren J, concurring). Ibid. at 551.

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Though no specific prejudice was found to have been suffered by the defendant, the Court deemed the presence of cameras to have had a harmful psychological effect on jurors, witnesses, attorneys and defendants.47 Finding the recording of proceedings by television cameras to be inherently prejudicial led the Court to declare that the camera coverage had intrinsically violated the defendant’s Sixth Amendment rights to a fair trial. Television’s prejudicial effect was held to flow from the very nature of the medium: ‘Television in its present state and by its very nature, reaches into a variety of areas in which it may cause prejudice to an accused. Still one cannot put his finger on its specific mischief and prove with particularity wherein he was prejudiced.’48 While the Court’s finding that televising was inherently prejudicial to a fair trial continues to be cited worldwide by those opposed to courtroom televising,49 it is important to note that the Court envisaged that this would not necessarily remain the case. In so doing the Court identified two key variables, technology and public familiarity, noting ‘the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials’.50 More specifically Justice Harlan noted that: the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in the courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination in accordance with the traditional workings of the Due Process Clause.51

7 Post-Estes In the aftermath of Estes the prohibition on cameras in courts was further extended, so that by 1974 all states except Colorado banned cameras from their courtrooms.52 In 1972, the ban on audio-visual coverage of federal court proceedings was extended from criminal trials to all proceedings when the Judicial Conference of the United States 47 50 51 52

Ibid. at 545–51. 48 Ibid. at 544. 49 See discussion below chapter 7. Estes v. Texas, 381 U.S. 532, 551–52 (1965). Ibid. at 595–6; see also similar statement by Justice Clark: ibid. at 540. Kenneth Creech, Electronic Media Law and Regulation (1993), p. 290.

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enacted Canon 3A(7) of the Code of Conduct for US Judges, prohibiting ‘broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto’.53 However, just as the extent of the prohibition reached its zenith in the early 1970s, it also began to weaken. For example, while the ABA reaffirmed its opposition to camera coverage when it replaced Canon 35 of the Code of Judicial Ethics with Canon 3A(7) of its Code of Judicial Conduct in 1972, the ABA relaxed the previously absolute ban by approving the admission of cameras into courts for specific non-news gathering purposes.54

8 Reasons for the Chandler decision When the US Supreme Court revisited the issue of television camera access, in the 1981 case of Chandler v. Florida,55 it refused to declare the mere presence of cameras in the trial of two Florida policemen to be violations of the defendants’ rights to due process of law. While the Court recognised that the televising of court proceedings risked endangering a defendant’s right to a fair trial, the Court held an absolute ban on the televising of courts to be unjustified in the absence of actual evidence and proof that such a contingency had in fact materialised.56 Shifting the onus of proof to demonstrate prejudice onto the defendants, the Court ruled that in order to warrant the exclusion of cameras defendants must establish that such coverage would deny them due process by adversely affecting trial participants or the judge’s capacity to treat them fairly.57 Much had changed in the sixteen years separating Estes and Chandler to account for the different outcomes, including the changes which the Supreme Court had foreshadowed in Estes.

(a) Technology The Court found that the advances in the state of television technology, predicted in Estes v. Texas, had now effectively come to pass.58 A study of press and broadcast reporting in courtrooms stated that: 53

54

55

Johnson and Krafka, Electronic Media Coverage, above n. 1, at p. 3; Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 112. Francois, Mass Media Law, above n. 1, at p. 392; Diane L. Zimmerman, ‘Overcoming Future Shock: Estes Revisited, or a Modest Proposal for the Constitutional Protection of the News-Gathering Process’ (1980) 4 Duke Law Journal 641, 667–9. 449 U.S. 560 (1981). 56 Ibid. at 578–9. 57 Ibid. at 574–5. 58 Ibid. at 576.

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By the mid-1970s, technology had advanced to the point where coverage of events by broadcast media had fewer distractions; no longer were lights needed for more sophisticated TV cameras. Cameramen could be content to cover trials from a fixed position, rather than roam at will. Microphones were more common and less fear-evoking than in the generation previous.59

The technological developments and the public’s familiarisation with audio-recording equipment foreshadowed in Estes, provide at least a partial explanation for why during the 1970s a number of state jurisdictions relaxed prohibitions on courtroom cameras in order to allow experiments and pilot programmes to be undertaken. In view of the 1978 Conference of State Chief Justices’ adoption of a resolution ‘advocating state experimentation with camera coverage’,60 and the favourable experiences of experiments with cameras in more than thirty states, the ABA removed its Canon 3A(7) ban in 1982, replacing it with what has been described as ‘a general rule inhibiting unrestricted camera coverage of state court cases’, but permitting it in ‘the sound discretion of the trial court pursuant to an expressly formulated set of rules enacted by the appropriate judicial supervisory authority’.61 One such favourable experiment, supervised by the Supreme Court of Florida,62 led the Florida Supreme Court to find in In Re Petition of PostNewsweek Stations, Florida, Inc., that ‘during the pilot program, physical disturbance was so minimal as not to be an arguable factor. Technological advancements have so reduced size, noise, and light levels of the electronic equipment available that cameras can be employed in courtrooms unobtrusively’.63 The Chandler decision appeared to endorse this finding.

(b) Public familiarisation with television as a source of public information The significance of technological advances lay not only in enabling proceedings to be recorded in an unobtrusive manner but also in that television had become commonplace. Not only were television cameras 59

60 62

63

Val E. Limburg et al, ‘How Print and Broadcast Journalists Perceive Performance of Reporters in Courtroom’ (1988) 65 Journalism Quarterly 621; see also David Graves, ‘Cameras in the Courts: the Situation Today’ (1979) 63 Judicature 24. Goldfarb, TV or Not TV, above n. 1, at p. 24. 61 Ibid. See Re Petition of Post-Newsweek Stations, Florida Inc. for Change in Code of Judicial Conduct, 370 So. 2d 764 (Fla., 1979). Ibid. at 775.

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no longer a novelty but television had established itself as a serious source of public information. Thus, Cohn and Dow observe that ‘television was becoming more and more pervasive in its influence on the American psyche’.64 Television coverage of the war in Vietnam had established it as a particularly influential source of public information. The television medium’s status was also enhanced by the televising of the Senate Watergate hearings, which served to promote public demands for open government and media insistence on its constitutional rights, including its right of access to court proceedings.

(c) Composition of the Court A rarely mentioned, additional explanation for the US Supreme Court’s apparent departure from the ruling in Estes was offered by Diane Zimmerman, who wrote just prior to the decision in Chandler, ‘[o]f the Justices who decided Estes only Stewart, Brennan and White remain on the Court today. All dissented in that case, explicitly identifying the First Amendment issue that the majority neglected.’65 C Televising as a constitutional right 1 Introduction The role which constitutional rights have played in opening American courts to television coverage is revealed by case law relating to electronic media access, which has sought to reconcile the First Amendment’s explicit protection of free speech and of freedom of the press and its implicit protection of the public interest in the open administration of justice, with the Sixth Amendment’s protection of a defendant’s right to a fair trial. Somewhat surprisingly, it was not till thirty years after the Hauptmann trial prompted the enactment of a virtual nationwide prohibition of cameras in courts that the US Supreme Court first addressed the constitutional status of courtroom televising in terms of First and Sixth Amendment rights.

2 Estes v. Texas As noted above, in Estes the Court was willing to find that camera coverage intrinsically violated a defendant’s Sixth Amendment rights 64 65

Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 22. Zimmerman, ‘Overcoming Future Shock’, above n. 54, at 650.

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to a fair trial. In that case the Court held that the defendant’s right to a fair trial outweighed any access right the media might have to televise proceedings, and identified the ‘public trial’ guaranteed by the Sixth Amendment as one belonging to the accused and not the public. In arguably its first decision on the media’s right of access to court proceedings, the Court also held that the media’s right of access to court proceedings was no greater than the public’s.

3 Chandler v. Florida As outlined above, sixteen years after Estes, in its 1981 case of Chandler v. Florida,66 the Court reiterated its earlier view that televising of court proceedings potentially endangered a defendant’s right to a fair trial. However, the Court deemed an absolute ban on televising to be unjustified in the absence of actual evidence and proof that such a contingency had in fact materialised.67 Consequently, those seeking to establish that television coverage would deny them due process now bore the onus of proof.68

4 Nixon, Gannett and Richmond Newspapers The decision in Chandler was the culmination of a two-year period in which the US Supreme Court significantly revised its stance on the constitutional protection of public and media access to trials and the right to public trials. To underline the extent of the revisions, it is worth noting that in the 1978 case of Nixon v. Warner Communications, Inc.,69 the Court’s majority held that ‘[t]he requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed’.70 A year later in Gannett Co. v. DePasquale, while recognising a ‘strong societal interest’ in public trials and ruling that the Sixth Amendment’s protection of public trials did not give an accused a right to a private trial, the Court nevertheless rejected the notion of an enforceable public right to insist on public trials by finding the Sixth Amendment right to be for the benefit of defendants.71 In a preview of the stance the Court was about to adopt, Justice Lewis Powell alone suggested that because of their function as agents for the public the media may have a First Amendment 66 70

449 U.S. 560 (1981). 67 Ibid. at 578–9. Ibid. at 610. 71 443 U.S. 368 (1979).

68

Ibid. at 574–5.

69

435 U.S. 589 (1978).

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right of access to judicial proceedings.72 On this basis he urged that care be taken to reconcile the protection of a defendant’s rights to fair trial with the rights of the press to cover trials.73 The following year the Court was presented with an opportunity to reconsider its stance on First and Sixth Amendment rights when it was asked to decide whether a defendant could rely on his Sixth Amendment right to insist that his criminal trial be closed without first establishing that court closure was necessary to ensure he received a fair trial. In a majority decision, the US Supreme Court in Richmond Newspapers, Inc. v. Virginia74 recognised for the first time that the public and press have a First Amendment right to attend a criminal trial, which existed independently of the Sixth Amendment rights of an accused. On the basis that trials were intended to be public events and that the public had a legitimate interest in them and a corresponding right to attend them, Chief Justice Burger observed that ‘[i]nstead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through print and electronic media. In a sense this validates the media claim of functioning as surrogates for the public.’75 This line of reasoning led the Court to conclude that as the rights of the public and press to attend criminal trials were deemed to be implicit in the guarantee of the First Amendment, in the absence of a proven overriding interest, criminal trials must be open to the public. In tracing the history of open courts,76 Chief Justice Burger suggested that the common law presumption of public access to judicial proceedings had been incorporated into the Bill of Rights: The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials ‘before as many of the people as choose to attend’ was regarded as one of ‘the inestimable advantages of a free English constitution of government’. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.77

It may be said that a largely unexplored significance of this statement is that it suggests that the media’s right of access to and publication or 72 75

Ibid. at 398 (Powell J, concurring). 73 Ibid. at 399–406. 74 448 U.S. 555 (1980). Ibid. at 572–3. 76 448 U.S. 555, 575 (1980). 77 Ibid. at 575.

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broadcast of court proceedings is protected and valued not for its own sake but because it is a means of attaining the objects of open justice – the public dissemination of court proceedings required to facilitate public scrutiny of the judicial process and to promote informed debate of laws and their application in courts of law.

5 Post-Chandler Since Chandler, the US Supreme Court has been reluctant to revisit the constitutional status of television camera access and has remained disinclined to consider legal argument that the electronic media’s constitutional rights should be further expanded. In Globe Newspapers v. Superior Court,78 the Court held a Massachusetts law, requiring trial judges to exclude the public and press from criminal trials involving young victims of sex offences, to be in violation of the First Amendment, but the Court declined to extend the right to attend criminal trials to a right to televise, record or broadcast trials. In so doing it rejected the argument that Richmond had declared an absolute right of access to the press and public in criminal trials, holding instead that Richmond merely created a presumption in favour of openness which required case by case balancing of competing interests and the establishment of compelling reasons to justify the imposition of restrictions on media access to trials. In United States v. Hastings,79 the Federal Court of Appeals for the Eleventh Circuit also rejected the argument that the First Amendment guarantees a right to televise trials. Arguably revealing the inappropriateness of basing public access to information about court proceedings on the constitutional protection of freedom of expression,80 the Court categorised restrictions on cameras as ‘time, place and manner’ restrictions on protected speech, and on that basis deemed restrictions justifiable when shown to be promoting a significant government interest and leaving open sufficient alternative channels of communication.81 78 80 81

457 U.S. 596 (1982). 79 695 F. 2d 1278 (11th Cir., 1983). Further discussed below chapter 3 C.6. 695 F 2d 1278, 1282 (11th Cir., 1983). The exclusion of television cameras may be categorised as merely a restriction on the manner of gathering of information, and thus a ‘time, place and manner regulation’ permitted of content-neutral speech. Contentneutrality is a US Supreme Court sanctioned qualification on permitted regulation of constitutionally protected speech, which requires the establishment of a compelling state interest to be served by a regulation which is not aimed at suppressing the content of the speech itself (United States v. O’Brien 391 U.S. 367, 376 (1968). Proscribing a specific medium may constitute more than a time, place and manner regulation and

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In Waller v. Georgia,82 the US Supreme Court found that ‘the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public’.83 Justice Lewis Powell’s majority opinion also noted that: the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.84

On this basis the Court found the closure of a pre-trial hearing in order to protect the privacy of wiretap evidence to be improper in the absence of an established overriding interest in a closed hearing and the court’s failure to pursue alternative solutions. In Press-Enterprise, Co. v. Superior Court,85 the US Supreme Court held that the First Amendment right of access to criminal proceedings applied to preliminary hearings. It also ruled that the right to a public trial applied to civil as well as criminal cases, and that the First Amendment precluded the closure of courts on the basis of mere conclusory assertions in the absence of specific findings.86 The ruling would appear to reinforce the view that it is those who seek to restrict public access to proceedings who should bear the onus of presenting evidence as to why public access should be restricted or denied. However, to suggest such an implication is to equate public access to actual proceedings with public access to broadcasts of proceedings – an argument rejected by the Federal Court of Appeals for the Second Circuit, albeit with some qualification, in the 1984 case of Westmoreland v. CBS.87 There, the court declined to extend the public’s right of access to a presumptive right of camera coverage, holding:

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constitute a restriction on the content of the speech if the medium is inherently distinctive. For an evaluation of the argument that the visual immediacy of television broadcasting makes that medium inherently distinctive, see Cable News Network v. American Broadcasting Co., 518 F. Supp. 1285. It may also be challenged on the basis that the exclusion of television cameras affects not only the media’s ‘right to collect information for its own subsequent editing and use in the manner it may prefer’, which may be justified as a ‘restriction on the manner of newsgathering’ but also prevents the media from acting as ‘surrogates for the public’. See discussion in Michael J. Grygiel, ‘Memorandum of Law of Regional News Networks in Support of its Motion for Limited Intervention and Application to Provide Audio-Visual Coverage of Trial Proceedings’ (2000) 63 Albany Law Review 1003, 1031–4. 467 U.S. 39 (1984). 83 Ibid. at 46. 84 Ibid. at 45. 478 U.S. 1 (1986). 86 Ibid. at 27. 87 752 F. 2d 16 (2d Cir., 1984).

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‘There is a long leap . . . between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised. It is a leap not supported by history.’88 However, in terminology reminiscent of Estes v. Texas, the court noted that additional experience with telecasting could some day warrant the recognition of a presumptive right to televise all court proceedings.89 Twelve years after Westmoreland, a federal District Court judge ruled that the time had arrived to recognise a presumptive right to televise court proceedings.90 Though the decision clearly lacks precedent value, it is worthy of consideration because it sets out a persuasive case for the recognition of a presumption in favour of the televising of proceedings and provides an instance of judicial acceptance of such an argument. In the 1996 case of Katzman v. Victoria’s Secret Catalogue,91 Southern District Judge Sweet held that advances in technology and three decades of experience with cameras in the courts had clearly established that objections to cameras could readily be addressed and should no longer prevent the recognition of a presumptive First Amendment right of the press to televise court proceedings and of the public to view those proceedings on television. Seeking to end a distinction which had dogged audio-visual reporting since before Hauptmann, Judge Sweet also held that ‘in the context of the right of press access to the courtroom, there can no longer be a meaningful distinction between the print press and the electronic media’.92 A presumptive constitutional right to televise court proceedings was also recognised by a state Supreme Court in 2000. While New York’s Supreme Court is merely a court of first instance93 and thus its decisions are of little precedential value, the decision is worthy of analysis if only because of the contribution the judgment makes to the debate over constitutional rights to courtroom televising. In People v. Boss,94 New York Supreme Court Justice Teresi held section 52 of the New York Civil 88 90

91 93 94

Ibid. at 23. 89 Ibid., cert. denied, 472 U.S. 1017 (1985). A similar length of time (fourteen years) separated the US Supreme Court’s qualification in Estes and the Florida Supreme Court’s declaration in Re Petition of PostNewsweek Stations, Florida Inc. for Change in Code of Judicial Conduct, 370 So. 2d 764 (Fla., 1979) that the foreshadowed changes had taken place. See discussion above chapter 3 B.7, 8. 923 F. Supp. 580 (SDNY, 1996). 92 Ibid. at 588. See www.courts.state.ny.us/courts/structure.shtm at 30 March 2007. 701 N.Y.S. 2d 891 (2000).

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Rights Law, which had banned cameras from trial courts since 1952, to be unconstitutional, in that it violated the Free Speech Clause of both the First Amendment of the US Constitution and article 1.8 of the New York State Constitution. Adopting the reasoning of Judge Sweet in Katzman, Justice Teresi recognised a presumptive constitutional right to audiovisual coverage of the courts. He found that the ban on trial court televising had been enacted at a time when cameras were intrusive, and had not survived on its merits but rather on ‘the failure of the Legislature to maximise the press and public’s legitimate constitutional access to the courts’.95 Referring to the ten-year experiment which had permitted some coverage of trials,96 Justice Teresi observed that it had demonstrated that the concerns of the earlier era were no longer applicable,97 and consequently ‘no longer a bar to a presumptive First Amendment right of the press to televise court proceedings and of the public to view those proceedings on television’.98 However, the constitutionality of the section 52 prohibition was upheld on 22 June 2004 by New York State’s second highest appellate court, the Appellate Division, First Department of the New York Supreme Court in Courtroom Television Network LLC v. State of New York and others.99 The court rejected the existence of a federal constitutional right to televise court proceedings and the argument based on Richmond Newspapers, Inc. v. Virginia100 that the public has a First Amendment right to ‘observe’ trials on television without physically attending those proceedings, holding that Richmond merely recognised that ‘the right to attend criminal trials is implicit in the guarantees of the First Amendment’.101 The court further observed that in Westmoreland v. Columbia Broadcasting Sys., Inc.102 ‘the Second Circuit noted that 95 97

98 99

100 101

102

96 Ibid. at 895. For further discussion see below chapter 3 D.3. See New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1 (evaluating the fourth and final phase of this ten-year experiment); Daniel Stepniak, Electronic Media Coverage of Courts: A Report Prepared for the Federal Court of Australia (1998) (discussing the ten-year experiment). People v. Boss, 701 N.Y.S. 2d 891, 895 (2000). Courtroom Television Network v. State of New York, 2004 N.Y. Slip Op. 05386 (1st Dept June 22, 2004), www.courts.state.ny.us/reporter/3dseries/2004/2004_05386.htm at 30 March 2007. 448 U.S. 555 (1980). Courtroom Television Network v. State of New York, 2004 N.Y. Slip Op. 05386 (1st Dept June 22, 2004) at 580 (emphasis added by New York court). 752 F. 2d 16, 23 (1984), cert. denied sub nom. Cable News Network, Inc.. v. United States Dist Ct for S Dist of NY, 472 U.S. 1017 (1985).

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Richmond and its progeny ‘‘articulate a right to attend trials, not a right to view them on a television screen’’’. Citing Turner Broadcasting Sys., Inc. v. Federal Communications Comm.103 the court noted that even assuming that section 52 restricted speech within the meaning of the First Amendment ‘it survives the judicial scrutiny that applies to content-neutral statutes’ as a contentneutral statute that burdens speech must further ‘an important or substantial governmental interest’ that is ‘unrelated to the suppression of free expression’, and the statute’s ‘incidental restriction’ on expression must be ‘no greater than is essential to the furtherance of that interest’. The court held section 52 to be ‘sufficiently tailored to further an important state interest, namely, the preservation of the value and integrity of live witness testimony in state tribunals’. Relying on Ward v. Rock Against Racism,104 the Court also rejected the plaintiff ’s argument that ‘less restrictive measures, such as existed under former section 218 of the Judiciary Law, may satisfy requirements of narrow tailoring’ by noting that ‘content-neutral statutes are not invalid simply because the government’s interest ‘‘could be adequately served by some less-speech-restrictive alternative’’’.105 The Court also found that section 52 did not, in the words of Cox v. New Hampshire,106 ‘unwarrantedly abridge . . . the opportunities for the communication of thought’ in public places, because as United States v. Hastings107 had held, reporters were ‘free to attend the entire trial, and to report whatever they observe’.108 The arguments in support of such a right were summed up by David Busiek, Director of the Radio and Television News Directors Association, in his submission to the Senate’s Judiciary Subcommittee on Administrative Oversight and the Courts Subcommittee in September 2000, when he argued that: [S]tate and federal law governing television coverage of the judicial branch should be grounded in a presumption that such coverage will be allowed unless it can be demonstrated that it would have a unique adverse effect on the pursuit of justice or prejudice the rights of the parties in any particular case.109

103 106 109

512 U.S. 622, 662 (1994). 104 491 U.S. 781 (1989). 105 Ibid. at 800. 312 U.S. 569, 574 (1941). 107 695 F. 2d 1278 (11th Cir, 1983). 108 Ibid. at 1282. See Radio Television News Directors Association and Foundation, News Releases: Iowa News Director Testifies September 6 at the Senate Hearing on Cameras in the Courtroom (7 September 2000), www.rtnda.org/news/2000/indtt.shtml at 30 March 2007.

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That the first instance court decisions in Katzman and Boss reflect views not necessarily shared by other and higher courts was made clear in Nichols v. District Court of Oklahoma County,110 in which the Oklahoma Court of Criminal Appeals ruled that televising the hearing of Oklahoma City bombing conspirator Terry Nichols would violate his right to due process of law.111 The appeal alleged that television coverage would generate even more pre-trial publicity and further compromise Nichols’ right to a fair trial and impartial jury. The trial judge, District Judge Robert Murphy Jr, had found that the Oklahoma rule prohibiting electronic coverage violated both state and federal constitutions on the basis that a judge has the final authority to manage and control a courtroom and that television coverage would not adversely affect a defendant’s right to a fair trial. The Court of Criminal Appeals’ decision also provides an interesting illustration of how the above outlined authorites may be applied. In ruling that ‘the ‘‘public trial’’ guaranteed by the Sixth Amendment is not one belonging to the public, but one belonging to the accused’, the Oklahoma Court of Criminal Appeals deemed itself bound by the US Supreme Court’s decision in Estes.112 Declaring ‘No constitutional provision guarantees a right to televise trials. First Amendment rights of the press are subject to reasonable time, place, and manner restrictions’, the Court of Criminal Appeals followed the Court of Appeals for the Eleventh Circuit’s decision in the 1983 case of United States v. Hastings.113 Citing the US Supreme Court decision in Nixon v. Warner Communications Inc.,114 the Court of Criminal Appeals found that ‘[t]he requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed’.115 The court’s decision may be said to reflect the continuing reluctance of American courts to recognise a presumptive constitutional right to televise court proceedings, yet it is diffficult not to also suggest that the decision appears to be based on a selective reading of authorities. In particular, it seems incongruous that the court relied on the US Supreme Court’s 1965 decision in Estes v. Texas, yet failed even to mention the 110 111

112 114

6 P. 3d 506 (Okla. Crim. App., 2000). ‘We specifically find that to televise or record a criminal trial over the objection of a defendant would violate an accused’s right to due process of law’: ibid. 381 U.S. 532 (1965). 113 695 F. 2d 1278, 1282 (11th Cir., 1983). 435 U.S. 589, 610 (1978). 115 6 P. 3d 506 (Okla. Crim. App., 2000).

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Supreme Court’s significantly altered views expressed in the 1981 case of Chandler v. Florida116 – even if, strictly speaking, Chandler did not overrule Estes. The Oklahoma Court also chose to follow the 1983 Court of Appeals for the Eleventh Circuit in United States v. Hastings yet ignored the qualifying opinion of the 1984 Court of Appeals for the Second Circuit in Westmoreland v. Columbia Broadcasting117 which was cited in later cases to justify the recognition of a presumptive constitutional right. Though it is unlikely that superior American courts will recognise a presumptive right to televise court proceedings in the near future, state courts appear to recognise that constitutionally they may be obliged to provide justification for declining to permit the use of cameras and recording equipment in their courts. On the basis of the jurisprudence of the US Supreme Court’s rulings of the past twenty-five years, it may be suggested that if the Court was to revisit the specific issue of the constitutional rights of televising, it would be unlikely to uphold blanket prohibitions on audio-visual coverage, particularly if such prohibitions were not based on specific findings, but rather on ‘mere conclusory conjecture’ that televised coverage denies the accused a fair trial. Consequently, it is questionable whether the prohibition of television coverage by most federal circuits courts,118 the blanket ban on the televising of some state trial proceedings,119 and other blanket restrictions being made subject to the consent of parties, or unfetterred judicial discretion, or not requiring the establishment of specific evidence,120 would survive a US Supreme Court challenge.

6 Implications of the reliance on media rights The First Amendment has played a significant role in overcoming judicial or legislative resistance to audio-visual reporting of court proceedings. To a lesser extent the admission of cameras into courts in other

116 118 119

120

449 U.S. 560 (1981). 117 752 F. 2d 16 (2d Cir., 1984). See further discussion below chapter 3 F.3. Imposed in some eleven state jurisdictions. See Radio-Television News Directors’ Association and Foundation, Cameras in the Court: A State-by-State Guide (2003), www.rtnda.org/foi/scc.shtml at 30 March 2007. See also ibid.

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common law jurisdictions121 has also relied on similar constitutional or overriding legal protection of freedom of expression.122 Such a focus has arguably created a perception of the debate as a struggle between the interests of the media and the fair administration of justice. In this sense, seeking the admission of television cameras into courts on the basis of media rights, rather than on the basis of such coverage being in the interests of the administration of justice has, arguably, proven to be a two-edged sword. The reliance on media rights has tended to further entrench a traditional and widely held view that the broadcast of court proceedings is a vested interest of the media. This perception arguably flows from the circumstances surrounding the initial prohibitions of camera coverage, and has been reinforced by subsequent media excesses in the reporting of notorious cases. The main danger of televising being seen to be a vested interest of the media is that it reinforces the perception that audio-visual recording and broadcast of judicial proceedings is inherently incompatible with the nature of judicial proceedings. The view that the broadcasting of proceedings is a media interest also flows from the difficulty which courts have in dealing with a medium which they still tend to view as an overly pervasive entertainment medium, which values appearance over substance. The courts’ preference for press reporting may be said to flow not only from television’s traditionally low journalistic status but also from the fact that the principles and rules which regulate court reporting by balancing the open administration of justice with the right to a fair trial were developed in the era of press reporting, and may explain courts’ greater ability to regulate and enforce reporting restrictions on the press. American experiences and those of other countries which had also promoted televising of courts through reliance on legally guaranteed freedom of communication also reveal other negative implications which tend to flow from this issue being perceived almost entirely in terms of media rights. Consequently, being perceived as a vested interest of the media has arguably caused courtroom televising to be permitted only on proof and condition of it not affecting judicial proceedings. In contrast, where 121 122

Perhaps with the exception of Australia, though see discussion below chapter 5 C.1. See chapters 4 and 2 for discussion of s. 2(b) of the Canadian Charter of Rights and Freedoms, art. 10 of the European Convention on Human Rights, and s. 14 of the New Zealand Bill of Rights Act 1990, respectively.

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televising has been considered in terms of its potential to educate, inform and ensure that justice is done, admission of cameras has been less contingent on the cameras’ lack of impact on proceedings.123 While the presence of cameras in courts is seen in terms of media rights, cameras are likely to be denied a presumptive right of access and to continue to be admitted only on conclusive proof that they will not adversely affect proceedings. Though requiring lack of effect appears to be reasonable, such a requirement amounts to a virtual prohibition because evidence as to effects remains, and is destined to remain, inclusive – the reason being that the effect of televising is ascertained from the perceptions of participants and observers and such perceptions are not capable of being conclusively and objectively tested.124 The uncompromising manner in which some media organisations have relied on entrenched rights to gain access to proceedings has arguably forced judges, otherwise favourably disposed to camera coverage, to resist such requests in order to protect competing interests apparently disregarded by the media. In this respect, it is worth noting that where the emphasis has shifted away from freedom of speech towards the right to a public trial, courts have been more willing to consider the admission of cameras.125 Possibly the greatest weakness and danger of courtroom televising being equated with media rights, is that it causes such coverage to be premised on the unsustainable view that the interests of the broadcasting media necessarily and invariably coincide with those of the administration of justice. Consequently, the case for televising suffers a setback every time something occurs that underlines the reality that the interests of justice and the electronic mass media do not always coincide. This undoubtedly is the case whenever televising of court proceedings is discussed largely in terms of media excesses in high profile cases, which also happened to be televised.

7 The First Amendment and the regulation of court reporting The high esteem in which the First Amendment rights and in particular freedom of speech are held in the United States may account for why the link between media rights and the televising of court proceedings is not more actively challenged. It has also led American courts to undertake 123 124

See discussion of Australian illustrations below chapter 7 B.2(a). See further discussion below chapter 7. 125 See e.g., Canada discussed in chapter 4.

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the balancing of the interests of the open administration of justice with the protection of the right to a fair trial involved in the regulation of court reporting through a focus on remedial rather than preventative measures, at least with respect to the press.126 American courts’ reliance on remedial measures to counter prejudicial publicity rather than on the imposition of restrictions on media reporting through sub judice rules, has led to some spectacular reversals of convictions,127 and its wisdom has been questioned judicially128 and by legal commentators,129 perhaps most memorably by Justice Frankfurter, who observed: ‘The court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade.’130 In the absence of a presumptive right to televise, the focus on legal rights may be said to have caused many judges to exercise their discretionary power to deny cameras access to proceedings in an endeavour to minimise the amount of constitutionally validated adverse publicity which they will need to respond to in endeavouring to minimise the prospects of it prejudicing a trial. In so doing, courts appear to be following the advice of Justice Clark, who in Sheppard v. Maxwell stressed that in taking measures to counter prejudicial publicity ‘the cure lies in those remedial measures that will prevent the prejudice at its inception’.131 The New South Wales Law Reform Commission’s 126

127

128 129

130 131

For example it has been said that ‘Prior restraints upon expression are a far more grievous impingement on the First Amendment than are subsequent punishments [for contempt]’: B.C. Schmidt, ‘Nebraska Press Association: an Expansion of Freedom and Contraction Theory’ (1977) 29 Stanford Law Review 431, cited in New South Wales Law Reform Commission, Contempt by Publication, Report 100 (2003), para. 2.53. See chapter 7B.2(e) below for further discussion. See e.g., Estes v. Texas, 381 U.S. 532 (1965); Sheppard v. Maxwell, 384 U.S. 333 (1966); Marshall v. United States, 360 US 310 (1959). See Francois, Mass Media Law, above n. 1; Marc A. Franklin, Cases and Materials on Mass Media Law (1977); Don R. Pember, Mass Media Law (3rd edn, 1987). See e.g., Stroble v. California, 343 U.S. 181, 198 (1952). See David Anderson, ‘Lessons from an Impeachment’ (1999) 1 University of Technology Sydney Law Review 63; Zimmerman, ‘Overcoming Future Shock’, above n. 54, at 641, in which the author outlines restrictions on televising stopping short of blanket prohibition, which would be consistent with First Amendment rights, and thus could be imposed. See also discussion in NSWLRC, Contempt by Publication, Report 100, above n. 126, at paras 2.52–6. Irwin v. Dowd, 266 U.S. 717, 730 (1961). Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).

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commentary on this advice from Justice Clark, illustrates the gap between American and Australian approaches to combating prejudicial publicity. Referring to the above cited passage, the Committee observed: It is ironic that Justice Clark continued his comments by suggesting that trial judges should insulate witnesses from press interviews, should control statements made to the news media by counsel, witnesses, the Coroner and police officers, and should proscribe extrajudicial statements by lawyers, parties, witnesses and court officials which divulged prejudicial matters.132 It seems an incomplete and circuitous, if not contradictory, way of averting prejudicial publicity to suppress the free speech of all the participants in the trial but not the media.133

D Experiences of state jurisdictions 1 Overview In sharp contrast to 1965, when only the state courts of Colorado, Texas and Oklahoma permitted judicial proceedings to be broadcast, all fifty American state jurisdictions currently permit at least some electronic media coverage.134 Only the courts of the District of Columbia prohibit camera coverage of all trial and appellate proceedings.135 As no state jurisdiction totally prohibits electronic coverage of proceedings and press photographs and television broadcasts of American judicial proceedings are frequently seen not only in the United States but worldwide, the impression created is that almost all American courts permit their proceedings to be recorded and broadcast. Such an impression, however, does not accurately reflect the extent to which audiovisual coverage of courts is actually permitted in the United States. The restrictions and guidelines which govern electronic media access to American state courts vary significantly. Thus, for example, trial coverage is restricted to civil proceedings in Maryland,136 and to photography in Utah.137 In Alabama and Minnesota the consent of all

132 133 134

135 137

Ibid. at 361. NSWLRC, Contempt by Publication, Report 100, above n. 126, at para. 2.56. Radio-Television News Directors’ Association and Foundation, Cameras in the Court, above n. 119. Ibid. 136 Rule 16–109, Maryland Rules Annotated (1999). Rule 4–401, Utah Code of Judicial Administration (2000).

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parties is required, while a number of states prohibit television coverage of certain categories of cases, such as sex offence trials.138 In seventeen states electronic media coverage is virtually prohibited either because only appellate proceedings may be recorded139 or because of the very strict nature of restrictions.140 In all state jurisdictions electronic media coverage is permitted at the discretion of the presiding judges. However, in some states, for example Vermont, the discretion is so broad that admission of cameras may be said to be left almost entirely to judicial discretion.141 However, a tendency for judges to exercise their discretionary powers to deny access to the electronic media is not confined to just a few jurisdictions. Even in California, a state in which, to the outside world, courtroom televising is assumed to be routine, judges in some county courts in fact grant ‘as few as 59 per cent of media requests’.142 Access is arguably least restricted in New Hampshire and Florida. In the former state, since December 2002 court rules require trial judges to ‘permit the media to photograph, record and broadcast all courtroom proceedings that are open to the public’.143 A judge may limit electronic media coverage only if there is ‘a substantial likelihood of harm to any person or other harmful consequences’. The New Hampshire Supreme Court ruled in Petition of WMUR Channel 9 on 13 December 2002, that the fear that jurors could be exposed to information that might affect their decisions or the concern that witnesses could hear the testimony of 138

139 140

141 142

143

See Radio-Television News Directors’ Association and Foundation, Cameras in the Court, above n. 119; see also National Center for State Courts, Summary of TV Cameras in the State Courts (2002), www.ncsconline.org/WC/Publications/KIS_CameraPub.pdf at 30 March 2007; New York State Defenders Association, Cameras in the Courts (2005), www.nysda.org/Hot_Topics/Cameras_in_the_Courts/cameras_in_the_courts.html at 30 March 2007. Ten states permit only appellate proceedings to be subject to audio-visual reporting. Such as Alabama’s requirement that all parties and lawyers must consent. See RadioTelevision News Directors’ Association and Foundation, Cameras in the Court, above n. 119. Ibid. Judicial Council of California, Cameras in the Courtroom: Report on Rule 980 (May 2000), p. 1. Revealing how judicial attitudes differ, in late 2002 it was reported that while several judges had barred or severely limited courtroom camera coverage in California, New Hampshire judges were considering adopting a rule automatically admitting cameras into the Supreme Court. See Liz Fong, ‘Judges Restrict Camera Access in Courtrooms’ (2002) 26(4) The News Media and the Law 12, www.rcfp.org/ news/mag/26-4/bct-camsrndu.html at 30 March 2007. Rules of the District Courts of the State of New Hampshire, General Rules, Rule 1.4(a). See www.courts.state.nh.us/rules/dmcr/dmcr-1_4.htm at 30 March 2007.

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other witnesses were not adequate reasons for denying camera access to court proceedings.144 In Florida courts, access is also relatively unrestricted. To deny cameras access to proceedings a court is required to be persuaded that proceedings would be adversely affected because of a ‘qualitative difference’ between audio-visual and conventional media coverage.145 Though televised trials have long become commonplace in the United States, broadcasts of high profile cases still tend to provoke public concern and criticism.146 Such criticism is bolstered by the federal judiciary’s continuing opposition to the admission of cameras into courts.147 While negative reactions to the trial of O.J. Simpson played a significant role in cameras being kept out of federal courtrooms,148 its impact on state courts was mixed. It provoked moves to restrict or prohibit televising in some states.149 While the Supreme Court of Mississippi upheld the state’s ban on in-court cameras in June 1995, Chief Justice Armis Hawkins expressed concern regarding the serious constitutional questions flowing from the denial of electronic media access. In conceding that the restriction was discriminatory, the Chief Justice likened the prohibition to ‘saying to a newspaper reporter that he cannot bring a pad and pencil into the courtroom’ but nevertheless deemed the ban justified until such time as it can be demonstrated that televising a trial has no adverse impact on the courtroom participants

144

145 146

147 149

See Barbara Wartelle Wall, Cameras Allowed at All Open Court Proceedings, New Hampshire Court Rules (2003) Gannett, www.gannett.com/go/newswatch/2003/january/ nw0117-11.htm at 30 March 2007. The decision flowed from the trial of two Vermont teenagers who had robbed and murdered two Dartmouth College professors. The trial judge had denied the media’s request for camera access without a hearing. Florida Rules of Judicial Administration r. 2.170. An example being a discussion on CNN’s Larry King show on 14 August 2003 as to whether the Scott Peterson trial should be permitted to be televised, in which it was suggested that such coverage would be ‘televising the ugliness of the trial’. In discussing the unlikely televising of the Kobe Bryant trial, the Economist suggested that ‘the case may in fact mark the waning of the era of trial by television’. See ‘Kobe in the dock: yet another ‘‘trial of the century’’ is gearing up’, Economist, 18 October 2003, p. 34. See discussion below chapter 3 F. 148 See discussion below chapter 3 D.4 and F.2(c). A Bill seeking to prohibit televising was proposed in Texas, and introduced but not passed in Oklahoma. In Georgia, rules governing televising were amended to incorporate a list of factors to be considered by judges in deciding whether to permit such coverage. The impact the case had in California is discussed below. For a discussion of its effect in Mississippi, California and South Carolina, see ‘‘‘Fair Trial’’ Concerns Prevail Over Camera Access’ (1995) 19(3) The News Media and the Law 11.

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and does not present a danger adversely affecting public opinion and denying the accused a fair trial.150 While some states restricted or threatened to restrict camera access the states of Tennessee and Indiana liberalised electronic media access to the courtrooms in the wake of the O.J. Simpson trial.151 In December 1995 the Tennessee Supreme Court relaxed the rule requiring the consent of a defendant for television coverage of criminal proceedings for an experimental period of twelve months, at the end of which the Supreme Court concluded that the ‘coverage has served the public interest by providing full and accurate information without interfering with or disrupting the fair and impartial administration of justice’.152 The Tennessee Supreme Court Administrative Rule 30, adopted for the experiment, was made permanent from 1 January 1997. In April 1996 the Tennessee Court of Criminal Appeals also recognised ‘a presumption in favour of in court media coverage of judicial proceedings, ruling that any restriction must be supported by substantial evidence’.153 In September 1996, Indiana, which had never admitted cameras into its courts, began an experiment in the Supreme Court. The experiment was deemed a success154 and led to the adoption of a court order permitting oral argument in the Supreme Court and proceedings of the Indiana Court of Appeals155 to be recorded for broadcast. The last two states to prohibit audio-visual coverage of all proceedings were Mississippi and South Dakota.156 In April 2001 Mississippi Chief Justice Ed Pittman began to webcast live oral argument at the Supreme Court. The Court of Appeal followed the lead in August 2001. By December the court announced that a Mississippi Supreme Court Justice would be heading up a committee to study the feasibility of allowing cameras in trials. Following the successful experimentation with the webcasting of Supreme Court proceedings, the Mississippi Supreme Court began to allow media networks to access and broadcast 150 151

152

153

154 156

Associated Press v. Bost, 656 So. 2d 113 (Miss., 1995) cited in ibid. ‘Tennessee Begins Camera Experiment while Others Consider Restrictions’ (1996) 20(1) The News Media and the Law 38. See ‘Facts and Opinions about Cameras in Courtrooms’ (1997) January Court-TV 18, citing Supreme Court of Tennessee Administrative Office of the Courts, ‘Supreme Court Adopts Rule Governing Courtroom Cameras’, News Release, 30 December 1996. ‘Circuit Courts to Determine Camera Coverage of Hearings: State Courts also Rule to Allow Cameras’ (1996) 20(2) The News Media and the Law 34. See Goldfarb, TV or Not TV above n. 1, at pp. 76–7. 155 From 1 September 1997. See further detailed discussion of these jurisdictions in Stepniak, Electronic Media Coverage of Courts, above n. 97, at paras. 4.15, 4.16.

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video and audio recorded by the court. The new rules took effect on 1 July 2003 and became permanent on 9 December 2004.157 South Dakota was the last state to permit cameras into courts, when as part of the Supreme Court’s pilot project, commenced on 1 July 2003, a camera recorded oral argument in the court on 29 August 2001.158

2 State court studies Electronic media coverage of American court proceedings has been the subject of numerous experiments and studies. Over forty states have undertaken formal studies of the effects of cameras in court proceedings. Such studies have repeatedly revealed that fears regarding the impact of televising were either unfounded or capable of being addressed through appropriate regulation. Though the methodology and conclusiveness of the findings of these studies has been questioned by some,159 following closer analysis of collected data,160 evaluators have invariably concluded that the recording and broadcast of court proceedings need not have a significant detrimental impact on courtroom participants or on the administration of justice, and have found declared potential dangers capable of being addressed through appropriate regulations.161 Summing up his analysis of studies undertaken in fifteen states,162 Goldfarb stated ‘In state after state, the results were similar. Initial skepticism was replaced by general acceptance after actual experiences with television.’163 In evaluating the US Federal Court’s pilot project,164 the Federal Judicial Center also examined the findings of twelve key state studies of the effects of television cameras on witnesses and jurors. The 157

158

159

160

161

162 164

For ‘Rules for Electronic and Photographic Coverage of Judicial Proceedings’, see www.mssc.state.ms.us/rules/AllRulesText.asp?IDNum=41 at 30 March 2007. ‘Photographers Enjoy Improved Court Access’ (2001) 25(4) The News Media and the Law 40, 41. See photograph of the televised hearing at 40. See e.g., Dan Slater and Valerie P. Hans, ‘Methodological Issues in the Evaluation of ‘‘Experiments’’ with Cameras in the Courts’ (1982) 30 Communication Quarterly 376; Ralph E. Roberts Jr, ‘An Empirical and Normative Analysis of the Impact of Televised Courtroom Proceedings’ (1998) 51 Southern Methodist University Law Review 621. For an example of an interpretation of data, see outline and discussion of the 1996 California Task Force Survey and Report, below III(D)(4). For an overview of the findings, see Susanna Barber, ‘News Cameras in the Courtroom: A Review of the Empirical Literature’ (1986) 8 Progress in Communication Sciences 177. Goldfarb, TV or Not TV above n. 1, at pp. 64–84. 163 Ibid. at p. 76. See discussion below chapter 3 F.2.

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Center’s report concluded: ‘Results from state court evaluations of the effects of electronic media on jurors and witnesses indicate that most participants believe electronic media presence has minimal or no detrimental effects on jurors or witnesses.’165 The Center noted its surprise to find that state studies confirmed the findings of the Federal Court’s experiment, as they observed ‘it might be expected that the findings of those studies would be more negative than findings from studies focused solely on experiences of participants in civil cases’.166 In setting out a new rule requiring trial judges to ‘permit the media to photograph, record and broadcast all courtroom proceedings that are open to the public’,167 in December 2002, the New Hampshire Supreme Court noted the significance of technological changes: where once cameras were bulky and could cause distraction and take away from the integrity of proceedings, advances in technology now allowed a trial ‘to be photographed and recorded in a dignified, unobtrusive manner’. In support of this view, the court is also reported to have observed that studies conducted by other states had found cameras cause only minimal physical disturbance during trials, and that the ‘psychological effects on participants in the trial of having cameras in the courtroom is not greater than where reporters wait on the courthouse steps with cameras’. In addition, the court is also said to have noted that such studies have found that ‘the advent of cameras in the courtroom improves public perceptions of the judiciary and its processes, improves the trial process for all participants and educates the public about the judicial branch of government’.168 Reinforcing the positive feedback, in looking back on South Carolina’s experiences with cameras and recorders in courtrooms since 1994,169 retired Chief Justice David Harwell observed that ‘[t]he state has not had a single bad experience’.170

165 166 167

168 169

170

Johnson and Krafka, Electronic Media Coverage, above n. 1, at p. 7. Ibid. at pp. 38–9. New Hampshire Supreme Court, Petition of WMUR Channel 9 (13 December 2002), www.courts.state.nh.us/supreme/opinions/2002/0212/wmur156.htm at 30 March 2007; further discussed above chapter 3 D.1. See Wartelle Wall, Cameras Allowed at All Open Court Proceedings, above n. 144. Permitted subject to Rule 605 of the South Carolina Appellate Court Rules. See South Carolina Judicial Department, Appellate Court Rules www.judicial.state.sc.us/courtReg/ listAPPRules.cfm at 30 March 2007. Jay Bender, Cameras in Courts Update, South Carolina Broadcasters Association, www.scba.net/CamerasinCourts.htm at 30 March 2007.

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Though such consistently positive findings have served to reassure jurisdictions and courts considering audio-visual coverage, they have not silenced opponents. It may be said that despite the volume and variety of research undertaken in American courts, evidence as to the effects of recording and broadcasting remains reliant on subjective perceptions,171 and thus destined to remain inconclusive. Despite this impasse, perhaps the most persuasive evidence is to be found in the fact that no state jurisdiction that has experimented with cameras in courts has gone on to totally prohibit such extended coverage.172 In two notable instances, experiments with televising were discontinued, in September 1994 when the United States Judicial Conference voted to discontinue the 1992–1994 federal courts pilot programme,173 and in 1997 when the New York legislature decided not to extend its tenyear experiment in trial courts. However, it is important to note that in both cases the decisions to discontinue the experiments were made in spite of favourable evaluations which recommended a continuation and expansion of the televising permitted during the experiments.174 The experiences of two larger states (California and New York State) and two smaller states (Washington State and Idaho) will be outlined. These state jurisdictions have been chosen for analysis in order to consider recent evaluations of televising and to highlight a variety of distinct issues, concerns and responses.

3 New York State The following discussion of New York State experiences with televising focuses on the 1996–97 evaluation of New York’s experiment with the 171 172

173 174

As the Federal Judicial Center noted, see discussion below chapter 3 F.2(b). Even when in 1997 the New York legislature rejected the recommendations of the Feerick Commission (see New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1) and decided not to renew its ten-year experiment in trial courts, it did not bar cameras from all New York courtrooms. See discussion below chapter 3 D.3. The experiences of federal courts are discussed further below chapter 3 F. The New York legislature rejected the favourable recommendations of the Feerick Commission (see New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1) and the Judicial Conference rejected the favourable findings of the evaluation undertaken by the Federal Judicial Center (see Johnson and Krafka, Electronic Media Coverage, above n. 1). Both are discussed further below chapter 3 D.3 and F.2 respectively.

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televising of trial proceedings. The Report of the findings and recommendations of this evaluation175 records studies undertaken to ascertain perceptions as to the effects of televising. That the New York legislature chose to accept the recommendations of the sole dissenting member of the twelve-member committee reveals the tenuous nature of the link likely to be drawn between the evaluation of experimental televising and the subsequent decision on whether to continue such coverage. A comparison of the majority and minority reports illustrates how the findings of the same studies may be used to support arguments and recommendations for and against the desirability of televising. The minority report is particularly noteworthy as it constitutes the most comprehensive and persuasive case against televising of trial proceedings. Audio-visual coverage of the judicial proceedings of New York State courts has been restricted by section 52 of New York’s Civil Rights Law, enacted by the New York State legislature in 1952. The section prohibits audio-visual coverage of court proceedings, ‘in which the testimony of witnesses by subpoena or other compulsory process is or may be taken’. It had also been constrained by Canon 3A(7) of the New York Code of Judicial Conduct, the terms of which were similar to the American Bar Association’s initial Canon 35.176 The general principles and regulations governing the audio-visual coverage of New York court proceedings is contained in sections 29.1–29.2 of the Rules of the Chief Justice.177 The statutory relaxation of the section 52 prohibition on audio-visual coverage of trials and amendments to court rules have led to New York appeal proceedings being permitted to be televised, and for a ten-year experiment with the televising of trial proceedings to be undertaken between 1987 and 1997. In 1987 the New York State legislature enacted section 218 of the Judiciary Law178 to authorise New York judges to permit television and still camera coverage of civil and criminal trial proceedings for an experimental period of eighteen months from 1 December 1987. In so doing, the legislature noted that: 175

176 177

178

New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1. See discussion above chapter 3 B.4, 5. Code of Professional Responsibility (NYCRR) 29.1–3. See New York State Unified Court System, Rules of the Chief Justice (2004), www.courts.state.ny.us/rules/chiefjudge/29.shtml at 30 March 2007. For a detailed analysis of s 218 see Stepniak, Electronic Media Coverage of Courts, above n. 97, at para. 4.21.

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an enhanced public understanding of the judicial system is important in maintaining a high level of public confidence in the judiciary . . . court proceedings are complex, often involving human factors that are difficult to measure. There may be inherent problems in any court proceedings which could possibly be complicated by audio-visual coverage . . . [T]he Legislature, remaining sensitive to these concerns, hereby determines that, in order to enhance public familiarity with the workings of the judicial system, while not interfering with the dignity and decorum of the courtroom, the prohibition of audio-visual coverage of court proceedings should be modified for an experimental period.179

In December 1987, the Rules of the Chief Justice and the Rules of the Chief Administrative Judge180 to which the Canon 3A(7) was subject were amended to reflect the legislature’s sentiment. Section 131.1 of the Rules of the Chief Administrative Judge states: These rules are promulgated to comport with the legislative finding that an enhanced public understanding of the judicial system is important in maintaining a high level of public confidence in the Judiciary, and with the legislative concern that cameras in the courts be compatible with the fair administration of justice.181

In spite of strong opposition from organisations such as the New York State Defenders Association, which produced a report182 proposing that the experiment not be renewed or alternatively that ‘a defendant’s consent should be a prerequisite to allowing audiovisual coverage of criminal cases’, in May 1989 the legislature extended the experiment for a further two years until 31 May 1991 – a decision at least in part attributable to the overwhelmingly favourable report submitted by Chief Administrative Judge Albert M. Rosenblatt.183 However, as the legislature was unable to reach agreement on a further extension in 1991, the experiment lapsed from 1 June 1991 179

180

181 182

183

As cited in New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1, at p. 183. Formerly the Administrative Board’s Rules. For the text of r. 131, see New York State Unified Court System, Rules of the Chief Administrative Judge (2004), www.courts. state.ny.us/rules/chiefadmin/131.shtml at 30 March 2007. Section 131.01(a) of the Rules of the Chief Administrative Judge. See ibid. See New York State Defenders Association, Cameras in the Courts, above n. 138; Cameras in New York Courtrooms White Paper (1999), www.nysda.org/Hot_Topics/ Cameras_in_the_Courts/03_Cameras_in_NY_Courts_NYSDA_1999_.pdf at 30 March 2007, p. 1; The Intrusion of Cameras in New York’s Criminal Courts, above n. 1. See Goldfarb, TV or Not TV, above n. 1, at pp. 74–5.

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until 1 July 1992, when the experiment was revived. The fourth extension of the experiment, to 30 June 1997, was approved in January 1995.184 This extension followed three reports which had recommended that cameras be permitted in courts on a permanent basis. As required by section 218(9) of the Judiciary Law, a twelvemember committee was appointed ‘to review audio-visual coverage of court proceedings’.185 The committee began its work in June 1996. The following list of methodologies employed in the review underline its comprehensive nature. The committee undertook a written survey to assess the experience of New York judges with cameras in the courtroom;186 commissioned a Marist Institute of Public Opinion survey of New York public opinion on the issue of cameras in the courtroom;187 invited comments from 150 Bar associations on the experiences of their members with respect to each of the five issues of the committee’s study; invited public comment through notices in the New York Law Journal between December 1996 and January 1997; conducted five public hearings between December 1996 and February 1997 which were advertised widely in the media;188 secured and analysed data on the number and kind of proceedings televised and on the frequency of media applications being granted or denied;189 invited television stations to provide samples of televised courtroom footage; gathered information on related legislation in fifty states190 and on the federal courts’ project; reviewed key decisions by the US Supreme Court on this issue and literature on the topic;191 and conferred informally with media scholars, American judges and ‘camera-experienced’ trial lawyers,192 and with a wide variety of interested organisations.

184 185 186

187 188

189 191 192

For further discussion see ibid. pp. 75–6. See s. 218(9) for the Committee’s terms of reference. See New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n 1, Appendix A, p. 93. Ibid. Appendix B, p. 113. In which ‘over fifty witnesses including representatives of the print and electronic media, civil and criminal trial lawyers who had participated in televised trials, judges, crime victim advocates, law enforcement officials, media scholars, and jurors testified’. See ibid. p. 6. Ibid. Appendix H, p. 175. 190 Ibid. Appendix F, p. 157. See selected bibliography in ibid. Appendix K, p. 201. See ibid. Appendix I, p. 191.

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The findings of the committee’s review of the fourth phase of New York’s experiment193 led the majority of the committee194 to make the following recommendations. First, the committee recommended that cameras should be permitted in New York State courts on a permanent basis. In so doing, the committee noted that they ‘did not find any evidence that the presence of cameras in New York cases has actually interfered in a particular case with the fair administration of justice’.195 While conceding that ‘televised coverage may, at times, show the legal system in an unfavorable light’ the committee noted that ‘we do not view that as a detriment. Rather, to the extent that such coverage offers an opportunity for improving the judicial system, we view it as a strength of our democratic system.’196 The committee argued that: the public nature of a trial and the public’s right of access to a trial support the adoption of a law permitting television coverage of court proceedings under the careful control and supervision of trial judges, who must retain their unfettered discretion to determine whether or not to admit cameras to their courtroom, taking into consideration the concerns of trial participants.197

The values which the committee identified from judicial decisions to be served by an open judicial process included ‘promoting confidence in the judicial process, assuring that proceedings are conducted fairly, providing the public with information about the workings of the judiciary, and satisfying the appearance of justice’.198 Secondly, noting the potentially prejudicial effect of camera coverage of bail hearings on prospective jurors, the committee recommended that a defendant’s consent should be a prerequisite for camera coverage of bail hearings.

193

194

195

196

The findings are further discussed below in chapter 7. For my more detailed analysis of the Committee’s review, see Stepniak, Electronic Media Coverage of Courts, above n. 97, at paras. 4.17–79. The majority consisted of a Court of Appeals judge, three law school professors, one other academic, three representatives of the press, a representative of the State Bar Association, a representative of the Television medium and an Assistant District Attorney. New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1, at p. 83. See ibid. p. 84. 197 Ibid. 198 Ibid.

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Thirdly, having found ‘no basis to distinguish such cases’,199 the committee recommended that there should be no separate rules for death penalty cases. Fourthly, while deeming it appropriate to distinguish a non-party witness’s right in a criminal case to insist on having his or her image visually obscured from non-party witnesses in civil cases, the committee urged that ‘given the heightened safety concerns that exist in a criminal trial’, judges should remain ‘specially sensitive and responsive to the needs and concerns of . . . all witnesses’ and should exercise where and if necessary ‘their statutory discretion to protect the witness in civil proceeding who raises a valid privacy or safety concern’.200 The committee also recommended that the Office of Court Administration should actively monitor camera-covered proceedings, make periodic reports and, if necessary, recommend changes in section 218 of the Judiciary Law and the implementing rules. This recommendation is particularly worth noting largely because of the committee’s observation that ‘the development of new technology and new media for the coverage of trials (e.g., the Internet, additional cable networks and programs) make it impossible to say with absolute certainty how these expanded types of coverage will affect trials in the future’.201 Finally, the committee recommended that the Office of Court Administration should develop an enhanced judicial training programme to familiarise all judges with the applicable statutory and administrative provisions and safeguards. In his dissenting minority report,202 committee member and Director of the Neighborhood Defenders Service of Harlem, Leonard Noisette, recommended instead that ‘the Judiciary Law Section 218 experiment be ended and that the statute be allowed to expire on June 30, 1997, so that, as was true from 1952 to 1987, there shall be no audio-visual coverage of New York court proceedings’.203 The main value of the dissenting report is that it constitutes perhaps the most comprehensive, systematic and supported case against audio-visual coverage of judicial proceedings. Noisette asserted that ‘the Committee’s majority report recommendation that cameras should be permitted in New York State courts on a permanent basis is not supported by the findings of its evaluation’.204 199 202

203

204

Ibid. p. 84. 200 Ibid. p. 85. 201 Ibid. p. 86. Leonard E. Noisette, ‘Minority Report’ in New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1, at p. 207. Ibid. p. 211. For a detailed analysis of this dissenting report, see Stepniak, Electronic Media Coverage of Courts, above n. 97, at paras. 4.56–78. Noisette, ‘Minority Report’, above n. 202, at p. 212.

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He also argued that ‘[t]he experiment has failed to prove that cameras in the courts provide a public benefit, significantly enhance public understanding of the judicial process or help to maintain a high level of public confidence in the judiciary’.205 The minority report also argued that ‘the ‘‘openness’’ and ‘‘no instance of prejudice arguments’’ of camera proponents are diversionary and do not deal with the realities of televised coverage of courtroom proceedings and television’s usurpation of individual rights and privacy interests’.206 Instead, Noisette argued that as courts are open without camera access ‘the State of New York certainly should not have a policy of allowing TV cameras in the courts because it’s easier to sit at home and watch the tube than to stand on line at the courthouse for a celebrity trial’.207 Dismissing the argument that TV coverage may be the only information many have about the judicial system, he suggested that ‘[c]itizens should be encouraged to learn about trials by serving on juries when called, as almost all voters are’.208 The Report contains a wealth of data and analysis of several studies including a Judicial Survey,209 a Marist Institute for Public Opinion survey of public opinion,210 an informal survey of experts in the field of jury analysis,211 and a sample monitoring instrument for cameraexperienced lawyers.212 The Report also sets out a table overview of 1996 camera coverage laws of all fifty US states.213 The majority report appears to confirm the positive impact of audiovisual coverage in serving to highlight societal problems.214 It noted that a majority of judges ‘agreed that the presence of television cameras in the courtroom enhances public scrutiny of judicial proceedings’.215 The majority also reported that their findings suggest that ‘there have been educational benefits to the public in general from the state’s experiment with cameras in the courts’.216 Responding to an often-raised argument, the majority suggested that ‘[t]he fact that many view television coverage as a form of entertainment does not deprive it of educational content, since education and entertainment are not mutually exclusive’.217 The majority found their record to support the findings of

205 209

210 214

Ibid. p. 216. 206 Ibid. pp. 227–8. 207 Ibid. 208 Ibid. p. 229. New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1, at p. 93. Ibid. p. 113. 211 Ibid. p. 171. 212 Ibid. p. 190. 213 Ibid. p. 157. Ibid. p. 70. 215 Ibid. p. 69. 216 Ibid. p. 70. 217 Ibid. p. 70.

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studies in other jurisdictions which indicated that the media will act responsibly and will comply with clear and appropriate restrictions.218 While conceding that the Marist poll revealed that a majority of the public would not want a trial televised if they were a party to proceedings or a victim of crime, the majority noted that the evidence in support of the contention that ‘camera coverage may encourage witnesses to come forward’ was only ‘slight’.219 On the issue of public benefit, the majority concluded that ‘the benefits that flow from televised coverage are so important that they ought not to be sacrificed by barring cameras from the courtroom across-the-board’.220 As to the effect of televising on the conduct of courtroom participants, the majority found that their record did ‘not show that fears regarding the impact of cameras on trial participants have been realized, in New York during the experimental period’.221 The majority report noted that ‘Prior Committees, reviewing earlier surveys of judges, lawyers, and other trial participants, concluded that evidence of impact on trial participants was too slight to outweigh the benefits of cameras. The majority of States which permit camera coverage of court proceedings have reached similar conclusions.’222 They concluded that in their judgment ‘if subject to judicial discretion and accompanied by appropriate safeguards for trial participants, audio-visual coverage does not impair the search for justice’.223 The divergence of conclusions between the majority and minority reports underlines the inconclusivess and perception-based nature of evidence. It suggests that conclusions as to the desirability of televising may ultimately depend on which side bears the onus of proof: whether proponents need to conclusively or persuasively establish benefits and an absolute absence of risks, or whether opponents need to conclusively or persuasively establish actual or a real probability of detriment or prejudice flowing from the audio-visual coverage of judicial proceedings. In his dissenting minority report Leonard Noisette states: The overarching problem with the Majority’s assessment of the record is that it presumes that the burden is on those opposed to cameras in our courts to prove the harm they cause, instead of recognizing that camera proponents should be required to demonstrate the benefits that accrue for allowing such access. As such, the conclusions the Majority reaches after its assessment of the record are not consistent with a fair reading of the record or with the statutory history and legislative intent of the experiment.224 218 222

Ibid. pp. 44–5. Ibid. 223 Ibid.

219

Ibid. p. 70. 220 Ibid. p. 70. Ibid. pp. 212–13.

224

221

Ibid. p. 75.

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On that basis Noisette observed that: There has been no study and no empirical evidence that television coverage of court proceedings has met the goals of enhancing public understanding of New York’s judicial system or helping to maintain a high level of confidence in the judiciary. The responses of the judges to the Committee’s Judicial survey (App. A to the Committee’s Report) and of the voters to the December 1996 survey of the Marist Institute for Public Opinion (App. B to the Committee Report) support the contrary conclusion.225

Noisette’s minority report also reveals another reason why difference of opinion as to whether televising has an adverse effect on participants cannot be resolved simply on the basis of evidence. Arguing that the record suggests that ‘television coverage changes the trial atmosphere and the perceptions and conduct of participants and judges’, he added: ‘Even if it were not so, the general perception that it is so can undermine confidence in the courts and the fairness of TV trials.’226 While Noisette clearly saw this as grounds for denying cameras access to courtrooms, it may more persuasively be said to constitute a sound basis for ensuring that televising is introduced incrementally and in a manner that would permit the public to become accustomed to televising in a form which avoids such perceived dangers (such as appellate proceedings) before even considering the televising of trial proceedings. Though it had previously permitted the experiment to lapse for some thirteen months between 1 June 1991 and 1 July 1992, the New York State legislature has failed to renew the experiment since it expired on 30 June 1997. This has caused camera access to New York State courts since 1 July 1997 to be largely confined to appellate proceedings. In the first three years following the New York legislature’s failure to renew the experiment, no cameras were admitted into New York trial courts.227 However, following the successful broadcast of the 2000 Amadou Diallo trial,228 in the course of which New York Supreme Court Justice Teresi ruled that section 52 of the New York Civil Rights Law was unconstitutional because it violated both the First Amendment of the US Constitution and article 1.8 of the New York State Constitution,229 a number of New York trial courts have also permitted 225 227

228 229

Ibid. p. 216. 226 Ibid. p. 233. ‘Controversies Continue over Camera Access to Courts’ (2000) 24(3) The News Media and the Law, www.rctp.org/news/mag/24-3/bct-camsrnd.html at 31 March 2007. People v. Boss, 701 N.Y.S. 2d 891 (2000). See earlier discussion of the constitutional aspects of this decision, above chapter 3 C.5.

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televising.230 Following Justice Teresi’s ruling, Governor George Pataki also unsuccessfully proposed legislation ‘that would allow audio-visual coverage in the courts for 2 years while granting victims and some witnesses broad veto power’.231 While the New York Bar Association’s House of Delegates abandoned its previous opposition to audio-visual coverage of judicial proceedings in March 2001,232 any relaxation of the prohibition of trial coverage continues to be opposed by groups such as the New York State Defenders’ Association,233 and received a significant boost when, as discussed above,234 the constitutionality of the section 52 prohibition was upheld by the Appellate Division in Courtroom Television Network LLC v. State of New York and others.235

4 California The following consideration of the experience of Californian courts focuses largely on the re-evaluation of rules governing televising following the O.J. Simpson trial. It outlines the findings of a survey of judges and notes how the California Judicial Council reconciled the largely negative feedback of judges with its decision to make only minor adjustments to the rules governing televising. Further discussion also notes more recent surveys of televising in California which challenge the popular perception of California as the state where virtually all judicial proceedings are televised. 230

231 232

233 234 235

See e.g., New York v. Davis, No. 99–131 (N.Y. Sup. Ct, Cayuga Cty, 2000) at 21 in which Cayuga County Judge Peter Corning denied camera access to the trial but permitted the televising of the sentencing of Michelle Davis; New York v. Taylor, 284 A.D. 2d 573 (2001) in which Rensselaer County Judge Patrick McGrath permitted the pleas of bank robber Raymond Taylor to be televised on the basis that the s. 52 prohibition only applies to ‘proceedings in which testimony of witnesses’ may be offered. Not all applications for televising have, however, been approved. For example, it has been noted that in New York v. Johnson-Moore, Buffalo trial judge Joseph Forma declined to permit cameras record the sentencing: see ‘Controversies Continue over Camera Access to Courts’, above n. 227. See further discussion of cases in New York State Defenders Association, Cameras in the Courts, above n. 138. Cited in ‘Controversies Continue over Camera Access to Courts’, above n. 227. Andrew Tilgham, Bar Calls for Return of Cameras in Court, 1 April 2001, The Fund for Modern Courts, www.moderncourts.org/News/Cameras/tu4101cic.html at 30 March 2007. See New York State Defenders Association, Cameras in the Courts, above n 138. See discussion above chapter 3 C.5. Courtroom Tel Network v. State of New York, 2004 N.Y. Slip Op. 05386 (1st Dept June 22, 2004).

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Though its courts are most readily identified with televised court proceedings, California has only permitted such coverage since 1978. Concerns regarding disruption caused by some instances of ad hoc televising in the 1950s and 1960s led the Judicial Council of California to adopt Rule 980 on 9 November 1965,236 prohibiting photographing, recording and broadcasting in Californian courtrooms. However in the following year, the Judicial Council relaxed the prohibitions, adopting a temporary Rule 981 at the request of the Assembly Interim committee on Fair Trial and Free Press, enabling the committee to conduct experiments in courtroom photography.237 In December 1978 the Judicial Council approved a one-year experimental programme permitting the photographing and broadcasting of court proceedings in selected courts with the judge’s and parties’ approval. In 1979 a task force known as the Special Committee on the Courts and the Media was appointed by Chief Justice Bird to consider whether broadcasters should be permitted to televise courtroom proceedings, given the improvements in the state of broadcasting technology which had occurred since the prohibition on cameras was instituted. The task force recommended that a one-year experiment be undertaken to examine the feasibility of such coverage under current conditions and circumstances. Consequently the Judicial Council adopted an experimental rule for a twelve-month trial period of film and electronic coverage beginning 1 July 1980. The task force proposed that strict rules govern the trial period.238 While it was conceded that the rules would not be conducive to ‘good television’, a task force member is said to have observed that ‘it was as far as we were willing to go’.239 Perhaps the most notable case broadcast during the initial twelve months of the trial period was the murder trial of alleged mass killer Lawrence Bittaker, which on 4 February 1981 Superior Judge Thomas 236 237 238

239

Adopted effectively 1 January 1966. Judicial Council of California, Fact Sheet: Camera in Court (June 2003). Specifying inter alia that only one video camera operator would be allowed into a courtroom, and would have to be stationed in the back of the court. As it was believed that the US Supreme Court would require a witness to consent to being televised, the consent of witnesses in criminal trials was initially required and only removed on 31 January 1981, following the Supreme Court’s decision in Chandler (discussed above chapter 3 B.8 and C.3. For a discussion of other conditions imposed, see Stepniak, Electronic Media Coverage of Courts, above n. 97, at para. 4.81. Pete Noyes, ‘Court cameras should obey the rules’, Los Angeles Times (Los Angeles), 8 April 1996, p. 73.

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Fredericks granted KNBC permission to televise. The recording and broadcast of the trial was deemed a success: The coverage came off without a hitch. The camera caught Bittaker in a close-up as he testified in his own defense, but most of the time all we saw of the prosecutor and defence attorney was the backs of their heads. It was a breakthrough in the long battle to cover the courts, and no one thought for a moment that the television coverage was flawed.240

The one-year experiment was extended and expanded to make California the first jurisdiction in the United States to conduct a statewide evaluation of its experiences with courtroom televising. The evaluation focused on two major questions: first, whether television cameras would disrupt proceedings, distract trial participants or impair judicial dignity and decorum; and secondly, whether current or prospective trial participants would change their behaviour in a manner which would interfere with the fair and efficient administration of justice because they knew that their presence was or would be recorded for possible later broadcast. The report prepared by Ernest Short and Associates, a professional and independent consultant hired to evaluate the experiment, found the concerns implicit in the questions to be largely unfounded.241 Declaring the experiment a success, in 1984 the Judicial Council announced that television cameras would be allowed into courtrooms at the discretion of judges and adopted Rule 980 of the California Rules of Court, effectively allowing film and electronic media coverage of criminal and civil courtroom proceedings at both trial and appellate level from 1 July 1984. Between 1984 and the mid-1990s, when the televising of high profile cases generated unprecedented media coverage and notoriety,242 the initially imposed restrictions began to be flouted and not enforced by some judges, with cameras no longer confined to the rear of courtrooms but creeping closer to the bench in order to secure a more ‘panoramic’ view of proceedings, it becoming ‘not unusual’ for jurors’ faces to be shown in broadcasts, and trial judges allowing more than one camera 240 241

242

Ibid. Ernest Short and Associates, Evaluation of California’s Experiment with Extended Media Coverage of Courts (September 1981). See further discussion of findings in Stepniak, Electronic Media Coverage of Courts, above n. 97, at para. 4.85, and below chapter 7. In cases such as People v. Simpson, No. BA097211 (Cal. Sup. Ct, 1994) and People v. Menendez, No. BA068880 (Cal. Sup. Ct, 1996).

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into the courtroom.243 Arguably these developments created the circumstances most criticised in the high profile broadcasts of the mid1990s. A drafter of the guidelines remarked that the circumstances were ‘something we on the original Task Force could never have imagined. And I am certain we would never have voted to allow cameras in court had we been able to envision the Simpson trial.’244 In October 1995, immediately following the handing down of the verdict in the O.J. Simpson case,245 Californian Governor Pete Wilson led the public criticism of courtroom televising, calling for a prohibition of courtroom televising in Californian courts.246 Chief Justice Lukas responded by setting up a judicial task force to re-examine the effects of the televising of courtroom proceedings on 27 October 1995. The Task Force on Photographing, Recording and Broadcasting in the Courtroom was asked to evaluate the provisions of Rule 980, which set out the conditions under which electronic media coverage was permitted in Californian courtrooms, and to recommend whether it should be amended. Over a period of five months the judicial task force studying the effects of courtroom televising consulted stakeholders, undertook surveys (including a state-wide survey of judges, public defenders and prosecutor)247 and held public hearings. In its conclusions, the task force acknowledged that the benefit of increased public access to proceedings could be offset by the ‘circus-like’ atmosphere accompanying high profile cases. It noted ‘undisputed media excesses in the coverage of the Simpson case and the perceived impact of the expanded coverage on the trial’s participants’.248 Noting media pressure exerted on Los Angeles judges the task force observed: Los Angeles judges have sometimes directly experienced adverse impacts on their courts from media conduct in the hallways or from reported 243 245

246

247

248

Noyes, ‘Court cameras should obey the rules’, above n. 239, at p. 73. 244 Ibid. People v. Simpson, No. BA097211, 1995 WL 686429 (Cal. Sup. Ct L. A. County, September 27, 1995). In January 1996, Governor Wilson’s attempts to impose a legislative prohibition failed to gain the support required to be considered by the legislature, being defeated (8 to 1) in the Assembly Judiciary Committee. The following month a Bill protecting camera access to Californian courts was passed overwhelmingly (59 to 7) by the legislature. See Administrative Office of the Courts of the State of California, Task Force on Photographing, Recording and Broadcasting in the Courtroom, Report Summary (1996); ‘Rule 980 Task Force Survey of California District Attorneys and Public Defenders’ in Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 9. See Task Force Report, above n. 247, at p. 5.

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intrusions on the privacy of jurors and witnesses. They have been forced to deal with violations of court orders which have adversely affected the conduct of trials or the privacy of witnesses. Trial judges have experienced the phenomenon of media ‘experts’ commenting, nightly in some cases, as to which side won and lost which points in trial, much like coverage of professional football games.249

However, the task force noted that such experiences were largely confined to Los Angeles, noting: From the materials and testimony presented, we may conclude that the Los Angeles experience with high-profile cases is unique in the state. While most counties have experienced some film or electronic media courtroom coverage, few have any experience close to that of Los Angeles, where at any time there may be six or seven truly high-profile cases in progress, all with requests for extended media coverage. The institutional factors of court staff and resources, as well as physical access to court facilities, are all severely impacted by this form of news coverage in that county.250

In seeking the views of the Californian judges on the desirability of televising Californian courtroom proceedings,251 perhaps not surprisingly, the task force identified significant unease, particularly among Los Angeles judges. A clear majority of the 665 judges who responded to the survey indicated that: television cameras should be banned from courtrooms;252 the presence of television cameras in the court impaired judicial dignity and courtroom decorum;253 the presence of the electronic media within the courtroom had affected parties’ rights to a fair trial;254 they would have preferred to have had discretionary powers to decide whether or not to allow television cameras into the courtroom;255 the televising of the O.J. Simpson trial changed their opinion of the value of television coverage of courtroom proceedings;256 and that Rule 980 needed modification.257 Significantly, however, of the approximately 470 judges who had personally experienced courtroom televising, almost all (96 per cent) 249 251

252 256

257

Ibid. p. 6. 250 Ibid. Ibid., see ‘Rule 980 Task Force Survey of California Judges’ Questionnaire in Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 10. 55 per cent. 253 63 per cent. 254 70 per cent. 255 69 per cent. 59 per cent. Of those holding this view, 94 per cent indicated televised court proceedings to be less valuable than before the O.J. Simpson trial. 51 per cent.

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reported that the presence of television cameras did not affect the outcome of the proceedings in any way; more than three-quarters (77 per cent) reported no effect on their ability to maintain courtroom order and control of proceedings despite the presence of the electronic media in the court; 86 per cent reported no decrease in the willingness of persons to serve as jurors due to the presence of the electronic media in the courtroom; and over three-quarters noted that allowing the electronic media to broadcast the courtroom proceedings did not lead to the presentation of unnecessary additional evidence or motions.258 The task force acknowledged that the identified concerns may merely have been indicative of a ‘knee-jerk’ reaction to exceptional circumstances, noting ‘Coming directly on the heels of the O.J. Simpson experience, it is not surprising that judges have more negative ideas about cameras in the courtroom than they did in the early 1980s.’259 The task force noted that, while a majority of judges favoured a ban on the televising of courtroom proceedings, judges who had personally experienced the presence of television cameras in their courts, ‘tended to be less likely to support a total ban’.260 Consequently, by expressly distinguishing the reality of the views expressed by those who had personal experience of cameras in courts, from the negative perceptions of those who had no such personal experience, the task force unanimously held in favour of continued access.261 Ultimately, the task force concluded that much of the opposition to courtroom televising was based on perception and assertion rather than on concrete fact or personal experience. On this basis they rejected a total ban on television cameras in the courtroom as a disproportionate response to ascertained concerns, particularly in view of the ‘ubiquitous role played by the electronic media in contemporary society in informing the general public’.262 Consequently, the task force voted unanimously in favour of maintaining camera access to Californian courtrooms. The task force recommended that: the better approach to resolving the conflict of values presented by the issue of film and electronic media coverage is to modify rule 980 to

258

259 261

262

Task Force Report, above n. 248: see ‘Rule 980 Task Force Survey of California Judges, Summary Results’ in Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 11. Ibid. p. 8. 260 Ibid. See Judicial Council of California, Report by Task Force on Photographing, Recording and Broadcasting in the Courtroom (February 1996). Ibid.

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restrict such media access to those proceedings where the potential for prejudice to the rights of parties and the ability to influence potential jurors is the greatest.263

The additional restrictions on the televising of courtroom proceedings it recommended were that: electronic media be denied access to pre-trial proceedings in criminal cases; civil and criminal trial coverage be limited to matters presented to the trier of fact;264 and that the coverage of spectators in the public gallery be restricted.265 On 17 May 1996, after considering the task force’s final report and recommendations, the Judicial Council of California made a number of changes to laws governing electronic media access to the courts. Among the changes, television coverage of jury selection and conferences between counsel and the bench, jurors and courtroom spectators were specifically prohibited. Although the Judicial Council amended Rule 980 it retained most of the rule’s provisions.266 The amended Rule 980 took effect on 1 January 1997. While judges retained the discretion to permit televising in all areas, the rule listed eighteen factors which the presiding judge should consider, in deciding whether or not to permit television coverage of courtroom proceedings in a particular case.267 Justice Richard Huffman observed: The guidelines are intended to inform judges of issues they should consider in the belief that informed judicial discretion will help address the common concerns for balancing the rights of the public to as much access as possible against the rights of the litigants to have cases decided in a fair and dignified fashion.268

As the task force survey revealed, following the O.J. Simpson case Californian judges had become more reluctant to admit television cameras into their courtrooms.269 In response, the California Judges’ Association instigated a number of training programmes and 263 266

267

268 269

Ibid. 264 Ibid. p. 14. 265 Ibid. For current version of the text of the amended r. 980 see 2007 California Rules of Court, Rule 1.150, photographing, recording, and broadcasting in court, www.courtinfo.ca. gov/rules/index.cfm?title=one&linkid=rule_150 at 7 April 2007. See procedural forms used in ‘Media Request to Photograph, Record, or Broadcast’ and ‘Order on Media Request to Permit Coverage’ in Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 13. (1996) June-July Judicial Council of California Court News. For a discussion of other prominent cases in which television cameras were barred, see Angelique Paul, ‘Turning the Camera on Court TV: Does Televising Trials Teach Us Anything about the Real Law’ (1997) 58 Ohio State Law Journal 655, 688–9.

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conferences to address concerns regarding post-Simpson televising, held by both judges and court administrators.270 The Judicial Council of California also took steps to clarify the amended Rule 980 and to deal with judicial concerns, producing a regularly updated fact sheet on ‘Cameras in Court’,271 and in February 1997 published a booklet of Guidelines for Judicial Officers,272 intended to be used as an aid to ‘understanding and implementing the latest measures governing media presence in the courtroom’.273 A study of the implementation of the revised Rule 980 has also been undertaken. In May 2000 the Judicial Council reported274 that, in the period January 1997 to December 1999, 81 per cent of requests for electronic media coverage were granted. The report also reveals significant variation between state counties, with the percentage of media requests granted ranging from 59 per cent in Fresno to 98 per cent in San Diego. The most popular types of court proceedings for which electronic media access was sought were pre-trial proceedings such as arraignments, pleas and pre-trial hearings accounting for 44 per cent of requests, and post-trial proceedings such as verdicts and sentencing accounting for 16 per cent. Trials themselves only accounted for 12 per cent of the requests. Courts were least likely to grant permission for media coverage of testimony (76 per cent) or trials (77 per cent), while they were most likely to grant permission for bail hearings (90 per cent) and verdicts and sentencing (85 per cent). 270

271

272

273

274

For example, the Media and the Courts: Searching for Balance Conference held in July 1996 included a Mock Rule 980 proceeding video presentation. See conference programme in Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 68. See also Table of Contents and Conference Papers of California Judges Association, paper presented at the 1996 Midyear Conference: Justice in the Public Eye, 26–28 April 1996, Palm Springs, in Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 65. Ibid. Appendix 14 and more recently the above cited June 2003 edition. See Judicial Council of California, Camera in Court: Factsheet (June 2003), www.courtinfo.ca.gov/ reference/4_25media.htm at 30 March 2007. Judicial Council of California Task Force on Photographing, Recording, and Broadcasting in the Courtroom, Photographing, Recording, and Broadcasting in the Courtroom: Guidelines for Judicial Officers (1997), www.courtinfo.ca.gov/reference/ documents/photo.pdf at 30 March 2007. See Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 62. Justice Ronald M. George, Chief Justice of California and Chair of Judicial Council of California, in his preface to Guidelines for Judicial Officers, above n. 272 Administrative Office of the Courts, Cameras in the Courtroom: Report on Rule 980 (May 2000).

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Justice R.D. Huffman, who had chaired the Judicial Council’s Task Force, considers these findings to be ‘consistent with long-standing concerns of the trial courts and the litigants’ and concludes that while: time and further experience will reveal areas where modification of either the rule or the forms may be appropriate . . . it does . . . appear that trial judges are successfully using the broad discretionary powers granted them by the rule. Perhaps the council was right when it concluded that trial judges are the persons in the system best suited to effectively balancing the competing interests in this volatile area. Time will tell.275

5 Washington State Televising of court proceedings in Washington State is considered to illustrate that, particularly in the less populous states, some Amercian state courts have not been content merely to admit television cameras, but have taken active steps to ensure that recordings of the most significant proceedings are made available to the public. Since 1991 camera access to Washington courts has been governed by Rule 16 of the General Rules, Washington Court Rules.276 As the Comment accompanying Rule 16 notes: Before 1991 when GR 16 on ‘Cameras in the Courtroom’ was first adopted, the subject had only been addressed in the Code of Judicial Conduct’s Canon 3(A)(7). The intent of the 1991 change was to make clear both that cameras were fully accepted in Washington courtrooms and also that broad discretion was vested in the court to decide what, if any, limitations should be imposed.

In response to requests by judges, Rule 16 has been amended to provide additional guidance for the exercise of their discretion to permit media coverage. While Washington courts are amongst the most open to the public,277 what sets them apart from most American courts is that 275

276

277

Justice Richard D. Huffman, ‘Trial Judges May Hold Key to Effectiveness of Revised Rule of Cameras in Court’ (1997) November-December Judicial Council of California Court News, pp. 10–11. See Washington Courts, Rule GR 16 Cameras in the Courtroom, www.courts.wa.gov/ court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=gagr16 at 30 March 2007. In sharp contrast to the vast majority of courts, visitors to the Washington courts are invited to take photographs in courtrooms which are not in session.

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the public’s ability to listen and watch proceedings in the Supreme Court is not left to be determined by media interest. Since April 1995, when it broadcast a death penalty case in the Washington Supreme Court, TVW, Washington State’s public affairs network, has recorded and broadcast gavel-to-gavel coverage of Supreme Court proceedings. TVW operates a 24-hour, cable television channel, funded by the state government and private sector grants. Goldfarb recounts that: When TVW began, Heck [the founder of the Company] presumed the courts would resist any participation with the planned network. To his surprise, the administrator of the state courts asked him, ‘Why did you leave us out?’ Heck met with the Supreme Court’s Bailiff, Jack Day, and they quickly and easily worked out ground rules (never written, everything was done with a handshake). The justices unanimously approved the plan.278

Though pool footage is available to other networks from TVW, the Supreme Court permits one additional broadcast camera to record its proceedings, if requested to do so. TVW’s extended coverage of the Washington Supreme Court provides a successful model for publicly funded coverage of court proceedings and for the broadcast and webcast of appellate proceedings.279 TVW’s recording is undertaken using unobtrusive voice-activated cameras operated remotely by TVW in another building: Goldfarb notes that the recording is undertaken ‘so unobtrusively that one attorney was surprised to learn that his argument had been broadcast. The voice-activated cameras are pointed at the speakers’ heads – attorneys arguing, judges questioning; there are no dramatic follow-up shots, nor do cameras zoom in on speakers.’280 While TVW has some 1.3 million subscribers, members of the public may also listen and watch real-time audio and video of TVW’s television signal, archives or live webcasts.281 Revealing the benefits of a public broadcaster covering court proceedings, Goldfarb notes:

278 281

Goldfarb, TV or Not TV, above n. 1, at p. 84. 279 Ibid. 280 Ibid. p. 83. See TVW, Washington State’s Public Affairs Network: Audio and Video, www.tvw.org/ at 30 March 2007.

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This network is not interested in ratings, so it does not select sensational cases, nor does it provide interpretation and analysis. It simply covers deliberations thoroughly, without sound bites or editorial commentary . . . Free access is provided to educational institutions for classroom use, but TVW denies use of its programs for commercial or political purposes . . . A permanent video record is provided to the state archive. Audio records of these arguments are available, live, on the Internet.282

TVW has also recorded documentaries, most notably Supreme Justice, its 1998 ‘Emmy Award winning informative and entertaining look at the inner workings of the state’s highest court by recounting the story of its most dramatic case of the decade – Gardner v Loomis’.

6 Idaho Idaho courts’ experiences with televising are possibly even more typical of smaller US state courts, revealing a long-standing though unheralded experience with televising and a high level of judicial involvement, in part motivated by the need to address the needs of a media lacking court reporting skills and experience. Televising of court proceedings in Idaho courts is governed by Idaho Court Administrative Rules 45 and 46.283 As Chief Justice Linda Copple Trout noted in her 26 December 2000 Order Amending Rule 45: A Cameras in Courtrooms Committee was appointed by this Court on June 24, 1994, to review the issue of cameras in the courtrooms of the trial courts of Idaho and their impact on the court system including witnesses, attorneys, juries and personnel and to make recommendations to this Court. Based on the Committee’s recommendations the Court issued an order permitting cameras in the courtroom on an experimental basis. The Court has received the recommendations from the Committee and the recommendations of the Administrative Conference, based on four consecutive experimental periods of one year each, and has determined to accept the recommendations and make the rule permanent allowing cameras in the courtroom.284

282 283

284

Goldfarb, TV or Not TV, above n. 1, at p. 84. See Idaho State Judiciary, Idaho Administrative Rules, www.isc.idaho.gov/rules/icaridx. htm at 30 March 2007. See Chief Justice Linda Copple Trout, In re Idaho Court Administrative Rule 45, Order Amending Rule (2000), www.isc.idaho.gov/camera2k.htm at 30 March 2007.

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On 29 December 2000 Chief Justice Copple Trout also issued an Order Adopting Rule 46, to govern cameras in the Supreme Court courtroom. At the time Supreme Court proceedings had been televised for over twenty years, the court having first issued an Order permitting extended coverage on 3 September 1980, following a trial period. A similar order was issued on 12 November 1981 with respect to the proceedings of the Court of Appeals. Following two alterations to the Orders in 1995, and a favourable review, the court decided to adopt Rule 46.285 My personal communications with Idaho court administrators and judges286 revealed a challenge which court administrators and judges in small states such as Idaho confront. It appears that such states tend to be used as training grounds for journalists and have few experienced journalists reporting court proceedings. Consequently, in seeking to promote public access to proceedings and greater understanding of proceedings, state courts such as those in Idaho have begun to take an active role in enhancing journalists’ understanding of court processes and judgments. Thus, as well as preparing a thorough yet accessible ‘Media Guide for Reporters’287 and promoting interaction between the courts and the media through the Cameras in Courtrooms Committee, Idaho courts have on occasion also sought to assist reporting by delivering brief judgments orally in court.288

E Streaming or webcasting of state courts While advances in technology have helped overcome problems of disruption and distraction, perhaps even more significantly, new 285

286

287

288

See Chief Justice Linda Copple Trout, In re Adoption of Idaho Administrative Rule, Order Adopting Rule 46 (2000), www.isc.idaho.gov/camera46.htm at 30 March 2007. While resident in Moscow, Idaho, in 2000–01 I had frequent telephone conversations with Patricia Tobias, Administrative Director of the Courts. I also discussed the matter with most Idaho judges and court administrators while attending the Idaho judiciary’s 2001 Clerks/Judges Conference and the Administrative Conference on 30 January 2001 in Boise, Idaho, to present papers on ‘Electronic Media Coverage of the Courts: Issues Confronting Court Clerks and Administrators’ and ‘Judicial Discretion and the Recognition of a Presumptive Constitutional Right to Audio-Visual Coverage’. See Internet Guide to the Idaho Courts (2003), www.isc.idaho.gov/media03.pdf at 30 March 2007. Telephone conversation with Administrative Judge Herndon, 25 January 2001.

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information technology – and in particular, the Internet – is being increasingly utilised by US state courts to provide the public with access to recording of court proceedings. In mid-2006 at least ten American state Supreme Courts streamed audio-visual recordings of oral argument in their appeal proceedings online.289 An additional eight US state Supreme Courts streamed audio recordings of oral argument.290 Several of the state courts, such as the Mississippi Supreme Court, which streams audio-visual footage, began by streaming audio only. While most of the streaming courts provide both live and archived recordings, some, such as New Hampshire Supreme Court, have moved from providing only archived footage to also providing live streaming. The Supreme Courts of Minnesota, Delaware and Vermont continue to restrict public access to archived recordings. While a number of jurisdictions are reported to be considering extending their streaming to trial proceedings, only two courts, the Municipal Court of Ohio291 and the Ninth Judicial Circuit Court of Florida,292 are known to provide live streaming of trial proceedings.

289

290

291 292

Supreme Court of Alaska, www.ktoo.org/gavel/court.cfm viewed 30 March 2007; Florida Supreme Court, wfsu.org/gavel2gavel/ at 30 March 2007; Indiana Supreme Court, www.in.gov/judiciary/webcast/ at 30 March 2007; Massachusetts Supreme Judicial Court, www.suffolk.edu/sjc/ at 30 March 2007; Mississippi Supreme Court, www.mssc. state.ms.us/DocketCalendar/default.asp at 30 March 2007; Minnesota Supreme Court, www.tpt.org/courts/ at 30 March 2007; New Hampshire Supreme Court, www.courts.nh. gov/cstream/index.asp at 7 April 2007; New Jersey Supreme Court, www.judiciary.state.nj. us/webcast/ at 30 March 2007; Washington Supreme Court, www.tvw.org/index.cfm at 30 March 2007 and West Virginia Supreme Court, www.state.wv.us/wvsca/Webcast.htm at 30 March 2007. Supreme Court of California, www.courtinfo.ca.gov/courts/supreme/audio-arch.htm at 30 March 2007; Delaware Supreme Court, http://courts.delaware.gov/Courts/ Supreme%20Court/?audioargs.htm at 30 March 2007; Kansas Supreme Court, www.kscourts.org/supct/sclive.htm at 30 March 2007; Missouri Supreme Court, http://supremecourt.missourinet.com/ at 30 March 2007; North Dakota Supreme Court, www.court.state.nd.us/court/webcasts.htm at 30 March 2007; South Dakota Supreme Court, www.sdjudicial.com/index.asp?category=events&nav=54 at 30 March 2007; Supreme Court of Vermont, www.vermontjudiciary.org/audioindex/index.htm at 30 March 2007; and Wisconsin Supreme Court, www.wicourts.gov/opinions/sora larguments.htm at 30 March 2007. See www.municipalcourt.org/videostreams.asp at 30 March 2007. See www.ninja9.org at 30 March 2007.

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1 Florida Florida’s Supreme Court has pioneered courts’ use of the Internet, setting up the first judicial site293 on the World-Wide Web in 1994.294 Craig Waters, the Deputy Webmaster, Supreme Court of Florida, notes: In October 1997, the [Florida Supreme] Court became the first to put live audio and video of its arguments on the internet295. . . In November 1997 the Court began ‘bouncing’ live audio and video off the Telstar 4 satellite, for free downlink in most of North America. The satellite feed is now extensively used by television news organizations and cable television public access channels, and is available in more than 2 million households.296

As to the motivation for these innovations, he notes that: In early 1996, the Florida Supreme Court for the first time conducted a scientific survey of its customers. The results showed Floridians were unhappy with their judiciary, but for reasons that had less to do with judicial performance than access to courts and court-related information. Floridians, for example, overwhelmingly could not answer basic questions about how courts work. Most had serious misconceptions about the limitations on judicial power . . . The vast majority said they got their information about courts from the news media, though most would prefer to get it directly from the courts themselves . . . The central problem was clear: Information was available but not accessible by most people . . . So the Florida Supreme Court began an unprecedented effort to directly reach out to its customers.297

The motivation for the Florida Supreme Court’s venture in webcasting, spelt out by Craig Waters, is unquestionably one with which virtually all common law courts can readily identify. Reassuringly, the court’s experience also provides guidance to courts who may despair

293

294

295

296

Florida State Courts, www.flcourts.org at 30 March 2007, or see Supreme Court of Florida, Emergency Operations Backup Website, http://firn.edu/supct at 30 March 2007. Craig Waters, ‘Netcasting Court Arguments’, paper presented at Seventh National Court Technology Conference, National Center for State Courts, Florida, August 2001. See National Center for State Courts, Knowledge and Information Services, www. ncsconline.org/D-Tech/ctc/showarticle.asp?id=22 at 31 March 2007. WFSU-TV and Florida Supreme Court, Gavel to Gavel: The Florida Supreme Court Arguments online wfsu.org/gavel2gavel at 30 March 2007, cited in ibid. Waters, ‘Netcasting Court Arguments’, above n. 294. 297 Ibid.

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at the expense. Florida’s webcasting began as a joint venture with Florida State University precisely because: [t]he legislature was far more willing to fund a civic education program than court broadcasts alone . . . The strategy in going to the legislature was that broadcasts would help educate students in the University’s communications and law schools and, in turn, would be used in public schools to help educate large numbers of students about the law.298

The extent to which the Florida Supreme Court has succeeded in reaching the public is underlined by Waters’ recounting that ‘[o]ne of the two duplicate Websites maintained on a server owned by the Court is accessed more than 7 million times a year’.299 Not surprisingly, he notes that public demand for webcast proceedings is so high, that high profile cases often test the server’s maximum capacity.300 In addition, the court’s satellite transmissions301 enable over three million Florida households to view Florida Supreme Court proceedings on local cable channels. The Florida Supreme Court’s webcasting and satellite transmissions have also been welcomed by the media. At the same time as the court began to counter public misconceptions regarding it, it also began to address reporters’ misconceptions through proactive press programmes. In this respect, Craig Waters suggests that ‘direct, unedited television broadcasts . . . have helped deal with both public and media misconceptions’.302 He points out that: News media who once could only read secondhand reports of court cases now watch them on the Web. These have included editorial page writers and reporters with low budget news organizations that cannot afford to travel to the capital. Television news routinely uses satellite broadcasts.303 And even reporters who come to court for arguments report that they use

298 302

303

Ibid. 299 Ibid. 300 Ibid. 301 Discussed immediately below. Hamish Cameron, Interview with Craig Waters, Director of Public Information, Supreme Court of Florida (conducted by email, 22 September 1999). See transcript of interview in Hamish Cameron, ‘The Televising of Court Proceedings in Australia’, paper submitted in the partial fulfilment of the requirements for the Research Project at the University of Technology, Sydney, Spring Semester 1999, Appendix 3. The court’s webpage notes that ‘broadcasts of oral arguments are provided free of charge to local cable systems, though the Court has no control over whether or when these systems will use the broadcasts’: see Florida Supreme Court, Court Arguments in Video and Audio and Satellite Downlink, Supreme Court Public Information, www.floridasupremecourt.org/pub_info/index.shtml at 30 March 2007.

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the archived cases – typically available the same afternoon – to check the accuracy of their quotations and their impressions of arguments. By the same token, reporters who get information wrong in their news accounts can be shown that they made a mistake, rather than simply being told . . . the result has been not merely greater coverage of the Court, but also more positive and more accurate reporting.304

The Internet has been shown to alter not only who broadcasts proceedings but to ensure the provision of an entirely different form of coverage than that provided by television news media. Arguing that the fifteen to thirty seconds allocated for a single news item in the United States does not permit the conveyance of the gist of even relatively simple court cases, Waters also maintains that ‘prior to the Florida Supreme Court’s complete and unedited broadcasts television news articles about court proceedings were often rife with errors and created serious public misconceptions’.305 The ‘complete and unedited’ webcast of proceedings, on the other hand, Waters maintains: lessens the impact of errors and misconceptions created by the limitations of television news. It allows me to readily demonstrate when a news account is wrong. It puts the press on notice that errors or slanted coverage can be easily exposed. And it allows the Court to reach the public directly without the media middleman.306

At a very practical level, by recording their own proceedings, courts avoid potential disruption. The Florida Supreme Court does this by using its own cameras and audio recording equipment. The broadcast quality audio-visual feed can be accessed by the public and media via satellite or from the court’s press room.307

2 Indiana Indiana courts currently stream all oral arguments in cases before the Supreme Court and from selected cases before the Court of Appeals and Tax Court.308 The Supreme Court has streamed audio-visual recordings of its oral arguments since it installed new technology in 2001. While the 304 305

306

307

Ibid. See Cameron, ‘The Televising of Court Proceedings in Australia’, above n. 302. Cf. discussion of the same issue in the Canadian context set out below chapter 4. Ibid. See also Daniel Stepniak and Paul Mason, ‘Court in the Web’ (2000) 25(2) Alternative Law Journal 483. Ibid. 308 See www.in.gov/judiciary/webcast/ at 31 March 2007.

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court currently provides live and recorded streams and allows the media to record video and audio directly from the court’s recording equipment, the public is not permitted to record or download online recordings. Because Indiana does not have a public broadcaster, the equivalent of the Florida Channel or Washington State’s TVW, there is far greater public reliance on the Indiana court’s streaming. This has caused the Supreme Court’s webcasts frequently to dominate ‘the ‘‘top 20 list’’ of all Indiana webcasts in terms of viewers’.309

3 Massachusetts Massachusetts is said to be ‘the most watched state to webcast’ court proceedings.310 Live and archived recordings of oral arguments from the Supreme Judiciary Court are made available to the public from a webpage maintained by Suffolk University Law School.311 About 1,000 viewers are said to have logged onto the first public webcast of the Supreme Judiciary Court in May 2005. In 2006 the court was planning to add information links, and to offer archived copies of oral argument. It also proposes to increase the website’s capacity in order to cater for up to 1,200 viewers at any time.

4 Ohio Since 2004, the Supreme Court of Ohio has streamed live and archived video of all its oral arguments.312 In 2006, the court was considering ‘podcasting’, which would make online video recordings downloadable. In so doing the court was considering prohibiting commercial and political use of its recordings, although it is questionable whether it has the authority to restrict the use of what is likely to be deemed to be on the ‘public record’.

5 Other state courts Other state Supreme Courts which webcast their proceedings include the New Hampshire Supreme Court, which has streamed live and 309

310

311 312

Elizabeth R. Osborn and Robert Craig Waters, ‘Education Session Article’, www.ncsconline.org/D_Tech/ctc/showarticle.asp?id=61 at 31 March 2007. Andrew Brenner, ‘Streaming from Alaska to Florida’ (2005) 29(2) The News Media and the Law 31. See www.suffolk.edu/sjc/ at 31 March 2007. See www.sconet.state.oh.us/videostream/archives/2007 at 31 March 2007.

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recorded oral arguments since October 2005;313 the Minnesota Supreme Court, which commenced streaming audio-visual recordings of oral arguments in October 2005;314 the Supreme Court of Missouri, whose webpage offering live and archived audio streaming is ‘hosted and maintained for the court by Learfield Communications’;315 and the Supreme Court of California, which permits audio streaming whenever the Court approves television coverage of its proceedings. West Virginia’s Supreme Court of Appeals has also webcast its oral arguments since September 2001.316 The Supreme Court of Arizona is currently considering providing delayed streaming of audio recordings of oral argument on its website.

F Experiences of US federal courts 1 Background In sharp contrast to US state courts’ embracement of courtroom televising, US federal judges remain overwhelmingly opposed to the introduction of cameras. An examination of federal court experiences is nevertheless valuable in view of the informative findings of the federal courts’ 1992–94 experiment and the insight provided by examining the grounds of opposition put forward by federal judges, especially by the Justice of the Supreme Court of the United States. As discussed earlier, cameras were banned from federal criminal proceedings in 1946 when Congress enacted Rule 53 of the Federal Rules of Criminal Procedure, which prohibited the taking of photographs and radio broadcasting of criminal trials in the federal courts.317 The ban was extended to all federal court proceedings when in 1972 the Judicial Conference of the United States enacted Canon 3A(7) of the Code of Conduct for US Judges, prohibiting ‘broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto’.318

313 314 315 316 317 318

See www.courts.nh.gov/cstream/index.asp at 8 April 2007. See www.tpt.org/courts/ at 31 March 2007. See http://supremecourt.missourinet.com/ at 31 March 2007. See www.state.wv.us/wvsca/Webcast.htm at 31 March 2007. See discussion in Sasaki, ‘Electronic Media Access’, above n. 33. Johnson and Krafka, Electronic Media Coverage, above n. 1, at p. 3; Cohn and Dow, Cameras in the Courtroom, above n. 1, at p. 112.

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However, in view of technological advances, reassuring experimentation in state courts319 and the Supreme Court’s decisions in Richmond Papers320 and Chandler,321 the Judicial Conference also moved to reassess its attitude towards audio-visual coverage of proceedings. In October 1988, Chief Justice Rehnquist appointed an Ad Hoc Committee on Cameras in the Courtroom. In September 1990, the Committee recommended a relaxation of the existing prohibition so as to allow a limited three-year experiment with television cameras covering a limited range of federal proceedings in selected federal courts. The Judicial Conference of the United States adopted the Ad Hoc Committee’s recommendation and approved a three-year pilot programme allowing electronic media coverage of civil proceedings in selected federal trial and appeal courts, subject to guidelines which would be approved by the Conference itself. To facilitate such an experiment, the Judicial Conference struck the prohibition on televising from the judicial Code of Conduct and adopted the following new policy which was published in the Guide to Judiciary Policies and Procedures: A Judge may authorize broadcasting, televising, recording or taking photographs in the courtroom and in adjacent areas during investitive, naturalization, or other ceremonial proceedings. A judge may authorize such activities in the courtroom or adjacent areas during other proceedings, or recesses between such proceedings, only: a. b. c. d. e.

319

320 321 322

for the presentation of evidence; for the perpetuation of the record of proceedings; for security purposes; for other purposes of judicial administration; or in accordance with pilot programs approved by the Judicial Conference.322

And especially the 1978 Conference of State Chief Justices’ resolution ‘advocating state experimentation with camera coverage’: see Goldfarb, TV or Not TV, above n. 1, at p. 24. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 564 (1980). 449 U.S. 560 (1981). See Administrative Office of the US Courts, Background on Cameras in the Federal Courts, www.judges.org/nccm/research/court_media_rules/admin_office_u_s_cts_cameras.htm at 31 March 2007.

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2 The Federal Courts’ Pilot Programme (a) Scope and framework of the Pilot The United States’ federal courts’ experiment with courtroom televising took the form of a three-year pilot programme, from 1 July 1991 until 31 December 1994. The admission of cameras was limited to civil proceedings in several courts which volunteered to participate: US Courts of Appeal for the Second and Ninth Circuits and the US District Courts for the Southern District of Indiana, District of Massachusetts, Eastern District of Michigan, Southern District of New York, Eastern District of Pennsylvania and the Western District of Washington. The guidelines put in place by the Judicial Conference to govern the televising of courtroom proceedings during the pilot project323 required reasonable advance notice to be given, prohibited the identification of jurors, restricted media presence to one television and one still camera in trials and two television cameras and one still camera in appeal hearings, required the media to establish pooling arrangements and vested judges with non-justiciable discretionary power to regulate such coverage. Between 1 July 1991 and 30 June 1993, the courts received 257 applications seeking permission for camera coverage, of which 72 per cent were approved, 16 per cent rejected and the remaining 12 per cent not acted upon.324 Television coverage was the most common form of media coverage undertaken during the pilot project, while alleged violations of civil rights and tort actions seeking compensation for personal injury were the most common types of cases recorded by cameras. While most recordings were undertaken by local television stations for broadcast in news broadcasts, some thirty-two proceedings were subject to extended coverage by dedicated courtroom networks such as CourtTV and C-Span. While judges were not required to give reasons for denying or further restricting electronic media coverage during the pilot programme, in some cases judges did indicate that permission had been refused because they felt it would not be in the interests of justice, or because of the 323

324

‘Guidelines for the Pilot Program on Photographing, Recording, and Broadcasting in the Courtroom’, see Johnson and Krafka, Electronic Media Coverage, above n. 1; Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 15. Ibid. p. 9.

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sensitive nature of cases, objections by a party or witness, or because media applications were late.325 Cameras recorded a number of controversial cases, including a challenge of Guam’s restrictive abortion laws; a sex discrimination suit against Boeing; a pre-trial hearing involving alleged police brutality in relation to AIDS protesters; and a smoker’s suit against a tobacco company.

(b) Evaluation The pilot programme was evaluated by the Federal Judicial Center, the Judicial Conference’s research arm. The methodology employed encompassed questionnaires, interviews and content analysis of broadcasts. Questionnaires were sent to participating and non-participating judges of participating courts before and a year after the commencement of the project. Judges were asked to express their views on positive and negative effects on witnesses, jurors, counsel and themselves and to compare the effects of electronic media with conventional media coverage. Trial judges generally reported that electronic media had little effect on participants.326 Judges who personally participated were found to be more receptive to further televising of courtroom proceedings, and less likely to observe the incidence of potential negative effects from such coverage than they had anticipated.327 Overall, trial judges’ disposition towards the televising of civil cases was found to be significantly more favourable at the end of the pilot programme proceedings. Thirty-six judges who presided over trial proceedings were more favourably disposed towards the televising of courtroom proceedings in general after the project than before it began, while sixty-one retained the same view on such coverage. In contrast, appellate judges were found to have generally experienced little or no change in their perceptions of the effects of the televising of courtroom proceedings after the pilot.328 However, the overall attitudes 325 326

327

328

Ibid. p. 10. Johnson and Krafka, Electronic Media Coverage, above n. 1, at pp. 14–15 Table 2. See Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 17. See Molly Treadway Johnson, Electronic Media Coverage of Courtroom Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals, Report of the Federal Judicial Center to the Committee on Administrative and Case Management of the Judicial Conference of the United States (4 November 1993); Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 19. Johnson and Krafka, Electronic Media Coverage, above n. 1, at p. 17 Table 3; Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 18.

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of appellate judges were also favourable. Nine judges were found to have a more favourable attitude towards such coverage after the programme, while the attitudes of sixteen other judges remained unchanged. The questionnaires appeared to disclose that judges’ attitudes towards courtroom televising of court proceedings are likely to either remain the same or become more favourable following personal experience with courtroom televising. Two years after the commencement of the pilot, questionnaires were also sent to lawyers representing parties in 100 cases covered by the electronic media under the pilot project,329 of whom 109 (58 per cent) responded. Of counsel who responded, 109 (66 per cent) indicated that they ‘somewhat’ or ‘greatly’ favoured electronic media coverage of court proceedings, while 13 per cent or fourteen counsel expressed no opinion on this form of coverage. Mirroring the experiences of judges, 28 per cent of responding counsel reported that they were more in favour of such coverage after experiencing televising under the pilot programme than before, while seventy-one out of the 104 who responded to the same question indicated that their opinions on the subject had not changed. Significantly, some 97 per cent of counsel polled reported that camera presence in the courtroom had no effect on the proceedings at issue. Three counsel even reported that the presence of television cameras in the courtroom had increased the fairness of the proceedings. Supplementing the questionnaires, the Federal Judicial Center also conducted telephone interviews330 with twenty federal judges who had had the greatest amount of experience with televising, with representives of participating media organisations and with court staff who administered the pilot programme. The interviews revealed that while judges regarded the potential for educating the public on how the courts worked as the greatest potential benefit of courtroom televising, and saw such a benefit as able to be more fully realised by electronic media coverage of the courts than under traditional print media reporting of cases, most found that during the pilot programme this potential educational benefit had in fact been realised only to a small extent, or even not at all. The reason for this discrepancy was explained in terms of the educative function of electronic media reporting being best served 329

330

See Johnson, Report of the Federal Judicial Center, above n. 327; Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 19. See Johnson, Report of the Federal Judicial Center, above n. 327; Stepniak, Electronic Media Coverage of Courts, above n. 97, Appendix 21.

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through extended coverage, rather than through the use of ‘brief snippets’ which had been most commonly utilised by media networks. Some judges also expressed concern that limited coverage could distort or misinterpret the nature and conduct of judicial proceedings, though they generally did not feel that this problem had in fact materialised under the programme. Most of the surveyed judges did not observe any adverse effect of the presence of cameras on witnesses or jurors. Two judges noted that jurors ‘noticed cameras for the first few moments of a trial, then ignored their presence’, while a presiding trial judge who had spoken to jurors after a trial, was able to report that ‘The jurors were not concerned about the camera, and the result was not ‘‘out of line’’.’331 Most judges perceived electronic media coverage to have had either a ‘positive’ effect or ‘no effect’ on counsel or themselves. Some judges noted that they tended to be more courteous to counsel appearing before them, and that the coverage had made them more vigilant regarding proper courtroom procedure during proceedings. Only one judge reported that the presence of the electronic media in the court had negatively affected the dignity and decorum of the courtroom in that counsel ‘played to the TV’, and put forward ‘overzealous and exaggerated’ submissions.332 Similarly, only one judge deemed the presence of cameras to have the potential to affect the administration of justice, suggesting that the click of a still camera could inadvertently put ‘an exclamation point on certain testimony’.333 A majority of judges also expressed the view that audio and video access to the courts had enhanced news coverage of the affairs and proceedings of the court, deeming electronic media coverage to be somewhat more beneficial and realistic than traditional, conventional print media coverage. Approximately half of the judges thought that the electronic media was not well informed about the general nature of the subject which they were reporting – the workings of the courts, the operation of the legal system, proper trial procedure and legal terms and technicalities. Interviews reinforced the questionnaire findings. Consistent with the judges’ questionnaire results, interviewed judges indicated that their views towards electronic media access to the courts remained the same or improved after personal experience of electronic media coverage.334

331

Ibid.

332

Ibid.

333

Ibid. p. 27.

334

Ibid. p. 28.

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Media representatives were generally very pleased with their experience of electronic media coverage of courtroom proceedings under the federal courts’ pilot programme, with a majority advising that their organisations now reported federal courts’ proceedings much more frequently than was the case before the pilot programme.335 With the exception of two minor disruptions to proceedings, the courts’ administrators noted that the media had been very cooperative in complying with their requests, and those of the court. Some administrators suggested expanding the electronic media access to criminal proceedings. By revealing the crucial role which court information officers play in promoting media coverage the pilot program also served to underline that the electronic media can only report on cases of which they are aware. The Federal Judicial Center observed that: Most media representatives learned about proceedings that might be considered for coverage through media coordinators . . . [and] said that the media coordinators played an important function in keeping the media abreast of interesting cases – indeed several suggested that media coverage would undoubtedly be increased by the presence of this type of coordinator for each court.336

The content analysis of broadcasts focused on ninety news stories from various media organisations. The Federal Judicial Center found that in news stories about proceedings that had been covered under the programme, courtroom footage occupied an average of 59 per cent of the air time of such reports, ranging from 20 to 97 per cent. Air time given to statements by participants was found to favour statements supporting the plaintiff (42 per cent to 27 per cent). Similarly, visual presentations favoured plaintiffs (30 per cent to 20 per cent). The Federal Judicial Center found no correlation between the percentage of courtroom footage used in a story and the extent to which a case was comprehensively presented, concluding: ‘It would appear from viewing the tapes that the participants’ comments frequently added color or emotion rather than substance to the discussion.’337 The Center also found that stories obtained by the electronic media through their access to the federal courts did not provide a high level of detail about the legal process in the cases involved, and noted that increasing the proportion of courtroom footage used in a story did not appear to 335 337

Ibid. p. 30. Ibid. p. 35.

336

Johnson and Krafka, Electronic Media Coverage, above n. 1, at p. 29.

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significantly increase the information broadcast about the legal process.338 While the Center conceded that the news stories presented did a fairly good job of providing information to viewers about the specific cases, they concluded that electronic coverage did a poor job of informing viewers about the legal process generally.339 The Federal Judicial Center expressly noted certain limitations of its evaluation, observing that its evaluation of the experiment effectively measured the perceived, as opposed to actual, effects of electronic media coverage of the judicial proceedings in question on participants. The Center argued that the only way to identify the actual effect of the televising of courtroom proceedings on participants would be to repeatedly compare the behaviour of participants in two virtually identical cases, one subject to electronic media coverage, the other to conventional media coverage. This, the Center suggested, was a practical impossibility. Deeming participants with little courtroom experience, such as most witnesses and jurors, to be unable to form accurate and informed judgments about the effects of television coverage of the proceedings on themselves, the Center chose not to assess the effect of televising as perceived by witnesses and jurors.340 The favourable evaluations by judges were also qualified by noting that all participating judges had volunteered to be involved and consequently could be expected to be more favourable towards the electronic media coverage of court proceedings.341 The recommendation of the research team was that federal court judges should be given the discretion to allow camera access to civil proceedings. While the Center also recommended that the guidelines which governed the pilot programme should become the permanent regulations, they urged that two television cameras be permitted in both trial and appellate proceedings and that a standard procedure be developed for informing counsel (or a party appearing pro se) that an application for electronic media coverage of the proceedings in question had been received.342

338 341

342

Ibid. 339 Ibid. p. 36. 340 Ibid. p. 8. Ibid. For the findings of an earlier study of federal judges’ attitudes towards electronic media coverage of court proceedings, see Sasaki, ‘Electronic Media Access’, above n. 33. See Johnson, Report of the Federal Judicial Center, above n. 327; Johnson and Krafka, Electronic Media Coverage, above n. 1, at pp. 43–6.

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(c) Judicial Conference’s rejection of the findings The Committee on Court Administration and Case Management (the policy-making arm of the Judicial Conference) postponed its decision on whether to allow proceedings in the federal courts to be televised on a permanent basis, recommending that the programme be extended for a further six months. It also requested the Judicial Center to provide additional information in a supplementary report.343 However, in September 1994, three months before the pilot programme’s conclusion on 31 December 1994, the Judical Conference, by a majority of two to one, voted to keep cameras out of federal courtrooms. It also declined to approve a proposed amendment of Criminal Rule 53, which would have allowed cameras into federal criminal proceedings. In declining to accept the recommendations to make the pilot programme permanent to extend it to all federal courts, or to consider including the coverage of criminal as well as civil cases, the Judicial Conference may be said not only to have rejected the recommendations but also to have implicitly rejected the findings of the Federal Judicial Center’s evaluation.344 As federal judges who sponsored the pilot project had proclaimed it a success, the decision was unexpected. As one of many vocal critics, the Chairman of the Association of the Bar of the City of New York, Floyd Abrams, described the decision as ‘disappointing and unjustified’.345 While no official reason was given for the decision, a number of reasons have been put forward as explanations for why the Judcial Conference decided to discontinue the experimental admission of cameras into federal courts. It has been suggested that some of the judges were concerned at what they saw as an ‘intimidating effect of cameras on some witnesses and 343

344

345

See Molly Treadway Johnson, Electronic Media Coverage of Courtroom Proceedings: Effects on Witnesses and Jurors, Supplemental Report of the Federal Judicial Center to the Judicial Conference Committee on Court Administration and Case Management (18 January, 1994). See discussion in Goldfarb, TV or No TV, above n. 1, at p. 88. As Judge Edward Becker, Chief Judge US Court of Appeals for the Third Circuit, asserted in his testimony before the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, 6 September 2000 hearing on ‘Allowing Cameras and Electronic Media in the Courtroom’. See ‘Defense News’ (2000) 67 October Defense Counsel Journal 429. Letter to Editor, ‘The public needs TV to oversee the courts’, New York Times (New York), 26 September 1994.

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jurors’ – suggesting that witnesses might feel chilled or intimidated by the presence of cameras.346 Reflecting fears based on potential risks rather than the minor concerns revealed by the pilot programme, Judicial Conference spokesman David Sellers observed: ‘Any possible negative impact on jurors and witnesses, no matter what magnitude, justifies denying electronic media coverage.’347 In response a commentator observed that it ‘makes little sense to let the problems of a few cases determine the policy for all’.348 In this respect, the Judicial Conference appears to have selectively relied on some findings of a study of televised state trials conducted in Florida, which found that 29 per cent of witnesses expressed some concern about being harmed as a result of having appeared on television. What inferences drawn from this finding appeared to overlook was that the same study had revealed that a nearly identical 28 per cent of Florida witnesses reported the same concern in relation to traditional and conventional newspaper and print media coverage.349 It has also been suggested that some judges were dismayed at the nature of the footage broadcast – in particular that footage had often been used as file footage to accompany a reporter’s commentary – a factor which offended some judges and caused them to suggest that such footage affected the court’s dignity.350 In response a critic observed: ‘The fact that cameras are not always as useful as they might be is no excuse to prevent them from ever contributing to public understanding.’351 Concern was also expressed that state judges (even if not elected, as most US state judges are)352 may be influenced by the media coverage to make popular rather than legally justified decisions.

346 347

348 349

350

351 352

See discussion in Noisette, ‘Minority Report’, above n. 202, at p. 215. Editorial, ‘Kicking cameras out of courtrooms’, Chicago Tribune (Chicago), 23 September 1994. Ibid. See discussion in Norman Davis, ‘Television in our Courts: the Proven Advantages, the Unproven Dangers’ (1980) 64 Judicature 85, 91. See Linda Greenhouse, ‘Disdaining a sound bite, federal judges banish TV’, New York Times (New York), 22 September 1994. See also discussion and other responses cited in Goldfarb, TV or Not TV, above n. 1, at p. 88. Editorial, above n. 347. ABA Commission on Separation of Powers and Judicial Independence, An Independent Judiciary Report of the ABA Commission on Separation of Powers and Judicial Independence (1997), ch. 5.2(5B), www.abanet.org/govaffairs/judiciary/report.html at 19 April 2005.

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Criticism of the excessive media coverage of the O.J. Simpson case clearly played a significant role in the US Judicial Conference’s decision, being cited by some judges as proof positive of the need to keep cameras out of the courtroom. Judge Richard Arnold recounts: ‘I saw . . . in the Judicial Conference when we considered the issue, that the Simpson case had a big emotional impact on federal judges. It was Exhibit A for those who were arguing against the cameras.’353 The Judicial Conference appeared to dismiss the view that in the Simpson case the presence of in-court cameras provided the only steady and reliable source of information about the case. Equally, the Conference appeared not to accept that factors such as the behaviour of lawyers and the media outside the court, the defendant’s wealth, fame and race would have ensured sensationalist media coverage regardless of the presence of television cameras in the courtroom.354 On this point, former US Attorney-General Richard Thornburgh observed: I was in the [O.J. Simpson trial] courtroom a couple of weeks ago, and my colleagues will be pleased to know it wasn’t really much different from any other courtroom that we try cases in. The judge, the jury, the witnesses, the spectators – all of the circus atmosphere – is created outside the courtroom and doesn’t affect the jurors in any way. And the camera was very unobtrusive.355

3 Partial readmission of cameras into federal courts Due in part to the strength of the criticism of the decision to discontinue the experiment, in June 1995 the Committee of Court and Case Management recommended that the experiment be extended. Thirteen out of fifteen Chief Justices of Federal Appeal Courts urged that appeal courts be opened to cameras. On 4 March 1996, Judge Ward of the Southern District of New York allowed Court-TV to televise the oral arguments in the case of Marisol v. Giuliani.356 In so doing he permitted cameras into a federal court for the first time since the pilot programme ended in 1994. Judge Ward’s ruling appeared to confirm that each federal district is empowered to make its 353 354 355

356

Arnold and Merritt, ‘Justice by the Consent of the Governed’, above n. 4, at 80. For further discussion see Goldfarb, TV or Not TV, above n. 1, at p. 14. Charlie Rose, 23 June 1995, cited in ‘Facts and Opinions about Cameras in Courtrooms’, above n. 152. 95 Civ. 10533, 929 F. Supp. 660, 662 (1996).

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own rules about camera coverage of its proceedings in federal cases of a civil nature, the Federal Court Rules of the Southern District of New York giving Judge Ward the discretion to make such a decision. While recognising that the policy of the Judicial Conference had to be given considerable weight in any decision as to whether or not to televise proceedings in the federal courts, Judge Ward found that the profound social, political and legal issues raised by that case made it appropriate for broadcast.357 No doubt prompted by Judge Ward’s decision on 12 March 1996 the Judicial Conference narrowly adopted358 a resolution that: ‘Each court of appeals may decide for itself whether to permit the taking of photographs and radio and television coverage of appellate argument, subject to any restrictions in statutes, national and local rules and such guidelines as the Conference may adopt.’359 At the same time the Conference is said to have urged each circuit judicial council to adopt an order reflecting the September 1994 decision not to permit radio and television coverage of proceedings and in an apparent response to Judge Ward’s ruling urged the abrogation of local rules conflicting with this decision.360 In spite of this recommendation television cameras have continued to be admitted into some federal courtrooms.361 The two US Courts of Appeals which participated in the pilot – the Second362 and Ninth363 Circuit US Courts of Appeals – chose to allow coverage of civil proceedings.364 The Fifth365 Circuit US Court of Appeals, on the other hand, decided against the admission of cameras.366 It is interesting to note that the Seventh Circuit US Court of Appeals in Chicago also provides public access to audio archived recordings of oral argument.367 357 358 359

360

361 362 363

364 365 366

367

For further discussion see Goldfarb, TV or Not TV, above n. 1, at pp. 89–90. The vote was fourteen to twelve. Henry Reske, ‘A Repeat Performance: Judicial Conference Allows Cameras Back in Appeals Courts’ (1996) 84(5) American Bar Association Journal 38. ‘Circuit Courts to Determine Camera Coverage of Hastings: State Courts also Rule to Allow Cameras’ (1996) Spring The News Media and the Law 34. See e.g., ‘Facts and Opinions About Cameras in Courtrooms’, above n. 152, at 9–10. Which hears appeals from federal courts in New York, Connecticut and Vermont. Which hears appeals from federal courts in California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Marian Islands. The Ninth Circuit also permits camera coverage of some criminal appeals. Which hears appeals from federal courts in Louisiana, Mississippi and Texas. See discussion in New York State Committee to Review Audio Visual Coverage of Court Proceedings, An Open Courtroom, above n. 1. See www.ca7.uscourts.gov/fdocs/docs.fwx?dname=arg at 31 March 2007.

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The constitutional validity of Rule 53 of the Federal Rules of Criminal Procedure, which bans cameras from federal criminal proceedings, was challenged in the trial of Zacarias Moussaoui, an associate of the September 11 terrorists, heard by US District Court judge Leonie Brinkema. The judge denied camera access, ruling that any societal benefits from photographing and broadcasting these proceedings were heavily outweighed by the significant dangers worldwide that broadcasting of the trial would pose to the orderly administration of justice.368

4 The McVeigh trial The federal court trial of Timothy McVeigh, the Oklahoma City Bomber, which began in April 1997, has been hailed by some as a vindication of the Judicial Conference’s decision to ban televising in federal courts. The Wall Street Journal’s front page headline ‘no sex, race and videotape’ in early June 1997 appeared to sum up public relief and satisfaction with the conduct and outcome of the trial. Opponents of cameras in courts suggested that the judicial process of that case functioned well ‘because the judge, lawyers, witnesses and jury were not performing for a national audience’. One media scholar observed that: ‘If ever a case be made against cameras in the courtroom, it was made at the McVeigh trial . . . The public knew what went on there, and justice was served, democracy was enhanced.’369 Comparisons between the McVeigh and Simpson trials, however, have also largely focused on the relative performances of Judge Matsch and Judge Ito. A closer analysis of Judge Matsch’s profile and court manner would suggest that even if television cameras were not banned from his federal district’s courtrooms, he would have been most unlikely to approve any application for television coverage.370 Even if he had, his actions, such as sealing the court file and thus denying the media an opportunity to seek to substantiate allegations regarding defence counsel’s excessive expenses in preparing the defence, also served to avoid much of the negative publicity bestowed on counsel in the Simpson case.

368

369

370

Ashely Gauthier, ‘Trial of Alleged Terrorist Spotlights Camera Issue’ (2002) 26(1) The News Media and the Law 21. Paul Thaler, Director of Journalism and Media, Mercy College, New York, quoted in Robert Schmidt, ‘What’s next for cameras’, Legal Times, 9 June 1997. Ibid.; see Peter Wilson, ‘Judge keeps tight rein on McVeigh trial’, The Australian (Brisbane), 3 April 1997.

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In response, proponents of courtroom televising have stressed that the presence of a video camera, which was permitted to record proceedings in the McVeigh trial to provide closed circuit coverage to victims in Oklahoma City,371 did not disrupt the proceedings. One media representative observed that the non-televised trial was ‘a missed opportunity to show the American justice system at its best’.372 When the Entertainment Network, an Internet company known for its adult Internet entertainment programmes, was denied its request to carry a live webcast of Timothy McVeigh’s execution, it illustrated how the electronic media’s role as entertainer can make it appear to be an inappropriate medium for the coverage of particularly sober and solemn aspects of the administration of justice.

5 Legislation seeking to open up federal courts In April 1997 Representative Steve Chabot introduced to Congress a Bill seeking to allow television coverage of all federal proceedings, including those of the US Supreme Court.373 In introducing the Bill to the media, he stressed judicial accountability, by observing ‘The federal courts play a very important part in our government, and federal judges serve for life . . . The American people deserve to see how they operate.’374 Though largely motivated by concern with the perceived judicial activism of the federal judiciary, conservative politicians have opted to 371

372

373

374

Goldfarb notes that, when the ‘trials of Timothy McVeigh and Terry Nichols were moved to Colorado, on a change of venue motion by the defendants who feared that they couldn’t get a fair trial in Oklahoma, the local families of victims who could not attend complained that they were prejudiced by not being able to attend. In response, Congress passed a law permitting federal trial courts to order closed-circuit televising of proceedings ‘‘for viewing by such persons the court determines have a compelling interest in doing so and are otherwise unable to do so by reasons of the inconvenience and expense caused by the change of venue’’’: Goldfarb, TV or Not TV, above n. 1, at p. 178. Bruce Collins, Corporate Vice-president and General Counsel of C-Span, quoted in Schmidt, ‘What’s next for cameras’, above n. 369. For a discussion of potential media coverage of the US Supreme Court, see Stuart Taylor Jr, ‘Put Cameras in Top Court, But Don’t Expect Viewers’ (1997) 147 New Jersey Law Journal 405. The National Center for Public Policy Research, ‘The Public Has a Right to Know: It’s Time to Allow Cameras in Federal Courts’, Press Release, 5 May 1997, www.national center.org/Cameras597.html at 31 March 2007.

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support the Bill.375 The proposed Sunshine in the Courtroom Act376 would give each judge the authority to decide whether to permit television cameras into their courtrooms. The proposed legislation sought to subject federal judges, who unlike their elected state counterparts are not otherwise directly accountable to the public, to public scrutiny. In June 1997, part of the Bill, relating only to Federal Appeals Courts, passed through a House of Representatives subcommittee as part of a Judicial Reform Act, and was subsequently passed by the House of Representatives in mid-2000. A similar Bill which would leave the decision whether to admit cameras to the discretion of federal presiding judges was proposed by Senators Grassley and Schumer, who introduced their Bill in the Senate in 2000 and again in early June 2001. The Grassley/Schumer Bill has been strenuously opposed by the Judicial Conference of the United States, through the Hon. Edward R. Becker, Chief Judge of the US Court of Appeals for the Third Circuit, who in September 2000 testified on behalf of the Conference before the Senate’s Judiciary Subcommittee on Administrative Oversight and the Courts.377 The proposed legislative reforms have yet to secure the support of both Houses.

6 Opposition of US Supreme Court Justices Unlike their colleagues on the Supreme Court of Canada and the House of Lords, Justices of the Supreme Court of the United States have staunchly and consistently opposed the admission of cameras into their courtrooms. The level of opposition was possibly best summed 375

376

377

Schmidt, ‘What’s next for cameras’, above n. 369, suggests that Jeff Ballabon, CourtTV’s ‘lobbyist on Capitol Hill’, has used his Republican Party credentials to create a link between the conservative advocates of this Bill and media organisations which have been the traditional proponents of cameras in court. The title of the Act would appear to relate to a ‘sunlight is the best disinfectant’ remark attributed to former Supreme Court Justice, Louis Brandeis. See Testimony of Judge Edward Becker, Chief Judge US Court of Appeals for the Third Circuit, before the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, 6 September 2000, hearing on ‘Allowing Cameras and Electronic Media in the Courtroom’: Judge Edward Becker, Statement of Chief Judge Edward R. Becker on behalf of the Judicial Conference of the United States (2000), Administrative Office of the United States Courts, www.uscourts.gov/Press_Releases/ becker.pdf at 31 March 2007. The text of Chief Judge Becker’s statement is also available in ‘Defense News’ (2000) 67 Defense Counsel Journal 429.

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up by Justice Souter, who in 1996 told a congressional committee ‘the day you see a camera come into our courtroom it’s going to roll over my dead body’.378 Such unqualified opposition by members of the Supreme Court sits uncomfortably not only with their jurisprudence on the First and Sixth Amendments,379 but also with the contrasting endeavours of US state court judges to promote a greater transparency and accessibility to the public. A closer analysis of the reasons which Supreme Court Justices have espoused for their opposition only serves to heighten the contrast. The most frequently cited reason for their opposition to the televising of their hearings appears to relate to a concern that such public exposure would impinge on their relative anonymity, undermine the mystique of their work and make Supreme Court proceedings the subject of everyday conversation.380 Chief Justice Rehnquist was said to be concerned about ‘the loss of ‘‘mystique and moral authority’’ that might result from camera exposure’.381 Justice Byron White has conceded that concern for the loss of his anonymity was one reason why he did not want his court to be televised, noting ‘I am very pleased to be able to walk around and very seldom am I recognized. It’s very selfish, I know.’382 Similarly, Justice Anthony Kennedy observed in 1995 ‘I’m delighted that I’m less famous than Judge Ito.’383 While a preference for anonymity may be understandable, it becomes questionable when it comes at the cost of limiting public access to and scrutiny of the decisions of the nation’s highest court. It also suggests that public respect for the law is to be maintained by limiting public access and that the discussion of judicial matters should be confined to the solemn consideration of judges and lawyers. Such preservation of mystique is clearly out of step with the opening of public institutions to public scrutiny. Ignoring this trend is not likely to enhance public respect for the Court but rather may undermine public respect and confidence by creating a perception that the Court and its practices fear closer scrutiny. In an interview with ABC’s This Week programme in July 2003, both Justice Sandra Day O’Connor and Justice Stephen G. Breyer suggested 378

379 380 381

James B. Lake, ‘Courts, Congress Offer Hope for Cameras in the Courtroom’ (2001) 3(1) Media Law. See also Jim Gordon, ‘No Camera Fans Here’ (1996) 5 News Photographer 4. Discussed above chapter 3 C. See Tony Mauro, ‘The Camera-Shy Federal Courts’ (1998) 12 Media Studies Journal 60. Ibid. 65. 382 Ibid. 64. 383 Ibid. 63.

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that televising US Supreme Court appeal hearings would create a false impression that the Court makes its decision on the basis of presented oral arguments.384 Rather than being a compelling argument for the exclusion of television cameras, it may be said to be a concession that those who attend court proceedings are equally likely to be left with such a false impression. It is ironic that while Supreme Court Justices shy away from technology because it may expose a lack of openness in proceedings, state courts such as the Florida Supreme Court are utilising technology to post briefs online in order to enable members of the media and public to follow proceedings, which through their reliance on written submissions and evidence tend in practice to be closed to the public. In defending the Court’s decision not to permit the televising of the Bush v. Gore385 hearings in December 2000, Chief Justice Rehnquist also put the argument that televising the Court would alter the dynamics of oral argument.386 Putting aside the fact that this does not appear to have been the impact on other courts, such as the Supreme Court of Canada, which has long permitted its hearings to be recorded and broadcast,387 once again the argument appears to be an expression of a reluctance to change the status quo in order to facilitate public understanding. An appropriate response to the Chief Justice’s argument may be to point out that barring cameras to preserve the status quo in oral argument is a solution which belittles the significance of the public administration of justice. More desirable solutions may be to educate the public so that they do not misunderstand the significance of questions posed by judges, or to alter the appeal process so that members of the public may actually, as is their right, understand and subject what they see and hear to informed scrutiny. While the US Supreme Court declined to permit cameras to record the proceedings of the Bush v. Gore hearings in spite of almost unprecedented public interest in a case of direct interest and relevance to all Americans, the Court’s handling of the application and subsequent 384

385 386

387

Australian Broadcasting Corporation, Interview with Justice Sandra Day O’Connor and Justice Stephen G. Breyer, This Week, 6 July 2003. A Washington Post editorial described the arguments put in defence of the Court’s prohibition on cameras as ‘not persuasive’. See Editorial, ‘Cameras in the Court’, Washington Post (Washington), 11 July 2003. 531 U.S. 98 (2000). Public Broadcasting Service, William Rehnquist Interview with Charlie Rose, KSPS, 18 February 2001, Episode 9635. Since 1995, Canada has permitted all its judicial proceedings to be broadcast by CPAC, Canada’s political channel, without incident. See discussion below chapter 4 B.4.

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reforms suggest that at least some members of the Court may be receptive to facilitating coverage via television – the medium which the vast majority of Americans rely on for their public information. In response to an application lodged by CNN, Court-TV, C-Span, RTNDA and the Society of Professional Journalists, the US Supreme Court took the unprecedented step of releasing the audio recording of the hearings immediately on its conclusion.388 Since the election cases, the Court has released audio tape of oral argument on an expedited basis in a number of cases. For example, on 13 April 2004, the Supreme Court announced on its webpage that it would be releasing audio tapes shortly after the conclusion of arguments in Rasul v. Bush, Al Odah v. United States, Cheney v. USDC District of Columbia, Hamdi v. Rumsfeld and Rumsfeld v. Padilla.389 It has also been noted that the manner in which the Court handled the request may suggest that some of its Justices may be prepared to consider lifting the ban. In writing to C-Span Chairman Brian Lamb to advise that the request for camera access would be denied, Chief Justice Rehnquist is reported to have noted that the ban reflected the view of ‘a majority’390 – clearly suggesting that the Court is not unanimously opposed to the admission of cameras. On 13 July 2006, Chief Justice John Roberts reiterated the US Supreme Court’s lack of interest in televising its hearings, stating ‘All of the justices view themselves as trustees of an extremely valuable institution . . . We’re going to be very careful before we do anything 388

389

390

Only on two occasions – Gore v. Bush, 531 U.S. 98 (2000) and Grutter v. Bollinger, 593 U.S. 306 (2003) – has the Court released audiotapes of the oral argument on the same day. See Karen Aho, ‘TV and the Supreme Court: Broadcasters Want Access, but will they Deliver Serious Coverage?’ (2003) 5 Columbia Journalism Review, www.cjr.org/ issues/2003/5/tv-aho.asp at 31 March 2007. See A Reporters Guide to Applications pending before the Supreme Court of the United States, www.supremecourtus.gov/publicinfo/reportersguide.pdf at 31 March 2007. Transcripts of Supreme Court hearings as well as Court opinions are now also available from the Court’s website. See Supreme Court of the United States, Argument Transcripts, www.supremecourtus.gov/oral_arguments/argument_transcripts.html at 31 March 2007; Supreme Court of the United States, Opinion, www.supremecourtus. gov/opinions/opinions.html at 31 March 2007. See Lake, ‘Court, Congress Offer Hope’, above n. 378. See also Paula Canning, ‘Supreme Court Releases Audio Tape of Affirmative Action Arguments’ (2003) 27(2) The News Media and the Law 34, www.rcfp.org/news/mag/27-2/bct-battlesf.html at 31 March 2007, in which the author notes ‘Many Supreme Court justices are in favor of cameras in the courtroom, O’Brien [CNN Correspondent, Tim O’Brien] said during the April 30 forum, but are reluctant to express their support because of Chief Justice William Rehnquist’s strong opposition to camera access.’

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that will have an adverse impact on that.’ Addressing a conference of the Ninth Circuit US Court of Appeals, which regularly permits cameras during hearings, the Chief Justice observed ‘We don’t have oral arguments to show people, the public, how we function.’391

G Conclusion The above outline of a variety of American experiences clearly reveals why it would be inappropriate to reduce the issue to a question of evidence as to whether the presence of cameras has an adverse or positive effect on court proceedings and public understanding of and confidence in the judicial system. The role which entrenched legal rights have played in re-opening American courts to television coverage not only provides a wealth of jurisprudence but also illustrates the advantages and disadvantages of allowing a rights emphasis to cause public dissemination of information regarding court proceedings to be identified with media rights. While the numerous and varied studies and evaluations of the impact of televising on the administration of justice provide information which is largely reassuring to other jurisdictions considering the introduction of such coverage, they also reveal that the quest for conclusive evidence of effects is not only illusive but unavoidably subjective. The correlation between findings and recommendations of such studies has also been shown to be tenuous, with decisions on whether to permit televising ultimately made on the basis of sometimes reluctant recognition of legally enforceable rights, or increasingly, at least in state courts, by judges embracing audio-visual recordings as a means of promoting public access and understanding of the judicial process. Ultimately, as the above discussion has sought to show, it is the contrasting attitudes of US judges which have determined whether audio-visual technology is effectively utilised to aid the administration of justice and promote public confidence, or whether it is seen as an unwelcome intrusion into processes which are best left at least partly shrouded in mystery. High profile celebrity cases, the sensationalist coverage of which has played into the hands of those who would prefer to stereotype American experiences and use such cases as conclusive proof of why televising is 391

David Kravets, ‘Chief Justice says no to televising Supreme Court’, Associated Press, 17 July 2006, Law.Com, www.law.com/jsp/law/LawArticleFriendly.jsp?id=1152867928601 at 31 March 2007.

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undesirable, have tended to overshadow the diversity of American experiences and the reality that American courts grapple with virtually the same concerns and issues as their counterparts in other common law jurisdictions. Considered in this light, the fact that all US state jurisdictions permit the televising of at least some proceedings becomes compelling. When audio-visual coverage of American courts is considered in terms of court initiatives such as those pioneered by the Florida courts rather than on the basis of media reports of celebrity trials, the American experience also becomes much more instructive.

4 Canada

A Introduction Though often overlooked and overshadowed by the experiences of the neighbouring United States, Canada’s extensive and wide-ranging experiences with cameras in courts are particularly instructive for countries which share Canada’s Westminster heritage and the common law principles which govern its regulation of media reporting of court proceedings. This chapter begins its analysis of Canadian developments by considering Canada’s acceptance, experience and evaluation of the televising of appellate proceedings. This aspect of Canada’s experiences is unique among the jurisdictions under consideration in this book. In particular, it is noted that in contrast to its counterparts, especially in the United States and Australia, the Supreme Court of Canada has arranged to have its hearings recorded and broadcast for the past ten years. Favourably received experiments have also been carried out in other Canadian federal and provincial appellate courts, and are shown to have led the Canadian Judicial Council to qualify its opposition to in-court televising, at least with respect to such proceedings. As outlined, Canadian appeal court experiences and evaluations appear to substantiate the desirability of televising being introduced incrementally, beginning with appeal hearings, which entail the least potential risks and problems. The clear distinction which Canadian courts draw between the televising of trials and the televising of appeal hearings has served to focus the Canadian debate’s attention on evidence as to the impact of televising on trial participants. In so doing it is shown to have highlighted the inconclusiveness of such evidence and the pivotal nature of determinations as to who bears the onus of establishing whether the impact of cameras is compatible with the fair administration of justice. Continuing reservations regarding the televising of trial proceedings are shown to be unsubstantiated by Canada’s largely favourable experiences with such coverage, and appear to highlight the influence of 148

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negative publicity regarding the televising of US trials as well as the entrenched subjective opposition of influential members of the judiciary. A significant portion of this chapter is devoted to a consideration of the influence which the entrenchment of rights by the Charter of Rights and Freedoms has had on the development of legal principles relating to the regulation of court reporting, on attitudes of judges, and through a growing culture of rights, on the general acceptance and expectation of greater transparency in judicial proceedings. Charter principles are examined in some detail, as their significance extends beyond Canada. The following chapter 6 reveals Canada’s Charter jurisprudence to have been instrumental in New Zealand’s decision to experiment with televising of courts. As chapter 2 revealed, it is also being scrutinised in Britain, as that country comes to grips with the implications for courtroom reporting of overarching rights. The combined impact of rights and of new information and communications technology is also shown to be challenging the continued viability and appropriateness of Canada’s traditional common law regulation of court publicity, and especially its reliance on publicity restrictions and prohibitions designed to protect the impartiality and fairness of trials from prejudicial publicity. Canada’s experiences are also shown to illustrate that treating the televising of proceedings as a media right can lead to a de facto prohibition of such coverage. The analysis reveals that an active commitment to the promotion of public access and understanding of court proceedings by members of the judiciary is changing the nature of the in-court televising debate and is creating the circumstances required to make possible the attainment of its potential benefits. While this chapter’s analysis of televising in Canadian courts reveals valuable jurisprudence, many varied and informative precedents and reassuring findings of studies and experiments, it also identifies a backdrop of a somewhat curious official denial of Canadian courts engaging in such coverage.1 In this respect, it is difficult not to be left with the 1

For example, in 1996, the current Chief Justice of Canada, Justice Beverley McLachlin stated categorically that ‘[n]o [Canadian] trial court permits proceedings to be televised’: the Hon. Justice Beverley McLachlin, ‘OJ and All That’, paper presented at the New Zealand Law Conference, Dunedin, 9–13 April 1996, at 375; further discussed below V(C)(2). More recently, a British Columbia Director of Court Technology, in outlining the application of court technology in Canadian courts, observed that cameras were used in high public interest trials to transmit audio and visual signals to overflow courts, but

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impression that Canadians may have reservations about televising, at least in part because it is something which has for long been labelled and denounced as an American aberration.

B Appeal courts 1 Introduction While numerous Canadian trials have been recorded and broadcast, the Canadian judiciary’s ongoing concerns regarding ‘television’s effect on witnesses, jurors and trial proceedings generally’2 appear to account for why Canada’s formal experimentation with and evaluation of cameras in courts has been confined almost entirely to appeal proceedings, and for why the Supreme Court of Canada remains the only Canadian court in which television coverage has become the norm.

2 Why cameras were admitted (a) Supreme Court of Canada In 1993 it was reported that the Supreme Court of Canada was considering allowing cameras to record its hearings on a trial basis and that all nine Justices had agreed ‘to permit the televising of an ‘‘appropriate’’ case’.3 This decision appears in large measure to be attributable to the Court’s recognition of the value of courtroom recordings, gained through its utilisation of the closed circuit cameras it had installed in 1990 to record its proceedings.4 The Court’s judges are said to have found these video recordings helpful in simplifying and improving their note-taking, and even capable of enabling absent judges to view recordings of missed arguments, and with counsel’s consent be able to

2

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4

then added: ‘I must point out that cameras in Canadian courtrooms are not used for broadcast purposes but primarily to send images to overflow courtrooms in nearby buildings, particularly for high profile trials.’ See Julian Borkowski, ‘Court Technology in Canada’ (2004) 12 William and Mary Bill of Rights Journal 681, 684. Canadian Judicial Council, Annual Report 2001–02 (2002), p. 26, http://cjc-ccm.gc.ca/ cmslib/general/CJC2001-2002_E.pdf at 8 April 2007. James M. Linton, ‘Camera Access to Courtrooms: Canadian, US, and Australian Experiences’ (1993) 18(1) Canadian Journal of Communication, www.cjc-online.ca/ viewarticle.php?id=138&layout=html at 8 April 2007. The Court is said to have ‘introduced television on a taped basis in October 1992’: Canadian Judicial Council, Annual Report 2000–01 (2001), http://cjc-ccm.gc.ca/cmslib/ general/Cjc2001-2002_E.pdf at 8 April 2007.

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participate in judgments.5 Recognising their educational value, the Court made its video recordings available to law schools, a practice which has led it currently to make such recordings freely available for personal use, and for approved educational and commercial purposes.6 The Supreme Court’s decision to permit televising on a trial basis led to the successful broadcasting of three high profile cases between 1993 and 1995.7 Following those experimental broadcasts, the Court has permitted virtually all of its hearings to be broadcast by the Canadian Parliamentary Affairs Channel (CPAC).8

(b) Federal Court of Appeal and Nova Scotia Court of Appeal The judiciary’s acceptance that electronic media coverage of appeal proceedings was likely to permit the attainment of the potential benefits of extended media coverage without the dangers perceived to be associated with the recording and broadcast of trials, appears to provide the main explanation for the decisions to undertake pilot projects in the Federal Court of Appeal and the Nova Scotia Court of Appeal. The impetus for the experiment in the Federal Court of Appeal came from a 1993 request by the Radio-Television News Directors Association of Canada (RTNDA).9 The request led Chief Justice McGuigan to set up a six-judge Cameras in the Courtroom Committee, which formulated Guidelines to govern the experiment and oversaw the conduct and evaluation of the pilot project.10

5

6

7

8

9

10

Daniel J. Henry, ‘Electronic Public Access to Court: An Idea Whose Time Has Come’ in Yves-Marie Morisette, Wade McLauchlan and Monique Oulette (eds.), Open Justice: La Transparence Dans Le Syst`eme Judiciaire (1995), pp. 389, 414. See the Court’s website, Supreme Court of Canada, Frequently Asked Questions (2004), www.scc-csc.gc.ca/faq/faq/index_e.asp at 8 April 2007. The three cases broadcast live and by delayed broadcast were Symes v. Canada [1993] 4 SCR 695 which dealt with the issue of tax deductibility of child care expenses to a professional; Rodriguez v. British Columbia (Attorney-General) [1993] 3 SCR 519 which confronted the issue of the right to assisted suicide; and Thibaudeau v. Canada [1995] 2 SCR 627, which addressed tax deductibility of spousal support payments. A non-commercial channel, set up to provide extended coverage of parliamentary proceedings and committees and public hearings. See Canadian Parliamentary Affairs Channel, Canadian Political Channel, www.cpac.ca/ at 8 April 2007. Federal Court of Canada, Annual Report (1994), p. 8. See also Henry, ‘Electronic Public Access to Court’, above n. 5, at 415–16. See ‘Federal Court of Appeal Guidelines for Pilot Project: Electronic Media Coverage of Court Proceedings 24 September 1994’ in Daniel Stepniak, Electronic Media Coverage of Courts: A Report Prepared for the Federal Court of Australia (1998), Appendix 23.

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The 1995 decision to undertake an experiment with cameras in the Nova Scotia Court of Appeal flowed from a recommendation by Nova Scotia’s Media Liaison Committee, made up of representatives of the Province’s four courts and the media. A judge of the Court of Appeal was asked to develop Guidelines for such an experiment.11 The court revealed its motivation for undertaking the pilot project when it advised the media that it was anticipating that a ‘carefully controlled media access may increase public appreciation and understanding of the appeal process and justice system without distracting from the decorum of the Court’.12

3 How access was regulated The Guidelines which governed the Supreme Court’s regulation of CPAC’s coverage and the pilot projects in the Federal Court and in Nova Scotia provide three quite distinct approaches to the regulation of camera coverage of appellate proceedings.

(a) Supreme Court of Canada While the Supreme Court has also acceded to occasional requests from commercial networks,13 and dealt with such applications on an ad hoc basis, CPAC’s recording, distribution and broadcast of Supreme Court hearings has been governed by the terms and Guidelines contained in its renewable formal agreements with the Court.14 The terms of the Guidelines have ensured that the Court has retained control of both the recording process and of resulting recordings. The Guidelines have confined the equipment which may be used, to the Court’s sound recording facilities and three permanently installed cameras, and have required CPAC to provide viewers with explanations of the overall processes of the Court, and the Court with information as to uses made of recordings and the audience. They have also stipulated that the Court retains copyright in the 11

12

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14

See ‘Pilot Project: Cameras in the Novia Scotia Court of Appeal – Rules and Guidelines’ in ibid. Appendix 27. See Supreme Court’s ‘Notice to Media Re: Pilot Project: Cameras in the Court of Appeal – 7 December 1995’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 25. A notable instance was the February 1998 live broadcast by CBC and Radio-Canada of the Quebec Secession Reference hearings. Reference re Secession of Quebec [1998] 2 SCR 217, discussed in Stepniak, Electronic Media Coverage of Courts, above n. 10, at para. 6.2. See e.g., ‘Renewal of Pilot Project: [Guidelines] Governing Broadcasts of the Supreme Court of Canada’s Hearings by CPAC’ (1996) in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 32.

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broadcast material and is required to approve categories of groups or persons to whom tapes may be made available.

(b) Federal Court of Canada Guidelines governing the Federal Court’s experiment specifically prohibited electronic media coverage of Federal Court-Trial Division proceedings, and further confined the pilot to proceedings in the court’s own facilities.15 The Federal Court chose to adopt an administrative application process, requiring advance notice of requests for electronic media coverage to be given to the Chief Justice who would select proceedings to be covered after consulting with the panel of judges hearing the proceeding and counsel for the parties. The Guidelines required that all expenses be borne by the media; imposed restrictions on the numbers of cameras, audio equipment systems and operators to be used; required equipment to be unobtrusive and able to meet designated sound and light criteria, and its location in a court to be approved. All four requests for electronic media coverage were granted. Two of the four hearings were broadcast live. (c) Nova Scotia Court of Appeal In contrast to the administrative application process adopted by the Federal Court and in virtually all pilot projects undertaken in other jurisdictions, the application process adopted by the Nova Scotia Court of Appeal was a formal legal process, requiring radio and TV media applicants to become interveners in the cases they proposed to record and broadcast.16 Objections to applications were to be dealt with in Chambers hearings. Two such hearings were held, resulting in objections being upheld in one and dismissed in the other.17 Eight of the nine applications received were approved by the Court, resulting in eight major criminal appeal cases being recorded by television cameras.18 15

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18

See ‘Federal Court of Appeal Guidelines for Pilot Project, Electronic Media Coverage of Court Proceedings 24 September 1994’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 23. See ‘Court document titled ‘‘The Application Process’’ 7 December 1995’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 26; ‘Cameras in the Nova Scotia Court of Appeal: Rules and Guidelines’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 27; ‘Novia Scotia Court of Appeal: Precedent Documents’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 28. See ‘Transcripts of January 1996 Decisions of Justice Bateman’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 29. See list of media applications made between January 1996 and February 1997 in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 30.

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Though the guidelines provided for live telecasts with the consent of the panel hearing the appeal, no proceedings were broadcast live.

4 What evaluations have revealed (a) Supreme Court of Canada The broadcast of the Supreme Court’s proceedings has not been formally evaluated, it has not been the subject of any significant negative publicity and appears to have the support of the Supreme Court’s Justices. As Canada’s Chief Justice Beverley McLachlin observed: Proceedings in Supreme Court of Canada are routinely filmed and shown on public television. The product is dull fare by the standards of popular entertainment, although somewhat to my amazement we do have an audience. The Judges are unaware of the presence of the cameras, which do not interfere in any way with the manner in which proceedings in the Court are conducted.19

(b) Federal Court of Canada The Federal Court’s pilot project was evaluated through questionnaires,20 administered to all thirteen Court of Appeal judges before the pilot project began, and subsequently to the nine judges and twenty-six counsel who participated in the pilot project.21 The findings of the evaluation22 revealed that participation in televised hearings reinforced or improved the judges’ initial views regarding the benefits of electronic media coverage over conventional media coverage, and that any initial negative views as to the effect of electronic media coverage became more positive. Personal participation appeared to leave judges more favourably disposed towards electronic media coverage in the Federal Court of 19

20

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Beverley McLachlin, ‘OJ and All That’, above n. 1, at 381. The findings of the only formal evaluation of the broadcasting of the Court’s proceedings have recently been published in Florian Sauvageau, David Schneiderman and David Taras, The Last Word: Media Coverage of the Supreme Court of Canada (1986). Based on those developed by the Federal Judicial Center for the US Federal Court pilot programme. See ‘Federal Court of Appeal ‘‘Cameras in the Courtroom’’ A Pilot Project on Electronic Media Access, Questionnaire for Counsel, Initial Attitudes Questionnaire and Follow Up Questionnaire: Court of Appeal Judges’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 24. See ‘Allison L. Small, Memorandum: ‘‘Cameras in the Courtroom’’ Pilot Project, Preliminary Report and Survey Results, 6 March 1997’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 51. Ibid.

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Appeal while leaving their initial views about electronic media coverage in the Federal Court-Trial Division unchanged or less favourably disposed towards electronic media coverage. The views expressed by participating lawyers tended to reinforce those of the judges.23 Only two of seventeen participating lawyers deemed electronic media coverage to disrupt courtroom proceedings. Somewhat surprisingly, in view of mixed findings of many other studies,24 all participating judges and lawyers agreed that the effect of electronic media coverage was to educate the public about the work of the Federal Court of Appeal. Though confined to only four appeal hearings, the evaluation of the Federal Court’s pilot project appeared to reinforce views as to the benefits of electronic media coverage and adds support to the view that appellate proceedings may be subject to electronic media coverage without unduly affecting proceedings. On the other hand, the pilot did not allay concerns regarding the impact of televising on witnesses and parties to proceedings, appearing instead to intensify opposition to the broadcast of trial proceedings. The Court’s Committee on Cameras in the Courtroom declined the RTNDA’s requests that the rules be made permanent and that their scope be expanded to include access to proceedings in the Trial Division. However, the Committee agreed to continue the pilot project in the Court of Appeal until 31 December 1998.25 As no further requests were received in 1997 and 1998, the pilot project ultimately lapsed.

(c) Nova Scotia’s Pilot Nova Scotia’s project was closely monitored by the Court and the Media Liaison Committee. In a Report,26 presented by Justice Freeman, at the conclusion of the two-year project, the Committee reported that ‘While the procedure for obtaining coverage is cumbersome it has not prevented media from covering appeals in which they were interested, and experience to date has not been sufficient to dictate the need for streamlining.’27 23 24 25

26

27

See discussion in Stepniak, Electronic Media Coverage of Courts, above n. 10, at p. 118. See below chapter 7 B.3(b). Facsimile from Allison L. Small, Judicial Administrator (Appeal Division) Federal Court of Canada to author, 18 August 1997. See ‘Media Liaison Committee, ‘‘Report at Conclusion of Two-Year Camera Pilot Project’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 49. Ibid. p. 1.

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As to the effect of cameras on participants, the Report noted: The reaction of panels of the court working under camera scrutiny has been generally positive. The camera and the operator were not found to be obtrusive presences and tended to be forgotten after the first few minutes. Stress levels were not noticeably increased. Counsel, initially wary, appeared to have the same general reaction, apart from an expression of displeasure of one lawyer following the first televised session. Serious objections related to privacy or other concerns on behalf of parties could be effectively dealt with in chambers.28

The Committee found concerns regarding the potential negative impact of electronic media coverage, at least on appeal hearings, to be unfounded, noting that: The most striking observation, again based on limited experience, is that courtroom television coverage in an appeal court is nothing to be feared. The decorum of the court has not been negatively affected. There have been no embarrassing incidents, no attempts by the media to take improper advantage of the privilege they have been granted. We have established a precedent without creating a monster.29

In recommending that the pilot project be extended by two years to 31 December 1999, the Committee observed that in view of the novelty of camera access ‘it should be monitored and reviewed from time to time, for our own benefit and that of other courts that may be watching our experience, so it would be premature to adopt a permanent policy’.30 A permanent policy was adopted in 1999. The most recent Guidelines for Media and Public Access to the Court in Nova Scotia contain Rules and Guidelines for Cameras in the Nova Scotia Court of Appeal which are virtually identical to those adopted for the pilot project.31

5 Implications of Canadian Appeal Courts’ experiences (a) Revealed that fears unsubstantiated The favourable experiences of all three courts suggest that when appropriately regulated, appellate proceedings are capable of being recorded and broadcast without any of the negative effects predicted by 28 31

Ibid. p. 2. 29 Ibid. p. 3. 30 Ibid. See Guidelines for Press, Media and Public Access to the Courts of Nova Scotia (22 February 2006), Appendix B ‘Cameras in the Nova Scotia Court of Appeal’, www.courts.ns.ca/media_access/media.htm at 8 April 2007.

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opponents, but more readily associated with the broadcast of trials. The reassuring significance of the experiments is perhaps best summed up in the Nova Scotia Media Liaison Committee’s conclusion that ‘nothing has come to light as a result of our pilot project to suggest that courts of appeal should be apprehensive about permitting limited and controlled camera access to their proceedings’.32 The experiences also bear testimony to the appropriateness of adopting an incremental approach in the introduction and regulation of courtroom broadcasting. Illustrating that strict rules are likely to be relaxed as judges, media and public become accustomed to such coverage and find fears to be unsubstantiated, the Supreme Court relaxed its initial insistence that broadcasts be of ‘cases complete without commentary’ and that ‘No tape clips or ‘‘bites’’ be used without permission of the Court’.33 Similarly, the Nova Scotia Court of Appeal relaxed dress code requirements for photographers in the pre-hearing still photo session, permitted the television cameraman to use a stool,34 and revealed itself prepared to relax the requirement that applicants give the court at least two weeks’ notice, as it moved towards adopting a permanent policy.35

(b) Recognised the educative value of audio-visual coverage The Appeal Court experiences appeared also to acknowledge the educative and informative value of audio-visual recordings of appeal hearings. Such recognition is particularly evident in the Supreme Court’s utilisation of public broadcasting and distribution of video recordings, and in the unanimous opinions of judges and lawyers who participated in the Federal Court’s experiment. This benefit of audio-visual coverage appears to have also been recognised by the Ontario Court of Appeal, whose judges, in approving television camera access for broadly defined educational purposes, have revealed a willingness to utilise an exception to Ontario’s statutory 32

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See ‘Media Liaison Committee, ‘‘Report at Conclusion of Two-Year Camera Pilot Project’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 49, p. 3. Cf. ‘Renewal of Pilot Project: [Guidelines] Governing Broadcasts of the Supreme Court of Canada’s Hearings by CPAC’ (1996) in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 32, with ‘Renewal of Pilot Project: Governing Broadcasts of the Supreme Court of Canada’s Hearings by CPAC’ (1997) in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 50. See ‘Court’s Memorandum to CBC News Director, dated 29 February 1996’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 31. (This was sent to all local television and print media outlets.) Ibid.

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prohibition, which permits recordings for educational or instructional purposes.36

(c) CJC withdraws its opposition The Appeal Courts’ favourable experiences, and the increasing recognition by Canada’s judiciary of the need to facilitate the media’s reporting of court proceedings (discussed further below) recently led the thirty-nine Chief Justices and senior judges of Canada’s chief judicial policy body, the Canadian Judicial Council (CJC), to withdraw their opposition to the televising of appeal court proceedings.37 Since 1983 the CJC has held that ‘[t]elevising court proceedings is not in the best interests of the administration of justice’.38 Though this position was affirmed in 1994, as the Supreme Court had begun to record its proceedings for broadcast, the CJC added a qualification that its resolution was a recommendation and did not apply to the Supreme Court.39 In September 2000 the Council set up a subcommittee to examine recent developments and studies and to consider the results of consultations by Chief Justices with members of their respective courts. The subcommittee’s specific mandate was to recommend whether the CJC should formally reconsider its position.40 In its 14 September 2001 meeting41 the Council declined to accept the subcommittee’s recommendation that it reconsider its position.42 However, on 28 March 2002, the CJC announced that it had concluded its review and had modified its stance on televising court proceedings, by exempting all appellate courts from its policy.43 The CJC noted that while: 36

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39 40 41

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CBC Senior Counsel, Dan Henry, has advised that in June 2001 the Ontario Court of Appeal had approved television camera access for broadly defined educational purposes: personal communication with author. See Canadian Judicial Council, Council Modifies Position on Cameras in the Courts (2002), http://cjc-ccm.gc.ca/article.asp?id=2422 at 8 April 2007. This resolution and the Council’s stance on the televising of trial courts are discussed further below at IV(c)(4)(e). Canadian Judicial Council, Annual Report 2000–01, above n. 4, at p. 26. Ibid. A meeting which almost one-quarter of the members were unable to attend due to the grounding of North-American air traffic following the September 11 terrorist attacks. The meeting was shortened to permit Chief Judges to attend a memorial service. See Cristin Schmitz, ‘Judicial Council Divided over TV Cameras in Court, ‘‘It’s Like Working in a Juristic Jurassic Park’’ Says Critic’ (2001) 21 (21) Lawyers Weekly. The Council’s trial committee voted nine to four to reject the four to five majority recommendation of the subcommittee that the Council formally reconsider its position: ibid. See Canadian Judicial Council, Council Modifies Position on Cameras, above n. 37.

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[t]he change reflected the Council’s concern about the impact of television on trial proceedings as distinct from courts of appeal . . . [m]any council members remained concerned about television’s effect on witnesses, jurors and trial proceedings generally.44

(d) Lack of media interest An aspect of Canada’s experiences with cameras in appeal hearings that warrants further consideration is the apparent lack of media interest. While the Supreme Court’s experience, in which CPAC’s pooling arrangements have resulted in courtroom footage reaching over 9 million subscribing households, with an average audience of 2.2 million viewers across Canada,45 suggests that public broadcasters may be interested in securing footage of appeal proceedings and that such broadcasts may attract a significant number of viewers, this was not the experience of the Nova Scotia Court of Appeal and the Federal Court of Appeal. Nova Scotia’s experiment attracted only nine applications. Though fewer than expected, the small number may be attributable to the complex, time-consuming and expensive application process and the lengthy notice required. As to why no applications were received after the first eight months of the pilot project, Nova Scotia’s Media Liaison Committee remarked that it ‘anticipated that interest would wane after the novelty wore off because our proceedings do not make compelling television’.46 Lack of media interest was most vividly revealed in the Federal Court’s pilot project, where of an estimated 1,000 cases heard by the Canadian Federal Court of Appeal during the two years of the pilot project47 only four were sought to be televised.48 44 45

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Canadian Judicial Council, Annual Report 2001–02, above n. 4, at p. 26. See Canadian Parliamentary Affairs Channel, Canadian Political Channel, www.cpac.ca/ at 8 April 2007. Currently, Supreme Court proceedings are broadcast nationwide on CPAC’s Saturday morning programme Jurisprudence; see Canadian Parliamentary Affairs Channel, Jurisprudence (2004), www.cpac.ca/forms/index.asp?dsp=template& act=view3&template_id=185&lang=e at 8 April 2007. See ‘Media Liaison Committee, ‘‘Report at Conclusion of Two-Year Camera Pilot Project’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 49, p. 2. Telephone conversation with Allison L. Small, Judicial Administrator (Appeal Division) Federal Court of Canada, 19 February 1997. According to advice from the Supreme Court, even this figure overstates the media’s interest as only one hearing would have been televised had the Court not facilitated the expedited hearings of the last three cases (one heard in October and two in December of 1997), in order to enable cases which it deemed of great public interest and importance to be televised before the conclusion of the pilot programme: ibid.

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The following explanation provided by the Canadian Broadcasting Commission (CBC)’s Senior Counsel, Dan Henry, appears to suggest that the nature of appellate proceedings may be largely incompatible with content acceptable to network television: The appellate issues were themselves dry, though argued in the context of cases that some considered scandals . . . In each case, a decision on live coverage was influenced not only by the importance of the case but also by the necessity for the news channel to cover other live events at the same time, as well as the length of time the arguments were projected to take.49

That most appeal hearings may be too ‘dry’ for network television appears to be supported by a participating lawyer, who in commenting on whether electronic media coverage educates the public about the work of the Federal Court of Appeal, wrote ‘Judicial review is pretty dull stuff in the best of circumstances so I’m not sure how effective the experience was given the type of proceeding.’50 The experience of the Federal Court of Canada in particular appears to suggest that the nature of appeal proceedings is such that television networks, even if granted access to proceedings, cannot be counted on to provide audio-visual coverage to the public, even in cases of great public interest.

(e) Responding to a lack of media interest The Supreme Court’s experience suggests that courts of appeal need not depend entirely on the interest of commercial broadcasters, but that public broadcasting and courts’ own recording and distribution of video recordings may provide effective means of facilitating greater public access to and scrutiny of proceedings in a nation’s highest courts. An increasingly significant alternative to relying on media interest (which is also applicable to the coverage of trial proceedings) was highlighted in 2001 when The Independent Media Centre (Indymedia)51 successfully applied to the British Columbia Supreme Court for permission to record the hearings in Metalclad Corp. v. Mexico52 (an appeal of a NAFTA tribunal decision ordering Mexico to pay damages to a 49 50

51 52

Personal communication from CBC Senior Counsel, Dan Henry, 4 November 1998. See ‘Allison L. Small, Memorandum: ‘‘Cameras in the Courtroom’’ Pilot Project: Preliminary Report and Survey Results, 6 March 1997’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 51, p. 3. See www.indymedia.org/en/index.shtml at 8 April 2007. United Mexican States v. Metalclad Co. 2001 BCSC 664.

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Californian waste disposal company) and stream such footage on the Internet. In submissions heard by Justice David F. Tysoe on 19 February 2001, Indymedia stressed that ‘the issues underlying the hearing were important to their viewers and would allow them to follow developments and promote discussions about international trade’.53 Justice Tysoe permitted the recording and streaming on condition that the hearings were covered in their entirety. As a result ten days of hearings were recorded and some forty hours of video together with background documents and interviews were made publicly available on Indymedia’s webpage.54 Subsequently, a director of television news conceded that the nature and extent of public exposure of proceedings and information about the case was ‘something we would not have been able to do’.55 Indymedia’s successful application and streaming of the hearings suggest that the increasing utilisation of the Internet as a source of public information presents a medium for public transmission of court proceedings which may be more readily acceptable to courts because it overcomes two concerns courts have regarding television broadcasts. The first concern relates to the view that media networks seek camera access to courtrooms for their own commercial interests, often perceived as being unrelated to and in some ways incompatible with the administration of justice – a view expressed by British Columbia Chief Justice Allan McEachern (albeit largely with reference to trial proceedings): ‘There is no groundswell of anxiety on the part of the public to televise proceedings. It is being stirred up by the media for their own commercial interests, and they should know better.’56 The other concern relates to the broadcast of snippets of trials. As former British Columbia Justice, and now Court Information Officer, Lloyd McKenzie argues, television coverage would ‘only last for 10 to 15 seconds, so it’s hardly indicative of the whole process’.57 The Internet, as

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Bettina Teodoro, ‘Cameras Before the Courts’ (2001) 3(4) University of British Columbia Journalism Review, www.journalism.ubc.ca/thunderbird/archives/2001.04/ cameras.html at 8 April 2007. Vancouver Independent Media Centre, Metalclad v United Mexican States NAFTA Appeal – Hour 1 (2001), http://vancouver.indymedia.org/news/2001/02/645.php at 25 June 2004. Charles Wright, Director of VTV’s News at Six, quoted in Teodoro, above n. 53. Ibid. 57 Ibid.

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Indymedia illustrated, is not subject to the same time constraints as commercial television, and thus is well suited to making gavel-to-gavel footage available to the public. This should make it attractive to judges. As Justice Bennett conceded in R v. Pilarinos and Clark:58 ‘There are good reasons presented for permitting expanded media coverage in a courtroom, particularly where there will be complete coverage of the trial.’59

C Coverage of trial proceedings 1 Introduction The distinction which many Canadian judges continue to draw between the televising of trial and appellate proceedings was emphasised by Justice McLachlin (as she then was), who while recounting the Supreme Court’s favourable experiences with camera coverage,60 also noted the widely held ‘concern that the presence of cameras might adversely affect the privacy of witnesses or turn the already difficult task of testifying into an ordeal’. On that basis she concluded that ‘trial proceedings are better left to take their course outside the glare of television cameras’.61 That favourable experiences with the broadcasting of appellate proceedings do not appear to have significantly altered this perception, is illustrated in Nova Scotia where, even in the light of the successful experiences in the Court of Appeal, trial courts remain closed to cameras.62 What is perhaps most surprising about the continued existence of the judiciary’s fears regarding the effect of televising on trials and their participants is that they cannot be said to flow from or reflect Canada’s own extensive and largely problem-free experiences with cameras in trial courts.

2 Extent of coverage in trial courts Though it is often not acknowledged, and sometimes even denied,63 some Canadian trial courts have permitted and continue on occasion to permit camera access to trial proceedings. This has led most 58 60 62

63

R v. Pilarinos and Clark 2001 BCSC 1332. 59 Ibid. at [228]. Beverley McLachlin, ‘OJ and All That’, above n. 1. 61 Ibid. 381. See Guidelines for Press, Media and Public Access to the Courts of Nova Scotia (22 February 2006), Press/Media Related Rule E (Cameras) (1) (Trial Courts), which states: ‘When the Court is in session, cameras – including television cameras – are not to be used in any courtrooms in the province.’ www.courts.ns.ca/media_access/media.htm at 8 April 2007. As Justice McLachlin’s remark that ‘[n]o trial court permits proceedings to be televised’ illustrates. See Beverley McLachlin, ‘OJ and All That’, above n. 1, at 381.

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jurisdictions to gain at least some experience of cameras in trial proceedings.64 A notable instance of television cameras being permitted to record proceedings in the Federal Court-Trial Division occurred in 1993, when the recording of a Federal Court trial was stopped by the Chief Justice of the Ontario Court. Because the trial was being conducted in a Toronto courthouse, the Chief Justice enforced Ontario’s statutory prohibition on cameras in Ontario court premises. Daniel Henry suggests that the incident was the catalyst for RTNDA’s subsequent proposal of a Federal Court pilot project.65 Though Ontario has imposed a statutory prohibition on audio and visual recording of court proceedings since 197466 and remains the only Canadian jurisdiction to have imposed a statutory ban on such coverage, the Province’s courts have on occasion permitted trial proceedings to be broadcast and even conducted Canada’s first experiment with camera coverage in 1982. During that experiment over fifty hours of courtroom footage, ranging from the lower courts to the Court of Appeal, were recorded and broadcast in a television documentary series.67 Ontario trials which were subsequently recorded and broadcast include a 1985 murder trial in Kingston, which was recorded in its entirety,68 Justice Woodworth’s sentencing of an environmental offender in the Provincial Court in 1993, and 1994 proceedings in an Ontario Assignment Court.69 Television cameras have also recorded trials in the provinces of British Columbia, Alberta, Manitoba, Newfoundland and Nova Scotia and in the Northwest Territories. A number of trial proceedings were recorded in 1991 for a CBC report on Youth Courts in Alberta and were broadcast on local and national Canadian news programmes.70 Segments of six trials conducted by a judge on circuit in the 64

65 66

67

68 69

Daniel Henry outlines the history of cameras in Canadian courts. See Henry, ‘Electronic Public Access to Court’, above n. 5, at 414–16; Daniel J. Henry, ‘Electronic Public Access to Court: A Proposal for its Implementation Today’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), pp. 441, 459–64. Henry, ‘Electronic Public Access to Court’, above n. 5, at 415–16. Judicature Act, RSO 1970, c. 228, s. 68a adopted in SO 1974, c. 81, s. 3. See Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 448; Courts of Justice Act, RSO 1990, cc.43, s. 136. For details of this series, see Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 460. R v. Clow (1985) 44 CR (3d) 228 (Ont. CA). Henry, ‘Electronic Public Access to Court’, above n. 5, at 415. 70 Ibid.

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Northwest Territories were recorded by CBC for their 1985 documentary series Lawyers.71 In 1990, the Manitoba Court of Queen’s Bench permitted television cameras to record a criminal trial (although the recordings were ultimately not broadcast).72 In 1989, CBC Newfoundland recorded and broadcast segments of a Nova Scotia trial for a documentary on Judge Igloliorte, the province’s first native judge, and the following year a Newfoundland trial was recorded and broadcast in a television report on impaired driving.73 The most significant recent televising of Canadian trial proceedings occurred in July 2000 when British Columbia Supreme Court Justice Ronald McKinnon permitted television and radio access to record and broadcast counsels’ final submissions and his own instructions to the jury in R v. Cho,74 the trial of nine Korean sailors alleged to have smuggled Chinese migrants into Canada.75 The subsequent broadcast, in August 2000, has been described as the ‘first live broadcast of part of a first instance trial in Canada’.76 The proceedings of numerous public inquiries and other quasijudicial bodies have also been routinely recorded and broadcast.77 Some such proceedings have been broadcast internationally. For example, the proceedings of a Canadian immigration hearing of alleged war criminal Konrad Kalejs by a Toronto tribunal, in which he faced deportation to Australia, was shown on an Australian television news and current affairs programme, The 7.30 Report, in January 1997.

3 Why trial court coverage has been denied While many trials have been permitted to be recorded and broadcast, most applications have been unsuccessful. An overview of the grounds on which such coverage has been refused serves to reveal the attitudes of various courts and jurisdictions towards the presence of cameras in trial

71 75

76

77

Ibid. 414. 72 Ibid. 415. 73 Ibid. 74 R v. Cho (2000) 146 CCC (3d) 513 (BCSC). Ruling on Request for Court Approval for Audio/Visual Recording of Trial, The Hon Justice R.A. McKinnon, Victoria, BC, 18 July 2000 in R v. Cho 2000 BCSC 1162. Sue Prince, ‘Televising Courtroom Proceedings in Canada: Relevant Considerations for the UK’ (2002) 7 Communications Law 188. See Henry, ‘Electronic Public Access to Court’, above n. 5, at 416; David Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’ in Yves-Marie Morisette, Wade McLauchlan and Monique Oulette (eds.), Open Justice: La Transparence Dans Le Syst`eme Judiciaire (1995), pp. 333, 373–4. Prince also notes that securities commission hearings are routinely televised: ibid. p. 192.

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courts and cameras in courts generally, and the legal basis of their exclusion.

(a) Exercise of discretionary jurisdiction With the exception of Ontario, where legislation prohibits camera access to court proceedings, the common law governs the issue of camera access. Applicable common law includes law ‘developed by the judiciary in the exercise of the inherent jurisdiction of superior courts to control their own process’.78 This discretionary jurisdiction empowers judges to impose restrictions on the publication of information regarding court proceedings and matters pertinent to such proceedings.79 The exercise of this power is subject to constraints imposed by the Canadian Charter of Rights and Freedoms, legislation and the common law, and is guided by courts’ policies and rules of practice. This discretionary power was exercised by British Columbia Provincial Court Judge Kitchen in R v. McSorley80 when he excluded cameras on the grounds that the interests served by such coverage were outweighed by its potentially detrimental impact on participants. In so doing the judge expressed his concern for the likely effect of televising on participants.81 Similarly, in HM the Queen v. Shane Robert Ertmond,82 Justice Oppal refused camera access, on the grounds that it would not be ‘in the interest of justice to grant permission to televise a trial’,83 even though it was the accused who applied for an order permitting the televising of his murder trial. In other Canadian cases, courts have ruled that the interests of the speedy administration of justice outweighed the interests likely to be served by camera coverage. For example, when in 1995 CBC and the RTNDA sought permission to broadcast proceedings in the high profile Ontario trial of Paul Bernardo, charged with raping and murdering two 78

79 80 82

83

Attorney-General of British Columbia, ‘Factum of the Respondent, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [43]. For a discussion of the inherent jurisdiction, see I. H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23, 27–8; discussion by Justice Bennett, R v. Pilarinos and Clark 2001 BCSC 1332 [26–8]; Attorney-General of British Columbia, ‘Factum of the Respondent, R v. Pilarinos and Clark’ Court File No. 28823 (2002) [43–7]. See R v. Pilarinos and Clark 2001 BCSC 1332 [26]–[30] (Bennett J). 2000 BCPC 114. 81 R v. McSorley [2000] BCJ No. 2639 (QL) (Prov. Ct) 3. Unreported, New Westminster Registry, No. X059360, 3 May 2002, cited in AttorneyGeneral of British Columbia, ‘Factum of the Respondent, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [51], [125–7]. Ibid. [51].

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schoolgirls,84 Justice LeSage declined to hear argument on the application (which though supported by the defendant, was strenuously opposed by the families of the victims)85 ruling that televising would further delay an already drawn-out case.86 That the inherent power of judges to control proceedings extends to the vicinity of courtrooms was illustrated in Ontario in 1973, a year before the province’s imposition of its statutory prohibition. In possibly Canadian courts’ first encounter with the issue of cameras in courts, the presence of a television camera crew attempting to record courtroom participants leaving a high profile child custody hearing in the Ontario Court of Appeal was perceived to cause ‘confusion’ and caused Chief Justice Gale to ask them to leave the court building.87

(b) Common law rule In some instances cameras have been excluded from trial proceedings on the basis of a common law rule barring cameras from courtrooms. In rejecting a 1994 application seeking admission of cameras to the criminal trial of R v. Fleet,88 Nova Scotia Supreme Court’s Palmeter ACJSC observed: There are in Canada procedures in place for our Superior Courts not to allow cameras in the courts. Very few trials have been filmed or televised to my knowledge . . . This restriction is not set forth in Statute but has been accepted by Courts of all levels in our province.89

In denying television camera access to record the 1992 trial of a former Premier of the province in R v. Vande Zalm,90 British Columbia Chief Justice Essen also recognised the existence of such an unwritten rule of court, but in the absence of full submissions left open the question of whether it had the force of law.91 In dismissing a media application seeking radio and television access to the trial of former British Columbia Premier Clark,92 in September 84 85 86

87 88 89

90 92

R v. Bernardo (1995) 38 CR (4th) 229 (Ont. Gen. Div.). ‘Televising Bernardo’, Maclean’s (Toronto), 20 February 1995, p. 17. ‘Banning the cameras’, Maclean’s (Toronto), 20 March 1995, p. 19; ‘Could it happen here?’, Maclean’s (Toronto), 18 July 1994, p. 2. Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 459. R v. Fleet (1994) 137 NSR (2d) 156 (SC). Ibid. at 158–9; R v. Fleet [1994] NSJ No. 505 (QL) [12] cited in Attorney-General of British Columbia, ‘Factum of the Respondent, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [49]. R v. Vande Zalm [1992] BCJ No. 3065 (QL) (SC). 91 Ibid. at [3–5]. R v. Pilarinos and Clark [2002] BCSC 1267.

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2001, British Columbia Supreme Court Justice Bennett relied on Chief Justice Essen’s ruling in declaring that common law in British Columbia was that no cameras may be used in the courtroom during a trial or other proceeding.93

(c) Court rules, policies and guidelines A number of provincial courts have adopted written rules, policies and guidelines prohibiting camera coverage. In 1974, Quebec Superior Court judges imposed a blanket prohibition on cameras and currently rules of procedure for all Quebec courts prohibit recording devices.94 This rule was implemented to deny an application brought in 1996 seeking permission to televise a libel case brought by former Prime Minister Mulroney against the Federal Government.95 Manitoba courts’ current policy on media coverage states: ‘Media cameras are not permitted in court facilities in Manitoba, unless prior permission has been granted by the Chief Justices and Chief Judge. Requests for camera access can be made to the Executive Assistant to the Chief Justice and Chief Judge.’96 The New Brunswick Court of Queen’s Bench ‘has adopted a ‘‘bench rule’’ prohibiting making video and audio recordings in courtrooms subject to certain limited exceptions’.97 In Saskatchewan ‘cameras and sound recording devices are not permitted to be used within a courthouse without the permission of a presiding judge’.98 With the permission of a presiding judge, photography and sound recording equipment will be permitted for the 93 94

95

96

97

98

R v. Pilarinos and Clark [2001] BCLR 2d 1332, [43], [56]. Global BC et al, ‘Appellant’s Factum, R v Pilarinos & Clark’ Court File No. 28823 (2002) para. 21; citing R`egle 38 des R`egles de pratique de la Cour sup´erieure du Qu´ebec en mati´ere civile, RRQ, 1981 cC-25, r. 8. See discussion of Quebec’s earlier rules of practice in Law Reform Commission of Canada, Public and Media Access to the Criminal Process, Working Paper 56 (1987), p. 37. Email from Dan Henry (CBC) to author, 29 January 1994. In 1996, former Prime Minister Brian Mulroney sued the Royal Canadian Mounted Police and the Canadian Department of Justice over allegations that he had received Kickbacks from the sale of Airbus aircraft to Air Canada in the 1980s. The allegations were never substantiated and the case was settled. Manitoba Courts, Court Policies/Practices Affecting Media Coverage, www.manitoba courts.mb.ca/media.html#policies at 9 April 2007. Attorney-General of Canada, ‘Factum of Intervener, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [26]. Ibid. citing R v. Thatcher [2000] SCCA 554 (QL).

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purpose of recording ceremonial occasions and ‘the presiding judge in the courtroom may also allow [photography and sound recording] equipment in other situations’.99 Camera access to Alberta courts is currently governed by ‘a policy directive of not allowing filming in the courtroom except in certain limited circumstances’.100 The Nova Scotia Provincial Court has also adopted media guidelines restricting camera coverage to sentencing hearings only, and vesting presiding judges with a ‘broad discretion . . . to restrict or rescind an order for television coverage’.101 Camera access, permitted by Justice McKinnon in R v. Cho, prompted the British Columbia Supreme Court Chief Justice Donald Brenner to issue a Press Release on 18 April 2001, in which he announced a court policy on television coverage and advised that: ‘The Court will also be preparing guidelines for the broadcast or televising of court proceedings. To ensure general acceptance these will be prepared by the judiciary in consultation with the bar, the media and others with a demostrable interest.’102 The Policy on Television in the Courtroom, which the British Columbia Supreme Court had adopted on 9 March 2001, was released to the public on 6 June 2001.103 It states: There shall be no broadcasting, televising, recording or taking of photographs in the courtroom, or areas immediately adjacent thereto, during sessions of court or recesses between sessions, unless the parties to the proceeding consent, and unless prior permission has been expressly granted by the presiding judge, following application upon timely notice 99

100

101

102

103

As noted in Supreme Court of British Columbia, Policy on Television in the Courtroom (2001) (adopted on 9 March 2001), www.courts.gov.bc.ca/sc/Tv/Tv%20in%20the%20 Courtroom.html at 9 April 2007, in Part IV ‘Overview of Guidelines in Canada and the Commonwealth’. ‘Alberta Policy re Cameras and Recording Devices in Courthouses and Courtrooms’, cited in Attorney-General of Canada, ‘Factum of Intervener, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [26]. Media Guidelines for Cameras in the Nova Scotia Provincial Court [10]–[11] cited in Attorney-General of Canada, ‘Factum of Intervener, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [25]. Chief Justice Donald I. Brenner, ‘Televised Court Proceedings’, Press Release, 18 April 2001. See Supreme Court of British Columbia, Policy on Television in the Courtroom, above n. 99; Supreme Court of British Columbia, Revised Draft Guidelines for Television Coverage of Court Proceedings (2003), www.courts.gov.bc.ca/Sc/TV/Draft%20Guidelines.html at 9 April 2007.

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to the parties, and subject to such conditions as the presiding judge may prescribe to protect the interests of justice and to maintain the dignity of the proceedings.

In April 2001, British Columbia Provincial Court Chief Judge Baird Ellan also issued a memorandum, stating that the Provincial Court’s interim position was: that there should be a presumption against allowing proceedings to be televised or broadcast, if to do so might cause discomfort to any witness, have the potential effect of deterring witnesses in any future similar cases, or otherwise potentially hamper the ongoing administration of justice in the province.104

On 20 April 2004, the Provincial Court of British Columbia Media Policy was published.105 It provides that applications may be granted at the discretion of the presiding judge, provided that he or she finds that it is in the public interest that the proceedings be broadcast, and that to do so will not cause any of a number of listed detrimental effects. Though unlike the Supreme Court’s policy, it is not worded as a prohibition, and does not expressly require the consent of the parties, the Provincial Court’s policy provides that the Supreme Court’s Policy and Guidelines on Television Coverage of Court Proceedings may be used as a guide in assessing the merits of an application, and that the applicant bears the onus of establishing that the prescribed conditions are met. The constitutional validity of the British Columbia and Ontario Court policies has been unsuccessfully challenged and is discussed further below.106

(d) Statutory prohibition Applications seeking camera access to Nova Scotia trials have had to comply with the requirements of Canada’s only statutory prohibition on courtroom recording.107 The prohibition, which has been in force since

104 105

106 107

Provincial Court of British Columbia, Media Access Policy (2001). Provincial Court of British Columbia, Media Access Policy (2004), www.provincialcourt.bc.ca/downloads/pdf/MediaPolicyApril2004.pdf at 9 April 2007. See further discussion below D.4 and 5. Courts of Justice Act, RSO 1990, cC-43, s. 136: Prohibition Against Photography etc., at Court Hearing (1) Subject to subsections (2) and (3), no person shall,

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1974,108 prohibits audio or visual recording and broadcast of court hearings and persons entering, leaving or in court buildings for the purpose of attending court proceedings. It permits recordings undertaken for ‘educational or instructional purposes’ authorised by a judge with the consent of the parties and witnesses. Television networks seeking to broadcast proceedings have experienced significant difficulties in complying with Ontario’s statutory requirements, in particular with the need to obtain the consent of all parties. During Ontario’s 1982 experiment with cameras, only seven out of twenty-two applications proved successful.109 In 1984, permission to record the murder trial of R v. Clow was only secured through negotiations which lasted over a year. Noting that in 1994 CBC failed to gain permission to record sufficient footage to warrant the broadcast of a ‘report on a day in the life of a judge’, Dan Henry likened the experience to ‘trying to do a story on a garage mechanic without being able to show him work on a car’.110 The unsuccessful challenge of the constitutional validity of Ontario’s statutory prohibition in the Ontario Court of Appeal in Squires111 is discussed below.112

(a) take or attempt to take any photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise, (i) at a court hearing, (ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or (iii) of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the proceeding; (b) publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a); or (c) broadcast or reproduce an audio recording made as described in clause 2(b). . .

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109 110 111

(3) Subsection (1) does not apply to a photograph, motion picture, audio recording or record made with authorization of the judge, . . . (c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves. Section 67 of the Judicature Act, RSO 1970, c. 228, s. 68a adopted in SO 1974, c. 81, s. 3. See Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 448, 459–60. For details of this experiment see ibid. 460 and discussion below C.4(a). Henry, ‘Electronic Public Access to Court’, above n. 5, at 415. R v. Squires (1992) 78 CCC (3d) 97. 112 See below D.4 for a further discussion.

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4 What have experiences in trial courts revealed? (a) Fears are not substantiated An examination of Canada’s experiences with cameras in trial courts reveals concerns expressed for such coverage not to be substantiated. In particular, Canada’s only experiment that formally evaluated cameras in trial courts, conducted in Ontario in 1982, was declared a success by participants and observers. As Ontario’s 1974 imposition of the statutory prohibition of filming and photography in and around Ontario courts had been enacted on the recommendation of Chief Justice Gale and other Ontario judges, access to Ontario courts remained closed until 1980 when Justice Howland, Ontario’s new Chief Justice, convened a meeting of representatives of the Ontario bench, Bar and media to discuss how court reporting could be improved, and to consider whether televising ought to be permitted.113 Following this meeting, the RTNDA undertook a study of the televising issue, which led it to propose that experimental recordings be undertaken within the existing statutory constraints. The proposal was accepted and courtroom recordings were undertaken in mid-1982. Proceedings ranging from the lower courts to the Court of Appeal were subsequently recorded. The recorded footage was broadcast in a documentary series, by all of Ontario’s English-language television stations.114 Daniel Henry reports that ‘[t]he videotape recording in court proceeded without a single practical problem for participants in the hearings involved’.115 Questionnaires sent out to all participants revealed few adverse views of courtroom television. The Bench and Bar Council’s Special Committee on the Media is reported to have been unanimous in expressing satisfaction with the recording of the series.116 The Council’s findings as to the effects of the presence of television cameras were that ‘The cameras and microphones were unobtrusive, there had been no interference with the rights of the accused to a fair trial, and the dignity of the courts had been preserved.’117 The feedback of judges and lawyers who participated in the televised proceedings suggested that they had not been adversely affected by the coverage. A Justice of the Ontario 113 114 117

Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 460. For details of this experiment see ibid. 115 Ibid. 116 Ibid. 461. Ontario Bench and Bar Council, Television in the Courts: Background Paper 6 (September 1983) cited in ibid.

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Supreme Court is said to have observed: ‘I was hardly aware that there was a camera there’, while two defence counsel reported that they too were hardly aware of the media presence.118 Ontario’s experiment appeared to demonstrate that the televising of trials need not adversely affect proceedings. Daniel Henry argues that the experiment ‘proved that the electronic media, acting responsibly, can convey the judicial process to the public while keeping the dignity that Gale CJ felt precluded electronic media access in the first place’.119 In addition, the experience also appeared to underline the benefits of bench, Bar and media cooperation. The televising of R v. Cho in 2000 also appears to support favourable findings as to the effect of cameras in trial proceedings. Following that case, Justice McKinnon issued a ‘preliminary view from the bench’ in which he observed: We all accepted that this was an experiment to see whether expanded coverage could work without compromising the dignity of the courtroom and the right of an accused to a fair trial. In this case I think that we were successful. Others may disagree, but I believe the proceedings were conducted no differently from any trial. All media involved behaved professionally, protecting the anonymity of jurors and complying with my directives in respect of other persons. The video cameraman and photographer were discreet, their equipment was relatively unobtrusive and no one involved seemed to pay the slightest attention to them.120

Such a favourable assessment of the event appears to be supported by one of the defence lawyers who, having initially opposed the television access, is reported to have later observed that ‘once he began his closing arguments, he did not even notice the camera’.121 Similarly, Canada’s extensive experience of electronic media coverage of public inquiries and other quasi-judicial proceedings has revealed little to substantiate concerns. In the Ontario Royal Commission of Inquiry into Certain Deaths at Hospital for Sick Children and Related Matters (‘Grange Commission’) (which was subject to photographic, television and radio coverage for several months), participants were reported to have been unaffected and only one witness asked to have the cameras turned off for 118 121

See responses cited in ibid. 119 Ibid. 120 20 August 2000. See Dan Burnett, ‘The Battle for Cameras in Court’, Broadcast Dialogue (March 2002), p. 37, www.broadcastdialogue.com/article_view.asp?action=view&idnumber=333 at 9 April 2007.

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his testimony. Arguably illustrating the distinction between perceived concerns and those actually encountered through experience, a solicitor is said to have objected to the televising of his client’s testimony at the beginning of the hearings. The Commissioner agreed to consider the objection at the relevant time, but did not have to do so as the objection was not raised when the client was called to testify.122 The Commission’s counsel observed: I was satisfied that the unobtrusive presence of cameras did not disrupt the proceedings in any way – indeed, we had more disruptions from press photographers with still cameras – and did not to any discernible degree influence the behaviour of any of the participants in the hearings.123

In noting that the recordings had not adversely impacted the hearings, the Commissioner observed that the coverage may have had a beneficial effect on him and counsel, noting that: Counsel, while still, I’m afraid, a little on the long-winded side, have generally been better behaved and the witnesses don’t seem to be affected at all. And on the very good side, the judge is much less likely to pontificate or to fall asleep.124

Acknowledging the public benefit of televising not only public inquiries but also courts proceedings, the Commissioner observed ‘The public must know what goes on in our courts and the only way they can get a proper conception is the way they get their conception of all our institutions, i.e. through television.’125

(b) Dangers can be minimised through appropriate regulation Canada’s trial court experiences have also revealed that whatever dangers may be posed by the presence of cameras at trials and the subsequent broadcast of such recorded footage, they can be controlled through appropriate regulation and imposition of restrictions. A recent illustration of such regulation may be found in R v. Cho126 where Justice McKinnon denied permission for any recording of 122 123

124

125

See Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 463–4. P. S. A. Lamek, ‘Comment: A Middle Way’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 499. Justice Grange, ‘Justice and the System’ (1985) Law Society of Upper Canada Gazette 125, 128 cited in Law Reform Commission of Canada, Public and Media Access to the Criminal Process, above n. 94, at pp. 38, 91. Ibid. p. 127. 126 R v. Cho 2000 BCSC 1162.

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witnesses and the accused while permitting video and still cameras to record counsel’s submissions to the jury and his own instructions. He imposed such restriction in response to submissions that noted the safety concerns of defence witnesses and raised issues of fairness flowing from the fact that as the Crown case had been completed only defence witnesses would be shown.127 The Guidelines which governed Ontario’s 1982 experiment were deemed to have worked so well that the RTNDA proposed them as model guidelines for court televising throughout Canada.128 The Law Reform Commission of Canada was similarly impressed, proposing in 1987 that they be utilised in the national televising experiment it proposed.129

(c) Challenges to positive evaluations: problems identified As the written submissions filed in the Clark appeal to the Supreme Court reveal, opponents of the televising of Canadian court proceedings challenge the conclusion that concerns have been shown to be unfounded, and set out contrary views as to potential dangers and negative perceptions of Canada’s experiences. The broadcast of footage from the 1984 murder trial, R v. Clow130 has been a focal point in the criticism of Canadian experiences. In that case, the CBC had been granted permission to record the trial, with the

127 128

129

130

Ibid. at [32], [33], [37]. Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 460–1. The key features of the ‘model guidelines’ were that they: restricted the number of cameras, audio systems and operators to be employed in courts; required microphones and wiring to be unobtrusive and located in designated places; made pooling arrangements the responsibility of the media; required all equipment to be approved by the court and stipulated sound and light criteria which barred the use of equipment causing light or sound distraction; required in-court equipment and personnel to be minimal and located in fixed designated positions; required the attire and behaviour of media personnel to be such as not to distract or interfere with the dignity of the court; prohibited the recording of communications between lawyers and between lawyers and their clients; and made recordings of proceedings inadmissible as evidence in subsequent proceedings. See ‘Model Guidelines Governing Electronic Public Access to Proceedings’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 441, Appendix 2, p. 487; ‘RTNDA ‘‘Model Guidelines Governing Electronic Public Access to Proceedings’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 10, Appendix 34. See Law Reform Commission of Canada, Public and Media Access to the Criminal Process, above n. 94, at p. 90. R v. Clow (1985) 44 CR (3d) 228 (Ont. CA).

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consent of the parties as required by Ontario law, and on an undertaking ‘that jurors would not be identifiably depicted in the broadcast footage’.131 Criticism of the nationally broadcast footage was referred to by British Columbia Supreme Court Justice Bennet in her judgment in Clark as evidence substantiating certain concerns regarding the televising of trials. In particular Justice Bennett noted that ‘[the] witnesses’ testimony as shown on the documentary was sometimes reversed or moved to a different place in the trial. It was not broadcast in a chronological manner’.132 This she held illustrated how ‘editorial capabilities of electronic media could effectively distort the reality of the proceedings’.133 Similarly, David Lepofsky has used the Clow case in support of his argument that editing ‘can create a different impression in the viewer’s mind than would have occurred in the courtroom had the viewer been present; this can happen even where the editor does not seek to distort or manipulate the message’.134 Noting that ‘jurors were accidentally filmed and their image broadcast in spite of a prohibition by court order’,135 Justice Bennett also suggested that the imposition of restrictions on media coverage could not be relied on to avoid unnecessary pressure being placed on jurors and thus affecting their judgment.136 Justice McKinnon’s positive assessment of the experience in R v. Cho has been challenged by Peter La Prairie, the lead prosecutor in that case. He has alleged that a number of concerns were created by the recording of that trial, including clients’ safety concerns if their images were broadcast, and concerns by jurors who did not wish to have their images broadcast. He has also been critical of what he saw as the shift in emphasis away from the issue in the case, which he attributed

131 132 133

134

135

136

Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’, above n. 77, at 350. R v. Pilarinos & Clark 2001 BCSC 1332 [157(c)]. Ibid. citing David Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’ (1996) 6 National Journal of Constitutional Law 161, 171; Christo Lassiter, ‘TV or Not TV – That is the Question’ (1996) 86 Journal of Criminal Law and Criminology 928, 980. See Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’, above n. 77, at 341, where he also mentions a case study of how the courtroom footage of Clow was used. See also James M. Linton and M. Gerace, ‘The Real World of the Courtroom: An Analysis of a Television Documentary about a Murder Trial’ (1990) 10 Windsor Yearbook of Access to Justice 127. R v. Pilarinos and Clark 2001 BCSC 1332 [157]. See also Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’, above n. 77, at 350. R v. Pilarinos and Clark 2001 BCSC 1332 [222].

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to the presence of the television camera and still photographer in the courtroom.137 Opponents of cameras in courts have also questioned the positive assessments of Canada’s experiences of televised public inquiries and Royal Commissions. Thus, David Lepofsky has dismissed the pro-cameras remarks of some Commissioners as ‘sporadic anecdotal observations’ by persons who are ‘not in a good position to appreciate the impact of camera coverage on witnesses, parties or counsel’.138 Pointing to a lack of a formal systematic study of the impact of television cameras on participants in these proceedings, he has argued that ‘it is not accurate to assert as a fact that cameras have not posed problems during Royal Commission proceedings’.139 Even in the absence of formal studies, he has argued that ‘we know that there have been significant problems with cameras in Royal Commissions’.140 In this respect he has cited television replays of explicit, personal and emotional testimony in the Royal Commission into the sexual abuse of young boys at the Mount Cashel Orphanage in Newfoundland, and in the 1993 Judicial Discipline Inquiry into sexual harassment allegations against a Toronto Provincial Court judge.141 The factum filed by the Intervener, Attorney-General of Manitoba, in the Clark appeal to the Supreme Court also highlights problems encountered in the televised coverage of the Donald Marshall Inquiry, which it was submitted ‘provides a case study of what difficulties would be encountered by the criminal justice system if television coverage became the norm’. In particular two instances were cited where repeated motions accompanied by psychological assessments ‘had to be lodged before the Commissioners agreed that the cameras should be turned off ’.142 Critics also argue that public inquiries need to be distinguished from judicial trials. Thus, with reference to the above-mentioned problem in the Donald Marshall Inquiry, it has been argued that: while perhaps the system can tolerate this procedure during the handful of public inquiries that take place each decade such a procedure would 137

138 139 142

See affidavit evidence filed by the respondent in the R v. Pilarinos and Clark appeal to the Supreme Court of Canada: Attorney-General of British Columbia, ‘Factum of the Respondent, R v. Pilarinos & Clark’ Court File No. 28823 (2002) Appendix A, Compendium of Transcript and Affidavit Evidence of Adverse Effects of Cameras in Court, at 1. Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’, above n. 77, at 374. Ibid. at 373–4. 140 Ibid. at 374. 141 Ibid. Attorney-General of Manitoba, ‘Factum of Intervener, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [55].

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cause havoc if required during the hundreds of criminal trials, bail hearings and appearances that take place daily. Requiring the Crown or defence to bear the onus of establishing that cameras ought not to be allowed would create significant delay and expense and would greatly increase the stress of the participants.143

Similarly, Lepofsky has argued that: Even if the experiences with cameras at Royal Commissions had been problem free, it would not justify the introduction of cameras into Canadian courts absent participant consent. Royal Commissions are not the same as court proceedings, even though they superficially look similar in some respects. Royal Commissions do not decide the rights of the parties. A Royal Commission’s purpose is to have as public as possible an airing of some controversial issue. In contrast, court proceedings aim at resolving the legal rights and obligations of opposing parties. While court proceedings must be conducted in public to secure public confidence and to avoid official abuse, they need not be televised.144

(d) Assessment as reflection of personal views rather than evidence As the above outline of positive and negative assessments of Canada’s experiences reveals, the effect of cameras in trial proceedings causes the evidence to be regarded as inconclusive. It tends to be assessed favourably by judges and lawyers who have participated in televised hearings, and be denounced by those who rely on occasional problems and on perceptions of potential dangers. Thus, rather than being attributable to actual experiences with audio-visual coverage, the imposition and retention by Canadian courts of virtual prohibitions may be said to reflect the entrenched views of some senior members of the judiciary. In this respect Ontario’s statutory ban may persuasively be presented as a reflection of the views of Chief Justice Gale,145 who was instrumental in its enactment, and those of Chief Justice McMurty, who was Ontario’s Attorney-General when it was enacted, and continues to defend it on the 143

144

145

Ibid. [55], citing Novia Scotia Royal Commission on the Donald Marshall Jr Prosecution, Marshall Report (December 1989), pp. 340, 341; Newfoundland Royal Commission of Inquiry into the Criminal Justice System, Hughes Inquiry (June 1989). Lepofsky, ‘Cameras in the Courtroom: Not Without My Consent’, above n. 77, at 373–4. The views of Chief Justice Gale as set out in Gale CJ, ‘The Problems of Television in the Courtrooms’ (1974) 8 LSUC Gazette 4, 5 have been described as significantly influenced by the US Supreme Court decision in Estes, see Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 459.

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grounds that allowing cameras into trial courts would ‘risk polluting the justice system for the sake of mere entertainment’.146

(e) Opposition in spite of findings and recommendations The Canadian judiciary’s anti-televising policies appear to have been formulated in spite of numerous contrary recommendations and favourable findings of studies and Canadian experiments. For example, in adopting its resolution that televising would not be in the interests of the administration of justice and therefore should not be allowed in court proceedings, at its 1983 annual meeting147 the CJC chose to ignore the favourable report regarding American and Ontario experiences which it had received from the Ontario Bench and Bar Council following Ontario’s successful 1982 experiment.148 As Justice Zuber observed in 1987, the CJC’s recommendation effectively terminated the Ontario experiments and any movement towards ending the province’s statutory prohibition.149 During the late 1980s the legal profession was particularly vocal in calling for the admission of cameras into courts. In its 1986 submission to the Ontario Courts Inquiry, the Canadian Bar Association of Ontario had recommended that greater public access to courts through electronic media coverage should be allowed.150 Consequently in his 1987 Report of the Ontario Courts Inquiry Justice Zuber recommended the amendment of section 146 of Courts of Justice Act to enable the undertaking of a two-year experiment.151 In adopting the recommendations of its Special Committee on Cameras in the Courts, which had undertaken an eighteen-month study of the issue, the Canadian Bar Association abandoned its opposition to cameras in courts in 1987 and proposed that ‘television and photographic media be given access to a judicial system for a two-year period’ in civil and criminal cases at both trial and appellate level.152 146

147

148 149 150

151 152

Cited by Cristin Schmitz, ‘Ontario’s Chief Justice Rejects Televising Trial Proceedings’ (2003) 22(41) Lawyers Weekly. See discussion in Henry, ‘Electronic Public Access to Court: A Proposal’, above n. 64, at 462. See background paper extract, cited in ibid. 461–2. Cited in Linton, above n. 3. Submission to Ontario Courts Inquiry (1986), Recommendation 6.15 c6 28, referred to in Law Reform Commission of Canada, Public and Media Access to the Criminal Process, above n. 94, at p. 89. Linton, above n. 3; Henry, ‘Electronic Public Access to Court’, above n. 5, at 418. See Henry, ‘Electronic Public Access to Court’, above n. 5, at 418.

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The Canadian Media Lawyers Association, formerly known as Advocates in Defense of Expression in the Media (Ad Idem),153 has also played an active role, not only in promoting awareness of the issues but in participating in legal appeals of decisions such as that of Justice Bennett in Pilarinos and Clark.154 The Law Reform Commission of Canada also recommended reform, concluding in its 1987 Working Paper No. 56, Public and Media Access to the Criminal Process, that there was: no reason to suspect . . . that electronic media coverage of [criminal] appeals would in any way interfere with these proceedings, so long as the court was able to maintain an atmosphere of decorum conducive to a proper hearing on the matters before it.155

The Commission stressed that lingering doubts regarding the impact of electronic media could only be resolved, and an informed decision on blanket electronic coverage could only be made, following a comprehensive empirical study. Consequently, the Commission recommended that: ‘electronic media coverage should be permitted in relation to appeals in criminal cases’;156 and that ‘[a] national experiment with electronic media coverage of criminal trials should be conducted with a view to studying comprehensively the impact of the presence of video and still cameras and audio recorders on witnesses, counsel, judges and jurors’.157 A number of media organisations have also urged reform and challenged laws and court rules barring cameras from courts. The Canadian Broadcasting Corporation has led the media by lobbying for reform, and participating in virtually every application seeking camera access to courts and judicial challenge of restrictions. The CBC’s active role may in large measure be attributed to the efforts of its Senior Counsel, Daniel J. Henry. The Radio and Television News Directors’ Association of Canada has also played an active role in lobbying for reform, undertaking studies, formulating guidelines and being a party to legal challenges of restrictive policies. 153

154 155

156 157

Advocates in Defense of Expression in the Media, New Developments, http://adidem. org/index.shtml at 9 April 2007. R v. Pilarinos and Clark 2001 BCSC 1332. Law Reform Commission of Canada, Public and Media Access to the Criminal Process, above n. 94, at p. 89. Ibid. p. 100, Recommendation 23(1). Ibid. Recommendation 23(3). See also discussion in Linton, above n. 3.

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As noted earlier, the Canadian Judicial Council abandoned its opposition to the televising of appeal proceedings in 2002. However, it remains firmly opposed to the televising of trial proceedings. In 2000, as part of the re-examination of its opposition, the CJC asked Chief Justices to ascertain the views of their judges. According to Quebec’s Chief Justice Michaud this polling revealed ‘that a vast majority of trial court judges in this country are firmly opposed to it’.158 I was invited to meet with the CJC’s subcommittee of five Chief Justices, which had been asked to examine recent developments and studies. This meeting159 led me to believe that apart from concerns relating to the potentially detrimental impact of such coverage on participants and sensationalist media coverage, some of the judges were resistant to camera coverage because they saw it as a media demand which was driven by commercial interest and was thus inherently incompatible with the interests of the administration of justice. In that meeting I urged the subcommittee to assess the merits of camera access as a means by which courts could enhance public access and understanding of courts and advocated the desirability of courts rather than the media playing the leading role.160 In 2001, with only one dissenting voice, the subcommittee recommended that the CJC reconsider its stance. The CJC rejection of this recommendation in September 2001, and the re-affirmation of its opposition to the televising of trial proceedings in March 2002, is difficult to reconcile with the Council’s active role in promoting cooperation between courts and the media, and its urging of courts to adopt a proactive stance towards the utilisation of media publicity.161 The basis of its continuing opposition appears to be, as the Council noted in advising its new policy, that ‘Many council members remained concerned about television’s effect on witnesses, jurors and trial proceedings generally.’162 This underlines the crucial role which a dominant perception that evidence as to the effect of televising is at best inconclusive is playing in Canada. The frustration experienced by those who point to Canada’s overwhelmingly favourable experiences, and hear rebuttals pointing to the 158 159 160

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Schmitz, ‘Ontario’s Chief Justice Rejects Televising Trial Proceedings’, above n. 146. Held on the morning of 6 June 2001 at CJC Offices in Ottawa. As Associate Chief Justice Jeffrey Oliphant later recognised, see Schmitz, ‘Judicial Council Divided over TV Cameras in Court’, above n. 41. See Canadian Judicial Council, Annual Report 2002–03 (2003), p. 30, http://cjc-ccm. gc.ca/article.asp?id=2274 at 9 April 2007. Canadian Judicial Council, Annual Report 2001–02, above n. 2, at p. 26.

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excesses of media reporting in the O.J. Simpson case, is perhaps best summed up by Associate Chief Justice Jeffrey Oliphant of Manitoba’s Court of Queen’s Bench, a member of the CJC’s subcommittee on television in courts who has also personally chaired televised public inquiries, and presided over a televised trial. He responded to the CJC’s rejection of the subcommittee’s recommendations by observing163 that opposition to televised hearings was ‘outdated and overtaken by events’. Justice Oliphant further noted that he did not know ‘of a single judge who has worked with cameras in a courtroom, or in the setting of a public inquiry where witnesses are giving evidence, who shares the concerns of those opposed to having cameras in the courtroom’. As to O.J. Simpson-based concerns he remarked: ‘If all these problems existed do you really think our American colleagues would allow cameras to remain in the courtroom? I don’t think so,’ and added ‘If the best argument that you can put forward against having cameras in the courtroom is one exceptional disaster then you haven’t got a very good argument.’164 As discussed throughout this book, the inconclusiveness of the evidence as to effects flows from the fact that effects cannot be scientifically evaluated and consequently are reliant on subjective perceptions. The perceived inconclusiveness of evidence has resulted in camera access being effectively barred by policies and guidelines such as those of the British Columbia courts, which ask applicants to establish that proposed televising will not have undesirable effects. What the evidence reveals as to the effect of cameras also has a significant impact on how the issue of camera access is perceived, which legal and constitutional principles are deemed to govern the issue, and how those principles are applied. These issues are considered further below.165

D Rights 1 Introduction Canada’s Charter of Rights and Freedoms and the associated development of a culture of rights have had a significant impact in Canada’s law and society. The Charter’s impact on the issue of cameras in court has come through the changes which the Charter and new Constitution heralded for Canada’s constitutional structure and legal culture – in 163 164

Schmitz, ‘Judicial Council Divided over TV Cameras in Court’, above n. 41. Ibid. 165 See further discussion below D.

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particular through the enhancement of the Supreme Court’s role in judicial review166 and through the Charter’s enumeration and entrenchment of certain rights and freedoms including that of freedom of expression. The Supreme Court’s subsequent development of the law relating to freedom of expression and accompanying growth of a culture of rights have led to a greater acknowledgement of both the courts’ and the media’s roles in promoting open justice, with significant implications for the regulation of court reporting.

2 Impact on Canada’s constitutional structure and legal traditions When the Charter and new Constitution came into force in 1983,167 Canada’s constitutional structure moved away from its Westminster system roots, and in particular Canada’s adherence to the doctrine of sovereignty of Parliament, and associated reliance on representative government and the common law for the protection of individual freedoms.168 Thus, freedom of expression ceased to be reliant on the will of Parliament, as expressed in provisions of unentrenched legislation including the Canadian Bill of Rights Act,169 or on being implied from the Constitution. With its constitutional protection confined to that which the Supreme Court was prepared to imply from the Constitution, structure of government and democratic principles on which they were based, Canada’s pre-Charter constitutional protection of freedom of expression may be compared to the Australian High Court’s current protection of implied freedom of speech.170 By being entrenched and declared a fundamental freedom, freedom of expression in Canada has ceased to be subject to limits determined by Parliament or the common 166

167 168

169 170

Prior to the Charter’s enactment, the Supreme Court’s role was similar to that of the Australian High Court in that the main focus of its work as Prince observed was ‘federal issues of jurisdiction’ and it was ‘mainly concerned with jurisdictional rather than substantive questions relating to human rights and civil liberties’. Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76, at 189. Enacted in 1982 as the Canada Act 1982, and coming into effect on 17 April 1982. See discussion in Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76, at 189. Linton, above n. 3. A principle accepted by the majority of the court in Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1; Australian Capital Television v. Commonwealth (1992) 177 CLR 106; extended in Theophanous v. Herald & Weekly Times (1994) 182 CLR 104, and Stephens v. West Australian Newspapers Ltd (1994) 182 CLR 211; and reformulated in Lange v. Australian Broadcasting Corporation (1997) 145 ALR 96 and applied in Levy v. Victoria (1997) 146 ALR 248.

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law, becoming ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.171

3 Charter’s impact on legal rights principles In enshrining the public and media freedom of expression and the right to a public trial,172 the Charter has exerted a profound impact on the interpretation of the principles of open justice and freedom of expression, leading to a greater recognition of the importance of the media’s access to and reporting of court proceedings. The Supreme Court’s adoption of a purposive approach to the interpretation of rights led Justice Cory in Edmonton Journal to observe ‘It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression’,173 and to conclude that ‘the rights enshrined in s 2(b) should therefore only be restricted in the clearest of circumstances’.174 He went on to state that freedom of expression encompassed a public right to information and that the media played a crucial role in providing such information, noting that: [f]reedom of expression protects listeners as well as speakers. That is to say, as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial . . . Those who cannot attend rely in large measure upon the press to inform them about court proceedings . . . Discussion of court cases and constructive criticism of court proceedings is dependent upon receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from newspapers or other media.175

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173 174

175

Section 2(b) of the Canadian Charter of Rights and Freedoms 1982 states: ‘Everyone has the following fundamental freedoms: . . . (b) freedom of thought, opinion and expression, including the freedom of the press and other media of communication.’ Section 1 states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ Section 11(d) of the Charter states: ‘Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.’ Edmonton Journal v. Alberta (Attorney-General) [1989] 2 SCR 1326, 1336. Ibid.; Edmonton Journal v. Alberta (Attorney-General) (1989), 64 DLR (4th) 577 (SCC) 607. Edmonton Journal v. Alberta (Attorney-General) [1989] 2 SCR 1326, 1339–40.

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In these remarks Justice Cory appeared to echo the views expressed by the US Supreme Court in Richmond Newspapers Inc. v. Virginia176 where such reliance was deemed to validate ‘the media claim of functioning as surrogates for the public’.177 In the 2001 case of R v. Mentuck178 the Supreme Court of Canada deemed Justice Cory’s remarks to be equally applicable to the Charter’s section 11(d) protection of the right to a public trial: This Court has consistently adopted a purposive approach to interpreting the text of the Charter . . . The right to a public trial is meant to allow public scrutiny of the trial process. In light of the purpose, the observations of Cory J in discussing the right to freedom of expression are also apt when applied to the right to public trial.179

Justice Cory’s pronouncement may be said to encapsulate the significance of the Supreme Court’s purposive interpretation of Charter rights for public and media access to judicial proceedings. It is important to note that in New Brunswick Broadcasting v. Nova Scotia180 Justice Cory also recognised the television medium’s unique capabilities to enhance open justice. On this basis he denounced the exclusion of television cameras from courtrooms: It is obvious a prohibition on television cameras is by definition a restriction on freedom of the press . . . The television media constitute an integral part of the press. Reporting in all forms has evolved over the ages . . . The video camera provides the ultimate means of accurately and completely recording all that transpires. Not only the words spoken but the tone of voice, the nuances of verbal emphasis together with the gestures and facial expressions are recorded. It provides the nearest and closest substitute to the physical presence of an interested observer . . . So long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it. How can it be said that greater accuracy and completeness of reporting are to be discouraged?181

In CBC v. New Brunswick182 the Supreme Court stressed the importance of open justice to a democratic society,183 and recognised the press as ‘a vehicle through which information pertaining to these courts is transmitted’.184 Emphasising that ‘freedom of the press not only encompasses the right to transmit news and information but also the right to 176 179 183

448 U.S. 555 (1980). 177 Ibid. at 572–3. 178 158 CCC (3d) 449. Ibid. at 474. 180 [1993] 1 SCR 319. 181 Ibid. at 406–9. 182 [1996] 3 SCR 480. Ibid. at 493. 184 Ibid. at 498.

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gather this information’,185 the Court held that ‘the press must be guaranteed access to the courts in order to gather information’.186 On this basis the Court ruled that: [m]easures that prevent the media from gathering that information [deemed of interest] and disseminating it to the public restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism in the courts.187

Such recognition of the importance of protecting the media’s right to gather and disseminate public information about court proceedings has led to a significant change in Canada’s common law relating to the imposition of publication bans. In determining the validity of publication bans and other restrictions imposed on court reporting, Canadian courts had traditionally deemed the media’s freedom of expression to be subservient to the conflicting right to a fair trial.188 However, in Dagenais189 and subsequently in Mentuck190 the Supreme Court discarded the previously adopted ‘clash model’ or ‘hierarchy of rights’, declaring that both rights should be given equal status. In Dagenais Lamer CJC stated: The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter.191

Thus, the current Guidelines for Press, Media and Public Access to the Courts of Nova Scotia provide that: As a result of the 1994 Supreme Court of Canada decision in Dagenais v. CBC, Judges, in exercising common law or discretionary authority to impose publication bans in criminal cases, must weigh all competing 185 187 188

189 190 191

Ibid. at 497 citing CBC v Lessard [1991] 3 SCR 421. 186 Ibid. at 498. Ibid. at 498. Thus in examples cited by Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76, at 189–90, in R v. Banville 145 DLR (3d) 595, 600, Hoyt J found that ‘the concept of freedom of press must give way in a conflict with right to a fair and public trial’, while in Reference Re Smith 148 DLR (3d) 331, 341, the Ontario High Court ruled that ‘the freedom of the press and the concomitant right of the public to know must yield to the even more important right to a fair trial before an impartial tribunal’. Dagenais v. Canadian Broadcasting Co. [1994] 3 SCR 835. R v. Mentuck (2001) 158 CCC (3d) 449 (SCC). Dagenais v. Canadian Broadcasting Co. [1994] 3 SCR 835, 877.

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Charter rights (e.g. freedom of expression, right to a fair trial) and impose, at most, the minimal ban necessary to protect fundamental rights. The decision establishes that members of the media have standing to be heard and to raise objections in open Court when a party requests that a Judge impose a non-statutory ban.192

4 Charter’s impact on camera access to court proceedings The implications of this evolution of legal principles for the restriction of camera access remain unclear. Whether prohibitions or restrictions imposed on the media’s use of audio-visual recording equipment in courts may constitute an infringement of section 2(b) and whether such can be saved by being deemed justifiable under section 1 has been considered in several Canadian cases, though to date not by the Supreme Court of Canada. The constitutional validity of Ontario’s statutory prohibition on cameras has been challenged, albeit only with reference to the statute’s prohibition of the filming of participants to proceedings leaving and entering a courthouse. In Squires, CBC’s arguments that Ontario’s statutory prohibition on filming persons leaving courtrooms infringed section 2(b) of the Charter were not accepted by the trial judge who ruled that even if the provisions did infringe section 2(b), they would be saved by section 1 of the Charter,193 as they constituted reasonable limits.194 On appeal, the District Court held that the provisions of the Ontario Act did infringe section 2(b), but ruled that they constituted reasonable limits for the purposes of the section 1 test.195 On further appeal a four out of five majority of Justices of the Ontario Court of Appeal196 held that the legislation did infringe section 2(b) of the Charter. However, by a three to two majority the court held the provision to be saved by section 1. With two members of the majority specifically confining their reasons to the issue of filming in courtroom entrance areas, the majority’s view was that the maintenance of order and decorum and the protection of unimpeded access to and from the 192

193 194

195

Guidelines for Press, Media and Public Access to the Courts of Nova Scotia (22 February 2006), at 25, www.courts.ns.ca/media_access/media.htm at 9 April 2007. R v. Squires (1986) 25 CCC (3d) 44 (Ont. Prov. Ct Crim. Div.). Section 1 states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ (1989) 69 CR (3d) 337 (Ont. Dist. Ct). 196 [1992] 11 OR 3d 385.

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courtroom by participants in court proceedings were of sufficient importance to override the freedom of expression conferred by the Charter. As Houlden JA observed: ‘The fair and impartial administration of justice requires a calm, dignified atmosphere. If photographing and televising is permitted of persons entering or leaving the courtroom, that atmosphere will, I believe, be disrupted.’197 Leave to appeal to the Supreme Court of Canada was denied. Though Squires did not require the courts to rule on the specific issue of the constitutional validity of restrictions imposed on camera access to court proceedings, the Court of Appeal judgments suggest that such would be likely to be held to infringe section 2(b) of the Charter.198 It is important to note that the analysis of limitations justified by section 1 which narrowly led the court to deem Ontario’s prohibition on recording in the doorways of the court to be saved by section 1 was also undertaken under the clash model of ‘hierarchy of rights’ approach which was rejected by the Supreme Court of Canada in Dagenais,199 and thus appears not to represent the current legal position. As noted above, on at least two occasions, albeit without the benefit of full legal argument,200 Canadian courts have rejected arguments as to the constitutional validity of a common law rule deemed to bar camera coverage of court proceedings. In the 1992 case of R v. Vande Zalm, the court rejected the applicant’s submission that if a long-standing rule applied by British Columbia courts indeed existed, it lacked the force of law required of any limitation on media reporting before it could be justified under section 1 of the Charter of Rights and Freedoms.201 197 198

199 200

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R v. Squires (1993) 78 CCC (3d) 97, 106. Particularly noteworthy are some remarks contained in the dissenting judgment of Tarnopolsky JA (with whom Krever JA concurred): ‘An artist’s rendering can never capture the vital and spontaneous depiction offered by television images. The United States Third Circuit Court of Appeals has considered this loss in US v. Criden, 648 F 2d 814 (1981), 824, noting, ‘‘[t]here can be no question that actual observation of testimony or exhibits contributes a dimension which cannot be fully provided by secondhand reports’’.’ (R v. Squires (1993) 78 CCC (3d) 97, 117).Tarnopolsky JA further argued that: ‘There is ample evidence in this case to suggest that television journalism, perhaps the most widely resorted to medium of journalism today, is handicapped as to the coverage it can convey of judicial proceedings, thereby precluding any meaningful realization of its potential in informing the public and of its s.2(b) right.’ (R v. Squires (1993) 78 CCC (3d) 97, 117–18.) [1994] 3 SCR 835, 877. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [23], [25]. R v. Vande Zalm [1992] BCJ No. 3065 (QL) (SC) [3], [4], [5].

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In R v. Fleet202 the Nova Scotia Supreme Court also rejected the argument that ‘there is a right to have cameras in the courtroom and, accordingly that there would be a breach of s 2(b) of the Charter if the practice ban on cameras was continued’.203 Attempts to challenge the prohibition of Quebec’s rules of procedure have also proven unsuccessful. Leave to appeal the denial of CBC’s ability to argue the constitutional motion on camera access to the Mulroney case (see above) was denied by the Supreme Court of Canada.204

5 Charter rights and evidence of effects: R v. Pilarinos and Clark (a) The appeal Both the existence of a common law rule barring cameras from British Columbia courtrooms and the constitutional validity of the British Columbia Supreme Court policy was challenged in May 2001, when an application was filed on behalf of a consortium of broadcast news outlets,205 seeking television and radio access to the trial of Glen Clark, a former Premier of British Columbia charged ‘with breaching public trust for allegedly accepting a benefit from his friend and co-accused in exchange for approval in principle for a casino licence’.206 Having failed to secure the consent of the parties, as required by the Supreme Court’s Policy on Television in the Courtroom, the applicants lodged a constitutional challenge to the policy. The applicants submitted that the Court Policy infringed section 2(b) of the Charter by restricting news gathering and news presentation by broadcast media, or alternatively that it was not justifiable under section 1 as a reasonable and justifiable limit upon section 2(b) of the Charter.207 In dismissing

202 204 205

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R v. Fleet (1994) 137 NSR (2d) 156 (SC). 203 Ibid. at 158–9. Email from Dan Henry to author, 4 November 1998. BCTV, a division of Global Communications Ltd, CKVU, a division of Global Communications Ltd, CKNW, a division of Corus Entertainment Inc., the Canadian Broadcasting Corporation, CTV Inc., CTV Television Inc., CIVT, a division of CTV Television Inc., (dba Vancouver Television), the Radio Television News Directors’ Association of Canada and Ad Idem (Advocates in Defence of Expression of the Media). See R v. Pilarinos and Clark [2001] BCLR 2d 1332 [7]. Derrick Penner, ‘BC Lawyer Champions Cameras in Court’ (2001) 4 University of British Columbia Journalism Review, www.journalism.ubc.ca/thunderbird/archives/ 2001.10/burnett.html at 9 April 2007. R v. Pilarinos and Clark 2001 BCSC 1332 [9].

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the application, Justice Bennett chose to ignore Chief Justice Essen’s qualification as to the legal force of the rule of court in Vande Zalm,208 and concluded that ‘the common law in British Columbia is unequivocally that as stated by Esson CJBC in the Vande Zalm case’209 – i.e. ‘that no cameras may be used in the courtroom during a trial or other proceeding’. The Supreme Court of Canada declined to grant expedited leave to appeal. When in January 2002 the Supreme Court of Canada did grant leave, the Court set the hearing of the appeal down for January 2003 – a date by which the trial would be over. In July 2002, the Chief Justice of the Supreme Court stated the constitutional questions and parties and interveners filed written submissions. However, in December 2002 the Supreme Court agreed with a motion filed by one of the respondents that the appeal was now moot.210 Although the Supreme Court once again chose not to rule on the issue of cameras in courts, an examination of Justice Bennett’s judgment, written submissions by the appellants, respondent and interveners filed in the appeal to the Supreme Court in the context of the constitutional questions identified by the Supreme Court permits an analysis of not only the authorities and competing arguments on the constitutional issues but of evidence as to the effect of courtroom televising. The constitutional questions as stated by the Chief Justice on 12 July 2002 were: 1. Is there a common law rule prohibiting the recording or transmitting of images or sound or both using any non-manual devices (‘recording’) by media in the courtroom during a trial or other proceedings (‘the rule’)? 2. If question 1 is answered in the affirmative, is the rule an infringement or denial of rights guaranteed by s 2 (b) of the Canadian Charter of Rights and Freedoms? 3. If question 2 is answered in the affirmative, is the infringement or denial a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society? 4. Is a modification of the rule to permit recording only where the parties to the proceeding consent an infringement of rights guaranteed by s 2(b) of the Charter?

208 210

R v. Vande Zalm [1992] BCJ No. 3065 (QL) (SC) [43]. 209 Ibid. at [56]. See Ad Idem, Electronic Public Access to Court, www.adidem.org/position/Epabc.shtml at 9 April 2007 (discussing this case and the issue of cameras in Canadian courts).

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5. If question 4 is answered in the affirmative, is the infringement or denial a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s 1 of the Charter?211

(b) Existence of a common law rule As the common law governs the question of camera access to courtrooms in most Canadian jurisdictions, the answer to the first question, regarding the existence of a common law rule prohibiting the recording and broadcast of courtroom proceedings, would appear to be of fundamental significance to Canada’s debate. The long-standing common law rule that ‘no cameras may be used in the courtroom during a trial and other proceeding’, recognised by Justice Bennett,212 is said to allow exceptions deemed to be in the interests of justice.213 The appellants disputed the existence of a blanket common law rule prohibiting the recording and broadcast of proceedings and challenged the authority of cases relied on by Justice Bennett.214 Such conflicting assessments of the common law may be attributed to conflicting views as to evidence of the effects of audio-visual coverage, which in turn leads to different perceptions of the nature of the issue. Thus, the appellants referred to findings of numerous studies which they submitted ‘invariably concluded that alleged effects do not materialize in practice’,215 and on this basis argued that ‘alleged adverse effects do not withstand scrutiny’.216 Noting that Hill v. Church of Scientology217 required the common law to be interpreted in a manner consistent with Charter principles, the appellants reviewed authorities, including the principles set out in the publication ban cases of Dagenais and Mentuck, which Sierra Club of Canada v. Canada (Minister of Finance)218 had deemed to be principles of general application, and thus applicable even where a prohibition could not strictly be regarded as a publication ban,219 and concluded that: 211

212 214

215 217 218 219

See Attorney-General of British Columbia, ‘Factum of the Respondent, R v. Pilarinos & Clark’ Court File No. 28823 (2002) [35]. Ibid. [43]. 213 Ibid. [36]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [22–5]. Ibid. [37]. 216 Ibid. [36]. Hill v. Church of Scientology [1995] 2 SCR 1140, 1168; ibid. at [20]. 2002 SCC 41 [37–8], [48]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [66].

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It would be consistent with these common law and Charter guiding principles to begin with a presumption in favour of Electronic Public Access (EPA) and to determine whether the reasons and evidence offered by opponents are sufficient to justify a limitation.220

The respondent, on the other hand, submitted that Canadian and overseas studies revealed that cameras in the courtroom pose significant and demonstrable risks,221 and argued that evidence presented to support the contention of benefits222 was not substantive as it relied on studies which were neither scientific in their methodology nor conclusive in their findings. In view of such established risks, the prohibition of cameras in courts, the respondent contended: was not about open justice in the modern era . . . a ban on publication of reports of court proceedings [or] about infringement or denial of the exercise of freedom of the press [but rather] about the inherent power of the court to ensure observance of the principles of fundamental justice.223

Until the Supreme Court rules otherwise, it would be accurate to say that Canadian courts accept the existence of a common law rule which at the very least imposes a presumption against camera access to court proceedings.

(c) Is the common law rule in breach of section 2(b) rights? Whether such a common law rule is an infringement or denial of rights guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms may be said to be equally applicable to Ontario’s statutory prohibitions. The answer would appear to depend on whether the recording or broadcast of court proceedings by the media may be regarded as an activity falling within the scope of section 2(b) protection, and to a lesser extent on whether Charter principles governing publication bans are deemed applicable. The appellants submitted that the Supreme Court had recognised that the scope of protection afforded to the media by section 2(b) extended to the gathering and dissemination of audio-visual information regarding court proceedings, and had thus created a presumptive right in

220 221

222

Ibid. [36]. Attorney-General of British Columbia, ‘Factum of the Respondent R v. Pilarinos & Clark’ Court File No. 28823 (2002) [5]–[28]. Ibid. [3]. 223 Ibid. [38–9].

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favour of camera access,224 which those seeking to prohibit such access bore the onus of rebutting under the test developed in Dagenais and Mentuck.225 Justice Bennett had found Dagenais not to be determinative of the issue226 on the grounds that a prohibition on cameras was not analogous to the prevention of gathering or publishing of information. Consequently, she held that the burden of proof to establish an infringement of section 2(b) lies with the applicants.227 She further held that the infringement of section 2(b) was to be determined on the basis of the ‘definitional analysis’ as formulated in Irwin Toy Ltd v. Quebec (Attorney-General)228 and the ‘functional and values based analysis’ set out in Committee for Commonwealth of Canada v. Canada.229 The application of these tests, as Justice Bennett’s decision and submissions by the respondent and some interveners reveal, permit, though do not necessarily compel, findings that a prohibition of cameras in the courtroom does not violate section 2(b) of the Charter. The definitional analysis was utilised to suggest that though section 2(b) protects the media’s right to gather and disseminate information, the protection does not extend to the gathering of news by filming or recording in court proceedings, as camera recording of court proceedings does not constitute an expressive activity and is thus not a form of expression protected by section 2(b). In any event, Justice Bennett held that the effect of excluding video and audio recorders does not prevent news gathering as the prohibition only limited the ‘technical manner in which the information is gathered’.230 This analysis was also utilised to suggest that a prohibition on cameras may be said not to be aimed at restricting reports but at avoiding harmful effects of such activity. A consequence of the prohibition being found to be content neutral, according to Toy,231 was that that the party challenging the prohibition would bear the onus of proving that the camera recording and broadcast of proceedings advance the values underlying the protection of freedom of expression.232 224

225 227 228

229 232

Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [67]. Ibid. [65]. 226 R v. Pilarinos and Clark [2001] BCSC 1332 [109]–[110]. Ibid. [110]. [1989] 1 SCR 927, 969–70. See Bennett judgment, R v. Pilarinos & Clark [2001] BCSC 1332 [59]. [1991] 1 SCR 139: ibid. [111]. 230 Ibid. [75]. 231 [1989] 1 SCR 927, 976. Attorney-General of British Columbia, ‘Factum of the Respondent R v. Pilarinos & Clark’ Court File No. 28823 (2002) [66].

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Similarly, the functional and values-based analysis was employed to conclude that a prohibition does not infringe or deny freedom of expression under section 2(b) because camera recording of court proceedings is fundamentally incompatible with a narrow view of the purpose and principal function of the criminal courts, and due to its detrimental effect233 could not be said to further the values underlying section 2(b).234 The Supreme Court has consistently recognised the media’s right to gather and disseminate information in order to facilitate the public’s right to information regarding court proceedings and that all forms of expression are equally protected.235 This would suggest that the gathering and dissemination of information by the audio-visual media is protected and cannot be deemed incompatible with the function of courts and not to further values underlying the freedom of speech protected by section 2(b). Thus, as the appellants submitted,236 principles governing the restriction of freedom of speech on other government property237 are distinguishable from those applicable to courtrooms. The purposive approach favoured by the Supreme Court in determining the scope of the Charter’s rights and freedoms would appear to suggest that the recording and broadcast of court proceedings is protected and only subject in scope to such limitations as can be justified under the Dagenais test, which those seeking to limit the right bear the onus of establishing.

(d) Can infringement or denial of rights be saved by section 1? If the common law rule is deemed to be an infringement of section 2(b), the third question asks whether the infringement or denial is a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society, and thus saved by section 1. This question calls for a determination of the extent and manner in which audio-visual reporting of court proceedings may validly be restricted, and is clearly equally applicable to statutory restrictions. 233

234

235

236

237

Attorney-General of Canada, ‘Factum of Intervener R v. Pilarinos & Clark’ Court File No. 28823 (2002) [3]. Attorney-General of British Columbia, ‘Factum of the Respondent R v. Pilarinos & Clark’ Court File No. 28823 (2002) [53]. R v. Butler [1992] 1 SCR 452, 489–90 cited in Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [74]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [76]. Committee for Commonwealth of Canada v. Canada [1991] 1 SCR 139.

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The test under section 1 is, as Justice Bennett ruled,238 set out in R v. Oakes239and recently reviewed in R v. Sharpe.240 It calls for a determination of whether the legislative objective is ‘pressing and substantial’ and considers the proportionality between the limitation imposed on the right and the benefits of the limitation. Proportionality is determined by inquiries as to whether the limiting law is ‘rationally connected’ to its goal, whether the law impairs the right of free expression only minimally, and finally, whether the benefits of the limitation or prohibition imposed outweigh its detrimental effects on the right of free expression. The objective which Justice Bennett deemed ‘pressing and substantial’ was the promotion of the right of the accused to a fair trial, the maintenance of dignity and decorum in and near the courtroom to preserve the solemnity and respect for the purpose of the courts, and the ability of participants in the trial process, including witnesses, parties, jurors, lawyers, judges and other participants, to have some degree of privacy.241 The appellants challenged this statement of the prohibition’s objective, arguing that ‘[i]t is the harm which is sought to be avoided that must qualify as a pressing and substantial objective to meet this aspect of the s 1 test’.242 This appears to be supported by the Supreme Court’s statement in Mentuck that ‘it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained’.243 Noting that in Dagenais the Court had observed that ‘the objective of a publication ban authorized under the rule is to prevent real and substantial risks of trial unfairness – publication bans are not available as protection against remote and speculative dangers’,244 the appellants submitted that in requiring the objective to be the prevention of real and substantial risks the Court had declared protection against remote and speculative dangers to be insufficient. They further noted that in Mentuck the Court had ruled that in order for a risk to be deemed a serious one or ‘real and substantial’ it had 238 239 240 241 242

243 244

R v. Pilarinos and Clark [2001] BCSC 1332 [190]. R v. Oakes (1986) 24 CCC (3d) 321 (SCC). R v. Sharpe (2001) 194 DLR (4th) 1 (SCC) 42–52. R v. Pilarinos and Clark [2001] BCSC 1332 [191–2]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [93]. R v. Mentuck (2001) 158 CCC (3d) 449, 467 cited in ibid. [94]. Dagenais v. Canadian Broadcasting Co. [1994] 3 SCR 835, 880.

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to be ‘a risk which is well grounded in the evidence and one which poses a serious threat to the proper administration of justice’.245 In turning to the rational connection element of proportionality Justice Bennett held that the Attorney-General had discharged the onus of establishing that expanded media coverage in the courtroom would cause harm to the right to the fair trial, the maintenance of the dignity and decorum of the courthouse and the right to privacy.246 Applying the ‘reasoned apprehension of harm’ test,247 she noted that the fair trial right is too important to risk on inconclusive or insufficient evidence,248 and that while bona fide scientific evidence is inconclusive regarding the effects of expanded media coverage in a courtroom, the evidence overwhelmingly supports at minimum, a ‘reasoned apprehension of harm’ and indeed reaches the Dagenais test of ‘a real and substantial risk’.249 Therefore, Justice Bennett held, the Oakes test of a ‘rational connection between the purpose of the law and the means adopted to affect this purpose’ has been established. The appellants challenged Justice Bennett’s ruling that a rational connection had been established between the alleged harms and a prohibition on cameras, arguing that the ‘same alleged effects could be ascribed to the crowds, reporters and sketch artists that accompany any newsworthy case’.250 As to ‘minimal impairment’ Justice Bennett held that the right to freedom of expression is minimally impaired when expanded media coverage is prohibited from the courtroom and the courthouse.251 In giving effect to the British Columbia Supreme Court’s policy on cameras in courts, Justice Bennett noted the freedom is even less impaired, as it permits expanded media coverage in some circumstances. The prohibition, Justice Bennett held, was not absolute but merely ‘a partial restriction on the rights of the press to use specific means to gather information in specific places’.252 The respondent submitted that it was important to note that the prohibition’s provision for the exercise of discretion vested in trial judges the power to make exceptions in the interest of justice, as the Supreme Court in New Brunswick253 had held such discretion to guarantee minimal impairment.254 245 246 247 248 250 253 254

R v. Mentuck (2001) 158 CCC (3d) 449, 467. R v. Pilarinos and Clark 2001 BCSC 1332, 193. R v. Sharpe (2001) 194 DLR (4th) 1 (SCC) 42. R v. Pilarinos and Clark 2001 BCSC 1332 [202]. 249 Ibid. at [207]. Ibid. at [98]. 251 Ibid. [215]. 252 Ibid. [188]. CBC V. New Brunswick [1996] 3 SCR 480 [60]. Attorney-General of British Columbia, ‘Factum of the Respondent R v. Pilarinos & Clark’ Court File No. 28823 (2002) [113].

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The appellants noted that the Court has held that ‘[t]he law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account’.255 Noting that ‘[a] decision denying . . . access to, for example, testimony does not justify a denial to other parts of the trial’, they argued that by imposing an absolute prohibition, the trial judge had not minimised impairment.256 Weighing salutary and deleterious effects calls for a determination of whether the prohibition’s benefit of preventing harm to fair trials and the administration of justice outweighs its detrimental effects on freedom of expression. Justice Bennett held that while the detrimental effect on the media’s right was minimal the potential beneficial effects for trials were significant.257 The Intervener, Attorney-General of Canada, also submitted that the prohibition on cameras is justified under section 1 as the addition of cameras to an already open process would only minimally advance the underlying purpose of section 2(b) and that requiring the media to bear the onus of proof to show that recording will not have adverse effects on the administration of justice, on court participants and criminal trial proceedings only minimally affects rights under section 2(b).258 The appellants, on the other hand, contrasted the prohibition’s significant impairment of ‘the right of the public to see and hear what goes on in its courts and the right of broadcast media to gather and present the important information using the tools of their media’, with the speculative beneficial effect of the prohibition which they submitted ‘according to the overwhelming evidence and experience is either minimal or absent’.259 In weighing the salutary and deleterious effects a court addresses the conflict between the freedom of speech and public trial rights, on the one hand, and the right to a fair trial on the other. In this respect it is important to note, as Justice Bennett did, that while Chief Justice Lamer had declared in Dagenais that ‘Both publicity and fair trial 255

256

257 258

259

Global BC et al, ‘Factum of the Appellants R v. Pilarinos and Clark’ Court File No. 28823 (2002) [103] citing R v. Sharpe [2001] 1 SCR 45, 102. Global BC et al, ‘Factum of the Appellants R v. Pilarinos and Clark’ Court File No. 28823 (2002) [102]. R v. Pilarinos and Clark 2001 BCSC 1332, 221. Attorney-General of Canada, ‘Factum of Intervener R v. Pilarinos & Clark’ Court File No. 28823 (2002) [91]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [108].

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carry equal weight under the Charter and therefore the law requires that a balance . . . be achieved that fully respects the importance of both sets of rights’,260 he had also observed that: there are times when the rights of the accused will be in direct conflict with the expressive rights of the media . . . it is essential in these circumstances to recognize that the pressing and substantial objective (i.e. a fair trial) at issue is itself a fundamental right, and that, as such, it is a matter of exceptional importance. This will be of significance when . . . assessing the balance between the salutary and deleterious effects of the ban . . . Similarly, when considering the proportionality of the impact of the ban on free expression to its salutary effects on the fairness of the trial, it will be necessary to bear in mind the fundamental importance of trial fairness both to the accused and to society.261

Prince has suggested that while the right of freedom of speech is no longer subordinate to the right of fair trial, due to the Court’s purposive analysis of rights and freedoms, the right to a fair trial will prevail where, as with respect to court reporting, the two rights are in conflict.262 This, however, is not likely to be as determinative of the validity of prohibitions on camera access as has been suggested because not even media applicants would challenge the view that their freedom of expression rights may be validly confined to the extent that they are found to be in conflict with the right to a fair trial.

(e) Would permitting recording only with the consent of parties breach Charter rights? Questions four and five asked whether a restriction which permitted recording only with the consent of parties to the proceeding was an infringement of rights guaranteed by section 2(b) of the Charter and, if so, whether such a restriction amounted to a reasonable limit demonstrably justified in a free and democratic society under section 1 of the Charter? These questions address the validity of the consent requirement in court policies such as those of the British Columbia Supreme Court as well as Ontario’s statutory prohibition.

260 261

262

Dagenais v. Canadian Broadcasting Co. [1994] 3 SCR 835 [72]. Ibid. 890, see Attorney-General of British Columbia, ‘Factum of the Respondent R v. Pilarinos & Clark’ Court File No. 28823 (2002) [117]; R v. Pilarinos and Clark 2001 BCSC 1332 [220] (Bennett J). Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76, at 190.

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The appellants’ submission that in view of proven difficulties in gaining the consent of parties the imposition of a consent requirement amounts to the imposition of an absolute prohibition was rejected by Justice Bennett, who pointed to cases in which such consent had been attained.263 As to whether the consent rule could be saved by section 1 of the Charter, the appellants pointed to the lack of evidentiary or reasoned basis to meet the test of pressing and substantial concerns. They also submitted that a consent rule exercisable without regard to any of the alleged risks failed the rational connection test.264 In an argument rejected by Justice Bennett, they argued that: [a] consent rule amounts to a delegation of the power to determine the balance between openness and fair trial rights to someone who is required to consider neither . . . It is surely more rational to permit parties to raise any objection . . . for the presiding judge to determine on the principles.265

Justice Bennett held that the consent requirement did not amount to an abdication of discretionary power but rather provided a means of avoiding speculation as to the effect of cameras by permitting the likely effect to be determined by ‘those who are most intimately involved in the presentation of the evidence . . . who can best assess the effect of the Expanded Media Coverage in the courtroom’.266 The appellants also submitted that it could not ‘be said that the consent rule minimally impairs the freedom involved’, and asked ‘Who faced with allegations of wrongdoing would consent to any more public scrutiny than required?’267 On this point, the Intervener, the British Columbia Civil Liberties Association, noted that ‘A free and democratic society does not make constitutional rights contingent on the consent of one’s fellow citizens.’268

263 264

265 267

268

R v. Pilarinos and Clark 2001 BCSC 1332 [222]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [113]. Ibid. 266 R v. Pilarinos and Clark 2001 BCSC 1332 [223]. Global BC et al, ‘Factum of the Appellants R v. Pilarinos & Clark’ Court File No. 28823 (2002) [114]. The British Columbia Civil Liberties Association, ‘Factum of the Intervener R v. Pilarinos & Clark’ Court File No. 28823 (2002) [6] available at BC Civil Liberties Association, BCCLA’s Factum in the Courtroom Camera Case at the Supreme Court of Canada (2002), www.bccla.org/othercontent/02camerafactum.html at 9 April 2007.

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Clearly, as the consent of parties may be withheld for reasons detrimental to the interests of the administration of justice and denies the judge the right to make the final decision, such a requirement would appear to be an inappropriate and unwarranted prohibition of freedom of expression and thus likely to constitute an infringement of section 2(b) which cannot be justified under section 1 of the Charter.

(f) Conclusion re R v. Pilarinos and Clark Charter principles, as developed with respect to freedom of expression and the role of the media in facilitating open justice, appear to favour the argument of those challenging restrictions and bans – that excluding cameras entirely from court proceedings or requiring the consent of all parties may be said to amount to a virtual prohibition on the gathering and dissemination of information on court proceedings by the electronic media. The significance of the Supreme Court’s test in Dagenais and Mentuck for the issue of cameras in courts is not that ‘freedom of speech’ and ‘the right to a fair trial’ must equally give way to the other when in conflict, but rather that the test sets down the basis on which such a conflict is to be established, and freedom of speech rights curtailed. In recognising freedom of speech as a right of equal status to the right to a fair trial, and as one which encompasses the media’s right to gather and disseminate information about court proceedings, the Supreme Court has set out a rule which not only delineates the scope of the right for the purposes of section 2(b), but which also confines the occasions on which the exercise of this right may be prohibited. Such occasions, the Court ruled, are confined to situations where a prohibition is necessary to prevent a serious risk (which the court defined as a risk well grounded in the evidence, which poses a threat to the proper administration of justice and which is not a mere remote and speculative danger), but only when reasonably alternative measures will not prevent the risk, and when the benefits of the prohibition outweigh its detrimental effects. To the extent that the justification of Canadian courts’ prohibition of cameras in courts is based on unsubstantiated speculation that television coverage may affect the fairness of trials or the administration of justice, it appears to be undermined by the Supreme Court’s test. If the above interpretation of the test is correct, common law or statutory restrictions which impose a total or blanket prohibition on camera access or which impose a consent requirement or presumption against such coverage are likely to be deemed either in breach of section 2(b), or incapable of being saved by section 1.

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6 Impact of a developing culture of rights (a) Courts’ recognition of rights As this chapter’s earlier examination of the admission of cameras to Canadian courts revealed, greater legal recognition of the media’s right to access and report on court proceedings has not led the courts to embrace the presence of cameras in courts, nor does it appear to have eliminated the mistrust of media motives in seeking access to court proceedings. However, as former Canadian Chief Justice Dickson noted, the Charter has forced the courts to become more sensitive to their relationship with the media.269 Prince has also observed that ‘the development of the principle of freedom of expression under the Charter combined with the general development of a culture of rights, has resulted in a more proactive attitude on the part of the judiciary towards the media’.270 The perceived value of the relationship between courts and the media appears to flow from the courts’ acceptance of the role which the media plays in facilitating ‘an accurate, balanced and complete report of the hearing and disposition of specific cases’,271 which courts have come to accept is required in the interests of justice. This development, it has been suggested, ‘was inevitable given the profound transformation of the Court brought about by the Canadian Charter of Rights and Freedoms’.272 Such a proactive attitude towards the media is evident in the CJC’s policies, which while remaining opposed to the televising of trial proceedings, recognise that ‘the justice system and public interest are served when coverage of the justice system and the manner in which it functions contains an accurate, balanced and complete report of the hearing and disposition of specific cases’.273 In 1999, this recognition led the Council to establish a ‘national policy framework . . . to support federally appointed judges across Canada in efforts to increase public and media understanding of the role of judges and the operation of the legal 269

270 271 272

273

Brian Dickson, ‘A Life in the Law: The Process of Judging’ (2000) 63 Saskatchewan Law Review 373 cited by Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76, at 192. Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76, at 192. Canadian Judicial Council, Annual Report 1990–91 (1991) cited in ibid. 188. Peter Calamai, ‘The Media and the Court’s Public Accountability’ in D.J. Guth (ed.), Brian Dickson at the Supreme Court of Canada’ 1973–1990 (1998) cited in Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76. See Henry, ‘Electronic Public Access to Court’, above n. 5, at 419–20.

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system’ and to create a ‘Special Committee on Public Information . . . to develop a public and information strategy with a focus on media initiatives’.274 As the Council has noted, since 1999 most jurisdictions have set up communications or media relations committees.275

(b) Concerns regarding values promoted by the Charter While, as Prince suggests, it may be the moral rather than legal pressure the Charter exerts on the culture of the state – making it more rights aware and rights friendly and altering the relationship between the media and the courts – which is likely to increase pressure for cameras in the courtroom,276 the prospect of trials being televised in Canada has exposed concerns held by some Canadians that the culture of rights being promoted by the Charter may be imposing American values on Canada. Criticism of media coverage permitted in the United States and especially of the O.J. Simpson trial, which coincided with media applications seeking similar access in Canada, led to expressions of concerns that the Charter was introducing undesirable American values and American-style media reporting which would have a detrimental effect on the administration of justice in Canada and in particular on the rights of parties to such proceedings. Negative perceptions of the American media’s coverage of O.J. Simpson’s trial provoked much negative comment in Canada. A letter to the Editor which appeared to sum up the sentiments of many Canadians stated ‘It is difficult to express my sorrow and disgust for the way the American media are covering the O.J. Simpson tragedy . . . It reinforces the wise policy of not usually allowing cameras in Canadian courtrooms.’277 In comparing the Bernardo trial with that of O.J. Simpson, the press also drew parallels between the sensationalist coverage of the Californian trial with media requests for camera access to the Bernardo trial.278 Justice McLachlin has also observed that the trial of Paul Bernardo underlined the stark contrast and led to ‘an almost

274 276 277 278

Canadian Judicial Council, Annual Report 2002–03, above n. 161, at p. 30. 275 Ibid. Prince, ‘Televising Courtroom Proceedings in Canada’, above n. 76. E.G.Q. Van Tilburg, ‘A case for civility’, Maclean’s (Toronto), 18 July 1994, p. 4. See D’arcy Jenish and Sharon Doyle Driedger, ‘Legal lesson or soap opera?’, Maclean’s (Toronto), 13 March 1995, p. 35, which outlines the key arguments and nature of the debate; Allan Fotheringham, ‘The media and the message’, Maclean’s (Toronto), 13 February 1995, p. 88.

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universal opinion . . . that trial proceedings . . . are better left to take their course outside the glare of television cameras’.279 At a time when the Canadian press and public were loudly expressing their disapproval of the American media’s coverage of the O.J. Simpson trial and lauding the distinctions between the two legal systems, which were said to ensure that such coverage would not take place in Canada, CBC and the RTNDA applied to broadcast proceedings in the high profile 1995 murder and rape trial of Paul Bernardo in Ontario.280 Even though the application was denied, it was perceived by many as an assertion of Charter rights. Thus, while arguing that the Bernardo and Simpson trials ‘show the difference between Canadian and US criminal law’, one press commentator observed that the Charter ‘may be pushing the Canadian system of criminal justice ever closer to the American’. He went on to describe an Ontario trial judge’s comment that ‘Our Charter brought in all the American values’ as a ‘common judicial complaint’.281 Another commentator appeared to be even more resigned to what he saw as the inevitable result of American and Charter influence when he declared ‘There will be courtroom television of the lengthy Bernardo trial. Appeals to the Charter of Rights and Freedoms will guarantee that.’282 That concerns regarding the implications of an increasing culture of rights should be highlighted in relation to courts’ regulation of court reporting is not surprising if we accept that such regulation arguably reflects a society’s ‘philosophy about the role and effect of media in society as compared to the function and operation of the justice system’.283 A comparison of the regulation of court reporting in Canada with that in the United States may be said to reveal differences in the ‘paramount social values of the respective jurisdictions’284 as well as significant political and structural differences between the two countries.285 In reviewing the literature in which such comparisons have been undertaken Linton has noted distinctions flowing from constitutional 279 280 281 282 283 284 285

Beverley McLachlin, ‘OJ and All That’, above n. 1, at 375. R v. Bernardo (1995) 38 CR (4th) 229 (Ont. Gen. Div.). Rae Corelli, ‘North versus South’, Maclean’s (Toronto), 29 May 1995, p. 18. Fotheringham, ‘The media and the message’, above n. 278. Linton, ‘Camera Access to Courtrooms’, above n. 3. Ibid. H. J. Glasbeek, ‘Comment: Entrenchment of Freedom of Speech for the Press – Fettering of Freedom of Speech of the People’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 100.

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interpretation of freedom of the press, such as the American courts’ presumption against the constitutional validity of any system of prior restraints on the freedom of the press; that American courts have turned the First Amendment’s free press provisions into ‘a fully elaborated philosophy’ while Canada’s Supreme Court Justices have ‘only hesitatingly elaborated a theory’;286 that Canada’s approach to freedom of the press has been more restrictive than the American one, and has demonstrated a clear choice for fair trial over free press, in contrast to the American tendency;287 that ‘concern for individuals, the presumption of innocence and the right to a fair trial’ have been given precedence over freedom of the press;288 that other ‘superordinate’ social values such as ‘the protection and rehabilitation of young persons in the criminal justice system’ and the proper administration of justice have been placed ahead of press freedom in Canada;289 that Anglo-Canadian law has given precedence generally to the administration of justice over external social values such as the protection of confidential sources;290 and that Canadian laws have seemed to prefer ‘redress for attacks upon reputation’, limitations on ‘the publication and dissemination of obscene material’, prohibition of access to government information and regulation of commercial speech over freedom of the press or expression.291 In comparison to the United States, where a free press tends to be given dominance, Beckton characterises Canadian society as ‘one of compromise,

286

287

288 289 290

291

G. Stuart Adam, ‘The Charter and the Role of the Media: A Journalist’s Perspective’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 39. See Linton, ‘Camera Access to Courtrooms’, above n. 3, for details. Clare Beckton, ‘Freedom of the Press in Canada: Prior Restraint’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 119; Allen M. Linden, ‘Limitations on Media Coverage of Legal Proceedings: A Critique and Some Proposals for Reform’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 301; Allen Manson, ‘Freedom of the Press and Juries, Prisons and Prisoners’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 355; Robert Martin, ‘Contempt of Court: the Effect of the Charter’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 207; Michel Proulx, ‘Comment: No Cameras Please’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 491. Proulx, ‘Comment: No Cameras Please’, above n. 287. Linden, ‘Limitations on Media Coverage of Legal Proceedings’, above n. 287. Sidney N. Lederman, Patrick O’Kelly and Margaret Grottenhaler, ‘Confidentiality of News Sources’ in Philip Anisman and Allen M. Linden (eds.), The Media, the Courts and the Charter (1986), p. 227. Beckton, ‘Freedom of the Press in Canada’, above n. 287.

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where no one value is given extensive protection to the detriment of others’.292 At the same time, a number of factors may be said to be leading to a lessening of these differences. In this respect, Linton also notes the increasing acceptance by courts, the legal profession and the media of greater openness in the administration of justice, and that through the proximity and pervasiveness of American television, the Canadian public may be becoming accustomed to the idea of televised trials. As Lipset has noted, the Charter ‘goes further toward taking the country in an American direction than any other enacted structural change’.293 While Linton’s observation that, unlike their American counterparts, many Canadian journalists do not see access to courts as desirable294 appears to be supported by press criticism of the application to broadcast the Bernardo trial, it needs to be noted that press opposition to the introduction of cameras in courts is a universal phenomenon, and may in part be attributable to the print media’s resistance to losing a virtual monopoly in court reporting.295 And while television networks revealed little interest in access made available to Federal and Ontario’s Appeal Courts, and the CBC appeared to be alone in some debates of the issue, the level of radio and television and newspaper interest in covering recent cases such as the Clark trial suggests that Canada’s media is increasingly pursuing such access.

(c) What the Pickton hearings reveal about Canadian regulation of reporting Media coverage of the preliminary hearings of Robert Pickton, accused of killing fifteen women and thus of being Canada’s biggest serial killer, before British Columbia Provincial Court Judge David Stone in early 2003 illustrates differences between Canadian and American regulation of reporting.296 Arguably, it also reveals that Canada’s traditional means of balancing the competing rights inherent in court reporting, through reliance on the imposition of reporting restrictions and publication 292 293

294 295 296

Ibid. Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada (1990) cited in Linton, above n. 3. Linton, above n. 3. See view expressed by the Guardian editorial of 2 August 2003, above chapter 2 J.2. For a comparison of the regulation of court reporting see G. Stuart Adam, ‘The Thicket of Rules North of the Border: Canadian Perspectives on a Free Press and Fair Trials’ (1998) Media Studies Journal 24.

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bans, may need to be reconsidered in the light of developments in Canadian common law, which no longer deems the media’s freedom of expression to be subservient to the right to a fair trial,297 and in light of new communications technology and media from which public information is sourced which are beginning to undermine the assumptions on which such restrictions are based.298 While Canadian preliminary hearings are generally open to the public, a statutory publication ban intended to protect the jury pool by insulating potential jurors from media reports applies to media reporting.299 While the statutory ban which applies to evidence taken is only automatic if applied for by an accused, regardless of whether a judge orders a publication ban, an absolute ban applies to the reporting of any admission or confession tendered during the inquiry.300 In view of the nature of the allegations, Pickton’s preliminary hearing was bound to generate significant media interest. Consequently, Pickton’s lawyer, concerned that media coverage would deny his client a fair trial, and that any restrictions imposed on reporting would not apply to publications outside the country and thus would reach Canadians ‘through the Internet, cable television, and US newspapers sold across the border’301 asked the judge to bar the public and media from the preliminary hearing.302 Though refusing to close the proceedings to the public and media and declining to address the issue of foreign media coverage, Judge Stone did impose a publication ban on the hearings.303 In so doing Judge Stone noted that ‘the remedy of closing the courtroom for the entirety of the proceedings during a preliminary

297

298 299 300

301

302

303

See above D.4 and 5 for discussion of Dagenais v. Canadian Broadcasting Co. [1994] 3 SCR 835 and R v. Mentuck 2001 SCC 76. See immediately below for a discussion of the remarks of Judge Stone in R v. Pickton 2002 BCPC 0526, 6 December 2002, [26–7]. See chapter V(G)(4); and chapter VII(C)(4) for further discussion of this issue. Section 539(1) of the Criminal Code, RSC 1985, cC-46. See John Pearson Allen and Thomas Allen, ‘Publication Restrictions and Criminal Proceedings’ (1994) 36 Criminal Law Quarterly 168, 168–9. Maureen O’Hagan, ‘Bid to close hearing in BC killings is denied’, Seattle Times (Seattle), 7 December 2002. CBC News, Media Fight for Access to Pickton Hearing (2002), www.cbc.ca/stories/2002/ 12/01/pickton_ban021201 at 9 April 2007. R v. Pickton (2002) BCPC 0526, 6 December 2002 [36], www.provincialcourt.bc.ca/ judgments/pc/2002/05/p02%5F0526.htm at 9 April, 2007. The order ‘banning any evidence being published in any newspaper or broadcast, pursuant to that section’ was imposed pursuant to s. 539(1)(b) of the Criminal Code. Section 539(1)(b): ‘Prior to the commencement of the taking of evidence at a

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inquiry is highly exceptional’304 and that in balancing the accused’s right to a fair trial and the right to freedom of expression he was prevented by the Supreme Court decision in Dagenais from giving precedence to the right to a fair trial.305 In applauding the decision, a commentator observed: ‘The laws of the preliminary hearing have not caught up with changes in the media . . . Borders mean nothing. You can’t seal off information any more.’306 As predicted, the publication ban was ignored and even openly challenged by some media outlets. Thus, on 12 December 2002, less than a week after the ban was imposed, ‘The Memory Hole’, described as ‘a website where people interested in a case can get access to news items published outside Canada’,307 posted a webpage offering Canadian readers media resources for trial news, with links to Yahoo and Google news and six Seattle news sources.308 While observing that the American media is not bound by Canadian courts’ publication restrictions, the website noted that following the Australian High Court’s decision in Gutnick309 (where the court held that an Australian could sue under Australian law for defamation over an article published on Dow Jones’ American website), ‘anything is possible’.310 On 14 January 2003, the third day of the preliminary hearings, Pickton’s lawyers and the prosecutor alleged that the ban on the publication of details of the hearings had been violated in reports by Associated Press and the Guardian newspaper in England, the websites of Canadian and American newspapers and in a Seattle Times article discussing evidence presented on the first day of the hearing.311 In response, Judge Stone extended the publication ban to include the posting of information on the Internet and advised reporters from

304 306

307 308

309 310 311

preliminary inquiry, the justice holding the inquiry . . . (b) shall, if application therefore is made by any of the accused, make an order directing the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as in respect of each of the accused, a. he is discharged, or b. if he is ordered to stand trial, the trial is ended.’ R v. Pickton (2002) BCPC 0526, 6 December 2002 [17]. 305 Ibid. at [26–7]. Stephen Ward, cited in Erica Smishek, Sensational Murder Trial Must Stay Open to Reporters (2003), University of British Columbia Reports, www.publicaffairs.ubc.ca/ ubcreports/2003/03jan02/murdertrial.html at 9 April 2007. See Electronic Frontier Canada, www.efc.ca at 9 April 2007. The Memory Hole, Break Canada’s Pickton Trial News Blackout (2002), www.theme moryhole.org/crime/pickton-blackout.htm at 9 April 2007. Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 (10 December 2002). The Memory Hole, above n. 308. Jeremy Hainsworth, ‘Internet publication ban on BC trial challenged’, Seattle Times (Seattle), 21 March 2003.

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Associated Press and the Seattle Times that they would be excluded from the hearings if further breaches occurred. The Seattle Times reported that: To comply with the ban, AP stories on the hearing are not transmitted within Canada and carry warnings that they contain information prohibited under the ban. Signals from Seattle TV news reports about the case that reach the Vancouver area are blacked out.312

This order did not prevent websites such as ‘The Memory Hole’ from continuing to provide Canadians with accounts of the evidence presented. On 21 July 2003, Robert Pickton was ordered to stand trial. Following the discovery of a further seven bodies he is now charged with 22 counts of first degree murder. Picton’s trial for the murder of six of his alleged victims began in Vancouver on 22 January 2007. He is expected to stand trial on the remaining counts of murder at a later date.313 It has yet to be seen whether public access provided to evidence presented at the preliminary hearing is found to deny Pickton the right to a fair trial.

7 Conclusion on Charter rights In view of the judiciary’s clear recognition of the importance of the media’s role in open justice, their willingness to take a proactive role in facilitating the media’s publication of information regarding court proceedings, and the Supreme Court’s recognition in Mentuck that the media’s provision of information regarding court proceedings was not only important in ensuring freedom of expression but equally applicable to the Charter’s section 11(d) right to a public trial, the issue of camera access should perhaps more appropriately be addressed in terms of the latter right. While Canada’s traditional regulation of court reporting may be coming under challenge from developments in technology and the Charter’s impact on legal principles, it is important to note that Charter rights are subject to limits which are deemed by Canadian society to be reasonable and justifiable. Consequently, it is submitted that the scope and implications of Charter rights, which are exerting 312 313

Ibid. CVT.ca, Pickton to be Charged in Seven More Deaths (16 December 2003), www.ctv.ca/ servlet/ArticleNews/story/CtvNews/1071515009457_9?s_name=&no_ads= at 9 April 2007. For extensive online trial coverage see the Vancouver 24 Hours website www.24hrspodcast. com/pickton/node/171 at 14 April 2007.

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legal pressure on the regulation of court reporting, must be determined incrementally so as to reflect the impact of Canada’s embracement of a culture of rights on judicial and public perceptions of the media’s role in the facilitation of open justice. On this basis, the British Columbia Civil Liberties Association has submitted that ‘a case by case approach to publication bans is sufficiently flexible to allow for a gradual approach to television and other broadcast technology, while granting room for the evolution of a more open attitude as the common law gains familiarity and experience with recording and transmission of court proceedings’.314

E General implications and issues Canada’s significant experiences with audio-visual coverage of courts do not disclose evidence which would substantiate concerns regarding the effects of such coverage. Canada’s overwhelmingly positive experiences, while not producing the empirical evidence which opponents of cameras in courts demand, have served to reassure those Canadian courts which have experimented with such coverage that potential dangers are able to be minimised through appropriate regulation and control. Canada’s experiments with audio-visual coverage in trial and particularly appeal courts also provide a variety of models for the effective regulation of courtroom televising. In admitting cameras to appellate proceedings, Canadian courts have recognised the benefits of making appeal hearing recordings available to the public, and found that the public are interested in such footage, even though commercial media networks may not be. They have also found that appeal court hearings, unencumbered with potential problems relating to witnesses and juries, are appropriate starting points for the incremental admission of audio-visual coverage. Such an approach has enabled Canadian courts to retain control of audio-visual coverage and serves to underline the appropriateness of extended media coverage being perceived as a judicial initiative designed to enhance the openness of the judicial system. Canadian experiences also reveal that technological developments in broadcast technology, while undermining the effectiveness and rationale of the common law’s traditional protection of fair trials through the 314

British Columbia Civil Liberties Association, ‘Factum of the Intervener R v. Pilarinos & Clark’ Court File No. 28823 (2002) [8].

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imposition of restrictions on media reporting, also provide courts with a means of facilitating public access to recordings of proceedings which is not reliant on the interests of commercial media networks, nor subject to the constraints and perceived dangers of network media reporting. The Charter’s entrenchment of rights has promoted the development of a rights consciousness which has led Canadian courts to give greater recognition to the openness of courts and to the media’s role in facilitating public access and understanding of judicial proceedings. It has also prompted Canadian courts to play a proactive role in the promotion of public access to and understanding of court proceedings. That this has not to date translated into a wider acceptance of cameras in courts may be attributed to the benefits still being perceived in terms of media rights and thus associated with excesses of court reporting by the American media. As discussed in chapter 6 New Zealand courts have certainly acknowledged the value and implications of Canada’s experiences. In view of recognised similarities between the Canadian Charter of Rights and Freedoms and New Zealand’s Bill of Rights Act, Canadian jurisprudence on Charter rights has played a key and possibly decisive role in New Zealand’s decision to undertake its pilot programme with audio-visual coverage and to permanently admit cameras into its courts. In view of shared political, constitutional and legal traditions, Canadian experiences are also of great relevance to Britain as it reforms its judicial system, its judiciary assumes a new role in society, and its courts assume the unfamiliar task of judicial review following the introduction of the Human Rights Act 1998.315 Though lacking the entrenched rights similar to those which have played such a key role in Canada’s developments with respect to media reporting of court proceedings, Australia’s constitutional and legal traditions and practices have much in common with Canada. Consequently, Canada’s experiences may be said to be of greater relevance to Australia than the continuing focus of many of Australia’s legislators and judges on the often negatively portrayed and legally distinguishable experiences of the United States. 315

See Prince, ‘Televising Courtroom Proceedings in Canada’ above n. 76.

5 Australia

A Introduction Australian court proceedings were televised for the first time on 20 February 1981, after Northern Territory Magistrate Denis Barritt, the Coroner in the First Coronial Inquiry into the Death of Azaria Chamberlain, had invited television cameras to record and broadcast live his findings in order to counter ‘the unfounded rumours that had circulated in relation to the inquest’.1 The magistrate’s initiative and motivation were to set the pattern for most subsequent televising of Australian courts. In the subsequent twenty-six years, courts in all Australian jurisdictions have admitted television cameras into their courtrooms. Footage which is currently permitted to be recorded ranges from file footage of judges on the bench, ceremonial and special sittings, and mute overlay footage, to sound and vision recordings of segments or even entire proceedings. Such footage has been used in live and delayed broadcasts, in documentaries, news and current affairs programmes, by free to air and pay-TV networks. It has also been streamed on the Internet.2 However, while a number of Australian courts – in particular the Federal Court of Australia and the Supreme Court of Victoria – admit cameras on a regular, albeit ad hoc basis, most Australian courts admit 1

2

New South Wales Law Reform Commission, Community Law Reform Program: Proceedings of Courts and Commissions Television Filming, Sound Recording and Public Broadcasting, Sketches and Photographs, Issues Paper 4 (1984), para. 4.21 (citing personal communication with Mr Barritt SM). For details of the recording and broadcast see generally at paras. 4.22–3. For further discussion see below II(D)(11). For a discussion of these instances see Ian Ramsay, ‘Televising Court Proceedings’ (1993) 70(4) Current Affairs Bulletin 16; Access to Justice Advisory Committee, Access to Justice: an Action Plan (1994); Daniel Stepniak, ‘Why Shouldn’t Australian Court Proceedings be Televised?’ (1994) 17 University of New South Wales Law Journal 345; Christopher Lane, ‘On Camera Proceedings: A Critical Evaluation of the Inter-Relationship between the Principle of Open Justice and the Televising of Court Proceedings in Australia’ (1999) 25 Monash University Law Review 54; Daniel Stepniak, Electronic Media Coverage of Courts: A Report Prepared for the Federal Court of Australia (1998).

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television cameras very rarely and usually only to permit the recording of file and overlay footage or ceremonial sittings. Western Australia remains the only Australian jurisdiction to have enacted specific guidelines for the televising of court proceedings.3

B Restrictions on courtroom broadcasting Televising of Australian court proceedings is not directly nor specifically prohibited by legislation comparable to that barring cameras from courts in England, Wales, Northern Ireland and the Canadian Province of Ontario.4 However, legislative and common law restrictions on courtroom reporting and on the public administration of justice have created a presumption against the broadcasting of court proceedings.

1 General statutory restrictions Statutes imposing restrictions on public access and the reporting of Australian proceedings include those which prohibit the broadcasting or televising of any materials that might identify a juror;5 and of accounts of certain types of proceedings in such a way as to identify a party, a witness, a person related to or associated with, or in any way concerned with the proceedings.6 Also relevant is legislation which empowers Australian courts to prohibit the publication of material: likely to prejudice a trial;7 on the

3 5

6

7

Discussed below E.1. 4 Discussed above chapters (2) and (4). Jury Act 1977 (NSW), s. 68; Jury Act 1995 (Qld), s. 70(1)(b), (2), (11)(b); Juries Act 1967 (Vic.), s. 69. It is also an offence for jurors to disclose information about jury deliberations: Jury Act 1977 (NSW), s. 65; Jury Act 1995 (Qld), s. 70(4); Juries Act 1967 (Vic.), s. 69A. In Tasmania jurors take an oath of secrecy: Criminal Code 1924 (Tas.), s. 365, Appendix D Forms I, II. Soliciting information from jurors regarding deliberations is an offence: Jury Act 1995 (Qld), s. 70(3); Juries Act 1967 (Vic.), s. 69A(2); but only if it is to be published or broadcast, in New South Wales, Jury Act 1977 (NSW), s. 68A. See generally Sally Walker, Media Law Commentary and Materials (2000), para. 10.4.2; New South Wales Law Reform Commission, Contempt by Publication, Report No. 100 (2003), paras. 15.15–22; Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity (2001). See e.g., Family Law Act 1975 (Cth), s. 121(1); Evidence Act 2001 (Tas.), s. 194K(1); Youth Justices Act 1997 (Tas.), s. 31; Adoption of Children Act 1984 (Vic.), s. 121(2); Acts Amendment (Family and Domestic Violence) Act 2004 (WA), s. 70(2). Evidence Act 2001 (Tas.), s. 194J.

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grounds of ‘public decency or morality’;8 which may cause a witness to be ‘degraded, distressed or humiliated’;9 where required ‘in the interests of the administration of justice’;10 to prevent ‘undue hardship’;11 or where it is necessary in order not to ‘endanger the physical safety of any person’.12 Australian courts are also granted statutory power to deny public access to certain proceedings,13 or more generally, as, for example, section 17(4) of the Federal Court of Australia Act 1976, which provides power to ‘order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice’.14 Though it is rarely utilised, Australian legislation also provides that committal proceedings may be closed to the public if this is desirable in the interests of justice.15 While some statutes permit the media to be present in closed courts,16 the general rule is that the media have no greater rights to be present in court than do other members of the public.17

2 Contempt of court The broadcast of Australian court proceedings is also subject to the restrictions imposed by the law of contempt of court, which has been

8

9 10

11 12 13

14 15

16

17

Judicial Proceedings Reports Act 1958 (Vic.), s. 3(1); Evidence Act 1939 (NT), s. 57(1)(a), (1)(ii); County Court Act 1958 (Vic.), s. 81(1). Evidence Act 2001 (Tas.), s. 194L. Evidence Ordinance 1971 (ACT), ss. 82, 83(1); Magistrates’ Court Act 1989 (Vic.), s. 126(1)(b). Evidence Act 1929 (SA), s. 69A(1). Magistrates’ Court Act 1989 (Vic.), s. 126(1)(c). County Court Act 1958 (Vic.), s. 81(1); Children (Criminal Proceedings) Act 1987 (NSW), s. 10(a); Magistrates’ Court Act 1989 (Vic.), s. 126. See also R v. Tait (1979) 24 ALR 473 in which this section was examined. See e.g., Evidence Act 1929 (SA), s. 69; Justices Act 1902 (WA), s. 66. For a discussion on the utilisation of these provisions see also Moularas v. Nankervis [1985] VR 369; Walker, Media Law Commentary and Materials, above n. 5, at p. 459. See e.g., Children’s Protection and Young Offenders Act 1979 (SA), s. 92(2); Children’s (Criminal Proceedings) Act 1987 (NSW), s. 10(1)(b). See also Re Andrew Dunn [1932] Sr R Qd 1, 17, where Justice Henchman observed that ‘[n]o greater or higher right can be established by representatives of the press than is recognized as existing in members of the general public, who have the right of access to the court subject to regulation and control’.

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described as the Australian legal system’s principal strategy for controlling media publicity in relation to court cases.18 Contempt laws address media activities including media reporting or commentary deemed to interfere with the due administration of justice.19 According to its classic common law formulation ‘any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts’ is a contempt of court.20 In its 2003 Report Contempt by Publication21 the New South Wales Law Reform Commission summed up the law of contempt in the following terms: The law of contempt aims to prevent interference with the administration of justice. It regulates a range of human activities that pose a risk of such interference, such as misbehaviour in the courtroom, disobeying court orders, and interference with parties and witnesses in court proceedings.22

As contempt of court covers a wide range of activities, various aspects of the televising of proceedings – from the mere presence of cameras and other recording equipment in a courtroom, to the recording of proceedings, the broadcast or rebroadcast of recorded footage, and the commentary accompanying broadcast footage – may constitute one or more of the several categories of contempt of court.23 The law of contempt has traditionally been divided into civil contempt and criminal contempt. The High Court of Australia has observed that: In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is contempt in the face of the court or there is an interference with the course of justice.24 18

19 20 21 22 23

24

Michael Chesterman, ‘Controlling Courtroom Publicity: Common Law Strategies’ (1985) International Legal Practitioner 47, 51. Attorney-General (UK) v. Leveller Magazine Ltd [1979] AC 440, 449. R v. Gray [1900] 2 QB 36, 40 (Lord Russell). NSW Law Reform Commission, Contempt by Publication, Report No. 100, above n. 5. Ibid. para. 1.8. See generally C.J. Miller, Contempt of Court (2nd edn, 1989), pp. 2–11; Gordon Borrie and Nigel Lowe, The Law of Contempt (3rd edn, 1996), pp. 3–4; Laws of Australia, vol. 10 (1998), para. 10.11 ‘Administration of Law and justice, Ch 2, Contempt’ [4] 8–11; Des Butler and Sharon Rodrick, Australian Media Law (1999), paras. 5.10–15. Witham v. Holloway (1995) 183 CLR 525. In questioning the significance of the distinction the Court noted that ‘disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance’. The breach of statutory restrictions or court’s concealment or non-publication orders may also constitute

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(a) Civil contempt Thus, a broadcaster may commit civil contempt by disobeying a court order relating to media coverage of court proceedings or by breaching an undertaking relating to such coverage given to a court.25 (b) Criminal contempt (i) Contempt in the face of the court Of the various categories of criminal contempt,26 ‘contempt in the face of the court’ – the category concerned with improper behaviour in the court, including that which may disturb the conduct of judicial proceedings – has proven to be the most significant for the televising of Australian court proceedings. As the Australian Law Reform Commission has observed, it is because tape recorders, television cameras and still cameras are perceived to have ‘considerable potential to distract the operations of the court’ that their unauthorised use in the courtroom is capable of constituting ‘contempt in the face of the court’.27 This would suggest that the contempt law’s prohibition of unauthorised televising is based on the assumption that audio-visual recordings are disruptive and distracting. More specifically, it appears to be at least partly based on concerns relating to physical disruption. This view is reinforced by the distinction drawn between photography and filming, which are generally banned, and sketching, which is largely permitted in Australian courts. It is on this basis that the Australian Law Reform Commission, after noting the potential of cameras to distract the operation of the court, went on to say: ‘On the other hand the Commission sees no reason why making a sketch should automatically be treated as disruptive or in any way improper’.28 Similarly, in 1992, the fear of physical disruption apparently influenced the Justices of the Supreme Court of South Australia to announce a ‘uniform policy prohibiting the use of television and other cameras and also prohibiting

25 26 27

28

contempt in the face of the court. See e.g., Evidence Act 2000 (Tas.), s. 194K(4). See also NSW Law Reform Commission, Contempt by Publication, Report No. 100, above n. 5, at para. 1.9. However, see qualification above n. 24. But see ibid. and accompanying text. See Walker, Media Law Commentary and Materials, above. n 5, at para. 10.1.1. Australian Law Reform Commission, Contempt, Report No. 35 (1987), para. 126. That unauthorised recording would constitute contempt was accepted by Justice Teague in R v. Avent. See Transcript of Proceedings, R v. Avent, Supreme Court of Victoria, Teague J, 17 May 1995, at 223. Ibid. [123].

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sketching in the courtrooms’; the prohibition of sketching was lifted shortly after.29 Yet, the distinction between sketching and the use of cameras is difficult to justify on the grounds of physical disruption as sketching of courtroom participants has on occasion been shown to be more disruptive than video recording.30 A personal experience related by Justice Kennedy of the Supreme Court of the United States appears to illustrate the irrationality of the preference for sketching: I once had a . . . very celebrated case in the city of Seattle. And the courtroom was packed. And we were at a critical point in the argument. I was presiding. And a person came in with all kinds of equipment and began setting it up. And he disturbed me. He disturbed the attorneys. He disturbed everybody in the room. And he was setting up an easel to paint our picture, which was permitted. If he had a little Minox camera, we would have held him in contempt.31

The assumption about physical disruption may have been substantiated in early recording of court proceedings. For example, Goldfarb recounts that in the filming of the Nuremberg trials of Nazi war criminals in 1945 and 1946 ‘[l]ighting equipment used to film the trials was so intrusive that several defendants in the dock wore dark glasses’.32 It is now widely recognised that, in view of advances in technology, potential distraction and disruption of judicial proceedings are no longer sound reasons for maintaining a general exclusion of television cameras from the courtroom, given current conditions.33 Distraction and physical disruption from the presence of television cameras in court are no longer concerns which cannot be minimised, if not eliminated altogether, through the utilisation of appropriate technology and guidelines. It may well be, as Sally Walker has suggested, that ‘[the] real point of distinction . . . between the taking of notes and drawing of sketches on the one hand, and on the other, the use of sound recorders and 29

30

31

32 33

See King CJ’s letter to the press dated 28 April 1992 in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 42. Borrie and Lowe, The Law of Contempt, above n. 23, at p. 21. See also Stepniak, ‘Why Shouldn’t Australian Courtroom Proceedings be Televised?’, above n. 2, at 357. Tony Mauro, ‘Camera Shy: the Supreme Court has Allowed TV into the Lower Courts: Why Do They Ban it for Themselves?’ (1989) Student Lawyer 42, 47. Ronald L. Goldfarb, TV or Not TV: Television, Justice, and the Courts (1998), p. 9. See generally below chapter 7 and throughout this book.

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cameras . . . is the level of psychological distress’.34 Consequently her explanation for the continuing presumption against televising is that: Even if the equipment does not cause physical disturbance, it is supposed that this action would cause psychological distress affecting the way those involved in the proceedings, particularly witnesses, conduct themselves. It has been noted that modern technological advances raise doubts about the validity of the assumptions on which these conclusions are based but in the present state of the law, the judge’s permission must be sought before using equipment to record court proceedings.35

(ii) Sub judice contempt Where a broadcast of proceedings is carried out with the intention of interfering with the course of justice in a current or pending trial, or if the matter published has a real and definite tendency as a matter of practical reality to interfere with the due course of justice in a particular case or presents a real risk of serious prejudice to a fair trial,36 it may constitute sub judice contempt. This category of criminal contempt imposes restrictions on what the media may publish about pending or current proceedings. The main preoccupation of this category of contempt is to prevent media commentary and disclosure from influencing the jury or causing them to prejudge issues.37 For this reason, while proceedings are sub judice38 broadcasts of proceedings need to avoid disclosing the identity of the accused (if identity is at issue), or conveying an impression adverse to a litigant.39 Any commentary accompanying such broadcasts would also need to be such as could not be construed as seeking to influence the court’s decision or to impair its impartiality, which could suggest an intention to interfere with the administration of justice or a tendency to do so. This includes media reports which prejudge proceedings which are sub judice.40 34 35 36

37

38 39

40

Sally Walker, The Law of Journalism in Australia (1989), p. 20. Walker, Media Law Commentary and Materials, above n. 5, at para. 10.5.1. See John Fairfax and Sons v. McRae (1955) 93 CLR 351, 370; Hinch v. Attorney-General (Vic.) (1987) 74 ALR 353, 363 (Mason CJ); DPP (Cth) v. Wran (1987) FLR 92 (SCNSW). See Access to Justice Advisory Committee, Access to Justice, above n. 2, at para. 20.6; NSW Law Reform Commission, Contempt by Publication, Report No. 100, above n. 5; Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 5. See Walker, Media Law Commentary and Materials, above n. 5, at para. 10.2.2. Hinch v. Attorney-General (Vic.) (1987) 74 ALR 353, 363; Victoria v. Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, 57. Walker, The Law of Journalism in Australia, above n. 34, at p. 56.

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(iii) Conduct which has a tendency to interfere with the administration of justice generally Media activities may also constitute contempt on the ground that they interfere with the administration of justice generally. This category of contempt covers breaches of suppression orders, the identification of jurors and publications of accounts of the deliberations of juries,41 and the disclosure of information about proceedings held in camera, or information withheld from the jury42 or the public gallery of the court.43 This category also covers contempt through ‘scandalising the court’, which concerns itself with published material calculated to undermine public confidence in the judicial process or the authority of a judge. It covers publications suggesting a judge is acting partially or out of an improper motive.44 The essential element of this form of contempt is arguably not the truth of the published material or allegation45 or the level of abuse or criticism, but rather whether the broadcast or publication has a tendency to lower the authority of the court.46 Numerous reviews of the law of contempt have been undertaken in Australia and in other common law jurisdictions.47

3 Inherent jurisdiction While legislation and the law of contempt provide at least a partial explanation for some of the restrictions imposed on the broadcasting 41 42

43

44

45

46

47

Though legislative provisions vary between Australian jurisdictions; see above V(B)(1). Such as that disclosed in voir dire or interlocutory proceedings. See Scott v. Scott [1913] AC 417, 437–8; David Syme & Co. v. General Motors-Holden’s Ltd [1984] 2 NSWLR 294. Such as the identity of a blackmail victim. See Attorney-General (UK) v. Leveller Magazine Ltd [1979] AC 440, 450; R v. Socialist Workers Printers and Publishers Ltd [1975] QB 637. Access to Justice Advisory Committee, Access to Justice, above n. 2, at para. 20.7; Gallagher v. Durack (1983) 152 CLR 238; Ex parte Attorney-General (NSW); Re Truth and Sportsman Ltd (1961) 61 SR (NSW) 484. See Viner v. Builders Labourers’ Federation [1982] 2 IR 177, 183 (Northrop J); cf. High Court dicta in Wills v. Nationwide News [1991 –2] 177 CLR 1, 14–16 (Mason CJ), 38–9 (Brennan J), 66–68 (Deane and Toohey JJ). R v. Socialist Workers Printers and Publishers Ltd [1975] QB 637, 650 (Lord Widgery); Attorney-General (UK) v. Leveller Magazine Ltd [1979] AC 440, 450. See NSW Law Reform Commission, Contempt by Publication, Discussion Paper No. 43 (2000), paras. 1.28–1.43 for outline and discussion. The law of contempt has also recently been reviewed in Law Reform Commission of Western Australia, Review of the Law of Contempt, Report No. 93 (2003), and is currently being reviewed by the Tasmanian Law Reform Institute: see discussion in Amy Fearney-Sander, ‘Interfering with Justice?’ (2004–5) 85 Reform 31.

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of Australian court proceedings, it is Australian courts’ reluctance to exercise discretionary statutory powers to permit televising,48 and their inclination to exercise their inherent jurisdiction49 to regulate the conduct of their proceedings50 so as to prohibit broadcasting, which largely accounts for the rarity of and prevailing presumption against courtroom televising. Such exercise of Australian courts’ inherent jurisdiction is reflected not only in the widespread reluctance of individual judges to permit their proceedings to be broadcast, but in courts’ practice directions,51 rules,52 and guidelines for media reporting,53 which, in sharp contrast to conventional court reporting, which is presumed to be permitted, prohibit photography and other audio-visual recording of court proceedings without the courts’ permission. The accepted source of this inherent power is ‘the authority of the judiciary to uphold to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner’.54 Though arguably at odds with the manner in which it is exercised with respect to televising of proceedings, such discretionary power is limited in that it is subject to the principle of open justice which 48 49 50

51

52

53

54

Family Law Act 1975 (Cth), s. 121(9)(g). Or equivalent implied authority, in the case of inferior courts. Attorney-General (UK) v. Leveller Magazine Ltd [1979] AC 440; R v. Tait and Bartley (1979) 46 FLR 386. On the nature of this power, see Keith Mason, ‘The Inherent Jurisdiction of the Court’ (1983) Australian Law Journal 349; I.H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23. For example, Supreme Court of Queensland Practice Direction Number 4 of 2004, issued by Chief Justice Paul de Jersey on 9 March 2004, states that ‘[e]xcept with permission of the presiding judge . . . [or if undertaken for official transcription services] any device capable of capturing or transmitting the proceedings of the court, aurally and/or visually, is not to be used for that purpose in a court room where proceedings are being conducted’. For example, Family Law Rules 2004, r. 1.19, titled ‘Permission to record court event’ which states that ‘[a] person must not photograph, or record by electronic or mechanical means any court event’. For example, in Western Australia the 1996 Guidelines for the Media, at 12 states that ‘[i]t is the usual rule that no coverage is obtained from within the courtroom for radio or television broadcast’. Western Australian Courts’ 1996 Guidelines for Electronic Coverage of Judicial Proceedings specify that ‘any coverage [meaning recording or broadcasting, using television, video, photographic or sound equipment] of judicial proceedings is permitted only on order of the presiding Judicial Officer, who may grant or refuse permission in his/her absolute discretion and on such terms and conditions as he/she sees fit’: at 1, 2. Jacob, ‘The Inherent Jurisdiction of the Court’, above n. 50, at 28 cited in Access to Justice Advisory Committee, above n. 2, at para. 20.6.

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requires the administration of justice be carried out in a court to which the public and media have a right to be admitted.55 Consequently, it has been held that the exercise of this inherent jurisdiction cannot ‘exceed what is necessary for the administration of justice’.56 With respect to the power of courts to conduct proceedings in courts closed to the public and media, the Full Court of the Federal Court of Australia ruled in R v. Tait57 that: A judge cannot modify the common law rule which requires a court to administer justice in public. Apart from the strictly defined exceptions [such as where the exercise of the court’s jurisdiction would be defeated or frustrated if the proceedings were held in public], ‘parliamentary sanction is required for the exclusion of the public from proceedings’ (per Stephen J in Russell v. Russell (1976) 134 CLR 495 at 533).58

Thus, while it is accepted that it is within a court’s jurisdiction to close its doors, the exercise of such discretionary power by a judge is in fact confined to circumstances when the interests of the administration of justice make such closure necessary.59 As Chief Justice Street observed: The only consideration to which the rule as to publicity yields is the paramount duty of the Court to secure that justice should be done. If it is made to appear that justice cannot be done otherwise, then there is power to direct that proceedings be held in private.60

Courts’ inherent powers to prohibit or suppress the reporting of court proceedings have been held to be similarly constrained by the principles of open justice. In John Fairfax & Sons v. Police Tribunal of New South Wales,61 Justice McHugh held: The principle of open justice also requires that nothing be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper 55

56

57 59 60

See Scott v. Scott [1913] AC 417, 463, 477; Dickason v. Dickason (1913) 17 CLR 50, 51; Russell v. Russell (1976) 134 CLR 495, 520, 532; Harman v. Secretary of State for the Home Department [1983] 1 AC 280, 316; R v. Hamilton (1930) 30 SR (NSW) 277, 278. Riley McKay Pty Ltd v. McKay [1982] 1 NSWLR 264, 270. For a fuller discussion of the scope of the inherent jurisdiction, see Justice Teague’s Ruling in Avent, 17 May 1995, 9–16; Transcripts of Proceedings, R v. Avent, Supreme Court of Victoria, Teague J, 17 May 1995, at 157–259. (1979) 24 ALR 473. 58 (1979) 24 ALR 473, 488. See Raybos Australia Pty Ltd v. Jones (1985) 2 NSWLR 47, 54. R v. Hamilton (1930) 30 SR (NSW) 277, 278. 61 (1986) 5 NSWLR 465.

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administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication.62

While, as the Access to Justice Advisory Committee observed, ‘there is little doubt that courts can rely upon this [inherent] power to exclude televising or sound recording’ and true that a ‘[b]reach of a court’s direction in this regard would amount to a contempt of court’,63 the employment of this inherent power to implement a presumption against televising would appear to be beyond its power. Courts’ refusal to permit proceedings to be recorded and broadcast is arguably seldom justifiable as necessary to secure the administration of justice. A total exclusion also appears to exceed what is necessary to achieve the administration of justice, and not to be based on material allowing the court to reasonably conclude that such an order is necessary. While Australian studies have appropriately recommended that judges’ televising should be regulated by judges’ discretionary inherent jurisdiction, they have almost invariably also recommended or implied that a judge’s discretion to prohibit such coverage is unlimited. Thus, in 1987 the Australian Law Reform Commission recommended that televising should be placed within the discretion of the presiding judge, and televising only permitted when the judge has granted permission.64 In concluding that the formulation of guidelines provided the means of striking a balance between the privacy of the parties subjected to television’s more intrusive coverage and the legitimate interest of the public in the proceedings of its justice system, the Access to Justice Committee concluded that in their proposed experimental programme: The presiding judge should have a discretion to allow broadcasting . . . should be able to limit, temporarily suspend or disallow broadcasting, if in the judge’s opinion, such coverage has interfered or will interfere with the rights of the parties to a fair trial and the proper administration of justice.65 62 63 64 65

John Fairfax & Sons v. Police Tribunal of NSW (1986) 5 NSWLR 465, 476. Access to Justice Advisory Committee, Access to Justice above n. 2, at para. 20.6. ALRC, Contempt, Report No. 35, above n. 27, at para. 126. Access to Justice Advisory Committee, Access to Justice, above n. 2, at para. 20.37.

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Leaving the decision whether to permit televising to the apparently unlimited discretion of presiding judges appears to either ignore the restrictions which the common law imposes on judges’ inherent jurisdiction, or to be based on questionable assumptions as to the effects of televising. It may also be said to reflect the current state of consensus on televising in Australia: largely in agreement on the regulation, but lacking consensus or even debate of the basis on which such coverage should be permitted. An approach more consistent with the principles of open justice, the common law governing media reporting, the scope of the judiciary’s inherent powers, and available evidence as to the effects of televising, would be one where appropriately regulated televising would be permitted, unless prohibited or further restricted on the basis of substantiated, compelling and appealable reasons, which judges and magistrates would be required to state.66

C Features distinguishing Australia’s experiences While Australian courtroom televising has not been assessed through trial programmes or empirical analysis, Australia’s experiences with televising have from time to time been reviewed and the desirability of permitting such coverage has been considered.67 Before embarking on an analysis of specific experiences of Australian courts, it is important to note two key factors which, in particular, distinguish Australia’s experiences and debate of televising from those of the United States, Britain, Canada and New Zealand.

1 Absence of entrenched rights The first distinguishing factor is the absence in Australia of entrenched or overriding constitutional or international rights of freedom of speech or freedom of the press. 66

67

For case law and discussion on the media’s standing to challenge orders restricting media access to and publication of court proceedings, see Walker, Media Law Commentary and Materials, above n. 5, at para. 9.6.1. See especially NSW Law Reform Commission, Proceedings of Courts and Commissions Television Filming, Sound Recording and Public Broadcasting, Sketches and Photographs (1984). See also Parliament of New South Wales Committee on the ICAC, Inquiry into a Proposal for the Televising of Public Hearings of the Independent Commission Against Corruption (1990); Access to Justice Advisory Committee, Access to Justice, above n. 2; Stepniak, Electronic Media Coverage of Courts, above n. 2.

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(a) Constitutional rights Australia’s 1901 Constitution68 does not contain express freedom of communication provisions equivalent to the First Amendment of the US Constitution, section 14 of New Zealand’s Bill of Rights Act (1990), section 2 of Canada’s 1982 Charter of Rights and Freedoms, or Article 10 of the European Convention on Human Rights (1950). Nor does it contain an express right to a public trial guarantee equivalent to the Sixth Amendment of the US Constitution, section 14 of the Bill of Rights Act, Article 6 of the European Convention, or section 11 of the Charter. As Australian High Court Justice Darrell Dawson noted: [u]like the First Amendment . . . which has been interpreted to confer private rights, our Constitution contains no express rights of freedom of communication or expression . . . Within our legal system communications are free only to the extent that they are left unburdened by laws that comply with the Constitution.69

Although the omission of a Bill of Rights from Australia’s Constitution is generally accepted to reflect the drafters’ preference for relying on the common law, an independent judiciary and a representative legislature for the protection of rights,70 since 1992, the High Court of Australia has shown a willingness, albeit far less enthusiastically of late, to recognise that the system of representative and responsible government which the Constitution has created gives rise to implied rights such as the ‘freedom of communication in relation to public affairs and political discussion’.71 By 1994, a bare majority of the Court transformed this newly found freedom into an implied constitutional right to freedom of political communication rights.72 Yet, following crucial changes to the composition of the High Court bench, in 1997 the Court drew back, holding that Theophanous was no longer good law and defining the extent of the implied freedom of communication in the following terms: 68 69 70

71

72

Commonwealth of Australia Constitution Act 1900 (UK). Lange v. Australian Broadcasting Co. (1997) 189 CLR 520, 567. See Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104, 193 (Dawson J); Australian Capital Television v. Commonwealth (1992) 177 CLR 106, 182–3; Kruger v. Commonwealth (1997) 190 CLR 1, 61. See generally Michael Coper, Encounters with the Australian Constitution (1988), pp. 292–331; Hilary Charlesworth, Writings in Rights (2002), pp. 17–27. Nationwide News Ltd v. Wills (1992) 177 CLR 1; Australian Capital Television v. Commonwealth (1992) 177 CLR 106. Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104.

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Freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution . . . [T]he freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government . . . which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.73

Australian courts have rejected legal challenges to laws imposing restrictions on the reporting of court proceedings based on the implied freedom of communication. Even in its broadest interpretation by Justice Deane in Theophanous,74 contempt law was held not to infringe the implied constitutional freedom. In Attorney-General (NSW) v. Time Inc. Magazine Co. Pty Ltd75 the New South Wales Court of Appeal rejected the argument that the common law of contempt was incompatible with such an implied right, noting that freedom of expression was not unconditional and was subject to being balanced against competing interests, as the law of contempt did.76 In John Fairfax Publications v. Doe,77 the NSW Court of Appeal also rejected the argument that the implied freedom had ‘abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion’.78 Justice Kirby held: It would be unthinkable if the beneficial development of the implied constitutional right to free communication upon certain matters integral to the political system established by the Constitution were seen . . . as a vehicle for destroying the essential power and duty of the courts in this country to protect the fair trial right of persons accused of crimes. 79

While Australian courts have rejected legal challenges to laws imposing restrictions on the reporting of court proceedings based on the implied freedom of communication, such rulings need not mean that the 73 74

75

76

77

Lange v. Australian Broadcasting Co. (1997) 189 CLR 520, 561–2. Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104, 187. For further discussion, see LRCWA, Review of the Law of Contempt, above n. 47, at p. 6. [1994] NSWCA 40331/94, unreported, New South Wales Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994. Ibid. at [10] (Gleeson CJ). Sheller and Cole JJA concurred with Gleeson CJ; NSW Law Reform Commission, Contempt by Publication, Report No. 100, above n. 5, at para. 2.12. (1995) 37 NSWLR 81. 78 Ibid. at 111 (Kirby P). 79 Ibid. at 110 (Kirby P).

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implied freedom does not impose any restrictions on the imposition of constraints on courtroom reporting. Accepting, as argued below, that the High Court would deem open justice and the role played by the media as necessary for the effective operation of the system of government established by the Constitution, even on a restricted reading of the implied freedom of communication, it could be argued that at least a total prohibition on the broadcast of court proceedings (for example, such as the statutory prohibition in England and Wales)80 would exceed what was necessary for the effective operation of the government. Though the object of such a prohibition – the protection of the fair and impartial administration of justice – would clearly be compatible with the maintenance of the system of government, such a restriction could arguably be said not to be reasonably appropriate and adapted to achieving that object.81 And while such a prohibition would not prohibit all forms of media coverage, it is significant to note that even though the legislation declared invalid in Australian Capital Television82 only prohibited radio and television broadcasting and thus could have been held merely to constitute a restriction on a mode of communication and thus, ‘more susceptible of justification’, it was held to impose ‘a burden of free communication . . . disproportionate to the attainment of the competing public interest’.83 It has also been suggested that the NSW Court of Appeal decision in Attorney-General for the State of New South Wales v. X84 ‘marks a shift towards a recognition that the right to a fair trial and the interests in the proper administration of justice are of equal value to the right to free speech . . . and suggests that it may be time to reassess the boundaries of the laws of contempt by publication’.85 An alternative and yet largely unexplored basis for asserting that the Australian Constitution impliedly protects freedom of speech is that based on Chapter III of the Constitution, which not only guarantees procedural and possible substantive due process rights, but arguably also guarantees substantive rights such as freedom of communication.86 80 81

82 85 86

See above chapter 2. See below chapter 4 D for a further discussion of this point in relation to the Canadian Charter of Rights and Freedoms. (1992) 177 CLR 106. 83 Ibid. at 143 (Mason CJ). 84 [2000] NSWCA 1999. Fearney-Sander, ‘Interfering with Justice?’, above n. 47, at 31. See George Winterton, ‘The Separation of Powers as an Implied Bill of Rights’ in E. Lindell (ed.), Future Directions in Australian Constitutional Law (1994), pp. 185, 200–1. See also the Hon. Justice M. H. McHugh, ‘Does Chapter III of the Constitution Protect Substantive as well as Procedural Rights?’ (2001) 3 Constitutional Law and Policy Review 57.

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As New South Wales Chief Justice Spigelman has argued, the principle of open justice has been judicially recognised to be so significant and fundamental, as to be treated as part of the constitution.87 He notes that even in Britain ‘the right of access to the courts has been described as a ‘‘constitutional right’’’.88 Most notably, in Scott v. Scott89 Lord Shaw described the principle of open justice as ‘a sound and very sacred part of the constitution of the country and the administration of justice’.90 That ‘open justice’ is a principle implied by the Australian Constitution arguably flows from the central role it is recognised as playing in the administration of justice. For example, in unanimously following the decision of the House of Lords, the High Court of Australia in Dickason91 emphasised the central role played by open justice, observing that ‘there is no inherent power in a court of justice to exclude the public in as much as one of the normal attributes of a Court is publicity, that is the admission to the public to attend proceedings’.92 More recently, in Russell v. Russell,93 Justice Gibbs presented ‘courts being open to the public’ as a defining and essential aspect of courts of law.94 The High Court has recognised that Chapter III of the Australian Constitution impliedly protects procedural rights, protecting such from being abolished or restricted.95 Thus, in Tracey ex parte Ryan96 Justice Deane deemed Chapter III to be ‘the Constitution’s only general guarantee of due process’. Consequently, the Court has shown itself willing to invalidate legislation authorising judicial power to be exercised ‘in a manner inconsistent with the essential character of a court or with the nature of judicial powers’,97 or compromising the integrity of the judicial process,98 which Justice Gaudron held depended on courts acting in accordance with the judicial process and in the maintenance of public confidence in that process.99 Arguing that ‘public confidence in the courts is a critical aspect of the open justice principle’ Justice 87

88 91 93 95

96 97

98

The Hon. Chief Justice James Spigelman, ‘Seen to be Done: the Principles of Open Justice Part I’ (2000) 74 Australian Law Journal 290, 293. See cases cited in ibid. 296 note 22. 89 [1913] AC 417. 90 Ibid. at 473. Dickason v. Dickason (1913) 17 CLR 50. 92 Ibid. at 51. (1976) 134 CLR 495. 94 Ibid. at 520. See McHugh, ‘Chapter III of the Constitution’ above n. 86, where he cites Prof. Leslie Zines, who suggests that Chapter III prohibits legislation which ‘impairs the due administration of justice’: The High Court and the Constitution (4th edn, 1997), p. 204. (1989) 166 CLR 518, 580. Chu Kheng Lim v. Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, 27. Kable v. DPP (NSW) (1997) 189 CLR 51. 99 Ibid. at 107.

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Spigelman has suggested that ‘[s]ome aspects of judicial procedure and practice which ensure open justice are likely to be so essential an aspect of the character of a court that any infringement will be struck down as invalid’.100 Blackshield and Williams101 outline the following proposition which would support the argument that the principle of open justice and the media publicity which it requires are impliedly entrenched in the Australian Constitution: In Polyukhovich,102 Deane J held that federal courts cannot be required to exercise power ‘in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power’.103 Brennan, Deane and Dawson JJ reached the same conclusion in Chu Kheng Lim,104 while Kable v Director of Public Prosecutions (NSW)105 extends the same proposition to State courts as well, at least if they are capable of exercising federal judicial power . . . It is not a large step from the dicta in Polyukhovich and Chu Kheng Lim to the conclusion that the ‘essential requirements of a court’ mean that a court is constrained to hold a ‘fair trial’ . . . If this is correct the core components of the criminal trial . . . may be constitutionally prescribed. According to Gaudron J in Re Nolan: Ex parte Young106 . . . the entrenched component might include an ‘open and public enquiry (subject to limited exceptions)’.107

Justice McHugh also presents a compelling argument for Chapter III providing a guarantee of procedural due process, in the sense that it dictates that judicial power is to be exercised in accordance with ‘traditional judicial process’.108 His analysis of case law led him to conclude that ‘the combined effect of the judgments in [Kruger] with those in Leeth and Polyukhovich suggest that implications protective of personal liberty will be drawn from the conception of Chapter III as an ‘‘insulated self contained universe of Commonwealth judicial power’’ ’.109 100 101

102 104 106 108

109

Spigelman, ‘Seen to be Done’, above n. 87, at 293. Tony Blackshield and George Williams, Australian Constitutional Law and Theory (3rd edn, 2002), p. 1268. See also C. Parker, ‘Protection of Judicial Process as an Implied Constitutional Principle’ (1994) 16 Adelaide Law Review 341. (1991) 172 CLR 501. 103 (1991) 172 CLR 501, 607. (1992) 176 CLR 1, 27. 105 (1996) 189 CLR 51. (1991) 172 CLR 460. 107 (1991) 172 CLR 460, 496. Nationwide News v. Wills (1992) 177 CLR 1, 70. See also McHugh, ‘Chapter III of the Constitution’, above n. 86. McHugh, ‘Chapter III of the Constitution’, above n. 86, citing Blackshield and Williams, Australian Constitutional Law and Theory, above n. 101, at p. 1164.

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While open justice is sometimes presented as being synonymous with courts merely being open to public admission,110 Australian courts have consistently acknowledged the intrinsically crucial role played by the media. In so doing they have echoed the US Supreme Court’s recognition that: [i]nstead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through print and electronic media. In a sense this validates the media claim of functioning as ‘surrogates for the public’.111

In Raybos Australia Party Ltd v. Jones,112 Justice Kirby observed: The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend.113

The reality of contemporary open justice and its implications for courts led South Australia’s Chief Justice John Doyle to observe: [T]he public have a right of access to the courts. That means they can walk into the courtroom and listen. But these days, in reality, most people exercise that right of access through the media. It’s the print and electronic media by which they find out what’s happening in court. And because I see the media as exercising the public’s right of access I think it’s important that we help the media as much as we can, to give the public what you might call good access, to give them good quality information about what’s happening.114

A similar sentiment has been expressed by the Federal Court’s Chief Justice Black.115

(b) International law With respect to freedom of speech, Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR) (1966). Section 19(2) of the ICCPR states: 110

111 112 114

115

See e.g., Dickason v. Dickason (1913) 17 CLR 50, 51 where the High Court appeared to imply this. Richmond Newspapers Inc. v. Virginia 448 U.S. 555, 572–3 (1980). (1985) 2 NSWLR 47. 113 Ibid. at 55. ABC Radio National, ‘How Courts Interact with the Media’, The Law Report, 10 November 1998, www.abc.net.au/rn/talks/8.30/lawrpt/lstories/lr981110.htm at 10 April 2007. Ibid. See text and discussion below E.3(a).

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Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, whether orally, in writing or in print, in the form of art, or through any other media of his choice.

However, even though Australia ratified the Convention in 1984,116 and it was annexed as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), significantly it has not become a part of Australian law. In Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh117 the High Court affirmed the principle ‘that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into . . . [domestic law] by statute’.118 The significance of Australia’s failure to incorporate in domestic law many of the rights and freedoms recognised by international law has been recognised by Australian judges.119 Contrasting Australia’s failure to incorporate provisions of the ICCPR and ‘many other international human rights covenants in our own law’ with the significance of Britain’s Human Rights Acts 1998, Justice Spigelman observed ‘The law of Britain will increasingly develop in the light of international jurisprudence on human rights. So will the law of Canada under the Canadian Charter of Rights and Freedoms and to a lesser extent the law of New Zealand under the Bill of Rights Act of 1990.’120 Though not part of Australian law, international law, such as the ICCPR, retains a potential capacity to influence Australian law. As former Australian Chief Justice Brennan observed in Mabo,121 international law has ‘a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’.122 The High Court has also accepted that it is permissible and appropriate that statutes be interpreted, where possible, in conformity with established rules of

116

117 119

120 121

See Martin Flynn, Human Rights in Australia, Treaties, Statutes and Cases (2003), pp. 66–7. (1995) 183 CLR 273. 118 Ibid. at 286–7 (Mason CJ and Deane J). Spigelman, ‘Seen to be Done’, above n. 87; the Hon. Justice Michael Kirby, ‘Take Heart: International Law Comes, Ever Comes’, paper presented at the Conference on International Law, The Challenge of Conflict, Adelaide, 27 February 2004. Spigelman, ‘Seen to be Done’, above n. 87, at 292–3. Mabo v. Queensland (No. 2) (1992) 175 CLR 1. 122 Ibid. at 42.

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international law.123 Additionally, in Teoh,124 the Court somewhat controversially125 proposed that ratification can create a legitimate expectation that the executive will act in accordance with the terms of the ratified treaty, even where Australian legislation has not incorporated such terms into Australian law.126 However, even if Australian courts were to acknowledge the implications of Article 19 for the reporting of court proceedings, they would need to do so in the context of the Article’s acknowledgement of legal restrictions deemed ‘necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals’.127 Article 19 rights would also need to be considered alongside the potentially conflicting entitlement ‘to a fair and public hearing by a competent, independent and impartial tribunal established by law’ in Article 14(1). In this respect, reliance on Article 19 would involve a balancing of competing rights very similar to that encountered by those relying on the US Bill of Rights,128 the Canadian Charter,129 New Zealand Bill of Rights130 and the European Convention in its application to British law via the Human Rights Act 1998.131 Arguments based on an implied constitutional right to a public trial are also likely to be supported by international law. Section 14(1) of the ICCPR states: ‘In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’ To the extent that provisions of this Convention may influence Australian law, Article 14(1) would arguably serve to reinforce the legal basis for limiting restrictions which may be imposed on media reporting and public administration of justice.

123

124 125

126

127

128 130

See Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38; Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR 273; Kartinyeri v. Commonwealth (1998) 72 ALJR 722, 745. Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR 273. See generally Peter Hanks, Patrick Keyzer and Jennifer Clarke, Australian Constitutional Law Materials and Commentary (7th edn, 2004), paras. 3.2.9 –15. Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR 273, 290 (Mason CJ and Deane J). International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171, art. 19(3) (entered into force 23 March 1976). See above chapter 3. 129 See above chapter 4. See below chapter 6. 131 See above chapter 2.

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However, in view of the difficulties encountered, even in jurisdictions with express constitutional and directly applicable international law,132 it is highly unlikely that implied constitutional rights and ICCPR provisions would in themselves provide the legal basis for the admission of television cameras into Australian courts. However, they may be sufficient to alter the main implication of the absence of express constitutional provisions or international law enshrined in domestic law for the issue of courtroom televising – that the media have lacked the legal basis for insisting on greater access to court proceedings and consequently that the courts have not had to confront or pre-empt legal challenges to their presumption against televising.133 Though, as South Australian Courts’ Communications Manager, Sylvia Kriven, has noted: ‘Because media in Australia do not have the same constitutional right [as their American counterparts], the obligation to deal with media requests for a camera in court is one that Australian judges do not have to face immediately.’134 This, arguably, implied that constitutional rights supported by the ratified provisions of the ICCPR provide a safeguard against restrictions on the principles of open justice incompatible with the responsible and representative government and the attributes of a court established by the Commonwealth Constitution. Arguably, in light of the above discussion an obligation to confront the issue may not only flow from the media’s legal basis for insisting on greater access to court proceedings and Australian courts but will also flow from a recognition of limits to judges’ discretionary inherent powers to exclude cameras, and a reconsideration of the restraints on media reporting of court proceedings in recognition of the undermining by technology of some of the assumptions on which the regulation is based.135

2 Proactive role played by Australian courts The second distinguishing factor, arguably in part flowing from the first, is that Australia’s courts rather than the media have provided the driving 132 133

134

135

See chapters 2, 4. As American, New Zealand and Canadian courts have done and British courts are on the verge of experiencing. Sylvia Kriven, Quo Vadis? A Report on a Visit to the United States of America, 2 July to 17 July 2001, and Recommendations for Change in the Communications Branch of the Courts Administration Authority, (2001), p. 8. See below G.

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force and leadership in Australia’s slow and incremental moves towards providing public access to audio-visual recordings of court proceedings. This aspect appears to be reflected in the nature of footage most commonly broadcast. Rather than being dominated by criminal trial footage, as is the case in New Zealand and the United States, Australian broadcasts are most commonly of file and overlay footage, court decisions in civil proceedings and sentencing remarks in criminal proceedings. The broadcast of criminal proceedings footage has been largely confined to documentaries. Footage which is broadcast may be said to balance rather than add to or exacerbate the populist focus of media coverage, and reflects the courts’ desire to promote public confidence in the law through accurate media reporting and an enhancement of public understanding of court rulings and the role of courts. As outlined below, the Family Court of Australia provides a case study of an Australian jurisdiction in which judicial commitment to the promotion of public understanding has led the court to facilitate informative broadcasts of its proceedings, in spite of the inherently confidential nature of its proceedings and consequent stringent statutory restrictions on media reporting, which saw it declared least suited to televising.136 Australian courts’ proactivity is also evident in the courts’ utilisation of technology to enhance public access and understanding of judicial proceedings and which a number of Australian courts appear to be on the verge of utilising to provide the public with access to audio-visual recordings of proceedings, as a means of supplementing media coverage or of making the courts less reliant on the media for the public access and scrutiny of the administration of justice. Australian experiences reveal that this desire to enhance public understanding motivated prominent Australian judges, such as South Australia’s Chief Justice Doyle, Western Australia’s Chief Justices David Malcolm and Wayne Martin, the Federal Court’s Chief Justice Black and the Family Court’s Chief Justice Diana Bryant, to use courtroom technology and to harness media reporting to promote public access and understanding. Seeking to address the recognised lack of public confidence, the courts began to forge cooperative relationships with the media and to assist the media by providing ready access to court decisions in an

136

See below E.5.

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accessible and usable form and training and information regarding court processes and regulation of court reporting. Ms Jan Wade’s 1 March 1993 appointment as Media Liaison Office for the Supreme Court of New South Wales was the first such appointment by an Australian Superior Court in Australia,137 and the first of a series of appointments soon after made by all Australian state and federal jurisdictions, with the exception of Queensland, which remains the only Australian jurisdiction not to have appointed a Court Media Officer.138 Jan Nelson has suggested that two main reasons account for such appointments: The first is the recognition by a majority of judicial officers across the country that if complaints are made about the inadequacy of the level of understanding displayed by the media and errors made in reporting matters before the Court, more should be done to facilitate access to information about the courts. The second is the belief that the public has little knowledge of the function and role of the judiciary, the third arm of government and of its importance to the stability of the community.139

The appointment of Public Information Officers (PIOs) led to a number of innovations designed to assist media reporting of the court’s proceedings, perhaps the most significant being the PIOs’ role in persuading judges to allow systematic recording of file footage of judges on the bench, initially staged for the cameras but increasingly recorded during proceedings. In some jurisdictions, such appointments have also led to the establishment of media liaison committees. The potential and benefits of court facilitation of media reporting are perhaps most evident in the state courts of Victoria where the Courts Media Committee consists of judges representing the Supreme, County and Magistrates’ Courts, the State Director for Public Prosecutions, two prominent media lawyers and the Courts Information Officer. The Committee meets regularly to hear media concerns, determine policies and practices and 137

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See table of appointments in the Hon. Justice Michael Kirby, ‘The Judiciary in Federation Centenary Year: Good News, Bad News, No News’, paper presented at the Australian Institute of Judicial Administration, 11th AIJA Oration, Sydney, 22 June 2001, at 9, www.aija.org.au/KirbyOra.rtf at 10 April 2007. G. L. Davies and S. N. Then, ‘Why the Public Needs a Court Information Officer’ (2004–5) 85 Reform 9. Jan Nelson, ‘The Role of the Public Information Officer in New South Wales’ (1995) 5 Journal of Judicial Administration 34.

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to address common problems. Prue Innes, the Victorian Courts Information Officer, has been recognised as a particularly effective liaison person, who acts not only as a contact point for media inquiries but who also assists media reporting through the provision of background information, transcripts, regular seminars and workshops on court reporting and through written materials such as the booklet, A Basic Guide for Journalists,140 which provides advice on avoiding contempt of court, sets out and explains key legislative provisions relating to reporting, and explains court practice and procedure. The work of the Victorian Courts Information Officer, the Media Liaison Committee and the Victorian courts’ embracement of new technology which has made sentences, rulings and judgments quickly and readily accessible online,141 have led Australian court reporters’ representatives to nominate Victoria as ‘the most congenial state in which to work, because of the co-operative relationship that exists there between the media and the courts’.142

D Early experiences of Australian courts 1 Initial broadcasts As noted earlier, the first occasion on which television cameras were admitted into an Australian courtroom took place in 1981, when Stipendiary Magistrate Denis Barrett invited cameras into his Alice Springs courtroom to record and broadcast live his findings in the First Coronial Inquiry into the death of Azaria Chamberlain.143 Noting the ‘storm that followed the decision’ the Australian Law Reform Commission’s journal Reform observed that this had occurred against the backdrop of prevailing judicial opposition in Australia and reforms overseas.144 While such prevailing judicial opposition may explain why television cameras and press photographers were not 140

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Prue Innes, Covering the Courts: A Basic Guide for Journalists (2004), Supreme Court of Victoria, http://supremecourt.vic.gov.au/CA256902000FE154/Lookup/Papers/$file/ Covering%20the%20courtsV4Oct04.pdf at 10 April 2007. Via the Victorian Supreme Court’s Links Page, www.supremecourt.vic.gov.au/ CA256CC60028922C/page/Listing-Utility+Buttons-Links?OpenDocument&1=10-Listing ~&2=-Utility+Buttons~&3=50-Links~ at 10 April 2007. See NSW Law Reform Commission, Contempt by Publication, Report No. 100, above n. 5, at paras. 15.15–22. NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.21 (citing personal communication with Mr Barritt, SM). ‘Odds and Ends’ (1981) Reform 101.

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permitted to record the proceedings of the subsequent 1982 trial of Lindy and Michael Chamberlain,145 it is significant to note that acting with the consent of all parties, the trial judge, Justice Muirhead, facilitated the presence of the world’s media by permitting closed circuit television transmission of proceedings to a separate room of the Darwin Supreme Court.146 It is also significant to note that keeping cameras out of the Chamberlain inquests, trial and appeals proved insufficient to avoid trial by media and the publication of damaging misinformation, which Magistrate Barritt had sought to counter.147 It could be argued that the reason why so many Australians remain convinced about Lindy Chamberlain’s guilt on the basis of discredited evidence and reporting is precisely because the public had been prevented from seeing and hearing the proceedings for themselves.148 Judicial opposition at the time of the Chamberlain Inquest was exemplified by Chief Justice Garfield Barwick, whose policy of maintaining a ‘dignified silence’ saw the High Court deny television cameras permission to record and broadcast the Court’s first ceremonial sitting in the new Canberra High Court Building a year earlier in 1980.149 Nevertheless, 1981 witnessed courts in three other state jurisdictions also admit television cameras to record and broadcast proceedings for the first time. Television cameras recorded New South Wales court proceedings for the first time in June 1981, when proceedings in two courts at the Sydney Central Court of Petty Sessions were broadcast in an ABC Television 145 146

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R v. Chamberlain (1982) NTSC, unreported, Muirhead J, 29 October 1982. NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.33. Sam Lipski, ‘Azaria Case Reflects Journalism’s Worst – and Best’, The Bulletin, 25 February 1986. On media reporting of the Chamberlain inquests and trials, see generally John Bryson, Evil Angels (1985); Ken Crispin, Lindy Chamberlain: The Full Story (1990); Norman Young, Innocence Regained: The Fight to Free Lindy Chamberlain (1989). Paul Toohey, ‘Witch hunt’, The Australian (Perth), 15 July 2000. 2004; Errol Simper, ‘Acquittal’, The Australian (Perth), 30 July 2004, p. 14. Public attention and debate refocused on the case in 2004, thanks to a claim by an elderly man that he retrieved Azaria’s body from the jaws of a dingo he had shot: see Paul Toohey, ‘Why Lindy Must Wait for Justice’, The Bulletin, 20 July 2004, p. 20; Adrian Tame and Sue Hewitt, ‘I know fate of Azaria’, Sunday Times (Perth), 4 July 2004, p. 1; Channel 7, Through my Eyes, 23–24 November 2004. See a review in Gill Boehringer, ‘Review: Through My Eyes’ (2004) 29 Alternative Law Journal 302. See ‘Odds and Ends’, above n. 144.

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Four Corners programme seeking to provide an insight into what it is like to appear in a Court of Petty Sessions.150 The Australian Law Journal hailed the programme as informative, and commended the ABC for ‘enabling a nation-wide audience to form an impression of what is currently going on in the busiest Court of Petty Sessions in Australia’, noting: Few people not familiar with the proceedings in the central Court of Petty Sessions in Sydney, had any idea of the extent to which stipendiary magistrates and police are overworked in disposing of long lists and the inherent delays which are endemic in the existing system.151

South Australian courts participated in Australia’s initial burst of courtroom televising in 1981, permitting a November Adelaide District Court trial to be recorded for and broadcast in an ABC Television, Four Corners programme Stop Thief.152 Tasmanian courts also first admitted television cameras in 1981, when in July of that year, Magistrate Sikk SM consented to television cameras recording opening statements by the prosecution and the defence in the Hobart Court of Petty Sessions. The permission was granted in spite of the objections of both counsel.153

2 Early Australian studies of courtroom televising (a) NSWLRC Issues Paper In 1984 the New South Wales Law Reform Commission published an Issues Paper titled, Proceedings of Courts and Commissions: Television Filming, Sound Recording and Public Broadcasting, Sketches and Photographs.154 The paper presented Australia’s first study of courtroom televising. It identified the issues and may be said to have largely

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NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at paras. 4.21, 4.25–27, www.lawlink.nsw.gov.au/lrc.nsf/pages/IP4TOC at 10 April 2007. ‘Current Topics’ (1981) 55 Australian Law Journal 511. NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.28. Berry v. GJ Coles & Company Ltd Nos. 8140/81–8145/81 (unreported) cited and discussed in NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.24. Ibid.

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determined the framework of Australia’s debate as to the desirability of televising courtroom proceedings. In the Issues Paper, the Commission considered relevant Australian law,155 reviewed United States’ experiences with cameras156 and considered Australia’s limited experiences,157 before evaluating arguments for and against the televising of judicial and quasi-judicial proceedings,158 and identifying questions of policy.159 The key concerns identified by the Commission related to the disruption, distraction,160 psychological effect,161 and invasion of privacy.162 The Commission observed that proponents of courtroom televising considered these concerns to be either largely unfounded or otherwise capable of being regulated through appropriate measures. The Commission also recognised certain benefits as likely to flow from the televising of courtroom proceedings. The identified potential benefits included the educative value and informative function of televised courtroom proceedings; its facilitation of personal observation of proceedings; positive effects on participants; and its enhancement of public confidence through the creation of greater public access. Noting the implications of technological advances, moves towards the broadcast of parliamentary proceedings and serious reservations regarding the psychological impact on participants, the Commission recommended that the risks and benefits it had identified be evaluated in a controlled experimental programme.163

(b) ICAC Commercial national television network Channel 9’s March 1989 proposal to televise public hearings of the newly established Independent Commission Against Corruption (ICAC) led the New South Wales Parliamentary Committee on the ICAC to resolve in October 1989 to examine ‘the desirability and if necessary any subsequent guidelines for televising public hearings of the ICAC’.164 The significance of the Committee’s examination was that it recognised the merits of arguments put in support of televising, leading it to recommend that a further inquiry be undertaken to specifically examine 155 158 161 164

Ibid. paras. 4.3–4. 156 Ibid. para. 4.5. 157 Ibid. para. 4.20. Ibid. para. 4.37. 159 Ibid. para. 4.48. 160 Ibid. para. 4.42. Ibid. paras. 4.43–45. 162 Ibid. paras. 4.46–47. 163 Ibid. paras. 4.51–52. Media Release dated 17 October 1989. See Parliament of New South Wales Committee on the ICAC, Inquiry, above n. 67, at p. 1.

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the desirability of the televising of court proceedings in New South Wales. The Committee appeared to have been swayed by the Caplan Report’s favourable findings and recommendations;165 persuasive arguments and demonstrations of the state of available technology;166 and by what the Committee described as the ‘responsible manner in which the television networks have approached this inquiry’.167 So while the Committee decided that the ICAC was not a proper starting point for the introduction of the televising of judicial or quasi-judicial proceedings, it concluded that ‘the time has come for a thorough examination of means of improving media coverage of court proceedings in NSW’.168

E Specific experiences of Australian courts 1 Overview While all Australian jurisdictions have permitted television cameras to record and broadcast court proceedings, no Australian court has allowed more than restricted ad hoc coverage. The televising of judicial proceedings in the state courts of New South Wales, Australia’s most populous state, has remained largely confined to documentaries,169 ceremonial sittings and the openings of notable sittings, such as the first ever sitting of an all-female Court of Appeal bench,170 and the hearing in which the latest courtroom technology was introduced into the Court of Appeal,171 at which television cameras were permitted only to record the vision of the opening of proceedings.172 This remains the case, even though in 1999 the New South Wales 165

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Jonathan Caplan, Televising the Courts: Report of a Working Party of the Public Affairs Committee of the General Council of the Bar (1989). See above chapter 2 B. Parliament of NSW Committee on the ICAC, Inquiry, above n. 67. See in particular the 26 March 1990 submission by journalist Paul White. Ibid. p. 33. 168 Ibid. 169 Discussed below E.2. On 15 April 1999 the Court of Appeal consisted of Margaret Beasley JA, Virginia Bell and Caroline Simpson JJ. Beach Petroleum NL v. Abbott Tout Russell Kennedy and others [1999] NSWCA 408 (5 November 1999), www.austlii.edu.au/au/cases/nsw/NSWCA/1999/408.html at 10 April 2007. The media advice read: ‘Photos of the start of proceedings will be taken by the Daily Telegraph Mirror on a pooled basis . . . ABCTV News will provide vision only footage of the start of proceedings on a pooled basis.’ See Lawlink New South Wales, Media Release: Judges and Laptops (1999), www.lawlink.nsw.gov.au/practice-notes/nswscpc.nsf/6a64691105a54031ca256880000c25d7/7a0c41c055e586e7ca256885000b407b? OpenDocument at 10 April 2007.

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State Attorney-General Jeff Shaw was reported to state that NSW court proceedings could ‘soon be televised . . . under proposals being considered by the State Government’ and to have described the televising of trials as ‘inevitable’.173 Perhaps the most notable of the few instances in which recording of proceedings has been permitted for news reporting purposes took place on 6 February 1998, when State Coroner Derrick Hand permitted the media to make audio but not visual recordings of his findings in the Coronial Inquiry into the death of rock-singer Michael Hutchence. The recording was broadcast nationally in radio and television news bulletins. As in other Australian jurisdictions, a factor which contributes to the small number of broadcasts in New South Wales is the continuing lack of media interest.174 Though Queensland courts have been innovative in the employment of in-court technology,175 at least officially they remain closed to television cameras, and are the only major Australian court not to have appointed a Court Information Officer.176 A practice direction issued by Queensland’s Chief Justice Paul de Jersey on 9 March 2004,177 expressly prohibiting the use of recording devices in courtrooms except with the permission of the presiding judge or used for the purposes of the official transcription of court proceedings, appears to signal a relaxation of the previous policy of absolute prohibition. Although documentaries have been recorded in Queensland courts, court administrators maintain that the only time cameras are permitted into Queensland courts is for ceremonial sittings, such as the annual ‘Exchange of Christmas Greetings’ sitting.178 Western Australian courts remain the only Australian courts to have developed and implemented guidelines dealing specifically with 173

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Rachel Morris, ‘Evidence points to regular court TV’, Daily Telegraph (Sydney), 3 September 1999, p. 7; Christina Ho, ‘NSW courts idea of televised trials’, Sydney Morning Herald (Sydney), 3 September 1999, p. 4. The newly-appointed, current Public Information Officer advises that requests for camera access to proceedings are rare: telephone conversation with Sonya Zadel, Public Information Officer, 10 December 2004. See Queensland Courts, Technology Available in the Courts (2003), www.courts.qld. gov.au/about/technology.htm at 10 April 2007. G. L. Davies and S. N. Then, ‘Why the Public Needs a Court Information Officer’ (2004–5) 85 Reform 9. See Chief Justice Paul de Jersey, Practice Direction Number 4 of 2004, Supreme Court of Queensland, Recording Devices in Courtrooms: Supreme Court (2004) Queensland Courts, www.courts.qld.gov.au/practice/pracdir/sc2004_04.pdf at 10 April 2007. Telephone conversation with Cameron Woods, Deputy Courts Administrator of the Supreme Court of Queensland, 9 December 2004.

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electronic media coverage.179 During his seventeen years as Chief Justice of Western Australia, Justice David Malcolm did much to modernise and make transparent judicial proceedings in Western Australia.180 This included his establishment of a media committee, which developed specific Guidelines for Electronic Coverage of Judicial Proceedings,181 based on the findings of studies or as used in various American jurisdictions and in the New Zealand pilot project. The Guidelines have successfully facilitated the recording and broadcast of significant documentaries182 which through their use in legal education alone have done much to enhance the understanding of the judicial process. However, television cameras are known to have been permitted to record news footage in Western Australian courts on only four occasions. Unfortunately, these rare instances have also served to highlight the television media’s lack of interest in broadcasting proceedings and their unwillingness to adhere to agreed recording procedures. One such instance of authorised news filming related to the high profile criminal appeal by John Button, in which the Court of Criminal Appeal overturned his wrongful conviction for the manslaughter of his girlfriend in 1963, which led him to be imprisoned for five years.183 The Western Australian Court of Criminal Appeal permitted radio, television and press photographers to cover the calling on of the appeal in May 2001, and the handing down of the court’s decision, quashing his conviction, on 25 February 2002.184 In spite of enormous public interest, the television coverage of the John Button appeal was minimal, suggesting that a lack of interest by television networks may at least partly account for the lack of visual content in television court reports. Contrasting radio and television 179 180

181 182 183 184

See Annexure 2. For a press article profile of the Chief Justice, see Roy Gibson, ‘Doing justice to WA’, West Australian (Perth), 3 January 2004, Weekend Extra p. 7. Justice Malcolm retired in February 2006. Wayne Martin QC was appointed as the new Chief Justice of Western Australia in May 2006. Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 54. Discussed below E.2. See Button v. The Queen [2001] WASCA 7; Button v. The Queen [2002] WASCA 35. Button v. The Queen [2002] WASCA 35. For the 20 February 2002 media statement regarding media coverage of the 25 February 2002 judgment, see Supreme Court of Western Australia, Button v. The Queen, Court of Criminal Appeal (CCA/112) (2002), Media Statements, www.supremecourt.wa.gov.au/content/news/media/2002/media26.aspx at 10 April 2007. For press photographs of Button’s in court reaction to the quashing of his conviction see Western Australian, 26 February 2002, pp. 1 and 11.

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coverage of the 25 February Court of Criminal Appeal proceedings, Val Buchanan, the Western Australian Courts Information Office, observed: Two radio stations ran the entire 33-minute summary, so their listeners heard for themselves what was happening live in court. It made good listening and clearly from the talkback callers afterwards, it informed the public. They debated issues raised in the judgment summary – it was great to hear informed discussion. But television simply used a couple of grabs – I think they missed a unique opportunity to do something different. We’re keen to better inform the public about what’s happening in our courts, but I’m not convinced that a two-second shot of a judge or the applicant improves that understanding.185

A further example of the lack of television network interest in broadcasting footage of high profile proceedings to which camera access has been granted was provided in late 2002, when after being granted permission to record the Western Australian Court of Criminal Appeal’s findings in another high profile murder appeal,186 it appears that television networks did not record and broadcast any such footage. The case in which the media’s recording of proceedings breached imposed conditions concerned another high profile appeal, in which two brothers asked to have earlier armed robbery convictions overturned in light of evidence of police corruption and verballing. Television network Channel 7 sought and was granted permission to record the opening and decision in the Court of Criminal Appeal hearings. During the opening of the hearings the television cameraman is said to have exceeded restrictions on filming, of which he had been advised, by attempting to film documents on the Bar table, and a press photographer was ejected from the court after behaving like a ‘paparazzi photographer’ by insisting on lying on the courtroom floor to ‘get the best shots’ of the appellant brothers.187 As a result of these problems, camera coverage of the court’s decision188 was not permitted.

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Chris Smyth, ‘Televised trials reveal justice’, The Australian (Perth), 12–18 June 2003, p. 7. Mallard v. The Queen [2003] WASCA 296. The permission granted was relied on in unsuccessful arguments seeking the High Court’s permission to record the subsequent High Court special leave application. Telephone conversation with Val Buchanan, Court Public Information Officer, 10 December 2004. Mickelberg v. The Queen (2004) 29 WAR 13.

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Experiences such as this have made Western Australian courts increasingly open to considering undertaking their own recordings to avoid concerns regarding breaches of restrictions on filming and to be able to inform the public, without being reliant on media interest in recording and broadcasting courtroom footage. In March 2006, the author was invited to address a conference of Western Australian District Court judges on the desirability of webcasting court proceedings. In his May 2006, maiden speech, the newly appointed Chief Justice of Western Australia, Wayne Martin QC, outlined his vision for reform which included the promotion of public understanding through greater transparency and specifically alluded to the prospect of court proceedings being webcast.189 In late May, the author was commissioned by the courts of Western Australia to prepare a research paper on the international leading practice in the dissemination of audio-visual recordings of court proceedings by trial and appeal courts.190 In his 22 March 2007 Australia Press Council Public Address,191 Chief Justice Martin stated that he had ‘come to the conclusion that courts must be more proactive in the use of the technology which will enable audio visual images to be recorded without interference to the judicial process and in providing the public with the information and explanation needed to comprehend what occurs in our courts’.192 Observing that ‘[m]odern technology makes it possible for the court to become its own publisher of proceedings either on the internet, or potentially through public access television, or on other of the digital television channels which are shortly to become available’,193 Chief Justice Martin declared himself ‘keen to pursue these possibilities in the Supreme Court of Western Australia’194 and announced that he was ‘currently looking at ways in which the Court can evaluate for itself, in a practical way, the various options, with their advantages and disadvantages’.195 At least since Justice Doyle became Chief Justice of South Australia in 1995, South Australian courts have recognised not only that the ‘media are the eyes and ears of the public’,196 but that courts need to play a 189 190 191

192 196

See Amanda Banks, ‘Justice ready to drop his garb’, The Australian (Perth), 2 May 2006. Public Dissemination of Audio Visual Recordings of Court Proceedings (28 July 2006). The Hon. Wayne Martin, ‘Access to Justice: the Media, the Courts and the Public Record’, Australian Press Council Public Meeting, Perth, 22 March 2007. See www.supremecourt.wa.gov.au/publications/pdf/Australian_Press_Council_220307.pdf at 14 April 2007. Ibid. 22. 193 Ibid. 22–3. 194 Ibid. 23. 195 Ibid. 23–4. Telephone conversation with Terry Anderson, Senior Media Liaison Officer, Courts Administration Authority of South Australia, 14 December 2004.

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proactive role in facilitating the public’s ability to ‘observe and understand what [they] are doing’. The Chief Justice has stated that the: confidence of the public in the courts depends upon the public having access to the courts, in the sense of being able to observe and understand what the courts are doing . . . If the courts are going to leave it to others, the media in particular, to determine how much and what sort of information the public gets about their workings, then the courts are saying that they are content to leave it to others to shape the public understanding and perception of the courts. That to me is not acceptable. I believe that the courts are well placed to explain their function. I consider that experience shows that leaving that task to others is, in the long term, unsatisfactory.197

While South Australian courts remain at the forefront of promoting accessibility and public understanding of court proceedings, they do not primarily do so through regular televising of court proceedings. South Australian courts were amongst the first to produce a media handbook setting out information regarding court processes and access to policies of interest to journalists. The Courts Administration Authority has also produced a number of videos designed inter alia to assist members of the public to bring a legal action, or understand the role and processes associated with jury service.198 In 1998, it also set up an outstanding website on which it has most recently also posted sentencing remarks and judgments.199 While South Australian courts have embraced the use of in-court technology,200 the technology has not, to date, been utilised to facilitate the regular televising of proceedings.201 Nevertheless, South Australian courts have continued occasionally to admit television cameras, usually to record the presiding judge’s reading of decisions in high profile cases.202

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198 199 200

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The Hon. Chief Justice John Doyle, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 1 University of Technology Sydney Law Review 25, 28. See www.courts.sa.gov.au/ at 10 April 2007. See www.courts.sa.gov.au at 10 April 2007. The technological capacity of South Australia’s courts was showcased in Glenmont Investments Pty Ltd v. O’Loughlin (2000) 79 SASR 185 (‘the dinosaur case’). A media application to broadcast proceedings in the Glenmont trial, Glenmont Investments Pty Ltd v. O’Loughlin (1999) SASC, unreported, Millhouse J, 2 December 1999, was rejected. Such as Glenmont Investments Pty Ltd v. O’Loughlin (2000) 79 SASR 185; and Nemer v. Holoway and others (2003) 87 SASR 147.

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South Australian courts have, however, undertaken a noteworthy experiment with the radio broadcasting of proceedings. Susanna Lobez, co-presenter of the ABC’s Radio National programme Law Report,203 instigated the experimental radio broadcast of a South Australian District Court trial. Working with the District Court Registrar, presiding District Court Judge Neil Lowrie and South Australia’s Chief Justice John Doyle, she drafted guidelines to regulate radio documentary coverage of court proceedings.204 Eleven hours of audio tape of a District Court drug possession trial were recorded in late 1996. The recordings were edited down to two hours before being sent to the Chief Justice and all parties and participants for approval. It was broadcast in three, weekly Law Report programmes in February 1997.205 The programme was also repackaged into five segments and broadcast on National Youth Radio JJJ, and rebroadcast during the summer of 1997–98. The public response to the radio broadcasts was most supportive, with Radio National and the South Australian courts receiving favourable feedback, and public comments reported in the press206 and in talkback programmes being overwhelmingly positive. Underlining the educational value of the recordings, the courts and the ABC also received many orders for tapes of the programme from teachers of legal studies.207 Tasmanian courts currently permit television cameras to record ceremonial occasions, and file footage of all Supreme Court Justices is also regularly recorded, updated and made available to the media. Since the December 2004 appointment of judicial software innovator Justice Peter 203

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See ABC Radio National, The Law Report (2005), www.abc.net.au/rn/talks/8.30/ lawrpt/default.htm at 10 April 2007. Susanna Lobez, Guidelines for the Occasional Audio Recording of Cases for Radio Documentary Purposes (25 November 1996). See Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 43. 4, 11 and 18 February 1997. See ABC Radio National, The Law Report, Court Radio Part One: The Prosecution Case (1997), www.abc.net.au/rn/talks/8.30/lawrpt/lstories/ lr970204.htm at 10 April 2007; ABC Radio National, The Law Report, Court Radio Part Two: The Defence Case (1997), www.abc.net.au/rn/talks/8.30/lawrpt/lstories/ lr970211.htm at 10 April 2007; ABC Radio National, The Law Report, Court Radio: The Verdict, and Legal Aid (1997), www.abc.net.au/rn/talks/8.30/lawrpt/lstories/ lr970218.htm at 10 April 2007. See Katherine Towers, ‘Trial radio replay bid to demystify the law’, The Australian (Brisbane), 5 February 1997, p. 2. For further details on this broadcast, see Sylvia Kriven, ‘Court on Radio: a First for South Australia’ (1997) Law Society Journal of South Australia Bulletin 10.

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Underwood as Chief Justice of Tasmania, the courts of Australia’s smallest state have installed state of the art digital recording equipment and are considering streaming the recordings online.208 The Federal Court of Australia and the state courts of Victoria are the two Australian jurisdictions which have led Australian courts in introducing innovations relating to the promotion of public and media access to and understanding of court proceedings. Not surprisingly, they are also the courts which have gained the greatest experience of courtroom televising. Before outlining the significant experiences of the Federal Court and the state courts of Victoria, and considering the impact of judicial attitudes and other factors accounting for the High Court and Family Court’s contrasting attitudes towards televising, it is proposed to briefly outline Australian courts’ common experiences with the recording of proceedings for broadcast in television documentaries.

2 Recording and broadcast of documentaries Though only on a handful of occasions has a small number of Australian courts permitted television cameras to record segments of proceedings for news broadcasts, since the early 1990s almost all Australian jurisdictions have permitted television cameras to record footage of proceedings for later broadcast in documentaries. Significantly, without exception, the broadcast documentaries have received judicial and public acclaim. Typical examples are provided by two documentaries recorded in New South Wales courts in 1993 which received wide public acclaim for the manner in which they utilised the television medium to raise public awareness and understanding in a manner not able to be matched by other media. The first, recorded in one of Sydney’s outer suburban Local Courts over a period of six weeks,209 was broadcast by ABC Television as an hour-long programme titled So Help Me God. The second, containing footage of proceedings in the Children’s Care Court in a country town, was broadcast by ABC Television as a programme on child abuse titled Kids at Risk. The So Help Me God 208

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Telephone conversation with Ian Ritchard, Registrar, Supreme Court of Tasmania, 10 December 2004. As well as being permitted to record proceedings in the courtroom, television cameras also recorded footage in Magistrates’ chambers, solicitors’ interview rooms, the cells and the precincts of the court.

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programme was designed to trigger debate and promote understanding of issues. Through opportunity of first-hand observation, the producers sought to enable viewers to access the adequacy and appropriateness of the law’s handling of pressing social problems such as alcohol, drugrelated crime, mental illness and domestic violence.210 The benefits of the ‘first-hand observation’ were recognised by a journalist, who observed that seeing the documentary was ‘probably the closest many people will get to seeing what actually happens inside a court. And it is nothing like ‘‘LA Law’’ or ‘‘Rumpole’’ ’.211 Similarly, the Kids at Risk documentary sought to present the friction between the Department of Community Services and others seeking to take care of children at risk. According to the producer, the programme also sought to educate the public about the legal and social issues of child care, to reveal the powerlessness of persons involved, and highlight the cyclical nature of events and proceedings.212 The documentary also served to allay concerns frequently expressed regarding distortion through editing. It is worth noting that while Mrs Holborow, the magistrate presiding in the Children’s Care Court recorded in the documentary, was said to have been initially concerned about issues of fairness in editing, she was reported to have indicated that she was pleased with the broadcast programme.213 The High Court of Australia has also permitted television cameras to record two documentaries. The first, broadcast nationally on SBS Television’s 13 March 1997 Insight programme, included an interview with Chief Justice Brennan, commentary recorded inside one of the Canberra courtrooms and footage of Justices in chambers and of a High Court hearing recorded earlier by the Australian Bar Association.214 On 26 May 1998 the ABC Television programme Inside Story broadcast the second documentary, an hour-long story on the High Court, titled The Highest Court. The programme was recorded over a period of approximately eighteen months and contained footage from some of the 210

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Telephone conversation with Tony Moore, Associate Producer So Help Me God, 19 October 1993. Margo Date, ‘Through the Eyes of the Law’, Sydney Morning Herald (Sydney), 27 September 1993. Which may explain why the original title of the programme was Damned if You Do and Damned if You Don’t: telephone conversation with Ashley Smith, Producer of Kids at Risk, 1 November 1993. Ibid. The ABA footage is shown to visitors to the High Court building in Canberra.

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most significant High Court cases of the 1990s,215 and of a special leave application.216 The documentary also provided an unprecedented insight into the work of High Court Justices through its interview and portrayal of a day in the working life of Chief Justice Brennan and footage of a panel discussion recorded on 26 September 1997, in which Chief Justice Brennan and Justices Toohey, Gaudron, Gummow and Hayne discussed the role of the Court and their work as Justices.217 Permission to record this programme and the Court’s participation were made contingent on the Court being given full editorial control. As has been the practice in Australian courts, the consent of all persons making substantive appearances in the documentary was required to be sought and acknowledged in the end credits and members of the public entering the court were advised of the presence of television cameras. Somewhat surprisingly in view of the nature of its proceedings and statutory restrictions on media reporting,218 the Family Court of Australia has also permitted television cameras into Family Court hearings for the purpose of recording documentaries. The court’s decision to permit the recording of court proceedings for the first programme in a 2002 documentary series Reality Bites: DIY Law219 is said to have been motivated by the court’s desire to allow the public to see the process.220 The programme highlighted issues flowing from the increasing numbers of unrepresented parties appearing before the Family Court in adversarial proceedings, while the documentary’s producers demonstrated that the public could be provided with a valuable rare glimpse of Family

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The 23 December 1996 decision in Wik Peoples v. Queensland (1996) 187 CLR 1; the 31 July 1997 decisions in Kruger v. Commonwealth (1997) 190 CLR 1 (‘the stolen generation case’); the 5 August 1997 decision in Ha v. New South Wales (1997) 189 CLR 465 (‘the states excise case’); the 5 February 1998 legal argument in Kartinyeri v. Commonwealth (1998) 156 ALR 300 (‘the race power case’). Chouseas v. Edis [1997] 7 Leg. Rep. SL2b, heard in Sydney on 10 April 1997. George Williams has described the documentary as ‘an excellent example of the Brennan Court opening up its processes and decision making to the public’: George Williams, ‘The High Court and the Media’ (1999) 1 University of Technology Sydney Law Review 136, 143. Discussed below E.5. The four-part documentary was broadcast by ABC Television in February and March 2002, utilising footage of the Family Court, Migration Review Tribunal, Residential Tribunal, and Local Court proceedings to highlight the plight of unrepresented parties. Telephone conversation with Tania Cutting, Media Manager, Family Court of Australia, 10 December 2004.

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Court proceedings without identifying any parties.221 The Family Court went on to permit the recording of three, one-hour documentaries titled Divorce Stories broadcast by SBS in September 2005. The recordings required all participants to give revocable consent.222 A significant number of notable documentaries have also been recorded in Western Australian courts, utilising that jurisdiction’s guidelines for audio-visual coverage.223 In most instances requiring written consent to be obtained from all participants, Western Australian courts have on occasion facilitated recordings by adjusting the location and timing of affected hearings, thus minimising the potential disturbance of other proceedings.224 A particularly informative documentary recorded in the courts of Western Australia is the hour-long documentary Here Comes the Judge ‘filmed during a 2,000 km, five-day journey across the Kimberley region, following rookie Aboriginal lawyer Dave Saylor and Magistrate [Colin] Roberts’.225 The programme broadcast nationally in 1999 provides a rare look at the administration of justice in Australia’s isolated northwest region, highlighting the cultural clash between Australian law and Aborigines in rural Australia. The ABC Television broadcast of an hour-long documentary titled The Accused on 1 August 2002 represented a significant innovation, being the first occasion on which footage of an Australian jury trial had been broadcast on Australian television. The recording and broadcast of the documentary has been made more instructive by the additional insight of the written reflections of the featured Crown Prosecutor and defence counsel.226

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224 225 226

A former court reporter has noted that the programme presents ‘courts as they really happen’ and captured what she remembered to be the build up of drama and excitement: Janet Fife-Yeomans, ‘Courting disaster’, The Australian (Perth), 21 February 2002, Media p. 24. See Family Court of Australia, ‘Lights, Camera, Action at Parramatta’ (2004) 4(6) Courtside: Newsletter of the Family Court of Australia 1, www.familycourt.gov.au/ presence/resources/file/eb000c0d9dc456d/Courtside_Dec_04.pdf at 10 April 2007. These include Channel 7’s Scales of Justice, Channel 9’s Bush Magistrate and an A Current Affair story on Chief Magistrate Con Zempilas in 1998; the SBS documentary Here Comes the Judge in 1999 and the ABC’s The Accused broadcast on 1 August 2002 as part of ABC’s True Stories series. See Stepniak, Electronic Media Coverage of Courts, above n. 2, at para. 7.56. Bruce Butler, ‘Tribal punishment call’, Sunday Times (Perth), 21 March 1999. Hilton Dembo and Laurie Levy, ‘The Accused: A Documentary of a Jury Trial’ (2003) 30 Brief 17.

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Both sides found the recording not to adversely affect their work. The Crown Prosecutor reported that he ‘did not find the filming intrusive at all’, despite needing to be wired up for each session.227 Unlike the prosecution,228 the defence team agreed to be miked up all day and every day. But, even though they were recorded in and out of court, the defence team reported that while ‘[a]t first the unnatural intrusion of a film crew, cameras and microphones capturing your every thought and action was incredibly invasive. However after a day or so it was almost as if they were not there.’229 As to fears regarding the disruptive effects of televising, defence counsel noted that: ‘In court the cameras were behind a screen. Of course members of the jury were not filmed. Indeed had the jury not been informed of the film crew’s presence, I doubt that they would have even realised what was going on.’230 Both the Crown Prosecutor and defence counsel emphasised what they saw as the educative value of the broadcast. The Prosecutor noted: The purpose of the documentary was to show people what goes on in and around court and provoke discussion. It did that and has evoked a huge amount of interest, discussion and questions with regard to court procedures and drug trials, particularly the burden and standard of proof . . . I for one would advocate that filming of trials be done more frequently. I would do it again. We should have nothing to hide with our court system, which to my mind is of the highest order. The public should see the real thing with no director’s licence to over-dramatise.231

3 Federal Court of Australia (a) Introduction Since the mid-1990s the Federal Court of Australia has led Australian courts in the introduction of initiatives designed to facilitate and enhance public access to and understanding of court proceedings and decisions. In particular, the Court has revealed itself willing to incrementally admit television cameras to record and broadcast proceedings and to assist the television medium to enhance and expand its court 227 228

229

Ibid. 18. It was also a condition of the DPP’s consent that ‘no DPP Officer would give an interview to discuss the case with the producers before the verdict. It is the Crown’s obligation to present evidence in a fair and impartial manner’: ibid. Dembo and Levy, ‘The Accused’, above n. 226, at 19. 230 Ibid. 231 Ibid. 18.

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reporting. Most significantly, the Court has not merely opened its doors to television cameras but significantly has also adopted a proactive stance towards the broadcasting of court proceedings, making the dissemination of public information about judicial proceedings a cooperative venture. The Court’s various initiatives, and especially its experimentation with televising, would have been unlikely without the active support of its Chief Justice Michael Black, who has not only permitted these initiatives but in many ways has been the driving force behind them. When in a July 1993 speech232 Chief Justice Black suggested that the time had come to examine whether television should be allowed into the courtroom and, if so, on what terms, he became one of the first Australian judges to publicly voice support for courtroom televising. The benefits that he saw accruing from televising were that by better informing the public about the justice system, and challenging and replacing prevailing negative images of judges with more realistic and accurate ones, broadcasts of proceedings would instil confidence in the legal system.233 In subsequent years it became clear that the motivation for Chief Justice Black’s advocacy of greater media access to the courts was a desire to promote a better understanding of the judicial system, aided by a perception that ‘the unprecedented level of critical interest in the courts in this country should . . . be seen as providing an excellent opportunity to promote a much better understanding of the system’.234 The Chief Justice was later to offer the following explanation of the Court’s role in facilitating greater public access and understanding: As a court, we have I think a commitment to wider access to the media, to explain what we do. I think it tremendously important that the public understand the work of the courts, and that the courts do what they properly can to facilitate that understanding. And that means, where appropriate, assisting journalists in the work that they do, by providing summaries of judgments, better access to the courts and so forth.235

232 233

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Address to the National Family Court Conference, Sydney, July 1993. Alex Messina, ‘Federal court to consider TV move’, The Age (Melbourne), 15 July 1994, p. 7. The Hon. Justice Michael Black, ‘Letting the Public Know: the Educative Role of the Courts’ (1994) 1 Canberra Law Review 165, 167. ABC Radio National, ‘How Courts Interact with the Media’, above n. 114, www.abc. net.au/rn/talks/8.30/lawrpt/lstories/lr981110.htm at 10 April 2007.

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(b) Access to Justice Report The spark for the Federal Court’s experimentation with televising appeared to come from the 1994 recommendations of the Access to Justice Advisory Committee which the Federal Attorney-General had asked ‘to make recommendation for reform of the administration of the Commonwealth justice and legal system, in order to enhance access to justice and render the system fairer, more efficient and more effective’.236 In Chapter 20 of its Report,237 the Committee dealt with issues pertaining to ‘Courts and the Electronic Media’, outlined existing Australian legal restrictions on and regulation of media reporting, briefly considered the situation in major common law countries, and evaluated arguments for and against the broadcasting of proceedings. The Committee concluded that ‘broadcasting of court proceedings should be permitted, but on a strictly contrrolled basis’.238 Recognising concerns about the effect of broadcasting the Committee suggested that ‘an appropriate balance between the public interest in open justice and individuals’ interests in privacy can be struck by the formulation of guidelines for an experimental program’, which would ‘provide an opportunity to assess whether distortions in reporting occur that warrant the imposition of more stringent conditions or even the abandonment of the experiment’.239 The Committee specifically recommended that ‘[t]he Federal Court of Australia should consider the establishment of an experiment program to allow the broadcasting of proceedings’.240 The Federal Court was chosen partly because of its lack of original criminal jurisdiction, which would ensure that any experimental programme would not need to deal with what were perceived as problematic jury issues, and because ‘in light of the Court’s innovations in other areas of the administration of justice’, the Committee expected that ‘the Court would consider it appropriate to take the lead in this matter’.241 236

237 238 240

See Access to Justice Advisory Committee, Access to Justice, above n. 2, at p. xxiii. For further discussion of this Committee’s work, and comparisons with similar studies in other jurisdictions, see generally Justice Ronald Sackville, ‘From Access to Justice to Managing Justice: the Transformation of the Judicial Role’ (2002) 12 Journal of Judicial Administration 5. Access to Justice Advisory Committee, Access to Justice, above n. 2. Ibid. para. 20.32. 239 Ibid. Ibid. paras. 20.1, 20.33. 241 Ibid. paras. 20.32–3.

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Within two days of the Report’s release, Chief Justice Black welcomed the Committee’s recommendations for the Federal Court, stating: ‘I believe a strong case does exist for the Federal Court to consider the establishment of an experimental programme to allow the broadcasting of proceedings as recommended by the Committee.’242

(c) The Electronic Media Coverage of Courts Report In December 1995 the Federal Court commissioned a report on recent Australian and overseas developments in the televising of court proceedings, which would also make recommendations as to possible future televising of Federal Court proceedings.243 Prior to its release on 22 December 1998, the Report’s key recommendations were endorsed by the steering committee appointed by the Chief Justice to monitor the project.244 The committee also agreed that the Chief Justice should inform the Court’s judges of the proposed undertaking of an evaluation project and development of guidelines to govern future recording and broadcasts of court proceedings. At their September 1998 meeting, the Court’s judges endorsed the Chief Justice’s proposal regarding the undertaking of an evaluation project and the development of guidelines to govern future recording and broadcasts of court proceedings. The Report245 reviewed Australian and overseas developments in the televising of court proceedings and concluded that: ‘Findings of studies and the experiences of other jurisdictions regarding the effect of electronic media coverage of court proceedings suggest that a blanket prohibition of such coverage is not justified.’246 On the basis of its global overview and a review of the Federal Court’s own experiences, the report made a number of specific recommendations,247 perhaps the most significant being that: On the basis of the Federal Court’s own favourable experiences with electronic media coverage and of generally encouraging recent developments in other jurisdictions . . . the Court should undertake an evaluation project – continuing to permit electronic media access to proceedings for

242 243 244 247

Black ‘Letting the Public Know’, above n. 234, at 13. See Stepniak, Electronic Media Coverage of Courts, above n. 2, Terms of Reference, p. x. Ibid. p. xi. 245 Ibid. 246 Ibid. para. 8.94. The report made fifty recommendations: see Stepniak, Electronic Media Coverage of Courts, above n. 2, at pp. xl–xlv.

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a specified period subject to guidelines imposed by the Court and subjecting such access to systematic analysis.248

Though the terms of reference confined the Report to issues relating to the televising of court proceedings, the Report also considered related issues of radio broadcasting and press photography and the implication of Internet technology, at the time emerging as a source of public information and beginning to be utilised by the courts to enhance and expedite judicial processes.249

(d) Court’s incremental admission of television cameras While the special sitting commemorating the swearing in of Justice French in November 1986 is believed to be the first occasion on which television cameras were permitted to record a sitting of the Federal Court,250 the Court’s systematic admission of television cameras only began in 1994, following the appointment of Bruce Phillips, the Court’s Director of Public Information, who has been instrumental in arranging and overseeing the incremental but ad hoc admission of television cameras – an approach which the Court appears likely to pursue for the foreseeable future.251 One of the first initiatives of the Director of Public Information was the recording of file footage of judges on the bench and in actual court proceedings, to replace footage recorded at ceremonial occasions or prior to the Court’s decision to do away with the wearing of judicial wigs. The recording of file footage of judges soon progressed to the recording of overlay (mute footage) and sometimes even sound and vision of the beginnings and conclusions of hearings.252 A notable example was the Fasold v. Roberts case in June 1997,253 in which, in response to the great public interest which its portrayal as a battle between science and creationism had created, Justice Sackville permitted sound and vision of the beginning and conclusion of the hearing to be broadcast.254 Access 248 250

251 252 253

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Ibid. Recommendation 1, p. xl. 249 Ibid. paras. 10.1–10.13. The Hon. Justice Robert French, ‘Television and Radio Broadcasting in the Federal Court of Australia: a Personal Perspective’, paper presented via video link to Broadcasting Courts Seminar, London, 10 January 2005, www.dca.gov.uk/consult/ courts/speeches/french.htm at 10 April 2007. Ibid. 7. See Stepniak, Electronic Media Coverage of Courts, above. n. 2, at para. 7.3. David Fasold and another v. Allen Roberts and another (1997) 70 FCR 489, www.austlii. edu.au/au/cases/cth/federal_ct/1997/439.html at 10 April 2007. See Doug Conway, ‘In the beginning . . .’, Gold Coast Bulletin, 8 April 1997, p. 9.

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to such overlay footage was welcomed by television networks as it provided relevant vision to accompany their news reports. In February 1997 Justice Sackville also permitted the radio and television broadcast of his reading of a judgment summary in the Friends of Hinchinbrook Society v. Minister for the Environment, Port Hinchinbrook case.255 This constituted the first time that the sound and vision of an Australian superior court judgment had been permitted to be recorded for broadcast. The Court’s high profile hearings of the April 1998 dispute between the Maritime Union of Australia and the Patrick Corporation which was supported by the federal government, led to the broadcast of Justice North’s first instance judgment,256 and to an unprecedented live broadcast of the Full Court judgment in the subsequent appeal.257 Despite its midevening timing, the Court’s willingness to permit a live broadcast of the judgment was utilised by almost all networks as, apart from Channel 10, all Australian networks interrupted their scheduled programmes to broadcast the judgment live.258 In view of the tense atmosphere surrounding this appeal, the Court was anxious to deliver judgment that evening and did not have time to prepare a judgment summary. Consequently, Justice Wilcox, the Presiding Judge, took thirty minutes to read the Court’s judgment,259 of which networks broadcast between eight and twenty minutes.260 In a further development on 11 August 2000, Justice Maurice O’Laughlin delivered his judgment in the ‘stolen generation’ case,261 255

256

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Friends of Hinchinbrook Society Inc. v. Minister for Environment (No. 2) (1997) 69 FCR 28, www.austlii.edu.au/au/cases/cth/federal_ct/1997/55.html at 10 April 2007. Maritime Union of Australia v. Patrick Stevedores No. 1 Pty Ltd (1998) 77 FCR 456, www.austlii.edu.au/au/cases/cth/federal_ct/1998/378.html at 10 April 2007. The Full Court permitted footage of the appeal’s pre-submission opening to be televised and photographed. A photograph of that sitting was published in The Australian on 23 April 1998 and appears on the cover of Stepniak, Electronic Media Coverage of Courts, above n. 2. That the judgment was also broadcast overseas was verified by Chief Justice Black who reported viewing the footage on Spanish television. Patrick Stevedores Operations No. 2 Pty Ltd v. Maritime Union of Australia (1998) 77 FCR 478, www.austlii.edu.au/au/cases/cth/federal_ct/1998/397.html at 10 April 2007. The Court’s Director of Public Information has noted that it was only at the tenminute mark when Justice Wilcox read that Justice North’s reasons were ‘free from appealable error’ that it became clear that the appeal had failed. See Bruce Phillips, ‘Television in the Federal Court of Australia 1994–2004’, paper prepared in response to November 2004 Broadcasting Courts: A Consultation by the Department for Constitutional Affairs, 24 December 2004. Cubillo v. Commonwealth (2000) 103 FCR 1.

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an action seeking compensation for the implementation of an alleged government policy of removing part-Aboriginal children from their Aboriginal parents. The recording and broadcast of the reading of the judgment summary in this case constituted the first time that an Australian judgment had been broadcast live and simultaneously on radio, television and the Internet.262 Building on the experience of the Patrick Corporation case broadcasts, the 700-page judgment was reduced to a judgment summary which was read in approximately eight minutes. However, the Court was criticised by some for permitting a second television camera to record reaction shots of the public gallery, including the two applicants. Though no reverse shots were broadcast showing the applicants after it became clear that they had lost their case, suggestions that the applicants had been humiliated and embarrassed led the Court to effectively ban the use of reverses and cutaways in subsequent recordings. By the end of 2004, the Court’s Director of Public Information estimated that the Court had permitted the recording of overlay footage and of the reading of judgments on more than eighty occasions.263 While the Court had also begun to permit the recording of visiononly overlay footage during proceedings, it was the hearing of the Yorta Yorta Native Title Claim,264 the first native title claim to be heard by the Federal Court, which led Justice Olney to significantly advance the televising of Australian court proceedings by permitting the entire proceedings to be recorded. Justice Olney became the first Australian Superior Court judge to allow sound and vision recording of an entire case when he acceded to an application lodged on behalf of the Yorta Yorta people by an independent film-maker/media consultant.265 Justice Olney permitted the

262

263 264

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Australian Legal Information Institute, Cubillo v. Commonwealth (2000) 103 FCR 1, www.austlii.edu.au/au/cases/cth/federal_ct/2000/1084.html at 10 April 2007. This judgment was also broadcast overseas. Phillips, ‘Television in the Federal Court of Australia 1994–2004’, above n. 260. Members of the Yorta Yorta Aboriginal Community v. State of Victoria (1996) 1 AILR 402, www.austlii.edu.au/au/cases/cth/federal_ct/1997/1181.html at 10 April 2007. Lew Griffith, who was also to record Federal Court proceedings in the Hopevale native title claim (see Stepniak, Electronic Media Coverage of Courts, above n. 2, at para. 7.10) and who had directed and produced a 1996 prize winning documentary, titled Dhuway: An Australian Diaspora and Homecoming which tells the story of the dispersal and homecoming of the Yiidhuwarra people, the traditional owners of Cape Melville and

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case to be recorded on condition that the recording not interrupt the hearing; sound recordings of the evidence not be broadcast without the Court’s permission before the end of the case; mute footage be provided on a pool basis to television stations; and that only consenting witnesses be filmed.266 The entire testimony of witnesses called by the applicants during the nine months of hearings was recorded. However, as respondents’ counsel objected and advised that their witnesses did not consent to being recorded, with a few exceptions,267 no evidence presented by the respondents’ witnesses was recorded. In spite of this, almost 450 hours of video tape were recorded. While most of the footage has yet to be broadcast, some of the footage of counsels’ final submission to the Court in Melbourne in April 1998 and the judge’s very brief handing down of his decision on 18 December 1998268 were broadcast by television networks. In the subsequent appeal against Justice Olney’s finding denying the native title claim, the Full Court permitted the broadcast of their judgment summary, which succinctly explained the reasons why two of the three judges agreed with the trial judge and why the Chief Justice held that the trial judge had erred.269 As former President of the National Native Title Tribunal, Federal Court Justice Robert French, has observed, televising of proceedings has been ‘particularly beneficial’ in its coverage of native title cases.270 In Justice French’s experience: broadcasts of . . . [native title hearings but especially consent determinations] demonstrate the importance and genuineness of the demands by indigenous people for recognition of their cultural and spiritual relationship to their country. They also demonstrate in a symbolic way, the

266

267 268

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Flinders Island, and incorporated footage of the September 1993 hearing of the first native title land claim brought before the Queensland Land Tribunal. See Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 46, for conditions set down on 24 October 1996. Witnesses called by Corrs Solicitors in proceedings at the Shepparton Court House. Members of the Yorta Yorta Aboriginal Community v. State of Victoria (1999) 4(1) AILR 91 and reference to a newspaper report of this decision. Members of the Yorta Yorta Aboriginal Community v. State of Victoria (2001) 110 FCR 244, www.fedcourt.gov.au/judgments/video_jdg.html available at 10 April 2007. For an insightful and entertaining account of his interactions with the media, see the Hon. Justice Robert French, ‘A Moment of Change: Personal Reflections on the National Native Title Tribunal 1994–98’ (2003) 27(2) Melbourne University Law Review 488, 507–8.

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universality of the rule of law and the flexibility of which a modern court system can be capable in its application.271

It has also been said that televising provides the Court with a means of taking cultural factors into account, as required by the Commonwealth Native Title Act 1993.272 By permitting the recording of evidence and thus assisting in the preservation of largely undocumented, orally passed down histories, televising may be said to recognise the importance of indigenous peoples’ connection with their history. According to the documentary maker who recorded the Yorta Yorta hearings ‘[s]torytelling, using electronic media, is a natural progression of the handing on of important knowledge’.273 A Yorta Yorta spokesperson described the audio-visual recording as the recording and chronicling of the Yorta Yorta people’s history for the benefit of future generations.274 This appeared to be recognised some fifteen years earlier by Justice John Toohey who in December 1981, while Aboriginal Land Commissioner, had permitted a part of the proceedings in the KaytejWarlpiri Warlmanpa Land Claim to be recorded and used in the film The Shifting Dream which was broadcast on Australian commercial television in 1982. The filming was permitted on the grounds that ‘it would be of educational value to members of the public to have a greater understanding of Aboriginal land rights and land claims’. Filming was permitted on condition that no witnesses who objected were filmed and that no evidence deemed confidential to Aboriginal society be filmed.275 Perhaps the most controversial broadcasting of Federal Court proceedings was the unfettered access granted to television and press photography by Justice North in the 2001 Tampa case.276 This highly 271

272 273

274 275

276

French, ‘Television and Radio Broadcasting in the Federal Court of Australia’, above n. 250, at 6. For an illustration of a record of a native title determination, contrasting the formality of judicial robes and traditional Aboriginal costumes, see photograph of Justice Tony North at the determination of a native title claim by the MiriuwungGajerrong people in French, ‘A Moment of Change’, above n. 270. As Justice Olney observed on the first day of the Yorta Yorta native title hearings. Peter Gregory, ‘Court allows Yorta Yorta to record land claim for posterity’, The Age (Melbourne), 28 October 1996, p. A4. Ibid. Citing personal communication with J. L. Toohey J; see also, NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at paras. 4.30–1. Victorian Council for Civil Liberties Inc v. Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, www.austlii.edu.au/au/cases/cth/federal_ct/2001/ 1297.html at 10 April 2007; see Federal Court of Australia, Video Archives of

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politicised case, on which public opinion appears to be sharply divided, concerned the legality of the detention of asylum seekers on a Norwegian ship off the coast of Australia. An ABC Television camera was authorised to provide pool footage of both sound and vision for the duration of the proceedings. Justice North’s subsequent decision in favour of the applicants and consequent order that the federal government release the detainees onto the Australian mainland, appeared to provoke concerted criticism of not only his decision but also of his ruling authorising an unprecedented level of audio-visual coverage.277 In a radio interview,278 Deputy Prime Minister Tim Fisher observed that he was ‘not happy with the admission of TV cameras into the court room proceedings’. Describing the admission of cameras as ‘a slippery pathway to Hollywood’, he noted: ‘This is televised proceedings by stealth, by creep, and that may well be the way of Hollywood, California, USA, it’s not the Australian way.’ He expressed concern at the propects that televising would ‘add to delays’ and ‘change the court room culture . . . and make life for judges even more difficult’. Although the criticism did not deter the Full Court from permitting the recording of overlay footage at the beginning of the appeal hearings and the broadcast of the Chief Justice reading a summary of the Court’s split decision,279 it would appear that since the Tampa case, some judges have become rather more reluctant to permit televising. In addition to the televising experiences outlined above, the Court has achieved a number of other firsts in audio-visual coverage of proceedings, including the first live broadcast of a judgment summary on cable television in the March 1999 ‘poisoned oysters’ case,280 and the first live

277

278

279

280

Judgment Summaries (1996–2004), www.fedcourt.gov.au/judgments/video_jdg.html at 10 April 2007. See e.g., ‘Voteline results’, Herald Sun (Melbourne), 19 September 2001, p. 19 (reporting an opinion poll which showed that 92.8 per cent of people agreed with the overturning of Justice North’s decision);‘In Australia’s best interest’, Daily Telegraph (Sydney), 18 September 2001, p. 20; Michael Madigan, ‘Boat people find new way to Australia’, Courier Mail (Brisbane), 17 September 2001, p. 3; Peter Gregory and Darrin Farrant, ‘Tampa expulsion was legal: Judges’, The Age (Melbourne), 18 September 2001, p. 11. ABC Radio National, ‘Nationals divided over one nation preferences’, The World Today, 4 September 2001. Ruddock v. Vadarlis [2001] FCA 1329. For the judgment summary see Federal Court of Australia, http://judgments.fedcourt.gov.au/2001/J011329.doc.htm at 10 April 2007. Ryan v. Great Lakes Council (1999) ASAL (digest) 55-023, www.austlii.edu.au/au/ cases/cth/federal_ct/1999/177.html at 10 April 2007.

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streaming of an Australian court decision, permitted by Justice Lindgrens in the August 1999 case, Australian Olympic Committee Inc. v. Big Fights Inc.281 The Court’s successful streaming experiment282 was a significant development, which not only led the Court to set up a ‘Video Archives of Judgment Summaries’ on its website,283 but which also demonstrated that courts were not totally reliant on media networks for audio-visual reporting of proceedings.284 The Federal Court has ensured almost problem-free recording of its proceedings by having television camera coverage closely coordinated and supervised by the Court’s Director of Public Information. Over time good working relationships have been established and the Court has been able to entrust television crews with prior experience and whom it can trust to record pool footage for other networks. While the Federal Court has not imposed any rigid conditions on all recordings, most recordings are permitted on condition that the proceedings are not disturbed, that no artificial lighting is used, that cameras remain in fixed positions once proceedings have commenced, and that the Court retains the right to veto the use of any part or of all footage recorded. As noted above, following the Port Hinchinbrook case, reaction or cutaway shots are now generally prohibited.

(e) Judgment summaries Apart from its appointment of the Director of Public Information and its facilitation of the broadcast of proceedings, the Federal Court has undertaken a number of other initiatives designed to promote a better public understanding of its work, both through an enhancement of media reporting and through the facilitation of public access to the Court’s decisions. Perhaps the most significant innovation which the Federal Court has pioneered has been the publication of judgment summaries accompanying the delivery of the Court’s judgments. 281

282

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284

(1999) 46 IPR 53, www.austlii.edu.au/au/cases/cth/federal_ct/1999/1042.html at 10 April 2007. Evaluated in Cameron Hamish, ‘The Televising of Court Proceedings in Australia’, unpublished paper, submitted in partial fulfilment of the requirements for the Research Project at the Law School of the University of Technology, Sydney, 1999. See Federal Court of Australia, Video Archives of Judgment Summaries, www.fedcourt. gov.au/judgments/video_jdg.html at 10 April 2007. See also Daniel Stepniak and Paul Mason, ‘Court in the Web’ (2000) 25 Alternative Law Journal 71.

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The judgment summaries are expressly not intended as substitutes for actual judgments, but rather are designed to make the court’s reasons more readily understood by members of the public and the media, and, most specifically, are intended to assist reporters to report accurately and to quickly grasp the significance of often legally complex and lengthy judgments. This innovation has been welcomed by both electronic and press media reporters, with the electronic media in particular choosing to rely extensively on the judgment summaries. Referring to the first summary of judgment released by the Federal Court, which he issued in 1995, Chief Justice Black has noted that: In most cases of judicial review the essential point, and with it an understanding of the different roles of the court and the executive Government, can be conveyed very simply. Our experience with the Hinchinbrook case285 shows that the essence of judicial review can be conveyed in a short television bite.286

(f) Conclusion A feature of the Federal Court’s experiences with the televising of proceedings has been that its innovations have been introduced with little fanfare, and consequently have largely avoided criticism. That this has been the case may in large measure be attributed to the Court’s lack of first instance criminal law jurisdiction, its incremental introduction of televising, that its regulation of such coverage has not been overly restrictive and imposed on the media but rather determined as required in conjunction with the media – thus ensuring greater likelihood of compliance – and that the recording of proceedings has been arranged and closely supervised by the Court’s Director of Public Information. The Federal Court’s facilitation of televising has also exposed many judges to the experience. By the end of 2004 the Court’s Director of Public Information assessed that about 75 per cent of current Federal Court judges have admitted television cameras into their courtrooms.287 Though it is true that broadcasts of the Federal Court remain largely confined to the recording of overlay footage and of judges reading 285

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Friends of Hinchinbrook Society v. Minister for Environment (1997) 77 FCR 153, www.austlii.edu.au/au/cases/cth/federal_ct/1998/432.html at 10 April 2007. The Hon. Justice Michael Black, ‘‘‘Opening Address’’ at Courts and Media Forum, Sydney 1998’ (1999) (1) University of Technology Sydney Law Review 7, 11, www.austlii. edu.au/au/journals/UTSLR/1999/3.html at 10 April 2007. Phillips, ‘Television in the Federal Court of Australia 1994–2004’, above n. 260, at 1.

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summaries of judgments, the Court has played a significant role in making vision of Australian proceedings a routine feature of television news reports. As briefly outlined above, the Court’s extensive experiences with televising over a period of more than ten years also provide valuable lessons and illustrations of a variety of related issues.

4 Victoria (a) Introduction Victorian courts have played a leading role in pioneering reforms designed to enhance court reporting and promote cooperation between the media and the courts. In so doing they have also taken steps to facilitate coverage of court proceedings by the broadcasting media. A healthy competition between Victorian judges and the Federal Court, whose media reforms have largely taken place in Melbourne, appears also to have further motivated Victorian innovations. While the televising of Victoria’s courts has often been overshadowed by the Federal Court, and haunted by criticism of a sentencing televised in 1995,288 Victorian judges regularly admit television cameras to record proceedings, and Victoria remains the model state for court liaison with the media. Significant changes to the nature of court reporting and to the courts’ relations with the media can be traced back to 1993, when the Victorian Chief Justice, Mr Justice John Harber Phillips, appointed a Courts Information Officer,289 and Australia’s first courts media liaison committee, and when Mr Nicholas Papas was appointed Chief Magistrate of Victoria. One of the first initiatives of Prue Innes, the Court Information Officer, was the recording of file footage in April 1994. Despite 288 289

Discussed below E.4(c). The appointment followed recommendations including that in 1988 by the Victorian Sentencing Committee Report. See the Hon. Justice McGarvie, ‘The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence’ (1992) 1 Journal of Judicial Administration 236, 268–9 cited by Justice Teague in his 17 May 1995 ruling in Avent (‘Teague J Ruling’) where he notes that ‘McGarvie J . . . pointed out that the Committee had agreed with overseas research results showing that 95 per cent of people get their information on sentencing from the media, and had concluded that, to give effect to aims of sentencing such as deterrence, and to ensure public confidence in what is going on, it was vital that accurate information about sentencing reach the public’: The Queen v. Nathan John Avent, unreported, Supreme Court of Victoria Criminal Jurisdiction, Teague J, 17 May 1995, at 7.

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resistance from some media-shy judges, she eventually succeeded in persuading almost all Victorian judges to participate. In succeeding years she encouraged judges to permit file footage to be recorded during proceedings rather than being staged.

(b) First broadcasts Although the first recording of court proceedings in Victoria is said to have occurred in March 1995, when Justice Beach permitted an hour of proceedings in the Practice Court of Victoria to be recorded for use as overlay footage in an ABC Television programme, it is the Victorian Magistrates’ Court, under the leadership of Chief Magistrate Papas, which was the venue of many of the initial Victorian experiences with broadcasting. Mr Papas first raised the issue of televising shortly after being sworn in as Chief Magistrate in November 1993290 and several months later expressed a desire to initiate public debate of the matter and to explore the opening of courts to televising ‘by planning a test broadcast’, and advised that ‘he intended to allow cameras in permanently if limits could be agreed upon’.291 Although his plans were criticised by the Victorian Premier and the Victorian AttorneyGeneral, who expressed a concern that televising would result in excerpts of proceedings being broadcast out of context, and stressed the need to, ‘avoid courts being used for entertainment and voyeurism or in a way that prejudices the outcome of an individual case’,292 television cameras were permitted to record two 1995 applications to restore driving licences heard by Magistrate Sue Blashki. And ABC Radio National’s Law Report programme was also permitted to record the proceedings of a morning session in the courtroom of Magistrate Jelena Popovic. (c) Justice Teague’s sentencing of Nathan John Avent Australia’s most controversial and criticised televising of judicial proceedings occurred in May 1995 when Victorian Supreme Court Justice Bernie Teague permitted a television camera to record his sentencing of convicted child murderer Nathan John Avent. On 10 May 1995 in the 290

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Scott Henry, ‘New Chief Magistrate advocates cases on TV’, The Australian (Melbourne), 25 November 1993, p. 5. Alex Messina, ‘Lights, camera, action: they’re in court and so are you’, The Age (Melbourne), 7 July 1994, p. 1. Ibid.

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Supreme Court of Victoria, Nathan Avent pleaded guilty to the murder of a ten-year-old boy and to the imprisonment of the boy’s mother. The following day, two television networks sought permission to record and broadcast Justice Teague’s pending sentencing.293 On 12 May, Justice Teague advised counsel of his proposal to permit such extended coverage – a proposal which he described as ‘a course which would go only a little further than was presently allowed.294 One camera at a remote distance could film only the bench, with nothing to be published save with my permission.’295 The proposal to televise the sentencing was opposed by Mr Avent’s counsel, Mr Aaron Shwartz, on the grounds that such a broadcast would have the effect of ‘singling out’ his client; that it would aggravate both Avent’s punishment and his family’s suffering; that such a broadcasting of the sentencing would further sensationalise what had become a notorious case; and that the additional publicity would further exacerbate his client’s already unenviable (in view of the nature of his crime) position in prison, and would ‘open the flood gates’.296 In deciding to permit the televising, Justice Teague appeared to rule that the broadcast’s potential to educate the public about the sentencing process outweighed the risk of aggravating the punishment.297 In suggesting that televising may serve to better inform the public, Justice Teague drew on the comments of Sir Ivor Richardson regarding the then proposed New Zealand pilot project of televising and those of Lord Hope regarding the relaxation of the prohibition on televising in Scottish courts.298 He also appeared to be motivated by a desire to ensure the accuracy of information published about the sentencing, in order to enhance the prospects of maintaining public confidence in the sentencing process and of the sentencing acting as a deterrent. Justice Teague saw the broadcast as enabling him to provide information regarding the sentencing directly to the public, thus avoiding the risk

293

294

295 297

298

See The Queen v. Nathan John Avent, unreported, Supreme Court of Victoria Criminal Jurisdiction, Teague J, 17 May 1995, at 2. Ibid. at 3, 8, 27. Justice Teague set out the then existing practice of file and overlay footage of judges filmed in the courtroom being permitted to be broadcast. See ibid. at 7–8. See also Transcript of Procedings, The Queen v. Nathan John Avent, Supreme Court of Victoria, Teague J, 12 May 1995, at 100. Ibid. at 3. 296 Ibid. at 3, 4, 17–24. See text of reasons for Teague J Ruling, above n. 289, issued on 17 November 1995 in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 47. Teague J Ruling, above n. 289, at 14–17.

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of having sentencing remarks distorted or misrepresented by media reports. The televising of the sentencing took place under strict guidelines. After also considering the Western Australia Supreme Court’s Practice Direction No. 4 of 1992,299 Justice Teague chose to use the rules governing New Zealand’s Pilot Program of Electronic Media Coverage,300 because he found ‘the New Zealand Rules were susceptible of application by me with relatively minimal modification’.301 Four conditions were imposed by Justice Teague on the recording and broadcast of his sentencing of Nathan Avent:302 (1) ‘[S]o that the prospect of the presence of the camera acting as a distraction in any way could be minimised’303 the sentencing was to be recorded by only one television camera operated by one camera operator located in the public gallery, covering only the bench, and with one microphone on the bench. (2) As Justice Teague ‘wanted to have some protection against something unforseen happening’304 the videotape was to be subject to editing by the judge before being made available for use by the media. (3) Material broadcast was to be presented in a way which would provide ‘an accurate, impartial and balanced coverage of the proceedings, and of the parties involved’. To ensure this any broadcast was required to be without editorial comment and to be of at least two minutes duration per news item. (4) The recorded footage of the sentence was not to be used ‘otherwise than for normal news programs, unless prior approval for that use’ was given by the judge. To appreciate both the restrictions imposed on the televising and the media’s reaction to them, it is important to note that the case had generated an almost unprecedented level of public interest, which led one journalist to suggest that not since the findings of the First Coronial Inquest into the death of Azaria Chamberlain had television cameras

299

300

301 303

See text and discussion in the Hon. Justice R. D. Nicholson, ‘The Courts, the Media and the Community’ (1995) 5 Journal of Judicial Administration 5. New Zealand Rules regulating Coverage by the Electronic Media of Court Proceedings: Teague J Ruling, above n. 289, at 25–6. See further discussion below chapter 6. Teague J Ruling, ibid. at 26. 302 For text see ibid. at 1–2. Ibid. at 28. 304 Ibid.

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been allowed inside an Australian courtroom to cover a case generating such public interest.305 While the media generally complied with the conditions imposed on the use of the sentencing footage, the strictness of the conditions was criticised by some. In particular, sectors of the media were critical of the exclusion of radio coverage, of the two minute rule, and that television current affairs programmes could not use the courtroom footage.306 In the subsequent appeal against the sentence imposed by Justice Teague, the appellant contended that ‘the judge had in fact, albeit unconsciously, been influenced by the attention directed to the case by the media . . . [and] that, in all the circumstances, a fair minded lay observer with knowledge of the material objective facts might have entertained a reasonable apprehension that his Honour might have been so influenced in the process of sentencing’.307 The Court of Appeal emphasised that the appeal was not concerned with the merits of the televising of proceedings. Nevertheless, two of the three Justices of Appeal appeared to recognise the potential for the televising of courtroom proceedings to influence the outcome of judicial proceedings when they observed that the third ground of appeal set out above308 (which they found unnecessary to consider)309 ‘was not without force’.310 This recognition of a risk of prejudice posed by the televising of criminal proceedings, even in the absence of jurors or witnesses, appeared not only to acknowledge a potential ground of appeal but also to suggest that the presumption inherent in laws regulating court reporting – that the risk of prejudice is confined to a media report’s potential influence on jurors, witnesses and parties – did not apply to audio-visual reporting, which had the perceived potential also to influence judges. Despite criticism at the time, being associated with the concurrent and much criticised televising of the O.J. Simpson trial, Justice Teague’s 305

306 307

308

Rachel Hawes, ‘TV cameras to film murder sentencing’, The Australian (Melbourne), 13 May 1995, p. 1; Paul Conroy, ‘Justice being seen to be done’, The Age (Melbourne), 7 October 1995, p. 18. For Justice Teague’s explanation see Teague J Ruling, above n. 289, at 31. R v. Avent, unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway JA and McDonald AJA, 22 December 1995 (Callaway JA and McDonald AJA, 1–2). Ibid. 309 See ibid. at 9 (Callaway JA and McDonald AJA). 310 Ibid.

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decision to permit the sentencing to be televised represented a significant step in the enhancement of court reporting by broadcasters. Justice Kirby has suggested that the decision ‘propelled the issue of courtroom television into a subject of widespread public debate in Australia’.311 Noting the uncriticised audio broadcast of the 21 November 1996 sentencing of mass murderer Martin Bryant by Tasmanian Chief Justice Cox, the Federal Court’s Chief Justice Black suggested: ‘It may be that Justice Teague was ahead of his time.’312 A largely overlooked significance of the Avent case is that the transcripts of the hearings on 12 and 17 of May 1995 and Justice Teague’s ruling on 17 May 1995 provide a valuable outline of arguments for and against the televising of courts; a consideration of the relevance of American experiences for Australia; an analysis of case law relating to the principle of open justice, law of contempt and a judge’s inherent jurisdiction to regulate proceedings in his or her court; and a consideration of the most appropriate conditions to be imposed on the recording and broadcast of proceedings. Much of the criticism of the televising of Justice Teague’s sentencing remarks in Avent illustrates the crucial role played by perceptions. As Justice Cummins was to note in a ruling four days before the Court of Appeal judgment in Avent, initial reactions to the introduction of the broadcasting of proceedings need not be indicative of the existence of problems but rather of initial reactions which perceive problems in the novel form of courtroom publicity, and which are likely to recede when it becomes routine.313 The novelty factor certainly appears to explain why the first Australian televising of a sentencing was the subject of so much public criticism,314 while the televising of decisions and sentences 311

312 313

314

The Hon. Justice Michael Kirby, ‘Forum: Televising Court Proceedings’ (1995) 18 University of New South Wales Law Journal 483, 484. Black, ‘Opening Address’, above n. 286, at 9. Quentin Roberts v. Nine Network, unreported, Supreme Court of Victoria, Cummins J, 18 December 1995, at 7. See further discussion below chapter V(D)(4)(d). See e.g., David Adams, ‘Child murder: judges question TV sentence’, The Age (Melbourne), 23 December 1995, pp. 1–2; Nicole Brady and Rachel Gibson, ‘A mixed reaction to a slice of history’, The Age (Melbourne), 19 May 1995, p. 8; Michelle Coffey and Rachel Hawes, ‘Murder sentence broadcast divides the nation’, The Australian (Melbourne), 19 May 1995, pp. 1,4; Michelle Coffey, ‘Telecast whets an appetite’, The Australian (Melbourne), 19 May 1995, p. 4; Paul Conroy, ‘Teague takes TV lead but reception still hazy’, The Age (Melbourne), 23 December 1995, p. 2; Peter Gregory and Rachel Gibson, ‘Killer gets life as ‘‘TV judge’’ makes history’, The Age (Melbourne), 19 May 1995, pp. 1, 8.

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soon became accepted and even widely commended, and often barely rated a mention. The Avent case also appears to illustrate that while televising of court proceedings may permit justice being seen to be done, the exercise of the judicial discretionary power to permit televising may itself create a perception that justice is not being done. In this respect, the experience has caused Australian judges to favour a more incremental approach to the admission of television cameras or to confine significant developments to low profile cases. Difficulties created by Justice Teague’s unilaterally imposed strict rules also highlight the desirability of guidelines being determined in conjunction with representatives of the electronic media.315 Less stringent and jointly arrived at restrictions are more likely to promote greater compliance with the conditions laid down and may also lessen the antagonism and mistrust between the courts and the media.316 The allegation that Justice Teague was overwhelmed by the celebrity nature of the case, and may have created a public apprehension of bias, could also be said to highlight the dangers of permitting televising on an ad hoc basis as opposed to televising undertaken pursuant to the guidelines developed by the court,317 which lessen the prospect of a judge’s decision to permit televising being questioned or misconstrued. Justice Teague had himself noted the remarks of Sir Ivor Richardson that the New Zealand Courts Consultative Committee ‘felt that the existence of a pilot project [of courtroom televising] with stringent rules would provide better protection to individual judges and the judiciary collectively than the present vacuum’.318

315

316

317 318

Though the content of the rules was discussed in hearings prior to the sentencing, see Transcripts of Proceedings, The Queen v. Nathan John Avent, Supreme Court of Victoria, Teague J, 17 May 1995, they appeared to be unilaterally predetermined by Justice Teague. See also a discussion of the relationship in Janet Fife-Yeomans, ‘Fear and Loathing: the Courts and the Media’ (1995) 5 Journal of Judicial Administration 39; the Hon. Justice Robert Nicholson, ‘The Courts, the Media and the Community’ (1995) 5 Journal of Judicial Administration 5; the Hon. Justice Bernard Teague, ‘The Courts, the Media and the Community: a Victorian Perspective’ (1995) 5 Journal of Judicial Administration 23. Such as those applied by the courts of Western Australia. Sir Ivor Richardson, ‘The Courts and the Public’ (1995) New Zealand Law Journal 11, 14–16.

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(d) The Quentin Roberts ruling Just before the delivery of the Court of Appeal’s decision in Avent, Chief Magistrate Papas permitted television network Channel 9 to record a number of criminal proceedings in his courtroom over a period of six days. The recording was for a programme intended to demystify the workings of the Magistrates’ Court.319 The reaction to the broadcast programme was largely positive and appeared to initiate a media discussion of sentencing values, to which the Chief Magistrate contributed in a newspaper article.320 However, as the programme was about to be broadcast, an application seeking an urgent interlocutory injunction was filed with the Supreme Court of Victoria. It sought to prevent Channel 9 identifying a defendant who had been filmed in the Chief Magistrate’s Court. During the recording, parties to proceedings had not been specifically required to consent, but had been given an opportunity to object to being recorded – which a number did and subsequently were not permitted to be identified. A notice pinned to the door of the courtroom had also advised those entering of the television camera coverage.321 As the plaintiff was a chronic schizophrenic and it was suggested that it would be inherently dangerous for him to view the programme, Supreme Court Justice Cummins granted the injunction, in light of what he described as ‘the exceptional circumstances of the case’. However, in so doing, Justice Cummins stressed that ‘[t]he very circumstance that it was exceptional to a fundamental principle of publicity is I think the essential matter; the exception should not derogate from the general principle’.322 He set out the general principle in the following terms: ‘The premise is that courts are open. It is only in exceptional circumstances that publicity should be limited and when it is it should be limited only as far as is absolutely necessary.’323 319

320

321 322

323

See Channel 9 Media Release in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 37; Barbara Hooks, ‘Televised trials: are they inevitable here?’, The Age (Melbourne), 14 December 1995, p. 10. Nicholas Papas CM, ‘Sentencing is not that simple’, Herald-Sun (Melbourne), 5 February 1996. See notice in Stepniak, Electronic Media Coverage of Courts, above. n 2, at p. 38. Quentin Roberts v. Nine Network, unreported, Supreme Court of Victoria, Cummins J, 18 December 1995, p. 8. See Transcripts of Proceedings, Quentin Roberts v. Nine Network, Supreme Court of Victoria, Cummins J, 18 December 1995. See also, Stepniak, Electronic Media Coverage of Courts, above n. 2, at p. 39. Ibid. p. 13.

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Justice Cummins’ judgment in this interlocutory injunction application is particularly significant in that it constitutes an Australian judicial evaluation of the arguments for and against permitting the televising of court proceedings – the first and to date only occasion on which an Australian superior court has specifically considered the legality of the televising of court proceedings. In reviewing the grounds for restricting the reporting of court proceedings, his Honour addressed and dismissed the relevance of commonly raised concerns: [T]he fact that a matter is embarrassing to be published is of itself no reason for it not to be published. The fact that a matter may receive higher profile than otherwise by reason of electronic dissemination is no reason of itself for it not to be disseminated. Were it otherwise, the court would have been also constantly engaged in an assessment of the degree of print publicity, and the court has not so been constantly engaged; nor do I see any reason why it should be so engaged in assessment of dissemination by electronic media . . . It is said that the very public presentation of parties or witnesses militates by undue publicity against visual electronic dissemination but it seems to me that no difference in principle arises between that dissemination and by print. The difference is of degree, not of kind, in relation to the fundamental of Benthamite publicity. As to the right to privacy, the courts are public, not private.324

In a seldom made observation, Justice Cummins also underlined the importance of recognising that some public concerns may reflect reactions to the novelty of televising, noting: ‘It may be that the perceived problems of undue publicity are transitional and will recede if such dissemination becomes, as print dissemination is, routine.’325 One other defendant shown in the Court One programme was reported to allege that he had not given informed consent to being televised and to complain that the broadcast had caused him to be vilified and subjected to public pressure.326 While this incident may appear to illustrate the desirability of securing the formal consent of all participants, the lodgement of a similar complaint in Scotland, where formal consent was required to be given,327 suggests that it may be more 324

325

326 327

Ibid. p. 7. See transcript of judgment reproduced in Stepniak, Electronic Media Coverage of Courts, above n. 2, at p. 39. Ibid. p. 7. Justice Cummins’ remarks appear to have accurately predicted and to explain the contrasting favourable reception accorded to his decision to permit his 27 August 2007 sentencing of Peter Dupas to be televised. See ‘Justice being seen to be done’, The Age (Melbourne). Steve Butcher, ‘Court TV man appears again’, The Age (Melbourne), 28 April 1996, p. 4. See above chapter 2.

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appropriate to treat such complaints and regrets at having participated as being largely unavoidable repercussions of the subjective evaluation of the impact of televising. Thus, the evaluation of the pilot programme in American federal courts specifically noted that participants in court proceedings are not in a position to accurately assess whether the impact of televising had or had not contributed to their woes.328

(e) Broadcast of civil cases The fall-out over Justice Teague’s televised sentencing in Avent has ensured that no further criminal trials were televised in the Supreme Court of Victoria until 27 August 2007, when Justice Cummins permitted a television camera to film his sentencing of convicted murderer, Peter Norris Dupas. However, Victorian courts have shown themselves to be willing to facilitate television camera access to civil cases of legal significance or of high public interest. A number of such cases have been televised because judges have deemed the television exposure ‘important for community knowledge and understanding of the issues’,329 an example being Justice Murray Kellam’s permission for a television camera to record his decision in a discrimination case brought to the Victorian Civil and Administration Tribunal concerning the right of an HIV-positive footballer to be permitted to play.330 A rarely discussed benefit of courtroom televising was also highlighted when the admission of cameras into the hearings of another civil case appeared to have thwarted an attempt by a powerful corporate defendant to manufacture public sympathy and support in the face of pending judicial condemnation. Justice Bill Gillard had permitted a television camera to record the opening addresses and his decision in the civil damages class action brought against Esso seeking compensation for damage and injury caused by the Longford gas plant explosion.331 Apparently unaware that the proceedings would be televised, the defendants had arranged for their Chairman to give a press interview on the steps of the court. In a statement ‘bordering on contempt of court’,332 the 328 329 330

331

332

See above chapter 3. Email from Prue Innes, Court Information Officer, to author, 23 December 2004. Justice Kellam ruled in favour of the footballer, deeming the refusal to permit the footballer to play an overreaction, particularly in view of the ‘blood rule’ which adequately addressed concerns: Hall v. Victorian Amateur Football Assoc.(1999) 15 VAR 183. Johnston Tiles Pty Ltd and another v. Esso Australia Pty Ltd and others [2003] VSC 27 (20 February 2003). See above V(B)(2) for a discussion of the law of contempt.

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Chairman criticised the bringing of the civil action and warned that a victory for the plaintiffs would threaten the industry in Victoria. However, as television networks had been provided with access to footage of proceedings, footage of the interview, which would potentially have skewed public understanding of the decision, was ‘hardly used’.333

(f) Conclusion The experience of Victorian courts is noteworthy, not only for the Supreme Court’s innovative work in its liaison with media organisations, its facilitation of media reporting334 and experimentation with courtroom televising, but also because the Victorian Supreme Court remains the only Australian superior court to consider and rule on issues relating directly to the televising of court proceedings. 5 Family Court of Australia Section 121 of the Family Law Act 1975 (Cth)335 prohibits the publication, including ‘by radio broadcast or television or by other electronic means’, of any account of proceedings under the Family Law Act that identifies a party to such proceedings, a person associated with a party or a witness in such proceedings. In the case of a broadcast account, such identification includes the broadcast of a recognisable picture or sound of their voice. A breach of the section constitutes an indictable offence and is punishable by up to one year’s imprisonment. In addition, Rule 1.19 of the Family Law Rules 2004336 reinforces this prohibition of audio-visual reporting by stating: ‘A person must not photograph, or record by electronic or mechanical means, any court event.’337 These statutory provisions have created the impression that the proceedings in the Family Court of Australia and the Family Magistrates’ Court of Australia cannot be televised. In its 1994 Report,338 the Access to Justice Advisory Committee concluded that in view of the ‘special considerations that make family law an unusual case’ it did not support the extension to the Family Court of the experimental programme for 333 334 335

336 337

338

Email from Prue Innes, Courts Information Officer, to author, 23 December 2004. Discussed above C.2. See www.comlaw.gov.au/ComLaw/Legislation/ActCompilationl.nsf/fromelodgmentattach ments/51466477598AF8AFCA2572AD000C7EE6 at 10 April 2007. In place since 29 March 2004. See www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrumentCompilation 1.nsf/ framelogmentattachments/5804E0EB18820DF3CA2571A900117E14 at 10 April 2007. Access to Justice Advisory Committee, Access to Justice, above n. 2.

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broadcasting court proceedings it proposed, recommending instead that ‘there should be no broadcasting of proceedings in the Family Court’.339 In spite of this, the Family Court has begun to pursue a policy of opening its proceedings to the public, by inter alia approving the broadcast of proceedings, and thus exempting the publisher from liability under section 121.340 The Family Court has admitted cameras into its courtrooms in order to facilitate the recording of television documentaries. That it has done so underlines the decisive role which judicial attitudes play in making courtroom televising acceptable. Particularly influential in opening family law proceedings to public scrutiny has been Justice Diana Bryant, the Chief Justice of the Family Court of Australia appointed in 2004.341 She has expressed a clear desire to open the Court to the public and to promote public understanding of the Court’s role and processes by making judgments more readily available.342 In a 27 September 2004 speech,343 the Chief Justice announced the setting up of a new court website344 and the extension of public Internet access to first instance cases;345 noting that ‘[t]he judgments are after all the window to the Court’s work’,346 she stated ‘It is difficult to explain what the work of the Court is if the decisions are not readily available to the public.’347 In a 23 November 2004 speech348 Chief Justice Bryant referred to the media’s discussion of issues raised by her predecessor, and observed that ‘[r]egrettably however this is a rare occurrence and too often the media seek only to write a good story rather than to portray accurately the decision, the factors involved in the decision and the difficult cases judicial officers 339 341 342

343

344

345 348

Ibid. para. 20.47. 340 See Family Law Act 1975 (Cth), s. 121(9)(g). Diana Bryant was appointed Chief Justice of the Family Court of Australia on 5 July 2004. See e.g., the Hon. Diana Bryant ‘From the Chief Justice’ (2004) 4(6) Courtside: Newsletter of the Family Court of Australia 2, www.familycourt.gov.au/presence/ resources/file/eb000c0d9dc456d/Courtside_Dec_04.pdf at 10 April 2007. The Hon. Diana Bryant, ‘Beyond the Horizon: State of Family Law and the Family Court of Australia’, speech delivered at the Law Council of Australia, Family Law Section, Eleventh National Family Law Conference, Gold Coast, 27 September 2004, www.familycourt.gov.au/presence/resources/file/eb000846719a3fb/ State_of_the_nation_27_sept_04.htm at 10 April 2007. Ibid. at 28. See Family Court of Australia, Resolving or Determining Family Disputes (2004), www.familycourt.gov.au at 10 April 2007. Ibid. p. 10. 346 Ibid. p. 10. 347 Ibid. p. 11. The Hon. Diana Bryant, ‘The Future of the Family Court’, speech delivered at the Third Annual Austin Asche Oration, 23 November 2004, www.familycourt.gov.au/ presence/resources/file/eb00010b09ed318/Third_Annual_Austin_Asche_Oration_23_ Nov_2004_updated.pdf at 10 April 2007.

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decide every day’.349 At the same time she acknowledged ‘some fault on the part of the court in not making its work more open to the public’.350 In this respect, she has stated ‘I think we have an obligation to make it known how we decide cases in an area in which individual justice is required.’351

6 High Court (a) Introduction In contrast to most other Australian federal and state courts, the High Court of Australia remains opposed to the admission of television cameras, warranting an examination of factors which account for the Court’s stance. The High Court of Australia is the highest court in Australia. Unlike the Supreme Court of the United States, it is the final court of appeal in matters of federal and state law. Though its decisions have the most significant impact on Australian society and its almost exclusively appellate jurisdiction352 ensures that its proceedings do not involve witnesses, juries and lawyers unaccustomed to media attention, television broadcasts of High Court proceedings have been confined to ceremonial and special sittings and two, above discussed,353 documentaries which the Court permitted to be recorded in the late 1990s. Though the High Court has been said to lead the world in judicial utilisation of technology,354 and has long acquired the acknowledged capacity to webcast its proceedings, to date it has chosen not to do so. In late 1999, following the Federal Court’s first audio-visual transmission of a judgment via the Internet in August 1999, it was reported that the High Court had trialled the technology and that ‘live audio of legal 349

350 352

353

354

Ibid. See also Family Court of Australia, Media Release (2004), www.familycourt.gov.au/ presence/connect/www/home/about/media_centre/media_releases/Third_Annual_Austin_ Asche_Oration_media_release at 10 April 2007. Ibid. 23. 351 Ibid. 23. The High Court’s original jurisdiction is set out in ss. 75 and 76 of the Commonwealth Constitution. Following the creation of the Federal Court of Australia in 1976 the High Court’s original jurisdiction became confined to constitutional cases and to ‘trials of indictable offences against the laws of the Commonwealth’: Judiciary Act 1903 (Cth) s. 30(3). See also Blackshield and Williams, Australian Constitutional Law, above n. 101, at pp. 555–8. See above E.2. On rare occasions some other High Court Justices have also participated in broadcast media interviews. See the Hon. Justice Michael Kirby, ‘Acting Judges: a Non-Theoretical Danger’ (1998) 8 Journal of Judicial Administration 69, 70–2; The Hon. Chief Justice Murray Gleeson, ‘The State of the Judicature’ (2000) 74 Australian Law Journal 147; Williams, ‘The High Court and the Media’, above n. 217, at 140.

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argument in a Canberra case could begin this financial year if the money can be found’. The report suggested that the Court hoped to be the first Australian court to broadcast hearings live on the Internet.355 Despite its capacity to record its own proceedings the High Court declines to do so other than for the purposes of assisting the accuracy of transcribing proceedings.

(b) Minority support of audio-visual coverage Although the Court remains overwhelmingly opposed to the televising of proceedings, a few of the current and recent High Court Justices have publicly expressed a view suggesting that it may be desirable for the Court’s proceedings to be televised. Of the current Justices only Justice Michael Kirby has actively advocated the benefits of televising court proceedings.356 While noting that the televising of proceedings was a matter which had to be conceded ‘on a collegial basis’, he has stated ‘I myself have no problems with television in court . . . courts are open and the way people get most of their information about courts is through radio and television. So I consider that courts shouldn’t stay back forever in the age of the quill pen.’357 In response to fears that televising would debase and trivialise legal issues and that courts would become part of the entertainment industry, Justice Kirby has observed that ‘so long as they’re discreet, it’s no different from people being able to come into the court and stay a day or to go after 20 seconds. It’s basically just a matter of open justice. And that is a hall mark of our judicial system.’358 Former Chief Justice Brennan’s granting of permission for the recording of the two documentaries discussed above was consistent with his view that ‘the courts should facilitate media access to whatever is on the public record or in the public domain’.359 The most outspoken advocate of the televising of High Court proceedings has been former High Court Justice Sir Ninian Stephen. On 355 356

357

358 359

Bernard Lane, ‘High Court tests case for net’, The Australian (Perth), 7 December 1999, p. 3. See e.g., Kirby, ‘Forum: Televising Court Proceedings’, above n. 311; the Hon. Justice Michael Kirby, ‘What is it Really Like to be a Justice of the High Court of Australia? A Conversation of Law Students with Justice Kirby’, speech delivered at the Faculty of Law, University of Sydney, 23 May 1997, www.highcourt.gov.au/speeches/kirbyj/kirbyj_sydu.htm at 10 April 2007. Kirby, ‘What is it Really like to be a Justice of the High Court of Australia?’, above n. 356. Ibid. The Hon. Sir Gerald Brennan CJ, The Third Brand and the Fourth Estate (1997).

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being appointed as one of the original Judges of the International Criminal Tribunal for the former Yugoslavia (ICTY),360 Sir Ninian had been reluctant to consider the proposal ‘that all proceedings be televised and made available to TV channels world-wide on request’361 but recounts that: Subsequent experiencing over the years the televising of proceedings my doubts were put to rest and I believe that in the US and the European countries that avail themselves from time to time of the Tribunal television service it has led to a much fuller understanding of the work of the tribunal and how it functions than would otherwise be the case. At the same time it has had no adverse effect on the conduct of trials.362

Having become persuaded of the value of courtroom televising, in 1998 Sir Ninian publicly urged the High Court to consider ‘the publication of summaries of judgments at the time of their delivery and the televising of hearings of the Court’,363 in order to make itself more accessible to the public and the media and to overcome what Sir Ninian described as ‘the present undoubted lack of public and political understanding of the Court and its processes and how it fulfils its functions’.364 At the time Sir Ninian made these remarks, the High Court was the subject of concerted public criticism over what was deemed to be judicial activism.365 Sir Ninian had suggested that ‘only by ensuring that clear public understanding exists of what the Court is about and how and why it reaches its conclusions is so-called activism at all likely to escape criticism and to be recognised as a proper function of the judiciary’.366 In recommending greater openness Sir Ninian noted: ‘It is commonly said that courts operate in the most open way, publishing their decisions and supporting them with explicit reasoning’.367 His response to this argument was to note that the problem was that the manner in which 360 361

362 365

366 367

Where Sir Ninian served as a judge of the ICTY from 1993 until 1997. The Rt Hon. Sir Ninian Stephen, ‘Address on the Occasion of the President’s Luncheon’, paper presented at the President’s Luncheon at the Law Institute of Victoria, 19 August 1998, at 13, in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 71. Ibid. 13. 363 Ibid. 10. 364 Ibid. 14–15. Caroline Milburn, ‘Televise High Court: Sir Ninian’, The Age (Melbourne), 20 August 1998, p. 5; ‘Former judge backs Borbidge’, Courier Mail (Brisbane), 10 August 1998; ‘Right calls on Callinan’, Australian Financial Review (Perth), 22 July 1998, p. 16. Stephen, ‘Address on the Occasion of the President’s Luncheon’, above n. 361, at 8. Ibid.

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courts published decisions and set out reasons was ‘largely by methods familiar to judges of the nineteenth century’.368 As to the perceived benefits of televising the Court’s proceedings, Sir Ninian argued that: To televise proceedings before the High Court would be to introduce viewers to the functioning of the Court in a quite intimate and dramatic way. The nature of the Court’s proceedings are, I think, especially suited to being televised; there is no question, as there is in other courts, of witnesses feeling overawed by television or perhaps sensitive questions of their identity being encountered. The form of High Court hearings, with leading counsel outlining their submissions and the usually vigorous interplay of question and answer between Bench and Bar, would, if televised, go a long way towards clarifying to a lay public the issues involved and the sort of considerations that actuate the various members of the Court, doing so more graphically than can the written words of judgments.369

Sir Ninian urged the Court to consider adopting ‘the Hague Tribunal’s practise of completely unobtrusive court-administered and controlled television cameras’370 partly in acknowledgement that there may be insufficient interest by existing networks in broadcasting more than edited news items. With reference to then mooted multi-channel broadcasting, he suggested that ‘a separate channel devoted during sitting hours exclusively to the Court would not seem too much to ask of government’.371

(c) Majority opposition Statements made by High Court Justices opposed to televising reveal a number of factors which appear to account for the Court’s reluctance to facilitate public access to audio-visual recordings of proceedings. Former High Court Justice Sir Daryl Dawson perceived media reporting to be largely incompatible with the administration of justice. He noted that: 368 370

371

Ibid. 369 Ibid. 14. Since its first public hearings in November 1994, the Tribunal has recorded its own audio-visual footage of proceedings and made such recording available without condition to media networks on a thirty-minute delay basis. For detailed analyses of the Tribunal’s processes and an evaluation of such recordings, see Stepniak, Electronic Media Coverage of Courts, above n. 2, at paras. 2.37–9; Paul Mason, Report on the Impact of Cameras at the International Criminal Tribunal for the Former Yugoslavia (2000), www.usfca.edu/pj/camera-mason.htm at 16 January 2005. Stephen, ‘Address on the Occasion of the President’s Luncheon’, above n. 361, at 14. A view reiterated in the Rt Hon. Sir Ninian Stephen, ‘Televising of Proceedings’ in Tony Blackshield, Michael Coper and George Williams (eds.), The Oxford Companion to the High Court of Australia (2001), pp. 663, 664.

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The judicial method, court dress and court procedure are all aimed at fostering an objective rather than subjective approach to the administration of justice, whereas the inevitable tendency of the media is to personalize issues in a way which is inimical to this aim.372

Sir Daryl also observed that ‘constraints of time and space to which the media are subject, inevitably result in the incomplete presentation of a complex subject with the result that it is either trivialized or sensationalized’.373 In 2001, while reiterating his support for the utilisation of the Internet to make court decisions more freely available,374 Chief Justice Gleeson stated his opposition to the televising of court proceedings by agreeing with a remark made by visiting US Supreme Court Justice Ruth Bader Ginsburg ‘that a society that makes entertainment out of the administration of criminal justice is sick’.375 Justice Gleeson reiterated this concern in a March 2007 interview, when in commenting on the proposal to trial court broadcasting in Western Australia, he is reported to have observed: ‘I think that the administration of criminal justice is not an appropriate subject of entertainment’.376 That the High Court appears to be out of step with most other Australian courts, which have embraced greater openness as a means of promoting public confidence through enhanced public understanding, may, at least in part, be attributable to Chief Justice Gleeson’s view that the maintenance of strict legalism rather than the promotion of public understanding and greater openness is the essential ingredient for maintaining public confidence in the judiciary.377 Justice Gleeson has also consistently suggested that it is more crucial for the courts to enjoy the confidence of the legal profession,378 and has questioned the link between news reporting and public confidence, noting that: ‘The nature of news affects what is published about courts. The things that sustain confidence in an institution are not likely to 372

373 374 375

376 377

378

The Hon. Sir Daryl Dawson, ‘Judges and the Media’ (1987) 10 University of New South Wales Law Journal 17, 18. Ibid. 17, 23. See Gleeson, ‘The State of the Judicature’, above n. 354, at 153–4. Ian Henderson, ‘Chief Justice says only sick society would televise courts’, The Australian (Perth), 25 June 2001, p. 4. ‘Chief Justice turned off by courts on TV’, West Australian, 25 March 2007. The Hon. Murray Gleeson, ‘Public Confidence in the Courts’, paper presented at National Judicial College of Australia Conference Confidence in the Courts, 9 February 2007. See Bernard Lagan, ‘Courting Controversy’, The Bulletin (Sydney), 14 October 2003, p. 28; Gleeson, ‘Public Confidence in the Courts’, above n. 377, at 12.

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be newsworthy. Things that shake confidence are more likely to be newsworthy.’379 The Court also does not appear to have shed the mistrust of the media stated by former Chief Justice Barwick who observed that: [T]he press have no real sense of responsibility for the welfare of the country. Their interest is in scoops, exclusive interviews and tragedies or disasters in human events. And that I may say is a serious indictment. They have the capacity to exert considerable influence. But in general journalists do not convey information, particularly information objectively treated; they almost invariably offer comments, if in no other way than in the adjectival description of people and events.’380

Even Justice Kirby is on record as observing that ‘the media are not now really interested in communicating information in a neutral and informative way . . . Issues are personalized, politicized and trivialised’.381 Such traditional mistrust of the media has recently been exacerbated by media criticism of the court and in particular of Justices Kirby and Callinan,382 and caused further judicial reluctance to engage with the media. Justice Kirby has been particularly vocal in his criticism of the media’s lack of interest in reporting decisions of the High Court and of the nature of many media reports. He has noted that the decisions of appeal courts in Australia ‘are sometimes interesting, often news worthy, occasionally entertaining and frequently important. Yet rarely are they reported properly.’383 He has particularly emphasised the media’s lack of attention to the decisions of the High Court.384 Suggesting that this may be a worldwide 379 380

381

382

383

384

Gleeson, ‘Public Confidence in the Courts’, above n. 377, at 13. John Henningham, ‘The High Court and the Media’ in Peter Cane (ed.), Centenary Essays for the High Court of Australia (2004), p. 56. The Hon. Justice Michael Kirby, ‘Judiciary, Media and Government’ (1993) 3 Journal of Judicial Administration 63, 70. See Janet Albrechtsen, ‘Dreamer courts legal contention’, The Australian (Perth), 20 October 2004, p. 15; Chris Merritt, ‘Robust dissent puts Kirby on the outer’, Australian Financial Review, 18 February 2005, p. 57; ‘Right calls on Callinan’, Australian Financial Review, 22 July 1998, p. 16. The Hon. Justice Michael Kirby, ‘The Judiciary in Federation Centenary Year: Good News, Bad News, No News’, paper presented at the Australian Institute of Judicial Administration, Eleventh AIJA Oration, Sydney, 22 June 2001, at 9, www.aija.org.au/ KirbyOra.rtf at 10 April 2007. The Hon. Justice Michael Kirby, ‘Media and Courts: the Dilemma’, speech delivered at the Southern Cross University Graduation Ceremony, 27 April 2002, www.hcourt.gov. au/speeches/kirbyj/kirbyj_dilemma.htm at 10 April 2007.

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phenomenon, he noted that the first public information officer appointed by the Supreme Court of the United States also noted the media’s preference for focusing on trivia, gossip and the personal habits of judges rather than on the decisions of courts.385 Stressing that most Australians receive their knowledge from the media,386 Justice Kirby has urged that ‘the people of Australia deserve more information and scrutiny of what their highest court is doing’.387 He has also contrasted what he saw as the inadequate reporting of significant refugee law cases with the saturation coverage of the execution of Timothy McVeigh.388

(d) Reforms Noting the inadequacy and politicisation of the media’s coverage of the High Court,389 legal commentators have suggested certain reforms. For example, Prof. George Williams has urged the High Court to ‘accept a higher degree of responsibility for the communication of its findings to the community through the media’,390 and more specifically to ‘develop a media strategy based upon a partnership with the media that seeks to provide factual information about decisions of the Court to the public’.391 Others have called for the court to ‘make its judgments more accessible if there is to be proper dialogue on its decisions’,392and to improve its relationship with the media through increased contact with the media and the promotion of legal journalism.393 385

386 387

388 389

390

391 392

393

Barrett McGurn, America’s Court: the Supreme Court and the People (1997), p. 167 cited in ibid. Kirby, ‘Media and Courts: the Dilemma’, above n. 384. Kirby, ‘The Judiciary in Federation Centenary Year’, above n. 383, at 11. Justice Kirby returned to this theme in 2004, noting the lack of coverage for significant High Court decisions relating to indefinite detention of asylum seekers: the Hon. Justice Michael Kirby, ‘Law and Justice in Australia: Room for Improvement’, speech delivered at the Queensland University of Technology Law Students’ Society, Brisbane, 3 September 2004, www.hcourt.gov.au/speeches/kirbyj/kirbyj_sep04.html at 10 April 2007. Kirby, ‘The Judiciary in Federation Centenary Year’, above n. 383, at 11. Kirby, ‘Media and Courts: the Dilemma’, above n. 384, at 3. Henningham, ‘The High Court and the Media’, above n. 380, at 59. David Solomon, ‘Courting the Media’ (2004) 85 Reform 7. George Williams, ‘The High Court and the Media’ (1991) 1 University of Technology Sydney Law Review 136, 141. See www.austlii.edu.au/au/journals/UTSLRev/1999/ 10.html at 14 April 2007, p. 4. Ibid. p. 5. David McLennan, ‘High Court decisions must be open to dialogue: Professor Michael Coper’, Canberra Times (Canberra), 22 September 2003, p. 7. See John Henningham, ‘At odds with the court of public opinion’, The Australian (Perth), 21 November 2003, p. 7.

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The High Court has responded by enhancing access to its decisions through the speedy posting of its decisions and transcripts of proceedings on the Web, by providing judgment summaries in some key decisions, and through the appointment of a Public Information Officer. However, as Justice Kirby has observed, these innovations have not led to greater media interest in its decisions. He noted that the Court’s decisions ‘are on the Internet within 10 minutes of delivery . . . Yet the moulders of opinion and manipulators of power could not, it seems, care less. The decisions, big and small, mostly sink like stones – without trace.’394 Justice Kirby has noted measures the Court could take to make itself more accessible, asking questions such as ‘Should our courts make it easier, so as to reach out, through modern technology, to the people whom they serve? Should our highest court like the Supreme Court of Canada approve a dedicated television channel which covers the arguments and decisions of the top judges?’395 However, the Court has not moved to assist media reporting to the same extent that the Supreme Court of Canada has – providing court reporters with detailed briefings on pending decisions and providing audio-visual coverage of all proceedings through CPAC, nor through departure from customary practice to ensure informative media coverage as the House of Lords did during the Pinochet hearings. Indeed, as George Williams noted in urging the court to consider the televising of its proceedings ‘It was notable that when the decisions of the Federal Court at first instance and on appeal in the litigation arising out of the recent waterfront dispute were televised, the outcome in the High Court was not.’396 The Court may be concerned about the quality and level of media coverage, but nevertheless, it continues to refuse rare applications seeking permission to record proceedings.397

(e) Conclusion A number of factors are combining to exert pressure on the Court to take steps to provide public access to audio-visual footage of proceedings, 394 395

396 397

Kirby, ‘Media and Courts: the Dilemma’, above n. 384, at 3. Ibid. 3. See Chris McLeod, ‘Wrestling with Access: Journalists Covering Courts’ (2004–5) 85 Reform 15, for a journalist’s perspective on the challenges of court reporting and for an account of how a court suppression order almost succeeded in concealing allegations against Governor-General Peter Hollingsworth, which ultimately forced his resignation. Williams, ‘The High Court and the Media’, above n. 390, at 5. Mallard v. The Queen (2004) HCA (‘Mallard Case’). Transcript of Proceedings, Mallard v. The Queen, High Court, McHugh, Hayne and Callinan JJ, 27 October 2004, www.austlii.edu.au/au/other/HCATrans/2004/421.html at 10 April 2007.

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making it increasingly likely that the Court will stream its proceedings online and/or reach an arrangement with a broadcaster to provide extended coverage akin to that the Supreme Court of Canada secures through CPAC. While the Court’s continuing wariness of the media makes televising unlikely, its disapproval of what even Justice Kirby perceives as personalised, politicised and trivialised rather than neutral and informative reporting and the media’s lack of interest in reporting at length the Court’s decision may well speed up its willingness to webcast its own proceedings and ironically provide the catalyst for audio-visual coverage of proceedings. An additional factor which may cause the Court to take the initiative is that it has found itself no longer able to rely on the Federal Attorney-General to defend it from publicly disseminated misinformation.398 In this respect Justice Kirby has observed that: if judges and their decisions are not defended, the judicial institution not explained and the law they administer not clarified by the Minister of the Crown who traditionally performed this role (and if judges themselves are not able to take on the task) the real loser will be the public, not the judges or the media. Words will be spoken by others and taken as truth because they are unanswered.399

Arguably the High Court Justices’ embracement of technology to facilitate video links and to assist their research may also make them less wary of utilising the technology to enhance public access. Justice Kirby has argued that technology be harnessed and used to counter misinformation: It is no use judges and other lawyers complaining about poor, misleading, distorted coverage of their work if they do nothing to rectify this problem. They must realize the world of exploding information that has come with the Internet. Other professions have adapted. The courts have done so in part. But a revolution in information is occurring and the courts must boldly enter the new age.400

He also observed that it is within the power of courts to harness information technology, noting: ‘If our concern as judges and citizens is with law and justice, we must make sure that information technology is more than a medium of entertainment.’401 398

399 400 401

See Daryl Williams, ‘Judges must put up their own defence’, Australian Financial Review, 27 April 2001, 57. Kirby, ‘The Judiciary in Federation Centenary Year’, above n. 383, at 8. Ibid. at 12. Kirby, ‘Media and Courts: the Dilemma’, above n. 384, at 3.

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Funding cuts which have restricted physical public access to the Court may also serve to prompt the court to make at least audio-visual coverage available. The High Court’s steps towards facilitating audio-visual coverage of its proceedings are not likely to flow from its appreciation of the vital role the media performs in publicising court proceedings but rather from the Court’s recognition that the media must be assisted and its efforts supplemented if the public are to be provided with an opportunity to access and understand the Court’s decisions.

F Quasi-judicial and parliamentary experiences with televising 1 Introduction Television cameras have long been admitted into Australian quasi-judicial proceedings such as Royal Commissions. As early as 1984 the New South Wales Law Reform Commission was able to identify several Australian quasi-judicial proceedings which had been recorded and broadcast.402 In some jurisdictions, such as Western Australia, the televising of quasijudicial proceedings predates the admission of cameras into courts of law.403 In others such as Queensland, where courts had largely denied camera access, a number of quasi-judicial proceedings such as Commissions and native title claims have been recorded and broadcast.

2 The Wood Royal Commission The Royal Commission into the New South Wales Police Service(the Wood Commission), is noteworthy because it not only introduced a number of innovations in the reporting of quasi-judicial proceedings and permitted unprecedented levels of audio and visual recording and 402

403

NSW Law Reform Commission, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.29. These included the WA Inc. Royal Commission and the beginning of hearings in the Wanneroo Inc. Royal Commission. See Gadens Lawyers, Work Relations E-update: Royal Commission into Building and Construction (September 2001), www.gadens.com. au/Publications.asp?CategoryID=33&navid=4&cid=24 at 10 April 2007. Chief Justice Malcolm has observed that in allowing file footage to be recorded in the Supreme Court, the Court adopted ‘the precedent set by the ‘‘WA Inc’’ Royal Commission in providing television images to facilitate what the media calls ‘‘actuality’’ in television broadcasts’: Roy Gibson, ‘Doing justice to WA’, West Australian (Perth), 3 January 2004, Weekend Extra p. 7.

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broadcasting of proceedings, but also examined the issues arising from courtroom televising. During the Wood Commission’s hearings between November 1994 and March 1997, television cameras were permitted to record the beginnings of hearings and to record and update file footage. While audio recordings of statements from the bench were permitted to be recorded for radio broadcast, to avoid potential disruption, television networks were provided with video footage recorded by the Commission. No additional restrictions were imposed on the broadcasts of such recordings.404 The Wood Commission also provided a media room equipped with a video link to the hearings, and computers which made access to transcripts available to journalists.405 The extent to which computers were utilised was also unprecedented, allowing, for example, complex evidence to be presented via computer monitors. Justice Wood later outlined some of the other computing innovations: Real-time transcript available via lap-tops on the Bar Table and Bench allowed immediate access to proceedings both in and out of the hearing room. The Commissioner, counsel and solicitors could follow the transcript with only a few seconds delay. The real-time transcript could be annotated on the screen, facilitating preparation for later proceedings. The exact evidence of a witness could be immediately recalled. The facility allowed viewing of the transcript for the current day and any previous day, facilitating cross-examination.406

However, Justice Wood also expressed the need for caution in employing the use of technology in judicial proceedings, illustrating the potential dangers by reference to the O.J. Simpson trial, the broadcast of which coincided with the Commission’s hearings: Technology is not the ultimate solution for all problems. Its successful use depends on planning and an awareness of its limitations.

404

405

406

An example of such footage being broadcast in an unrelated later programme is file footage of the Commission’s hearings incorporated in an ABC Four Corners programme on Justice Yeldham, broadcast on 17 February 1997. For an outline and discussion of technology used, see the Hon. Justice James Wood, ‘Royal Commission into the New South Wales Police Service: Use of Technology’, paper presented at the Australian Lawyers Conference, Aspen, 5 January 1998, reproduced in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 55. Ibid. para. 5.4.

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The highly publicised O.J. Simpson trial in the United States is an example of some of the problems associated with technology in court rooms. Two separate real-time transcripts were used; one by the defence and one by the prosecution and Judge Ito. There was no centrally organised system and as a result defence and prosecution were sometimes referring to different page numbers for the same evidence. There were three evidence presentation systems. The jury had to deal with exhibits in three different formats. Not only was this confusing for the lawyers and the judge, but it almost certainly made the job of the jury even more complicated than it already was. This experience underlines the need for planning of Court technology to come from the Court system rather than from the participants. A single common system must be used.407

3 Televising of Federal Parliament Though not as directly influential as the broadcast of parliamentary proceedings in Britain,408 the Australian Federal Parliament’s experiences with televising have nevertheless been instructive for courts contemplating admitting television cameras. While the proceedings and persons participating in parliamentary proceedings are clearly distinguishable from those in courts, Parliament’s experience with broadcasting is reassuring and informative in that it has revealed television cameras to be unobtrusive and their presence to be soon forgotten; it has established the educative and informative benefits of electronic media coverage; provided guidance on dealing with concerns, common to the broadcasting of parliamentary and judicial proceedings, and demonstrated the appropriateness and benefits of an incremental introduction. While Australians have listened to radio broadcasts of the proceedings of the Federal Parliament since 1948, television broadcasts were introduced incrementally between 1974 and 1991. Beginning with an amendment to the Parliamentary Proceedings Broadcasting Act 1946 in order to permit the visual recording without sound of the historic joint sitting of both Houses in 1974, and culminating in live broadcasts and rebroadcasts of the proceedings of the Federal Parliament authorised for 407

408

Wood, above n. 405, at paras. 7.1–2; Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 55. For the Commission’s Final Report, see Royal Commission into the NSW Police Service Final Report, www.pic.nsw.gov.au/Reports_List.asp?type=Royal at 10 April 2007. See above chapter 2 D.

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a trial period by the House of Representatives from 12 February 1991 and by the Senate from 21 August 1990. The House of Representatives Select Committee on Televising, appointed to inquire into the trial-televising of the House of Representatives, concluded that: there is sufficient evidence to indicate that the trial period of televising of proceedings has been successful in that it has increased an awareness of the Parliament and its people and its procedures. The Committee considers that the continuation of televised proceedings will assist the public to develop an even better knowledge and awareness of the work of the House of Representatives and the issues discussed here . . . The Committee recommends continuing the live broadcast and rebroadcasts of excerpts of House of Representatives proceedings.409

The Select Committee also reported that submissions from representatives of the media also suggested that the pilot programme of televising had improved media coverage of the national Parliament. Accepting the Select Committee’s recommendation that permanent televising be permitted, the House of Representatives appointed a Standing Committee. In its 1993 Report410 the House of Representatives Standing Committee on the Televising of the House of Representatives further reviewed the rules for televising. Since then, each Chamber has permitted television camera coverage under separate conditions.411 Presently, Parliament funds the Sound and Vision Office, which records footage of all proceedings, screened on monitors throughout Parliament House. Excerpts of this footage are used by the media in news reports. Extended coverage is provided by ABC Television, which broadcasts question time of both Houses, and by pay-TV provider Sky News, which also broadcasts the House of Representatives’ question time.

409

410

411

Ibid. [1.9.1–3]. House of Representatives Select Committee on Televising the House of Representatives, Parliament of Australia, The Eyes Have It!: Inquiry into the Televising of the House of Representatives and its Committees (1991), paras. 1.9.1–3. House of Representatives Standing Committee on the Televising of the House of Representatives, To See or Not to See – This is the Answer: Review of Arrangements for the Televising of the House of Representatives (1993). See House of Representatives Conditions for Broadcasters No. 1(2) and the Senate’s Broadcasting of Senate and Committee Proceedings Proposed Consolidated Orders No. 1(3)(3), reproduced in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 44.

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A number of the rules imposed on parliamentary broadcasting appear to address concerns not commonly addressed by most guidelines dealing with courtroom televising.412 Both Houses require that broadcasts be used ‘only for the purposes of fair and accurate reports of proceedings and not be used for political party advertising or election campaigns; satire or ridicule; and commercial sponsorship or commercial advertising’.413 The House of Representatives’ Guidelines for Camera Operators prohibit close-up shots of Members and of Members’ papers and splitscreen shots and permit coverage of the public galleries but only briefly and when the presence of distinguished guests is being acknowledged by the presiding officer. Reaction shots of a Member are only permitted when the Member has sought information being supplied, when referred to in debate and if the Member is in his or her designated seat.

4 Televising of the 1998 Constitutional Convention The televising of the 1998 Constitutional Convention was a particularly successful and instructive instance of proceedings of public interest being recorded and televised. As appointed host broadcaster of the Convention, ABC Productions was entrusted with recording the proceedings of the 1998 Constitutional Convention, held in the Old Parliament House in Canberra, and their relay to the New Parliament House where the feed would be broadcast on monitors, and made available to other broadcasters from the New Parliament and the International Media Centre in Sydney.414 In one of the largest projects undertaken by the broadcaster, ABC Television broadcast live coverage of morning, afternoon and some evening plenary sessions during the two weeks of the Convention. Other ABC Television coverage included late afternoon and evening Convention Updates and nightly analyses. ABC Radio also provided

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414

Though such restrictions have been recommended by some studies. See e.g., discussion of the Caplan Report in chapter 2 B. House of Representatives, Conditions for Broadcasters and Broadcasting of Senate and Committee Proceedings Proposed Consolidated Orders, reproduced in Stepniak, Electronic Media Coverage of Courts, above n. 2, Appendix 44. According to Mr Terry Brown, Coordinator, ABC Coverage of Constitutional Convention, a number of overseas media organisations, including the BBC and Canadian, New Zealand and Indian networks, had expressed interest in utilising the recording: telephone conversation with Terry Brown, Coordinator, ABC Coverage of Constitutional Convention, 2 February 1998.

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daily live coverage.415 In addition various other ABC programmes provided coverage of and commentary on the Convention. Radio Australia broadcast the opening session live and ‘rebroadcast the best of ABC domestic coverage’. Coverage was not confined to radio and television, as the ABC Internet website416 also provided live audio coverage. The Internet innovation allowed the ABC to provide a guide to the background issues and proceedings, and to permit interactive public involvement in online forums.417 According to ABC Online producer Ian Vale the specific aims of the site were to be a guide to the ABC’s coverage of the Convention; to provide educational resources for teachers; to provide interesting extra features and to be a discussion point.418 By the end of the first day of the Convention, ABC Television reported that its Con Con website had been contacted some 7,000 times, with the Australian Republican Movement’s web convention website receiving a similar number of hits. Underlining the significance of the broadcasting, prior to the Convention Prof. Cheryl Saunders suggested that ‘the convention’s impact on the public would depend very much on the television coverage it receives’. She had also remarked that: ‘It would be quite good if we could see it all on television. I don’t think that enough groundwork has been done on some of the issues to help people relate to the detail of the discussion.’419 On the final day of the Convention, the Chairman observed that without the media coverage ‘the public would have been inhibited in their participation’. With reference to the broadcasting he observed: I would like to commend the ABC. Your involvement in this event has been extraordinary. Your coverage has been excellent and what is even more amazing, so too has been your reporting. I think for that we should all be both thankful and grateful and commend them.420

415 416

417

418

419 420

Some of the coverage was simulcast. See Australian Broadcasting Corporation, Con Con (1998), www.abc.net.au/concon at 10 April 2007. For information on ABC coverage, see Australian Broadcasting Corporation, ABC Coverage (1998), www.abc.net.au/concon/bcast/default.htm at 10 April 2007. Diana Thorp, ‘Take the chance to learn your constitutional ABC’, The Australian (Brisbane), 30 January 1998, p. 6. D. D. McNicoll, ‘Conventional wisdom’, The Australian (Perth), 26 January 1998. The Rt Hon. Ian Sinclair, Constitutional Convention: Transcript of Proceedings (13 February 1998), at 995, www.aph.gov.au/hansard/conv/con1302.pdf at 10 April 2007.

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The broadcasting of the Constitutional Convention clearly served to inform, educate and involve the Australian public on constitutional issues421 to an unprecedented extent, and one that is difficult to imagine being achieved without visual footage.

5 Australian Broadcasting Authority, 1999 Commercial Radio Inquiry The prospects of routine courtroom televising received a significant boost from the broadcasting of the 1999 hearings of the Australian Broadcasting Authority (ABA)’s Commercial Radio Inquiry into the contract of high profile talkback Radio 2UE hosts Alan Jones and John Laws. In mid-1999 the ABA received applications from a number of free to air and pay-TV networks seeking to broadcast the entire proceedings. The matter of televising was raised at directions hearings, and while the ABA Chairman, Prof. David Flint, appeared to be favourably disposed towards such coverage, broadcasting was opposed by counsel for the defendants and by Julian Burnside QC, counsel assisting the Authority. At the 12 October 1999 directions hearing, the Chairman summed up the basis of the objections to the broadcasting of the ABA hearings as relating to: ‘potential for intimidation . . . inducement to Thespianism, the control of confidential and irrelevant material, and the need for reporting to be fair and balanced’. He dismissed the first three objections, noting: Frankly, I doubt that discreetly placed cameras have an intimidating affect on witnesses, particularly in an age where video recording is commonplace. And it seemed that if we allowed for an appropriate delay and arranged for adequate control to ensure that confidential and irrelevant material did not escape, that would be sufficient. As to Thespianism, I would have thought that the combined effect of the Bar and the presiding member would be sufficient to curb any excesses.422

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For example, the very large number of Constitutional Convention related letters written to newspaper editors suggests a level of public interest in constitutional issues not commonly attributed to the Australian public. Note also comments of Convention Chairman, Constitutional Convention: Transcript of Proceedings (13 February 1998), above n. 420, at p. 994. Extract of transcript of hearing regarding televising of proceedings, 12 October 1999, in Australian Broadcasting Authority, News Release 13 October: Further Directions in 2UE Hearing (1999), www.aba.gov.au/newspubs/news_releases/archive/1999.shtml at 10 April 2007.

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On the need for reporting to be fair and balanced, he distinguished televising from public attendance, which provides opportunity to hear balanced testimony, earlier testimony often being balanced by further examination. In this respect the Authority found ‘that the broadcasts of short extracts which might be deemed newsworthy without context and without any balancing testimony could be potentially unfair to witnesses, at times extremely unfair and prejudicial’. The Chairman observed, however, that ‘a delayed, uninterrupted and continuous transmission with a proscription against the re-broadcast of extracts . . . would have . . . scope for the development of a fair analogy with the public access which we already allow in the court room’. Fear of prejudice flowing from the broadcast of the opening address also led the Authority to direct that it not be broadcast. The question of televising the closing addresses was left open.423 The Media Rules for Public Hearing announced on 13 October 1999 were posted on the Authority’s website. Under these rules broadcasters’ coverage of the Inquiry was largely confined to an establishing shot, permitted prior to the commencement of hearings. Reporting was assisted by closed circuit camera recording and transmission to adjoining areas and the media room, and the prompt online posting of transcripts. Reporters were permitted to tape record proceedings to aid the accuracy of reporting but not for the purposes of broadcast.424 The ABA also received an application to film the closing addresses by counsel, undertaking to do so under specified conditions including that ‘all footage would be shot on a pool basis and [made] available to all media outlets covering the hearing on an equal access basis’.425 This application was approved and permission was granted for ABC cameras to record pool footage of the closing submissions. Sky News broadcast live coverage on three days, taking a feed from the Four Corners cameras.426 According to the Authority, with access to Inquiry footage made available, media reports ended up employing roughly equal amounts of footage from inside and outside of the hearing 423 424

425

426

Ibid. See Commercial Radio Inquiry, ‘Media Rules for Public Hearing’ in ABA, News Release 13, above n. 422. Faxed memorandum from Four Corners, ABC to General Counsel, ABA titled ‘Filming Closing Addresses in the Hearing regarding 2 UE’, John Laws and Alan Jones, 11 November 1999. Telephone conversation with Donald Robertson, Australian Broadcasting Authority Manager of Media and Public Relations, 16 December 1999.

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room.427 The CEO of Sky News Australia suggested that had permission been granted for the five weeks of hearings to be broadcast, it could have become a ‘CNN’s war’-like non-stop coverage. He no doubt based this assessment on Sky News recording unprecedented levels of coverage in its simultaneous coverage of the ABA hearings and the Glenbrook train disaster on 4 December 1999.428 A media commentator lamented that lawyers’ fears for the damage to their clients’ reputations prevented the entire five weeks being made available to the public via television.429 The audio-visual recording of this Inquiry by the ABA and its broadcast by television networks clearly demonstrated technology capable of recording proceedings without unduly disrupting proceedings or distracting participants, and public interest in viewing such proceedings. It also revealed opposition to such coverage to be motivated by a desire to prevent the wider public from seeing and hearing damaging allegations and testimony, such first-hand observation being likely to have a much greater impact than second-hand media reports of such evidence. This observation suggests that requiring the consent of all parties as a precondition to televising may not necessarily be conducive to ensuring that justice is seen to be done.430

6 Western Australian Industrial Relations Commission The viability of courts streaming their own proceedings was demonstrated by the Western Australian Industrial Relations Commission, which in May and June 2006 streamed the hearings and decision in its 2006 General Order Wage case.431 The streaming, which utilised audiovisual technology installed in an increasing number of Australian courts, was deemed a success and will no doubt be considered by Australian judges as they evaluate options for the dissemination of audio-visual coverage of court proceedings.

427 428

429 430

431

Ibid. Tony Ritchie, CEO of Sky News Australia cited in Mark Day, ‘Courting the public’, The Australian (Perth), 9 December 1999, Media p. 13. Day, ‘Courting the public’, above n. 428. The Authority delivered its findings on 7 February 2000. See Australian Broadcasting Authority, News Release: 7 February 2000 ABA Decides to Impose License Conditions on 2UE Sydney (2000), www.aba.gov.au/newspubs/news_releases/archive/2000/ 7nr2000.shtml at 10 April 2007. For an analysis of the Inquiry see Amanda Meade, ‘Where the bucks stop’, The Australian (Perth), 2 December 1999. See www.wairc.wa.gov.au/Pages/WageCase/2006WageCaseStream.aspx at 10 April 2007.

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G What do Australian experiences with televising reveal? 1 Potential dangers can be avoided Australian courts’ experiences with in-court televising have to date not been subject to formal evaluation. However, as the more detailed analysis of the experiences set out in chapter 7 reveals, informal assessment and the studies which have been undertaken present an encouraging picture and suggest that appropriate regulation and cooperation between courts and the media can lead to coverage which avoids the potential dangers and results in the broadcast of footage presenting an accurate and informative view of judicial proceedings.

2 Crucial role played by courts This chapter’s outline of Australian experiences has highlighted the crucial role played by Australian judges. Undoubtedly, Australia’s experimentation with televising has been driven by several influential judges, including the Federal Court’s Chief Justice Michael Black, South Australian Chief Justice John Doyle and Western Australian Chief Justice David Malcolm. The commitment of these and other Australian judges has enabled Courts Information Officers and other court administrators to engage in innovative projects and to work closely with the media, to facilitate and enhance media reporting of and public access to information and recordings of proceedings. A number of Australian judges have also played and continue to play an invaluable role in advancing the debate through their analysis and commentary. Perhaps most notable has been the input of High Court Justice Michael Kirby, New South Wales Chief Justice Spigelman and Federal Court Justice Robert D. Nicholson. The embracement of new information and communication technology by Australian courts has arguably played a central role in Australia’s debate of and experiences with the televising of court proceedings. As Anne Wallace suggests, the ‘major impetus’ for Australian courts’ utilisation of technology: came from two largely unrelated developments in the 1980s. The first was the aftermath of the corporate collapses of that period and the need to manage voluminous documentation associated with ensuing complex white-collar crime investigations and trials. That saw the development of complex litigation support and presentation packages to be used in

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sophisticated electronic courtrooms. The second was the recognition of the need to provide a means to take evidence from vulnerable witnesses at a location removed from the physical environment of the courtroom. It resulted in the use of video-conferencing technology to provide audio and visual links between courtrooms and other locations.432

Over the past two decades, Australian courts’ utilisation of technology has mushroomed to encompass virtually all stages and aspects of the judicial process.433 Its increasing use in the presentation of evidence and legal argument in courtrooms has been recognised and further assisted by the provision of appropriate technical facilities in Australian courtrooms, leading to the advent of high-tech courtrooms. By the late 1990s, each of Australia’s courts had ‘at least one electronic courtroom for long and complex trials’.434 Such courts have subsequently become even more common. During the 1990s information and communications technology also came to be employed to assist public understanding and access to court proceedings. The impetus for Australian courts’ use of technology for this purpose flowed in part from public inquiries into access to justice in Australia,435 and elsewhere,436 which led to the reform of the judiciary 432

433

434

435

436

Anne Wallace, ‘Technology and the Judiciary: the Use of Technology in the Criminal Trial Process’, paper presented at the Fourth Outlook Symposium on Crime in Australia, New Crimes or Responses, convened by the Australian Institute of Criminology, Canberra, 21–22 June 2001, at 2. See also the Hon. Justice Robert D. Nicholson, ‘The Paperless Court? Technology and the Courts in the Region’ (2002) 12(2) Journal of Judicial Administration 63, 77. For an outline of the manner in which technology has been employed in Australian courts, from pre-trial to the publication of court decisions, see Wallace, ‘Technology and the Judiciary’, above n. 432; Ros Macdonald and Anne Wallace, ‘Review of the Extent of Courtroom Technology in Australia’ (2004) 12 William and Mary Bill of Rights Journal 649. See also the outline of developments set out in Nicholson, ‘The Paperless Court?’, above n. 432. See Wallace, ‘Technology and the Judiciary’, above n. 432, at 5; citing other sources, which also outline the technical systems employed in such courtrooms. See also Nicholson, ‘The Paperless Court?’, above n. 432. Access to Justice Advisory Committee, Access to Justice, above n. 2. See generally the Hon. Justice Ronald Sackville, ‘Access to Justice: the Way Forward’, keynote address at Australian Institute of Judicial Administration Annual Conference, Brisbane, 13 July 2002), www.aija.org.au/ac02/Sackville.rtf at 11 April 2007. See Lord Woolf, Department for Constitutional Affairs, Access to Justice: Final Report (1996), www.dca.gov.uk/civil/final/index.htm at 11 April 2007; Lord Chancellor, Department for Constitutional Affairs, Resolving and Avoiding Disputes in the Information Age (1998), www.dca.gov.uk/consult/ itstrat/civindex.htm at 11 April 2007.

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and to a greater focus on public access, efficiency and transparency. It was also motivated by judicial recognition of low levels of public confidence in the judiciary and similarly low levels of public understanding of the role of courts and of judicial processes, which surveys of the public’s perception of the judicial process revealed.437 Reflecting similar findings in other common law countries,438 such studies also revealed a significant discrepancy between public perceptions of courts and the courts’ perceptions of their own performance.439 Such recognition led to calls for courts to take an active role in promoting or facilitating public education and awareness. Thus, in his 1998 Australian Institute of Judicial Administration study440 Stephen Parker recommended that: [t]he court system needs to think about proactive ways of educating the public about the role, function and activities of Australian courts. It seems that there is considerable public receptiveness to attempts to convey accurately what courts do and why they do it.441

The above outline of Australian experiences reveals that this desire to enhance public understanding motivated prominent Australian judges, such as South Australia’s Chief Justice Doyle, Western Australia’s Chief Justice Malcolm and the Federal Court’s Chief Justice Black, to use

437

438

439

440 441

See e.g., Stephen Parker, Courts and the Public (1998); Grace Meertens, ‘Survey finds public unhappy with courts’, West Australian (Perth), 5 September 1998, p. 39; Marketshare Market Report, Community and Client Perceptions of the Queensland Court System (1991). Public Attitudes Surveys Ltd, National Survey of Court Users 1994: Executive Report (1994); Marlene Winfield, Seeking Civil Justice: a Survey of People’s Needs and Experiences (1995); S. Wain, ‘Public Perceptions of the Civil Justice System’ in Ontario Law Reform Commission, Rethinking Civil Justice: Research Studies for the Civil Justice Review (1996). For a comparative analysis, see Patricia Knaggs, The Provision of Services for Court Customers in Australia, Canada and the United Kingdom: A Literature Review and Annotated Bibliography (1996). For example, David Rottman and Alan Tomkins concluded their analysis of the National Center for State Courts 1999 National Survey (National Center for State Courts, How the Public Views the State Courts: A National Survey (1999), www. ncsconline.org/WC/Publications/Res_AmtPTC_PublicViewCrtsPub.pdf at 11 April 2007) with the observation that ‘the general public and the judiciary hold views of the courts so divergent as almost to be mirror images’. David B. Rottman and Alan J. Tomkins, Public Trust and Confidence in the Courts: What Public Opinion Surveys Mean to Judges (1999) Court Rev. 24, 31, www.ncsconline.org/WC/ Publications/Res_AmtPTC_SurveysMeanToJudgesPub.pdf at 11 April 2007. Stephen Parker, Courts and the Public (1998). Ibid. p. 163.

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courtroom technology and to harness media reporting to promote public access and understanding. Seeking to address the recognised lack of public confidence, the courts began to forge cooperative relationships with the media and to assist the media by providing ready access to court decisions in an accessible and usable form and training and information regarding court processes and regulation of court reporting. In so doing, Australian courts have also recognised the public’s reliance on television as a source of public information about court proceedings and have taken steps to encourage and enhance television coverage of proceedings. While courts had assisted media reporting in cases generating great public and media interest by providing video links to media rooms, they also came to employ courtroom technology and the Internet to provide both the media and the public with speedy access to transcripts, summaries of judgments, sentencing remarks and other information regarding the role of courts, court proceedings and legal restraints on court reporting. A number of Australian courts and Inquiries have used audio-visual streaming technology to publish judgments and sentencing remarks on their websites.442 Several Australian courts, including the High Court and the Tasmanian Supreme Court, are currently considering doing so. It has been said that what distinguishes Australian courts’ use of the Internet from that of their overseas counterparts is that: [w]hile in some overseas jurisdictions technology has been embraced to the extent that the Internet has become a primary means of dispute resolution, in Australia the approach has been to adapt the use of technology in ways that extend or supplement the physical courtroom rather than replace them.443

442

443

See e.g., Federal Court of Australia, Video Archives of Summary Judgments (1996–2004) www.fedcourt.gov.au/judgments/video_jdg.html at 11 April 2007; see also the transcripts posted on the New South Wales Land and Environment Court, E-court, www.lawlink.nsw.gov.au/lawlink/lec/11_lec.nsf/pages/LEC_ecourt at 11 April 2007; South Australian Courts Administration Authority, www.courts.sa.gov.au/ as at 11 April 2007; and Tasmanian Supreme Courts, www.courts.tas.gov.au/supreme/ index.html as at 11 April 2007. Transcripts were also posted online by the Longford Royal Commission. Sheryl Jackson and Ros Macdonald, ‘Using the Internet to Assist Court Processes’ (2004–5) 85 Reform 38, 41.

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3 Lack of media interest and lingering judicial distrust of the media While the above discussed factors may partially explain why the judiciary has played a leading role in Australia’s experiences with televising courts, the utilisation of courtroom technology may also be said to have been motivated by the judiciary’s lingering distrust of the media and the media’s lack of interest in providing in-depth reporting of court proceedings. In opening their doors to television cameras, Australian courts have become aware of the limited extent to which television networks are interested in and able to provide public access to recordings of court proceedings. Having grown accustomed to using audio-visual recordings in their proceedings, Australian courts have experimented with the recording and streaming of their own proceedings and appear to be on the brink of further facilitating and supplementing media reporting by systematically streaming or otherwise arranging the extended broadcast of their proceedings. In considering and experimenting with such an initiative, Australian courts have recognised its potential to overcome lingering concerns regarding the media’s potential breach of recording guidelines, and the distortion or misrepresentation of proceedings through editing and accompanying commentary.

4 Impact of new technologies on regulation of media reporting That Australian court initiatives have not led to a more widespread streaming of courtroom recordings on the Internet may be partly attributed to continuing judicial disagreement over whether or not courts should confine their accountability to the provision of detailed reasons for their decisions. However, arguably, it is increasingly attributable to concerns that public access facilitated by technology may be disturbing the balance between the principles of open justice and fair trial, by undermining some of the assumptions on which the regulation of courtroom publicity is based, including what Chief Justice Spigelman describes as ‘practical obscurity’.444

444

The Hon. Justice Spigelman AC, ‘Open Justice and the Internet’, address at The Law via the Internet 2003 Conference, Sydney, 28 November 2003, www.lawlink. nsw.gov.au/lawlink/supreme_court/11_sc.nsf/pages/SCO_speech_spigelman_281103 at 11 April 2007.

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While the courts of New South Wales make extensive use of technology to aid public access to the courts and the efficiency of the judicial process,445 Chief Justice Spigelman has expressed the concern that ‘[d]evelopments in technology pose new challenges to the ability to ensure a fair trial’.446 While accepting that electronic access has served to enhance ‘the opportunity of access by the general public’, Justice Spigelman suggests that even though the principle of open justice is unquestionably an important principle, it has always been accepted that it ‘can operate unfairly in some specific circumstances’.447 Consequently, he argues that, ‘exceptions to the right of access to legal information have long been acknowledged’,448 and further exceptions, such as restrictions imposed on the identification of victims of sexual assault and juveniles accused of criminal offences, have been enacted by legislation. The balance between publicity and the right to a fair trial, secured by these restrictions, the Chief Justice argues, is being undermined by electronic access, for example, in that ‘[t]he identification of a person’s criminal past or involvement in litigation of any character was not readily ascertainable [in the ‘‘practical obscurity’’ envisaged by the principle of open justice]. It is now.’449 In particular the Chief Justice has expressed a concern at the impact on jury trials of prejudicial material readily available on the Internet: By reason of on-line access and the efficiency of contemporary search engines, access to prior convictions and other information about the conduct of individual accuseds or witnesses has been transformed. The assumption that adverse pre-trial publicity will lose its impact on a jury with the passage of time may no longer be valid. Changes of venue may no longer work in the way they once did. In a number of proceedings, which will only grow, the ease of access to adverse information has arisen in applications for the discharge of a jury or in the context of an appeal against conviction and also in contempt proceedings.450

445

446

447 450

See Bob Debus, ‘Technology in the Courts’ (March 2001) Law Society Journal 67; Justice Clifford Einstein, Technology in the Courtroom – 2001 – [Friend or Foe?] (2001), Lawlink New South Wales, www.lawlink.nsw.gov.au/lawlink/supreme_court/ 11_sc.nsf/pages/SCO_speech_einstein_201101 at 11 April 2007. This particular remark secured headlines in the Australian press. See e.g., Louise Milligan, ‘Top judge says electronic age risks right to fair trial’, Weekend Australian (Perth), 29–30 November 2003, p. 7. Ibid. 448 Ibid. 449 Ibid. Spigelman, ‘Open Justice and the Internet’, above n. 444.

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The extent to which communications technology and in particular the Internet has undermined assumptions underlying the regulation of courtroom publicity through sub judice laws and the ability of courts to effectively employ and enforce preventative and remedial measures has also recently been examined by the New South Wales Law Reform Commission451 and in an empirical study examining the impact of media publicity on jury trials in Sydney.452 Reliance on access through technology has also raised concerns relating to privacy453 and equity of access. This has led Justice Kirby to observe: Not only should judges be alert to the potential of technology to enhance throughput, monitor log jams and reduce inefficiencies. They also need to be aware that, unlike hospitals, courts are not dealing mainly with objective phenomena. They are commonly dealing with issues of fairness, justice and ethics. They are judged not only by what they do but how they do it.454

The Australian Law Reform Commission has also urged that care be taken to ensure that courts’ utilisation of technology is not at the 451

452

453

454

NSW Law Reform Commission, Contempt by Publication, Discussion Paper No. 43 (2000), www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43toc at 11 April 2007; NSW Law Reform Commission, Contempt by Publication, Report No. 100, above n. 5. For an analysis of the findings and recommendations of the Commission’s Report, see Aniano Luzung, ‘Contempt by Publication’ (2004–5) 85 Reform 27. See Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 5 for a discussion of the effects of technology. For a discussion of two recent New South Wales cases illustrating the difficulties associated with preventing jurors from being influenced by prejudicial media (press and Internet) publicity, see Michael Chesterman, ‘Criminal Trial Juries and Media Reporting’ (2004–5) 85 Reform 23. For privacy concerns relating to Internet access to court documents, see Chris Puplick, NSW Privacy Commissioner, ‘Open Justice: Cui Bono?’, address to the Third Australian Institute of Judicial Administration Technology for Justice Conference, 22 October 2002, www.aija.org.au/tech3/program/presentations/AIJA.doc at 11 April 2007; Jackson and Macdonald, ‘Using the Internet to Assist Court Processes’ above n. 443, at 39. For an outline of the potential of new technologies and a discussion of issues such as the conflict between access and privacy, see Allison Stanfield, ‘Cyber Courts: Using the Internet to Assist Court Processes’ (1997) 8 J Law and Information Science 241. See also Daniel Stepniak, ‘Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions’ (2004) 12 William and Mary Bill of Rights Journal 791; Nicholson, ‘The Paperless Court?’, above n. 432, at 78–80. The Hon. Justice Kirby, ‘The Future of Courts: Do They Have One?’ (1998) 1(2) Journal of Information Sciences 141, 146 cited in Nicholson, ‘The Paperless Court?’, above n. 432, at 80.

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expense of those who lack the access or skills to use the technology, suggesting that ‘advances in information technology could create a class of people who are ‘‘information poor’’ as opposed to ‘‘information wealthy’’’.455 While promoting recognition of the pending need to reconsider the principles and methods by which ‘open justice’ and ‘fair trial’ are balanced, technology also provides the means to redress the imbalance it has caused. Thus, for example, where jury access to prejudicial publicity on the Internet leads to retrials, video recordings of the testimony of vulnerable witnesses, by making it unnecessary to testify again, may provide a means of avoiding injustice for victims of crime.456 Chief Justice Spigelman has also alluded to technology’s potential to: inhibit access in some manner, e.g. by the use of abbreviations or pseudonyms for a certain period of time, to allow time for appeal. There may be an electronic equivalent to the spent convictions regime, so that records of conviction are no longer accessible electronically after a certain period of time has elapsed.457

5 Potential benefits of new technologies While Australian experiences have established that technology provides a means for enhancing access to information regarding court proceedings for those unable to attend proceedings, technology may also be said to provide a means of redressing the lack of openness in the administration of justice, resulting from practices and reforms introduced in the interest of efficiency, or which have traditionally resisted public transparency.458 455

456

457 458

Australian Law Reform Commission, Technology: What it Means for Federal Dispute Resolution, Issues Paper 23 (1998), para. 5.30, www.austlii.edu.au/au/other/ alrc/publications/issues/23/ALRCIP23.html at 11 April 2007. See discussion of the NSW Law Society suggestion regarding the videotaping of victim testimony in sexual assault cases, following the quashing of rape convictions in the Skaf case (Regina v. Bilal Skaf, Regina v. Mohammed Skaf [2004] NSWCCA 37 (6 May 2004)) in Bernard Lane, ‘Call to videotape rape case evidence’, Weekend Australian (Perth), 5–6 February 2005, p. 5. See also Anne Wallace, ‘The Challenge of Information Technology in Australian Courts’ (1999) 9 Journal of Judicial Administration 8, 15 (citing Australian Law Reform Commission, Technology: What it Means for Federal Dispute Resolution, Issues Paper 23 (1998), para. 5.30, www.austlii.edu.au/au/other/ alrc/publications/issues/23/ALRCIP23.html at 11 April 2007). Spigelman, ‘Open Justice and the Internet’, above n. 444. See further discussion in Daniel Stepniak, ‘Court TV: Coming to an Internet Browser Near You’ (2006) 15 Journal of Judicial Administration 218.

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In seeking to minimise the need for time-consuming and expensive court appearances, courts have utilised technology to enable the conduct of proceedings by telephone or online. Thus, Sally Walker notes that the Administrative Appeals Tribunal has heard some cases by telephone and suggests that ‘[i]f this becomes common practice it will be necessary to resolve whether and if so how the public, including representatives of the media, should have access to the proceedings’.459 The Federal Court’s e-court initiative, which began in February 2001, was intended to enable parties ‘to participate in an electronic hearing which will replicate the usual manner in which Court hearings are conducted but without the constraints of the requirement that all of the parties (as well as the Judge) be in the courtroom at the one time’.460 With courts operating online, and the possibility of online juries being mooted,461 open justice would require that the public also be provided with access. Technology and in particular the publication of audio-visual recordings of court proceedings may also serve to redress the lack of openness inherent in proceedings in which the proceedings revolve around written testimony and legal submissions. Deeming paper trials as unsuitable for televising, in that the viewer would experience great difficulty in following proceedings in which the bulk of testimony is tendered in documents rather than being presented in person, is tantamount to conceding that such proceedings are not subject to public scrutiny, as members of the public who attend such proceedings would experience the same difficulties as viewers of broadcasts. Public access to and scrutiny of court proceedings is clearly inadequate if it is dependent on media organisations seeking access to and reporting on tendered court documents. Rather than denying access to proceedings, the witnessing of which may be less 459

460

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Walker, Media Law Commentary and Materials, above n. 5, at p. 439, citing the Australian Law Reform Commission, Contempt: Disruption, Disobedience and Deliberate Interference, Discussion Paper 27 (1986), para. 14. Public notice issued by Warwick Soden, Registrar and Chief Executive, Federal Court of Australia, E-Court, 14 February 2001, para. 9. See e-court webpage at www.fedcourt.gov.au/ecourt/ecourt_slide.html at 11 April 2007. Tony Sutherland, ‘The Internet and Beyond: A New Order for Justice?’, paper presented at the AIJA Technology for Justice Conference, Melbourne, 9 October 2000, www.aija.org.au/tech2/present.htm#sutherland at 11 April 2007, cited in Wallace, ‘Technology and the Judiciary’, above n. 432, at 8. For further reading, see Justice L. T. Olsson and Ian Rhode, ‘Coming Ready or Not: Courts and Information Technology’ (1997) 71 Reform 10; Frederic I. Lederer, ‘The Courtroom as a Stop on the Information Superhighway’ (1997) 71 Reform 4; Daniel Stepniak, ‘The Broadcast of Court Proceedings in the Internet Age: The Role of Courts’ (2004) 85 Reform 33.

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than comprehensible to the public, as, for example, Justice Sandra O’Connor has suggested with respect to appeal hearings before the US Supreme Court,462 audio-visual communication technology should be employed to make such proceedings more transparent. To some extent this is already being done in trials, where documents previously unseen by those observing proceedings are now projected on video screens. Courts committed to facilitating public understanding and access have also revealed themselves willing to alter procedures by, for example, reading or providing summaries of judgments and otherwise exhibiting an awareness of whether court proceedings are intelligible to observing members of the public.463 Some Australian judges acknowledge public galleries by pausing proceedings to briefly explain the issues and stage of proceedings. Available technology has the potential to permit courts to offer similar assistance to the public at large.464 Most Australian courts have come to view court reporting as an element of open justice capable of being assisted by the courts’ use of technology. In view of courts’ capacity to stream recordings of proceedings, televising is increasingly seen as a use of information technology to provide information about proceedings. The main benefit of such an approach is that it makes possible a coordinated and complimentary treatment of the courts’ use of technology, enhancing the access of courtroom participants and those in the public gallery as well as the media and members of the public outside the courtroom, while facilitating and protecting the interests of a fair trial and the administration of justice.465 462

463 464 465

See ABC, This Week, 6 July 2003, for an interview with Justice Sandra Day O’Connor. Further discussed above chapter 3 F.6. See also discussion of the House of Lords Pinochet hearings, above chapter II(H)(2). See Stepniak, ‘The Broadcast of Court Proceedings in the Internet Age’, above n. 461. See Stepniak, ‘Technology and Public Access to Audio-Visual Coverage’, above n. 453.

6 New Zealand

A Introduction Though news media reports of court proceedings in New Zealand routinely utilise photographs and audio-visual recordings of proceedings, such coverage of courts is a relatively recent phenomenon. The reporting of court proceedings in New Zealand is governed by the common law principle of open justice, as qualified and codified by the law of contempt and various statutory1 restrictions on courtroom publicity and rights enshrined by the New Zealand Bill of Rights Act 1990. It is ultimately regulated by judges’ inherent jurisdiction to constrain reporting where the administration of justice so requires. Though not expressly prohibited by statute or the common law, prior to 1995 audio-visual reporting of court proceedings had not, with few exceptions,2 been permitted by New Zealand’s judges, who in exercising the discretionary power of their inherent jurisdiction to regulate court 1

2

For example, Criminal Justice Act 1985, ss. 138, 139 and 140. Section 138 reiterates the applicability of the principle of open justice to criminal proceedings, noting in (i) that ‘every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public’ but goes on to list orders forbidding or restricting publication or reporting courts may make ‘(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require.’ See ‘Report of the Working Party on Televising Court Proceedings, February 1993’ in Daniel Stepniak, Electronic Media Coverage of Courts: A Report for the Federal Court of Australia (1998) Appendix 2, pp. 1–2. Other statutory restrictions on publication include Criminal Justice Act 1985, s. 139, relating to sexual offences and Children, Young Persons and their Families Act 1989, s. 438(1), relating to Family Court proceedings, prohibited without the leave of the court. See also discussion of restrictions imposed by the law of contempt of court in J. Burrows, ‘Media Law’ [2002] New Zealand Law Review 238. Writing in late 1994, Austin Forbes, then President of the New Zealand Law Society observed that ‘There have, of course, been occasions in recent times where permission has been given by the presiding judge to allow the televising of parts of court proceedings’. Austin Forbes, ‘Pilot Project for Televising Courtroom Proceedings Proposed’ (1994) 423 Lawtalk 6. Some of these are discussed below.

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proceedings were said to have taken ‘the unwritten view that cameras were an unwelcome intrusion to the sanctity of the courtroom’.3 A three-year pilot project with television coverage (later extended to encompass press photography and radio) was undertaken in four courts4 between 1 February 1995 and 31 January 1998. The favourable findings of the evaluation of this experiment led to the rules governing the experiment being made permanent and extended to other New Zealand courts in 1999. Guidelines governing the ‘expanded media coverage’ were subsequently revised and relaxed in 2000 and 2003.5 This chapter considers some aspects of New Zealand’s experiences with televising of court proceedings. The focus of analysis is largely confined to identifying why New Zealand undertook its experiment with extended media coverage, and the role that key members of the judiciary and New Zealand’s Bill of Rights Act 1990 played in this decision. It also identifies unique and informative aspects of New Zealand’s experiment and experiences, and briefly notes key findings of evaluations and studies.

B Decision to undertake an experiment 1 Introduction A consideration of the developments which led to the undertaking of the pilot programme in 1995 facilitates the identification and analysis 3

4

5

Paul Murray, Electronic Media Coverage of Courts and the Role of Counsel: A Survey of the Possible Impacts (unpublished LLB Honours dissertation, University of Auckland, January 2003), p. 13. The High Court in Auckland, Wellington and Christchurch and the District Court in Auckland. The Judicature Act 1908 grants the High Court the jurisdiction and responsibility to administer justice throughout New Zealand. The High Court consists of the Chief Justice of New Zealand, and over fifty other judges, including judges of New Zealand’s highest courts, the Supreme Court and the Court of Appeal. (The Supreme Court is New Zealand’s ultimate court of appeal since 1 January 2004, following the abolition of appeals from New Zealand to the Judicial Committee of the Privy Council in London. The Court of Appeal is New Zealand’s principal court of appeal, which inter alia hears proceedings in civil and criminal appeals from the High Court and from indictable criminal proceedings in the District Court.) The High Court has original jurisdictions in civil and criminal matters, dealing with the most serious criminal offences and civil cases, and hears appeals from lower courts such as the District Court. The High Court is located in Auckland, Wellington and Christchurch but travels on circuit to fourteen other locations. The District Court sits in over sixty locations and deals with minor criminal and civil matters. See New Zealand Ministry of Justice, The In-Court Media Coverage Guidelines 2003 (2004) www.courts.govt.nz/media/ at 17 April 2007; see below for a further discussion.

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of the legal and social factors that ultimately led to the current audiovisual coverage, which far exceeds and contrasts with coverage permitted in Canada, the United Kingdom and Australia. It also provides explanations for why New Zealand moved to trial the televising of court proceedings in spite of significant opposition from the press and the legal profession and at a time when, largely due to negative perceptions and reactions to the O. J. Simpson case, enthusiasm for audio-visual coverage had cooled in other common law countries and even in the United States where the Judicial Conference of the Unites States discontinued its experimental televising of federal court proceedings.

2 Courts Consultative Committee’s Working Party on Televising Court Proceedings (a) The Working Party’s study In December 1991, the Courts Consultative Committee of New Zealand6 set up a subcommittee working party on Televising Court Proceedings.7 The working party consisted of a district court judge, a representative of the legal profession, a member representing the public and two departmental officers, and was chaired by Sir Ivor Richardson, a Judge of the New Zealand Court of Appeal. The terms of reference asked the working party ‘to prepare a proposal for a pilot project on televising court proceedings and to develop draft guidelines regarding the taking of still photographs and making sound recordings by the media of court proceedings’.8 6

7

8

The Courts Consultative Committee was described by C. J. Eichelbaum as, ‘a forum for judges, lawyers and administrators. It is chaired by the Chief Justice and comprises representatives of all levels of the judiciary, the President and another representative of the New Zealand Law Society, the NZ Bar Association, the Solicitor-General, two lay persons representing the public interest, and senior officials of the Department for Courts. It meets six times a year and reports annually to the Minister of Justice.’ Sir Thomas Eichelbaum, Report, Televising Court Proceedings: the New Zealand Experiment (21 September 1995). Sir Ivor Richardson has noted that it is a body which, ‘reports to the Minister of Justice and has general oversight of the administration of justice’. Sir Ivor Richardson, ‘The Courts and the Public’ (1995) New Zealand Law Journal 11, 15. New Zealand Courts Consultative Committee, Report of the Courts Consultative Committee for the Year Ending 31 December 1995 (1995), p. 8. ‘Report of the Working Party on Televising Court Proceedings, February 1993’, in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 2, p. 1.

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Over the subsequent three years, the working party reported to the Committee, which considered the issue on several occasions.9 Though remaining uncommitted on ‘the desirability in principle of allowing television coverage of court proceedings in NZ’,10 at its meeting on 20 November 1992 the Committee asked the working party to prepare a paper ‘which included arguments for and against televising court proceedings and including recommendations’.11

(b) The Working Party’s Report In its February 1993 Report12 the working party outlined its analysis of the New Zealand position and overseas experiences of courtroom televising, and identified and evaluated the traditional arguments for and against televising. The Report identified television cameras’ capacity ‘to make the principle of justice more of a reality’ by enhancing public access to court proceedings, and the ‘closely related argument relating to the educative value of showing court cases on television’ as principal arguments in favour of televising.13 The working party noted that the vast majority of the population gained their understanding of judicial proceedings ‘from newspaper and radio reports and television accounts by newsreaders or reports outside the courtroom’.14 The working party also noted arguments suggesting that extended reporting would more readily expose deficiencies in laws, hasten reform, ‘encourage everyone in the courtroom to take particular care in their work’ and prevent crimes through greater public awareness and the deterrent of public exposure.15 The ‘overriding argument against televising court proceedings’ was identified as being ‘that the presence of cameras would affect proceedings in a way that was antithetical to the defendant receiving a fair trial’.16 Other identified anti-televising arguments related to the prejudicial publicity of broadcasting images of a defendant who is ultimately acquitted, the alleged trivialising of court proceedings and lowering of the standing of courts, administrative inconvenience and physical disturbance.17 9

10

11

As reported in minutes and annual reports, see Sir Thomas Eichelbaum, ‘Televising Court Proceedings’ (1995) 428 Lawtalk 3. See ‘Report of the Working Party on Televising Court Proceedings, February 1993’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 2; the Hon. Justice Robert Chambers, ‘TV in Courtrooms: the New Zealand Experience’, paper presented at the Australian Supreme and Federal Courts Judges’ conference held in Auckland, 25–29 January 2004, at 1. Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 2. 15 Ibid. 16 Ibid. 17 Ibid. 4.

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The Report noted instances of ad hoc televising in Canada and Australia, Lord Hope’s relaxation of the common law prohibition on televising in Scotland and that jurisdiction’s development of guidelines to govern such coverage, and the recommendations of the Working Party of the Public Affairs Committee of the General Council of the Bar to permit experimental televising to be undertaken in England and Wales.18 It also noted the extensive and largely favourable experiences and studies of televising in the United States, and in particular the favourable reception of the pilot programme, then being undertaken, in US federal courts.19 In so doing, the Report urged caution in interpreting the finding of studies which accompanied the introduction of cameras into US state courts, observing that such were based on the perceptions and opinions of participants. While declaring the results of such studies to be ‘often confusing and contradictory’ the report found that ‘the overall response of the courts and the public has been favourable as judged from the continuing televising of court proceedings in the various jurisdictions’.20 The Report also briefly addressed two New Zealand issues: the limited televising permitted of parliamentary proceedings, and provisions in the New Zealand Bill of Rights Act 1990 guaranteeing freedom of expression and the right to a fair and public hearing.21

(c) The Working Party’s recommendations While declining to make a general recommendation, the working party recommended that: If the Courts Consultative Committee decides that in principle it might be in the public interest to open New Zealand courts to cameras, the working party is satisfied that it should be subject to stringent guidelines and that the final decision would be made only after a sufficient pilot project has been evaluated.22

18 19

20 21

22

Further discussed above chapter 2 B. ‘Report of the Working Party on Televising Court Proceedings, February 1993’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 2, pp. 4–5; further discussed above chapter 3 E.2(b). Ibid. p. 5. Bill of Rights Act 1990, ss. 14 and 25, subject to the limitations of s. 5: see text and discussion below. ‘Report of the Working Party on Televising Court Proceedings, February 1993’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, at para. 6.

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Noting that New Zealand judges ‘have an inherent jurisdiction to regulate the conduct of court proceedings over which they preside’23 the working party recommended that any rules developed to govern televising should only be ‘guidelines for the presiding judge to weigh in the exercise of that judge’s discretion’.24 The working party recommended that televising should be subject to the judge’s consent, but not subject to veto by parties or witnesses to proceedings.25 However, in view of privacy concerns flowing from television coverage the working party recommended that it would be ‘desirable at least at the project stage to allow a party or witness . . . to require that his or her identification be protected by face and voice distortion, or in other ways’.26 The working party also recommended that televising be prohibited in proceedings which are not heard in public, in preliminary hearings and in hearings concerning sexual crimes.27 Further, no visual coverage of jurors or members of the public present in court was to be permitted, and only one stationary video camera and one still camera were to be used at any time, with no additional lighting or flash equipment to be used. The cameras were to be attended by no more than two media representatives, with the equipment and at least one media representative required to be in place for the duration of any court session. The working party further recommended that restrictions be imposed on the use of materials recorded by television cameras. This entailed: confining such use to news programmes or articles unless otherwise specifically authorised by the presiding judge; requiring that news reports utilising such footage be required to comply with a minimum time requirement of at least two minutes duration, be free of editorial comment and that broadcasters be required to provide an accurate, impartial and balanced coverage.28 The three-year pilot programme which the working party recommended would involve the Court of Appeal and no more than two High Courts and two District Courts, and the Department of Justice would be requested to monitor and evaluate the project.29 On this basis the working party prepared draft rules to govern televising during the proposed pilot project.30

23 28

Ibid. para. 7. 24 Ibid. 25 Ibid. 26 Ibid. paras 7–8. Ibid. paras 8–9. 29 See ibid. para. 9. 30 See ibid.

27

Ibid. para. 8.

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(d) Reception and adoption of the Working Party’s recommendations Shortly after the working party had presented its report, the Courts Consultative Committee set up a Media Coverage of Court Proceedings Pilot Evaluation Committee to further address the issues and administer the recommended pilot project. The membership of this Committee comprised the Chief Justice of New Zealand, Sir Thomas Eichelbaum, Sir Ivor Richardson (by then elevated to the position of President of the Court of Appeal), the Chief Judge of the District Court and representatives of the Department of Justice, the police and the media. With only minor amendments, the Courts Consultative Committee adopted the working party’s rules as the Rules regulating Coverage by the Electronic Media of Court Proceedings,31 when, in October 1994, it decided to proceed with a pilot programme. The factors which led the Courts Consultative Committee to embrace the working party’s recommendations were outlined by Sir Thomas Eichelbaum,32 Sir Ivor Richardson33 and Austin Forbes,34 the President of the Law Society of New Zealand, who was one of two representatives of the legal profession on the Committee. It is clear that the Committee’s decision was based on its acceptance of the benefits flowing from the increased public access to and understanding of judicial proceedings, which it accepted would be likely to flow from courts being televised. Forbes noted that the Committee had viewed the introduction of parliamentary broadcasting ‘as another indication of the desirability of public institutions being accessible to all of the news media’.35 The Committee had found existing reporting of 31

32 33 34 35

Some reorganisation and the addition of rules requiring the media (rule 10) to respect and not infringe ‘the confidentiality of counsel’s papers and discussions with each other and with parties and witnesses’, and (rule 12) to ‘conduct themselves in manner consistent with the dignity and decorum of the courtroom’. See ‘Rules Regulating Coverage by the Electronic Media of Court Proceedings’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 3; Forbes, ‘Pilot Project for Televising Courtroom Proceedings Proposed’, above n. 2, at 7 (where they are incorrectly titled ‘Draft Rules’). Eichelbaum, ‘Televising Court Proceedings’, above n. 9, at 3. Richardson, ‘The Courts and the Public’, above n. 6, at 15–16. Forbes, ‘Pilot Project for Televising Courtroom Proceedings Proposed’, above n. 2, at 6–7. See ibid. 6, where Forbes noted that the introduction of parliamentary broadcasting had been ‘seen by the CCC as another indication of the desirability of public institutions being accessible to all of the news media’.

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court proceedings unsatisfactory in two respects. First, as a matter of principle the Committee concluded that it was difficult to justify denying the television medium access afforded to the press. In this respect Sir Ivor Richardson noted that the Ontario Court of Appeal in R v. Squires36 had ruled that a prohibition on in-court cameras constituted a prima facie violation of freedom of expression rights under the Charter of Rights and Freedoms.37 Secondly, the Committee deemed existing television coverage unsatisfactory in that it was confined to ‘[s]howing participants scurrying in and out of court buildings’ and ‘fictional dramas’, and consequently presented a ‘distorted view of court proceedings’.38 Allowing cameras into courts, the Committee hoped, would not only enhance public understanding but also serve to remove the need for the ‘media scrums’ on the steps of courtrooms. While recognising that there were some potentially detrimental effects of televising, its study of the issue led the Committee to hold that ‘satisfactory controls can be put in place to deal with these valid concerns, at least for the purpose of proceeding with a pilot project’ and to conclude that ‘In terms of policy and principle the Committee was satisfied that open administration of justice considerations outweighed fair trial, privacy and television reporting concerns.’39 It would appear that the Committee was reassured by the findings of overseas studies and experiences. In November 1994, Sir Ivor Richardson expanded on what he considered could be learnt from overseas experience, by noting that in Scotland ‘a number of trials have recently been filmed . . . and subsequently shown on television in a well-received documentary series’.40 Sir Ivor also noted that in Australia, court public information officers had been appointed to promote courtroom reporting and that the 1994 ‘Access to Justice Report came down firmly in favour of an experimental programme for the broadcasting on radio and television of proceedings in the Federal Court’.41 36 38 40

41

(1992) 78 CCC (3d) 97. 37 Richardson, ‘The Courts and the Public’, above n. 6, at 15. Ibid. 39 Ibid. 15. In delivering the Australian Institute of Judicial Administration’s Sixth Annual Oration in Judicial Administration in November 1994 (published as Richardson, ‘The Courts and the Public’, above n. 6) Sir Ivor saw such public interest as evidence of ‘a real desire by the public to know more about what goes on in courts – reflected in public attendance at open days, why print media report cases and comments on functioning and performance of the courts, and appeal of courtroom dramas and CNN’s reporting of high profile cases’: ibid. 14. Ibid. 15–16.

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Sir Ivor Richardson has noted that two additional domestic factors ‘weighed’ with the Committee: ‘One was the clear indication of media interest and the fact that on a number of occasions some parts of some proceedings had been televised. The other was that it is open now for any judge to accede to a media request.’42 Ad hoc instances of courtroom televising in New Zealand, though limited in number, appeared to have not only highlighted the need for common rules to guide and protect judges,43 but also appear to have reassured members of the Committee as to the potential benefits of such coverage. Thus, in writing to the Chief Justice of the Federal Court of Australia on 15 August 1994, Chief Justice Eichelbaum observed: One quite important development has been the preparation and recent screening of a documentary tracing the progress of three criminal cases in the District Court. It included some courtroom scenes and a degree of behind-the-scenes insight into the life of a District Court Judge. From a public educational point of view it was a worthwhile exercise.44

Even problematic instances of pre-1995 televising45 appeared to reinforce the desirability of uniform strict rules. The working party had expressly left the general issue of whether it was in the interest of justice to permit broadcasting of court proceedings to be decided by the Courts Consultative Committee. While the Committee’s decision to undertake a pilot project was expressly presented not to be a decision pre-empting the ultimate decision as to whether such coverage would be permitted on a permanent basis, it appeared to be based on an acceptance of the view that, as a matter of law and principle, the continuing exclusion of television coverage could not be justified.46 42 43

44

45

46

Ibid. 15. As Sir Ivor Richardson noted: ‘The Committee felt that the existence of a pilot project with stringent rules would provide better protection to individual judges and the judiciary collectively than the present vacuum’: ibid. 15. Letter from New Zealand’s Chief Justice Eichelbaum to the Federal Court of Australia Chief Justice Michael Black, 15 August 1994 (Federal Court of Australia Folio 538/3/1). In Peters v. Collinge [1993] 2 NZLR 554, TVNZ was held in contempt of court for broadcasting footage of proceedings recorded in breach of a condition imposed by the court that it could only film prior to the hearing. In October 1994 a television crew was reported to have filmed prosecution exhibits in the Hamilton District Court just prior to the deposition hearing of murder charges and to have filmed the defendant’s wife in the corridor outside the courtroom. See ‘Can TV Crews be Trusted in Court?’ (1994) 41 Northern Law News 1, 2. Forbes, ‘Pilot Project for Televising Courtroom Proceedings Proposed’, above n. 2, at 6.

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Not only did the Committee accept that admitting cameras into courts appeared to be dictated by the common law principle of open justice, it clearly also accepted that the Bill of Rights Act 1990 made such an exclusion subject to legal challenge and admission virtually inevitable. The Committee’s consideration of the Canadian decision on the impact of analogous provisions of the Charter of Rights and Freedoms appeared to lead it to accept that if the courts did not take the initiative, broadcasting could be imposed on them by statute or through legal challenge. The pragmatic desire to retain control over the regulation of courtroom reporting, to avoid Parliament stepping in, to avoid the unpredictable effects of inevitable pressure on judges to permit ad hoc televising, appeared to be the decisive factors leading to the undertaking of the pilot project.

3 Role played by the Bill of Rights Act Though described by the working party as a consideration ‘particular to New Zealand’,47 the crucial and arguably decisive role which certain provisions of New Zealand’s Bill of Rights Act 1990 played is not acknowledged in the above-cited official explanations for why New Zealand decided to undertake an experiment with in-court televising. Section 14 of the New Zealand Bill of Rights Act 1990 is titled ‘Freedom of Expression’, and states: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. Section 25 is titled ‘Minimum Standards of Criminal Procedure’, and provides: ‘Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: a) The right to a fair and public hearing by an independent and impartial court’. The rights set out in sections 14 and 25 are deemed to be of equal merit and qualified by section 5 which declares both rights to be ‘subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The provisions of sections 14 and 25 appear to parallel both the guarantees of the First and Sixth Amendments to the Constitution of the United States and sections 1 and 11 of the Canadian Charter of Rights and Freedoms. However, the express limitations imposed by 47

‘Report of the Working Party on Televising Court Proceedings, February 1993’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 2, p. 6.

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section 5 make comparisons with the Canadian Charter, whose rights are also subject to the express limitations of section 1, particularly apt. Even though the Bill of Rights Act provides a statutory protection of rights in contrast with the constitutional protection afforded equivalent rights in Canada and the United States, it is clear that rulings by Canadian courts on the implications of Charter rights for televising of proceedings played a crucial role in New Zealand’s decision to admit cameras into its courts. In his November 1994 Australian Institute of Judicial Administration Oration,48 Sir Ivor Richardson outlined the role played by the Bill of Rights Act. In citing the decision of the Ontario Court of Appeal in R v. Squires,49 Sir Ivor noted that the Court: held that a statutory partial prohibition on the filming of persons entering or leaving the courtroom violated freedom of expression under s 2(b) of the Canadian Charter of Rights. The court by a majority went on to hold under s 1 of the Charter that the particular conditions and restrictions governing filming constituted a reasonable limit on that freedom of the media to impart information.50

That the Ontario Court had held that restrictions imposed on television cameras access violated the freedom of expression guaranteed by the Charter’s equivalent of section 14, and had only been saved by being deemed to constitute a reasonable limit under the Charter’s equivalent of section 5, appeared to suggest that New Zealand’s de facto prohibition of televising could also only be justified if it were to be deemed to be a ‘demonstrably justified and reasonable limit’ on freedom of expression. The likelihood that New Zealand would be able to justify a continuing prohibition on televising was further undermined in 1994 by the Canadian Supreme Court’s decision in Dagenais v. Canadian Broadcasting Corporation,51 where the Supreme Court departed from a hierarchical approach to rights (which by deeming the freedom of expression to be subservient to the right to a fair trial had saved the 48

49 50 51

Sir Ivor Richardson, ‘The Courts and the Public’, Australian Institute of Judicial Administration’s Sixth Annual Oration in Judicial Administration, delivered at the Metcalfe Auditorium, Sydney, 25 November 1994. See Sir Ivor Richardson, ‘The Courts and the Public’, above n. 6. (1992) 78 CCC (3rd) 97. Richardson, ‘The Courts and the Public’, above n. 6, at 15. Dagenais v. Canadian Broadcasting Co. [1994] 3 SCR 835.

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statutory restriction on televising in R v. Squires) and adopted a test which required both rights to be balanced.52 Even though section 14 of the New Zealand Bill of Rights Act 1990 does not expressly refer to ‘freedom of the press’ as the corresponding section 2(b) of the Canadian Charter of Rights and Freedoms does, it was recognised that if a similar view were to be adopted in New Zealand, the justifiability of restrictions on television camera access would be decided on the basis of a presumption in favour of televising subject only to such restrictions as a balancing of the competing rights warranted. Such an approach clearly suggested that a total prohibition would be indefensible and dictated the imposition of reasonable restrictions. In early 199653 Sir Ivor confirmed that the parallels he saw between provisions of the Canadian Charter of Rights and New Zealand’s Bill of Rights Act led him to the view that a complete bar on television reporting would be perceived as an infringement of the section 14 right to freedom of expression which would not be deemed ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ and thus not be saved by section 5. Sir Ivor saw the Bill of Rights as having altered the status quo by shifting the threshold onus, the implication being that restrictions on television reporting would be likely to be deemed in breach of section 14’s ‘freedom to impart information’, unless they could be justified under section 5. As the leadership of the New Zealand judiciary acknowledged that the existing distinction drawn between electronic and print media was open to challenge under the Bill of Rights Act, concerns that the electronic media could successfully secure legally sanctioned access to courts, appeared to clearly influence at least the timing if not the decision of the Court Consultative Committee to undertake a pilot programme. 52

53

‘The pre-Charter common-law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter . . . A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.’ Dagenais v. CBC [1994] 3 SCR 835 (SCC), 877 (Lamer CJC). See further detailed discussion of this decision and its further development in R v. Mentuck (2001) 158 CCC (3d) 449, above chapter 4 D.3. In a personal meeting with Sir Ivor Richardson, Melbourne, 24 February 1996.

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Not only did the retention of the prohibition on televising appear indefensible, the inevitable televising also appeared unpredictable in the absence of suitable restraints or uniform policies. In part the need for the judiciary to address the matter proactively appeared to be motivated by a concern that if the judiciary did not do so, televising would be imposed on the courts. Justice Penlington summed up this concern in observing: I am with our Chief Justice. Television in the Courts is, I think, a necessary evil. It is better however that we have it under our rules – the rules of the judges – than under rules which are imposed on us by the politicians at the behest of the media or other interested groups.54

Justice Tipping also expressed the view that ‘If parliament will not or does not act, the Judges may have to do so in order that the balance between competing interests is fairly struck.’55 In stressing that this was not a concern only held by judges, Chief Justice Eichelbaum noted that the view ‘that change was inevitable and that it was best to try to manage it rather than have it imposed’ was also shared by non-judicial members of the Courts Consultative Committee, including the President of the New Zealand Law Society.56 Recognition of the unsustainability of the prohibition on courtroom televising also prompted concerns relating to ad hoc televising. Sir Ivor addressed this issue as one flowing from a ‘clear indication of media interest and the fact that on a number of occasions some parts of some proceedings had been televised’, and which consequently had weighed with the Courts Consultative Committee, noting: it is open now for any judge to accede to a media request. That is because each judge has an inherent jurisdiction to regulate the conduct of proceedings over which he or she presides. The Committee felt that the existence of a pilot project with stringent rules would provide better protection to individual judges and the judiciary collectively than the present vacuum.57

54

55

56 57

The Hon. Justice Penlington, ‘Television in the Courts: a Personal View’, paper presented at Canadian Judges Conference, 25 August 1998. The Hon. Justice A. Tipping, ‘Television in Court’, paper presented at the 1996 New Zealand Bar Association Conference, 1996, at 1, cited in Murray, Electronic Media Coverage of Courts, above n. 3, at p. 14. Eichelbaum, ‘Televising Court Proceedings’, above n. 9, at 3. Richardson, ‘The Courts and the Public’, above n. 6, at 15.

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The Chief Justice of New Zealand, the Right Hon. Thomas Eichelbaum, has also warned of the unpredictable results of not pre-empting the incidence of ad hoc televising with a full study of conditions and consequences. Sir Thomas observed: For some time I have been concerned that sooner or later, probably under the pressure of a profile case, some judge will simply proceed of his or her own initiative to allow television cameras into Court. If this happens in an ad hoc way without full study of conditions and consequences the results are unpredictable. Once the precedent was set it would place pressure on other Judges to follow suit. Indeed the situation may arise where it was difficult for other Judges to resist similar applications.58

This concern led Sir Thomas to conclude that it was ‘essential that the issues should be considered in depth and that if there was to be televising within the courtroom, it should be under conditions that were known to the judiciary, the practitioners, the public and television’.59 The cause of the concern expressed for ad hoc televising may in part be attributable to prior instances such as that in Peters v. Collinge,60 where TVNZ was held in contempt of court after recording footage of proceedings in breach of the court’s condition permitting filming inside the courtroom, but only prior to the hearing.

4 Opposition to the Pilot Programme The Committee’s consideration of courtroom televising and its decision to proceed with such an experiment attracted significant opposition from the legal profession, the press, police and other stakeholders such as victims’ support groups. A closer examination of the nature and extent of the opposition not only serves to identify key concerns but also serves to underline the extent to which decisions to undertake and continue the experiment were made in spite of significant opposition. 58

59

60

Eichelbaum, Report, Televising Court Proceedings, above n. 6, at p. 2, (based upon remarks made to the LAWASIA Conference of Chief Justices in Beijing in August 1995). Eichelbaum, ‘Televising Court Proceedings’, above n. 9. See also Eichelbaum, Report, Televising Court Proceedings, above n. 6, at pp. 2–3, where Sir Thomas noted his desire to ‘have the subject thoroughly studied and to evolve a set of guidelines which would provide as much control as reasonably possible, and preserve the tenet of a fair trial to the greatest extent’. [1993] 2 NZLR 554.

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(a) Legal profession New Zealand’s legal profession expressed vocal and widespread opposition to the pilot programme prior to its commencement. The level of opposition appeared to grow in the first few months of the programme. Even a year after the start of the experiment Sir Ivor Richardson conceded that the New Zealand Bar was ‘very opposed’ and the Law Society ‘not unanimous’ in its response.61 Shortly after the commencement of the pilot, the Christchurch daily newspaper The Press published a story reporting: Opposition to television cameras in courtrooms is growing among the legal profession, with the Law Society saying it is opposed in principle to televised court proceedings. The Society’s president, Christchurch barrister Austin Forbes, said there was almost total opposition in the profession to the prospect of televised court trials.62

The story also noted that ‘the issue was being hotly debated’ in the Law Society’s magazine LawTalk, with Nigel Hampton QC leading the challenge to the New Zealand Law Society’s stance. In a Letter to LawTalk published on 7 November 199463 Nigel Hampton QC set out a number of the key grounds on which the legal profession opposed the televising of courts. He argued that media editing of stories would serve to trivialise and sensationalise reports. In questioning whether the two-minute rule would be complied with he also queried whether television reports would be able to provide a balanced account of proceedings and enhance public access to and scrutiny of court proceedings, let alone serve an educative role. Citing the O. J. Simpson trial Hampton argued that allowing access would not put an end to the feeding frenzy outside of courts. He also noted the potential for jury distortion. Dismissing arguments based on the enhancement of open justice, he argued that courts were already open to all media. On 22 February 1995 another article was published by The Press, reporting: ‘Lawyers are almost unanimous in their condemnation of the admission of cameras to the courts. They claim the broadcasts

61 62

63

In a personal meeting with Sir Ivor Richardson, Melbourne, 24 February 1996. Gerard Campbell, ‘Lawyers oppose televised courts’, The Press (Christchurch), 21 February 1995. Nigel Hampton QC, ‘Televising Court Proceedings’ (1994) 425 Lawtalk 2.

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will influence jurors and increase the pressure on people in the hearings.’64 Some District Law Societies, including the Canterbury District Law Society, voted to oppose the introduction of televising65 and the New Zealand Bar Association conveyed its opposition to Sir Ivor Richardson.66 Particularly outspoken in its opposition was the Auckland District Law Society, which in late 1994 voted to oppose the televising experiment,67 after surveying its members and finding them to be overwhelmingly opposed to courtroom televising. Writing in the Auckland District Law Society’s weekly publication Northern Law News on 7 October 1994, John Cumming noted that in the previous week the Society had conducted a telephone survey which had revealed that very few lawyers favoured experimenting with televised coverage of proceedings.68 The story cited a number of lawyers, including former Crown Prosecutor Roy Ladd, expressing concerns that televised proceedings would cause witnesses to refuse to testify and that more jurors would find excuses to be relieved from jury duty, that second guessing of jury decisions would be off-putting to potential jurors and that the finality of judgments would be undermined.69 Cumming also reported concern expressed by Barrister David Baragwanath regarding the effect of jurors seeing coverage,70 in which he cited the comments of Lord Simons in Attorney-General v. Times Newspapers71 regarding pre-trial TV discussion of cases and the inherent danger of interference with the due course of justice.72 Cumming also referred to concerns expressed by Barrister Hesketh that the few trials televised would be singled out for special attention, the 64

65

66

67 68 70 72

Martin van Beynen, ‘TV firms subdued over filming trials’, The Press (Christchurch), 22 February 1995, p. 5. ‘Canty lawyers opposed to televised trials’, The Press (Christchurch), 15 March 1995, p. 1. For the views of the President of the New Zealand Bar Association, see J. G. Miles QC, ‘Cameras in the Courtroom: Will Televising Trials Educate the Public or Create Injustice? Commentary on a Paper by Selene Mize’, paper presented at the New Zealand Law Conference, Dunedin, 9–13 April 1996; (1996) 2 New Zealand Law Conference Papers 178. See John Cumming, ‘Opinions Run Hot on Courtroom TV’ (1994) 37 Northern Law News 1, 2. See Campbell, ‘Lawyers oppose televised courts’, above n. 62. Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66. 69 Ibid. Ibid. 2. 71 Attorney-General (UK) v. Times Newspapers Ltd [1974] AC 273. Ibid. at 321, 322. ‘Finally, TV discussion of matters which are the subject matter of pending or imminent litigation. Even when the discussion is carefully balanced (and this cannot always be guaranteed) it is unlikely that all the safeguards of a trial can be observed, so there is an inherent danger of interference with the due course of justice.’

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controlled proceedings of a full and fair trial would be trivialised, turning justice into a media circus.73 Another lawyer was cited as being concerned that networks would always try to select the most salacious issues rather than cover the nitty gritty of court proceedings and there would be a tendency for all concerned to turn court into theatre, and his comment: ‘I have seen people preening themselves for the camera in American courtrooms and indulging in theatrical outbursts’.74 In its 4 November 1994 issue, Northern Law News challenged the editorial opinion published by the Christchurch newspaper The Press, which suggested that civil libertarians promoted television in courts.75 The Northern Law News argued that its survey in October 1994 ‘showed that liberal minded lawyers were no less concerned than their conservative colleagues about courtroom TV imperilling civil and legal rights of defendants and intruding on the privacy of others involved in court proceedings’.76 The Auckland District Law Society’s Public Issues Committee also published a paper in which Barrister Anthony Rogers noted that despite extensive experience in the United States, the issue was still ‘hotly debated’ and expressed concerns for televising affecting the outcome of trials and serving to prejudice juries.77 Another concern raised by New Zealand lawyers appears to lend support to one of this book’s key arguments – that court control of audio-visual coverage of proceedings is required to overcome concerns regarding media coverage and to ensure that the benefits of televising will be attained. Thus, after outlining some instances of TV networks’ record of insensitivity, the Northern Law News asked: ‘Faced with such a track record of insensitivity from the TV networks how then, lawyers ask, can the Courts Consultative Committee contemplate pandering to them further.’78 The Auckland District Law Society weekly Law Talk went on to note: It seems not to have occurred to either the judiciary or the Justice department that it has always been open to them to commission their 73 74 75

76 77

78

Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66. Citing Kevin Ryan, ibid. ‘Can TV Crews be Trusted in Court?’, above n. 45, at 2. For text of The Press editorial see Hampton QC, ‘Televising Court Proceedings’, above n. 63, at 3. ‘Can TV Crews be Trusted in Court?’, above n. 45. ‘TV in court could change verdicts: lawyers’, Waikato Times (Hamilton), 3 April 1995; ‘Lawyers fear effect of TV cameras in courtrooms’, The News Westport, 31 March 1995; ‘Lawyers fear effect of television on trials’, Nelson Evening Mail, 1 April 1995. Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66, at 2.

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own productions covering court trials, under their own control and at the department’s expense. An assurance could then be had that criteria of sensitivity, accuracy and balance would always be met and the programme could still be sold to a network – to the highest bidder.79

Concerns about adequacy of controls over the proposed televising were a common theme of criticism from the legal profession. In November 2004, the Northern Law News recounted an October 1994 incident in Hamilton District Court where it was alleged that just prior to the deposition hearing of murder charges television cameras had recorded prosecution exhibits in the courthouse and the defendant’s wife in the corridor outside the courtroom.80 The court’s handling of the matter appeared to reveal inadequate power to ensure that such incidents would not be repeated. This led the Northern Law News to observe that while the Chief Justice had been reassuring the profession that ‘the control of any coverage will be exercised firmly by the courts and that the privilege of using cameras in the courtroom will remain tentative for some time to come . . . Paul Norris, Television New Zealand’s director of news and current affairs, has prevaricated about the rule that insists on a two-minute minimum duration of any broadcast item obtained in court’ and noted that both television networks were likely to want changes to the requirement ‘that at least one of their news staff should remain in attendance at a televised court hearing for the full length of the trial’. This monitoring of the reporter’s presence requirement, the paper suggested, highlighted ‘one of many logistical problems judges will be faced with in any trial to which they admit cameras’.81 However, not all New Zealand legal practitioners opposed the pilot programme of televising. Marie Dyhrberg, president of the Criminal Bar Association, was said to personally favour the experiment with televising. She urged that thanks to the rules governing televising, witnesses had nothing to fear and could ask for their identity not to be disclosed. She was also reported to have said that ‘overseas research, including a study by the Australian Law [Reform] Commision, had shown that witnesses’ fears were unfounded’.82 In its October 1994 79 82

Ibid. 80 ‘Can TV Crews be Trusted in Court?’, above n. 45. 81 Ibid. Andrew Laxon, ‘Court TV trial to continue’, New Zealand Herald Sun, 25 March 1995, 1. In the course of an extensive analysis of the issues, see Marie Dyhrberg, ‘Television in the Courts: the Time has Come’, paper presented at the Sixth International Criminal Law Congress, Session 6: The Debate ‘TV or Not TV?’, Melbourne, 9–13 October 1996, which led Marie Dyhrberg to conclude that ‘[w]ith adequate guidelines and checks in

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story the Northern Law News reported the views of some barristers who supported the experiment. One was Colin Nicholson QC, who said that though he was shocked when he first encountered such coverage in the United States, ‘he now believed that such coverage could be controlled in NZ context and that the public should be more aware of what actually occurred in court rather than invest reports of proceedings with imaginary scenarios recalled from episodes of ‘‘LA Law’’ or ‘‘Perry Mason’’’.83 He argued that the public would be better informed and ‘safeguards were already in place to protect the privacy of Family Court users and the interests of those entitled to suppression orders in other courts’.84 Deborah Hollings also suggested that the public might gain better appreciation of and ‘more respect for the justice system if they were exposed to responsible television coverage of significant cases’.85 She also suggested, as I argue elsewhere,86 that unrestrained television access to sensitive civil cases may cause litigants to opt for private arbitration and other alternatives to open court proceedings.87 Perhaps the legal profession’s opposition to the pilot should not have been altogether unexpected as a New Zealand Law Journal editorial extract from January 199288 revealed a passionate opposition to cameras in courts. The editorial noted that Ted Turner had been nominated as Time magazine’s ‘Man of the Year’ because he had ‘turned viewers in 150 countries into instant witnesses of history and helped affect the way events unfold’.89 The editorial noted that: It is that last comment ‘and helped affect the way events unfold’ that is particularly interesting . . . TV is not merely a neutral eye . . . The camera is selective . . . what the viewer sees is not what he or she would see had they been there . . . It is the nature of the TV medium in a technological sense, although it can be and often is, also affected by the preferences,

83 86

87 88

place, we can all be the better for setting legal mystique aside in favour of public administration of justice’: at 12, she identified the arguments in favour of the experiment as centring on two issues: ‘First, objections based on distrust of the media require re-examination in the context of modern New Zealand society. Secondly, there is an apparent inconsistency in allowing other media forms (such as newspaper reporters) in the court whilst banning television cameras’: at 2. Cumming, above n. 66. 84 Ibid. 85 Ibid. See discussion in Daniel Stepniak, ‘Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions’ (2004) 12 William and Mary Bill of Rights Journal 791, 819. Cumming, above n. 66. See Editorial, ‘Televising Trials’ (1995) New Zealand Law Journal 101, 102. 89 Ibid.

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prejudices and ideological or political views of the producer. A ‘televised trial’ is like confusing a slice of ham with a pig, without realising that one is a dead, partial and processed version of the living other.90

Further evidence of pre-existing opposition to cameras in courts may be discerned from a June 1992 paper delivered at a Wellington District Law Society Seminar by Auckland Barrister R.E. Harrison.91 Harrison’s paper criticised mass media coverage of the criminal process and urged that something needed to be done in pre-trial areas to ensure a fair trial and a minimum of respect for the rights of individual privacy. He noted that section 23(5) of the Bill of Rights Act provided: ‘Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.’92 He also observed that ‘The traditional common law approach towards balancing the competing interests of unrestricted freedom of expression and of the right to a fair trial had been to resolve the conflict in favour of the latter.’93 Adjudging photographing to be ‘a gross violation of individual privacy’ he suggested that to permit photographing of a detained person would be inconsistent with section 23(5).94 This led him to conclude that ‘there needs to be an express statutory prohibition on photographing accused persons attending Court without express written consent, and on publishing photographic images of an accused. The prohibition should enure from arrest until conviction or acquittal’.95

(b) Police and victim support groups The New Zealand police also vocally campaigned against the introduction of courtroom televising. The Commissioner of Police, Richard Macdonald, was reported to have written to the Courts Consultative Committee ‘asking for an end to the coverage’.96 The police opposition revolved around their concern that the impact would be to deter witnesses from coming forward and that the safety of those who did come forward would be compromised because they could be identified and

90 91

92 96

Ibid. Published as R.E. Harrison, ‘The Mass Media and the Criminal Process: a Public Service or a Public Circus?’ (1992) New Zealand Law Journal 271. Ibid. 93 Ibid. 94 Ibid. 277. 95 Ibid. Andrew Laxon, ‘Police call to end televised trials’, New Zealand Herald, 24 March 1995, section 1, p. 2; ‘Police want television ban in court’, The Press (Christchurch), 25 March 1995.

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intimidated.97 Police concerns were voiced in Parliament by the Police Minister, John Luxton.98

(c) Media The media’s response is perhaps most aptly summed up by Justice Penlington who observed: ‘Before the pilot commenced the print media opposed it but after it had been running a little time they did a U-turn and favoured an extension of the pilot to cover still photographs in Court.’99 Writing in the Northern Law News John Cumming noted the ‘implacable opposition to courtroom television coming from the media itself’,100 referring to former editor and columnists Colin McKay and press investigative reporter Pat Booth, he observed that: ‘Two of New Zealand’s most distinguished journalists have deplored the notion that television coverage of courtroom proceedings can ever be in the public interest.’ He noted that Booth had ‘pointed to the already sullied track record of the New Zealand TV networks in harassing people accused of crimes and key witnesses in court cases’, and had observed that: ‘People appear there by law – not to be unwilling extras in unscripted legal teledramas’. Cumming also noted that Booth had ‘rubbished’ ‘well intentioned arguments about the media and the public’s sacred right to know’ and had argued that: ‘Television is not interested in balance, only in spectacle. Ratings are the key.’101 A particularly influential press criticism was an editorial published in the Christchurch daily, The Press, on 17 October 1994. It was commended by a leading opponent of televising, Nigel Hampton QC, and reproduced in the Auckland District Law Society weekly LawTalk on 7 November 1994.102 The key arguments of the editorial were that: The courts are no place for television cameras. Even when television reporting intends no mischief, the medium by its very nature cannot avoid being selective and ephemeral. Almost always, it reduces important matters to little more than entertainment . . . However worthy the intention of giving the community easier access to selected moments of what 97 98

99 100 102

Ibid. ‘Police raise concerns about televised trials’, Ashburton Guardian, 24 March 1995; ‘Police speak against cameras in courtrooms’, The Dominion, 25 March 1995; ‘Televised trials may place witnesses at risk – police’, The Evening Post, 24 March 1995. Penlington, above n. 54, at 7. Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66. 101 Ibid. ‘Justice and Television’ (1994) 425 Lawtalk 2, 2–3.

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happens in the courts, and however carefully the rules are applied by judges and television teams, the strong feeling remains that justice will not be served by televising fragments of court cases . . . Once selection begins, the risks of distortion become intense. Television requires a degree of excitement and drama to justify putting almost anything on screen. If a case is reduced to a handful of such ‘High points’, the public is not better informed but instead receives a highly distorted impression of what goes on in court.103

The press criticism also drew on negative public perceptions of televised trials in the United States, with some referring to the O. J. Simpson trial104 while others pointed out that it was ironic that as New Zealand’s pilot was starting, judges in US federal courts had voted two to one against making the experiment permanent, ‘reflecting deep misgivings by senior members of the American legal fraternity’.105 As Justice Penlington later noted: ‘A dispassionate consideration of the matter was hardly assisted by the O. J. Simpson trial, which was then ongoing in Los Angeles; or by the earlier excesses of the William Kennedy Smith rape trial and the Lorena Bobbit penis severing case.’106

(d) Inadequacy of consultation A criticism, widely voiced by the legal profession in New Zealand was that the decision to undertake the pilot programme had been undertaken without adequate consultation. In October 1994, the Auckland District Law Society noted that ‘The Council of the Auckland District Law Society had not considered the proposal to introduce courtroom televising on a trial basis, nor has it been invited to do so.’107 The Society’s survey of its members also revealed that most were of the view that there had been little consultation. Although the New 103 104

105 106 107

Ibid. See e.g., ‘Court ‘‘no place’’ for TV cameras’, The Press (Christchurch), 7 October 1995, which cited New Zealand Law Society Vice-President Sam Maling as observing: ‘The OJ Simpson trial should be a lesson to New Zealanders that television cameras have no place in court . . . Mr Simpson’s acquittal must have left many people wondering about the effect of television on a jury.’ Another press story cited Auckland University law professor Bill Hodge’s urging ‘Let’s not follow the Americans in making a theatre out of the search for justice . . . Keep TV as far away as possible.’ See Simon Louisson, ‘OJ trial casts doubt on court TV plans’, The Evening Post, 11 October 1995. See also Alan Cocker, ‘Courtrooms not the place for television’, New Zealand Herald, 11 May 1995. Cocker, ‘Courtrooms not the place for television’, above n. 104. Penlington, above n. 54, at 3. Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66.

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Zealand Law Society’s representatives invited members and District Law Societies to make submissions,108 the legal profession remained largely of the view that there had been insufficient consultation and that the experiment was driven solely by a number of influential judges.109 This suggestion was refuted by Chief Justice Eichelbaum. In February 1995 Sir Thomas expressed his disappointment at the continuing opposition from the profession and the dissemination of the view that televising was being imposed by the judiciary.110 He noted: Some members of the profession have been running something of a campaign against the pilot scheme . . . I find it surprising that the profession should be against a pilot scheme under strict conditions. I am also disappointed at comments to the effect that this proposal is judiciary driven, implying that the judiciary are the only persons in favour . . . When the CCC made its recommendation in favour of a pilot project Sir Ivor held meetings in Auckland and Wellington with groups representative of the profession including a number of leading practitioners. There was also a discussion with all the crown solicitors . . . The judiciary is not in the majority on the CCC. When the subject was debated at length at meetings of the committee in 1993 there was a distinct majority view in favour of proceeding with a pilot . . . the profession’s concerns were put before the committee and taken into account.111

Writing to the Chief Justice of the Federal Court of Australia in August 1994, Sir Thomas referred to consultation which had been and was being undertaken, noting that in deciding in principle on a pilot project to allow cameras into trial courts, the CCC had: agreed however that before we approached the media there should be full consultation with interested parties. This has been a slow process but has recently been completed. While not all those consulted have been in favour, the majority expressed willingness to support the concept of a pilot. In

108

109

110

See remarks of the New Zealand Law Society’s representatives on the Courts Consultative Committee, Austin Forbes and John Haigh QC, reported in Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66. The Interim Report of the team evaluating the pilot project found that in response to questions seeking to identify ‘perceptions about their level of input in the setting up of the rules (guidelines) and in revising and assessing the functioning of the pilot . . . [t]en of the seventeen non media participants felt there was no consultation while seven thought there was adequate consultation’. See Kimberly Allan, Judy McGregor and Darrin Hodgetts, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, Interim Report One (1998), p. 20. Eichelbaum, ‘Televising Court Proceedings’, above n. 9. 111 Ibid.

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particular, a majority of the judges of both the High Court and the District Court benches were prepared to support the project . . . Subsequent consultation with the profession revealed opposition in some quarters.112

Sir Ivor Richardson also stressed that extensive consultation had taken place, stating: We then went through an extensive process of consultation first with all the judges and, after they had given strong support for the proposed pilot, with groups of members of the legal profession, who were divided in their views, and with the Department of Justice which was supportive. The rules for television coverage were presented to the media as the basis on which a pilot project would run.113

Both the police and victim support groups were reported to express dismay that a firm decision to go head had been made before they had an opportunity to make submissions,114 though after Mr Graham, the Minister for Justice, disclosed that the police ‘had been given an earlier opportunity to make submissions on the trial but had not done so . . . [the Police Commissioner was reported to have] accepted Mr Graham’s comment, saying his earlier statement that the police had not been consulted was an oversight’.115 Sir Ivor Richardson conceded that the police had wanted to be consulted earlier.116 While suggestions that the legal profession, police and victim support groups were not adequately consulted appear to be largely unfounded, lack of media consultation appears to be the most justified. The terms under which televising was to be permitted during the pilot project appeared to have been presented to the media at a late stage and on a non-negotiable basis,117 and may be said to at least partly account for 112

113 114

115 116 117

Letter from Sir Thomas Eichelbaum to Chief Justice Black, 15 August 1994 (Federal Court Folio 538/3/1). Richardson, ‘The Courts and the Public’, above n. 6, at 15. Jane Clifton, ‘Police oppose cameras in courts’, Sunday Star-Times, 19 February 1995, p. A3; Laxon, ‘Police Call to End Televised Trials’, above n. 96. Laxon, ‘Court TV trial to continue’, above n. 82. In a personal meeting with Sir Ivor Richardson, Melbourne, 24 February 1996. Sir Ivor noted that following extensive consultation with judges, the legal profession and the Department of Justice, ‘The rules for television coverage were presented to the media as the basis on which a pilot project would run’: Richardson, ‘The Courts and the Public’, above n. 6, at 15. According to Justice Penlington: ‘The rules were put to the media on a non-negotiable basis’: Penlington, above n. 54, at 3. Such a perception is further reinforced by the fact that as late as August 1994, Sir Thomas Eichelbaum conceded that the media had not been consulted and had observed ‘I expect shortly to be in a position to commence formal discussions with the media on the pilot proposal.

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the resulting low level of media interest and for continuing differences over some of the restrictions imposed. In this respect the New Zealand experiment may be contrasted with the self-imposed or cooperatively developed regulations such as the widely acclaimed model guidelines flowing from the rules adopted for Ontario’s 1982 experiment.

5 Roles of Sir Thomas Eichelbaum and Sir Ivor Richardson A view which is unquestioned in New Zealand is that Sir Thomas Eichelbaum and Sir Ivor Richardson played a crucial role in the decision to undertake the experiment. While not everyone suggests that the experiment would not have taken place in the absence of their strong support, the generally accepted view is that in the absence of their support and commitment the experiment may well have been abandoned or not led to extended media coverage becoming permanently entrenched. The views of these two judges as to the legal, principled and pragmatic reasons for admitting cameras were clearly shared by other members of the Courts Consultative Committee and gained the support of most New Zealand judges. Their leadership undoubtedly played a decisive role in the crucial decision that it was in the interests of justice to permit such coverage even if on an experimental basis and to persevere with the decision in the face of concerted opposition, lack of media interest and negative public sentiment flowing from the O. J. Simpson trial. The decisive role played by senior members of the New Zealand judiciary is revealed in comparisons with other jurisdictions. Thus, it is difficult to imagine the reforms of the United Kingdom and Australia in the absence of Lord Hope in Scotland, Lord Irvine in England and Chief Justices Black and Doyle in Australia. Though not attracting the same publicity as the negative experiences, similarly proactive stances adopted by senior judges in Canada and in US state courts have also led to incrementally admitted, evaluated and monitored experiences with televising. That New Zealand’s experiment was undertaken after the most senior judges accepted in principle that such coverage was warranted and desirable and with their personal involvement provides another basis for distinction between successful experiments undertaken in New At the moment I have no idea of their possible reaction’: letter from Sir Thomas Eichelbaum to Chief Justice Black, 15 August 1994 (Federal Court Folio 538/3/1).

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Zealand and other jurisdictions, and the discontinued experiment in the US federal courts. Experiments which are undertaken proactively by judges who accept in principle the desirability of extended media coverage and who seek through the experiments to ascertain how the potential benefits of such coverage may be achieved simply cannot be compared to experiments permitted by judges who are not committed to ensuring their success. Personal commitment and involvement also ensures that experiences are assessed on the basis of own experiences rather than on the basis of public reactions to overseas developments. An illustration of this is Sir Ivor’s perception of the William Kennedy trial, which he saw as illustrating the benefits of greater public scrutiny, but which some uninvolved judges saw as an illustration of undesirable media coverage.118 It should also not be overlooked that both Sir Ivor and Sir Thomas appeared to accept a need to revise rules governing media coverage of courts in recognition of modern media practice and the public’s increasing reliance on audio-visual media.119 Such recognition may have been prompted by what Bryan Fotheringham described as mounting pressure for coverage of court proceedings to be more consistent with modern media practice.120

6 Conclusion Although the New Zealand pilot project was presented as an experiment which would determine whether televising ought to be permitted,121 the protracted and careful studies and examination of the legal and policy issues which preceded the decision made the decision to undertake the experiment largely irreversible.122 It may be argued, on the basis of the above discussion, that the experiment was in reality undertaken to ascertain how such extended

118 119 120 121

122

In a personal meeting with Sir Ivor Richardson, Melbourne, 24 February 1996. A view also expressed by the Courts Consultative Committee, see above chapter VI(B)(2)(c). Bryan Fotheringham, ‘Candid Camera?’ (1995) 10 Criminal Justice Quarterly 2. Sir Thomas Eichelbaum observed that ‘the results will be monitored and the future of televising court proceedings will depend on the outcomes’: Eichelbaum, ‘Televising Court Proceedings’, above n. 9. A reality apparently recognised by Julian Miles QC, President of the New Zealand Bar Association, who observed: ‘It is no good talking about a pilot programme. Once the genie is out, it can’t be bottled.’ See Cumming, ‘Opinions Run Hot on Courtroom TV’, above n. 66, at 2.

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coverage could best be regulated and to secure the consensus required before such extended coverage could become a permanent feature of the administration of justice in New Zealand. Such consensus, as other jurisdictions had revealed, would inevitably be secured through incremental and carefully controlled admission of cameras which would reassure participants and the public.

C The Pilot Programme 1 Scope of the Pilot Programme New Zealand’s three-year pilot programme ran from 1 February 1995 until 31 January 1998. While it began as an experiment with television coverage, from 1 June 1996 it also encompassed still photography and radio. The closely monitored pilot programme was confined to four courts: the High Courts in Auckland, Wellington and Christchurch and the District Court in Auckland. On 10 February 1995, only the tenth day of the pilot programme, the Courts Consultative Committee passed a resolution to establish a Working Party to consider still photography and radio broadcasting of court proceedings. In so doing the Committee was responding to a Radio New Zealand application and a clarification sought by the Commonwealth Press Union. After four meetings the Working Party agreed that as television had been granted access it would be difficult in principle to deny other media the same rights. The Working Party proposed that a pilot programme be undertaken in the same four courts as the television pilot programme and under similar rules.123 Although the rules governing the televising pilot programme mentioned photography,124 the Working Party concluded that specific rules were required to address concerns relating to the use to which photographs and radio recordings could be put, equipment distraction and the concerns of courtroom participants. Of particular concern regarding radio broadcasts were: the use of audio recordings in documentaries, radio replays and the use of tape recorders. With respect to photography, the concerns related to the purpose for which photographs would be used and shutter noise. Media demand for and public support for 123

124

‘Final Report of the Working Party on Coverage of Court Proceedings by Radio and Still Photography’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 4, para. 13. See Rule B11 of ‘Rules regulating Coverage by the Electronic Media of Court Proceedings’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 3.

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such access was demonstrated in May 1995 by reactions to the failure of radio broadcasters and newspaper photographers to gain access to the Barlow trial.125 Draft rules were tabled on 4 August 1995. From 1 June 1996 radio and photographic coverage was permitted subject to the additional rules approved by the Courts Consultative Committee.126 The evaluation of the pilot was also extended with the development of additional monitoring questionnaires. While the experiment was only evaluated between May 1996 and February 1998, the strict rules and guidelines were applied nationally. In total, more than twenty cases were covered by the media under pilot rules during the full three-year period. On 14 March 1995, a disqualified driver’s guilty plea in the Auckland District Court became the first full case to be recorded in New Zealand’s pilot programme. It was in fact a practice run by TV3 for their proposed recording of the Carter trial.127 Press reports noted that the Court Registrar and Marie Duhrberg, the defendant’s lawyer, expressed satisfaction with the experience,128 while Nigel Dunlop, the President of the Canterbury District Law Society, was quoted as saying: ‘It was misleading because it all looked rather neat and tidy. That’s not part of the district court. It failed to convey the real atmosphere of a sitting of this nature.’129

2 Televised cases not covered by the Pilot Programme Though subjected to the pilot rules, several cases were not included in the evaluation research, either because they took place outside of the evaluation period or because they were heard in other courts. Such cases

125

126

127 128

129

See ‘TV but no photos for Barlow trial’, The Dominion, 19 May 1995; ‘Barlow judge bans photos’, Hawkes Bay Herald Tribune (Hastings), 19 May 1995; ‘Newspapers out of court’, Waikato Times (Hamilton), 19 May 1955; ‘Radio, photos, banned at trial’, The Dominion, 24 May 1995; ‘Judge bars photographs, radio’, The Press (Christchurch), 24 May 1995. See ‘Rules regulating Coverage of Court Proceedings by Radio and Rules regulating Coverage of Court Proceedings by Still Photography’ in Stepniak, Electronic Media Coverage of Courts, above n.1, Appendix 5. Discussed below C.2(a). See Lisa Turner, ‘Court Cameras Pass First Test’, New Zealand Herald, 15 March 1995; ‘TV cameras in court a first’, Hawkes Bay Herald Tribune, 14 March 1995; ‘Motoring case used as TV practice run’, Gisborne Herald, 15 March 1995; ‘Test for court TV’, The Evening Post, 15 March 1995. Martin van Beynen, ‘Court on TV fails to impress law society’, The Press (Christchurch), 16 March 1995.

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included five criminal trials, four sentencings, two civil trials and matters in military courts-martial and in the Coroners’ Court.130 Three of the four sentencings took place in the Auckland District Court in 1995.131 The two civil trials were Greensill and others v. Tainui Maori Trust Board132 and Phipps v. Royal Australasian College of Surgeons.133 The five criminal trials were the 1995 trials of Carter134 and the first Calder trial;135 the second Calder trial136 and the Thompson trial137 in 1996 and the Anderson trial in 1997.138 Though not covered by the official evaluation of the pilot programme, these trials disclose valuable information regarding perceptions of effects, effectiveness of regulations and reactions to the pilot programme, rivalling if not exceeding that provided by the evaluation of trials televised during the formal evaluation period in courts participating in the pilot programme.

(a) Carter This was a trial before Judge Dame Silvia Cartwright, in which two brothers, Warren and Carl Carter, were charged with aggravated robbery, kidnapping and murder.139 It was recorded by one fixed camera. Simon Moore, the Prosecutor in the case, noted that distracting movement by the cameramen suggested a ‘need to educate television crews on trial procedure’,140 and expressed the view ‘that only cameramen and reporters who have experience on coverage of this type should be employed’.141 On the other hand, he noted that the presence of the camera did not affect ‘the approach or behaviour’ of counsel in the case.142 Referring to defence counsel, Barry Hart, Moore noted that ‘a conservative description of his advocacy style would be that it’s flamboyant’. This, Moore suggested, had caused him to have ‘real concerns that he [Hart] might exaggerate his style 130

131 132 133 134 135 136

137 138 139

140

Media Coverage of Court Proceedings Pilot Evaluation Committee, Media Coverage of Court Proceedings: Introduction and Summary of Research Findings (August 1998), p. 9. Bradford, Faasipa and Smith. Unreported, Hamilton High Court, Hammond J, 17 May 1995. [1997] 2 NZLR 598. Unreported, Auckland High Court, Cartwright J, 17 March 1995. Unreported, Christchurch High Court, Tipping J, 12 April 1995. Unreported, Christchurch High Court, Tipping J, 31 August 1995 and 5 September 1995. Unreported, Christchuch High Court, Holland J, 12 February 1996. Unreported, Hamilton High Court, Penlington J, 26 November 1997. Simon Moore, ‘Commentary on Selene Mize’s Paper on Cameras in the Courtroom’, paper presented at the 1996 New Zealand Law Conference, Dunedin, 9–13 April 1996, at 3. Ibid. 141 Ibid. 4. 142 Ibid.

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before a national audience’. Noting that Hart ‘apparently had the same concerns about me’, Moore reported: ‘Yet neither of us now feel that the other’s style or presentation was noticeably different simply because the television camera was present.’143 Moore also noted that the ‘camera’s presence was soon forgotten’.144 Press reports also suggest that the television coverage was well received.145

(b) The Calder trials In this high profile trial, Vicky Calder was charged with attempting to murder her former lover, Professor David Lloyd, by administering the chemical neurotoxin Acrylamide, leaving him blind and paralysed.146 There were two trials, as the first trial – arguably the first trial televised in New Zealand – ended with a hung jury after eighteen days of hearings.147 Miles has noted that Justice Tipping, who presided in the two trials, deemed the two-minute broadcast to be incapable of presenting a balanced report of proceedings and that he saw the appropriate place for televising to be ‘after the event documentaries rather than the snippet sort of coverage during the currency of a trial’.148 The judge also reported that the televising had increased the pressure of his work and that he had found it a continuing and frustrating diversion from his primary task of running his court.149 Miles also noted that the Registrar had polled the jurors in the trial and found that nine of ten responding jurors thought snippet-type reporting was unhelpful and dangerous.150 The first Calder trial was also the first New Zealand case in which an application to televise had been opposed. The Crown had opposed an application by Ninox Films to use the recorded footage for documentary purposes. The court dismissed the objection ruling that there were fewer problems posed by documentaries broadcast after a trial was over. The recorded footage was broadcast as Part 2 of a two-part documentary The Trial, examining high profile and complex New Zealand murder trials.151 143 145

146

147

148 151

Ibid. 144 Ibid. 5. See Joseph Lose, ‘Crim-cams win over lawyers’, Sunday News, 26 March 1995, in which he cites Prosecutor Simon Moore and defence counsel Barry Hart. Tony Johnston, ‘Crime and punishment’, Sunday Herald Sun (Melbourne), 13 December 1998, TV Extra 6. Craig Henderson and Stan Reyner, ‘A woman spurned’, Who, 30 October 1995, pp. 32–6. Miles, ‘Cameras in the Courtroom’, above n. 65, at 183. 149 Ibid. 150 Ibid. The documentary was presented by prominent Auckland barrister, Deborah Hollings, and broadcast in Australia by SBS on Saturday 19 December 1998 at 7.30 pm. See

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(c) Barlow The first part of the documentary looked at the case of Barlow. SBS publicity described it as follows: The High Court trial of John Barlow for the murder of Wellington businessmen father and son Gene and Eugene Thomas . . . went before a third jury after the first two were unable to reach unanimous verdicts . . . [It] was filmed during the first trial in mid-1995, and gives the audience a dramatic view of the pressure and tension of nearly a month in the High Court, from inside the bar.152

Barlow was ultimately convicted and sentenced to life imprisonment. According to Tony Johnston: ‘What makes this program work so well is the voyeuristic feel of the edited footage, the separate interview snatches with the principal lawyers (outside the court) and most importantly, a clear, concise and informative presentation by the presenter criminal barrister Deborah Hollings’.153 What makes the Barlow trial significant is that both of new Zealand’s free-to-air television channels TVNZ and TV3 pulled out of filming the trial on the grounds that being required to use one shared camera positioned at the back of the courtroom and other conditions such as the accused not being able to be filmed154 ‘meant they could provide better coverage using traditional reporting methods’.155 It is interesting to note that no such conditions were imposed in Calder. Barlow’s lawyer had objected to camera coverage on the grounds that extensive coverage could make it difficult for Barlow to get a fair second trial. While Justice Neazor was not prepared to permit still photography, recording for radio, nor have more than one camera being operated during the trial, he was prepared to permit an unattended television camera, directed toward the rear of the court ‘because of the public benefit of a documentary about trial procedures’.156 The Dominion

152 153 154

155 156

Special Broadcasting Service, The Trial, 19 December 1998. For a review, see ‘Crime and punishment’, Johnston, above n. 146. See Special Broadcasting Service, The Trial, 19 December 1998. Johnston, ‘Crime and punishment’, above n. 146. ‘Court restrictions limit coverage: TV stations’, The Dominion, 29 May 1995. This issue is discussed further below VI(C)(4). ‘Back-off by TV on court filming’, New Zealand Herald, 29 May 1995. ‘TV but no photos for Barlow trial’, above n. 125. For commentary see ‘Cameras in courts’, The Evening Post, 26 May 1995.

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observed that had televising been permitted, the Barlow trial would have been the second televised trial of the pilot programme.157

(d) Thompson In this trial a former chief executive and director of a large public company was charged with a number of crimes involving dishonesty in relation to the affairs of the company. The significance of this case relates to Justice Holland’s rulings on the rules restricting the coverage of witnesses. He held that while any witness was entitled to have their identification disguised pictorially or by voice under Rule B6, there was no specific provision which would prevent witnesses being photographed outside the court. He also held that while the court had a discretion under Rule B7 to grant applications that witnesses not be televised at all, witnesses would need to establish that televising them would cause them greater harm and embarrassment than press reports. (e) Anderson This was the trial of a young man charged with six counts of murder and four of attempted murder. Being a paranoid schizophrenic, the defence was one of insanity. The application to televise was opposed by both the prosecution and the accused. Justice Penlington allowed televising, but prohibited all filming of the accused in court and the broadcast of pretrial footage of the accused. He also granted Rule B6 and B7 protection to a number of witnesses. Justice Penlington relied on two televised civil trials, Greensill158 and Phipps,159 and on Taylor v. Attorney-General160 as authority for his ruling that the inherent power of the court enabled him to order extended media coverage, even though the High Court in Hamilton was not one of the four courts designated for the pilot programme. That not all judges held this view was demonstrated by Chief Justice Eichelbaum’s refusal to permit the murder trial of David Bain in the High Court at Dunedin to be televised on the grounds that the Dunedin High Court was not a court approved for television coverage.161

157 158 159 161

‘Court restrictions limit coverage: TV stations’, above n. 154. Unreported, Hamilton High Court, Hammond J, 17 May 1995. [1997] 2 NZLR 598. 160 [1975] 2 NZLR 675. ‘Bain murder trial will not be televised’, Nelson Evening Mail, 28 April 1995.

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In his ruling, Justice Penlington reviewed the authorities and legal principles governing decisions regarding courtroom televising and reviewed the operation of the pilot up to that stage. Speaking at a later time,162 Justice Penlington commented on trends he had discerned to emerge in the pilot. Summing up the facts of the cases he noted that ‘the media tended to apply to cover high profile criminal cases only’, ‘that there was a constant testing of boundaries of the rules by the media representatives’, that ‘[i]n some cases the strictness of the conditions imposed by the trial Judge led the television interests to withdraw ahead of the trial’.163

3 Televised cases covered under Pilot Programme (a) Trials During the evaluation period, seven trials were televised. The first was Moresi,164 in which the accused was charged with murder. In Lory,165 the accused was charged with the murder of six persons who died in a fire at the Empire Hotel in Frankton. Justice Hammond enumerated factors determining whether televising ought to be permitted, and held that as a starting point television requests should not be refused unless good and sufficient reasons were established. He also ruled that as a matter of general policy, print and electronic media should be put on a more equal footing in cases of public concern. In approving the televising, Justice Hammond held the essential judgment questions to be whether there was any risk of lurid reporting or overdramatisation occurring, and whether the reporting would get out of hand and thereby prejudice the defendant’s fair trial. In Ramstead,166 Justice Ellis permitted radio, television and still photography coverage of a trial in which a surgeon was charged with the manslaughter of patients on whom he had performed surgery. Radio, television and still photography was also permitted in the criminal trial of Matenga. Radio and television coverage was also permitted in Beattie,167 a criminal trial in which a District Court Judge was charged with and 162 164 165

166 167

Penlington, ‘Television in the Courts’, above n. 54. 163 Ibid. 6–7. Unreported, Auckland High Court, Baragwanath J, 23 April 1996. [1997] 1 NZLR 44. The trial was held in Auckland following a successful change of venue application. Unreported, Wellington High Court, Ellis J, 23 September 1996. Unreported, Auckland High Court, Penlington J, 1997.

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acquitted of forty-five counts of fraudulently using a document in relation to his judicial travelling expenses. Justice Penlington later noted that during the three-week trial broadcasters presented twominute presentations of the day’s proceedings as required under the rules. He noted that ‘key points at issue were isolated with great clarity’.168 As noted above, the Anderson trial was not conducted in one of the four designated courts and consequently was subject to content analysis only. The criminal trial of Pou was also permitted to be televised.

(b) Sentencings During the evaluation period, four sentencings were also permitted to be broadcast. In R v. Hesketh169 a District Court Judge was sentenced after pleading guilty to charges of fraudulently using a document in relation to his judicial travelling expenses. The other televised sentencings were those in Poulter, Nathan and Taylor. (c) Still photography and radio As noted above, still photography had been permitted in two trials covered under pilot conditions, Ramstead and Matenga, and also in R v. Mahon, which was conducted in a court not covered by the pilot programme.170 Radio coverage had been permitted in the above-cited televised trials of Ramstead, Matenga and Beattie. Only radio covered R v. Chapman,171 the trial of the former Auditor-General of New Zealand, charged with a number of offences involving dishonesty in relation to the discharge of his public duties. 4 Lack of initial media interest In the first month of the pilot programme only three requests were received. TV3 Director Mark Jennings and TVNZ’s Shaun Brown attributed this lack of media interest to the strict rules governing such access

168 169 170

171

Penlington, ‘Television in the Courts’, above n. 54, at 15. Unreported, Auckland High Court, Tompkins J, 3 February 1997. Kimberley Allan, Judy McGregor and Susan Fountaine, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, Final Report (Report prepared for Department for Courts, April 1998), p. 13. Unreported, Wellington High Court, McGechan J, 1996.

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and the choice which television networks were forced to make between in and out of court coverage.172 This was graphically illustrated in the Barlow trial where, as noted above, television networks found the conditions which Justice Neazor imposed on television coverage to be too onerous, and chose to rely on out of court footage for the coverage of the trial.173 TVNZ managing editor of news and current affairs, Shaun Brown, explained that the ‘restrictions would have curtailed filming mainly to shots of the back of counsels’ heads and the trial judge’. He observed: What we have to balance up from the viewer’s point of view, is that, is the story going to be more clearly and fairly portrayed by using the new system or the old system? In this case we felt that with the new system the restrictions were such that we could not give it the sort of coverage that it required.174

Criticising the severity of conditions imposed by Justice Neazor in the Barlow trial and Chief Justice Eichelbaum’s refusal to permit the televising of the Bain trial,175 the New Zealand Herald observed how counterproductive such stances were, noting: At best the judges intend to experiment with cases of no outstanding fascination. But those are exactly the cases that will be covered, if at all, with the fleeting footage feared by those sceptical of the experiment. Television can best acquaint the public with the intricacies of justice in cases that can sustain extended attention. Two such trials have just presented themselves; they could have begun to illuminate justice.176

Apparently unwilling to recognise that overly onerous conditions would serve to confine televising to the highest profile criminal cases, Chief Justice Eichelbaum made the following observation in September 1995: So far one major homicide trial of about four weeks has been televised . . . In two other cases television withdrew their applications owing to dissatisfaction over the conditions and the number of witnesses who wished to have their identity disguised as provided in the rules. Permission has been given to televise a further high profile case involving attempted murder by 172

173

174 175 176

Van Beynen, ‘TV firms subdued over filming trials’, above n. 64. See also Campbell, above n. 62. TV 3’s Mark Jennings noted that ‘TV3 could give better coverage with a reporter inside and by filming people coming out’. See ‘TV pulls out’, The Evening Post, 27 May 1995. ‘Court restrictions limit coverage: TV stations’, above n. 154. Discussed above C.2(e). ‘Courts twice turn camera-shy’, New Zealand Herald, 31 May 1995.

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poisoning. Although the pilot is not so limited, it is clear that television is likely to be interested only in prominent criminal trials.177

The initial lack of media interest continued into 1996. In explanation, Miles QC noted: ‘It will come as no surprise that the primary interest shown by the two television networks has been the three most controversial murder trials staged in New Zealand over the last 15 months.’ Observing that ‘apart from an excess breath alcohol mitigation, there have only been three trials televised so far’, he suggested that there was ‘little likelihood of this pattern changing. The Reithian doctrine of obligation to educate, inform and entertain have long been amended; while New Zealand networks would still recognise an obligation to inform, the dominant drive is to entertain.’178

D Evaluation 1 Evaluation Committee In June 1995 the Courts Consultative Committee outlined a proposal for the operation and oversight of the pilot programme’s evaluation.179 It proposed that an evaluation team be established to evaluate the effectiveness of the operating procedures and the impact of the pilot on trial participants and the general public. Such an evaluation was to include a case-based investigation of the impact of the extended coverage on trial participants and a study of public perceptions of the pilot. An Evaluation Committee comprising representatives of the judiciary, legal profession, police and the media was set up to monitor the pilot programme and oversee the progress of the research. The Committee watched tapes of all broadcasts and discussed the in-court performance of the media and considered regular reports, as part of its ongoing assessment of the desirability of continuing the pilot. After one year of the pilot programme the Committee, though of the view that the product was good, noted concerns regarding the timeconsuming nature of the process.180 Sir Ivor Richardson acknowledged that it may be difficult to carry out an evaluation if the pool of cases remained limited and observed that because high profile cases had been 177 178 179

180

Eichelbaum, Report, Televising Court Proceedings, above n. 6, at pp. 2, 3. Miles, ‘Cameras in the Courtroom’, above n. 65, at 178, 179. Telephone conversation with Bev Hong, Research Co-ordinator, Department for Courts, 19 July 1996. In a personal meeting with Sir Ivor Richardson, Melbourne, 24 February 1996.

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televised the process of organising such filming had been difficult and particularly time-consuming for counsel and judges.181

2 Case-based research Submissions were invited from those wishing to undertake the research and evaluate the impact of the extended coverage.182 In March 1996 a research team from the Communications Programme of Massey University’s Department of Human Resource Management was commissioned to undertake the case-based evaluation.183 This team was asked to investigate the impact of the pilot programme on judges, lawyers, witnesses and jurors; the impact of the pilot on the representation of court cases in radio, television and photographic media; and the educational value of such extended media coverage. It was also asked to ascertain whether the pilot was operating in the best way possible, and to identify factors for consideration regarding the potential expansion of the scheme to other courts. The methodology of the research was modelled on that used by the Federal Judicial Center, in its evaluation of the US Federal Court Experiment,184 and involved the use of questionnaire surveys, interviews and content analysis of extended coverage.185 The case-based evaluation team’s first interim report186 presented the findings of the first series of interviews with key participants and the evaluation of one televised case. It revealed that of the fifteen cases the media had applied to cover, nine were covered, while in six coverage was declined or restrictions imposed that were unacceptable to the media.187 181 182 183

184 185

186 187

Ibid. Letter from Bev Hong to author, February 1996. For an outline of the nature of the Research, see ‘‘‘Context of the Research’’ extract from: The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, Summary of Findings May 1998’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 73. See further discussion above chapter 3 E.2(a). See evaluation of interview protocols, questionnaires and content analysis coding sheets in Appendices to First Interim Report of research team Kimberley Allan, Judy McGregor and Darrin Hodgetts, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, Interim Report One (Report prepared for the Department for Courts, Department of Human Resource Management, Faculty of Business Studies, Massey University, October 1996); Allan, McGregor and Fountaine, Final Report, above n. 170, ch. 1: ‘Methodologies’. See Allan, McGregor, and Hodgetts, Interim Report One, above n. 185. See ‘Tables of cases covered and applied for but not covered’ in ibid., p. 10.

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It noted that feedback as to balance, educational/informative value and accuracy of broadcasts was encouraging; and that the perceived impact of extended coverage on witnesses had not been shown to be significant. On the other hand, it identified a number of concerns. The first was the workload, time factors and the costs of implementing the pilot. The second related to the ambiguity and inconsistent application of certain guidelines, which though partly remedied by clarifications, continued to be a widespread and major concern. Further concerns regarding selectivity and sensationalism, lack of balance and perceived failure to educate appeared to relate to the two-minute rule imposed on news reports. Much of the feedback suggested that documentaries would be a more appropriate format for the attainment of potential benefits of televising, such as enhanced reporting. Concerns regarding the interpretation and inconsistent interpretation of some rules governing the television pilot led the Evaluation Committee to issue an Explanatory Comment on 1 June 1996, which specifically addressed the four-day notice rule, editorial comment in the two-minute rule, live reporting, filming of trial exhibits, Rule B6 protection and the use of out-of-court photographs.188 The second Interim Report of April 1997 focused largely on the Lory and Ramstead trials, while the third Interim Report of August 1997 concentrated on the Chapman and Matenga trials and the televised sentencing in Hesketh. The Final Report of the case-based evaluation was completed in April 1998.189

3 Evaluation of public perceptions UMR Insight, a survey research company, was engaged to undertake surveys of public perceptions of television coverage of court proceedings, at twelve-monthly intervals. The polling was to ascertain public support for or opposition to the pilot; awareness of the pilot; the educational value of televising court proceedings and whether and how it has raised public awareness of the operation of the justice system; and the possible impact of the pilot on the public as potential witnesses, in terms of whether potential witnesses are likely to be deterred from coming forward as a result of the increased publicity. 188

189

See ‘Evaluation Committee, ‘‘Explanatory Comment’’ 1 June 1996’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 6. See Allan, McGregor and Fountaine, Final Report, above n. 170.

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Public perception surveys conducted in February 1996,190 February 1997191 and February 1998192 revealed public opinion to be divided on the issues of courtroom televising, though public support was found to have risen significantly since 1996. While key aspects of the findings are discussed further in chapter 7,193 of concern were findings revealing that few felt that televising had educative value and most said it would influence their willingness to come forward as a witness. As I noted in my report to the Federal Court of Australia,194 the significance of the findings of the public opinion surveys is limited by the fact that no comparisons with public perceptions of the effect of conventional coverage were undertaken. A lack of consistency in the wording of questions used in the annual surveys also made the identification of trends all the more difficult.

4 The Final Report In May 1998, the Pilot Evaluation Committee published its final report.195 Its findings were mixed. The research and surveys disclosed that television cameras distracted most participating judges, caused half of them additional stress and increased the workload of court staff, while not having a significant negative impact on the majority of jurors, witnesses and counsel. It also revealed a majority of jurors to be favourably disposed towards televising; counsel and court staff to be evenly divided; and a majority of witnesses, judges and non-media stakeholders such as victim support group representatives, police and court registrars, to be opposed to in-court televised coverage. While most participants in televised proceedings were found to deem televised coverage to be educative, most of non-media stakeholders 190

191

192

193

194 195

See ‘UMR Insight Limited, Quantitative Summary, February 1996’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 52. See ‘UMR Insight Limited, Quantitative Summary, February 1997’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 53. See ‘UMR Insight Ltd, Media Coverage of Court Proceedings – A Summary Report [February 1998]’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 74. For a more detailed analysis see Stepniak, Electronic Media Coverage of Courts, above n. 1, at paras 3.14–18. Ibid. para. 3.18. See Media Coverage of Court Proceedings Pilot Evaluation Committee, Media Coverage of Court Proceedings, above n. 130.

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disagreed. Televised proceedings were found to provide more information about court proceedings and the legal process, but conventional coverage was found to provide more information about individual cases. Content analysis of broadcast materials also did not disclose any significant sensationalism or misrepresentation and a majority of participants were found to be satisfied with the balance and accuracy of televised coverage. Reflecting a factor which dogged the New Zealand pilot programme, media representatives expressed universal dissatisfaction with the stringency and differing interpretation of rules, especially those governing the coverage of witnesses.

E Recent studies Findings of the evaluation of public attitudes and of perceptions as to the effects of televising undertaken during the pilot project have been supplemented by two subsequent studies.

1 New Zealand Law Commission Research into the effects of media publicity on jurors, undertaken in 1999 by the New Zealand Law Commission,196 has served to provide further reassurance that televising as currently regulated does not prejudice the work of juries. The study, which is further considered in the context of a comparative analysis of such research in chapter 7, found that few jurors recollected pre-trial publicity,197 and that only two of 312 jurors deemed that their views of the case they were deciding may have been influenced by such publicity.198 Though jurors were found to be more aware of publicity during trials,199 none of the surveyed jurors felt that they had been 196

197

198 199

Undertaken as part of the New Zealand Law Commission’s review of juries in criminal trials. See Warren Young, Neil Cameron and Yvette Tinsley, Juries in Criminal Trials, Part Two: A Summary of the Research Findings, Law Commission of New Zealand Preliminary Paper 37 (1999), vol. 2, paras 7.46–57; New Zealand Law Commission, Juries in Criminal Trials, Report 69 (2001), para. 467 available from the New Zealand Law Commission’s website, www.lawcom.govt.nz at 17 April 2007. Young, Cameron and Tinsley, Juries in Criminal Trials, Part Two, above n. 196, at para. 7.48. Ibid. para. 7.49. In 42 per cent of cases one or more jurors encountered media coverage: ibid. para. 7.48.

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influenced.200 That jurors appeared not to be affected by media publicity did not lead the Commission to recommend a relaxation of current restraints on court reporting, as the Commission deemed such restraints to be in large measure accountable for the absence of prejudicial publicity.201

2 Paul Murray’s Survey of Barristers A 2002 survey of forty-five Auckland practitioners’ attitudes towards courtroom televising undertaken by Paul Murray,202 also served to update and supplement research undertaken during the pilot programme. While many of the survey’s findings are considered in chapter 7’s analysis of effects, some of its more interesting and revealing findings are set out briefly below. The significance of this survey becomes all the more apparent when it is noted that Murray surveyed forty-five practitioners with personal experience of in-court electronic media coverage,203 while the pilot programme evaluation only surveyed fourteen barristers with such experience. In finding a bare majority (51 per cent) of surveyed barristers to be opposed to the presence of cameras in court,204 Murray’s study underlines the New Zealand Bar’s continuing opposition to in-court cameras – an opposition in sharp contrast to the favourable disposition of the English Bar. Even this figure understates the level of opposition as many of the New Zealand barristers also attributed their lack of opposition to seeing televising as a fait accompli and thus not worth challenging.205 This attitude reinforces the view which many New Zealand practitioners and judges state (at least off the record), that televising had been imposed on them and is now destined to stay. With respect to the issue of adequate consultation about the introduction of televising, Paul Murray’s study revealed that 30 per cent of barristers still believed that consultation had been inadequate.206 A clear majority (64 per cent) also maintain that televising (and even more so, still photography) has an adverse effect on courtroom decorum.207 200 202

203 207

Ibid. para. 7.49. 201 Ibid. Murray, Electronic Media Coverage of Courts, above n. 3. The findings of the survey have recently been published in Paul Murray, ‘Electronic Media Coverage of Courts and the Role of Counsel: a Survey of Counsel’s Views and the Possible Impacts’ (2006) 11(1) MALR 26. Ibid. para. 7.1. 204 Ibid. p. 40. 205 Ibid. 206 Ibid. p. 46. Ibid. p. 47 (though some deemed making the proceedings more formal to be an adverse effect).

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Somewhat unexpectedly, almost half of the surveyed barristers (49 per cent) expressed a preference for two-minute sound bites rather than documentaries broadcast at the end of trials.208 However, as 68 per cent were found not to believe that televising was of educational benefit,209 the basis on which documentaries are preferred, such a finding should not be surprising. On a more positive note, 89 per cent held that the media had complied with guidelines,210 and 70 per cent believed that media behaviour improved with experience. They overwhelmingly stated that their greatest concerns related to media behaviour outside of courtrooms.211 Most (52 per cent) also stated that televising had no impact on the right to fair trial, and 63 per cent deemed the outcome of cases not to be affected.212 In a refreshing departure from findings which see entertainment and education as binaries, 33 per cent thought accurate and sensational portrayal of proceedings was not mutually exclusive.213 As to the impact of televising on their performance, 30 per cent said it caused them to be better prepared, while 52 per cent observed that televising caused their colleagues to be better prepared.214 Similarly, 80 per cent deemed that the presence of cameras did not cause them to behave theatrically, though only 49 per cent thought so with respect to their colleagues.215

F Post-Pilot Programme developments 1 Initial extension and expansion of televising That the future of extended media coverage of court proceedings would not be determined solely on the basis of the formal evaluation of the pilot programme was indicated some two months before the conclusion of the three-year pilot, when on 5 December 1997 the Courts Consultative Committee recommended that: from the end of the pilot period (31 January 1998), and pending decisions as to future coverage following evaluation of the pilot, the following procedures are to be followed during 1998: In pilot courts reporting should be on the same basis as if the pilot continued with the following modifications to rule B6: in a situation

208 210 213

Ibid. p. 42. Ibid. p. 48. Ibid. p. 41.

209 211 214

Ibid. pp. 44–5. Ibid. p. 48. 212 Ibid. p. 47. Ibid. p. 56. 215 Ibid. p. 57.

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where an accused declines to be photographed or filmed in court, the use of historical footage will be allowed if it predates the date of arrest. In other courts it is left entirely to the trial Judge’s discretion as to whether there should be electronic media coverage. All reporting allowed by electronic media is to be in terms of the pilot rules.216

In August 1998, some seven months after the conclusion of the pilot, the Courts Consultative Committee published a Discussion Document,217 ‘to facilitate a consultative process to determine the best option for the future of television, radio and still photography coverage of court proceedings, on the basis of the experiences of the 3-year pilot and of the research findings’. On 14 May 1999, a media statement titled ‘Judges Agree that Expanded Media Coverage of Courts will Continue’ was released by Neil Billington, the Courts’ Senior Judicial Communications Adviser. It quoted Sir Thomas Eichelbaum as stating: Judges have agreed that expanded media coverage of court proceedings be permitted in the High and District Courts, with the exception of the Family Court and mental health hearings . . . where a Judge permits expanded coverage of proceedings this ought to be done in accordance with a set of rules and voluntary Media Code of Conduct.

The media statement also signalled some relaxation of the rules, noting that while rules governing expanded coverage would be: essentially those that applied at the conclusion of the pilot . . . the accused will not be able to refuse as of right being filmed or photographed in the dock. This will now be at the discretion of the sitting judge . . . In civil proceedings, where parties or witnesses object to being filmed or photographed, the objection will be decided by the Judge on a discretionary basis.

The Chief Justice invited the media to offer their views on ‘the form of the Code of Conduct’ and established a Media in Courts Monitoring Committee, consisting of judges and members of news media, which he ‘charged to review existing protocols and consider improvements’.218 Such reviews have led to a number of revisions, beginning with the 216 217

218

Minutes of the Courts Consultative Committee Meeting, 5 December 1997. See Courts Consultative Committee, Media Coverage of Court Proceedings, Discussion Document (1998). Media in Courts Monitoring Committee, Expanded Media Coverage of Court Proceedings: a Consultation Paper (2001), p. 1.

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production of Draft Guidelines for Expanded Media Coverage in November 1999.

2 Further revision of guidelines under Chief Justice Elias In May 2000, the new Chief Justice Sian Elias released revised Guidelines for Expanded Media Coverage of Court Proceedings, containing an Explanatory Note, separate Guidelines for television, radio and photography, and a Voluntary Code of Conduct for the Media in respect of Expanded Coverage of Court Proceedings (In-Court Proceedings). In August 2000 a working party219 chaired by Justice Robertson was set up to monitor the operation of the new guidelines.220 Justice Chambers, who was a member of that Committee, notes that ‘[almost] immediately, it became clear that the 2000 guidelines contained a number of ambiguities’, that ‘the media representatives were opposed to various parts of the guidelines’ which they deemed to be ‘too restrictive’, and that ‘certain judges – a small minority – remained implacably opposed to television cameras in their courts and simply refused any application for expanded media coverage. This caused resentment in the media.’221 Recognising that the guidelines required revision, on 13 June 2001 the Media in Courts Monitoring Committee discussed revisions drafted by Justice Chambers with the assistance of Justice Tipping. It was decided that the revised guidelines and a consultation paper be distributed for consultation, and that stakeholders be invited to make comments to the Secretary by the end of August 2001.222 The consultation paper223 noted that the Committee had met on three occasions and had considered existing protocols comprising three separate documents: an explanatory note, a set of guidelines and a voluntary code of conduct for the media. The Committee recommended that one plain-English document protocol be adopted instead, as it was unhelpful and unnecessary to have the protocol spread over a number of documents. It proposed the adoption of a simplified procedure, anticipating that many applications could be dealt with by trial judges on the papers. It also recommended the removal of the non-discretionary, automatic right witnesses enjoyed 219 220 222 223

The Media in Courts Monitoring Committee. Chambers, ‘TV in courtrooms’, above n. 10, at para. 7. 221 Ibid. para. 8. Minutes of Media in Courts Monitoring Committee Meeting, 13 June 2001. Media in Courts Monitoring Committee, Expanded Media Coverage, above n. 218.

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to having identification protected, suggesting instead that witnesses be required to apply for a ruling that they not be filmed, photographed or recorded. It also recommended that live broadcasting be permitted, that the two-minute rule be abandoned and that all restrictions on what may be filmed outside the court be removed. A summary of the responses received224 revealed, inter alia, unanimous support for guidelines providing guidance on how various discretions should be exercised; mixed but largely negative responses as to whether any trial should be exempt from the guidelines; all bar media to be in favour of witnesses having the right to have appearance, voice or both distorted so as not to be recognisable; majority support for live broadcasts being permitted; and only media support for clips being able to be used in promotional material. This consultation led to a significant revamping of the guidelines and to the promulgation of new guidelines by Chief Justice Elias in late 2003.225 The new guidelines discarded the requirement that broadcasts using in-court footage ‘be without editorial comment and of at least two minutes duration per news item’.226 They also altered the protection available to witnesses by excluding the accused and official witnesses227 from those entitled to have their identity concealed through pixilation. While requiring broadcast on television to be on a ten-minute delay basis,228 they permitted live broadcast of appeal hearings, jury’s verdicts and sentencings when permitted by the judge.229 The new guidelines simplified the application process, making an application on paper possible, provided an application form,230set out standard conditions for television coverage which could be varied by

224

225

226

227

228 230

Memo, ‘Media in Courts: Summary of Responses’, from Justice Chambers to Barnaby Stewart, 13 November 2001. See Courts Consultative Committee, 2003 New Zealand Guidelines for Media Coverage of Court Proceedings (2003), www.courts.govt.nz/media/guidelines.html at 17 April 2007. As provided by ‘Guidelines for Coverage by Television of Court Proceedings, Guideline A1’ in Courts Consultative Committee, Guidelines for Expanded Media Coverage of Court Proceedings (May 2000). Defined in Guideline 3(1) as ‘a witness giving evidence in his or her official capacity, as opposed to personal capacity or an expert witness’: ibid. Ibid. Standard Condition 10, Sch. 2. 229 Ibid. Standard Condition 13, Sch. 2. Courts Consultative Committee, 2003 New Zealand Guidelines for Media Coverage of Court Proceedings, above n. 225, Sch. 1.

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judges,231 and listed factors which judges ‘may have regard to’ in considering an application. These are: (a) the underlying principles set out in guideline 2;232 (b) whether covering the trial is likely to affect adversely the quality of the evidence to be given by the witness; (c) whether the presence of a television camera or a photographer or radio crew is likely to lead to the witness not turning up to give evidence; (d) whether being filmed or photographed or recorded may cause undue stress or anxiety to the witness; (e) whether being filmed or photographed or recorded may lead to intimidation or harassment of the witness; (f) whether the witness’s privacy interests outweigh the public interest in broadcasting that witness’s evidence, given the likely significance of the evidence; (g) any other relevant matters.233

Justice Chambers, the current Chair of the Media in Courts Monitoring Committee, has observed that the guidelines benefit from being set out as rules234 and being deemed to apply ‘to all proceedings in the Court of Appeal, the High Court, and the District Court from 1 January 2004’.235 However, he also notes that ‘guideline 1(b) and (c) provide that the guidelines do not have legislative force, do not create rights, and should not be construed to create expectations’.236 He explains that while the ‘committee recommended that the status of the guidelines should be clarified and that they should be converted into rules officially made by the Rules Committee . . . [t]hat solution was not ultimately adopted, really to appease those judges who consider that they should be masters in their ‘‘own’’ courtrooms’.237 231 232

233

234

235

236

Ibid. Sch. 2. ‘[T]he need for a fair trial; the desirability of open justice; the principle that the media have an important role in the reporting of trials as the eyes and ears of the public; the importance of fair and balanced reporting of trials; court obligations to the victims of offences; and the interests and reasonable concerns and perceptions of victims and witnesses.’ Courts Consultative Committee, 2003 New Zealand Guidelines for Media Coverage of Court Proceedings, above n. 225, Guideline 11(6). Telephone conversation with Justice Chambers, Chair of the Media in Courts Monitoring Committee, 31 March 2005. Courts Consultative Committee, 2003 New Zealand Guidelines for Media Coverage of Court Proceedings, above n. 225, Guideline 1(a). Chambers, ‘TV in Courtrooms’, above n. 10, at para. 10. 237 Ibid.

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3 Effect of most recent changes to the regulation of court televising The latest revision of guidelines governing the coverage of New Zealand court proceedings by radio, television and still photography appears to have clarified the uncertainties and addressed most of the concerns of judges, media and lawyers, which had plagued the New Zealand experience of televising since the start of the pilot project. Judges are reported to find the process much less time-consuming.238 The requirement of ten days’ notice and settlement of witness protection issues appears to also have appeased the concerns of lawyers, judging by reports that ‘it is rare for applications to be opposed’.239 The media also finally appear to be ‘happy’240 as they are able to seek coverage of all proceedings unconstrained by the two-minute rule, and are no longer constrained by their inability to provide live broadcast or frustrated by all witnesses being able to seek identity protection as of right. Senior TVNZ reporter John Stewart reflects the television media’s reaction to the new guidelines by noting: ‘We now encounter much less suspicion and wariness from the legal profession and cameras in court have now settled down as a very routinely accepted part of the media presence in courts.’241 With respect to radio and press photography, he also notes that: the newspapers and radio have finally woken up and use much more visual and audio material than when the scheme first started. I suspect that in the case of the papers it was simply that it wasn’t built into their culture, whereas now they seem to automatically send a photographer along to court for the big cases, no doubt prompted by our coverage and the desire not to be seen being left behind.242

Some provisions of the revised guidelines bear testimony to the committee’s perseverance to achieve an acceptable compromise. Thus, for example, both the media’s desire to be permitted to cover sexual cases, prohibited in previous guidelines and constrained by section 139 of the Criminal Justice Act 1985, and the concerns of victim support groups have been taken into account in arriving at a procedure which removes

238 240

241

Ibid. para. 16. 239 Ibid. Telephone conversation with Justice Chambers, Chair of the Media in Courts Monitoring Committee, 31 March 2005. Email from John Stewart, senior TVNZ reporter, to author, 6 April 2005. 242 Ibid.

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the blanket prohibition on the coverage of sexual cases while requiring specific steps to evaluate the complainant’s views and concerns.243

4 Supreme Court The most recent and rather significant development relates to the Supreme Court of New Zealand, established on 1 January 2004 to replace the Judicial Committee of the Privy Council as New Zealand’s final court of appeal.244 Supreme Court media guidelines issued in September 2004245 state that ‘all applications to televise or otherwise record proceedings of the Supreme Court will be deemed to be approved unless a party indicates, within 3 days of being advised by the registrar of the application, that the party objects to it’.246 This indication that audio-visual coverage of New Zealand’s final court of appeal is to be regarded as the norm rather than the exception signals a recognition by the Court of the desirability of its proceedings being covered by all media. It may also reflect a response to public criticism surrounding the Court’s establishment. Prior to the Court’s establishment, I had urged that: the significant public concern voiced over New Zealand’s abolition of Privy Council appeals and the establishment of a New Zealand Court of Appeal could in large measure be addressed by ensuring that the public, already accustomed to viewing trial proceedings on television, would be able to scrutinise and judge for themselves whether the new court is politically biased.247 243

244 245

246 247

See Courts Consultative Committee, 2003 New Zealand Guidelines for Media Coverage of Court Proceedings, above n. 225, Guidelines 5(5), 6(2), 7; discussion of this issue in ibid. paras. 21–3. The Court began hearing appeals on 1 July 2004. See New Zealand Ministry of Justice, Supreme Court Media Guidelines (2004), www.courtsofnz.govt.nz/business/documents/SupremeCourt.pdf at 17 April 2007. Ibid. Guideline (1). Stepniak, ‘Technology and Public Access’, above n. 86, at 808. The footnote accompanying my comment also observed: ‘The public outcry over the government’s decision to abolish appeals to the Privy Council and set up a new Supreme Court has been led by New Zealand’s popular press. Under the heading ‘‘Judges will be Under Microscope’’, The New Zealand Herald’s October 15, 2003 editorial declared that: ‘‘it will fall to the news media to scrutinise Supreme Court appointments in a manner that judges in this country have never known. The influence these appointees could exert on our lives and rights cannot allow them to be installed without critical examination. This newspaper will ensure that each will receive our most careful and searching attention. The court will be no place for judges with a thin skin’’: ‘‘Judges will be Under Microscope’’, The New Zealand Herald, 15 October 2003, A18. In his letter to the editor, published in the Sunday Star Times on 19 October 2003, Auckland barrister Christopher Harder suggested that the formal recording of the proceedings of the new court would serve to ‘‘make the abolition of the Privy Council more palatable to those opposed to it’’: Christopher Harder, ‘‘Tapes in Court’’, Star Times, 19 October 2003, C9.’

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G Conclusion While the New Zealand experience with in-court cameras has received little public exposure overseas, it has certainly been closely followed by interested members of the judiciary in Britain, Australia and Canada. As revealed in earlier discussion, the New Zealand pilot programme has had a profound influence on Australian initiatives, especially in the Federal Court of Australia248 and the state courts of Victoria,249 South Australia250 and Western Australia.251 New Zealand’s approach to the issue has been a very pragmatic one, which contrasts with the rather more idealistic (some may say, optimistic) approaches of Canadian, American and Australian courts. The absence of high expectations behind the approach which has emphasised the provision of equal access to all media rather the enhancement of public education and access through audio-visual access may be said to be both the strength and weakness of the New Zealand experience. Its strength is that New Zealand has largely accomplished what it set out to do, in that court proceedings may now be said to be reported by all forms of mass media, courtroom televising and photography has become commonplace and applications are said to be rarely opposed. While somewhat surprisingly, figures are not available to substantiate the frequency with which television coverage of proceedings is now permitted in New Zealand,252 that audio-visual coverage is now routine appears to be a view held by recently consulted members of the New Zealand judiciary253 and media.254 248

249 250 251 252

253

254

The Federal Court has taken a keen interest in New Zealand developments and identified New Zealand as a jurisdiction whose experiences it wanted evaluated in commissioning me to prepare a report on international developments. See Stepniak, Electronic Media Coverage of Courts, above n. 1, Terms of Reference, p. xi. See discussed above chapter II(D)(5)(c) and (f). Chief Justice Doyle in particular has followed New Zealand developments, closely. Discussed above chapter 2 D.7(b). A point verified in a telephone conversation with Justice Chambers, Chair of the Media in Courts Monitoring Committee, 31 March 2005; email from John Stewart, senior TRVNZ reporter, to author, 6 April 2005; email from Neil Billington, Courts’ Senior Judicial Communications Adviser to author, 31 March 2005. As noted by Justice Chambers, Chair of the Media in Courts Monitoring Committee, telephone conversation with the author, 31 March 2005; Chambers, ‘TV in Courtrooms’, above n. 10. See views of John Stewart cited above n. 241, expressed in email communication dated 6 April 2005.

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It would also appear that an initially sceptical New Zealand judiciary has through experience come to recognise the benefits of televising, leading Justice Chambers to observe that in comparison Australian state court judges appear to be conservative and sceptical about the enhancing of public understanding through televising.255 The weakness of the pragmatic approach may be said to be that by focusing almost entirely on providing equal access to all news media, New Zealand courts have continued to rely on media interest and willingness to provide public access to broadcasts of proceedings. While New Zealand judges have been the driving force behind the introduction and maintenance of extended media access, they do not appear to proactively promote and complement audio-visual coverage in the way that some Australian, Canadian and American judges have. Perhaps one explanation for this may lie in the relative under-utilisation of technology by New Zealand courts. The recording of proceedings for transcription purposes is in its infancy and note taking by judges’ associates as a record of proceedings appears to still be the norm. Perhaps as New Zealand judges acquire and become accustomed to the in-court benefits of information and communication technology they will be more likely to play a more active role in ensuring that such technology is also utilised to facilitate public access to and understanding of proceedings, and not merely left to the media. The most significant aspects of New Zealand’s experience with televising are what it has revealed about the effect of entrenched rights and the crucial role played by judges. It is difficult to imagine that cameras would have been admitted into New Zealand courtrooms had the Bill of Rights Act not forced the judiciary to pre-emptively confront the issue of media access. It is also difficult to imagine that cameras would have remained in New Zealand courts long enough to become entrenched without the determination and commitment of Sir Thomas Eichelbaum and Sir Ivor Richardson, and more recently Justice Robertson and Justice Chambers. New Zealand’s pilot programme may also be said to offer a clear illustration of how it is invariably the decision to undertake experimental coverage rather than its evaluation which is the determinative step in the introduction and acceptance of extended media coverage. It also needs to be noted that that decisive step would not have been acceptable 255

Telephone conversation with Justice Chambers, Chair of the Media in Courts Monitoring Committee, 31 March 2005.

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in the absence of reassuring overseas studies on which the Courts Consultative Committee relied. While the findings of the New Zealand studies and pilot programme evaluation can hardly be described as conclusive, they are nevertheless reassuring to overseas courts considering the introduction of such coverage, and have certainly served to determine and refine the appropriate regulation of media reporting.

7 Comparative analysis of findings and conclusions

A Introduction This final chapter undertakes a comparative analysis of the findings of key British, American, Canadian, Australian and New Zealand experiments, studies and experiences with courtroom televising, reviewing and expanding earlier discussion of such findings with respect to specific jurisdictions. This analysis highlights patterns and common conclusions able to be discerned from the many attempts made to determine both the desirability and dangers of televised court proceedings. In reviewing findings with respect to the main specific concerns or purported benefits, this chapter’s discussion emphasises that evidence as to the effects of televising remains, and by its very nature appears destined to remain, inconclusive. It stresses that although it may be inconclusive, available evidence has consistently been found to be sufficiently positive to reassure courtroom participants and the public in countries experimenting with such coverage, as well as those in other jurisdictions considering the introduction of such coverage, of their value. Questioning the focus which has been placed on evidence as to effects, this chapter notes and illustrates that conclusive proof as to the absence of adverse effects has not been determinative of decisions to permit in-court televising nor of its acceptability. In emphasising that evidence as to effects has been shown to be inconclusive and not determinative this chapter restates a key argument set out in preceding chapters – that the focus of the cameras in courts debate needs to shift to factors which have been shown to be determinative of decisions to permit such coverage and of such coverage being deemed acceptable. Underlining hypotheses tested in all preceding chapters, this chapter recaps aspects of experiences of specific jurisdictions substantiating the determinative nature of three factors. The first factor is the recognition of legally enforceable rights of those seeking to televise or gain access to 351

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such recordings, and an accompanying culture of rights which makes such access both acceptable and deemed desirable. The second determinative factor is the availability and utilisation of information and communication technology which facilitates such coverage and enables it to be compatible with the fair administration of justice and facilitates the perception that justice is done in televised proceedings. The third, and arguably most pivotal, factor is the attitude of the judiciary. The argument is that judicial recognition of and commitment to the attainment of the benefits of court televising leads courts no longer to view such coverage as merely a right of the media. This in turn leads courts to move away from insisting on conclusive proof of no adverse effects, to cooperative facilitation of such coverage. The significance of recognising the determinative nature of these three factors is not only to reorient the focus of the debate but also to reconsider the basis on which audio-visual coverage is permitted and regulated.

B Evidence as to effects 1 Introduction In the past seventy years, audio-visual reporting of court proceedings in Britain, North America and Australasia has been the subject of numerous studies, experiments and evaluations. As the discussion of key evaluations in earlier chapters revealed, the main focus of the examination of experiences has been the ascertainment of the nature and extent of the effects of audio-visual recording and subsequent broadcasting on the participants in, and the decorum and dignity of, court proceedings. Less frequently, studies have also sought to ascertain public attitudes towards audio-visual reporting of court proceedings and the impact of such coverage on public understanding, respect and confidence in courts and the law. The following evaluation of evidence as to effects begins by considering the effect of in-court televising on courtroom proceedings and in turn on various categories of participants. It then moves on to consider evidence as to broader effects of courtroom televising, focusing on concerns regarding its potential to distort and sensationalise and on purported benefits flowing from its potential to educate and inform and its enhancement of the principle of open justice.

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The evidence considered expands on and highlights key findings of experiments, studies and evaluations undertaken in jurisdictions considered in preceding chapters. Though the Australian cameras in courts debate has been punctuated by calls for trial programmes to be undertaken to assess both the impact and desirability of televising,1 no formal studies seeking to measure the effect of televising have to date been undertaken in Australia. Nevertheless, Australia’s extensive experiences with the televising of judicial, quasi-judicial and parliamentary proceedings, reviews of the law’s regulation of court reporting and recent empirical research of the impact of media reporting on juries in criminal trials provide valuable data for comparison with, and assessment in the light of, overseas studies and experiences. The analysis in this chapter of disclosed effects emphasises the predominantly positive nature of findings. In particular, it highlights the favourable American experience, where, as outlined above chapter 3, over forty US states have formally assessed the effect of courtroom televising, concluding that what little undesirable impact is identified can be addressed through appropriate regulations.2 Thus, for example, Goldfarb’s analysis of studies undertaken in fifteen US states led him to conclude: ‘In state after state, the results were similar. Initial scepticism was replaced by general acceptance after actual experiences with television.’3 Similar conclusions were arrived at by the Federal Judicial Center following its study of the effects of courtroom televising revealed in twelve state studies.4 The favourable nature of American experiences has been acknowledged in other jurisdictions. Thus, for example, the appellants in the 1

2

3 4

For example, the New South Wales Law Reform Commission, Community Law Reform Program: Proceedings of Courts and Commissions Television Filming, Sound Recording and Public Broadcasting, Sketches and Photographs, Issues Paper 4 (1984), opened with the following statement: ‘The televising of the proceedings of courts has occurred on a number of occasions in Australia and it is now appropriate to consider the desirability of this practice and the type of proceedings that may be suitable for television coverage’: at 27, para. 4.1. See also Parliament of New South Wales Committee on the ICAC, Report on Inquiry into a Proposal for the Televising of Public Hearings of the Independent Commission Against Corruption (1990); Access to Justice Advisory Committee, Access to Justice: an Action Plan (1994); Daniel Stepniak, Electronic Media Coverage of Courts: a Report Prepared for the Federal Court of Australia (1998). For an overview of the findings, see Susanna Barber, ‘News Cameras in the Courtroom: a Review of the Empirical Literature’ (1986) 8 Progress in Communication Sciences 177. Ronald L. Goldfarb, TV or Not TV: Television, Justice, and the Courts (1998) 76. See Federal Judicial Center, Electronic Media Coverage of Federal Civil Proceedings: an Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals (1994), p. 7.

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Supreme Court of Canada appeal case Pilarinos and Clark sought to rely on the results of the Florida experiment as examined by the Florida Supreme Court in Re Petition of Post-Newsweek Stations, Florida, Inc., where the court found that ‘assumed influences upon participants during the experimental period were perceived to vary from not at all to slightly’ and that ‘it was the opinion of an overwhelming majority (90–95 per cent) of respondents to the survey of the Florida Conference of Circuit Judges that jurors, witnesses, and lawyers were not affected in the performance of their sworn duty in the courtroom’.5 The appellants also relied on the findings of the 1981 Ernest Short Report on the California experiment, which stated: The evaluators were able to see for themselves if witnesses were nervous, if prosecutors ‘played up to the camera’, if jurors were distracted, and if judges were unable to keep order. In general, none of the postulated disturbance-distraction-decorum effects occurred. There seemed little reason, in any event after event, to have many fears about the presence of EMC equipment and personnel inside the courtroom, under the controlled experimental conditions.6

The analysis of findings in this chapter emphasises, as earlier chapters revealed, that such findings and favourable conclusions have not been confined to the United States. For example, an international study undertaken by the English Bar7 led their working party to conclude that objections to televising were, ‘based largely on fears which, in practice, are revealed to be unfounded, and in part upon an emotive reaction to television’,8 and that, as any existing risks could be ‘effectively removed or controlled by the rules of coverage and the trial judge’s discretion . . . [they consequently] are not a justification for banning the camera altogether’.9 Canadian experiments with televising in the Federal and Nova Scotia Courts of Appeal reached similar conclusions.10 The Court and Media Liaison Committee which monitored Nova Scotia’s experiment observed 5

6

7

8 10

Re Petition of Post Newsweek Stations, Florida Inc. (1979) 370 So. 2d 764, 776 cited in Global BC et al., ‘Appellant’s Factum R v Pilarinos and Clark’ Court File No. 28823 (2002). Cited in Global BC et al., ‘Appellant’s Factum R v Pilarinos and Clark’ Court File No. 28823 (2002), para. 39. See Public Affairs Committee of the General Council of the Bar, Televising the Courts: Report of a Working Party of the Public Affairs Committee of the General Council of the Bar (1989) (Caplan Report). 9 Ibid. para. 6.1. Ibid. See discussion above chapter 4 B.5(a).

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that ‘nothing has come to light as a result of our pilot project to suggest that courts of appeal should be apprehensive about permitting limited and controlled camera access to their proceedings’.11 Commenting on available evidence as to the effects of televising, in an affidavit filed in the Supreme Court of Canada case of Pilarinos and Clark,12 Professor Freedman observed that: [T]he research presents no evidence that [the effect of television coverage] is harmful, and some evidence that it might have a positive effect. I agree that there is not enough research to draw absolutely definitive conclusions. But given the amount of research and the almost total lack of any effects, it seems highly likely that television coverage does not have negative effects . . . the overwhelming results are that there is no indication of any negative impact.13

After examining evidence as to particular effects, this section of the chapter addresses the reasons for, and evidence and implications of, the inconclusiveness of the findings. It emphasises that while the reports and recommendations of those who have undertaken studies and evaluations consistently suggest an absence or acceptable levels of impact on courtroom participants, their conclusions have been challenged and consequently rendered inconclusive. In particular, what is emphasised is that largely favourable evidence has been shown capable of being rendered inconclusive by dissenting voices. Thus, for example, as noted earlier,14 what is perhaps most surprising about the continued existence of the Canadian judiciary’s fears regarding the effect of televising on trials and their participants, is that this cannot be said to flow from Canada’s own extensive and largely problem free experiences with cameras in trial courts.15 Perhaps the most notable evidence is that flowing from Ontario’s 1982 experiment, in which Ontario’s Bench and Bar Council’s Special Committee on the Media expressed unanimous satisfaction with the experiment,16 and stated: ‘The cameras 11

12 13

14 15 16

‘Media Liaison Committee, ‘‘Report at Conclusion of Two-Year Camera Pilot Project’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 49, p. 3. 2001 BCSC 1332. Affidavit [27] cited in Global BC et al., ‘Appellant’s Factum R v Pilarinos and Clark’ Court File No. 28823 (2002) 16, para. 42. See above chapter 4 C.1. See above chapter 4 C.2–4 for a discussion. Daniel Henry, ‘Electronic Public Access to Court: a Proposal for its Implementation Today’ in Philip Anisman and Allen M. Linden (eds), The Media, the Courts and the Charter (1986), pp. 441, 461.

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and microphones were unobtrusive, there had been no interference with the rights of the accused to a fair trial, and the dignity of the courts had been preserved.’17 The feedback of participating judges and lawyers was reported to have been equally reassuring.18 Yet, such evidence was not accepted as conclusive in the light of reservations based on perceptions of US experiences, held by influential members of Ontario’s judiciary and legislature.19 Similarly, Justice McKinnon’s assessment of the effect of cameras in the 2000 British Columbia Supreme Court trial of R v. Cho20 appeared to echo the favourable findings of Ontario’s experiment. Following the trial Justice McKinnon had observed: All media involved behaved professionally, protecting the anonymity of jurors and complying with my directives in respect of other persons. The video cameraman and photographer were discreet, their equipment was relatively unobtrusive and no one involved seemed to pay the slightest attention to them.21

The unobtrusiveness of the camera’s presence appeared also to be supported by a defence lawyer in that case who indicated that ‘once he began his closing arguments he did not even notice the camera’.22 However, the prosecutor’s subsequent challenge of these positive assessments, in which he listed a number of concerns, including clients’ safety concerns for their images being broadcast, and concerns by jurors who did not wish to have their images broadcast, has been cited in subsequent cases not only as evidence of the inconclusiveness of the favourable assessments, but as evidence against the desirability of televising trial proceedings.23 The ability of one dissenting voice to counter and outweigh the favourable findings and recommendations of a twelve-person committee was 17

18 20 21

22

23

Ontario Bench and Bar Council, Television in the Courts: Background Paper 6 (September 1983) cited in ibid. p. 461. See responses cited in ibid. p. 461. 19 See above chapter 4 C.4(d) for a discussion. R v. Cho (2000) 146 CCC (3d) 513 (BCSC). See above chapter 4 C.4(b) for a discussion. ‘Preliminary View from the Bench’ issued on 20 August 2000. See further discussion above chapter 4 C.4(a). See Dan Burnett, ‘The Battle for Cameras in Court’, Broadcast Dialogue (March 2002), at 37 available at www.broadcastdialogue.com/article_view.asp?action=view&idnumber=333 at 17 April 2007. See affidavit evidence filed by the respondent in the R v. Pilarinos and Clark appeal to the Supreme Court of Canada: Attorney-General of British Columbia, ‘Factum of the Respondent R v. Pilarinos and Clark’ Court File No. 28823 (2002) Appendix A, Compendium of Transcript and Affidavit Evidence of Adverse Effects of Cameras in Court at 1.

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illustrated in the evaluation of New York State’s experiment with trial court televising. As discussed earlier,24 the findings of the majority report of the New York State Committee to Review Audio-Visual Coverage of Court Proceedings had made the following findings: The record developed by this Committee does not show that the fears regarding the impact of cameras on trial participants have been realized in New York during the experimental period. In our judgment, if subject to judicial discretion and accompanied by appropriate safeguards for trial participants, audio-visual coverage does not impair the search for justice. The many safeguards contained in Section 218 of the Judiciary Law, along with the recommendations in this report, if properly applied, address the fair concerns that have been raised. We therefore conclude that any impact cameras may have on trial participants does not justify an across-the-board ban of cameras in courtrooms.25

However, in his dissenting minority report Leonard Noisette suggested that the majority report findings were ‘not consistent with evidence gathered by the Committee which suggested that the televising of court proceedings has an adverse impact on trial participants and the conducting of a fair trial’.26 His dissenting opinion was deemed sufficient to render the majority report’s findings inconclusive and to their recommendations being rejected by the legislature of New York State.

2 Effect on courtroom participants (a) Disruption, distraction, decorum and dignity Recent experiences in all jurisdictions appear to establish that televising need not distract participants, disrupt proceedings nor adversely impact the decorum or dignity of court proceedings. That this could not always be said of cameras in courts was graphically illustrated in the 1945–46 Nuremberg trials of Nazi war criminals, where as Goldfarb notes: ‘Lighting equipment used to film the trials was so intrusive that several defendants in the dock wore dark glasses.’27 Similarly in the 1935 Hauptmann trial,28 ‘high intensity bulbs’ installed to light up the dim courtroom were said to ‘boost temperatures in the gallery to uncomfortable 24 25

26 28

See above chapter 3 D.3. New York State Committee to Review Audio-Visual Coverage of Court Proceedings, An Open Courtroom: Cameras in New York Courts (1997), pp. 66–7. Ibid. p. 215. 27 Goldfarb, TV or Not TV, above n. 3, at p. 9. State v. Hauptmann, 180 A 809 (NJ, 1935).

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levels’.29 The US Supreme Court’s description of the chaotic courtroom scene in the pre-trial hearing of the Estes trial30 sums up why even in the 1960s the presence of cameras was held to be inherently prejudicial to a fair trial. However, by the late 1970s experiments were beginning to reveal that advances in technology meant that the presence of cameras no longer needed to disrupt proceedings.31 This was recognised by American courts, most notably in In Re Petition of Post-Newsweek Stations, Florida, Inc.,32 and in Chandler v. Florida.33 Numerous American studies have confirmed the judicial findings based on earlier studies.34 This significance of technological change was more recently noted by the New Hampshire Supreme Court.35 Noting that studies conducted by other states had found that cameras cause only minimal physical disturbance during trials, the court observed that although recording equipment had been bulky, distracting and capable of detracting from the ‘integrity of proceedings’, advances in technology now enabled a trial ‘to be photographed and recorded in a dignified, unobtrusive manner’.36 The findings of the numerous American studies were relied on by the working party of the Bar Council of England and Wales, which in 29

30 31

32

33 34

35

36

See Marjorie Cohn and David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice (1998), p. 15; above chapter 3 D.2. See Estes v. Texas, 381 U.S. 532, 536 (1965); cited and discussed above chapter III(B)(6). Val E. Limburg et al., ‘How Print and Broadcast Journalists Perceive Performance of Reporters in Courtroom’ (1988) 65 Journalism Quarterly 621. See also David Graves, ‘Cameras in the Courts: the Situation Today’ (1979) 63 Judicature 24. See Re Petition of Post-Newsweek Stations, Florida Inc. for Change in Code of Judicial Conduct, 370 So. 2d 764 (Fla., 1979). 449 U.S. 560 (1981). For example, an empirical study conducted at the University of Florida in 1990 concluded that ‘the mere presence of television cameras does not tend to [cause] a disruption of the judicial process’: S. L. Alexander, ‘Cameras in the Courtroom: a Case Study’ (1991) 74 Judicature 307, 313. See also E. H. Short and Associates Inc., Evaluation of California’s Experiment with Extended Media Coverage of Courts (1981); Advisory Committee on Cameras in the Courtroom, Final Statistical Report: Cameras in the Courtroom in Nevada (1981); R. Baker, Cameras and Recorders in Arizona’s Trial Courts (1983); Mickey Beisman, ‘In the Wake of Chandler v Florida: a Comprehensive Approach to the Implementation of Cameras in the Courtroom’ (1981) 33 Federal Communications Law Journal 117; New York State Committee, An Open Courtroom, above n. 25, at p. 53. New Hampshire Supreme Court, Petition of WMUR Channel 9 on 13 December 2002. See above chapter III(D)(2) for a discussion. See Barbara Wartelle Wall, Cameras Allowed at all Open Court Proceedings, New Hampshire Court Rules (2003) Gannett, www.gannett.com/go/newswatch/2003/january/nw0117-11. htm at 17 April 2007.

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recommending the televising of English courtroom proceedings, observed that formerly valid objections based on the disruptiveness of recording equipment had been eliminated by advances in technology ensuring that ‘both intrusion and disruption can be entirely eliminated’.37 Australia’s experiences with the televising of parliamentary proceedings and other quasi-judicial proceedings have also revealed that such coverage need not cause physical disruption or distraction. Echoing the findings of the 1981 US Supreme Court decision in Chandler, in 1984 the New South Wales Law Reform Commission concluded: ‘Recent advances in technology may mean that there is no longer a risk of physical disruption of proceedings . . . provided proper guidelines are established.’38 A few years later evidence presented to the New South Wales Parliamentary Committee on the Independent Commission Against Corruption (ICAC)39 also clearly established that in view of available technology there was no longer any reason why physical disturbance of proceedings could not be avoided.40 In view of the subsequent significant advances in communication technology, and the experiences of Australian courts which do not disclose any evidence of such an effect, it is clear that if used appropriately, fear of physical disruption caused by the presence of audiovisual recording equipment need no longer be an issue. However, while it is undeniable that televising need no longer be disruptive, some findings suggest that the presence of television cameras can still be physically distracting. Thus, for example, in New Zealand, where the presence of television cameras remains very visible,41 a 2002 survey of forty-five Auckland barristers with prior personal experience of televised

37 38 39 40 41

Caplan Report above n. 7, at paras 4.5, 5.1. NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.52. Parliament of New South Wales Committee on the ICAC, Report on Inquiry, above n. 1. See 26 March 1990 submission of journalist Paul White: ibid. New Zealand’s Standard Conditions for Television Coverage stipulate that ‘Only one camera may be situated in the court room’ (Condition 1); require such a camera ‘to be situated in a position approved by the Judge’ (Condition 2); and require the presence of media personnel to be as unobtrusive as possible (Condition 3). See Ministry of Justice, In-Court Media Coverage Guidelines (2003) Sch. 2, www.courts.govt.nz/media/ at 17 April 2007. A tripod-mounted television camera, camera operator and sometimes a person instructing the camera operator are typically positioned between the bench and jury box so as to be able to pan from the bench to the Bar table and the witness box without showing the jury. For a further discussion of New Zealand Guidelines see above chapter 6 B.2(c) and F.2.

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proceedings42 revealed 47 per cent as saying that electronic media coverage of proceedings created a physical distraction.43 This finding appears to highlight the importance of judges ensuring that recording equipment is utilised appropriately in order to ensure that the presence of cameras is not distracting. It arguably also reinforces the desirability of requiring the media to use much smaller wall-mounted, remotecontrolled cameras.44 While requiring the media to utilise courts’ own permanently installed recording equipment may ensure the elimination of concerns regarding physical disruption or distraction, it remains contingent on courts possessing such recording equipment and being willing to make it available to the media. While it is clear that current technology ensures that televising need no longer be intrinsically disruptive, Australia’s experiences suggest that where courts value rather than merely tolerate televising, the issue of disruption is addressed very differently. Thus, the physical disruption tolerated in the recording of the Federal Court’s Native Title cases heard in remote locations45 and Western Australian courts’ reorganisation of their schedules to facilitate the recording of their first televised proceedings documentary46 appear to illustrate that where courts recognise the benefits of televising, they are less likely to be concerned with securing guarantees of absolute unobtrusiveness, and more willing to tolerate unavoidable disruption of court schedules and even incidental physical disruption. The virtual elimination of physical disruption is also attributable to the development of appropriate guidelines regulating courtroom recordings. In 1994, the Access to Justice Advisory Committee recommended the adoption of guidelines to allow: no more than a specified number of television cameras, each operated by not more than a specified number of camera persons . . . require the media . . . 42

43 44

45

46

Paul Murray, ‘Electronic Media Coverage of Courts and the Role of Counsel: a Survey of Possible Impacts’, Unpublished dissertation presented in partial fulfilment of the University of Auckland Bachelor of Laws (Hons) (2003). Recently published in Paul Murray, ‘Electronic Media Coverage of Courts and the Role of Counsel: a Survey of Counsel’s Views and the Possible Impacts’ (2006) 11(1) MALR 26. Ibid. para. 8.5. See e.g., above chapters 3 D.5 and 6 B.3(a) for a discussion of the recording of proceedings in Washington State and the Supreme Court of Canada respectively. See Stepniak, Electronic Media Coverage of Courts, above n. 1, at paras. 7.4–7.9 for a discussion of the recording of the Yorta Yorta Native Title. For a discussion of the courts’ facilitation of the recording of the state’s first televised proceedings for the documentary Scales of Justice, see Stepniak, Electronic Media Coverage of Courts, above n. 1, at para. 7.56.

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to pool equipment and personnel . . . provide [that] equipment should not produce distracting sound or light and prohibit movie lights, flash attachments, or sudden lighting changes.47

Such provisions reflect almost universally adopted standards.48 Over the past ten years restrictions along these lines have been formally49 or informally50 applied in all Australian televised proceedings. 47 48

49

50

Access to Justice Advisory Committee, Access to Justice, above n. 1, at para. 20.37. See above chapter 6 F.2 for a discussion; Stepniak, Electronic Media Coverage of Courts, above n. 1, ch. 9; Caplan Report, above n. 7, ch. 5, Appendices B and C; Department for Constitutional Affairs, Broadcasting Courts: a Consultation by the Department for Constitutional Affairs (November 2004), www.dca.gov.uk/consult/courts/broadcastingcp28-04.htm at 17 April 2007 Annexure 4; Radio-Television News Directors’ Association and Foundation, Cameras in the Court: a State-by-State Guide (2003), www.rtnda.org/foi/ scc.shtml at 17 April 2007. See also ‘RTNDA, ‘‘Model Guidelines Governing Electronic Public Access to Proceedings’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 34, where the Radio-Television News Directors’ Association of Canada guidelines based on those considered in Chandler, were used successfully in the Ontario experiment, and recommended as model guidelines by the Law Reform Commission of Canada; the Statute and Regulations which governed the ten-year experiment in New York in ‘Judiciary Law, Section 218’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 58 and ‘Rules of the Chief Administrative Judge’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 59; ‘Order of Supreme Court of Indiana, Justice R T Shepard, Chief Justice of Indiana, 14 March 1997, ‘‘Standards Governing Electronic Media and Photography of Oral Arguments’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 8; Rule 980 of the California Rules of Court; Judicial Council of California, Cameras in the Courtroom: Report on Rule 980 (May 2000); ‘Guidelines for the Pilot Program on Photographing, Recording and Broadcasting in the Courtrooms’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 15; ‘Pilot Project: Cameras in the Novia Scotia Court of Appeal, Rules and Guidelines’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 27; ‘Renewal of Pilot Project: [Guidelines] Governing Broadcasts of the Supreme Court of Canada’s Hearings by CPAC [1996]’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 32; ‘Renewal of Pilot Project: [Guidelines] Governing Broadcasts of the Supreme Court of Canada’s Hearings by CPAC [1997]’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 50; ‘Guidelines for the Occasional Audio Recording of Cases for Radio Documentary Purposes’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 43; ‘Guidelines for Electronic Coverage of Judicial Proceedings, Western Australia’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 54; Lord Hope’s guidelines in Department for Constitutional Affairs, Broadcasting Courts: a Consultation by the Department for Constitutional Affairs (November 2004) Annexure C, www.dca. gov.uk/consult/courts/broadcasting-cp28-04.htm at 17 April 2007. See Stepniak, Electronic Media Coverage of Courts, above n. 1, at para. 7.55 and above chapter V(E)(1) for a discussion of the Western Australian guidelines. See. e.g., discussion of guidelines applied in recordings of Federal Court proceedings; Bruce Phillips, ‘Television in the Federal Court of Australia 1994–2004,’ paper prepared in response to November 2004 ‘Broadcasting Courts: A Consultation by the Department for Constitutional Affairs’ (24 December 2004).

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The audio-visual recording of court proceedings has not only managed to avoid physical disruption, but as the NSW Law Reform Commission observed,51 it has also served to minimise the level of disturbance and distraction caused by the presence of journalists in court. It has done so by facilitating audio-visual coverage in media rooms and facilities outside of the courtroom, most notably in the 1981 trial of Michael and Lindy Chamberlain,52 and the 2004 committal hearing of Bradley Murdoch charged with the 2001 murder of British backpacker Peter Falconio, and with the deprivation of liberty and aggravated assault of his girlfriend Joanne Lees,53 which attracted significant national and international media attention. While the NSW Parliamentary Joint Committee on the ICAC had also noted the potential for televising to reduce the incidence of ‘media scrums’ outside courts, it acknowledged that such an effect could not be guaranteed.54 Indeed, such an effect appeared to be premised on the belief that if provided with an opportunity to record in-court footage, media networks would not also seek to record out of court footage. However, experiences in Australia and overseas suggest that media networks prefer to utilise a mixture of in-court and out of court materials in broadcasts. For example, in the Australian Broadcasting Authority’s 1999 Commercial Radio Inquiry, media reports were said to have used roughly equal amounts of footage from inside and outside of the hearing room.55 The New Zealand experience, where televising was initially permitted on condition that networks utilising such access did not also broadcast footage recorded outside of the courtroom, has revealed that the imposition of such a condition has been strongly opposed by the 51 52

53

54 55

NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 37. Though television cameras were not permitted to record the proceedings of the 1982 trial of Lindy and Michael Chamberlain, acting with the consent of all parties, the trial judge, Justice Muirhead, facilitated the presence of the world’s media by permitting closed circuit television transmission of proceedings to a separate room of the Darwin Supreme Court: NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.33. The hearing was heard in a specially fitted out high-tech courtroom of the Darwin Supreme Court. Magistrate Alistair McGregor permitted cameras to record the opening remarks on 17 May 2004, following which the large international media presence was accommodated as it had been twenty-two years earlier in the Chamberlain trial by having audio-visual coverage relayed to the media room: Karen Michelmore, ‘NT government spends $1 m on Falconio case’, AAP, 22 April 2004. See above chapter 5 D.2(b). Telephone conversation with Donald Robertson, ABA Manager, Media and PR, 16 December 1999.

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media, and that the media, when forced to choose, has in some cases preferred out of court footage to in-court recordings.56 Regardless of whether the lack of in-court disruption can lessen the impact of out of court media reporting, the availability of technology to ensure that proceedings need not be disrupted clearly challenges the exclusion of television cameras from courts purely on the basis of their perceived potential to physically distract and disrupt proceedings, which underlies unauthorised televising being perceived as contempt in the face of the court, and is used to justify the presumption against televising in the exercise of judges’ discretionary power to regulate proceedings.57 The elimination of any necessary physical disruption through developments in technology and development of appropriate guidelines and restrictions has in large measure also served to address concerns regarding potentially detrimental effects on the decorum and dignity of proceedings. Thus, for example, the evaluation of Nova Scotia’s pilot project in its Court of Appeals specifically noted: ‘The decorum of the court has not been negatively affected. There have been no embarrassing incidents, no attempts by the media to take improper advantage of the privilege they have been granted. We have established a precedent without creating a monster.’58 In support of their submission that televising had been shown not to adversely effect the dignity of proceedings, the appellants in the Supreme Court of Canada case of Pilarinos and Clark59 observed that the dignity of proceedings in the Supreme Court of Canada had not been diminished by the Court’s hearings being routinely recorded and broadcast since 1995. They argued that ‘[i]n Canadian courts the pooling arrangements and ongoing control of the presiding judge ensure decorum’.60 The appellants also relied on a Massachusetts study providing evidence of televising actually enhancing the dignity of proceedings. The study had concluded that televising ‘appears to have opened up court proceedings to a much broader public audience . . . [and] has given the 56 57 58

59 60

See above chapter 5 C.4 for discussion. See above chapter 5 B.2 and 3 for discussion. ‘Media Liaison Committee, ‘‘Report at Conclusion of Two-Year Camera Pilot Project’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 49, p. 3. Global BC et al., ‘Appellant’s Factum R v Pilarinos and Clark’ Court File No. 28823 (2002). Ibid. 21, at para. 59. That courts have the power to ensure that cameras do not affect the decorum of proceedings was emphasised recently by Sir Louis Blom-Cooper QC. See Louis Blom-Cooper QC, Broadcasting Courts Seminar: Televising Inquiries, Speech by Sir Louis Blom-Cooper QC, Department for Constitutional Affairs, www.dca.gov.uk/consult/courts/ speeches/blom-cooper.htm at 17 April 2007, at 2; above chapter II(M)(4).

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public an enhanced awareness of the skill and dignity with which justice is administered in the Courts of the Commonwealth’.61 Paul Murray’s 2002 survey of Auckland barristers also revealed that 64 per cent felt that decorum had not been not adversely affected by electronic media coverage.62 While documenting some perceptions that the presence of cameras affected the in-court behaviour of counsel,63 Murray also notes that in an interesting twist on the concern that television cameras undermine the solemnity of court proceedings a ‘common feature of participant’s responses was the observation that electronic media coverage tended to make the court more formal’. He cites a lawyer as observing: I think almost always there’s supposed to be good standards of decorum in courts but the reality is when cameras aren’t there it can become quite an informal place . . . certainly when the cameras are there everything is done on an extremely formal footing which can tend to draw proceedings out or make simple applications quite complicated.64

Noting suggestions that free-flowing dialogue between counsel may be inhibited,65 Murray recounts that some counsel suggested that fear of being recorded had affected the relationship between some counsel ‘leading a number of counsel to reduce the number of informal conversations they conduct with their colleagues inside the courtroom’.66 However, not everyone has concluded that the virtual elimination of physical disruption has also led to the elimination of detrimental effect on dignity and decorum. Of the 665 trial and appellate judges who responded to the California task force’s survey of the views of the Californian judiciary on the issue of the desirability of televising Californian courtroom proceedings,67 63 per cent indicated that the presence of television cameras in the court impaired judicial dignity and courtroom decorum.68 However, it is important to note that the 61

62 63

64 65 66 67

68

Massachusetts study cited in Global BC et al., ‘Appellant’s Factum R v Pilarinos and Clark’ Court File No. 28823 (2002) at para. 60. Murray, ‘Electronic Media Coverage of Courts’, above n. 42, at para. 8.3. One interviewee noted ‘I once saw one counsel literally have a fight to try and get a seat in a trial closest to the cameras’: ibid. Lawyer 13 cited ibid. para. 8.3. Ibid. p. 24, citing B. Donald, ‘Cameras in the Supreme Court, No’ (1989) 75 ABAJ 34. Murray, ‘Electronic Media Coverage of Courts’, above n. 42, at para. 8.5(i). See ‘Rule 980 Task Force Survey of California Judges, Questionnaire’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 10. Ibid.

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approximately 470 judges who personally experienced courtroom televising expressed views much more favourably disposed to court televising. For example, 77 per cent said that televising had no effect on their ability to maintain courtroom order and control of proceedings.69 The survey also revealed the significant extent to which the televising of the O.J. Simpson trial had changed judicial opinion of the value of court televising. Of the 59 per cent of judges who indicated that the Simpson trial had changed their opinion of the value of televising, 94 per cent deemed televised court proceedings to be less valuable than before the O.J. Simpson trial.70 Consequently, in rejecting calls for a total ban on court televising the task force noted the influence of the O.J. Simpson trial and the difference in the views expressed by judges with experience of televising, and those without such personal experience, whose perceptions tended to be more negative.71

(b) Psychological effect on courtroom participants Irrespective of how unobtrusive television recording may have become, concerns continue to be voiced about the psychological effects on parties and courtroom participants flowing from their awareness that proceedings are being recorded. This has become the new focus of opposition to televising, as Goldfarb has observed: Sceptics have shifted their criticism of cameras in courts through the years. Several decades ago, the most common objection raised against television in courts was that the cameras were obtrusive, noisy and disruptive. Now that the technology is such that camera coverage of court proceedings is invisible and decorous, the argument against television has changed. Today the chief criticism – unprovable, though logical and widely held – is that the presence of cameras inevitably changes the behaviour of the trial participants in negative ways.72

Similarly in reviewing audio-visual coverage of New York court proceedings, the New York State Committee identified the question, ‘whether 69

70 71

72

Administrative Office of the Courts of the State of California, Task Force on Photographing, Recording and Broadcasting in the Courtroom, Report Summary (1996). See ‘Rule 980 Task Force Survey of California Judges, Summary Results’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 11. Ibid. See Judicial Council of California, Report by Task Force on Photographing, Recording and Broadcasting in the Courtroom (February 1996). See above chapter 3 D.4 for a further discussion. Goldfarb, TV or Not TV, above n. 3, at p. 162.

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cameras have an impact on trial participants – the jurors, the witnesses, the lawyers or the judge, and ultimately on the outcome of the case’, as being ‘at the core of the debate over the wisdom of allowing cameras in the courtroom’.73 It also noted that while concerns that the camera itself might distract participants ‘have been laid to rest’ ‘[w]hat remains very much alive are the concerns about the psychological impact of the camera: how will the realization that their every word or gesture is being transmitted to a vast, unseen audience affect the behavior of trial participants?’74 The dominant role played by continuing concerns regarding the effect on courtroom participants was also revealed in the Canadian Judicial Council’s March 2002 decision to reconsider its opposition to the televising of appeal proceedings but to retain its policy opposing the televising of trial proceedings, when in explanation the Council emphasised that ‘[m]any council members remained concerned about television’s effect on witnesses, jurors and trial proceedings generally’.75 While Australia’s experiences have served to further allay fears regarding the potential detrimental psychological effects of televising,76 they have not produced the empirical evidence sought by those opposed to televising.

(c) Effect on the right to a fair trial Since the 1965 decision of the US Supreme Court in Estes, only very rarely77 have American courts ordered a retrial on the grounds that television coverage deprived the defendant of the constitutional right to a fair trial.78 Studies have tended to conclude that televising has not 73 74 75 76 77

78

New York State Committee, An Open Courtroom, above n. 25, at pp. 52–3. Ibid. p. 53. Canadian Judicial Council, Annual Report 2001–02 (2002), p. 26. See above chapter 5 G.1 for discussion. The rarity of such a finding was underlined by Silverstein who observed that ‘In twentyone years of trial broadcasting in Colorado, the grave apprehensions postulated by opponents to televised trials have not come to pass. Significantly in Colorado there has not been one reversal due to television’s alleged infringement of one’s right to a fair trial.’ See Duane Silverstein, ‘TV Comes to the Courts’ (1978) 2 State Court Journal 15, 53. See also Robert E. Drechsel, ‘An Alternative View of Media-Judiciary Relations: What the Non-Legal Evidence Suggests about the Fair Trial–Free Press Issue’ (1989) 18 Hofstra Law Review 1, 11–19. A rare but notable instance was Green v. State, where the Florida Court of Appeal quashed the defendant’s conviction and ordered a retrial having found that the trial judge’s refusal to exclude television cameras from the trial had ‘such an adverse psychological impact as to render her incompetent to stand trial’: Green v. State, 377 So. 2d 193, 200 (1979) (Hubbart J).

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deprived defendants of their right to a fair trial.79 Nevertheless, contrary views disclosed by studies, particularly when expressed by significant numbers, cannot be ignored. The fact that of 665 trial and appellate judges who responded to the California task force’s survey, 70 per cent indicated that, in their opinion, the presence of the electronic media within the courtroom had affected parties’ rights to a fair trial,80 suggests that some doubt exists as to whether televising may adversely affect a party’s right to a fair trial. However, it is important to emphasise that the California task force finding reflected the perceptions of judges as to whether televising may affect such a right and not whether it has in fact done so, or whether televising inherently has that effect. As discussed in Chapter 3,81 the task force had observed that in contrast to the overall majority of judges who favoured a ban on the televising of courtroom proceedings, judges who had personally experienced televised proceedings, ‘tended to be less likely to support a total ban’.82 On this basis the task force expressly distinguished the views expressed by those who had personal experience of cameras in courts, from the more negative perceptions of those who had no such personal experience. Barber’s analysis of nineteen empirical studies conducted in US state courts between 1975 and 198183 reveals divergent findings as to the impact of camera coverage on defendants. She notes that surveys and case studies conducted by the Hawaii State Bar Association reported a case in which ‘all 13 jurors said cameras had no impact on the parties in the trial’.84 She also notes that the 1981 California Study of Extended Coverage conducted by Short revealed 29 per cent of defendants to have said that ‘they feared physical, psychological, financial, or reputational harm as a consequence of electronic media coverage of proceedings’.85 The 1978 Survey conducted by the Florida Conference of Circuit Judges revealed that ‘judges overwhelmingly said criminal defendants and civil 79

80

81 82

83 84

See e.g., above chapter 4 C.4(a) for the discussion of the 1982 Ontario experiment. See especially the findings of the Ontario Bench and Bar Council, Television in the Courts, above n. 17, cited in Henry, ‘Electronic Public Access to Court’, above n. 16, at 461. See above chapter IV(C)(4)(a). Ibid. See ‘Rule 980 Task Force Survey of California Judges, Questionnaire’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 10. See discussion above chapter 3 D.4. Judicial Council of California, Report by Task Force on Photographing, Recording and Broadcasting in the Courtroom, above n. 71, at p. 8. Barber, ‘News Cameras in the Courtroom’, above n. 2. Ibid. at 193. 85 Ibid.

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litigants were unaffected by camera presence’.86 However, Barber notes that the Strawn, Buchanan, Meeske, Pryor Report on their 1978 Florida survey revealed that while judges felt that ‘camera coverage did not cause defendants undue embarrassment or indignities’, attorneys and witnesses ‘had far more negative perceptions’. In particular Barber noted that: nearly 50 percent of attorneys said television coverage caused defendants undue embarrassment and indignities, and only about 40 percent of witnesses said camera coverage was fair to defendants. [She also noted that] Camera coverage was perceived as fair to defendants by only just over 50 percent of jurors; 60 percent of spectators, court clerks and bailiffs; and 20 percent of court reporters.87

Murray’s 2002 survey of Auckland barristers also revealed lawyers to be almost evenly divided on the impact of televising on defendants with 52 per cent indicating that there was no impact on the right to a fair trial.88 While most said that ‘the guidelines and the control of the court prevented any major problems in this regard’,89 Murray notes that ‘[s]ome participants relayed personal experiences of instances where, in their opinion, either a fair trial or the outcome of a proceeding have been affected’.90 The key concerns appeared to relate to pressure arising from greater publicity and in particular jurors being influenced by television coverage.91

(d) Effect on witnesses In 1984, the New South Wales Law Reform Commission acknowledged the concern that: ‘in the presence of television cameras, some witnesses may become extremely nervous and a jury may find it difficult to decide whether the resultant lack of composure by the witness is attributable to the television cameras or cross-examination by counsel’.92 While the argument that televising will undoubtedly further exacerbate an experience which participants already find stressful and intimidating is most compelling, the findings of experiments and evaluations are mixed and inconclusive.93 86 88 89 92 93

Ibid. 87 Ibid. at 193–4. Murray, ‘Electronic Media Coverage of Courts’, above n. 42, at para. 8.4(a). Ibid. 90 Ibid. 91 Ibid. NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.44. See Stepniak, Electronic Media Coverage of Courts, above n. 1, at para. 8.28.

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The evaluation of New York’s experiment, in particular, revealed substantial evidence of both beneficial and detrimental effects. In considering whether the presence of cameras in the courtroom deters potential witnesses from coming forward, the New York State Committee heard testimony alleging that ‘the impact of cameras in the courtroom on sexual assault survivors is immense’, that ‘high profile cases negatively impact on survivors’ willingness to report’,94 that by having a chilling effect on victims or witnesses camera coverage would affect their willingness either to report a crime or testify in court, and that camera coverage would subject victims and their families to unwarranted public scrutiny and attention.95 Highlighting how even an initial effect on a witness may affect a trial, a witness observed that ‘even if witnesses eventually get used to the camera . . . the jury’s impression of a witness is formed right from the beginning’, it can colour ‘the jury’s view of the witness’ credibility and can influence the jury’s fact finding function’.96 On the other hand, the Committee also heard that televising had ‘prompted witnesses, who did not realize the potential significance of their testimony until they saw a case on television to come forward’. In support of this contention the Committee was told that ‘television coverage of the Simpson case led a key defense witness to come forward who might not otherwise have realized the relevance of her testimony’.97 As to the effect of cameras on witnesses in court, the Committee heard that some witnesses were less likely to perjure themselves in ‘public proceedings at which cameras were present’ while others were likely to feel intimidated.98 The results of the Marist Institute of Public Opinion Poll, conducted as part of the New York review, revealed that 54 per cent of respondents said they would be less willing to testify as a witness to a crime and 45 per cent would be less willing to testify in a civil case, if cameras were present. A survey of New York judges experienced with cameras in court found that 40 per cent agreed that ‘witnesses were more nervous in the presence of cameras’; 40 per cent held that ‘witnesses’ testimony was unchanged in the presence of cameras’; 32 per cent considered that witnesses were distracted by the presence of TV cameras; 22 per cent deemed witness testimony to be more guarded in the presence of cameras; while 32 per cent said that witnesses’ privacy was violated by the presence of cameras. 94 95 96

New York State Committee, An Open Courtroom, above n. 25, at p. 58. See submissions outlined in ibid. pp. 39–40. Ibid. p. 61. 97 Ibid. p. 59. 98 Ibid. p. 35.

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Despite such mixed findings, the New York Committee concluded that ‘witness intimidation is neither borne out . . . nor sufficiently strong to warrant banning cameras from the court room across-the-board’.99 Perhaps not surprisingly, on the other hand, the dissenting minority report of Noisette cited the testimony of Dean George Gerbner of the Annenberg School of Communications, who argued that ‘the quantitative addition of television coverage to the trial dynamic is immense’, and that ‘if you change the audience, you change the performers’.100 Noisette suggested that ‘the results of the two Committee surveys [were] completely in line with’ Gerbner’s expert opinion.101 The 1993 Maine Report on Cameras in the Courtroom also identified a qualitative difference between print and television media: Based on the comments the Committee received, a significant number of witnesses appear to regard publication or broadcast of their images as opposed to the use of their names as a qualitatively different experience . . . [causing] increase in anxiety . . . [and observed that] increased apprehension flows from different considerations such as fear of retaliation, the desire to avoid appearing emotional, recognition by strangers and the like.102

On the other hand, the findings of some empirical studies suggest that the presence of television cameras may have a beneficial effect on the performance of witnesses and on how jurors perceive televised witnesses’ testimony. For example, a study conducted by Borgida, De Bono and Buckman,103 in which witnesses were found to come away favourably disposed towards television, led the researchers to observe: In the present research, however, EMC [electronic media coverage] witnesses not only recalled as much information as CMC [conventional media coverage] and no-media control witnesses did, but they also did so with fewer prompts. Furthermore, jurors evaluated EMC witnesses’ ability to communicate as highly as they rated their non-EMC counterparts.104

The factum of the Intervener Attorney-General of Manitoba filed in the Supreme Court of Canada case Pilarinos and Clark relied on the findings 99 102

103

104

Ibid. p. 77. 100 See ibid. pp. 235–6. 101 Ibid. Cited in Attorney-General of Manitoba, ‘Factum of Intervener R v Pilarinos and Clark’ Court File No. 28823 (2002) at para. 31, 14. Eugene Borgida, Kenneth G. De Bono and Lee A. Buckman, ‘Cameras in the Courtroom: the Effects of Media Coverage on Witness Testimony and Juror Perceptions’ (1990) 14 Law and Human Behavior 489, 506. Ibid.

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of several studies which appeared to provide evidence of detrimental effect on witnesses. The Attorney-General of Manitoba noted that 12 per cent of judges, 22 per cent of attorneys and 16 per cent of jurors surveyed in the Evaluation of California’s Experiment with Extended Media Coverage had concluded that witness behaviour was changed by electronic coverage,105 and that the US Federal Judicial Center Study106 had found that 37 per cent of judges and 21 per cent of attorneys who had experienced televised cases concluded that witnesses were moderately or greatly more nervous than otherwise would be expected.107 The Intervener also relied on a 1984 Kansas Report on Cameras in the Courtroom which had found that 42 per cent of attorneys indicated that witnesses were less willing to testify in televised trials.108 The factum also noted that the evaluation of New Zealand’s pilot project revealed that 52–60 per cent of respondents said they would consider whether proceedings were being televised in deciding whether to come forward as witnesses.109 The New Zealand study referred to in the factum consisted of three opinion polls carried out at one year intervals during New Zealand’s pilot project with electronic media coverage. The February 1996 public perception poll110 asked: ‘If you were a witness to a crime would the knowledge that witnesses can appear in televised courtroom coverage of major court cases have any impact on your personal willingness to come forward?’ A clear majority (60 per cent) answered ‘yes’, while 32 per cent answered ‘no’. The February 1997 poll111 appeared to suggest that the impact of televising had lessened as only 52 per cent deemed televising would have an impact while the number indicating that it would have ‘no impact’ increased to 40 per cent. However, the February 1998 poll112 did not continue the trend, with the number indicating that televising 105

106

107 108

109 110

111

112

Cited in Attorney-General of Manitoba, ‘Factum of Intervener R v Pilarinos and Clark’ Court File No. 28823 (2002) at 1. Molly Treadway Johnson and Carol Krafka, Electronic Media Coverage of Federal Civil Proceedings (1994). See ibid. pp. 14, 20 respectively. Attorney-General of Manitoba, ‘Factum of Intervener R v Pilarinos and Clark’ Court File No. 28823 (2002) at para. 31, 2–3. Ibid. at 2. See ‘UMR Insight Limited, a Quantitative Summary, February 1996’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 52. See ‘UMR Insight Limited, a Quantitative Summary, February 1997’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 53. See ‘UMR Insight Limited, ‘‘Media Coverage of Court Proceedings: a Summary Report [February 1998]’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 74.

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would have an impact (58 per cent) almost returning to the high of 1996 (60 per cent). The number indicating that such knowledge would have ‘no impact’ dropped correspondingly to 34 per cent. The Final Report on the New Zealand pilot project113 also revealed that almost 30 per cent of witnesses reported that television cameras had distracted them. Thirty-seven per cent were found to favour the practice of in-court camera coverage, while 48 per cent were opposed. Perhaps suggesting that concerns were not fully realised, in response to being asked whether they favoured television coverage of the cases in which they were involved, a significantly lower percentage (36 per cent) expressed opposition, though almost the same percentage (36 per cent) expressed support.114 In addressing the concern that televising may act as a deterrent against witnesses coming forward, the Parliamentary Joint Committee on the ICAC noted that studies undertaken had been inconclusive, and concluded: ‘No one seems to know exactly what the effect of televising coverage may be in terms of discouraging people from coming forward.’115 To date there have been very few instances where the testimony of witnesses has been permitted to be televised in Australian courts. Without an exception known to the author, the consent of witnesses, whose testimony was to be televised, has been required to be sought. Where such consent has been denied, the testimony has not been permitted to be recorded. This has been in keeping with the recommendation of the Advisory Committee on Access to Justice that ‘broadcasting of a particular witness’ evidence should take place only if the witness consents’.116 Requiring witness consent appears to be an overly cautious approach, when contrasted with the approach of American courts, where most jurisdictions leave the issue of witness consent to the discretion of judges,117 and even with the strict conditions imposed by New Zealand courts, where some witnesses and parties to proceedings have an absolute right to have 113

114 115

116 117

Kimberley Allan, Judy McGregor and Susan Fountaine, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings: Final Report, a Report prepared for the Department for Courts (1998). Ibid. p. 191. Parliament of New South Wales Committee on the ICAC, Report on Inquiry, above n. 1, at p. 24. Access to Justice Advisory Committee, Access to Justice, above n. 1, at para. 20.37. Though some states prohibit the coverage of certain categories of witnesses or the testimony in certain categories of cases. See Radio-Television News Directors Association and Foundation, Cameras in the Court: a State-by-State Guide (2003), www.rtnda.org/foi/scc.html at 17 April 2007.

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their identification protected, but do not have the final say on whether their testimony is televised.118 Currently to require the consent of parties and witnesses in Australian courts as a precondition to their testimony being televised may, however, be an appropriate incremental step, as ensuring that justice is seen to be done requires Australian judges to avoid creating a perception that in their decision to permit a party or witness to be televised they adversely affected the administration of justice. Just as it has become possible for Australian courts to permit televising without the consent of counsel and not create an adverse impression, so arguably with further public acclimatisation and court televising experience it will become possible for Australian judges to permit the televising of witness testimony, even where a witness does not consent to such coverage, without jeopardising justice being seen to be done. A suitable incremental step may be to follow New Zealand’s lead and distinguish between official witnesses and those testifying in a personal capacity.119 As I concluded in the Electronic Media Coverage of Courts Report: As long as judges remain empowered to exercise their discretionary powers to restrict or prohibit the filming of witness testimony, or the identification of any witness, where such an order is appropriate and clearly called for to preserve the fair administration of justice, concern regarding the effect on witnesses should not in itself justify a ban on the televising of courtroom proceedings.120

118

119

120

In New Zealand this is achieved by providing witnesses in criminal trials (other than the accused or official witnesses) who seek identity protection with an absolute right to ask that they are not recognisable in any television coverage of their evidence. Justice Chambers has observed that: ‘In practice, this means that the witness’s face is pixillated. His or her voice may, however, be broadcast normally.’ The Hon. Justice Robert Chambers, ‘TV in Courtrooms: the New Zealand Experience’, unpublished paper presented at the Australian Supreme and Federal Courts Judges’ Conference held in Auckland, 25–29 January 2004, at 5. While other witnesses or a party to proceedings may seek a ruling that they not be recorded, such an order is granted at the judge’s discretion. However, where a complainant in a sexual case opposes a televising application, the judge is required to decline the application. See Ministry of Justice, In-Court Media Coverage Guidelines (2003), www.courts.govt.nz/media/guidelines. html at 17 April 2007, Guidelines 7, 10, 11; above chapter 6 F.2 for a discussion. The ‘as of right’ protection of identity available to a witness in a criminal trial in New Zealand is not available to an ‘official witness’, defined as ‘a witness giving evidence in his or her official capacity, as opposed to personal capacity; or an expert witness’: Guideline 3(1). The protection of the identity of an ‘official witness’ is at the discretion of the judge: Guideline 11. See In-Court Media Coverage Guidelines (2003), above n. 118. Stepniak, Electronic Media Coverage of Courts, above n. 1, at para. 8.36.

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(e) Effect on juries (i) The concerns The identification of jurors is prohibited in all Australian jurisdictions.121 Consequently, apart from fears that cameras may broadcast images of jurors inadvertently or in disregard of existing restrictions, concerns regarding the impact of televising on Australian jurors largely relate to the effect which televising may have on jury deliberations and in particular whether broadcasts would threaten their integrity and undermine their impartiality. Thus, the New South Wales Law Reform Commission noted concerns ‘that television coverage will reduce the ability and willingness of jurors to make impartial findings . . . [in that], [n]eighbours, friends and relatives who view parts of a trial on television will exert pressure on jurors’.122 Similar concerns have been expressed regarding jurors’ viewing of television replays of segments of testimony. Such concerns led the New South Wales Law Reform Commission to suggest in 1984 that in order to preserve the impartiality of jurors and yet permit society to gain the benefits flowing from courtroom televising, courtroom footage recorded by television cameras should not be permitted to be broadcast until the completion of trials.123 Though such a restriction would provide an additional safeguard for ensuring fair and unprejudiced trials, it would undermine the ‘news-worthiness’ of television coverage of trials. The recommended approach, which reflects that adopted by Lord Hope in Scotland,124 has been applied in the very few Australian jury trials which have been broadcast, most notably, the South Australian radio broadcasts125 and the Western Australian television documentary, The Accused.126 In view of technological advances, concerns regarding distraction or physical disruption of juries appear to no longer be compelling.127 The 121

122 123 124

125

126 127

Jury Act 1977 (NSW), s. 68, Jury Act 1995 (Qld), s. 70; Juries Act 1967 (Vic), s. 69; Juries Act 1919 (WA), s. 57; Juries Act 1962 (NT), s. 49B; Criminal Law Consolidation Act 1935 (SA), s. 246. NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.45. Ibid. See above chapter II(F)(2). For a criticism of this approach see Goldfarb, TV or Not TV, above n. 3, at p. 181. See Stepniak, Electronic Media Coverage of Courts, above n. 1, at para. 7.43; discussed briefly above chapter 5 E.1. See above chapter 5 E.2 for a discussion. For example, as noted above chapter 5 E.2, the prosecutor who appeared in Australia’s first televised jury trial documentary, The Accused, observed that had the jury not been advised of the televising, they probably would not even have been aware of the presence of the television camera. On the other hand, the Final Report on New Zealand’s pilot project

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evidence of overseas studies on the effect of televising on jurors also appears to give little cause for alarm. The Final Report on New Zealand’s pilot project found that 67 per cent of jurors who had participated in televised trials favoured the practice of in-court camera coverage while only 24 per cent opposed it.128 Equally encouraging were the findings of the 1996 Report129 of the California Task Force on Photographing, Recording and Broadcasting in the Courtroom, which noted that of the approximately 470 trial and appellate judges with personal experience of televised proceedings who responded to the task force’s survey, 90 per cent reported no decrease in the willingness of persons to serve as jurors due to the presence of the electronic media in the courtroom.130 The 1984 Kansas Report on Cameras in the Courtroom also revealed that 95 per cent of surveyed jurors said electronic coverage did not affect their ability to concentrate on proceedings. Eighty-nine per cent of the jurors also indicated that if they or their family members were on trial, the televising of the trial would not prevent them from receiving a fair trial.131 While the conclusion of virtually all studies has been that televising has little if any negative effect on jurors,132 a Marist Institute of Public Opinion Poll conducted for the New York State Committee’s Report found that 43 per cent of potential jurors would be less willing to serve on a jury if television cameras were to be in the courtroom.133 The Committee also took testimony from one juror who observed that, ‘the presence of cameras just for one witness or one aspect of a proceeding could send a signal to the jurors ‘‘about the importance of one aspect over another aspect of the proceedings’’ ’.134

128 129

130

131

132

133 134

found that almost 30 per cent of jurors who had participated in televised trials and responded to the questionnaire reported being distracted by television cameras. See Allan, McGregor and Fountaine, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, above n. 113, at p. 189. Ibid. See Judicial Council of California, Report by Task Force on Photographing, Recording and Broadcasting in the Courtroom, above n. 71. Administrative Office of the Courts of the State of California, Task Force on Photographing, Recording and Broadcasting in the Courtroom, Report Summary, cited in ‘Rule 980 Task Force Survey of California Judges, Summary Results’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 11, p. 5. 1984 Kansas Report on Cameras in the Courtroom, pp. 5 and 9, cited in Global BC et al., ‘Appellant’s Factum, R v Pilarinos and Clark’ Court File No. 28823 (2002) at 17, para. 45. See e.g., an analysis of nineteen key American studies in Barber, ‘News Cameras in the Courtroom’, above n. 2, at 186–8. New York State Committee, An Open Courtroom, above n. 25, at p. 118. Ibid. pp. 53–4.

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Acknowledging the concern that ‘jurors will be influenced by television coverage of a case or shy away from reaching unpopular verdicts’, the Committee suggested ‘that judges, exercising their discretion under the statute, are capable of taking these factors into account when they consider whether to grant or deny an application for camera coverage in a particular case’.135 Ultimately, the Committee concluded that it had: not received hard data to support the two major concerns with respect to camera coverage impact on jurors. No one has drawn the Committee’s attention to a specific case in New York in which jurors had improper communications regarding a televised case or in which jurors disregarded a judge’s instructions not to watch televised coverage of the proceedings. Nor has it been suggested to us that the outcome of a particular case in New York was altered by the presence of cameras.136

Concerns regarding the impact of televising on jurors are clearly premised on assumptions as to the extent to which the media influences jurors. With respect to the sub judice rule of the law of contempt of court ‘in its application to publications potentially affecting juries’, the New South Wales Law Reform Commission noted in 2003 that the rule: assumes that if jurors and witnesses are exposed to media material about a trial that is not part of the evidence presented, tested and argued in the courtroom they may retain that information and be hindered from reaching an impartial and proper verdict . . . This premise itself assumes that prejudice induced by media reporting will not be neutralised by the evidence in court, and by judicial warnings and directions.137

(ii) Australian study In their 2003 Contempt by Publication Report, the New South Wales Law Reform Commission examined available empirical research regarding the influence of media publicity on juries. In particular, they closely considered the findings of a two-year empirical study into the effects of media coverage on juries in high profile criminal trials undertaken by the Law and Justice Foundation of NSW Justice Research Centre in collaboration with the University of New South Wales, published in 2001.138 The authors of that study noted a 135 137 138

Ibid. p. 76. 136 Ibid. NSWLRC, Contempt by Publication, Report No. 100 (2003), para. 2.27. Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity (2001).

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‘broad spectrum of Australian judicial opinion’,139 ranging from the assumption ‘that jurors individually and juries collectively are likely to be aware of, and distinctly susceptible to, influence from prejudicial publicity’;140 to the assumption at the other extreme, ‘that the good sense and sturdy individualism of jurors make them virtually immune from media influence’.141 The research undertaken for the study involved forty-one NSW criminal jury trials, at the conclusion of which jurors, judges and counsel were interviewed. While the unauthorised soliciting of information from jurors would have been in breach of section 68A of the Jury Act 1977 (NSW), the Attorney-General authorised the research under section 68A(3).142 ‘Letters were sent to jurors from the Sheriff ’s Office on the researchers’ behalf. The only jurors interviewed were those who chose of their own volition to contact the researchers.’143 Responses were analysed in the light of parallel ‘[i]ndependent research into the scale and nature of the media publicity associated with each trial’.144 Among its findings, the research revealed a lower level of recall of pre-trial publicity by jurors than anticipated by judges and particularly counsel, and that what tended to be recalled were general features rather than precise details. However, it was also found that recall of pre-trial media publicity increased significantly in circumstances such as where the accused was well known independently of the charge, or where the offence was committed in the area where jurors lived.145 The study also found that in some 53 per cent of cases in which some pre-trial publicity was recalled by any jurors, ‘the publicity was discussed in the jury room’.146 As to the effectiveness of judicial instructions to avoid media coverage of the trial, the study found that in all of the thirty-four trials that received press coverage one or more members of the jury followed newspaper coverage. Overall, some 77 per cent of jurors in those thirty-four trials were revealed to have ‘encountered publicity’.147 It was also found that in 139 142

143

144

Ibid. p. 4. 140 Ibid. p. 4. 141 Ibid. p. 5. The absence of a similar exemption for research purposes to the Contempt of Court Act 1981 (UK), s. 8(1) which makes it an offence to ‘obtain, disclose or solicit’ particulars of jury deliberations has prevented similar research being undertaken in Britain. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at p. xiii. See also ibid. Appendix A for Juror Telephone Survey; Appendix B for Judge Survey; Appendix C for Lawyer Survey. Ibid. p. xi. 145 Ibid. para. 184. 146 Ibid. p. xiv. 147 Ibid. para. 207.

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thirty-two of the thirty-four trials covered by the media, the coverage was discussed in the jury room. Perhaps significantly for televising, the study found that other media publicity ‘such as television or radio reports or commentary or relevant generic publicity, was less likely to be noticed than judges or counsel seemed to expect’.148 As to the influence of the media publicity on jurors, the study found that ‘[i]n the 38 trials which were attended by specific publicity, very few [only 4 per cent] of the 167 respondent jurors considered that this publicity may have influenced them’.149 Consistently with virtually all studies of media influence,150 almost twice as many jurors (7 per cent) felt that such publicity may have influenced their fellow jurors.151 These responses were considered in the context of other factors, such as whether the jury’s verdict had been: ‘safe’ in that it was deemed justifiable on the evidence by the trial judge and counsel for both sides; ‘possibly unsafe’ where counsel on the losing side considered the jury verdict not to be supported by the evidence, or; ‘unsafe’ where two or more of the judge, defence counsel and prosecuting counsel considered it not to be supported by the evidence.152 In this respect, of the forty trials in which juries were required to deliver a verdict, thirty verdicts were ‘safe’, eight ‘possibly unsafe’ and two ‘unsafe’. The researchers found that even in some of the ‘safe’ verdict trials the media publicity may have influenced one or more jurors and possibly determined the verdict. As the eight ‘possibly unsafe’ verdicts were in line with the tenor of surrounding publicity they deemed it likely that at least in one of these trial publicity had determined the verdict.153 The two ‘unsafe verdicts’ were also in line with the tenor of surrounding publicity and in one or both cases deemed likely to have been determined by publicity.154 These findings led them to conclude that: In three of the 40 trials it seemed likely that publicity was determinative of the verdict, though in a further seven trials, it may possibly have been determinative. Publicity was found to be likely to have influenced individual jurors, but not the verdict, in a further 11 trials, and it may possibly have had this effect in a further five trials. It was unlikely to have had any influence on the verdict or on individual jurors in the remaining 14 trials.155

148 150

151 152

Ibid. p. xv. 149 Ibid. See e.g., above chapter 6 E.2 for a discussion of perceptions as to the effect of televising on counsel in New Zealand. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at p. xv. Ibid. p. xvii. 153 Ibid. 154 Ibid. 155 Ibid.

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Among other significant findings, the study revealed that while jurors were likely to flout the directions of the judge with respect to avoiding media coverage, jurors often believed newspaper coverage of trials to be inaccurate or inadequate, and demonstrated a high level of independence. The study concluded that New South Wales jurors demonstrated ‘a relatively satisfactory level of resistance to publicity’.156 The authors attributed this chiefly to five causes: that legal restrictions and remedial measures protected jurors from prejudicial publicity before and during the trial; that jurors were unlikely to recall pre-trial publicity thanks to the restrictions and remedial measures; that jurors were generally not vulnerable to influence from biased or incomplete coverage as they frequently identified press coverage to be biased or incomplete; that in being required to reach a unanimous verdict, juries tended to discharge their duty of scrutinising evidence carefully and at length and by so doing overrode any influence of publicity; and that individually and collectively jurors frequently ‘attained a significant level of independence in both thought and action’.157 (iii) New Zealand study The Australian study’s findings were largely consistent with the findings of New Zealand research into the effects of publicity on juries,158 which also found low levels of juror recollection of pre-trial publicity,159 and that only two of 312 jurors interviewed felt that such publicity might have affected their views of the case.160 This led the New Zealand Law Commission to find that in only one of the study’s forty-eight trials were they ‘able to detect some evidence that pre-trial publicity may have influenced the deliberations of the jury collectively’.161 While the New Zealand study revealed greater awareness of publicity during trials,162 no juror considered that such publicity had influenced them.163 This led the New Zealand Commission to conclude that ‘media coverage during the trial itself probably had limited impact 156 158

159

160 162 163

Ibid. p. xxi. 157 Ibid. pp. xxi–xxii. Undertaken as part of the New Zealand Law Commission’s review of juries in criminal trials. See Warren Young, Neil Cameron and Yvette Tinsley, Juries in Criminal Trials, Part Two, Summary of the Research Findings, Law Commission of New Zealand Preliminary Paper 37 (1999), paras. 7.46–57; New Zealand Law Commission, Juries in Criminal Trials, Report No. 69 (2001), para. 467, www.lawcom.govt.nz at 17 April 2007. Young, Cameron and Tinsley, Juries in Criminal Trials, Part Two, above n. 158, at para. 7.48. Ibid. para. 7.49. 161 Ibid. para. 7.53. In 42 per cent of cases one or more jurors encountered media coverage: ibid. para. 7.48. Ibid. para. 7.49.

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and was unlikely to have affected the final outcome’.164 The media’s relative lack of effect was attributed to a combination of jurors’ obedience of judges’ instructions,165 conscious efforts not to allow media reports to influence their deliberations, a tendency collectively to overriding individual bias or predetermination,166 and perhaps most significantly, to legal restrictions on pre-trial publicity, which ultimately caused the Commission to reject a call for greater freedom of the press through the relaxation of restrictions on pre-trial publicity.167 (iv) Canadian studies The Managing Prejudicial Publicity Report also referred to Canada, noting that common law restrictions apply to media publicity relating to jury trials and ‘that revealing the content of jury deliberations is prohibited . . . by section 649 of the Criminal Code’.168 The Report also discussed a Canadian study of the effects of media publicity in the Paul Bernardo trial,169 which found: that the potential jurors in the project who were predisposed to think the accused was guilty on account of pre-trial prejudicial publicity ‘seemed to be able to put their initial opinions aside and consider the case on its merits’.170 The significant exception was, however, when this publicity included ‘especially damaging’ information – that is, in their experiment, information about prior convictions.171

The Report also cited another Canadian study of the effect of prejudicial publicity relating to a public inquiry into allegations of child sexual abuse.172 The key findings of the study were that ‘potential jurors in 164 165

166 167 168 169

170 171 172

Ibid. para. 7.55. Fewer jurors admitted that they had not followed judicial instructions to ignore publicity: ibid. para. 7.49. Ibid. para. 7.57. New Zealand Law Commission, Juries in Criminal Trials, Report No. 69 (2001), para. 467. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 61. Jonathan L. Freedman and Tara M. Burke, ‘The Effects of Pretrial Publicity: the Bernardo Case’ (1996) Canadian Journal of Criminology 253 discussed in Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at paras. 62–3. See above chapter 4 D.6(b) for a further discussion of proposals to televise the case. Freedman and Burke, ‘The Effects of Pretrial Publicity’, above n. 169, at 267. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 63. James R. P. Ogloff and Neil Vidmar, ‘The Impact of Pretrial Publicity on Jurors: a Study to Compare the Relative Effects of Television and Print Media in a Child Sex Case’ (1994) 18 Law and Human Behavior 507, cited in ibid. paras. 64–5. See above chapter 4 C.4(c) for a further discussion of the televising of the Royal Commission into the sexual abuse of young boys at Mount Cashel orphanage in Newfoundland and of other Canadian Public Inquiries.

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forthcoming trials of some members of the institution were likely, as a result of the reporting, to be less sceptical of the complainants’ account’ and that ‘newspaper publicity was likely to be less prejudicial (other things being equal) than television programs’173 – which the researchers attributed to ‘the proposition (supported in part by other American research) that emotional publicity has greater ‘‘staying power’’ than factual publicity’.174 (v) American studies In considering the findings of American studies, both the New South Wales Law Reform Commission (NSWLRC) and the authors of the Managing Prejudicial Publicity Report emphasised the caution with which the findings of such studies need to be treated. They highlighted the significant differences between American regulation of media reporting, and that in jurisdictions such as Australia and New Zealand, noting in particular the absence of sub judice laws in America, which left ‘prejudicial publicity virtually unrestrained’. They also noted the different methodologies employed in American studies, which tended to be experimental simulations rather than measurements of the actual impact of media reporting on juries. Nevertheless, what American studies do appear to have revealed is that ‘pre-trial publicity which is adverse to the accused may have a significant impact on juror’s perceptions of a case’ – making jurors ‘more likely to return a guilty verdict’.175 Some American researchers have concluded that the prejudice generated by pre-trial publicity becomes a ‘filter through which subsequent evidence is perceived’.176 173

174

175

176

The Managing Prejudicial Publicity report noted that an American study – J. R. Wilson and J. H. Bornstein, ‘Methodological Considerations in Pretrial Publicity: is the Medium the Message?’ (1988) 22 Law and Human Behavior 585 – found that ‘the impact of emotional pre-trial publicity did not differ significantly in any way from that of factual publicity, nor indeed did the medium used (print or television) produce any significant difference’: at para. 59. It also noted: ‘Doubts have, however, been expressed to us about the methodology used in the project’: at para. 49. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 64. See discussion of other Canadian research at para. 66. Ibid. para. 56, commenting on Nancy Steblay, Jasmina Besirevic, Solomon M. Fulero and Belia Jimenez-Lorente, ‘The Effects of Pretrial Publicity on Juror Verdicts: a MetaAnalytic Review’ (1999) 23(2) Law and Human Behavior 219. See NSWLRC, Contempt by Publication, Report No. 100 (2003), paras. 2.46–7 which notes variations in research findings. Steblay, Besirevic, Fulero and Jimenez-Lorente, ‘The Effects of Pretrial Publicity on Juror Verdicts’, above n. 175, at 231. See also Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 57.

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The findings of one American study appear to suggest that prejudicial publicity is not significantly reduced by the remedial measures of judges asking jurors to ignore media reports, by exposure to trial evidence, or by jury room deliberations.177 The same study also revealed that a lapse of time lessened the impact of factual publicity but not of emotional publicity. The NSWLRC noted that one American study ‘actually concludes that such [judges’] warnings enhance the likelihood that the verdict will be influenced by the relevant publicity’.178 Emphasising the apparent ineffectiveness of remedial measures employed to counter the effect of prejudicial publicity on jurors in the United States, the Managing Prejudicial Publicity Report noted that experiments with simulated juries also revealed that ‘exposure to negative generic publicity increased the proportion of guilty verdicts’, that ‘judicial warnings and adjournments were likely to be ineffective in mitigating the impact’ and that ‘a change of venue might not work as the publicity pervades the whole country’.179 (vi) British studies British research on juries continues to be hampered by section 8(1) of the Contempt of Court Act 1981 which makes it an offence to ‘obtain, disclose or solicit’ information regarding jury deliberations, and does not provide an exemption which would permit research.180 However, research undertaken with mock juries appears to 177

178

179

180

Geoffrey P. Kramer, Norbert L. Kerr and John S. Carroll, ‘Pretrial Publicity, Judicial Remedies and Jury Bias’ (1990) 14 Law and Human Behavior 409. See also Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138 at para. 59 for a discussion of similar studies. NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at para. 2.50 referring to J. Alexander Tanford, ‘The Law and Psychology of Jury Instructions’ (1990) 69 Nebraska Law Review 71. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 60 referring to Jack C. Doppelt, ‘Generic Prejudice: How Drug War Fervor Threatens the Right to a Fair Trial’ (1991) 40 American University Law Review 821 and Michael J. Saks, ‘What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?’ (1997) 6(1) Southern California Interdisciplinary Law Journal 1. The Courts (Research) Bill 1991 (UK) which sought to lift the statutory prohibition on televising in English and Welsh courtrooms also sought to amend s. 8 of the Contempt of Court Act 1981 to permit jurors to be interviewed and thus enable research to be carried out into how juries reach their decisions: see Jacline Evered, ‘Televised Justice: Considered Proposals for the Controlled Use of Television Cameras in the United Kingdom Courts’ (1997) 11 Contemporary Issues in Law 23, and Mike Woodcock, ‘Open Justice’ (1991) Feb Counsel 20, 21 as noted above chapter 2 B.

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support the view that publication of prior convictions tends to have a prejudicial effect on jurors.181 (vii) Conclusions regarding the effectiveness of preventative and remedial measures Both the NSWLRC and the Managing Prejudicial Publicity studies concluded that while evidence suggested that juries are resistant to media influence, it did not justify the dismantling of legal restrictions, including sub judice contempt laws on media reporting of cases.182 While not recommending the abandonment of sub judice contempt, Australian studies have recommended its reformulation183 – to ‘ensure a better balance between freedom of speech and the proper administration of justice’.184 The NSWLRC recommended that ‘the operation of the rule should be narrowed by making the test for liability one of ‘‘substantial risk’’ of prejudice rather than ‘‘a real and definite tendency, as a matter of practical reality, to prejudice legal proceedings’’’.185 The findings of Australian and overseas studies appear to reveal the ineffectiveness of remedial measures and thus support Australian law’s rejection of American law’s assumption that remedial measures can provide an effective means of neutralising the prejudicial effect of publicity.186 The NSWLRC concluded that greater reliance on remedial measures would increase the cost to both the state and the individual and that ‘reliance on such measures alone, rather than in conjunction

181

182

183

184 185

186

Sally Lloyd-Bostock, ‘The Effect on Juries of Hearing about the Defendant’s Previous Criminal Record: a Simulation Study’ (2000) Criminal Law Review 734. See Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at p. xxii and NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at paras. 2.76–8. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 508; NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at para. 2.78; New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper No. 43 (2000), paras. 4.85–91. NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at para. 2.77. Ibid. para. 2.78. This reform was also supported by Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 508. For further discussion see Michael Chesterman, ‘Contemporary Issues in the Law of Contempt’, paper presented at the Nineteenth Annual Conference of the Australian Institute of Judicial Administration, Hobart, 21–23 September 2001, www.aija.org.au/ac01/Chesterm.pdf at 17 April 2007. See discussion in NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at para. 2.61 referring to Michael Chesterman, Freedom of Speech in Australian Law: a Delicate Plant (2000), p. 286; R v. Glennon (1992) 173 CLR 592, 601–6 (Mason CJ, Toohey J), 611–17 (Brennan J).

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with liability for contempt, can in itself place excessive pressure on jurors and witnesses, including the pressure to deliver a verdict that will be approved by the public’.187 The costs of remedial measures and the denial of justice they can produce were graphically illustrated in the quashing of one of the convictions of gang rapists Bilal and Mahmed Skaf, following the revelation that two jurors had visited the crime scene during the trial to ‘carry out their own investigation’. As the victim said ‘she could not face the ordeal of a retrial’, the Director of Public Prosecutions decided not to proceed to retrial.188 That the ready accessibility of Internet information to jurors threatens to undermine some of the assumptions underlying the regulation of prejudicial publicity by sub judice contempt law, had been foreshadowed in both Britain189 and Australia.190 The increased utilisation of the Internet as a source of public information appears to highlight both the inappropriateness and inadequacy of continuing to regulate court reporting through sub judice and contempt laws, suggesting a need to move away from the traditional enforcement of reporting restrictions by courts towards greater reliance on open justice, freedom of speech and the public’s right to receive information.191 By largely eliminating the relevance of geographical and consequently jurisdictional boundaries advances in broadcasting and information technology appear destined to undermine the imposition and enforcement of publicity restrictions,192 and make calls for the greater suppression of identification in media reports sound futile.193 187 188

189

190

191 192

193

NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at paras. 2.57–9. Martin Chulov, ‘Gang rape pair avoid new trial’, The Australian (Perth), 4 February 2005, p. 1. Clive Walker, ‘Fundamental Rights, Fair Trials and the New Audio-Visual Sector’ (1996) 59 Modern Law Review 517. Michael Chesterman, ‘OJ and the Dingo: How Media Publicity relating to Criminal Cases Tried by Jury is Dealt with in Australia and America’ (1997) 45 American Journal of Comparative Law 109, 142–3. Walker, ‘Fundamental Rights’, above n. 189. See above chapter 4 D.6(c) where this issue is further discussed with reference to the British Columbia committal proceedings of Robert Pickton, where the court had to decide whether to close proceedings to the public because restrictions on media reporting of preliminary hearings would not be effective or enforceable against Internet and American broadcasts accessible in British Columbia. See also R v. Pickton [2002] BCPC 526. As graphically illustrated by John Leslie in Britain: Editorial, ‘Trial by media: the Leslie case raises key questions’, Guardian, 1 August 2003, p. 25; and Kobe Bryant in the United States: ‘Kobe in the dock, yet another trial of the century is gearing up’, The Economist, 18 October 2003, p. 34.

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That technology and in particular the Internet threatens to undermine the balance between publicity and the right to a fair trial secured by legal regulation and in particular sub judice contempt, is an issue which has been addressed by Australian judges,194 law reform agencies and researchers. Anne Wallace notes concerns, such as that expressed with respect to transcripts of rape victim testimony being available on the Internet,195 and asks ‘What about the possibility of jurors being able to access portions of proceedings relating to rulings made in their absence? Do courts have to consider differential access rights to some material for parties and the public?’196 In addressing the influence of prejudicial media publicity on jurors and the effectiveness of sub judice laws and remedial measures to counter the effect of such prejudicial publicity which the preventative measures of sub judice contempt fail to remove, both the NSWLRC Contempt by Publication Report197 and the Managing Prejudicial Publicity Report198 considered the significance of advances in communications and information technology, and in particular the Internet. Noting that, ‘in two cases [of the forty-one it studied] prejudicial material was accessed on the internet’ the Managing Prejudicial Publicity Report observed that: ‘in sharp contrast to material broadcast on television and radio, prejudicial material on the internet may be accessible to jurors over a significant period of time and may not be easily detectable by criminal trial lawyers or others concerned with the administration of criminal justice’.199 The Report identified two problems associated with the Internet. The first problem was said to lie in that: pragmatic reconciliation of two fundamental objectives of criminal justice administration [the ‘open justice’ imperative to permit public reporting of trials resulting in criminal convictions and the ‘fair trial’ imperative to shield jurors in a later case from awareness of those convictions] may . . . 194

195

196

197 198 199

See above chapter 5 G.4 for a discussion of the views of New South Wales Chief Justice Spigelman. Victorian Parliamentary Law Reform Committee, Technology and the Law Report (May 1999), para. 8.39. See Anne Wallace, ‘Technology and the Judiciary: the Use of Technology in the Criminal Trial Process’, paper presented at the Fourth National Outlook Symposium on Crime in Australia, Australian Institute of Criminology, 21–22 June 2001, at 10, www.aic.gov.au/conferences/outlook4/Wallace.pdf at 17 April 2007. NSWLRC, Contempt by Publication, Report No. 100, above n. 137. Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138. Ibid. para. 200.

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be seriously jeopardised by web-sites on which the earlier and often lowprofile information is revived, stored and made relatively easily accessible to anyone, including a juror, who wishes to seek it out.200

The second identified problem was: that the existence of a site containing information which is prejudicial to a specific trial may not be known to anyone professionally engaged with the relevant trial, or indeed with the administration of criminal justice generally. Yet a juror, whether through prior knowledge or by using search engines, may come across it.201

Though only incidentally noting the significant additional problem associated with seeking to restrict publications on overseas-based web pages,202 the Managing Prejudicial Publicity Report suggested that it did not: necessarily follow from these considerations that the traditional techniques for restricting prejudicial publicity should be abandoned in relation to material or a known Australian web-site. Indeed the option of initiating, or at least threatening, contempt proceedings against those responsible for the web-site may have to be considered.203

However, the Report did concede that while this may be an adequate and appropriate short-term measure, ‘in the long term, given the problems associated with discovering such material and moreover, enforcing the sub judice rules in relation to material hosted overseas, a fundamentally different approach may have to be given consideration’.204 The fundamentally different approach proposed involves not only ‘reconsidering specific aspects of the content and the application of sub judice principles’ but recognising ‘that changes of venue are often desirable’ and should be ‘total rather than partial’, and adopting measures which may assist juries to ‘manage’ publicity, which would dictate ‘that judicial instructions to jurors regarding publicity should encourage them to strongly trust their own capacity to recall and understand evidence and the issues to be resolved, rather than any version of those conveyed expressly by media publicity’.205

200 202 203

204

Ibid. para. 513. 201 Ibid. para. 514. Discussed above chapter 4 D.6(c). Chesterman, Chan and Hampton, Managing Prejudicial Publicity, above n. 138, at para. 515; but note limited liability issues identified by the authors at p. 204, n. 152. Ibid. 205 Ibid. p. xxii.

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The NSWLRC Contempt by Publication Report also noted the effect of ‘modern communication technologies, in particular, satellite and cable television, electronic mail and the Internet’.206 The challenges to the ‘control of prejudicial publicity’ posed by the ‘increasing use of these technologies’ were deemed to ‘stem from a number of features pertaining to these media’: [A]n enormous volume of information, from innumerable sources can be stored, disseminated, changed or removed rapidly; cable and satellite broadcasters and electronic media publishing . . . may not rely on a local distributor answerable to [local law]; identifying where responsibility lies for Internet publishing can be complex and uncertain.207

With respect to the last of the mentioned features, the NSWLRC noted that, ‘most Internet Service Providers (ISPs) and Internet Content Hosts (ICHs) have no control over the content of the information that goes through their systems’ that their liability for ‘carrying or hosting material that breaches sub judice principles has not yet been considered by any Australian court’ and that ‘[i]t is uncertain whether common law principles developed regarding the liability of distributors for sub judice contempt or even those concerning licensees of television channels would apply to ISPs and ICHs’.208 In a similar vein to the Managing Prejudicial Publicity Report, the NSWLRC Report concluded that ‘it will be more appropriate for the common law to respond to the effects of the new media on the conduct of fair trials on a case by case basis, until it becomes apparent that a legislative response is required’,209 and deemed that ‘it is too early to reach a conclusion and too early to justify abandoning the [sub judice] rule altogether’ on the grounds that ‘communication technologies are rendering application of the sub judice rule unworkable’.210

(f) Privacy Australian studies have also addressed the concern that televising is an unwarranted intrusion into the privacy of courtroom participants. While acknowledging that televising was likely to infringe on the privacy of parties before courts, the NSWLRC noted that any rights to privacy were qualified or undermined by participation in judicial proceedings 206 207

NSWLRC, Contempt by Publication, Report No. 100, above n. 137, at para. 2.62. Ibid. 208 Ibid. para. 2.63. 209 Ibid. para. 2.66. 210 Ibid. para. 2.67.

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open to the public.211 The Access to Justice Advisory Committee went further, noting that ‘the principle of open justice already means, in practice, that parties and witnesses in court proceedings do not enjoy a right to privacy’.212 That open justice clearly envisaged and accepted that public administration of justice may entail undesired intrusion into the privacy of parties and witnesses was clearly recognised in the classic authority of the principle found in the judgment of Lord Atkinson in Scott v. Scott:213 The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.214

It is on the basis of the principles of open justice that Victorian Supreme Court Justice Cummins dismissed arguments based on breach of privacy, noting: ‘As to the right to privacy, the courts are public, not private.’215 However Australian courts and studies have not simply dismissed privacy concerns. The relative intrusiveness of the television medium has been recognised. For example, the Senate Standing Committee on Legal and Constitutional Affairs observed that: Radio tends to tell stories, and poses the least risk of invading privacy . . . Where television is concerned, the power of visual images to convey action and emotion, to emphasise graphic details and to incite emotion in the viewer can also intensify the extent to which privacy is invaded.216

The intrusiveness of audio-visual recordings has also been recognised in legislation, which specifically restricts the broadcast of identifying sound or vision of participants in certain proceedings.217 211 212 213 215

216

217

NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.47. Access to Justice Advisory Committee, Access to Justice, above n. 1, at para. 20.28. [1913] AC 417. 214 Ibid. at 463. Quentin Roberts v. Nine Network (unreported, Supreme Court of Victoria, Cummins J, 18 December 1995) at 7. See transcript of judgment in ‘Roberts v Nine Network (Transcript of Unreported Judgement, Cummins J, Supreme Court of Victoria, 18 December 1995)’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 39. Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Rights and Obligations of the Media, Part IV of a Submission by Communications Law Centre: The Right to Privacy and the Right to Know (1995). For example, Family Law Act 1975 (Cth), s. 121(3)(b), (c).

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Australian studies have further recognised that concerns regarding privacy need to be balanced against the competing public interest in the open administration of justice. Thus, the Access to Justice Advisory Committee concluded: [T]here are concerns about the effect of broadcasting on the privacy of parties and witnesses, but we think that an appropriate balance between the public interest in open justice and individual’s interests in privacy can be struck by the formulation of guidelines for an experimental program.218

Similarly, the NSWLRC concluded that the privacy interests of participants needed to be taken into account, and recommended that reservations held with respect to the invasive effect of televising, ‘would have to be carefully examined . . . if any experimental program is to be established’.219 Importantly, however, the Access to Justice Advisory Committee recommended that objections to televising based on privacy concerns should not dictate or determine whether televising was permitted, but should instead be considered by a judge and weighed against other factors which may favour televising taking place.220 Australian experiences suggest that the right to privacy, to the extent and in the circumstances that it requires protection from the intrusive television medium, can be protected through appropriate regulation. The proven ability to effectively broadcast Family Court proceedings, in spite of a statutory prohibition on the identification of parties and nonlegal participants to proceedings,221 appears to provide very persuasive evidence of courtroom televising being compatible with the maintenance of restrictions on the undesirable identification of parties and participants. This has also been the experience in other jurisdictions such as Nova Scotia, where at the end of their two-year pilot programme the Court and Media Liaison Committee reported that ‘[s]erious objections related to privacy or other concerns on behalf of parties could be effectively dealt with in chambers’.222 218

219 220 221 222

Access to Justice Advisory Committee, Access to Justice, above n. 1, at para. 20.32. See also Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Rights and Obligations of the Media, above n. 216. NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.52. Access to Justice Advisory Committee, Access to Justice, above n. 1, at para. 20.28. See discussion above chapter 5 E.5. ‘Media Liaison Committee, ‘‘Report at Conclusion of Two-Year Camera Pilot Project’’’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 49, p. 2.

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To the extent that televising has been perceived to invade the privacy of participants and in particular witnesses,223 it has inevitably done so due to inadequate regulation of media reporting or the media’s breach of restraint. In this respect there appears to be little basis for distinguishing between conventional and electronic media. When New Zealand Public Perception Polls revealed privacy as a significant factor for those who stated that knowledge that proceedings would be televised would impact on their willingness to come forward to testify,224 it also confirmed the appropriateness of providing witnesses with identity protection.225

(g) Effect on judges and lawyers Australian experiences of televising have not provided evidence substantiating concerns regarding the effect of televising on judges and lawyers. Feedback from Federal Court judges suggests that they soon forget that television cameras are there.226 While one or two Australian judges have been criticised or lampooned for permitting cameras into their courts,227 it has not seriously been alleged that an Australian judge or barrister has ‘played to the camera’. Indeed, commentary on televised cases has almost invariably noted that the presence of cameras was soon forgotten by all participants.228 Nevertheless, the acceptance by a majority of the Victorian Court of Appeal in Avent229 that Justice Teague’s televised hearing may have created a ‘reasonable apprehension’ that he ‘might have been unconsciously influenced in the process of sentencing 223

224

225 226

227

228

229

For example, the New York State Committee to Review Audio-Visual Coverage of Court Proceedings was advised by one of O.J. Simpson’s defence lawyers, Prof. Barry Scheck of Cardozo Law School, that ‘one of the expert witnesses on DNA contamination in the Simpson criminal case received death threats at his laboratory’. Prof. Scheck observed that it would have been unusual for a newspaper to have disclosed, as the television station apparently did, the address of the witness’ laboratory’. See New York State Committee, An Open Courtroom, above n. 25, at p. 62. ‘UMR Insight Limited, a Quantitative Summary, February 1996’ in Stepniak, Electronic Media Coverage of Courts, above n. 1, Appendix 52. See above chapters 6 F.2 and 5 B.2 for a discussion. See Bruce Phillips, ‘Television in the Federal Court of Australia 1994–2004’, paper prepared in response to November 2004 ‘Broadcasting Courts: a Consultation by the Department for Constitutional Affairs’ (24 December 2004). See e.g., above chapter 5 E.4(c) for a discussion of the criticism of the televising of sentencing remarks in Avent. For example, note the evaluation by counsel involved in Australia’s first televised jury trial, above chapter 5 E.2. R v. Avent (unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway JA and McDonald AJA, 22 December 1995).

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by the attention directed to the case by the media’,230 appears to have raised a concern at the effect of media publicity which in Australia had previously been confined to concern at the effect on jurors. American and New Zealand studies highlight several aspects of how judges are or may be affected by television cameras. In its Report the New York State Committee observed that almost all submissions it received saw the presence of cameras as having some effect on judges, be it detrimental or beneficial.231 While some submissions suggested that televising raised the level of judges’ performance, others expressed concern that elected judges used television coverage to secure publicity.232 Such desire for publicity and popularity, some suggested, might affect a ruling or sentencing. Illustrating the potential danger, a senior defence lawyer observed that judges ‘want to appear more popular when they are televised . . . right now what is popular is being tough’. She added that it takes ‘a very courageous woman or man who can stand up there and give a ruling that they know will be . . . vilified in the press’.233 Not surprisingly, 52 per cent of surveyed New York judges disagreed with the statement that ‘cameras in the courts tend to cause judges to issue rulings they might otherwise not issue’, although perhaps much more significantly, 37 per cent agreed.234 It is also important to note that 45 per cent of respondents to the judicial survey expressed the view that cameras posed a threat to judicial independence.235 In summing up the most commonly given response to the question of whether cameras affect judges, New Zealand Court of Appeal Justice Chambers observed: ‘My experience is that after the first couple of minutes, the judge forgets that the camera is even in the courtroom.’236 As for the television cameras’ effect on lawyers, the 1997 New York report revealed that, somewhat reassuringly, 35 per cent of surveyed judges agreed that lawyers came to court better prepared in cases in which TV cameras were present.237 Lawyers’ own perceptions ranged from complaints that cameras made them feel self-conscious to an observation that during a sensational murder trial it never occurred to the lawyer involved that cameras were present.238 In comments replicated in studies

230 231 232 236 237 238

Ibid. at 9 (Callaway JA and McDonald AJA). New York State Committee, An Open Courtroom, above n. 25, at p. 64. See ibid. pp. 65–6. 233 Ibid. p. 66. 234 Ibid. p. 67. 235 Ibid. p. 99. Chambers, ‘TV in Courtrooms’, above n. 118, at para. 14. New York State Committee, An Open Courtroom, above n. 25, at p. 63. Ibid.

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around the world, some New York lawyers also indicated that their colleagues may use televising as a vehicle for self-promotion.239 A particularly insightful study of the impact of televising on legal practitioners is Paul Murray’s survey of forty-five Auckland practitioners over a four-month period in 2002.240 The survey revealed that 51 per cent of surveyed practitioners were opposed to the presence of cameras in courts.241 Forty per cent indicated that their views had changed as a result of their actual experience with televising, the views of 31 per cent becoming more positive and of 11 per cent becoming more negative. Thirty-three per cent retained initial negative views while 11 per cent retained their initial positive views.242 The survey identified scepticism as to the use made of recorded footage. As to the effect of televising on lawyers, 69 per cent indicated that they thought that counsel were affected by the electronic media coverage.243 The survey’s author indicates that a ‘common response was that the participants themselves said that they were not affected but noted that others were’.244 Thus, when counsel were asked to indicate ‘whether the presence of electronic media coverage caused them to change their courtroom manner’ and to assess such impact on themselves and on other counsel, of those who agreed that courtroom manner was affected, 33 per cent said they were personally affected and 49 per cent said others were affected.245 Sixty-one per cent of the lawyers indicated that they ‘got used to the electronic media, one way or another, after a short time’. The author observed that ‘[a] significant number of participants commented that the length of the trial and the size of the courtroom could alter the impact electronic media coverage had on them. Longer trials in more spacious surroundings had less impact than shorter trials in smaller courtrooms.’246

239

240

241 244

Ibid. p. 63. See e.g., Murray, ‘Electronic Media Coverage of Courts,’ above n. 42, at 47 for the Auckland survey results. Ibid. The relative significance of this study stems from its exhaustiveness, in that the survey’s methodology involved interviews conducted through a questionnaire containing seventy-three questions. See Ibid. Appendix G; outline of methodology at para. 7.1, where it surveyed the views of forty-five barristers with personal experience of courtroom televising, while New Zealand’s formal evaluation of its pilot project only surveyed fourteen barristers. Ibid. para. 8.1. 242 Ibid. 243 Ibid. para. 8.5. Ibid. 245 Ibid. para. 8.5. 246 Ibid.

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3 Other effects of courtroom televising (a) Potential to distort and sensationalise Senior Australian judges have expressed the view that the potential for television coverage to distort and sensationalise courtroom proceedings flows from the intrinsic nature of the television medium. For example, former Chief Justice of New South Wales, Sir Lawrence Street, has argued that: The medium has both an inherent limitation in the extent of the cover that can be telecast, as well as an inherent tendency for the form and appearance to overshadow the substance. This latter prospect imports a further tendency to induce those participating in the proceedings to give undue attention to form and appearance of their part in the litigious process. Being at the expense of substance, this could distort the process of justice itself.247

In a similar vein former High Court Justice Sir Daryl Dawson observed that ‘The judicial method, court dress and court procedure are all aimed at fostering an objective rather than subjective approach to the administration of justice, whereas the inevitable tendency of the media is to personalize issues in a way which is inimical to this aim.’248 Similar concerns were also expressed in submissions to the Parliamentary Committee on the ICAC. They suggested that by focusing on appearances, televising of court proceedings would encourage inferences to be quickly drawn as to reputation, guilt or innocence on the mere basis of superficial features such as looks, tone of voice, dress or mannerisms and encourage public judgment to be made on the basis of such superficialities. It was also argued that while people tend to overestimate their ability to know from seeing, what we see can often be deceptive. The Commission noted that it had been argued that television and the courts had divergent and diametrically opposed functions.249 It is undoubtedly true that inferences tend to be drawn from appearances. It is also true that reliance on appearances may cause unsubstantiated or inappropriate inferences to be drawn. An English experiment revealed that jurors may draw inferences as to guilt or innocence from 247 248

249

NSWLRC, Community Law Reform Program, Issues Paper 4, above n. 1, at para. 4.39. The Hon. Sir Daryl Dawson, ‘Judges and the Media’ (1987) 10 University of New South Wales Law Journal 17, 18. Parliament of New South Wales Committee on the ICAC, Report on Inquiry, above n. 1. See also chapter 5 D.2(b) above for discussion.

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the physical unattractiveness or attractiveness of a defendant. Two versions of a simulated trial were broadcast. One half of the country’s viewers were shown an unattractive defendant, while the other half saw an attractive defendant. On being asked to assess the defendant’s guilt, some 40 per cent of responding viewers declared the unattractive defendant to be guilty, while only 29 per cent deemed the attractive defendant to be guilty. Interestingly, the findings of this experiment were cited not as evidence of the undesirability of televising but rather as having the potential to ‘further undermine the concept of trial by jury’.250 However, to be alarmed at the findings of a study which suggest that appearances influence jury verdicts would be to ignore the accepted role which visual perceptions and assessment play in trials. It is important not to overlook the reality of courts’ preference for and reliance on vision over text, by, for example, having evidence presented by witnesses either physically present in court or visible to the court via video link, and the courts’ embracement of visual aids in the presentation of evidence. The law’s preference for the visual arguably also explains why, despite access to transcripts of proceedings, appeal courts remain reluctant to overrule findings and rulings which were assisted by opportunity for first-hand visual and aural assessment of evidence and its veracity.251 Indeed, it is unquestionably appropriate and desirable for judges and jury to draw inferences as to the veracity of evidence from the demeanour of witnesses and parties.252 While judges and juries continue to rely on seeing and hearing, to prohibit the broadcast of proceedings is to ask the public to accept that justice was done while depriving them of the visual and aural elements which undoubtedly influence the decisions of judges and juries. Rather than distorting the courts’ function to determine the truth, televising offers the public the ability to use the same senses that our courts use, and to assess for themselves whether justice is indeed blind. Fears that editing commentary accompanying recorded courtroom footage and the context in which such footage is used may distort and

250 251

252

See ‘Melba’, The Australian (Brisbane), 25 March 1997, Features 11. Daniel Stepniak, ‘Cameras in Courts: a Reflection on Contemporary Issues’ (2003) 3 Peppercorn 15. In late 2004, the Western Australian Court of Criminal Appeal delivered a judgment exploring the extent to which a judge may confine and direct a jury’s deliberations and advise the jury as to inferences it should draw from the testimony and appearance of Aboriginal witnesses. See Stack v. State of Western Australia [2004] WASCA 300.

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misrepresent continue to be heard.253 Such concerns appear to be supported by findings such as those in the final report evaluating New Zealand’s pilot project,254 which found that: In television coverage the juxtaposition of inside and outside footage and use of voice-over created a different, and usually emotive, reality to what was actually occurring inside the courtroom. This could potentially lead to a distortion of the public perception of the courtroom procedure, atmosphere and dynamics.255

However, Australia’s experience with televising has not revealed any significant distortion or misrepresentation resulting from edited broadcasts. Indeed, the only notable criticism of editing has related to that by judges in their judgment summaries.256 Concerns that televising would distort proceedings also appear to overlook that reports of proceedings may be held to constitute contempt if they are not fair and accurate accounts of proceedings or if they tend to undermine confidence in the administration of justice. Such broadcasts would also be in breach of broadcasting standards which require news programmes to be presented accurately, fairly and impartially257 and current affairs programmes to be presented with accuracy and fairness and in a way which allows informed public debate on substantial issues affecting the community.258 Rather than distort and sensationalise, Australia’s experiences with televising, from the very first occasion on which cameras were admitted,

253

254

255 256

257 258

For example, the Federal Court’s Justice French has observed that the later reuse of footage recorded at ceremonial occasions as file footage can constitute, ‘a hazardous application of the footage, for the judge filmed might be smiling at some witty banter from bar or bench only to find his or her smile later reproduced as a tasteless smirk in the context of an horrific crime on which the judge is subsequently sitting’: Justice Robert French, ‘Television and Radio Broadcasting in the Federal Court of Australia: a Personal Perspective’, paper presented via video link to Broadcasting Courts Seminar, London, 10 January 2005, at 3. Allan, McGregor and Fountaine, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, above n. 113. Ibid., p. 201. See David Bennett QC, ‘The Cubillo and Gunner Cases’ (2000) Nov. Quadrant 35, 38–9; French, ‘Television and Radio Broadcasting in the Federal Court of Australia’ above n. 253, at 4, with reference to the Federal Court of Australia. Television Program Standards 1990, Standard 15. Television Program Standards 1990, Standard 24.

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have demonstrated that televising can be an effective medium for countering media misinformation259 and spin.260 That Australian broadcasts have to date largely escaped criticism is possibly to some extent attributable to the appropriateness of guidelines which formally and informally have governed Australian broadcasting, and to the personal supervision of Courts Information Officers. Australia’s experience suggests that concerns regarding television’s potential to distort can be adequately addressed through regulation, and has vindicated the Public Affairs Committee of the General Council of the Bar Report, which noted: ‘The concern about possible distortion cannot be dismissed lightly. However, it suggests that caution should be exercised about the manner in which broadcasting of court proceedings should be permitted, rather than about whether it should take place at all.’261 That television networks remain unwilling or unable to provide the extended coverage sought by those concerned that through editing and the publication of brief excerpts television coverage will distort and misrepresent court proceedings, appears likely to lead Australian courts, including the High Court, to supplement media coverage with their own recordings, most likely via Internet streaming.262

(b) Potential to educate and inform The potential of the televising of courtroom proceedings to better inform and educate the public about the legal system has been recognised in Australian studies263 and advocated by Australian judges.264 259 260 261 262

263 264

As in the Chamberlain Inquest, discussed above chapter 5. Clearly demonstrated in the Esso case, discussed above chapter 5 E.4(e). Caplan Report, above n. 7, at para. 20.25. Both the High Court of Australia and the Federal Court of Australia have experimented with online streaming of their proceedings, and there is some evidence to suggest that Tasmanian, South Australian and Western Australian courts may be considering the webcasting of their proceedings, see above chapter 5. That the High Court has acquired the requisite technology and is considering streaming its hearings was confirmed by Lex Howard and Heath Mackey. Meeting with Lex Howard, Marshall of the High Court of Australia, 18 July 2003; meeting with Heath Mackey, the Court’s Senior Technical Officer, High Court of Australia, 18 July 2003. See Parliament of New South Wales Committee on the ICAC, Report on Inquiry, above n. 1. See e.g., the Hon. Justice Bernard Teague, ‘The Courts, the Media and the Community: a Victorian Perspective’ (1995) 5 Journal of Judicial Administration 22. See also above chapter V(E)(3) for a discussion of the remarks of the Chief Justice of the Federal Court of Australia; the Hon. Chief Justice Michael Black, ‘Letting the Public Know: the Educative Role of the Courts’ (1994) 1 Canberra Law Review 165.

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The NSW Parliamentary Committee on the ICAC had suggested that visual presentation of judicial proceedings would better inform the public of the operation of the courts than standard and conventional print media coverage of judicial proceedings and that television pictures of courtroom proceedings make news reports of legal disputes easier to understand.265 Though the educative and informative potential of courtroom televising has not been empirically established, it appears to have been vindicated in the invariably positive commentary and assessments of the insightful nature of documentaries containing courtroom footage which have been broadcast.266 Television’s potential to provide the public with an opportunity to see and hear first-hand what occurs in court, rather than through secondhand media commentary, has motivated Australian courts ever since the 1981 First Coronial Inquest into the disappearance of Azaria Chamberlain. Broadcasts of judgment summaries, decisions, sentencing remarks and documentaries highlighting the work of courts and issues confronted by courts with which very few members of the public are familiar, provide the clearest illustrations of how televising educates and informs the public in Australia. The findings of studies and experiences tend to be mixed and suggest that the educative potential of televising has not always been achieved. It is perhaps significant to note that the most favourable assessments of the educative value of televising have come from courts persuaded of the value of televising and actively promoting such coverage and from those who have personally participated in televised hearings. Thus, all judges and lawyers participating in the Canadian Federal Court of Appeal pilot programme agreed that the effect of electronic media coverage was to educate the public about the work of the Federal Court of Appeal.267 Similarly, in 2002 the New Hampshire Supreme Court268 noted that studies in US states had found that ‘the advent of cameras in the courtroom improves public perceptions of the judiciary and its processes, improves the trial process for all participants and educates the public about the judicial branch of government’.269 265 266 267 268

269

Parliament of New South Wales Committee on the ICAC, Report on Inquiry, above n. 1. See e.g., above chapter 5 E.2 for a discussion on the documentaries broadcast in NSW. See above chapter 4 B.4(b) for a discussion. New Hampshire Supreme Court, Petition of WMUR Channel 9 on 13 December 2002. See above chapter 3 D.1 for a discussion. See Wartelle Wall, Cameras Allowed at all Open Court Proceedings, above n. 36.

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A more guarded and typical assessment may be discerned from the Federal Judicial Center’s 1994 evaluation of the pilot programme in US federal court proceedings, which found that: [n]early all judges thought that educating the public about how the federal courts work was the greatest potential benefit of coverage, and most thought this benefit could be more fully realized with electronic media rather than traditional media. However, most judges said the educational benefit had been realized only to a moderate extent or not at all under the program.270

Mixed perceptions as to the educative effect of televising and its unfulfilled potential may also be discerned from New Zealand experiences. The 1998 Report evaluating the pilot programme revealed that in response to questions whether television coverage educates the public about the justice system and about court procedure, judges, counsel and court staff overwhelmingly held that televising did educate to some or greater extent.271 Content analysis evaluations, on the other hand, led the evaluation team to deem conventional coverage to be more educational in general, even though they found that the two-minute minimum rule272 had served to increase the duration of news reports.273 Further qualifying the positive assessment of the educative value in the pilot programme’s questionnaires, Murray’s 2002 survey of lawyers revealed that 68 per cent of lawyers held the view that coverage did not increase public education.274 Perhaps the strongest challenge of claims regarding the educative effect of courtroom televising may be found in the Noisette minority 270

271

272

273

274

Johnson and Krafka, Electronic Media Coverage of Federal Civil Proceedings, above n. 106, at p. 24. With respect to educating about the justice system, nineteen responses indicated that it did educate while only seven expressed the view that it educated ‘to no extent’, while the corresponding figures with respect to educating about court procedure were even more encouraging: twenty-three against only four who felt that it did not educate. See Allan, McGregor and Fountaine, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, above n. 113, at p. 98. Prior to 2004, New Zealand’s televising guidelines required broadcasts of court footage to ‘be without editorial comment and of at least two minutes duration per news item’: Guidelines for Expanded Media Coverage of Court Proceedings (May 2000), Guideline A1. See above chapter 6 B.2(c), C.2(b) and F.2–3 for a further discussion of the requirement. The average conventional media report is 95 seconds in length. See Allan, McGregor and Fountaine, The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, above n. 113, at p. 196. Murray, ‘Electronic Media Coverage of Courts’, above n. 42, at para. 8.5.

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report in the New York State Committee’s review of audio-visual coverage of New York trial courts.275 Noisette expressed the view that the New York experiment had ‘failed to prove that cameras in the courts provide a public benefit, significantly enhance public understanding of the judicial process or help to maintain a high level of public confidence in the judiciary’.276 He argued that there is no evidence that television coverage of court proceedings had enhanced public understanding of New York’s judicial system, and that responses to the judicial survey and the Marist opinion poll actually revealed that a substantial majority of judges and members of the public felt that televising did not have this effect. Noisette points out that on being asked whether television coverage ‘has enhanced public understanding of New York’s judicial system’, 25 per cent of judges strongly disagreed, 26 per cent somewhat disagreed, and only 10 per cent strongly agreed. Asked whether television coverage ‘is more likely to serve as a source of entertainment than education for the viewing public’, 41 per cent of judges strongly agreed and a further 39 per cent somewhat agreed.277 Noisette also noted that 61 per cent of surveyed members of the public held that television in the courtroom was more a source of entertainment than something that would increase the public’s understanding of the justice system.278 This led Noisette to conclude that ‘the media have not achieved the educational goals they promoted as a justification for the cameras in the court experiment’.279

(c) Capacity to enhance open justice Common law courts have recognised that public administration of justice is crucial to the maintenance of public confidence in the administration of justice. Open justice, in turn, requires public access to court decisions and the publication of information on the work performed by courts, their hearings and decisions. Merely permitting members of the public and the press to enter courtrooms to observe and report on court proceedings is almost universally accepted by Australian judges to be insufficient to produce the informed public debate required for effective public scrutiny of the judicial process. Thus, Australian courts have taken steps to enhance and assist both public and media access and understanding. 275 276 278 279

New York State Committee, An Open Courtroom, above n. 25, at p. 207. Ibid. p. 216. 277 Ibid. p. 217. Ibid. p. 217, citing questions 1 and 3 set out at pp. 116 and 117. Ibid. pp. 218–19.

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In doing so, Australian courts have come to recognise the inadequacies of relying on open courtrooms which very few persons visit, and the publication of reasons for decisions which, at least prior to the introduction of online posting, few people could access and which, despite the publication of occasional judgment summaries, few can understand. Australian courts were amongst the first to provide the public with ready access to court decisions and other documents via the Internet. However, in spite of this, and the courts’ increasing use of judgment summaries, courts still struggle to make their decisions accessible, in the sense of being able to be understood by the layperson.280 In acknowledgement of how few members of the public actually attend and observe court proceedings, courts have taken steps to ensure that the media, who are accepted to be ‘acting as surrogates for the public’,281 are made aware of cases of interest and importance to the public, that they understand the facts and issues of cases and understand the terms and reasons for court rulings and thus are able to publish accurate accounts and informed commentary on proceedings. Recognising that television is the main source of public information has caused Australian courts also to facilitate access to visual footage of proceedings to accompany television reporting. That Australian courts have not embraced the routine television coverage of criminal trials, as New Zealand courts have done, need not necessarily mean that they have failed to significantly enhance open justice. While Australian trial proceedings have only on rare occasions been subject to public scrutiny through audio-visual coverage, Australian courts have sought to inform public debate through the televising of sentencings and of significant trial and appeal court decisions. The nature of permitted coverage may be said to be consistent with what appears to be the main motivation for Australian courts’ admission of television cameras – the judiciary’s desire to counter 280

281

See the Right Hon. Sir Ninian Stephen, ‘Address on the Occasion of the President’s Luncheon’, paper presented at the President’s Luncheon at the Law Institute of Victoria, 19 August 1998; the Hon. Chief Justice Spigelman, ‘Reasons for Judgement and the Rule of Law’, paper presented at the National Judicial College, Beijing, 10 November 2003, www.lawlink.nsw.gov.au/lawlink/supreme-court/11_sc.nsf/pages/ SCO_speech_spigelman_101103 at 25 April 2007. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), Chief Justice Burger had recognition that ‘[i]nstead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through print and electronic media. In a sense this validates the media claim of functioning as ‘‘surrogates for the public’’’: at 572–3.

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misinformation about and misunderstanding of the reasons for decisions and the role of courts. Arguably, televising of court proceedings in the interests of promoting open justice need not necessarily involve the broadcasting of sensational trials, but may in fact only call for a more systematic broadcasting of sentencing remarks, reasons for decisions and of decisions, plus possibly some legal argument in appeal cases. Australian courts possess the technology to provide the public with audio-visual access to such proceedings, irrespective of the interests of the media. When they choose to do so, media networks are likely also to wish to utilise some of the footage.282 That justice can no longer be said to be administered openly simply because the public is permitted to attend and observe proceedings has long been recognised by courts.283 As the working party of the English and Welsh Bar observed in their 1989 report, the principle of open justice can no longer depend on public attendance of court proceedings,284 and public scrutiny and debate of court proceedings has become overwhelmingly reliant on media and especially television reporting.285 However, this has not prevented opponents of televising from suggesting that the requirements of open justice are satisfied by courts being open to the public and conventional media reporting.286 Thus, in his minority report on audio-visual coverage in New York courts287 Noisette responded to the argument that ‘cameras provide access for those who are too busy to get to court’ by stating: ‘The State of New York certainly should not have a policy of allowing TV cameras in the courts because it’s easier to sit at 282

283

284 286

287

As they have done with respect to CPAC’s broadcasting of the Supreme Court of Canada, see above chapter 4 B.2(a) for discussion. See also above chapter 3 E for a discussion of webcast proceedings of some US state courts. See especially Chief Justice Burger in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572–3 (1980); discussed above chapter 3 C.4; and Home Office v. Harman [1982] 1 All ER 532, 547 in which Lord Scarman observed: ‘Justice is done in public so it may be discussed and criticised in public.’ He emphasised that the purpose of facilitating public debate was ‘so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification’; discussed above chapter IV(C)(2). See also Harman v. Secretary of State for the Home Department [1983] 1 AC 280, 316; Dickason v. Dickason (1913) 17 CLR 50, 51; Russell v. Russell (1976) 134 CLR 495, 520, 532; R v. Hamilton (1930) 30 SR (NSW) 277, 278; New Brunswick Broadcasting v. Nova Scotia [1993] 1 SCR 319, 406–9 (Cory J). Caplan Report, above n. 7, at para. 1.6. 285 Ibid. para. 4.2. See e.g., above chapter 5 E.6 for a discussion of the argument put by Chief Justice Gleeson. New York State Committee, An Open Courtroom, above n. 25, at p. 207.

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home and watch the tube than to stand on line at the courthouse for a celebrity trial.’288 Noisette argued that having failed to demonstrate the public benefits of audio-visual coverage, the media ‘has tried to recast the grounds for debate in a form they could manipulate more easily’ thus stressing ‘openness’ while downplaying concerns regarding the impact of such coverage on trial participants, and widely held views that ‘the presence of cameras is qualitatively and quantitatively different than a reporter with a pen’.289 Noisette’s arguments are particularly noteworthy in that they highlight the two underlying reasons why many opponents distrust and reject arguments based on open justice – that open justice arguments shift the focus away from the detrimental effects of televising, and that they provide camouflage for the media’s ‘real motives’ for seeking access to proceedings. The weakness of the argument that focusing on the potential of court televising to enhance open justice causes negative effects of such coverage to be deemed acceptable, is that the principles of open justice, as Lord Atkinson observed in Scott v. Scott,290 recognise detrimental effects as the acceptable price of the attainment of the benefits of open administration of justice.291 The argument that the enhancement of open justice is not the real reason why the electronic media seek to televise court proceedings is a much more persuasive argument. It is difficult to deny that ratings rather than the promotion of greater public understanding of judicial proceedings motivate many media applications. However, a recognition that the media’s commercial interests may lead to coverage incompatible with the interests of the administration of justice does not warrant the prohibition of court televising. Instead, it highlights the need for court televising to be considered in terms of the audio-visual technology, regulated by the courts to enhance public access and understanding, rather than being addressed solely in terms of the media’s rights to undertake such coverage. In regulating audio-visual coverage of proceedings, courts are beginning to recognise that developments in information and communication technology, and in particular the Internet, have served to undermine some of the assumptions underlying the regulation of court reporting by the

288 290

Ibid. pp. 228–9. 289 Ibid. pp. 227–8. Scott v. Scott [1913] AC 417, 463. 291 See discussion above chapter 2 C.1.

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conventional media292 and highlight a pressing need to reconsider the principle of open justice and courts’ balancing of ‘open justice’ and ‘fair trial’.293

4 Inconclusiveness of research findings As the discussion and analysis in preceding chapters and above has revealed, the extensive evaluation of experiments and courts’ experiences with audio-visual coverage has not produced a consensus on the beneficial or detrimental effects of audio-visual coverage. Proponents of audio-visual coverage tend to view the findings as revealing that fears expressed regarding the potential dangers of electronic media coverage are either unfounded or capable of being sufficiently minimised, if not entirely eliminated, through appropriate regulation. Opponents of audio-visual coverage, on the other hand, point to the same studies as producing conclusive proof of unacceptable dangers and detrimental effects and unfulfilled purported benefits. The inconclusiveness of such evaluations of the effects of audio-visual coverage stems in part from the fact that the effects which are being evaluated have been shown not to be capable of conclusive scientific evaluation as they rely on the subjective perceptions of courtroom participants and observers. Even on this point there is a divergence of opinions, perhaps most memorably illustrated by the Federal Judicial Center’s evaluation of the experiment in civil US federal court hearings and appeals. The research team decided not to ‘measure the actual as opposed to the perceived effects of televising on courtroom participants’, as they held that: The only way to measure objectively the actual effects of electronic media on jurors and witnesses would be to compare the behavior and perceptions of jurors and witnesses in two different groups of cases: those covered by electronic media and those not covered . . . this approach 292

293

Perhaps the most significant of such assumptions relate to the ability of courts to protect the impartiality of proceedings from prejudicial publicity. Developments in information technology, and especially the Internet, make publicity which could previously be assumed to be confined and controlled within jurisdictions, or to be difficult to recall, universally and easily accessible on a continuing basis. For a discussion of ‘practical obscurity’ see Chief Justice Spigelman, ‘Open Justice and the Internet’, paper presented at The Law via the Internet 2003 Conference, 28 November 2003, www.lawlink.nsw.gov.au/lawlink/supreme_court/11_sc.nsf/ pages/SCO_speech_spigelman_281103 at 25 April 2007; above chapter 5 G.4. See also above chapter 4 D.6(c). See discussion above chapter 4 D.5(d).

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was not feasible because, among other reasons, there would be too few cases in the pilot courts with high media interest to support an evaluation.294

The Federal Judicial Center also decided against directly measuring the attitudes of jurors, witnesses and parties: because most have little courtroom experience and could not . . . make judgments (as judges and attorneys could) about the effects of electronic media on themselves. (A witness who has never been in a courtroom might be nervous for many reasons but might attribute that state – inappropriately – to the presence of cameras.)295

That the research undertaken in the evaluation of the federal courts’ pilot did not assess the actual effects of electronic media on witnesses, jurors, counsel or judges, and confined itself to the ascertainment of perceived effects, and that the attitudes of jurors, witnesses and litigants were not assessed, has caused the conclusiveness and soundness of the Federal Judicial Center’s evaluation to be challenged by Dr Eugene Borgida.296 Borgida also criticised the evaluation on the grounds that the evaluation research design did not involve a true experimental research design with random assignment. He specifically noted that as all courts involved in the federal court pilot programme were courts which volunteered to participate, the views of judges did not represent the views of a randomly selected sample of federal judges.297 Borgida’s criticism was not confined to the methodology of the Federal Judicial Center’s evaluation. He also dismissed the Florida experiment as not in fact an experiment since it only consisted of surveys ‘administered after the fact and sometimes up to a year post trial with no comparison group of respondents included in the survey research efforts and no pre/post assessment of the respondents’ views’.298 While conceding that the California evaluation undertaken by Short and Associates did involve extensive collection of data, Borgida still deemed its findings to be inconclusive on the grounds that: 294

295 296

297 298

Johnson and Krafka, Electronic Media Coverage of Federal Civil Proceedings, above n. 106, at p. 8. Ibid. See affidavit of Dr Eugene Borgida cited in Attorney-General of British Columbia, ‘Factum of the Respondent R v Pilarinos and Clark’ Court File No. 28823 (2002), at 7, para. 17, which refers to these factors as ‘significant methodological limitations’. Ibid. at para. 8 of A-GBC affidavit; para. 17, 7 of Factum. Cited in ibid. at para. 19.

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the research was not an experimental research design (eg there was no random assignment of cases to electronic versus conventional media coverage). Moreover because the comparison group was compromised and contaminated by some cases that had both electronic and conventional media coverage, the sample size for the research project was too small to draw any conclusions about the effects of media coverage with confidence.299

The criticism levelled at the methodology employed in the evaluation of the federal courts’ pilot is significant as the vast majority of research with respect to courtroom televising has also been confined to measuring perceptions and consequently has been subject to similar criticism.300 Though many other researchers have questioned or commented on the methodology and conclusiveness of the findings of these studies, some, such as Susanna Barber, have observed that: some of the so-called weaknesses of the courtroom cameras research, i.e., its subjective and predominantly non-experimental nature, may in part be its strength. The collection of attitudinal questionnaire responses and personal interview opinions enabled researchers to uncover some of the more revealing and ‘emotional’ attitudes trial participants have toward camera coverage. These sentiments might not have surfaced in strict experimental, objective research.301

Apart from differing inferences and conclusions being drawn from the findings of evaluations in reflection of differing views as to the appropriateness and conclusiveness of research methodologies employed, it is also important to note that findings may not be replicated within different social, legal and judicial cultures. As the discussion in the above chapters revealed, far too often fundamental differences in attitudes towards the imposition of restraints on freedom of the press, or of laws and legal principles regulating the reporting of court proceedings, have been overlooked in drawing inferences from the experiences and 299

300

301

Cited in ibid. at para. 23, 9. Dr James Ogloff is also cited as concurring with Borgida’s assessment following a review of related scientific literature. See ibid. at para. 25, 9–10. See e.g., Dan Slater and Valerie P. Hans, ‘Methodological Issues in the Evaluation of ‘‘Experiments’’ with Cameras in the Courts’ (1982) 30 Communication Quarterly 376; Ralph E. Roberts, Jr, ‘An Empirical and Normative Analysis of the Impact of Televised Courtroom Proceedings’ (1998) 51 Southern Methodist University Law Review 621; George Gerbner, ‘Trial by Television: Are We at a Point of No Return?’ (1980) 63 Judicature 416. For an overview of the nature of such criticism see Barber, ‘News Cameras in the Courtroom’, above n. 2, at 204. Ibid.

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findings in one country to determine and predict the likely effects and experiences in another. Reliance on findings based on perceptions has often also overlooked the reality that such perceptions are subject to change and are linked to variables such as preconceived views as to the desirability of such coverage, and the nature and extent of personal experience with audio-visual media. Thus, the experiences of countries discussed in earlier chapters reveal significant differences in perceptions as to the desirability of court televising between those who have personally experienced such coverage and those whose views are based on second-hand accounts of televising, and a reluctance to change policies adopted with respect to audio-visual coverage in spite of contrary findings of studies and experiences.302 Canada’s experiences, in particular, illustrate how the inconclusiveness of findings when coupled with the placement of the onus of proof on those seeking permission for audio-visual coverage results in the imposition of a de facto prohibition on such coverage.303 While opponents of televising have cited what they perceive as inconclusive findings and suspect evaluation methodologies to question the almost invariably pro-televising conclusions of studies and experiments, they cite the findings of the same studies as evidence of some undesirable effects. Though outweighed by positive findings, even the most minor evidence of undesirable impact has been presented as significant on the basis of the presumption on which opponents of televising rely – that courtroom televising should only be permitted if it can be conclusively established that it will have no detrimental effect.

C Determinative factors 1 Introduction The analysis, undertaken in the preceding chapters, of several common law countries’ experiences with televising has sought to identify the factors responsible for their admission of cameras into courts and for such coverage of proceedings being deemed appropriate and becoming accepted by courts, courtroom participants and the public.

302

303

See e.g., above chapters 4 C.4(d) and (e) for a discussion of Canada’s assessment of the televising of trial proceedings as reflecting personal views rather than the evidence and continuing opposition to such coverage in spite of findings. See discussion above chapter 4 C.4(d), (e) and D.5(d).

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The examination of the experiences of individual jurisdictions and this chapter’s earlier analysis of findings as to the effects of televising have disclosed numerous and varying social, historical and legal factors which influence attitudes towards audio-visual coverage and determine the nature and extent to which audio-visual coverage is permitted in individual jurisdictions. In outlining such factors this book has sought to identify which of these have proven to be decisive and determinative and to test hypotheses which posit that rights, technology and judicial attitudes, rather than evidence as to effects, are the crucial and determining factors. In proposing that these three factors are determinative, it is not suggested that other factors are not significant, but rather that, unlike others, the three identified factors provide a coherent, substantiated and thus compelling explanation for both the common and distinguishing features of British, American, Canadian, Australian and New Zealand experiences with in-court televising. In particular, it has been argued in this book that too much emphasis has been placed on the findings of research as to the effects of televising, not only because the results are inconclusive and by their very nature and many variables destined to remain so, but also because the attention bestowed on such studies appears to be premised on their findings being the determinants of whether televising is and ought to be permitted. That no jurisdiction which has permitted televising has gone on later to prohibit such coverage on the basis of the findings of evaluations of their experiences,304 would, in light of the fact that results have not always been unquestionably encouraging,305 suggest that the findings of evaluations play a role which is not determinative of decisions as to whether to permit or continue to permit televising – at least not in their own jurisdictions. In fact, as outlined above, the experiences of the United States, Canada, Britain, New Zealand and Australia appear to establish that the crucial decisions to permit televising are made by courts on the basis of inferences drawn from the experiences of other

304

305

The discontinuation of experiments with televising in US federal courts and the trial courts of New York State was shown in earlier discussion not to be based on the findings and recommendations of studies which evaluated their experiences. See above B and chapter 3 D.4 respectively. See e.g., the mixed results disclosed by the 1996 Report of the California Taskforce, discussed above chapter VII(B) and chapter III(D)(4).

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countries or jurisdictions before they evaluate the benefits and detriments of such coverage in their own jurisdictions.306 While the findings of studies and experiments have been shown not to determine whether court televising is introduced or permitted to continue in their own jurisdictions, such findings have played an important role in reassuring other jurisdictions considering electronic media coverage. Within their own jurisdictions, pilot programmes and their evaluation play a very different role. As New Zealand’s experience perhaps most clearly illustrates,307 pilot programmes and the findings of a jurisdiction’s own evaluations serve to determine the most appropriate forms and terms of regulation, assuage concerns regarding televising, and allow courtroom participants and the public to become accustomed to such coverage before it is permitted more widely and on an ongoing basis. The following discussion considers the key findings with respect to each of the three factors which earlier chapters have established to be determinative of audio-visual coverage being permitted, deemed desirable and made acceptable.

2 Role of rights The recognition and enshrinement of the right to a public trial, freedom of communication, the media’s right to gather and disseminate information regarding court proceedings, and the public’s right to see justice being administered, have served to compel often reluctant legislators and judges to confront and address the issue of the recording and broadcast of court proceedings. Thus, American courts were prompted to lift prohibitions on courtroom televising in recognition of First and Sixth Amendment rights. In Canada, the recognition of implications flowing from the Charter of Rights and Freedoms is also leading to a relaxation of the common law prohibition or severe restriction of cameras in courts. A recognition of the similarities between the relevant provisions of the New Zealand Bill of Rights Act 1990 and the Canadian Charter of Rights

306

307

Earlier discussion has suggested that this was especially the case with respect to courts in New Zealand, Scotland and some Canadian courts, such as the courts of British Columbia. See above chapter 6.

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and Freedoms 1982308 prompted the leadership of New Zealand’s judiciary to pre-emptively move towards electronic media access regulated by the judiciary and to a recognition of a presumption in favour of such coverage. In 1992 Scottish judges also recognised the implications of the European Convention on Human Rights for their common law prohibition and moved to regulate such coverage. That a similar relaxation has not to date taken place in England, Wales and Northern Ireland may be attributed to the presence of long-standing statutory prohibitions on cameras in courts. However, the recently conducted experiment in the London Court of Appeal appears to signal a belated and reluctant recognition that the retention of total prohibitions on courtroom cameras will inevitably be found to be incompatible with the provisions of the European Convention on Human Rights as implemented in British law by the Human Rights Act 1998. However, the experiences of countries such as the United States and Canada, where the media have played a dominant role in the court televising debate, reveal that making audio-visual coverage of courts synonymous with the media’s right to freedom of communication can be a double-edged sword. On the one hand, the electronic media’s insistence on access has forced a relaxation of total prohibitions on cameras in courtrooms. On the other, the consequent equating of camera access with media rights and interests has undoubtedly contributed to the judiciary’s reluctance to grant such access. That Australia lacks enforceable legal rights equivalent to those in the other jurisdictions under consideration may be said to in large measure account for why Australian courts have not been forced to confront the issue. This factor appears to have also played a role in ensuring that audio-visual coverage of Australian courts has not been equated with media rights but rather has been championed by Australian courts as part of their campaigns to enhance public confidence in the judicial system through greater access to and understanding of judicial proceedings. While the recognition of media and public rights with respect to audio-visual recording of court proceedings have forced courts to confront the issue of televising, such recognition alone has proven insufficient to ensure that judges actually and frequently permit court televising. Nor has the recognition of rights in itself ensured that the potential benefits of such coverage are attained. 308

Cf. ss. 5, 14, 25 of the New Zealand Bill of Rights Act 1990 with the corresponding ss. 1, 2, 11 of the Canadian Charter of Rights and Freedoms 1990.

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3 Judicial attitudes It is only when the judiciary recognises not only the media’s right to record and broadcast but also the public’s right to access such recordings and the benefits of such access and actively promotes such coverage and the attainment of its potential benefits that the cameras in courts debate ceases to focus on effects and overcomes the stalemate created by inconclusive research findings and concerns regarding media coverage. A hallmark of jurisdictions where public access to audio-visual recordings of court proceedings has been recognised by the judiciary as potentially conducive to the attainment of the objectives of such access is that courts are much less likely to still insist that those seeking audio-visual coverage should bear the onus of establishing virtually unattainable levels of proof as to the effects of such coverage. On the other hand, in jurisdictions where such access is being grudgingly conceded and equated with media interests, a presumption against electronic media coverage remains in place and the regulation of coverage is virtually tantamount to prohibition. This may be said to be illustrated in the United States, where the recognition of First and Sixth Amendment rights has ostensibly lifted prohibitions on courtroom televising, but where in practice many courts remain unconvinced of the benefits of televising and resist what they see as media demands, and consequently through the exercise of judicial discretion continue to impose a virtual prohibition on such coverage. On the other hand, an increasing number of US state courts and even federal courts recognise the vital role which courts play in ensuring the attainment of the objectives secured through freedom of communication and the public administration of justice. It is on this basis that courts such as those in Florida, Indiana and Washington State have taken innovative steps to ensure that the public has ready access to recordings of their proceedings. Earlier discussion of Canadian experiences above chapter 4 also revealed that Canadian courts are beginning to recognise the benefits flowing from audio-visual coverage in terms of the common law principle of open justice as enshrined in the Charter’s entrenchment of public hearings,309 and section 2 provisions relating to freedom of public expression and the freedom of media of communication expressly extending beyond the press. The Canadian judiciary’s recent embracement of a proactive role 309

In s. 11(d) of the Charter.

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in facilitating greater public access to and understanding of court proceedings and their cooperation with the media may be said to flow from the growth of a Charter of Rights-inspired culture of rights. Canada’s experience suggests that as the entrenchment or recognition of media and public rights to access and disseminate information regarding court proceedings becomes a part of a community’s culture of rights, the public also becomes more receptive to and begins to expect levels of transparency in judicial administration consistent with courtroom televising. In contrast, as the January 2005 public consultation seminar illustrates,310 influential members of the English judiciary continue to resist televising, treating proposals for the relaxation of the statutory ban as an unwarranted concession to media demands. The debate which has accompanied the public consultation following the December 2004 experiment with the audio-visual recording of Court of Appeal proceedings may be said to reveal not only a judiciary which is yet to take on board the rights culture championed by the government and genuinely promote a more transparent and publicly inclusive judicial system, but also a public yet to appreciate the notion of a transparent, accountable judiciary. As noted earlier, evaluations of the effects of audio-visual coverage do not appear to determine whether courtroom televising is introduced or permitted to continue. However, they do play a key role in reassuring courts which have taken the decision to permit audio-visual coverage on an experimental basis and those undertaking initial studies in jurisdictions considering whether to introduce cameras into their courtrooms.311 Consequently, the crucial decision may be said to be the decision to undertake an experiment – a decision dependent on key or influential members of the judiciary being convinced of the potential value of such coverage. The judiciary’s acceptance of the value of audio-visual coverage has been shown to determine whether an experiment ought to be undertaken, but perhaps more significantly also the effectiveness and success of such extended coverage, because it is judges who determine whether audio-visual coverage is simply left to the media or whether the courts 310 311

See above chapter 2 M.4 for a discussion. See e.g., above chapter 6 B.2(b), B.3 for a discussion of the influence of overseas studies and experiences on the deliberations of New Zealand’s Courts Consultative Committee.

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assume an active role to ensure that the potential dangers are avoided and the benefits of such coverage are attained. In this respect it may be suggested that, while Sir Ivor Richardson’s and Sir Thomas Eichelbaum’s views on cameras and open justice ensured that New Zealand undertook an experiment with extended media coverage, a relative lack of commitment to such coverage by other members of New Zealand’s judiciary and, following the retirement of Sir Thomas and Sir Ivor, by the most senior New Zealand judges, has ensured that the nature and extent of audio-visual coverage has been left in the hands of the media. For New Zealand’s court televising to move beyond the coverage of high profile criminal trials, arguably the judiciary will need to once again assume a proactive and leading role, extending beyond merely approving media applications to record and broadcast proceedings. Where the judiciary’s involvement moves from merely permitting electronic media access to active facilitation312 and even court supplementation of coverage,313 the focus tends to shift from the guidelines regulating coverage to a cooperative quest for the optimum utilisation of audio-visual technology to enhance public access and understanding. Thus, judicial attitudes may be said to account for why New Zealand’s courts remain preoccupied with the regulation of coverage, and less concerned to supplement media coverage falling far short of its potential, while Florida’s courts lead the world with innovative ways of facilitating and enhancing media reporting and public access to recordings of court proceedings.

4 Technology Recent developments in technology have also played a crucial role in facilitating a change in judicial attitudes. Over twenty years ago courts recognised that advances in technology had taken away the rationale for deeming audio-visual recording to be inherently prejudicial to the conduct of a fair trial. In more recent times, judges have utilised such technology to enhance and make their work and the judicial process more efficient. As courts have familiarised themselves with the potential 312

313

Through courts’ provision of assistance and training to the media and liaison channels through which courts may make media organisations aware of significant pending cases suitable for broadcast. Through courts’ recording and webcasting of proceedings, with such footage also made available to the media.

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of communications and information technology, so too the public has grown accustomed to using and being recorded by audio-visual recording devices. Consequently, not only has technology largely eliminated concerns regarding the disruptiveness of audio-visual recording, it has also eased the psychological pressures associated with such coverage. Perhaps the most significant impact of technological changes is that courts are now able to play an active role in facilitating public access to audio-visual recordings of court proceedings, and no longer need to rely entirely on the media to communicate with the public at large. In commencing to disassociate the broadcast and publication of reports of court proceedings from the traditional reliance on the media, courts have been able to overcome the mistrust and concerns about media coverage which have caused many to baulk at the prospect of permitting cameras to record their proceedings and have themselves begun to assume a much more active role. The potential application of the new technology and some objections to its use in courtrooms314 have combined to highlight the lack of genuine opportunity for public scrutiny of some aspects of the administration of justice and to present means of enhancing public access to aspects of the judicial process, such as ‘paper trials’ which in many cases were introduced to enhance efficiency at the expense of openness. However, technology does not only provide solutions. It has also created problems by opening the administration of justice to a level of public scrutiny which may be said to undermine the ‘practical obscurity’315 that has traditionally been relied on in balancing fair trial and open justice. What has been highlighted is that the principles and rules which govern the reporting of court proceedings and are determined by balancing the principles of open justice with the rights of those who come before courts were developed in an era predating significant developments in communication and information technology such as the Internet, which was dominated by press reporting and characterised by far less public demand for transparency in public institutions, and consequently need to be reformulated. Many jurisdictions have begun to recognise that the regulation of publicity needs not only to take into account that press reporting is a shrinking and changing medium of 314 315

See discussion above chapter 3 E. A term coined by Justice Spigelman to explain naturally occurring limitations on publicity, such as the fading memory of press reports, on which the regulation of conventional media reporting has been premised; discussed above chapter 5 G.4.

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public information,316 but where necessary also to differentiate between the various forms of media.317

D Conclusion This chapter has reviewed the key comparative findings as to perceived effects of court televising in the common law jurisdictions of Australia, the United States, Britain, Canada and New Zealand. In identifying both reassuring and troubling findings, it has revealed that overall findings as to the effects of televising have been perceived to be sufficiently encouraging to cause an increasing number of courts and jurisdictions to introduce such coverage, yet have also been deemed insufficiently conclusive to overcome the reservations of courts unwilling to even experiment with televising. The detailed discussion in earlier chapters of the experiences of specific jurisdictions identified and analysed unique and common factors accounting for decisions to admit or deny audio-visual coverage, the nature of such coverage and its acceptance. The experiences of all jurisdictions were analysed specifically in terms of three factors: the recognition of a legally enforceable right to record and broadcast and/or access audio-visual footage of court proceedings; the utilisation of technology to make such recording compatible with the nature of judicial proceedings and to overcome concerns regarding potential misuse of such access; and judicial attitudes towards audiovisual coverage. While the individual experiences of the five countries are quite distinct, they all appear to confirm that while factors such as the behaviour of the electronic media and the manner in which court televising is regulated may account for the extent to which particular instances of coverage or experiments are deemed to be successful, ultimately rights, technology and judicial attitudes are the factors which prove pivotal in decisions to experiment with such coverage, and the extent to which such coverage has proven to be acceptable and successful. The significance in identifying these factors as determinative is that it shifts the focus away from the intrinsically elusive search for conclusive 316 317

Particularly in view of its increasingly visual content and its publication on the Internet. The regulation of media reporting of the proceedings of the Family Court of Australia provides an illustration of how differences between different forms of media may be taken into account. See above chapter 5 E.5.

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evidence as to whether the effects of televising are positive or negative. It also provides a proven and consistent framework for determining the manner in which such coverage is introduced, the extent to which it is permitted, and the basis on which it is regulated. In distinguishing the issue of audio-visual coverage of proceedings from the media’s right to record and broadcast proceedings, the proposed framework also recognises that the role and interests of the media are distinguishable from the role and interests of the administration of justice. Acknowledging the different roles of the courts and the media and thus distinguishing their respective motives for participating in court televising eliminates the need for arguments in favour of televising to rely on the indefensible premise that court and media interests necessarily and inevitably coincide. Thus, while all the jurisdictions addressed in this book have accepted that greater public understanding and access to judicial proceedings is desirable, the enshrinement of these aspects of the principle of open justice in entrenched rights provisions has been shown not only to cause courts to address the issue of cameras in courts, but through the accompanying growth of cultures of rights it has also been shown to make such access more acceptable to the public. That benefits, such as enhanced public access to and understanding of court proceedings, are not being more fully realised may be attributed to their attainment being left to the electronic media, who are reluctantly granted restricted access and whose motivation for seeking such access is seen as potentially incompatible with the interests and rights of parties and participants in proceedings. The analysis in this book revealed that the potential benefits of audiovisual coverage are much more likely to be attained when courts recognise that it is not the media’s role nor necessarily in the media’s interest to necessarily provide the type and extent of coverage which the interests of the administration of justice appear to dictate. Courts’ recognition that providing public access to audio-visual recordings of court proceedings is too important to be left to the media318 appears to be a crucial element in the cameras in courts debate, and has been shown to lead courts to assume a proactive role, which embraces but does not rely on media coverage. Courts convinced of the benefits to be gained from 318

As noted by South Australia’s Chief Justice Doyle. See the Hon. Chief Justice John Doyle, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 1 University of Technology Sydney Law Review 25, 28; discussed above chapter 5 E.1.

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audio-visual coverage of court proceedings are unlikely to leave the nature and extent of such coverage to be determined solely by the media’s interest in recording and broadcasting and are more likely to recognise that it is unrealistic and inappropriate to expect the media to broadcast proceedings irrespective of the level of public interest such broadcasts may generate. Such recognition has been aided by developments in communications and information technology, which provide the courts with the capacity to assist and supplement media reporting of proceedings by, for example, providing access to courts’ recording equipment or recordings and media training, and in so doing help overcome distrust and concerns relating to media coverage by enabling courts to retain control over such coverage. A recognition of the crucial role which rights, technology and judicial attitudes play in common law courts’ experiences with audio-visual coverage creates a compelling case for arguing that it is both appropriate and desirable that the debate and regulation of audio-visual recording and broadcast of court proceedings should be treated as an extension of courts’ utilisation of technology to promote public access and understanding.

APPENDIX 1: PERSONS CONSULTED

The following list of persons consulted is in alphabetical order, and notes the official capacity in which each was last consulted. The Hon. Justice G. L. Alexander, Chief Justice Supreme Court of Washington State Louise Anderson, Native Title Coordinator, Federal Court of Australia Terry Anderson, Senior Media Liaison Officer, Courts Administration Authority of South Australia Julia Appel, Administrative Office of the Courts, Supreme Court of Washington State ´ ıse Arbour, Administration Service Media Contact, Federal Court Elo¨ of Appeal, Canada Jeff Ballabon, Vice-President, Public and Government Affairs, Court-TV Jeremy Barnett, Chairman of the English Bar Council IT Panel David Bartlett, Former President Radio-TV News Directors’ Association (US) Charles Bierbauer, Senior Supreme Court Reporter, CNN Neil Billington, Senior Judicial Communications Adviser, Wellington High Court Prof. Kenton Bird, Head of the School of Journalism and Mass Media, University of Idaho Brian Bishop, Chief-Deputy Clerk, Supreme Court of Indiana The Hon. Justice M. E. J. Black AC, Chief Justice Federal Court of Australia Susan Blashki, Magistrate, Magistrates’ Court of Victoria Alistair Bonnington, Senior Lawyer, BBC Scotland Terry Brown, Coordinator, ABC Coverage of 1998 Constitutional Convention Val Buchanan, Manager, Media and Public Liaison, Supreme Court of WA Daniel Burnett, Owen Bird Barristers and Solicitors, Vancouver 417

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Prof. Donald Burnett, Dean, College of Law, University of Idaho Julian Burnside QC, Barrister, Melbourne Jason Cameron, Television Producer/News Reader, Melbourne Jonathan Caplan QC, Barrister, Chair of 1989 Working Party of the Public Affairs Committee of the General Council of the Bar Suzanne Carty, Press Representative on New Zealand’s Media in Courts Monitoring Committee, Editor Consultant, Dominion Post, Wellington (NZ) Tony Cavanaugh, Barrister, Melbourne Linda Caviness, Executive Director Strategic Development, National Center for State Courts The Hon. Justice R. Chambers, New Zealand Court of Appeal, Chair of Media in Courts Monitoring Committee The Hon. Judge J. Chaney, District Court of Western Australia Christian Chartier, Head of the Public Information Unit, International Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 Barbara Cochran, President, Radio and TV News Directors’ Association (US) Bruce Collins, Senior Counsel, C-SPAN, Washington DC The Hon. Justice R. E. Cooper, Federal Court of Australia Prof. Pat Costello, College of Law, University of Idaho Chris Cox, Director, Court Support Services, NT Department of Justice Douglas Cressler, Administrator, Indiana Court of Appeals The Hon. Justice P. D. Cummins, Supreme Court of Victoria Tania Cutting, Media Manager, Family Court of Australia The Hon. Justice John Doyle, Chief Justice of South Australia Karina Duffy, Deputy Regional Procurator Fiscal, Glasgow Barry Ebert, Spokesman for the Ministry of Justice, New Zealand David Elder, Serjeant-at-Arms, Secretary of the Joint Committee on the Broadcasting of Parliamentary Proceedings, Department of the House of Representatives Robin Elliot, Executive Legal Officer, Supreme Court of Canada Edie Emery, Radio-TV News Directors’ Association (US) Peter Faris QC, Barrister, Melbourne Wendy K. Ferrell, Communications Manager, Administrative Office of the Courts, Supreme Court of Washington State The Hon. Justice R. S. French, Judge, Federal Court of Australia Judge Nancy Gertner, US District Judge for the District of Massachusetts

PERSONS CONSULTED

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Michael Gething, Principal Registrar, District Court of Western Australia Monica Ghosh-Driggers, Analyst, Research and Planning, Judicial Council of California, Monica Roger Gill, Registrar High Court Wellington Prof. David Goldberg, Centre for Socio-Legal Studies, Oxford University Robert Golden, Court-TV (UK) Lew Griffiths, Media Consultant, Yorta Yorta Native Title Hearing Fiona Hamilton, Public Information Officer, High Court of Australia D.J. Hamilton-Rump, Head of Administration, General Council of the Bar, London Chris Hammer, Journalist, SBS Television Grant Hattam, Solicitor, Corrs Chambers Westgarth, Solicitors Jerrianne Hayslett, Former Director of Public Information for the Los Angeles Superior Courts The Hon. Senior Judge Paul Healy, District Court of Western Australia Gary Hengstler, Director of the National Center for the Courts, Reno Daniel J. Henry, Senior Counsel, Canadian Broadcasting Corporation Judge Herndon, Idaho District Court Len Higson, Regional Procurator Fiscal, Glasgow Bev Hong, Research Coordinator, Senior Research Adviser, New Zealand Department for Courts Lex Howard, Marshall, High Court of Australia The Hon. Justice Richard Huffman, Associate Justice of the California Court of Appeal and Chair of the California Task Force on Photographing, Recording and Broadcasting in the Courtrooms Judge David Hunt, International Criminal Tribunal for the Former Yugoslavia, The Hague Prue Innes, Courts Information Officer, Supreme Court of Victoria The Hon. Judge Lance A. Ito, Superior Court of California Bill Jackson, Director of Public Affairs, Family Court of Australia Dr. Philip Jamieson, Research Assistant to the Hon. the Chief Justice Wayne Martin, Supreme Court of Western Australia Molly Treadway Johnson, Research Division, Federal Judicial Center (US) Sheriff Graham Johnston, Glasgow Sheriff Court Judge David Jones, County Court of Victoria Roger Karr, Federal Judicial Center (US) Patrick Kayzer, Executive Associate to the Hon. Chief Justice Sir Gerard Brennan The Hon. Justice Michael Kirby AC, High Court of Australia

420

APPENDIX

1

Roger Kirby, Wiley, Rein and Fielding, Legal Counsel to RadioTelevision News Directors’ Association (US) Carol Krafka, Federal Judicial Center (US) Sylvia Kriven, Communications Manager, South Australian Courts Richard Leder, Solicitor, Corrs Chambers, Westgarth Prof. Fred Lederer, Chancellor, Professor of Law and Director Courtroom 21, College of William and Mary Angela Lee, Manager Research and Evaluation, New Zealand Department for Courts Susanna Lobez, Presenter of ABC Radio National’s Law Report Alexandra Lowe, Fordham Law School, New York Leang Ly, Assistant Director Projects Department for the Parliamentary Reporting Staff, Parliament House, Canberra Barry Lynch, Supervising Research Analyst, Administrative Office of the Courts, Judicial Council of California Heath Mackey, Senior Technical Officer, High Court of Australia The Hon. Justice David Malcolm AC, Chief Justice of Western Australia Lissa Manolas, Public Information Officer for the Courts (WA) The Hon. Wayne Martin, Chief Justice of Western Australia Dr Paul Mason, Director of Postgraduate Research Studies, School of Journalism, Media and Cultural Studies, Cardiff University Roger McConchie, McConchie Law Corporation, Vancouver Rosalind McInnes, Lawyer, BBC Scotland Prof. John A. Miller, College of Law, University of Idaho Tony Moore, Associate Producer So Help Me God Paul Murray, Solicitor, Russel McVeagh, Auckland Jan Nelson, Public Information Officer, New South Wales Courts The Hon. Justice R. D. Nicholson AO, Federal Court of Australia Paul Norris, TV Industry Representative, New Zealand Media in Courts Monitoring Committee The Hon. Justice A. M. North, Federal Court of Australia James O’Reilly, Executive Legal Officer, Supreme Court of Canada The Hon. Justice H. W. Olney, Federal Court of Australia Paul Overton, Director, Lion TV Kent Pankey, Senior Knowledge Management Analyst, National Center for State Courts Nicholas Papas, Chief Magistrate, Magistrates’ Court of Victoria Imelda Payne, Director, Library and Information Services, Federal Court of Australia

PERSONS CONSULTED

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Bruce Phillips, Director of Public Information, Federal Court of Australia Jelena Popovic, Magistrate, Magistrates’ Court of Victoria Steven Price, Journalist and Lecturer, Victoria University Law School, Wellington Dr Susan Prince, Lecturer, School of Law, University of Exeter Prof. Ian Ramsay, School of Law, University of Melbourne The Hon. Justice Sir Ivor Richardson, President, New Zealand Court of Appeal Ian Ritchard, Registrar, Supreme Court of Tasmania The Hon. Justice Bruce Robertson, President, Law Commission of New Zealand Donald Robertson, Australian Broadcasting Authority, Manager of Media and Public Relations Gary Robinson, Court Administrator for Supreme and District Courts of Queensland John H. Rockwell, Researcher, National Center for State Courts, Virginia Michael Rogers, Registry Manager, Family Court of Australia Assoc. Prof. Susan Dente Ross, Edward R. Murrow School of Communication, Washington State University Joshua Rozenberg, Legal Editor of the Daily Telegraph, London The Hon. Justice R. Sackville, Federal Court of Australia Gail Salsbury, Executive Assistant to the Chief Justice of Nova Scotia Pamela Schultz, Public Relations Manager, South Australian Courts Peter Seidel, Solicitor, Arnold Bloch Leibler David Sellers, Spokesperson, US Judicial Conference Dale Sipes, Judicial Council of California Allison Small, Executive Officer/Judicial Administrator, Federal Court of Canada Ashley Smith, Producer of Kids at Risk Warwick Soden, Registrar, Federal Court of Australia Wendy Southern, Senior Adviser, Constitutional Convention Secretariat The Rt Hon. Sir Ninian Stephen, Former Justice of the High Court of Australia and Judge for International Criminal Tribunal for Former Yugoslavia and Rwanda Mark Stephens, Solicitor, Finers Stephens Innocent LLP John Stewart, Senior journalist, TVNZ News and Current Affairs, Auckland Peter Symonds, Media Relations Officer, Royal Commission into the NSW Police Service The Hon. Justice B. Teague, Supreme Court of Victoria

422

APPENDIX

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Patricia Tobias, Administrative Director of the Courts, Idaho Robert Tompsett, Assistant to the Chief Executive of the Family Court of Australia Anne Wallace, Deputy Executive Director, Australian Institute of Judicial Administration Prof. Christie Warren, Associate Director, Courtroom 21, College of William and Mary William Wendt, Deputy Administrator, Judicial Information Services, Federal Court of Canada Mike Wicksteed, Head of Communications, Office of the Lord Chief Justice, Royal Courts of Justice The Hon. Justice M. R. Wilcox, Federal Court of Australia Nicole Winger, Legislative and Program Assistant, California Judges Association Cameron Woods, Deputy Courts Administrator of the Supreme Court of Queensland Sonya Zadel, Public Information Officer, New South Wales Courts Tisha Zelner, Library Services Coordinator, National Center for State Courts Cindy Zender, President TVW, Olympia, Washington State

APPENDIX 2: GUIDELINES FOR ELECTRONIC COVERAGE OF JUDICIAL PROCEEDINGS, WESTERN AUSTRALIAN COURTS (1996)

1. In these guidelines where the context permits: ‘film’ includes still photography and photographs; ‘camera’ includes video and still cameras; ‘cover’ and ‘coverage’ means film or electronic cover or coverage and includes any recording or broadcasting using television, video, photographic or sound equipment. 2. Coverage of judicial proceedings is permitted only on order of the Presiding Judicial Officer, who may grant or refuse permission in his/her absolute discretion and on such terms and conditions as he/she sees fit. 3. Applications for permission to cover judicial proceedings should be made in writing through the Public Information Officer. 4. The Presiding Judicial Officer may at any time and from time to time in his/her absolute discretion limit, suspend or terminate coverage of the proceedings or prohibit the publication of material gathered by coverage of the proceedings and shall do so whenever the interests of justice require and whenever necessary to protect the dignity of the Court or to assure the orderly conduct of proceedings. 5. Parties must be given a reasonable opportunity to object to coverage of the proceedings or to any part thereof or to the continuation thereof. 6. Objections are to be made to the Presiding Judicial Officer and may be made orally or in writing before the commencement of the proceedings or at any stage. 7. Unless the Presiding Judicial Officer otherwise orders, the following rules will apply: (i) There is to be only one video camera and one still camera in court at any time; cameras are to be unobtrusive and located in places approved by the Presiding Judicial Officer. (ii) Equipment is to be silent and no lighting devices may be used. The existing courtroom sound system is to be used without modification. In sound cases where permission is given to use other sound 423

424

(iii) (iv) (v)

(vi)

APPENDIX

2

equipment, microphones and wiring are to be unobtrusive and located in places approved by the Presiding Judicial Officer. Attendants must be competent to operate the equipment and no equipment is to be left unattended. Equipment may not be moved about the court or into or out of court while the court is in session. There are to be not more than two attendants in court at any time and they are to be neatly dressed; clothing may not bear the insignia or marking of a media agency. Attendants should at all times conduct themselves in a manner consistent with the dignity and decorum of the courtroom.

8. If more than one agency wishes to cover a proceeding the agencies concerned must make a pooling arrangement. If the several agencies cannot agree on such an arrangement, the Court may decline to allow any agency to cover the proceedings. 9. Coverage of judicial proceedings is prohibited where: (a) under any law the proceedings are required to be held in private; (b) the proceedings involve the trial of an offence of a sexual nature. 10. In cases where, under any law, particular persons or parties involved in proceedings are not to be identified, coverage of the proceedings must be conducted in such a way as not to identify those persons or parties. 11. There shall be no close-up film of parties or witnesses. 12. Material obtained shall not be used otherwise than for normal news programs, articles or documentaries except with the approval of the Presiding Judicial Officer or, if he/she is unavailable, another Judicial Officer of the Court.

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Cameras in the Court: a State-by-State Guide (2003), www.rtnda.org/foi/ scc.shtml at 25 April 2007 Richardson, Sir Ivor, ‘The Courts and the Public’, Australian Institute of Judicial Administration’s Sixth Annual Oration in Judicial Administration, Metcalfe Auditorium, Sydney, 25 November 1994 Sackville, Justice Ronald, ‘Access to Justice: the Way Forward’, keynote address at Australian Institute of Judicial Administration Annual Conference, Brisbane, 13 July 2002 Sinclair, Rt Hon. Ian, Constitutional Convention: Transcript of Proceedings (13 February 1998), www.aph.gov.au/hansard/conv/con1302.pdf at 25 April 2007 South Australian Courts Administration Authority, www.courts.sa.gov.au/ at 25 April 2007 South Carolina Judicial Department, Appellate Court Rules, www.judicial.state.sc.us/ courtReg/listAPPRules.cfm at 25 April 2007 Special Broadcasting Service, The Trial, (19 September 1998) Spigelman, Hon. A. C., ‘Reasons for Judgement and the Rule of Law’, paper presented at the National Judicial College, Beijing, 10 November 2003, www.lawlink.nsw.gov. au/lawlink/supreme_court/11_sc.nsf/pages/SCO_speech_spigelman_101103 at 25 April 2007 ‘Open Justice and the Internet’, address at The Law via the Internet 2003 Conference, Sydney, 28 November 2003 Stephen, Rt Hon. Sir Ninian, ‘Address by the Rt Hon Sir Ninian Stephen at the President’s Luncheon’, paper presented at the President’s Luncheon, 19 August 1998 Stephens, Mark, Broadcasting Courts Seminar: Sceptic No More, an Interview with Mark Stephens by Marcel Berlin, Department for Constitutional Affairs (2005), www.dca.gov.uk/consult/courts/speeches/stephens.htm at 25 April 2007 Stepniak, Daniel, ‘Public Scrutiny, Social Justice and Opposition to the Televising of Court Proceedings’, paper presented at the Annual Conference of the Australasian Law Teachers Association, Hobart, October 1994; (1995) 1(3) Proceedings of the 49th Annual Conference of the Australasian Law Teachers Association 1176 ‘Cameras in Courts: a Case for Extending the US Debate Beyond Constitutional Rights’, paper presented at the Law and Society Association and Research Committee on Sociology of Law, International Meeting on Law and Society, Budapest, 4 July 2001 ‘The Complementary/Adversarial Roles of Courts and the Media in AudioVisual Court Reporting: an Australian Perspective’, paper presented at the International Communication Association Conference, Seoul, 15–19 July 2002 Electronic Media Coverage of Court Proceedings: Australian Experiences in the Light of Overseas Developments (PhD thesis, University of Melbourne, 2005)

484

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‘Overseas Themes and Lessons’, paper presented via video link to the Department for Constitutional Affairs Broadcasting Courts Seminar, London, 10 January 2005, www.dca.gov.uk/consult/courts/speeches/stepniak. htm at 25 April 2007 Straw, Jack, ‘Building a Human Rights Culture’, address to Civil Service College Seminar, 9 December 1999, www.dca.gov.UK/hract/cscspe.htm at 25 April 2007 Supreme Court of British Columbia, Policy on Television in the Courtroom, (2001) (adopted on 9 March 2001), www.courts.gov.bc.ca/sc/TV/TV%20in%20the% 20Courtroom.html at 25 April 2007 Revised Draft Guidelines for Television Coverage of Court Proceedings (2003), www.courts.gov.bc.ca/Sc/TV/Draft%20Guidelines.html at 25 April 2007 Supreme Court of Canada, Frequently Asked Questions (2004), www.scc-csc.gc.ca/ faq/faq/index_e.asp at 25 April 2007 Supreme Court of Tasmania, Sentences of the Supreme Court of Tasmania (2003), www.supremecourt.tas.gov.au/decisions/sentences at 25 April 2007 Supreme Court of Tennessee Administrative Office of the Courts, ‘Supreme Court Adopts Rule Governing Courtroom Cameras’, News Release, 30 December 1996 Supreme Court of the United States, Argument Transcripts, www.supremecourtus. gov/oral_arguments/argument_transcripts.html at 25 April 2007 Opinion, www.supremecourtus.gov/opinions/opinions.html at 25 April 2007 Supreme Court of Western Australia, Button v. The Queen, Court of Criminal Appeal (CCA/112), Media Statements (2002), www.supremecourt.wa.gov. au/content/news/media/2002/media26.aspx at 25 April 2007 Marquet v. Attorney-General (WA) and anor, Media Statements (2002), www. supremecourt.wa.gov.au/content/news/media/2002/media30.aspx at 25 April 2007 Farewell Sitting as the WA Supreme Court Judge Joins the UN War Crimes Tribunal Media Statements (2003), www.supremecourt.wa.gov.au/content/ news/media/index.htm at 25 April 2007 Transcript of Ceremonial Sitting Held to Mark Centenary of Supreme Court Building (2003) Sutherland, Tony, ‘The Internet and Beyond: a New Order for Justice?’, paper presented at the AIJA Technology for Justice Conference, Melbourne, 9 October 2000 Tasmanian Supreme Courts, www.supremecourt.tas.gov.au/home at 25 April 2007 Taylor, Lord, ‘Justice in the Media Age’, paper presented at the Commonwealth Judges’ and Magistrates’ Association Hertfordshire Symposium, Hertfordshire, 15 April 1995 Thaler, Paul, Director of Journalism and Media, Mercy College, New York, quoted in Robert Schmidt, ‘What’s Next for Cameras’, Legal Times, 9 June 1997 The Age (Melb), Justice being seen to be done, www.theage.com.au/news/editorial/ justice-being-seen-to-be-done/2007/08/27/11880670D29593.html

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Tilgham, Andrew, Bar Calls for Return of Cameras in Court, The Fund for Modern Courts (1 April 2001), www.moderncourts.org/News/Cameras/tu4101cic. html at 25 April 2007 Tipping, Hon. Justice A., ‘Television in Court’, paper presented at the 1996 New Zealand Bar Association Conference, 1996 Trout, Chief Justice Linda Copple, In re: Adoption of Idaho Administrative Rule, Order Adopting Rule 46 (2000), www.isc.idaho.gov/camera46.htm at 25 April 2007 In re: Idaho Court Administrative Rule 45, Order Amending Rule (2000), www.isc.idaho.gov/camera2k.htm at 25 April 2007 TVW, Washington State’s Public Affairs Network: Audio and Video, www.tvw.org/ at 25 April 2007 Vancouver Independent Media Centre, Metalclad v. United Mexican States NAFTA Appeal, Hour 1 (2001), http://vancouver.indymedia.org/news/2001/02/645. php at 25 June 2004 Wall, Barbara Wartelle, Cameras Allowed at all Open Court Proceedings, New Hampshire Court Rules, Gannett (2003), www.gannett.com/go/newswatch/ 2003/january/nw0117-11.htm at 25 April 2007 Wallace, Anne, ‘Technology and the Judiciary: the Use of Technology in the Criminal Trial Process’, paper presented at the Fourth Outlook Symposium on Crime in Australia, New Crimes or Responses, Australian Institute of Criminology, Canberra, 21–22 June 2001, www.aic.gov.au/ conferences/outlook4/Wallace.pdf at 25 April 2007 Waters, Craig, ‘Netcasting Court Arguments’, paper presented at Seventh National Court Technology Conference, National Center for State Courts, Florida, August 2001 Western Australia Supreme Court, District Court, Family Court, Children’s Court and Magistrates’ Court, Guidelines for the Media (1996) WFSU-TV and Florida Supreme Court, Gavel to Gavel: the Florida Supreme Court Arguments online, http://wfsu.org/gavel2gavel at 25 April 2007 Wood, Hon. James, ‘Royal Commission into the New South Wales Police Service: Use of Technology’, paper presented at the Australian Lawyers’ Conference, Aspen, 5 January 1998

INDEX

Abrams, Floyd 136 American Bar Association (ABA) 75 Canon 3A(7) 78, 81, 82, 128 Canon 35 76–7, 78, 81, 103 opposition to camera coverage 81 Special Committee on Publicity in Criminal Trials 75 Arnold, Judge Richard 138 Atkinson, Lord 17, 388, 402 Australia ABC Television 234–5, 244–5, 247, 257, 261, 284, 285–6, 288 Access to Justice Advisory Committee 220, 250, 270, 360–1, 372, 388, 389 Access to Justice Report 250–1 The Accused 247, 374 Administrative Appeals Tribunal 298 audio-visual coverage, restricted 3 Australian Broadcasting Authority (ABA), 1999 Commercial Radio Inquiry 287–9, 362 Australian Law Reform Commission 214, 220, 233, 296–7 Avent sentencing 261–6, 390 Chamberlain inquest 210, 233, 263–4, 397 Channel 7 240 Channel 9 236, 267 Channel 10 253 closed circuit televising of proceedings 234, 288 consent of parties 234, 246, 247, 255, 267, 268, 289 Constitutional Convention 1998 285–7

486

constitutional rights 222–7 due process 224–6 contempt of court 212–13, 223, 384 civil contempt 213, 214 conduct interfering with administration of justice 217 contempt in the face of the court 214–16 Contempt by Publication 213, 376–9, 385, 387 criminal contempt 213, 214–17 sub judice contempt 216, 296, 384, 385 Court One 268 cutaway shots, use of 254, 258 disruption and distraction 214–15, 236, 248, 263, 282, 289, 359, 360–2 distortion of proceedings 393–6 Divorce Stories 247 documentaries 6, 244–8 due process rights 224–6 educative and informative effect of courtroom televising 396–7 entrenched rights, absence of 221–30 Family Court of Australia 231, 270–2, 389 documentaries 246–7 Federal Court of Australia 210–11, 244, 248–9, 259–60, 338 Access to Justice Report 250–1 e-court initiative 298 Electronic Media Coverage of Courts Report 251–2 incremental admission of cameras 252–8 judgment summaries 258–9

INDEX

Four Corners 236, 288 freedom of communication 222–4 freedom of expression 223, 228 freedom of speech 221, 224, 227 generally 3, 210–11 Here Comes the Judge 247 High Court 244, 272–3, 279–81, 293 documentaries 245–6 freedom of communication 222–3 High Court 213 international law 228–9 Internet use 272–3 majority opposition 275–8 minority support of audio-visual coverage 273–5 procedural rights 225 reforms 278–9 The Highest Court 245–6 implied freedom of speech 182 Independent Commission Against Corruption (ICAC) 236–7, 359, 362 Parliamentary Committee on 236–7, 359, 362, 372, 393, 397 independent judiciary 7 inherent jurisdiction 217–21 initial broadcasts 233–5 Inside Story 245 Insight 245 International Covenant on Civil and Political Rights (ICCPR) 227–8, 229, 230 international law 227–30 Internet 210, 241, 254, 258, 279, 280, 294, 396 Access to Justice Report 252 first instance cases 271 High Court 272–3 overseas jurisdictions compared 293 prejudicial material on 295–6, 297 sub judice laws and 296 support for use 276 webcasting 6 judges dominant role in introduction of court televising 5, 290–3

487 effects on 390–1 inherent jurisdiction 217–21 mistrust of media 266, 277, 294 judgment summaries 6, 258–9 juries, effects on 242, 374, 376–9, 383–4, 385, 387–5 Kalejs deportation proceedings 164 Kids at Risk 244, 245 lack of media interest 6, 238, 241, 279, 294 Law Report 243, 261 lawyers, effects on 390–1 legal argument, broadcasting 6 Media Rules for Public Hearings 288 mistrust of media 266, 277, 294 Native Title cases 62, 254–6, 281, 360 New South Wales courts 237–8 documentaries 244–5 New South Wales Law Reform Commission (NSWLRC) 362 Contempt by Publication 213, 376–9, 385, 387 effects on witnesses 368, 372 Issue Paper 235–6 juries 374, 376–9, 381–2, 383 prejudicial publicity 95–6 privacy 387–8, 389 New South Wales Parliamentary Committee on ICAC 236–7, 359, 362, 372, 393, 397 new technologies impact on regulation of media reporting 294–7 potential benefits 297–9 O.J. Simpson trial and 31, 264, 282–3, 365 open justice 250, 265, 273, 399–401 constitutional rights and 224, 225–7, 230 inherent jurisdiction and 218–19, 221 new technologies and 294–9 parliamentary broadcasts 283–5 privacy 220, 250, 268, 295, 387–90 proactive role of courts 230–3 Public Information Officers (PIOs) 232, 279 public perception survey 292

488

INDEX

Australia (cont.) quasi-judicial proceedings 281–3 Queensland courts 238 Quentin Roberts ruling 267–9 Radio National 243 reaction shots, use of 254, 258, 285 Reality Bites: DIY Law 246–7 restrictions on courtroom broadcasting 211 contempt of court see contemp of court above general statutory restrictions 211–12 role of rights 409 sensationalisation of proceedings 393–6 sentencing remarks 6 The Shifting Dream 256 So Help Me God 244–5 South Australian courts 243 studies of courtroom televising 235–7 sub judice laws 216, 296, 384, 385 contempt 216, 384, 385 Internet and 296 Tampa case 256–7 Tasmanian courts 243–4, 293 Victoria 232–3, 244, 260–1 Avent sentencing 261–6, 390 civil cases 269–70 first broadcasts 261 privacy 388 Quentin Roberts ruling 267–9 Supreme Court 210 Western Australian courts 211, 238–9 Court of Criminal Appeal 239 Courts Information Office 240 documentaries 247 Guidelines 211, 239 Western Australian Industrial Relations Commission 289 witnesses, effects on 368, 372, 373 Wood Royal Commission 281–3 Yorta Yorta Native Title claim 254–6 see also Native Title cases Australian Law Journal 235 Avent, Nathan John 261–6, 390

Bain, David 331, 334 Baragwanath, David 315 Barber, Susanna 367–8 Barnett, Jeremy 65–6 Barritt, Denis 210, 233, 234 Barwick, Chief Justice Garfield 234, 277 BBC (British Broadcasting Corporation) 21, 25, 29, 32, 33, 37, 40 Beach, Justice 261 Becker, Edward R. 142 Beckton, Clare 203–4 Bennett, Justice 167, 175, 189, 190–5 Benny, Jack 74 Bentham, Jeremy 17–18 Bernardo, Paul 165–6, 201, 202 Billington, Neil 342 Bingham, Sir Thomas 29 Bird, Chief Justice 112 Black, Chief Justice Michael 227, 249, 251, 259, 265, 290, 292, 324 Blackshield, Tony 226 Blashki, Sue 261 Blom-Cooper, Sir Louis 61, 62 Bobbit, Lorena 321 Bonnington, Alistair 22, 37 Booth, Pat 320 Borgida, Eugene 404–5 Bowden, Fiona 28 Boyd, Colin 52 Brennan, Chief Justice 228, 245, 246, 273 Brenner, Chief Justice Donald 168 Breyer, Justice Stephen G. 143–4 Brill, Stephen 28 Brinkema, Judge Leonie 140 Brooke, Lord Justice Henry 65, 66, 67, 68 Brown, Shaun 333–4 Browne-Wilkinson, Lord 30, 34 Bryant, Chief Justice Diane 231, 271–2 Bryant, Martin 265 Buchanan, Val 240 Bucknell, Judge 16 Burger, Chief Justice 85 Burger, Justice Warren 71 Burnside, Julian 287

INDEX

Burrell, Paul 67 Busieck, David 90 Button, John 239 C-Span 130, 145 Canada Alberta 168 America compared 201–4 appellate proceedings, coverage 148 CJC opposition withdrawn 158–9, 180 educative and informative effect of coverage 151, 157–8, 397 evaluation 154–6 fears unsubstantiated 156–7 Federal Court of Appeal 151, 154–5 Grange Commission 172–3 lack of media interest 159–62 Nova Scotia Court of Appeal 151, 152, 153–4, 155–6, 162 reasons for admission of cameras 150–2 regulation of access 152–4 Supreme Court of Canada 150–1, 154 Bernardo trial 165–6, 201, 202 British Columbia 164, 166–7, 181, 187 common law rule 188–9, 197 Pickton hearings 204–7 Policy on Television in the Courtroom 168, 188 British Columbia Civil Liberties Association 198, 208 Canadian Judicial Council (CJC) 178, 180–1, 185 national policy framework 200–1 opposition withdrawn 158–9, 180 Canadian Media Lawyers Association 179 CBC 160, 163–4, 165, 170, 174, 179, 186, 188, 202, 204 Charter of Rights and Freedoms camera access to court proceedings and 186–8 common law rule and 191–7

489 concerns regarding values promoted by 201–4 constitutional structure and legal traditions, impact on 182–3 courts’ recognition of rights 200–1 freedom of expression 182–208 freedom of the press 184–5, 191, 203 generally 2, 4, 8, 53, 149, 181–2, 207–8, 222, 228, 229, 307, 408–9 legal rights principles, impact on 183–6 New Zealand’s Bill of Rights Act and 149, 209, 309–11 Pilarinos and Clark appeal and 188–99 proportionality test 194–5, 197 recording only with consent of parties and 197–9 United Kingdom and 53, 149 closed circuit televising of proceedings 150 common law rules 2, 149, 165, 166–7, 182, 185, 187, 188–9, 190–7, 205, 208 Charter of Rights and 191–7 consent of parties 170, 175, 197–9 CPAC (Canadian Parliamentary Affairs Channel) 151, 152, 159, 279, 280 decorum and dignity 152, 156, 169, 171, 172, 174n, 179, 186, 187, 194, 195, 363–4 detrimental effect, onus of proof 4 disruption and distraction 155, 173, 174n, 187 Donald Marshall Inquiry 176 educative and informative effect of courtroom televising 151, 157–8 effects, onus of proof 4 Federal Court of Appeal, coverage 151, 354 evaluation 154–5 regulation of 154–5 freedom of expression 182–208

490

INDEX

Canada (cont.) freedom of the press 184–5, 191, 203 generally 2, 4, 148–50, 208–9 independent judiciary 7 Indymedia (Independent Media Centre) 160, 161–2 Internet 161–2, 205, 206–7 judicial attitudes 410–11 judicial review proceedings 160, 182 juries 159, 172, 175, 179, 180, 194, 205, 208, 380–1, 383, 385–6 Law Reform Commission of Canada 179 Lawyers 164 Managing Prejudicial Publicity 380–1, 383, 386, 387 Manitoba 164, 167, 370–1 New Brunswick 167 new Constitution 181, 182 Northwest Territories 163–4 Nova Scotia Charter rights and 188 Court of Appeal, coverage 151, 152, 162, 354–5, 363 evaluation 155–6 regulation of access 153–4 media guidelines 168, 185 privacy 389 O.J. Simpson trial and 31, 181, 201–2 Ontario 355–6 consent of parties 175 Ontario Court of Appeal 157, 159, 166, 204, 307 statutory prohibition 170, 177, 197 trial proceedings 163, 166 open justice, facilitation of 182, 183, 184, 199, 207, 208 parliamentary broadcasts 151, 152 Pickton hearings 204–7 Pilarinos and Clark appeal 188–99, 354, 355, 363, 370–1 preliminary hearings 204–7 privacy 156, 162, 194, 195, 389 psychological effect on participants 366 quasi-judicial proceedings 172–3

Quebec, statutory prohibition 167, 186–8 role of rights 408–9 RTNDA (Radio and Television News Directors’ Association of Canada) 145, 151, 155, 163, 171, 174, 179, 202 Saskatchewan 167 Supreme Court of Canada 4 Charter rights 183–6 coverage 144, 150–1 evaluation 154 regulation of access 152–3 freedom of expression 182, 183–4 trial proceedings, coverage 162 appropriate regulation 173–4 common law rule 166–7 court rules, policies and guidelines 167–9 denial of coverage 164–5 discretionary jurisdiction, exercise of 165–6 effects on participants 171–3 extent of coverage 162–4 fears unsubstantiated 171–3 opposition 178–81 personal views 177–8 problems 174–7 statutory prohibition 169–70 United States compared 201–4 witnesses consent 170 effect on 155, 159, 162, 169, 170, 172–3, 174, 176, 179, 180, 181, 194, 208, 370–1 Caplan, Jonathan 31 Caplan Report 13–15, 19–20, 23 criticism of 20 influence of 14 recommendations 14, 15 review of overseas experiences 14 Carswell, Lord 64 Cartwright, Judge Dame Silvia 328 Catliff, Nick 25, 35–6 CBC (Canadian Broadcasting Commission) 160, 163–4, 165, 170, 174, 179, 186, 188, 202, 204

INDEX

Chabot, Steve 141 Chamberlain, Azaria, inquest 210, 233–4, 263–4, 397 Chamberlain, Lindy and Michael 234 Chambers, Justice 343, 345, 349, 391 Chandler trial 129, 358, 359 composition of court and 83 constitutional rights and 84, 92 new technology 91–2 reasons for decision 81–3 television as source of public information 82–3 Clark, Glen 188 Clark, Justice 95, 96 Clerk Ross, Lord Justice 37 closed circuit televising of proceedings Australia 234, 288 Canada 150 New Zealand 362n United Kingdom 45, 46 United States 141 CNN (Cable News Network) 42, 145 Cohn, Marjorie 75, 83 computer-generated images 67 consent of parties Australia 234, 246, 247, 255, 267, 268, 289 Canada 170, 175, 197–9 Scotland 24, 25, 35, 38, 39 United Kingdom 24, 25, 35, 38, 39 United States 97, 106 contempt of court Australia see Australia United Kingdom see United Kingdom see also sub judice laws Cooper, John 61, 62 Cory, Justice 183–4 Court Media Officers 232 Court-TV 28, 130, 145 Cox, Chief Justice 265 CPAC (Canadian Parliamentary Affairs Channel) 151, 152, 159, 279, 280 Cullen, Lord 22, 40 Cumming, John 315–16, 320 Cummins, Justice 265, 267–8, 388 Curtiss, John 75

491

Daily Mirror 17 Daily Telegraph 49 Dawson, Sir Darrell 222, 275–6, 393 Day, Jack 120 Day, Robin 30 de Jersey, Chief Justice Paul 238 Deane, Justice 223, 225 decorum and dignity of the court see effects of audio-visual coverage Department for Constitutional Affairs 55–6, 57, 59–60, 64, 66, 67, 68 Diallo, Amadou 110 Dickson, Chief Justice 200 discretionary jurisdiction Canada 165–6 United Kingdom 14 United States 2, 78, 92, 95, 97, 130, 135, 139, 142 California 97, 113, 115, 117, 119 New York State 106, 107, 109 see also inherent jurisdiction disruption and distraction see effects of audio-visual coverage distortion of proceedings 393–6 divorce proceedings Australia 247 United Kingdom 16 Dockray, Martin 17, 58–9 The Dominion 330–1 Donald Marshall Inquiry 176 Dow, David 75, 83 Doyle, Chief Justice John 227, 231, 241–2, 290, 292, 324 Dunlop, Nigel 327 Dyhrberg, Marie 317, 327 effects of audio-visual coverage on decorum and dignity 363–5 Canada 152, 156, 169, 171, 172, 174n, 179, 186, 187, 194, 195, 363–4 New Zealand 306n, 340, 364 United Kingdom 20 United States 76, 78, 104, 133, 137 California 113, 115, 364–5 disruption and distraction 1, 2, 3, 357–63

492

INDEX

effects of audio-visual coverage (cont.) Australia 214–15, 236, 248, 263, 282, 289, 359, 360–2 Canada 155, 173, 174n, 187 New Zealand 326, 328, 338, 359–60, 362–3 United Kingdom 30, 358–9 United States 73, 75, 76, 78, 79, 99, 101, 112, 113, 122, 126, 134, 141, 357–8 educative and informative effect 396–9 Australia 396–7 Canada 151, 157–8, 397 New Zealand 398 United States 132–3, 397–9 evidence 352–7 generally 3, 4 inconclusive evidence as to 3–4, 6, 403–6 on judges 390–2 Australia 390–1 New Zealand 391 psychological effect 365–6 United States 391 on juries 374–87 Australia 376–9 Canada 159, 172, 175, 179, 180, 194, 205, 208, 380–1, 383, 385–6 Internet and 384, 385–7 New Zealand 375, 379–80 psychological effect 365–6 sub judice and contempt laws 384, 385 United Kingdom 382–3, 384 United States 137, 381–2 on lawyers 390–2 Australia 390–1 New Zealand 392 ‘playing to the cameras’ 27, 133, 316, 328–9, 390 psychological effect 365–6 United Kingdom 30 United States 391–2 measuring 6–7 open justice, enhancement of 399–403 potential to distort and sensationalise 393–6

privacy 387–90 Australia 220, 250, 268, 295, 387–90 Canada 156, 162, 194, 195, 389 New Zealand 305, 316, 318, 319, 345, 390 United Kingdom 17–18, 388 United States 87, 107, 108, 115 psychological effect 365–6 right to fair trial 366–8 on witnesses 368–73 Australia 368, 372, 373 Canada 155, 159, 162, 169, 170, 172–3, 174, 176, 179, 180, 181, 194, 208, 370–1 New Zealand 315, 319, 320, 336, 337–8, 339, 371–3 psychological effect 365–6 United Kingdom 15, 17, 18, 29, 30, 39, 42, 44, 48, 49, 50, 64 United States 80, 131–3, 136–7 Eichelbaum, Sir Thomas 306, 308, 312, 313, 322–3, 324–5, 331, 334–5, 342, 349, 412 Elias, Chief Justice Sian 343, 344 Ellan, Chief Judge Baird 169 Ellis, Justice 332 Ellison, Judge 18 Entertainment Network 141 Essen, Chief Justice 167, 189 Estes, Billie Sol 79 Estes trial 78, 79–80, 358 composition of court and 83 constitutional rights and 83–4, 91–2, 366 prejudicial effect of television 79–80 European Convention for the Protection of Human Rights and Fundamental Freedoms 2, 4, 5, 64, 409 freedom of expression (Article 10) 4, 13, 37, 38–40, 45, 50, 222 right to fair trial and 47 televising of public inquiries and 42, 43, 44 Human Rights Act 1998 and 52–6, 229, 409 right to fair trial (Article 6) 47, 222

INDEX

European Court of Human Rights 39 broadcasting of proceedings of 43 right to fair trial 47 Evered, Jacline 32 Falconer, Lord 57, 60, 61–2 Fisher, Tim 257 Flint, David 287 Forbes, Austin 300n, 306, 314 Fotheringham, Bryan 325 Frankfurter, Justice 95 Fredericks, Superior Judge Thomas 112–13 French, Justice Robert 61, 62, 255–6, 395n Gale, Chief Justice 171, 172, 177 Gaudron, Justice 225, 246 Gerbner, Dean George 370 Gibb, Frances 61–2, 63 Gibbs, Justice 225 Gillard, Justice Bill 269 Ginsburg, Justice Ruth Bader 276 Gleeson, Chief Justice 276–7 Goff, Lord 32–3 Goldfarb, Ronald 72, 100, 120–1, 141n, 215, 357, 365 Gompertz, Jeremy 44 Graham, Douglas 323 Grassley, Charles 142 Guardian 44, 206 Gummow, Justice 246 Hammond, Justice 332 Hampton, Nigel 314, 320 Hand, Derrick 238 Harlan, Justice 80 Harrison, R.E. 319 Hart, Barry 328–9 Harwell, Chief Justice David 101 Hauptmann trial 12n, 73–8, 83, 357–8 Hawkins, Chief Justice Armis 98 Heck, Danny 120 Henry, Daniel 160, 163, 170, 171, 172, 179 Hoffman, Lord 34 Holland, Justice 331 Hollings, Deborah 318, 330

493

Hope, Lord Directions re Television in the Courts 13, 23–5, 36–7, 38, 39, 40, 45, 52 relaxation of common law prohibition 22, 26, 262, 304, 324, 374 Houlden, Justice 187 House of Commons broadcasts 20–1, 283 House of Lords Appellate Committee 21, 22, 32–4 statutory prohibition and 13, 21 broadcasts 20–1, 24, 32–4, 283 editorial control 21, 32, 33, 50 Law Lords’ reasons for restricting access 32–3 Pinochet hearings 33–4, 279 Howland, Justice 171 Huffman, Justice Richard 117, 119 Hutchence, Michael 238 Hutton Inquiry 43–5, 48, 49, 50, 51, 56, 57 Igloliorte, Judge 164 Independent Commission Against Corruption (ICAC) 236–7, 359, 362 New South Wales Parliamentary Committee on 236–7, 359, 362, 372, 393, 397 inherent jurisdiction Australia 217–21 New Zealand 300–1, 305, 312 United Kingdom 12 see also discretionary jurisdiction Innes, Prue 233, 260–1 International Covenant on Civil and Political Rights (ICCPR) 227–8, 229, 230 International Criminal Tribunal for the Former Yugoslavia (ICTY) 35, 274 Internet 40 archived footage 123, 126, 127 Australia see Australia Canada 161–2, 205, 206–7 first judicial site 124

494

INDEX

Internet (cont.) Hutton Inquiry 43, 51 juries and 384, 385–7 live streaming 40, 123, 124, 127, 128 podcasting 127 Sky News 67 ‘The Memory Hole’ 206, 207 United Kingdom 40, 51 United States see United States Irvine, Lord 52, 57, 324 ITN (Independent Television News) 45 Ito, Judge Lance 72, 140, 143 see also O.J. Simpson trial Jackson, Michael 67n Jennings, Mark 333–4 Johnston, Tony 330 Jones, Alan 287 Judge, Lord Justice 61 judges effects on see effects of audio-visual coverage juries effects on see effects of audio-visual coverage Kalejs, Konrad 164 Kellam, Justice Murray 269 Kelly, David 43 see also Hutton Inquiry Kennedy, Justice Anthony 143, 215 Kielbowicz, Richard B. 75, 77 Kilmuir Rules 18, 51 Kirby, Justice Michael 223, 227, 265, 273, 277–8, 279, 280–1, 290, 296 Kriven, Sylvia 230 La Prairie, Peter 175 Ladd, Roy 315 Lamb, Brian 145 Lamer, Chief Justice 185, 196 Law Reform Commission of Canada 179 Laws, John 287 LawTalk 314, 316–17, 320–1 lawyers effects on see effects of audio-visual coverage Lepofsky, David 175, 176, 177

LeSage, Justice 166 Leslie, John 49, 57 Lindbergh, Charles 73, 74 see also Hauptmann trial Lindgrens, Justice 258 Linton, James M. 201–2, 204 Lloyd, David see Calder trials Lobez, Susanna 243 Lockerbie trial 35–40, 43, 45, 46 appeal 40–1 transmission to remote sites 46, 47–8 Lowrie, Judge Neil 243 Lukas, Chief Justice 114 Luxton, John 320 Macdonald, Richard 319 McEachern, Justice Allen 161 Macfadyen, Lord 37, 38, 39, 45 McGuigan, Chief Justice 151 McHugh, Justice 219–20, 226 McKay, Colin 320 MacKay, Lord 18, 29 McKenzie, Lloyd 161 McKinnon, Justice Ronald 164, 168, 172, 173, 175, 356 McLachlin, Chief Justice Beverley 149n, 154, 162 McMurty, Chief Justice 177–8 McVeigh, Timothy 140–1, 278 Malcolm, Chief Justice David 231, 239, 290, 292 Martin, Chief Justice Wayne 231, 241 Matsch, Judge 140 ‘The Memory Hole’ 206, 207 Michaud, Chief Justice 180 Miles, Julian 325n, 329, 335 Moore, Simon 328–9 Moussaoui, Zacarias 140 Muirhead, Justice 234 Mulroney, Brian 167 Murphy, Judge Robert, Jr 91 Murray, Paul 340–1, 364, 368, 392–3, 398 Native Title cases 62, 254–6, 281, 360 Yorta Yorta Native Title claim 254–6 Neazor, Justice 330, 334

INDEX

Nelson, Jan 232 New Law Journal 28 New Zealand Anderson trial 331–2, 333 Barlow trial 327, 330–1, 334 Beattie trial 332–3 Bill of Rights Act 1990 2, 8, 222, 228, 229, 300, 349 Canada’s Charter of Rights and 149, 209, 309–11 dignity of the person 319 freedom of expression 304 right to fair and public hearing 304 role of 309–13, 408 UK Human Rights Act 1998 and 64–5 Calder trial 329 Carter trial 328–9 closed circuit televising of proceedings 362n Courts Consultative Committee 302, 308, 312, 326, 350 evaluation of pilot programme 335 overseas studies 303, 307, 350 post-pilot Discussion Document 342 recommendations 341 decorum and dignity 306n, 340, 364 disruption and distraction 326, 328, 338, 359–60, 362–3 documentaries 306, 307, 308, 329, 330, 337, 341 The Dominion 330–1 educative and informative effect of courtroom televising 398 extension and expansion of media coverage post-pilot programme 341–3 generally 2, 5, 300–1, 348–50 Guidelines for Expanded Media Coverage of Court Proceedings 343 revision under Elias CJ 343–5 effect of 346–7 independent judiciary 7 inherent jurisdiction 300–1, 305, 312

495 judges attitudes of 5, 412 effects on 391, 392 juries effects on 375, 379–80 media publicity and 339–40 lack of media interest 324, 333–5 Law Societies, opposition to pilot programme 314–19 LawTalk 314, 316–17, 320–1 lawyers, effects on 392 legal profession Murray’s survey of barristers 340–1 opposition to pilot programme 314–19, 323 Lory trial 332 Media in Courts Monitoring Committee 342, 343–4, 345 Murray’s survey of barristers 340–1 new Supreme Court 5 New Zealand Herald 334 New Zealand Law Journal 318 Northern Law News 315, 316, 317, 318–19, 320 O.J. Simpson trial and 31, 302, 321, 324 open justice 300, 309, 314, 400 pilot programme 163, 239, 305, 306 decision to make experiment 301–2 evaluation case-based research 336–7 Evaluation Committee 306, 335–6, 338 Final Report 338–9, 372, 375, 395 public perception surveys 338, 371–2, 390 of public perceptions 337–8 inadequacy of consultation 321–4 lack of initial media interest 333–5 legal profession, opposition from 314–19, 323 media, opposition from 320–1 New Zealand Law Commission study 339–40 opposition to 313–24

496

INDEX

New Zealand (cont.) police, opposition from 319–20, 323, 338 rules 263 scope 326–7 Scottish experience and 304, 307 televised cases covered by sentencings 333 still photography and radio 333 trials 332–3 televised cases not covered by Anderson 331–2, 333 Barlow 327, 330–1, 334 Calder 329 Carter 328–9 generally 327–8 Thompson 331 victim support groups, opposition from 323, 338 police, opposition to pilot programme 319–20, 323, 338 The Press 314–15, 320–1 presumption in favour of coverage 5 privacy 305, 316, 318, 319, 345, 390 Public Perception Polls 371–2, 390 public perception surveys 337–8 Ramstead trial 332 role of rights 408–9 role of Sir Ivor Richardson 323, 324–5, 335, 412 role of Sir Thomas Eichelbaum 322–3, 324–5, 412 Rule B6 331, 337, 341 Rule B7 331 sexual crimes 305, 347 Supreme Court 5, 347 Thompson trial 331 The Trial 26–9, 329 TV3 327, 330, 333 TVNZ 313, 330, 333, 334, 346 victim support groups 346 opposition to pilot programme 323, 338 witnesses effects on 315, 319, 320, 336, 337–8, 339, 371–3 protection for 305, 317, 331, 334, 342, 343–5, 346

Working Party on Coverage of Proceedings by Radio and Still Photography 326 Working Party of the Public Affairs Committee of the General Council of the Bar 304 Working Party on Televising Court Proceedings reception and adoption of recommendations 306–9 recommendations 304–5 Report 303–4 Rules regulating Coverage by the Electronic Media of Court Proceedings 306 study 302–3 Nichols, Terry 91, 141n Nicholson, Colin 318 Nicholson, Justice Robert D. 290 Ninox Films 329 Noisette, Leonard 107–8, 109–10, 357, 370, 398–9, 401–2 Norris, Paul 317 North, Justice 253, 256–7 Northern Ireland 11 Northern Law News 315, 316, 317, 318–19, 320 Nuremberg trials 215, 357 see also war crimes trials O’Connor, Justice Sandra Day 143–4 O.J. Simpson trial Australia and 31, 264, 282–3, 365 Canada and 31, 181, 201–2 impact on US courts 70, 72, 98, 99, 111, 114–15, 116, 117, 138 New Zealand and 31, 302, 321, 324 reconstruction 67n United Kingdom and 28, 29–31 see also Ito, Judge Lance O’Laughlin, Justice Maurice 253–4 Oliphant, Associate Chief Justice Jeffrey 181 Olney, Justice 254–5 open justice Australia see Australia enhancement of 399–403 generally 3

INDEX

meaning 10 New Zealand 300, 309, 314, 400 requirements 5 United Kingdom see United Kingdom United States 401–2 overseas trials impact of broadcast 29–32 see also O.J. Simpson trial Papas, Nicholas 260, 261, 267 Parker, Stephen 292 parliamentary broadcasts Australia 283–5 Canada 151, 152 United Kingdom 20–1, 283 Pataki, George 111 Penlington, Justice 312, 331–2 Phillips, Bruce 252 Phillips, Mr Justice John Harber 260 photography in court 1 Pickton hearings 204–7 Pinochet hearings 33–4, 279 Pittman, Justice Ed 99 podcasting 127 see also Internet Popovic, Jelena 261 Powell, Justice Lewis 84, 87 prejudicial publicity 3 The Press 314–15, 320–1 pressure on parties 27 Prince, Susan 46, 53, 54, 182n, 197, 200, 201 privacy see effects of audio-visual coverage Public Information Officers (PIOs) 232 public inquiries United Kingdom 41 Hutton Inquiry 43–5, 48, 49, 50, 51, 56, 57 Shipman Inquiry 41–3, 45, 49, 51 statutory prohibition and 13, 41 Raulston, Judge John 73 Rehnquist, Chief Justice 129, 143, 144, 145

497

Richardson, Sir Ivor 262, 266, 302, 306, 307–8, 310, 311, 314, 322, 323, 324–5, 335, 349, 412 rights to record impact of recognition of 4 Roberts, Chief Justice John 145–6 Roberts, Colin 247 Roberts, Quentin 267–9 Robertson, Geoffrey 42, 44, 48, 50 Robertson, Justice 343, 349 Roger, Justice 63 Rogers, Anthony 316 Rogers, Ginger 74 Roosevelt, Theodore 72 Rosenblatt, Chief Administrative Judge Albert 104 Royal Commission on Justice 1993 51 Royal Commission on the Press 1949 20 Rozenberg, Joshua 33 RTNDA (Radio and Television News Directors’ Association of Canada) 145, 151, 155, 163, 171, 174, 179, 202 Russell, Bertrand 28 Ryan, Ian 27 Ryley, John 56 Sackville, Justice 252–3 Saunders, Cheryl 286 Saylor, Dave 247 Scarman, Lord 18–19, 50 Schumer, Charles 142 Scopes Monkey trial 73 Scotland audio-visual coverage 2 blanket prohibition, justification 4 camera ban 12 consent of parties to filming 24, 35, 38, 39, 268–9 judges 25 withdrawal 25 wording of consent form 25 current proceedings, prohibition on broadcasting 24, 38, 48 devolved government 37, 54–5 generally 4

498

INDEX

Scotland (cont.) judges, inherent power to control proceedings 12 Lockerbie trial 35–40, 43, 45, 46 appeal 40–1 transmission to remote sites 46, 47–8 New Zealand pilot programme and 304, 307 overseas broadcasts, impact of 29–32 photography in court 12 relaxation of common law prohibition 304 appellate proceedings and first instance trials distinguished 24 consultation 22 current proceedings and concluded proceedings distinguished 24, 38, 48 Guidelines 24–5 judges’ editorial suggestions 24 judicial support 22, 23, 25 keeping verdict secret until broadcast 25 Lord Hope’s Directions 13, 23–5, 36–7, 38, 39, 40, 45, 52 O.J. Simpson trial and 28, 29–31 reactions to broadcasts 26–9 reasons for 22 televising of courts 22–9, 52, 55 The Trial 26–9, 329 role of rights 409 see also United Kingdom Scrivener, Anthony 31–2 Seattle Times 206, 207 Seddon, Frederick 16 Sellers, David 137 sensationalisation of proceedings 71–2, 73, 146, 393–6 sexual crimes New Zealand 305, 347 Shaw, Attorney-General Jeff 237–8 Shaw, Lord 17–18, 225 Shipman, Harold 41 Shipman Inquiry 12n, 41–3, 45, 49, 51 Shwartz, Aaron 262 Simpson, O.J. see O.J. Simpson trial Skaf, Bilal and Mahmed 384

Sky News 56, 67, 284, 288–9 Smith, Judge Dame Janet 12n, 41–3, 44, 49 Smith, William Kennedy 24, 321, 325 Soham murder trial 67 Spigelman, Chief Justice 225, 228, 290, 294–5, 297 Stagg, Colin 27 Stephen, Lord 27 Stephen, Sir Ninian 273–5 Stephens, Mark 27–8, 63 Stewart, John 346 Stone, Judge David 204–7 Straw, Jack 53, 54 Street, Sir Lawrence 219, 393 sub judice laws Australia 216, 296, 384, 385 United Kingdom 12n, 48, 384 United States 95, 376, 381 see also contempt Sweet, Justice 88, 89 Taylor, Lord 29 Teague, Justice Bernie 261–9, 390–1 technology Australia 294–9 developments 1, 3, 81–2, 412–14 United Kingdom 13, 14, 65–8, 81–2 United States 81–2, 101 Teresi, Justice 88, 89, 111 Thaw, Harry 72 Thomspon case 331 Thornburgh, Richard 138 Tierney, Stephen 54–5 Time 318 The Times 61 Tipping, Justice 329, 343 Toohey, Justice John 246, 256 Trenchard, Thomas W. 74 Trout, Chief Justice Linda Copple 121–2 Turner, Ted 318 Tysoe, Justice David F. 161 UMR Insight 337 Underwood, Justice Peter 243–4 United Kingdom abolition of Office of Lord Chancellor 55

INDEX

accused, public identification of 49 appeal proceedings, televising consultation paper 60–1 consultation seminar 61–3 contemporaneous proceedings, reporting of 19 generally 56–9 pilot programme 4–5, 57, 59–60, 65 public responses to consultation 63–4 asylum and immigration appeals 55 BBC 21, 25, 29, 32, 33, 37, 40 blanket statutory ban 4–5 Canada’s Charter of Rights and 53, 149 Caplan Report 13–15, 19–20, 23 criticism of 20 influence of 14 recommendations 14, 15 review of overseas experiences 14 closed courts 47 closed circuit transmission to media rooms 45, 46 common law restrictions 12 computer-generated images 67 consent of parties judges 25 Scotland 24, 25, 35, 38, 39 withdrawal 25 wording of consent form 25 Constitutional Reform Bill 68 contempt of court 12, 12n, 48, 384 court in contempt 58–9 relaxation of strict liability rule 19 decorum and dignity 20 Department for Constitutional Affairs 55–6, 57, 59–60, 64, 66, 67, 68 discretionary jurisdiction 14 disruption and distraction 30, 358–9 divorce proceedings 16 freedom of expression rights 13, 37, 38–40, 45, 50, 55 right to fair trial and 47 televising of public inquiries and 42, 43, 44 generally 2–3, 4, 11–13 history of the debate 1

499 House of Commons, broadcasts 20–1, 283 House of Lords Appellate Committee 21, 22, 32–4 statutory prohibition and 13, 21 broadcasts 20–1, 24, 32–4, 283 editorial control 21, 32, 33, 50 Law Lords’ reasons for restricting access 32–3 Pinochet hearings 33–4, 279 proposed replacement of Law Lords 56, 68 Human Rights Act 1998 2, 8, 37, 64 European Convention and 52–6, 229, 409 freedom of speech 13 impact of 52–6 judicial review and 209 New Zealand Bill of Rights Act 1990 and 64–5 human rights culture 13 Hutton Inquiry 43–5, 48, 49, 50, 51, 56, 57 independent judiciary 7 inherent jurisdiction 12 Internet 40, 51 judges discretionary jurisdiction 14 inherent power to control proceedings 12 Kilmuir Rules 18, 51 privacy 18 protection of 50–1 Judicial Committee of the Privy Council 41 judicial proceedings, first broadcasts of 21 judicial review 54, 209 juries 382–3, 384 Kilmuir Rules, relaxation of 18, 51 lawyers, effects on 30 Lockerbie trial 35–40, 43, 45, 46 appeal 40–1 consent of parties 24, 25, 35, 38, 39 transmission to remote sites 46, 47–8 Lord Chancellor, abolition of post of 56–7

500

INDEX

United Kingdom (cont.) miscarriage of justice cases 51 modernisation programme 65, 66 new technology 13, 65–8, 81–2 newspaper photographs 15–17 official transcripts, recording of 12 O.J. Simpson trial, impact of 28, 29–31 open justice 13, 14, 45–6, 48, 50 Citizen’s Charter and 19 public debate and criticism 18–19, 50 public inquiries and 44, 45 statutory prohibition and 18 parliamentary broadcasts 20–1, 283 parties consent to televising 24, 25, 35, 38, 39 effects on 15, 17, 18, 29, 30, 48, 49, 50, 64 identity 47 photography in court 1, 58 newspaper photographs 15–17 statutory prohibition see statutory prohibition below pilot programme appeal proceedings 4–5, 57, 59–60, 65 Caplan Report recommendations 14 Courts (Research) Bill and 15 Protocol 57 Pinochet hearings 33–4, 279 prejudice against television broadcasting 14 press photography 15–17 presumption against televising 47, 48–9, 50 presumption in favour of televising 14, 23, 39, 43 privacy 17–18, 388 prominence of television as medium 13 Protocol Governing Pilot Filming in the Appellate Jurisdiction of England and Wales 57 public attendance at court 46, 47 public debate 18–19, 50, 55 public inquiries, televising 41

freedom of express rights and 42, 43, 44 Hutton Inquiry 43–5, 48, 49, 50, 51, 56, 57 open justice principle and 44, 45 public interest 42 Shipman Inquiry 41–3, 45, 49, 51 statutory prohibition and 13, 41 public opposition to televising of proceedings 30, 31 public participation 4, 20 public understanding 17, 18, 23, 51–2, 55, 65 re-enactments of ongoing proceedings, prohibition on 19–20 recent rulings, impact of 45–52 recording devices, restricting use of 12 recreation of proceedings 66 reforms of 1980s 18–20 rights culture, promotion of 4, 53, 55 role of rights 409 Royal Commission on Justice 1993 51 Royal Commission on the Press 1949 20 Scotland see Scotland Scott v. Scott 17, 388, 402 Select Committee on Broadcasting 21 sexual offences, publicity restrictions 49 Shipman Inquiry 41–3, 45, 49, 51 Soham murder trial 67 sound recording in court, prohibition 11–12 statutory prohibition 11–12 Appellate Committee of the House of Lords and 13 enactment 15–18 open justice and 18 pilot programme and 57–8 privacy and 17, 18 public inquiries and 13, 41 sub judice laws 12n, 48, 384 Supreme Court, proposed 56, 68 technological developments 13, 14, 65–8, 81–2

INDEX

transmission of proceedings to remote sites 46, 47–8 ‘trivialisation’ fears 15 US television coverage, concerns regarding 15 O.J. Simpson trial 28, 29–31 witnesses effects on 15, 17, 18, 29, 30, 39, 42, 44, 48, 49, 50, 64 identity 47 Woodward trial, impact of 30, 31 United States Alabama 96–7 American Bar Association (ABA) 75 Canon 3A(7), Code of Judicial Conduct 81, 82 Canon 35, Code of Judicial Ethics 76–7, 78, 81, 103 conventions 75, 76 opposition to camera coverage 81 Special Committee on Publicity in Criminal Trials 75 archived recordings Internet streaming 123 public access to 123, 139 Arizona, Internet streaming 128 bail hearings 106 Bill of Rights 85, 229 C-Span 130, 145 California 70, 111–19 decorum and dignity 113, 115, 364–5 discretionary jurisdiction 97, 113, 115, 117, 119 Ernest Short Report 354 impact of O.J. Simpson trial 111, 114–15, 116, 117 Internet streaming 128 judicial task force 112, 114–19 pre-trial proceedings 118 cameras in court ABA Code of Judicial Ethics, Canon 35 76–7, 78, 103 discretionary power to admit 2, 78, 95 early concerns 1, 2, 71–83 Hauptmann trial 12n, 73–8, 83, 357–8

501 newsreel cameras 73, 74, 75 press photography 73, 74 television see televising of proceedings below Canada compared 201–4 celebrity trials 72–3, 146 see also O.J. Simpson trial Chandler trial 129, 358, 359 composition of court and 83 constitutional rights and 84, 92 new technology 91–2 reasons for decision 81–3 television as source of public information 82–3 cinema newsreels 1 closed circuit televising of proceedings 141 CNN 42, 145 Colorado 78, 80, 96 Conference of State Chief Justices 82 consent of parties 97, 106 Minnesota 97 New York State 106 constitutional rights 70, 83, 408 Chandler 84, 92 Estes trial 83–4, 91–2, 366 First Amendment 71, 83, 84, 85, 86, 87, 88–90, 92, 94–6, 110, 145, 203, 222, 309, 408 regulation of court reporting and 94–6 Gannett 84–5 implication of reliance on media rights 92–4 New York State section 52 prohibition and 88–90, 103, 110–11 Nixon 84 post-Chandler 86–92 public access to trials 85, 86, 87 Richmond Newspapers 85, 86, 89 Sixth Amendment 71, 79, 80, 83, 84, 85, 87, 90, 143, 222, 309, 408 Court-TV 28, 130, 145 death penalty cases 107

502

INDEX

United States (cont.) decorum and dignity 76, 78, 104, 113, 115, 133, 137 California 113, 115, 364–5 discretionary jurisdiction 2, 78, 92, 95, 97, 130, 135, 139, 142 California 97, 113, 115, 117, 119 New York State 106, 107, 109 disruption and distraction 73, 75, 76, 78, 79, 99, 101, 112, 113, 122, 126, 134, 141, 357–8 early concerns 1, 2, 71–83 educative and informative effect of courtroom televising 132–3, 397–9 Ernest Short Report 354 Estes trial 78, 79–80, 358 composition of court and 83 constitutional rights and 83–4, 91–2, 366 prejudicial effect of television 79–80 federal courts 71, 128–9 Canon 3A(7) 128 Grassley/Schumer Bill 142 legislation seeking to open up 141–2 McVeigh trial 140–1 opposition of US Supreme Court Justices 2, 142–6 partial re-admission of cameras 138–40 pilot programme 100, 129 Courts of Appeals 139 evaluation 131–5 judges’ attitudes 131–3, 135, 137, 138 Judicial Conference’s rejection of findings 102, 136–8 lawyers’ attitudes 132 new technology 82, 101 scope and framework 130–1 Sunshine in the Courtroom Act 142 Federal Judicial Center 100–1, 131–5, 336, 398, 403–4 Federal Judicial Council 5

Federal Rules of Criminal Procedure, Rule 35 77 Florida 82, 97, 98, 147, 412 Internet streaming 70, 123, 124–6 Smith rape trial 24 witnesses 137 Gannett 84–5 generally 69–71, 146–7 Hauptmann trial 12n, 73–8, 83, 357–8 Idaho 70, 121–2 ‘Media Guide for Reporters’ 122 independent judiciary 7 Indiana 99 Internet streaming 126–7 pilot programme 130 Internet 141 Internet streaming 2, 122–3 archived footage 123, 126, 127 Arizona 128 audio only 123 California 128 Florida 70, 123, 124–6 Indiana 126–7 live streaming 123, 124, 127 Massachusetts 127 Minnesota 128 Mississippi 99, 123 Missouri 128 New Hampshire 127–8 Ohio 123, 127 podcasting 127 West Virginia 128 judges attitudes 2, 410, 412 pilot programme 131–3, 135, 137, 138 Supreme Court Justices 2, 142–6 Code of Judicial Conduct, Canon 3A(7) 81, 103, 104, 119, 128 effects on 391–2 Federal judges 2 Judicial Conference 77 Canon 3A(7) 81, 103, 104, 119, 128 Grassley/Schumer Bill and 142 rejection of pilot programme findings 102, 136–8 juries 137, 381–2

INDEX

lack of judicial support 5 lawyers, effects on 391–2 McVeigh trial 140–1 Marist Institute of Public Opinion survey of public opinion 105, 108, 109, 110, 369, 375, 399 Maryland 96 Massachusetts child sex offence trials 86 Internet streaming 127 pilot programme 130 Minnesota consent of parties 97 Internet streaming 128 Mississippi 98, 99–100 Internet streaming 99, 123 Missouri, Internet streaming 128 New Hampshire 97–8, 101 Internet streaming 127–8 new technology 82, 101 New York State 70, 88–9, 102–11 bail hearings 106 Canon 3A(7) and 103, 104 consent of parties 106 Constitution 89 death penalty cases 107 discretionary jurisdiction 106, 107, 109 experimental period 103–6 psychological effect on participants 365–6 public opinion surveys 105, 108, 109, 110 reports on experiment 105–11, 357 section 52 prohibition 88–90, 103, 110–11 witnesses, effect on 369–70 New York State Committee’s Report 375–6 New York State Defenders Association 104 newsreel cameras 73, 74, 75 Nixon 84 Office for Victims of Crime 36 Ohio, Internet streaming 123, 127 O.J. Simpson trial, impact of 98, 99, 111, 114–15, 116, 117, 138 see also O.J. Simpson trial

503 Oklahoma 92, 96 Oklahoma City bombing 91, 140–1 open justice, enhancement of 401–2 photography see cameras in court above podcasting 127 prejudicial effect of television 79–80 presumptive constitutional right to televise proceedings 5, 87, 88–9, 91–2, 94, 95 presumptive right to televise 5, 87, 88–9, 91–2, 94, 95 privacy 87, 107, 108, 115 psychological effect on participants 365–6 public access 114, 122, 143, 146 to archived recordings 123, 139 First Amendment and 71, 83, 84, 85, 86, 87, 88–90, 92, 110, 145, 203, 222, 309 public familiarity with television as source of information and 82–3 public opinion surveys 105, 108, 109, 110, 369, 375, 399 publicity pre-trial 91, 381 prejudicial 76, 95–6, 140 radio broadcasting 73 Richmond Newspapers 85, 86, 89, 129, 184 role of rights 2, 408, 409 Scopes Monkey trial 73 sensationalist reporting 71–2, 73, 146 sex offence trials 97 child witnesses 86 Smith rape trial 24 South Carolina 101 South Dakota 99, 100 Special Committee on Cooperation between the Press, Radio and Bar against Publicity Interfering with Fair Trial in Judicial and Quasi-Judicial Proceedings 75–6 sub judice rules 95, 376, 381 Supreme Court Justices 2, 142–6

504

INDEX

United States (cont.) technological developments 81–2, 101 televising of proceedings 78 Tennessee 99 ‘trials of the century’ 71, 72 TVW 120–2 Utah 96 Vermont 97 Vietnam War coverage 83 Washington State 70, 119–21 Watergate hearings 83 webcasting see Internet streaming above West Virginia 127 wiretap evidence 87 witnesses, effects on 80, 131–3, 136–7, 369–70 US Office for Victims of Crime 36 Vale, Ian 286 Vietnam War coverage 83 Wade, Jan 232 Walker, Clive 48 Walker, Sally 215–16, 298 Wall Street Journal 140 Wallace, Anne 290–1, 385 war crimes trials 30, 35–6, 215, 357 ICTY 35, 274

Ward, Judge 138–9 Watergate hearings 83 Waters, Craig 124, 125 Watkins, Lord Justice 19, 49 websites see Internet Western Australian Industrial Relations Commission 289 White, Justice Byron 143 Whitehouse, Paul 32 Wilcox, Justice 253 Williams, George 226, 278, 279 Wilson, Pete 114 witnesses effects on see effects of audio-visual coverage Wood, Justice James 281–3 Wood, Mark 45 Wood Royal Commission 281–3 Woodcock, Mike 15 Woodward, Louise trial 30, 31 Woodworth, Justice 163 Woolf, Lord 55, 66 Yorta Yorta Native Title claim 254–6 see also Native Title cases Young, Lord 46 Zimmerman, Diane 83 Zuber, Justice 178