Cameras in court: should we be doing more to facilitate open justice in the civil system?

Media lawyers will have experienced, or at least be aware of, an anonymised claimant having been stripped of their anonymity by a court.  MLA became Rhodes, PNM became Khuja and JMO and KTA became Khan and Khan etc.  In each case, the court decided in favour of the overarching principle of open justice.

The principles behind open justice are sound.  To not have open justice is to live in a police state.   But if we care so deeply about this principle why are we not doing more to facilitate it?  To say we have open justice, is much like saying that a tree makes a sound in the forest even if no-one hears it. It does because someone could have heard it if they were there.

Thousands of cases are heard daily in courts of all levels.  These hearings tend to have one thing in common; they are played out in courtrooms that are largely empty apart from court staff, the parties and their lawyers.  The vast majority of hearings go unreported.  If one wants to know what has happened, they need to commission a transcript.  This process is time-consuming and very expensive (normally hundreds of pounds for an ex tempore judgment alone).  It is no doubt alien to the non-lawyer.  Moreover, it can only be undertaken if the party has various coordinates (i.e. case name, court room, hearing date and times).  An audio tape of the hearing has to be requested from the court, then supplied directly by the court to one of a handful of official transcribers.  The tape is then typed up.  Where a judgment is being transcribed, it must be approved by the judge before it can be released.

So how could we do more to open up the civil courts?  The answer is quite easily if we wanted.  The technology required is not complicated or expensive.  Many of us now have basic CCTV systems in our homes, such as Nest or Hive.  Both the visual and audio quality is good.  These cameras stream live footage to our mobile telephones and tablets.  Customers have the option for footage to be backed up in the cloud for a certain number of days.  Whilst something a little more sophisticated might be required, one suspects that the cost of installing a camera in each courtroom is unlikely to significantly exceed that of the current audio recording setup used by courts.  Those wishing to access a particular feed could then visit the HMCTS website and select their preferred courtroom (whether in a county court or the High Court).  Previous hearings could be accessible from an archive page of the HMCTS website much in the same way as webcasts of council meetings, although only for a limited time in to avoid data protection/privacy complaints (it having been held in NT1 and NT2 v Google EWHC 799 (QB) that whilst proceedings are not private that an expectation of privacy may develop over time).  Older hearings would be available on request the parties and potentially to non-parties with the court’s permission.

The Supreme Court already has live streams from its court rooms (the prorogation of parliament case attracted some 30 million views) and uploads judgments to its YouTube Channel.  The Court of Appeal live streams selected hearings to its YouTube page.  There seems to be no reason to stop there.

Throughout the pandemic the High Court has been holding remote video hearings, inviting the press to login.  Practice Direction 51Y to the Civil Procedure Rules was introduced to address open justice concerns.  Where the press dial in, the hearing is automatically categorised as a public hearing.  Where they do not, an individual may apply to watch/listen to the hearing within the court building.  However, given that anyone is entitled to attend a physical court hearing, simply webcasting hearings would be far more straightforward.

If we want open justice, is it reasonable to expect someone from, say, Newcastle to travel to London and visit the Royal Courts of Justice, or even the Uxbridge County Court when the footage could be easily streamed?  Equally, should someone be denied the chance to watch a hearing because they were at work or had a hospital appointment when they could watch archive footage?  Of course not; we should be making it easier for people to appreciate and understand the workings of the court and not simply throwing them titbits from the appellate courts (as important as these may be).

So, what is standing in the way of progress?  We can dismiss two practical concerns immediately: the need to hold some hearings or parts of hearings in private.  This can be dealt with by the judge using a simple ‘on/off’ switch, much in the same way that they have to ask non-interested parties to leave the courtroom if it is necessary to sit in private.  The covert capturing of footage would be a contempt of court and unlikely to be any more of practical problem than it is already.

Many of the concerns about televising trials arise from it being seen as a form of entertainment or spectator sport (no doubt because the most vocal lobbyists have been television companies).  Critics have said that lawyers will grandstand, and the sense of occasion will foster a lack of respect for the court.  The answer to this seems to be to not actually televise proceedings per se.  Hundreds of bland online feeds on the HMCTS website is not the same as full-blown ‘match of the day’ on ‘court tv’.  It would be dispassionately and indiscriminately opening up access to all the civil courts, creating virtual seats at the back of the room.

Another commonly deployed argument about the televising of hearings is that they could be selectively edited to give a distorted view of proceedings and the legal process.  This argument ignores the fact that we already have a situation where journalists and editors decide which parts of legal proceedings and hearings they choose to report on, whilst at the same time putting their own slant on them.  Even if one is able to obtain a full transcript, it will tell you nothing about a witness’s countenance or demeanour.  The tape will have picked up any important intonations, but that won’t have made it past the transcriber.  The obvious answer would be to make it clear that the editing of the footage from the court’s feed would amount to a contempt of court.  After all, the objective here is to open the courts up to the public – not to provide content for the media to cherry-pick.  As much as the media like to make out that they are synonymous with the public, this is their invention.

One concern that does have some mileage is that witnesses may be more reluctant to give evidence.  This will be more of an issue with criminal trials (which is beyond the scope of this article).  Indeed, the majority of civil hearings will not have any live witnesses.  A compromise could be to stream only hearings in which no live evidence is given (hearings which did feature live evidence could still be recorded for use by the parties with permission of the court).  Alternatively, a party who had bona fide concerns could apply for a particular witnesses’ evidence not to be streamed.

Lawyers and judges have often been accused of being slow to utilise technology.  The pandemic has forced us all to get up to speed.  If we are committed to open justice, should we not seize the opportunity to go further?  This will have the ancillary benefit of allowing parties and lawyers to be able to access a more accurate record of what happened at previous hearings.  Such a change should go hand-in-hand with making all public court documents freely available online (at least during the currency of proceedings).  The current electronic filing system now being used across the High Court is a step in the right direction, but a much better model is the one employed by the US federal courts (PACER) where all documents can be accessed free of charge.