THE TRIAL OF Oscar Pistorious, which has been broadcast across the world since March, has once again raised questions about whether cases in Irish courts should be televised. In April of last year, Judge Judy Sheindlin of American TV fame was honoured by the UCD Law Society. She commented that we should follow the American example here in Ireland and televise proceedings in courts in order to protect the system from “bad lawyers and judges”.
Judge Judy is a regular on daytime TV in Ireland and a favourite amongst many, including my octogenarian grandparents, who look forward to their daily dose of justice courtesy of Judge Sheindlin. A hush descends over their County Kerry sitting room while Judge Judy presides and as for the cases, the crazier the better as far as they are concerned. I’m sure if asked their opinion on the broadcasting of Irish cases, they would be very enthusiastic, although maybe not realising how different these would be from their lunchtime sittings with Judy.
This goes to the heart of the debate about cameras in courtrooms – televising trials should not be about entertainment. There are significant dangers around courtroom broadcasting, particularly if TV producers see it as an extension of “reality TV”, engaging in creative editing in order to make it exciting for the general public. There is also the danger of turning a trial into a spectacle with barristers playing up to the cameras and judges becoming celebrities or TV-personalities.
However, it has been argued recently in The Irish Times that there is nothing wrong with making courtroom coverage entertaining, with Michael Foley writing that journalists have a duty to make such coverage “lively, sensational (in the best meaning of the word) and exciting”. Otherwise, he says, no one will engage with the justice system. While it is true that many cases can be quite tedious in reality and the general public might be less enthused with the legal niceties of say a judicial review action than with the antics in Judge Judy’s courtroom but surely this is not the point. Surely the provision of a careful and measured system of courtroom broadcasting is a question of access to justice, and if we agree that broadcasting court proceedings is a good idea then we should not be worried about whether the public will be entertained enough to tune in because the point is that they will have the choice.
According to Article 34.1 of the Constitution, justice is to be administered in public. In fact this is one of the central tenets of our justice system – in order for law to be accepted there has to be an understanding of what happens in courts – we can have confidence in a system which is open and transparent. However, the vast majority of Irish people have no idea of what goes on inside the courthouse. Chairman of the Bar Council of Ireland, David Nolan SC, who is in favour of cameras in Irish courts, has commented that there is “a mystique about what happens in courtrooms and this is not good for Irish society.” He also remarked that even some public representatives “aren’t entirely sure what goes on in court.” This is certainly problematic in that it is difficult to have confidence in a system of which we know little about.
Currently, the predominant mechanism through which the public learns about court proceedings is reporting by journalists in the newspapers and on TV. Who hasn’t seen Orla O’Donnell outside the Courts under an umbrella giving an account of some major trial? However, the Chief Justice Susan Denham, in a recent address to mark United Nations World Press Freedom Day, pointed out the lack of first-hand reporting of regional and local courts. Acknowledging that it is taken for granted that courts are open, attended by the public and reported by the media, she also commented that: “It is not possible in our busy world, for a great number of people to attend our courts. Therefore it is vital that the people have access to such proceedings via a vibrant and free media.”
Thus, the lack of reporting in certain areas is worrying, particularly as the Chief Justice noted, from the point of view of justice not being seen to be done. If the newspaper media lose interest in reporting cases then how can the public know that justice is being done? Could cameras in courtrooms solve this problem?
Another issue addressed by the Chief Justice in that same speech was the problem of social media in the courtroom. Arguably this presents a much bigger challenge than cameras in courtrooms. The problem with tweeting or messaging from court is that it is instantaneous and once the information is “out there” it is very difficult to retract. As Justice Denham put it: “There is no putting the genie back into the bottle”. However, while Twitter and other forms of social media can lead to information being incorrectly transmitted into the public domain, it is much easier to regulate how much of a court case is shown on TV. In the Pistorious trial itself, there were restrictions placed on what would be broadcast. This is similar to actually attending a court, where a judge can restrict the information to be seen by the jury and by the public.
Almost 20 years ago, the Law Reform Commission, in a report on contempt of Court, commented on televising court proceedings: “We recognise that there may be a significant public benefit to be gained from exposing the detailed workings of the administration of justice in the courts to everyone within reach of a television set, thereby lessening, as one would hope, the remoteness of court proceedings from the general public and the sense of alienation which many feel from that process.” Acknowledging also the dangers inherent in this process, the commission went on to recommend a pilot scheme and the establishment of an advisory committee to advise the government on this issue. However nothing came of this.
In 2011, when England and Wales decided to allow for limited live broadcasting of court proceedings, Fine Gael TD for Limerick, Patrick O’Donovan, called on the Government to consider a similar scheme but we have not seen any such move. Cameras had been banned in the courts in England and Wales (apart from the Supreme Court) since 1925 but 31 October 2013 witnessed the first screening of a Court of Appeal case. It was hailed as a historic day for British justice by the media and the next step is to allow for the filming of sentencing in criminal trials. However, recently Lord John Thomas, the Lord Chief Justice of England and Wales, has requested an evidence-based assessment on the workings of the system before extending it to criminal trials. The reason for this is that Lord Thomas has been “troubled” by the televising of the Oscar Pistorius trial. Despite his concerns about the South African procedure however, he acknowledged that so far the broadcasting of proceedings in England had worked well and served the public.
So while it is clear that there are dangers associated with cameras in courtrooms and there needs to be careful deliberation around how broadcasting proceedings would work in Ireland, surely, in the Information Age, this is something we need to consider. As Judge O’Flaherty once said: “The light must always be allowed to shine on the administration of justice; that is the best guarantee for the survival of the fundamental freedoms of the people.”
Dr Laura Cahillane, Lecturer in Law, DCU.
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