JR on TV?
Judges want public to see them making public law
Senior judges have asked the justice secretary Shabana Mahmood to allow judicial review claims to be live-streamed in the same way as civil and family appeals.
Allowing these hearings to be televised would give greater publicity to challenges that campaign groups bring against government departments and other public bodies. But broadcasting would also allow judges who hear public law cases in the Administrative Court to demonstrate that they decide these claims on legal grounds rather than according to their political merits.
The recommendation comes from a new transparency and open justice board established last year by Baroness Carr, the lady chief justice of England and Wales. Chaired by Mr Justice Nicklin, the board includes members from other sections of the judiciary as well as observers from the Ministry of Justice.
Nicklin, the judge in charge of the High Court media and communications list, published draft key objectives for consultation last month. These say:
The principles of transparency and open justice require the proceedings and decisions of courts and tribunals to be open and accessible to the public and the media.
Effective access to hearings, the draft objectives add, includes “permitting, where appropriate, broadcasting of the whole or part of the hearing”.
According to explanatory notes published alongside the proposed objectives, the board believes that, in principle, a court or tribunal should be able to broadcast those parts of its proceedings that it believes could be broadcast without prejudicing the administration of justice.
The notes say:
At present, any expansion in broadcasting in courts and tribunals would require either a change of legislation to remove the existing statutory provisions that currently prohibit broadcasting or exceptions to permit specific broadcasting (for example, the statutory instruments that have permitted broadcasting in the Court of Appeal and of sentencing in some Crown Court cases).
The board has already recommended the extension of broadcasting to the Administrative Court and proposals are now a matter for the Ministry of Justice.
Any expansion of broadcasting in courts and tribunals will need to be done carefully but the board believes that it is an objective that should be recognised in the key objectives.
Comment
The most important claims for judicial review are heard in the High Court by a bench of two or more judges, known as a divisional court. They look and sound very much like civil appeals, which are routinely live-streamed. Others are heard by single judges.1 As with appeals, it’s very unusual for the court to hear oral evidence. That’s one of the reasons I have long argued that cases heard in the Administrative Court should be televised.
When three senior judges ruled in 2016 that legislation would be needed to trigger Brexit, it might have been harder for a newspaper to have accused them of being enemies of the people if the people had been able to watch the case being argued. No such insult followed a similar outcome in the Supreme Court, where proceedings were broadcast live.
This year marks the centenary of legislation that banned photography in the courts of England and Wales. Until then, reporters would occasionally smuggle bulky cameras into courtrooms.
More than 35 years ago, a working party of the Bar Council chaired by Jonathan Caplan KC published a report into “the feasibility and desirability of televising court proceedings in England and Wales”, The report, called Televising the Courts, concluded in 1989 that the law “should be amended to permit the televising of courts on an experimental basis”. It was some years before this recommendation was even partially accepted.
Ministers may not want the public to watch lawyers trying to persuade judges that government actions are unlawful. But an administration that regularly proclaims its adherence to the rule of law should have no fears about accepting the judges’ recommendations on open justice.
Apologies for suggesting in an earlier version of this piece that most cases are heard by a divisional court.
Thanks as ever for your interesting analysis. A small point- a standard claim for judicial review is ordinarily heard by a single judge in the Administrative Court. Where the case is considered significant in some way it will be heard before a divisional court consisting of one High Court judge and one Court of Appeal judge. But a regular JR will be heard by a single judge.
I wonder jf the proposal would be to cease televising in the rare cases where live evidence is given in a JR, at least for the oral evidence part.