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Top judge says open justice underpins the rule of law
Broadcasting of judges’ sentencing remarks in England and Wales has been successful beyond the judiciary’s expectations, the lord chief justice said yesterday.
Lord Burnett of Maldon, who retires at the end of this month, acknowledged that it would be for others to decide whether broadcasting should be extended to more court hearings. There were currently logistical and financial constraints.
But he thought it inevitable that judicial review challenges against the government would be televised in due course. These are heard in the High Court, where broadcasting is not currently permitted.
The lord chief justice of England and Wales was speaking to the Commonwealth Magistrates’ and Judges’ Association, meeting this year in Cardiff, on the theme of open justice. He noted that many Commonwealth countries were ahead of England and Wales in televising their courts — “and within the United Kingdom our colleagues in Scotland have shown us the way in some respects”.
There were legitimate concerns about the privacy and welfare of court users. But he predicted that sentencing remarks in a wider range of cases would be televised in future. “The question when considering the live-streaming or broadcasting of additional types of case or parts of cases, in my view, should be: why not?”
In Burnett’s view, it was a “core element” of open justice that the participants’ details should be made public. Courts in England and Wales did not allow claims to be brought unless the claimant’s identity was disclosed to the court and to other parties. Generally, the claimant must be identified to the public and any exceptions must be strictly necessary.
But he had observed a “growing chasm” between countries that followed the English common-law system and continental countries whose judicial systems are derived from Roman law.
“The common law dislikes [anonymisation] because it erodes open justice. But the routine anonymisation of parties and witnesses is becoming more commonplace in Europe,” he said.
Burnett noted that the European Court of Human Rights had not named the duty judge who temporarily prevented the UK from sending asylum-seekers to Rwanda last summer — “something that is alien to the common law tradition”.
While local and specialist court reporting was in decline, technology was offering new ways in which the public could follow court proceedings. Sentencing remarks were first broadcast in July last year and had produced some unexpected benefits:
Only a few seconds from the remarks are likely to appear in a broadcast news bulletin. But the complete sentencing remarks are broadcast live online and are then embedded in the news reports on the broadcasters’ websites. When people have the whole picture they are less likely to criticise unfairly.
It has become clear that the availability of these remarks to commentators and journalists has improved the quality of reporting. If I may say so, it has also helped enhance understanding of the sentencing process amongst politicians and policy makers.
One aspect we did not really foresee was the impact that the broadcasting of sentencing remarks is having on public perceptions about our senior judiciary. The High Court and senior circuit bench, whose sentencing may be broadcast, are not monochrome, male and septuagenarian. We learned that many people were surprised to see sentencing remarks being delivered by women — and by men and women who are really still quite young or from ethnic minorities.
Increasing understanding of sentencing… is capable of helping to raise public confidence in the criminal justice system and the judiciary. There has been a regular drumbeat in recent years that judges were soft on sentencing. It is a myth, as informed analysis of sentencing data show. But myths tend to be as durable as they can be pernicious. Such myths have a tendency to undermine public confidence in the judiciary.
The beneficial effect of broadcasting sentencing remarks is playing an important role in myth-busting, thereby promoting judicial legitimacy and through that the rule of law.
Even in his last major speech as the senior judge of England and Wales, Burnett was cautious. “We have seen the broadcasting of some criminal trials around the world become live soap opera,” he observed.
Burnett believed that sensationalism could be avoided by ensuring that witnesses and defendants were not seen on screen. He was not persuaded that broadcasting the oral evidence of witnesses was desirable.
But new technology could enhance open justice. And open justice, he concluded, was a necessary foundation of the rule of law.
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