As of 28th July 2022, the sentencing remarks of the judge in the Old Bailey in London will be recorded and published for members of the public to watch on the internet. For some years most sentencing remarks of high-profile criminal cases have been published in written form on the Ministry of Justice’s website and will continue as such. Whilst journalists, families concerned with the proceedings and members of the public were and still are allowed to attend, they are not permitted to photograph or record the sentencing and this rule will remain unchanged. Only the officially installed cameras in the court will record, only the judge will appear in the video and only the sentencing remarks will be recorded. The jury, victim(s), witnesses, lawyers and defendant(s) will not appear in the video.
Since 1992, Scotland has allowed filming of sentencing remarks but seldom broadcasts due to the strict rules surrounding publication. The Supreme Court has allowed cameras since its inception in 2010 and the Court of Appeal has more recently followed in 2013.
A positive change
First, accessibility of information. It allows members of the public to look at the sentencing in its complete form, without the influence of newspapers picking and choosing what bits to report and what bits to leave out. Whilst most will still learn of sentences via media outlets, there is at least the opportunity to view the sentencing in the most convenient and digestible format of video, rather than having to read a document of several pages. Publishing the video of the sentencing remarks allows members of the public to further scrutinise certain sentences which they may view as ‘too lenient’, or, less commonly, ‘too harsh’.
Second, the legitimacy of the court is improved with greater transparency. Whilst the pre-trial and trial stages still remain a mystery to most, this does move forward in bringing greater understanding of the process in a criminal court. The ability to watch trials in person from the public gallery, for free, is perhaps all too frequently forgotten, yet understandably intimidating for those unfamiliar with the process.
The criminal courts are often viewed as disconnected to the public. Especially some of the older courts, the Old Bailey notably with its oak panelled walls, Oxbridge educated judges and lawyers donned in peculiar regalia of wigs and gowns not commonly seen since the 18th century; its continuance often justified in the name of ensuring the public users of the court respect the institution they find themselves in. Yet in contrast, the Supreme Court appears much more modern, the judicial panel more resemblant of a corporate shareholders conference or Comicon Q&A panel in business suits, yet still commands the respect of the public. Whilst the reasons for maintaining the traditions and archaic clothes of the criminal courts have merits unique to that very sector of the legal process, they undoubtedly come at the expense of alienating the public. In acknowledging that alienation, broadcasting certain parts of the process helps to clear the mysteriousness, re-connect the public to the criminal courts that they pay for and in turn, increase the legitimacy one of the most important sectors of the state.
Some caveats
Recordings of the sentencing can only be published when select news outlets request them. The BBC, ITN, Sky and the Press Association are currently the only organisations allowed to request recordings. The video footage will then be published on YouTube. An improvement would be to expand access to a wider group of organisations, especially charities or campaign groups, and even to members of the public. That would ensure accessibility beyond the limited news organisations, which some may feel have their own biases when selecting the sentencing remarks for a publication request. It is accepted, however, that in a continued time of tremendous financial pressure on the courts, this expansion would effectively result in most, if not all, sentencing at the Old Bailey being requested for publication. In consideration of much more pressing strains, such as the extreme backlog of criminal cases or dismal pay for practitioners, the considerable expense such expansion would involve ought to be low down on the list of financial priorities for the MoJ.
Concluding remarks
Many tout this as an important step and I agree, although use of the word ‘step’ should perhaps be used with caution, as I think it is undesirable to have a ‘progressive’ approach of recording more and more parts of the criminal trial. Lawyers representing those accused of particularly emotive crimes especially may receive adverse attention for their work; their faces and mannerisms on video makes them much more identifiable in public as opposed to just their names in a news story. As for the importance of maintaining the anonymity of witnesses and the jury, hoc ex se intellegitur. Moreover, challenging consequences of recording parts of a trail involving high profile individuals may arise, such as the Depp v Heard civil defamation trial in the US, which resulted in intense public scrutiny and highly charged analysis. Ensuring jurors do not conduct their own research, especially when almost all news and social media outlets are covering the case in great detail may be an especially difficult challenge for the judge to wrangle with, and, albeit unsuccessful, nonetheless provided fuel for an appeal for Heard’s legal team.
As outlined above, this change is a rare positive development in the administration of the criminal courts, however it is wise to remind ourselves there is good reason not to permit further recordings of either the trial or even the pre-trial stage at the Magistrate’s Court. Some parts of a criminal trial are much better kept away from the overexposure of the internet.