Justice Secretary Ken Clarke. Photo credit: The Conservative Party
This week it emerged that the British government might allow television cameras to film the sentencing of defendants in criminal trials in England and Wales. Justice Secretary and Lord Chancellor, Ken Clarke, is reported to have said that televising judges’ comments was a good idea that would help demystify the process. Downing Street is apparently “seriously considering” such a proposal.
Under the proposals being discussed, the trial itself and the verdicts delivered by the jury would not be filmed. The Lord Chancellor has suggested a cautious start to the programme, with the Court of Appeal’s august deliberations taking center stage and Crown Court trials being added later.
According to Clarke, “there’s a lot of misunderstanding on how the criminal justice system works. What we don’t want is theater and we don’t want to alter the behavior or the conduct of the trial. We want to encourage people to have confidence in it.” What we need, he added, is “… above all transparency in the way the system works”.
This sounds like a laudable aim and, to be fair, it does not sound ill-conceived or hasty. Indeed, the suggestion has the support of the most senior civil judge in England and Wales, the Master of the Rolls, Lord Neuberger, a former Supreme Court justice.
Transparency, like “stakeholders” and “engagement”, is one of the watchwords of the present political generation. Transparency – clarity or openness – about the organs of the state is one of the most important ways in which citizens can check upon the work done in their names and should, therefore, be welcomed. But is this really what we need, now?
First, it is important to remember that the rubicon has been crossed and the penetrating glare of the lens has been introduced to the UK’s senior appellate court, the Supreme Court. This tribunal, however, hears no evidence. There is no jury and no edge-of-seat cross-examination. Its hearings are dominated by learned, in-depth legal submissions. I have not got the figures to hand but, my guess would be, Supreme Court TV is not very popular viewing.
Criminal courts are different and it must not be assumed that what works for one tribunal will work with another. Criminal process is fraught with questions of evidence and cross-examination, bad character issues, previous convictions and victims. And, of course, sentencing policy, set centrally. Yes, the sentence comes at the conclusion of the trial but this does not guarantee that it represents or reflects the course of the hearing.
It is tempting to see this gambit as an attempt to deal with tabloid taunts that Mr X or Miss Y has “walked free from court” or has “got off lightly”. Or, taking recent events as a touchstone, that a participant in the London riots has been dealt with too harshly and disproportionately. The fact is that, for perfectly sound reasons, different juries and judges in different places on different facts come to different conclusions. It is hard to reduce these factors to a television transcript.
My concern is that without adequate explanation of why judges give particular sentences, such a move could be a retrograde step and make the process less clear than it is now. In order to understand a trial and why a particular sentence is given, a viewer will need far more information than they are going to have, both in terms of the law and the facts of the offense in question.
The key, it seems to me, is the management of expectations. A viewer who has a robust view that “life should mean life” will find the process he sees less than clear and, probably frustrating. The experience will either confirm or exacerbate his worst fears that the system does not deliver, rather than allay them. Arguably, this will make the system more transparent but whether it will actually make anyone more confident that the system provides justice is not clear.
We mustn’t court cameras for the sake of it and as if they are a panacea for the ills, perceived or real, of the criminal justice system (not, to be fair, that the Justice Ministry has suggested that they are). We need to be clear why we want this change and what effect we think it will have. Undoubtedly some changes are needed including greater clarity about sentencing policy and better education about how sentencing works. But I am not sure that these changes are the way to achieve this, if that is what is wanted. Ministers will need to ensure that they are not simply courting further controversy.
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