The Ministry of Justice is currently reviewing the results of a pilot programme, run by various news broadcasters last year, which filmed proceedings in the Crown Court. The purpose of this review is to assess the feasibility of extending the current filming privileges applicable in the higher courts to lower courts.

Is filming allowed at the moment?

Filming of court proceedings has always been limited by the provisions of the Criminal Justice Act 1925. It has however been allowed in the Supreme Court since its inception in 2009 and certain aspects of Court of Appeal proceedings have been filmed since 2013. This type of access has never been extended to the lower courts. Recent high profile cases, such as the Tommy Robinson contempt of court proceedings, have highlighted how legal proceedings can be misrepresented and the public’s understanding manipulated. It is hoped that recording and subsequent televising of such proceedings will help reconnect the public with the legal process and dispel any misunderstanding of the content and procedure of high profile cases.

However, if filming has been allowed in higher courts for such a long time (almost a decade in the case of the Supreme Court), then why has this not been extended to the lower courts? Calls for televising lower court trials have been resisted thus far over the fears of a “media circus” inevitably surrounding high profile cases. This is notwithstanding the fact that trials are open to the public in any event; there is nothing stopping members of the public walking into the gallery of an open trial (except perhaps having the time to do so!).

Why such caution around the lower courts?

There are sensitivities applicable to lower court proceedings, particularly those in the Crown Court, which arguably make them inappropriate for filming. Crown Courts have juries, whose members’ identities should not be revealed either during or after the trial. Evidence from witnesses is also necessary which carries with it the need for privacy and anonymity. If Crown Court trials were the subject of televised recording then the identities of jurors and witnesses would have to be kept secret from the viewing public. The danger with this however, particularly in respect of witness evidence, is that any editing of the expression of a witnesses’ evidence ultimate alters its perception. The way evidence is perceived is a huge part of how jurors make their decisions. If the main driver for televised court proceedings is to enable to public to better understand decision making, it’s arguable that the censorship necessary in Crown Court proceedings would make such understanding impossible to attain.

But what about proceedings in the civil courts? There certainly is not the same kind of clamour for the filming of those proceedings. This may well be because the public interest in these cases is far lower and often the importance of such decisions has little impact on the day to day lives of the public in general. Notwithstanding this, it is easy to identify particular cases where the public may well have wished to watch the drama unfold. Sir Cliff Richard’s recent case against the BBC (reported by the MediaWrites team here) is undoubtedly one such case. Parties to civil proceedings have the option of making the proceedings confidential under the Civil Procedure Rules in any event; as such the opportunities for filming in these courts would be much more restricted.

So what’s the conclusion?

The simple answer is that there is scope to allow filming in the lower courts, however care must be taken with what the footage discloses and how it is made available. If proceedings can be filmed in an appropriate, non-intrusive manner which ensures the identities of individuals are not disclosed then there is a future for filming in the lower courts. In addition, the way in which those proceedings are shown is important – they should not be sensationalised and should be strictly regulated. If this balance can be appropriately struck then the public will be set to gain an invaluable insight into the legal process in this country and this process will in turn become much more transparent. Additionally, televising proceedings will open up new avenues for broadcasters in delivering novel and informative content to the public.

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