Losing blind justice

Troubling news emerged recently when draft legislation was laid following a three-month pilot that saw not-for-broadcast sentencing remarks filmed in eight crown courts.

The new laws, part of the Crown Court (Recording and Broadcasting) Order 2020, mean that in addition to current rules allowing proceedings to be broadcast in certain Court of Appeal cases, filming will now be permitted in the Crown Court.

As we know, cameras are allowed in the Supreme Court but the court itself undertakes that exercise. Under the most recent rules, criminal courts (including the much-revered Old Bailey) will be the setting for the latest series of reality TV – one in which the public can pore over judges’ sentencing remarks; how they looked when they were making them; the tone of voice they used to pass judgment – all aspects that court reporters alone cannot apparently adequately convey.

Having practiced for over 50 years, I have strong feelings on this topic, borne from experiences that younger members of the profession who are au fait with TV shows such as Keeping Up with the Kardashians, Simon Cowell’s X Factor’ and Love Island may find it difficult to understand.

We have been assured that there will be filming restrictions. Only High Court and senior circuit judges and their sentencing remarks are to be filmed after obtaining permission from the judiciary in advance.

No other court user, staff member, visitor, witness or victim will be filmed; the usual reporting restrictions will apply; and editing will take place before the recording leaves the courtroom. The copyright will be retained by HM Courts and Tribunals Service (HMCTS).

But isn’t this just the thin end of the wedge? Are we not simply following our American counterparts down the path of media exploitation, with all parties waiting to see who comes off worst?

We’ve already seen a plethora of reality shows plumbing the depths of public humiliation – ITV’s Judge Rinder is one example. Will our judges play to the camera and try to emulate the style of arbitrator Robert Rinder or Judge Judy in the US?

Will we all eventually stage press conferences on the court’s steps; or worse, will the bookies give odds on the sentences handed down by the judges?

One may argue that this doesn’t happen now, so why should it once the recordings hit our screens. I would suggest it could come down to one reason: the broadcasting of a judge’s comments will make a spectacle of our much-respected legal process, ramping up the odds and the public interest as a result.

This may seem a rather pessimistic view of the situation, but it does seem that the government is on a mission to remove the mystique of the courts.

It is of great disappointment to me that over the years, courtrooms have lost their architectural splendour. Wigs and gowns are worn less frequently and the grandeur of the courts seems to have been diluted. The rapid developments in artificial intelligence (AI) make me wonder if juries, and then judges, will be supplemented by AI. The whole majesty and mystery of the law, already in decline, will rapidly disappear.

I fear the loser will be blind justice. We are embarking on a path that could lead to courtroom cases becoming reality theatre and the jury the phone voting public. This new move could be the start of the end of our historic courts as we know them.

History has proven that everything is cyclical. Will this new turn of events one day lead us back to the public spectacle of the gladiatorial contest held in the Colosseum in Rome?

Will the masses signify their approval or disapproval by gestures of thumbs up or thumbs down; or will they simply vote on an app specially developed for the purpose? We do not know the answer but you can be sure Simon Cowell will be the first in line to find out.

David Kirwan is former managing partner at Kirwans kirwanssolicitors.co.uk