Televising court cases: Open justice in action
Hong Kong’s judiciary has traditionally resisted change. In consequence, significant developments in other common law jurisdictions have often passed it by. Even the repeated calls for proper security vetting of those entering the courts, such as exists elsewhere, went largely unheeded until last October, when a high court judge was threatened in open court by a man with a knife. Only then did the judiciary finally announce enhanced security measures for the high court, including security screening, baggage inspection and the use of metal detectors.
In January, the chief justice, Geoffrey Ma Tao-li, said the “transparency of Hong Kong’s legal system is an important part of its structure”. However, judicial proceedings remain a mystery to many people, who, despite television dramas, simply do not know how things operate. Although, to their credit, the courts now issue detailed reasons for their judgments, much more can be done to promote public appreciation of their work. Trials, for example, are public events, and there is a legitimate public interest in what happens, particularly if they involve highprofile defendants, yet few people have ever seen one.
As things stand, the use of cameras in court is prohibited, even in appeal cases. The public normally have to rely on second-hand reports of what has happened in particular cases, which may be incomplete. The closest most people ever get to a case is a televised sighting on the evening news of someone involved entering or leaving the court precincts, perhaps accompanied by a few hurried words. At a time when judges have faced criticism over their decisions, anything that can be done to make things more understandable should be keenly embraced.
Of course, members of the public can attend court hearings, if they have the inclination. When sensational trials are underway, however, it is very difficult to gain access to the court, with many seats in the public gallery reserved for the family and friends of the parties, as happened in the recent trial of the former chief executive, Donald Tsang Yam-kuen. Space apart, however, most people simply do not have the time to attend court hearings, given their work and other commitments, and the judicial system remains remote.
In many other places, court proceedings are now televised, at least in part, in the interests of transparency. When the British government announced in 2012 that it was ending the blanket ban on broadcasting from the law courts of England and Wales, the then justice secretary, Kenneth Clarke, explained that “we are bringing the concept of open justice into the modern age, and in doing so we will make the courts more accessible to the public than ever before”. The televising of cases is an idea whose time has come, and it empowers the maxim that justice must not only be done but also be seen to be done.
Apart from the United Kingdom, televising now occurs in places as diverse as Australia, Canada, France, Israel and Russia, and the concerns expressed by some have simply not materialized. Although opponents feared that the admission of cameras would undermine the legal system, the contrary has occurred. In Norway, for example, the broadcast of the trial of mass murderer Anders Behring Brevik provided viewers with a vivid insight into a terrible crime. In the United States, the televised murder trial of NFL football legend O.J. Simpson allowed the public to see for themselves how their legal system operates, particularly where money is no object.
However, cameras should always be unobtrusive, and their use must not be unfettered. The faces of jurors, for example, should not be shown, and there must be restrictions on the filming of vulnerable people. The UK’s Victims’ Commissioner, Helen Newlove, has said that although any filming should not undermine the anonymity of victims in sexual cases, or involve cases where children are witnesses, there are benefits to allowing cameras into the courts, particularly as it “will shine a light on our justice system and, in doing so, it will increase public awareness”.
When the UK first allowed televising, it was confined to the lawyers’ addresses in the Court of Appeal, and to the delivery of judgments. In 2012, the Scottish judge, Lord Bracadale, made British history when, on television, he sentenced convicted murderer David Gilroy to life imprisonment in Edinburgh’s High Court, but no other parts of the trial were shown. Most jurisdictions still impose reasonable limitations on the use of cameras in court.
In South Africa, for example, when the athlete Oscar Pistorius was tried for murder in 2014, the judge, having agreed that much of the trial could be broadcast live, nonetheless imposed restrictions. In particular, the televising of the proceedings was confined to the opening and closing speeches of the lawyers, the evidence of the prosecution witnesses, the judgment and the sentencing. The testimony of Pistorius himself was not broadcast, although it could be heard, and if a witness objected to being televised restrictions applied, including obscuring their features.
Observers have noted that one incidental benefit of televised trials is that the lawyers are invariably better prepared, the judges better behaved, and the public better informed.
Since the UK’s Supreme Court was established in 2009, its proceedings have been broadcast, and this has in no way demeaned things. Earlier this year, moreover, England’s lord chief justice, Lord Burnett, announced plans to live stream on YouTube selected civil cases being heard in the Court of Appeal. He said the judiciary “wants the public to understand better what we do”, and he has also supported proposals to broadcast judges’ sentencing remarks from criminal trials.
In Hong Kong, proceedings in the Legislative Council are televised, and it is high time that the cameras are also allowed into the law courts. Although some sensible restrictions are justifiable, there is no reason why, for example, proceedings in the appeal courts should not be televised, starting with the Court of Final Appeal. After all, anything that can be done to demystify judicial proceedings not only benefits the community, but is also good for the judiciary itself.