Response to the Judicial Office re “Cameras and live text-based communications in the Scottish Courts: a Consultation”

This is a joint response given from the media companies responsible forfilming at the Court of Appeal in England and Wales - the BBC, Sky, ITN and Press Association (hereafter “the broadcasters”). BBC, Sky and ITN were also involved in the setting up of the filming of proceedings at the Supreme Court.

We strongly support any move to extend the filming of court proceedings. We believe that it is time that filming in court becomes the norm.

The presumption should be that filming will be allowed in criminal courts subject to appropriate judicial control.

The general framework for filming in the Court of Appeal in England and Wales:

The presumption is that filming should be allowed

The presiding judge can order a case should not be filmed if it is in the interests of justice to do so. In practice, this has never happened

The broadcasters are in control of the cameras

Filming is subject to a Protocol – for example filming is only allowed of the lawyers and judges. The defendant is not filmed and a person representing himself cannot be filmed

There isa contractual agreement between the broadcasters and the Ministry of Justice as to how the filming is carried out, including that the Protocol will be implemented

The broadcasters employ an individual journalist to carry out the filming, called a Court Video Journalist (the CVJ)

The judges do not have control of the broadcast equipment. The system relies on judges communicating verbally with the CVJ in the same way they would a reporter from the press. It means the judges must inform the court of any reporting restriction, which allows broadcasters to ensure that reporting of the case complies with restrictions.

In court there are four controlled cameras and a mobile control desk, all of which can be moved into any courtroom in which the Court of Appeal sits four portable, wireless cameras are placed in agreed positions in the Court of Appeal.

Filming has taken place when the Court of Appeal sits outside London –(Filming took place of the Philpott appeal in the Court of Appeal sitting in Nottingham)

If someone who was not to be filmed should stray into shot, the existence of other cameras means that the operator can cut to another shot or, if the broadcasting is not live, edit the material or pixelate or otherwise mask the identity of the individual concerned.

Live broadcasts can only take place from the five courts where wiring has been installed in advance.

There is a 70-second delay. The 70-second delay was used during the appeal against sentence of Mairead Philpott at Nottingham Crown Court, where applause broke out in the public gallery after the Lord Chief Justice had finished giving his ruling. He then directed this applause should not be broadcast.

Where there is a possibility of a retrial in an appeal a broadcast must not be made until the judge has given permission

The equipment is set up on a daily basis by the CVJ in the Court of Appealfor a case is to be filmed. Setting up or dismantling the equipment takes around 30 minutes.

The CVJ acts as the liaison with the courts listings office - so the broadcasters know what cases are listed

The footage can only be used in news and current affairs

There has not been evidence of grandstanding by lawyers or proceedings being disrupted.

General

With the experience of filming in England and Wales certain points stand out:

Judicial control is at the heart of filming proceedings. We submit as with any issue in court, the issue of whether filming can take place should be one for the judge, not the parties in the case. Representation can be made by the defendant, the media and interested parties but ultimately the decision on whether filing should be allowed should be a judicial decision.

Filming proceedings should be viewed as another means to report the courts and not materially different to other forms of reporting such as print – merely a different way to report the courts. Unless there is clear justification, the broadcasters should be subject to the same reporting restrictions – no more or less – than other reporters.

The filming of court proceedings is a means to give effect to the public’s right to see what is happening in their courts. It gives greater effect to the public right to see the proceedings and makes the issue of the public gallery a reality.

Courts around the world often allow filming of the defendant coming into court – this is from experience in reporting cases from around the world. It may be that the defendant is not constantly filmed but some footage of the defendant is usually shown in reports from criminal courts around the world.

There are special sensitivities surrounding witnesses in criminal cases. The input of the witness should be considered by the judge in determining whether filming is allowed.

The broadcasters are subject to the Ofcom Broadcasting Code and have their own internal compliance processes – for example, the BBC Producers Guidelines. All major broadcasters have in-house lawyers to give advice on the law of contempt of court and the Ofcom Code, including ensuring that swear words are not broadcast and that court orders are followed.

From a media perspective, filming and broadcasting is led by the same principle as all forms of reporting - news judgments. In particular is the case of news interest?

As a group our perception has always been that the permissions required in Scotland for filming to take place have been very restrictive and this has meant filming proceedings has been the exception rather than the norm. There needs to be a change so that filming court proceedings become the norm. We believe this is achievable.

When the decision to allow filming of the Court of Appeal was given it was also said that there would be moves to allow filming sentencing in the Crown Court. The Crime and Courts Act 2013 lifted the ban under the 1925 Criminal Justice Act 1925. Permission can now be granted by the Lord Chancellor and Lord Chief Justice to give permission to film in courts other than the Court of Appeal.

Invitation

If it is of assistance, we are happy to demonstrate the broadcasting equipment in the Court of Appeal and invite the Group to see the equipment, how it can be used and to discuss any questions.

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