Crown Court (Recording and Broadcasting) Order 2020

Lord Marks of Henley-on-Thames Excerpts

Monday 8th June 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I have long argued for more broadcasting of court proceedings on the simple ground that open justice is generally better justice—a point endorsed by the noble and learned Lords, Lord Morris of Aberavon and Lord Thomas of Cwmgiedd. The noble Lords, Lord Reid, Lord Wei, Lord Foulkes and others have also eloquently emphasised the importance of the public understanding of the justice system.

We have long seen open justice as central to the rule of law and to our liberties, but, until recently, public access to proceedings was limited to the admission of the public to open court hearings and to their fair and accurate press reporting. In principle, I see little distinction between admitting the public to open court proceedings and permitting press reporting, and allowing broadcasting of those proceedings. I accept that there should be limits to broadcasting in the interests of justice, particularly to protect jurors and witnesses, including vulnerable witnesses in sensitive cases, from being inhibited or frightened. Nevertheless, I would argue that we can move, incrementally certainly, towards a more open system. These two orders take small but significant steps along the road to more open justice, and I support them.

On broadcasting judges’ sentencing remarks, we have all seen how, too often, public perception of sentencing is distorted by sensationalist coverage in the printed media. Broadcasting would increase awareness of the reasoning behind sentencing in particular cases—a welcome benefit. But I agree with the noble Baroness, Lady Anelay, and the noble Lords, Lord Harris and Lord Bourne, that we should go further, with pilot schemes and further consultation, as appropriate, in the future.

I agree with lifting the exception to broadcasting family appeals to the Court of Appeal. That is in line with the general recognition that family proceedings have been too secretive in the past and should be more widely understood.

Perhaps I may make a few further general points. First, the broadcasting of Supreme Court proceedings has clearly been a great success. In many cases, members of the public follow the argument in detail and with care. We have heard today from the noble and learned Lords, Lord Keen and Lord Garnier, who appeared in the Miller and Cherry cases on the unlawful prorogation of Parliament last year. Many who would have missed it without broadcasting will remember the decisive contribution that the noble and learned Lord, Lord Garnier, made to the argument in that case on behalf of Sir John Major.

For my part, I do not believe that the current blanket bar on broadcasting evidence in trials is supportable. It is permitted in a number of common-law jurisdictions to a greater or lesser extent: not only in the United States, where it is widely permitted, but—subject to limitations—in New Zealand, Australia and Canada. While I accept that there are risks in the unlimited broadcasting of lay witness evidence, I am unconvinced that expert evidence needs or ought to be similarly protected. There may be an important public interest in more scrutiny of expert witness evidence in securing genuinely impartial evidence that is less likely to be skewed in favour of their clients in a case.

More controversially perhaps, I also believe that the public have a right to witness first-hand the conduct of parties’ advocates and the reaction of judges to their conduct of litigation. When broadcasting cases was first mooted, there was much talk of a fear of counsel grandstanding for the camera. But we have seen little evidence of that in the Supreme Court and other appellate courts.

Finally, I would mention a little-noticed but significant effect of the coronavirus lockdown; this point was mentioned by the noble Baroness, Lady Jones of Moulsecoomb, and others including the noble Baroness, Lady Kennedy. Civil trials have gone ahead virtually, in accordance with paragraphs 8 and 22 of the Protocol Regarding Remote Hearings published on 26 March by the senior judiciary. Paragraph 8 says that

“remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways:”

The third of those ways is

“live streaming of the hearing over the internet, where broadcasting hearings is authorised in legislation (such as the new s85A recently inserted into the Courts Act 2003).”

That section authorises video broadcast of proceedings, where the court agrees.

The protocol goes on:

“The principles of open justice remain paramount.”


I agree with that. During lockdown, I have conducted a High Court trial with a significant number of witnesses in accordance with that protocol. The trial worked well, although I agree with the noble Baroness, Lady Jones of Moulsecoomb, that such trials must not be difficult to access. Private evidence in that trial was kept private; the principle of open justice was maintained. I endorse it and suggest that it could be extended when we get back to normality.