Judges zoom in on courtroom cameras

Marie Dyhrberg                 New Zealand leads the world with its television coverage of court cases. When cameras were allowed in courtrooms back in 1995, it was a ground-breaking move that other jurisdictions watched with great interest.

Some took hesitant steps to follow in our footsteps, with the UK recently giving the go-ahead for limited aspects of high-profile cases to be filmed in the Crown Court and the Court of Appeal, in a bid to open up the judicial process. The prospect is sending shivers through Britain’s top judges who fear that having cameras in courtrooms will lead to them being booed and heckled.

“I’m very troubled about having cameras just swanning around,” says the aptly named Igor Judge, who recently retired as Lord Chief Justice of England and Wales. “Everybody thought that if you fixed the camera on the judge then it would be alright, but of course people can demonstrate during the sentencing remarks, so there are cheers and boos. We have to be careful how it works.”

Ironically, his sentiments are now gaining currency in New Zealand legal circles, perhaps prompting, in part, the just-announced review of our cameras in courts policy. It is being undertaken by a panel of judges comprising Justices Ronald Young and Raynor Asher of the High Court and Judge Russell Collins of the District Court, with assistance from a media advisor who is yet to be appointed.

They will look at how the current guidelines are operating, whether appropriate safeguards are in place and whether there should be any changes to the guidelines. This will include an assessment of whether the current framework is meeting the interests of the public, the victims, parties and witnesses. The situation in comparable overseas jurisdictions will also be examined.

The panel will present its findings to Chief Justice Dame Sian Elias and the Heads of Bench.

What will emerge from this process is anyone’s guess, but powerful and influential voices have been calling for change, from Justice Minister Judith Collins, down.

Late last year Ms Collins told TV3’s The Nation programme she was not comfortable with cameras in court because they sensationalised a few moments of evidence. She said she was especially concerned with television coverage of the trial of Feilding farmer Ewen Macdonald who was acquitted of murdering Scott Guy. “It was sensationalised to the extent that it was almost like reality television and I don’t think that does justice any good,” Ms Collins stated.

“By the same token we do need to be aware that justice needs to be seen to be done. I’m actually appalled by some of the coverage. One of the problems with the cameras used as they are is that we see a tiny snippet and it’s normally of someone about to cry, or crying, and frankly that does not give any indication of the evidence that a jury is hearing.”

Ominously, Ms Collins told the programme that she would look at restricting cameras in court.

Her misgivings are shared by many others including Kim Workman of the justice reform group Rethinking Crime and Punishment. He believes cameras in court encourage the ‘Oprahfication of justice’. “If filming emphasises or encourages emotional behaviour, then it has no place in the courtroom. It has the potential to further traumatise victims and encourage some to say and do things they will later regret,” he says.

One of the most vociferous critics of television coverage is former New Zealand Law Society president Jonathan Temm who has called for cameras to be banned from courts, saying some coverage demeaned the justice system and put the trial process at risk. “When you ask television to come into the courtroom, it is not going to deliver a BBC quality documentary. It wants to sensationalise, it wants to edit, it needs to spice up the material. I think it does this because television legal shows have glamourised the courtrooms.”

“Look at the Clayton Weatherston trial in Christchurch. Seeing his face on our evening news night after night, showing in a minute and a half what was five hours of evidence with a voice-over by a reporter full of adjectives. Or Antoine Dixon.

“Every time you talk about that man, all we ever recall is the crazy-eyed guy in the dock. Television just portrays an image that it wants to convey to the public.” Mr Temm describes television coverage of trials as “an experiment that’s failed.”

However, some legal counsel have championed the “experiment” almost from the day it was introduced. In a 1996 paper to the International Criminal Law Congress, criminal barrister Marie Dyhrberg told delegates that “we have to have” television coverage.

“Our courtrooms are full of drama, intellect, passion and wisdom – the public wants to see it. What makes some lawyers think they are so precious? Knowing the public at large will see and hear what it is you actually do all day for $300 an hour – surely this can only sharpen your performance? …Television cameras…can only lead to an excellence in presentation, manner, performance and the ability to get to the point in meaningful sound bites.”

Today Ms Dyhrberg, convenor of ADLS’s Criminal Law Committee, appears no less enthusiastic about cameras in court, saying the worst fears of former Lord Chief Justice Igor Judge are unlikely to be realised. “I think he will find that his concerns will really, in practice, be without foundation. If it’s based on our experience, there are very, very few breaches and very few problems that interfere with a fair trial and justice,” she says. “Real outbursts are few and far between, given the number of cases that go through New Zealand’s courtrooms. Judges allow some sort of emotional response but they shut them down pretty quickly so cameras in court aren’t going to be responsible for outbursts, nor are they going to be an impediment for judges to control the courts in the way that they normally have.”

As is their wont, New Zealand judges have largely kept their views about cameras in court largely to themselves, but with one notable exception. Five years ago Justice John Fogarty challenged the rules which allow media to film and take photographs in court. He described television and photographic coverage as akin to the ancient punishment of pillory.

His comments were made in relation to news media applications to film aspects of the double murder trial of Lipine Sila who drove his car through partygoers in Christchurch. In banning the filming or photographing of Sila during the trial, Justice Fogarty said that two of the in-court media coverage guidelines were not a correct statement of the law. He said the guidelines presumed the trial judge would allow photographing and filming of the accused during the trial and the resulting images could be broadcast or published before the end of the trial.

But he declared this was “an error of law” because it went against the required treatment of the accused as innocent until proved guilty. “Broadcasting and publishing photos of any accused while on trial is often a public humiliation, akin to the ancient punishment of pillory. Accordingly, it is prohibited by the common law.”

However, another High Court judge, Justice Keane, disagreed. In R v Crutchley he said that the guidelines are “entirely compatible with a trial judge’s duty to secure that justice is done”, saying words to the effect that a degree of humiliation is part and parcel of the trial process and is not enough to exclude the public or cameras from the courtroom.

All of which is reassuring for the news media which has more than a passing interest in the outcome of Chief Justice Elias’ review.

TV3 news director Mark Jennings told Law News that by and large the current guidelines work very well and there is no need for any significant changes. “I think the most senior and influential judges support the idea.

“New Zealand is a world leader in this area and we are envied by most international media. If we went backwards it would be hugely disappointing for open justice and media freedoms in this country. Problems or issues are discussed at regular meetings of the ‘cameras in court committee’ comprising of judges, lawyers, court staff and media representatives. This is a very constructive forum and issues are generally resolved.”

Mr Jennings says Jonathan Temm’s views are “worrying” and “wrong.”

“Yes, we have had a number of very high profile cases in recent years [such as] Bain, Weatherston and Macdonald, but we cover about a hundred cases a year with cameras in court. To some people the coverage might seem sensational but the cameras are actually showing what is happening in court – events inside a courtroom can be very dramatic.

“Often lawyers... can be very theatrical and dramatic and the camera catches these moments, but I don’t see anything wrong with that. To suggest it somehow interferes in the application of justice is nonsense and possibly an insult to judges, juries and lawyers. I think some lawyers don’t like it because it can, on occasions, brutally expose poor performance.”

But there is one matter upon which Mr Jennings and Mr Temm agree. Both support the concept of live streaming of court cases, similar to live broadcasts of Parliament.

“I think live streaming is a good idea,” says Mr Jennings “We have streamed some cases and it has been highly successful but there are issues and it needs to be done on a delay.”

Live streaming is also favoured by Courts Minister Chester Borrows who says it would increase public scrutiny of the courts. But whether it would curb some of the theatrics currently captured by courtroom cameras is another matter, if Marie Dyhrberg is to be believed. In her only slightly tongue-in-cheek address to the 1996 Criminal Law Congress, she said: “To deny cameras in the courtroom is to deny an actor a wider audience.”

“Let us remember what the common personality traits of trial lawyers are – they have large egos, they enjoy arguing, they are flamboyant, vain, achievement orientated, adrenalin seeking, risk-taking hedonists.

“Give them an audience and then watch them flourish and succeed. Anything that encourages a trial lawyer to do their best is, I suggest, to be promoted.”

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