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Published: 01:17, August 11, 2022 | Updated: 14:48, August 11, 2022
Open Justice: Time to televise the courts
By Grenville Cross
Published:01:17, August 11, 2022 Updated:14:48, August 11, 2022 By Grenville Cross

When legal systems are transparent, it promotes public confidence. If people understand the basis of particular judgments, it helps to dispel misunderstandings. Although judicial proceedings are invariably mysterious, the Judiciary has done much in recent times to enhance public understanding.

In 2019, the then-chief justice, Geoffrey Ma Tao-li, said that “to earn the community’s confidence in the legal system, the work of the courts has to be transparent”, and these were not mere words. In 2020, for example, it was announced that selected decisions of the District Court and Magistrates’ Courts would, so far as possible, be prepared and uploaded to the Judiciary’s website. This apart, the judgments and reasons for verdicts of the higher courts are now accessible through its website, up to and including those of the Hong Kong Court of Final Appeal.

As people sometimes complain about the way in which trials are conducted, particularly if they are protest-related, the Judiciary has gone the extra mile to address them. The way in which complaints are handled has been radically overhauled, and a high-level advisory committee has been formed, together with new investigative mechanisms.

Although the bulk of complaints are found to be unmeritorious, some are upheld, and the details are published, together with any remedial action. After, for example, a magistrate detained a teacher in a psychiatric center for six days for the preparation of reports on his mental state prior to sentencing, a three-judge investigatory panel announced in July that she had made a “serious error”. In consequence, she was advised to reflect on her conduct and avoid similar mistakes in future.

In accordance, moreover, with the principle of open justice, all court hearings, with some exceptions, such as those involving children, are open to the public. However, most people are unable to attend court hearings due to work and other commitments, and their understanding of how courts operate derives from television dramas. Their knowledge, moreover, of particular judgments is often based on media reports, which may be misleading or lacking in detail. As cameras are not allowed into trial or appellate courts, judicial proceedings remain a mystery to many, and modernization is required, as elsewhere in the common law world.

On July 28, for example, in London’s Central Criminal Court (“Old Bailey”), Judge Sarah Munro QC became the first judge in English history to sentence a defendant live on television. At the outset, the court clerk announced that Sky News had been granted permission to film her sentencing remarks, adding that “filming will not impact the delivery of justice”. When the judge spoke, only her top half was visible, and the cameras did not show the defendant, the lawyers or the court officials. Millions of viewers watched as she sentenced Ben Oliver, who was convicted of the “ferocious” killing of his grandfather, David Oliver, to life imprisonment, of which he will have to serve at least 10 years and eight months’ imprisonment before he is considered for release.

This was obviously a criminal justice breakthrough, and it has been widely welcomed. The justice secretary, Dominic Raab, said that opening the courts would “improve transparency and reinforce confidence in the justice system”, with the public being “able to see justice handed down, helping them better understand the complex decisions judges take”.

It was possible for Judge Munro’s judgment to be televised because of the Crown Court (Recording and Broadcasting) Order, which came into effect in 2020, and enables the sentencing remarks of senior judges to be televised. Broadcasters can now apply to judges for permission to film their sentencing remarks, and, apart from Sky News, Crown Court broadcasting contracts have been awarded to the BBC, ITN and the PA news agency. When the change was made, the lord chief justice, Lord Burnett, said this would give “an extra dimension to allow people to see the sentences judges pass on convicted criminals and to understand why they interpret the law and guidelines the way they do in each case”, and this is also acknowledged elsewhere.

In New Zealand, for example, in 2020, when Judge Cameron Mander sentenced Brenton Tarrant, who murdered 51 Muslims as they prayed at mosques, his sentencing remarks were televised, and they vividly brought home to viewers the enormity of the crimes.

Some places take transparency far further, and allow the trials themselves to be broadcast. In Norway, for example, the trial of the mass murderer Anders Behring Breivik was televised, and viewers gained an insight into one of the country’s worst-ever crimes. In the United States, the murder trial of NFL football legend OJ Simpson was broadcast live, and this provided the public with new perspectives on how criminal justice operates. In South Africa, at the murder trial of the Olympic sprinter Oscar Pistorius, the judge permitted broadcasting in principle, but confined it to the opening and closing addresses of the lawyers, the evidence of the prosecution witnesses, the judgment, and the sentencing (Pistorius’ testimony was not televised, although it could be heard.)

There is no reason to fear change, and none of the jurisdictions that have allowed the cameras into their courtrooms have regretted their decisions. Indeed, the Legislative Council’s proceedings have been televised for many years, and ... people now better understand legislative processes, and there is no reason to suppose that the televising of criminal trials and appeals will not also be instructive

Although the televising of Judge Munro’s judgment was an English first, the cameras are already an established feature of the UK’s appellate reporting. After the UK’s Supreme Court was created in 2009, it arranged for its proceedings, including legal arguments, to be broadcast on television, and its hearings can now be viewed globally through the livestream. Quite clearly, this is open justice in action at its best, and, in 2013, the televising of proceedings was extended to the Court of Appeal of England and Wales.

There have, however, to be limits, and the broadcasting of trials cannot be allowed to jeopardize the right to anonymity of, for example, victims of sexual abuse, unless they choose to waive it. Restrictions on the filming of vulnerable people, particularly children, are essential. Jurors, moreover, may not want to have their faces televised, as, privacy concerns apart, issues of personal safety can also arise.

It is clear, therefore, that, in terms of transparency, Hong Kong’s criminal justice system has, for no satisfactory reason, fallen behind other major jurisdictions. After all, Britain’s Lord Neuberger, a non-permanent judge of the Hong Kong Court of Final Appeal, has emphasized that it is not enough for the courts to be open as a matter of general principle, they must also be open as a reality. As a former president of the UK Supreme Court, he knows how technology can promote transparency, and the broadcast media undoubtedly has an important part to play in opening up the courts.

If, however, Hong Kong is to go down this path, open justice must be sensitively pursued. In the process of making criminal proceedings more comprehensible, the twin evils of sensationalism and trivialization must be avoided, and there can be no room for tolerance of grandstanding. The rights and interests of victims, witnesses and jurors require protection, and people who do not wish to be televised, as in the Oscar Pistorius trial, should have their wishes respected, although this can also be achieved by obscuring their features.

There is no reason to fear change, and none of the jurisdictions that have allowed the cameras into their courtrooms have regretted their decisions. Indeed, the Legislative Council’s proceedings have been televised for many years, and the fears that opponents originally expressed have not materialized. Instead, people now better understand legislative processes, and there is no reason to suppose that the televising of criminal trials and appeals will not also be instructive.

As a first step, therefore, hearings in the Hong Kong Court of Final Appeal should, on a pilot basis, be televised. As Lord (Nicholas) Phillips, a non-permanent judge, would, as its inaugural president, have overseen the televising of the UK Supreme Court in 2009, he is well placed to advise the Judiciary on the televising of Hong Kong’s appeal courts. If, as expected, the pilot is successful, broadcasting can be extended in phases to the trial courts, starting with the Court of First Instance, albeit confined initially to the judge’s sentencing remarks.

As the Judiciary has already demonstrated its commitment to open justice, the continuing demystification of judicial proceedings is a logical progression. The televising of proceedings has proved its worth elsewhere, and it can also be successful in Hong Kong. Apart from enabling the public to appreciate the work of its Judiciary, it will also educate and enlighten, and this can only be beneficial.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily. 

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