Ken Clarke has spoken and so it shall be that, in the not too distant future, judicial sentencing will be televised across England and Wales.
This move has been widely lauded, of course, as a way to enable greater scrutiny of the judicial process, especially following the summer riots and the spate of – what have been widely deemed – excessively disproportionate sentences handed out under the guise of upholding justice. But whether this will improve transparency, and therefore increase accountability, or see the legal system digress to pantomime farce comparable with trashy reality television, is yet to be seen.
While, at present, anyone can enter a courtroom and watch proceedings from the public gallery, it is true that physical proximity and time limitations render this impractical for the majority, hence impinging on transparency (even if, arguably, those with a genuine interest would either make the time or read court reports at their leisure). Though cameras are allowed in state courts across the US, the fact the trial of OJ Simpson in the 1990s became salacious prime-time viewing across the globe – and gave Simpson a springboard to enhance his international profile – is not a good advertisement for the efficacy of this system. There is, therefore, a question mark over whether the perceived benefits of televised public analysis will, in fact, prove constructive, or simply compromise the integrity and dignity of proceedings in a way that would be irreparable.
Indeed, Baroness Kennedy has expressed concern in The Sun that, rather than increasing interest in the judicial process, televising court proceedings will undermine and ‘sensationalise’ the criminal justice system, leading to ‘sound bite law and distortion’ as the most scandalous cases are highly publicised. Inevitably some cases will elicit greater attention than others, becoming cheap commercial fodder for the media savvy. Furthermore, she centralises the very real threat of a potential ‘trickle effect’ as TV companies, pursing greater ratings, will want to see more: ‘Now it will just be judges, but they will then demand witnesses, defendants, the lot.’ This is a legitimate concern, which would see witnesses and victims discouraged from taking legal action owing to the fear of the loss of privacy, and the extra stresses resulting from the knowledge their faces will be on the telly box. It may also tarnish their reliability on the stand due to increased anxiety. Neither eventuality would be conducive to a just result.
The theatre of the courtroom
Lawyers will be increasingly aware of the potential to increase their public profiles, playing to the cameras in the theatre of the courtroom to the detriment of their clients.
The flip side of this is that judges may be subject to vilification if a sentence is inconsistent with the expectations of the majority of viewers. In extreme cases, the media may change the outcome of a trial as it forces forward a distinct public opinion. Specific judges may be selected for especially close media examination to push a particular political agenda, which would destabilise the system. After all, the judiciary itself should neither be put on trial, nor should the process be weakened by the very action taken to enhance public reception.
Arguments in favour of visible openness are clear and logical, even if hackneyed, but there is a possibilty that this change will be superficial only. Also, given the significant cuts made to legal aid, it does seem crass that the government is funding greater study of a process to which many are being denied access. People will be told they are watching justice be done, but still not understand it. They may feel as detached from what they see on screen as they do any other reality programme, although this would have the added bonus of making a mockery of a system that is endowed with the responsibility of maintaining social order but is already afforded less respect than is needed to ensure its healthy existence. Individuals may be further ostracised from the machinations of sentencing as they are consistently fed the most provocative and palatable snippets of a summary, with TV producers editing and freeze framing and the likes to encourage a particular reaction.
Whether this will ultimately improve understanding of the courts, or completely denigrate the integrity of a system that is admired throughout the world, cannot be stated conclusively. But what is certain is that the courtroom will never be the same again.