The chapter will highlight some of the more recent developments in relation to the TCB literature and developments. It will also indicate that there is still little engagement with legal-empirical distraction-effects research. This applied equally to the US, UK, Ireland and elsewhere. It also applies to the recent development of iTCB. Notwithstanding, there has been a recent call for TCB in Ireland.1 This emphasises the necessity of assessing the prior evidence and considering normative developments, in particular that which will enhance the reliable evidence from TCB effects-research.
Recent Developments in US
The US Supreme Court effects-research concerns are still ignored. Significant ongoing research is required. It is insightful to look at what else is happening at the moment in the US. It will, therefore, assist in emphasising the importance of addressing the US Supreme Court research concerns given that there is currently no large research body of a legal-empirical research nature sufficient to address the concerns or establish positive and negative effects.
In addition, as has been referred to above, the US Supreme Court has recently been called upon to deal with a courtroom broadcasting case. The court in Hollingsworth2 effectively prevented the form of TCB being proposed in advance. US Supreme Court comments also referred to the lack of sufficient legal-empirical research. The US Supreme Court challenge remains, as does the concerns.
It is interesting that the Recording Industry Association of America (RIAA) objected to TCB internet broadcasting of one of its cases via iTCB, fearing that the footage would be manipulated and edited by third parties after broadcast.3 This concern can also arise with TCB via television. It would be useful to consider recording objection issues in the Federal and other pilots.
Federal Court Location Issues
1 M Foley, ‘Oscar Pistorius Trial Signals It’s Time to Let Cameras into Irish Courtrooms’
Irish Times (Dublin, 19 May 2014).
2 Hollingsworth v Perry 558 US (2010) <
www.supremecourt.gov/opinions/09pdf/09A648.pdf > accessed 19 January 2014.
3 ‘RIAA Fears “Manipulation” of Courtroom Web Broadcasting’ (Privacy Digest 21 January
Another issue generally ignored in the research to date is location. Generally, the studies do not record where the TCB camera is located in the courtroom, nor where the respective courtroom participants are located. In assessing and comparing effects studies, we need to know exactly where cameras and participants are located. If the camera is at the back of the courtroom, then the lawyers are unlikely to be visually distracted by it, whereas the judge might be. In considering distraction-effects on each respective courtroom participant in a given case, we need to know where they are located and where the camera is located. This allows us to compare one study with another study. Generally, such comparison is not possible with the limited research so far. The location issues need to be incorporated into the data collection in the proposed Federal study and other studies in future.
UK
It is useful to consider the introduction of the limited form of TCB in the UK. This is a new development. However, there is no significant distraction-effects research in the UK. The UK TCB discussion has not considered to the US Supreme Court effects-research concerns. It previously only occurring in limited once off instances in the UK. There was and is no regularly permitted TCB, generally in Scotland. Neither is there any extended pilot study with TCB. The general rule remains that TCB is not permitted. This is contained in section 41 of the England and Wales Criminal Justice Act. Given the general prohibition and debate on the issue,4 the UK Supreme Court TCB development was arguably surprising. Until the introduction of TCB in the new UK Supreme Court, it was not at all clear that TCB would be introduced at all. It was equally unclear what form any such broadcasting might take. One of the more surprising suggestions was to try and broadcast UK cases in the US before introducing UK TCB footage to UK audiences.5 On foot of the new UK Supreme Court TCB, there are calls by Sky TV and others to expand TCB in the UK.6 The UK Supreme Court website also links to the Sky News website which makes available live iTCB cases from the UK Supreme Court.7
4 For example, ‘Television on Trial’ Economist (19 December 1998); J Pritchard, ‘Should
Cameras be Allowed in the Courtroom?’ Legal Business (January–February, 1992) 3; J Pritchard, ‘Televising the Courts: Some Second Thoughts’ Legal Business (May 1995) 11.
5 See R Verkaik, ‘Cameras Cross the Atlantic: The USA’s Trial Broadcasters Are Making A
Pitch to Televise UK Hearings’ (17 May 1995) Gazette 14, referring to a Tru TV (then Court TV) proposal.
6 A Laughlin, ‘Sky News Calls for Courtroom TV Cameras’ (6 December 2010) Digital Spy
accessed 18 January 2010.
7 See < http://www.supremecourt.gov.uk/ >, and < http://news.sky.com/info/supreme-court >
The UK Legal Backdrop: The legal background is the Criminal Justice Act 1925.8 It prohibits TCB. Section 41 Criminal Justice Act 1925 prohibits the taking of photographs in or around the court as well as the publishing of such photographs.9 This is interpreted as including cinematic and television filming.10 This is still the current legal position11 in the UK, notwithstanding the separate position as regards the new UK Supreme Court, which is now specifically exempted.
Section 41 is headed ‘Prohibition on taking photographs, etc, in court.’ It states that no person shall,
‘take or attempt to take in any court any photograph or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal.’
Section 20 of the Criminal Justice (Northern Ireland) Act 1945 also applies similar restriction, in Northern Ireland in relation to prohibiting photography and sketching.12 Section 9 of the Contempt of Court Act 1981 refers to ‘Use of tape recorders.’ It states that it is a contempt of court ‘to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court.’
UK Supreme Court 2009: The then Lord Chancellor, Lord Falconer, when introducing
the UK consultation states that ‘[c]ameras in the courtroom would be a big step. We have to make sure that any such step would benefit justice, not burden it.’13 Very detailed literature reviews of the courtroom broadcasting literature and comparative literature is required. In addition, it is critical that legal-empirical research is properly planned and undertaken. This includes baseline research and TCB eye-tracking research. It is unfortunate that legislatures and the judiciary did not avail of the opportunity to undertake
8 See S Prince in relation to the historical context of the ban contained in section 41 of the
Criminal Justice Act 1925 England and Wales, S Prince, ‘Is Court TV A Favourable Proposition: A Normative and Comparative Analysis of the Transmission of Courtroom Proceedings on Television?’ (PhD thesis, University of Exeter 2003) 85 ff.
9 Department of Constitutional Affairs [UK] Broadcasting Courts, Consultation Paper, CP
28/04 (November 2004) 13.
10 ibid, referring to Re Barber v Lloyds Underwriters [1987] 1 QB 103, 105; and R v
Loveridge, Lee and Loveridge [2001] 2 Cr App Rep 29, CA.
11 M Dockray raises the issue of whether the state and judiciary bound by the Section 41
restrictions. See M Dockray, ‘Cameras at the Door of the Court’ (1990) 20 New Law Journal 548.
12 Department of Constitutional Affairs [UK] Broadcasting Courts, Consultation Paper (CP
28/04 November 2004) 13.
and arrange for ongoing legal-empirical distraction research and baseline research once a decision was made to introduce UK TCB with the new UK Supreme Court. However, the debate in relation whether to expand TCB in the UK needs to consider the forms and effects of such broadcasting. It also needs to make transparent proposals in relation to what legal-empirical research is being proposed as part of such proposed studies and pilots.
It is noted that the Caplan report recommended limited TCB with strict rules of coverage, and excluding certain types of proceeding and courtroom participants.14 The Bar Council stressed it was recommending an experimental period only.15 A Law Society committee chairman feels that an study may be the ‘best test.’16 However, any study and test must be based on proper normative research and research data gathering methodologies. The research opportunities today are significantly better than previously. The research concerns remain - even in the UK. It is interesting that Henry Hodge, a Law Society member, feels that TCB may well cause changes in how cases are conducted.17 It is, important, therefore to address the research issues at the same time as making any proposal to permit TCB. This aspect of the debate has been wholly missed.
Sentencing Hearing 2012: A sentencing hearing was shown on television when Lord
Bracadale delivered on 19 April 2012. One commentator notes that the judge’s eye did ‘flicker’ towards the camera twice.18 The defendant was not allowed to be filmed. However, this occurred in Edinburgh and was therefore outside of the jurisdiction of England and Wales. Critically, there does not appear to be relevant legal-empirical baseline or effects research.
Crime and Courts Act 2013: The new Crime and Courts Act 2013 has been passed in the
UK (England and Wales). This expands the potential for forms of TCB in the UK. Section 31 provides as follows,
Making, and use, of recordings of Supreme Court proceedings
14 ‘Bar Paves Way for TV Courts’ (1990) Law Society Gazette 87. 15 ibid.
16 Referring to H Hodge, Chairman of the Law Society Council Courts and Legal service
Committee, see ibid.
17 ibid.
18 S Levinson, ‘Cameras In Court? Careful, Minister - The Law Thing We Want Is A Ratings
War Over A Murder Trial’ MailOnline (20 April 2012) accessed 23 June 2012; also video ‘Cameras In Court: David Gilroy Sentenced in UK’s First Televised High Court Case’ (YouTube) < www.youtube.com/watch?v=RVtiu6diu0 > accessed 23 June 2012.
(1) Section 9 of the Contempt of Court Act 1981 (recording of court proceedings) is amended as follows.
(2) After subsection (1) insert—
“(1A)In the case of a recording of Supreme Court proceedings, subsection (1)(b) does not apply to its publication or disposal with the leave of the Court.”
(3) In subsection (2) (leave under subsection (1)(a): grant, refusal, conditions, withdrawal and amendment)—
(a) after “paragraph (a) of subsection (1)” insert “, or under subsection (1A),”, (b) for “if granted may” substitute “if granted—
(a) may, in the case of leave under subsection (1)(a),”, and (c) after “leave; and” insert—
“(b) may, in the case of leave under subsection (1A), be granted subject to such conditions as the Supreme Court thinks proper with respect to publication or disposal of any recording to which the leave relates; and”.
(4) In subsection (1) (activities which are contempt of court) after paragraph (c) insert— “(d) to publish or dispose of any recording in contravention of any
conditions of leave granted under subsection (1A).”
Section 32 provides as follows,
Enabling the making, and use, of films and other recordings of proceedings
(1) The Lord Chancellor may, by order made with the concurrence of the Lord Chief Justice, provide that a section mentioned in subsection (2) or any provision of either of those sections—
(a) does not apply in relation to the making of a recording or the making of a prescribed recording;
(b) does not apply in relation to the making of a recording, or the making of a prescribed recording, if prescribed conditions are met, including conditions as to a court or tribunal or any other person being satisfied as to anything or agreeing;
(c) does not apply in relation to prescribed use of a prescribed recording. (2) Those sections are—
(a) section 41 of the Criminal Justice Act 1925 (no photography or drawing in court of persons involved in proceedings, and no publication of contravening images); (b) section 9 of the Contempt of Court Act 1981 (no sound recording in court without
permission, and no public playing of recordings).
(3) In the case of any particular proceedings of a court or tribunal, the court or tribunal may in the interests of justice or in order that a person is not unduly prejudiced— (a) direct that a provision disapplied in relation to the proceedings by an order under
subsection (1) is, despite the order, to apply in relation to the proceedings, or (b) direct that a provision disapplied in relation to the proceedings by an order under
subsection (1) is, despite the order, disapplied in relation to the proceedings only if conditions specified in the direction are met.
(4) No appeal may be made against— (a) a direction given under subsection (3), or
(b) a decision not to give a direction under that subsection. (5) In this section—
“recording” means a visual or sound recording on any medium, including (in particular)—
(a) films and other video-recordings, with or without sound, (b) other photographs, and
(c) sketches and portraits;
“prescribed” means prescribed by an order under subsection (1).
(6) The preceding provisions of this section do not apply in relation to Supreme Court proceedings.
(7) In section 41 of the Criminal Justice Act 1925 after subsection (1) insert—
“(1A) See section 32 of the Crime and Courts Act 2013 for power to provide for exceptions.”
(8) In section 9 of the Contempt of Court Act 1981 after subsection (4) insert—
“(5) See section 32 of the Crime and Courts Act 2013 for power to provide for further exceptions.”
Section 33 provides as follows,
Abolition of scandalising the judiciary as form of contempt of court
(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.
(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.
This is significant as being the first major change since the Criminal Justice Act 1925.
iTCB Developments
One of the most interesting developments relates to the advent of internet TCB, or iTCB. This is interesting for a number of reasons. One is that it may differ with television TCB, whereby TCB is push broadcast and iTCB involves audience pull or finding in order to assess the courtroom footage. Potentially, iTCB holds more potential to be educational than TCB. Separately, the design and control of iTCB footage is frequently undertaken by the court or court service, not a television station. Again, this holds potential for more considered, less varies on an individual judicial decision making bases, and less television entertainment focused of course this needs to be assessed by research comprising TCB produced by courts/court service versus broadcaster TCB.
UK iTCB: The UK Supreme Court was established in October 2009. The first broadcast was meant to be SkyTV on 16 May 2011, apparently using the court’s own footage. Footage is now streamed online on a website.19 The UK Supreme Court website links to the Sky News website which makes available live iTCB cases.20 There is also a UK parliamentary cable channel.21 S Prince also notes how television and online capacity to broadcast parliamentary and courtroom footage is ever increasing.22 The Shipman Inquiry also has a website in relation its subject matter containing transcripts of witnesses.23 More recently the Leveson Inquiry relating to phone hacking and press practices has broadcast most of its proceedings and witness testimony live on its website.24
iTCB: US Webcasting Survey: RL Brown carried out a review of iTCB in the US and found that twenty one US State Supreme Courts were engaged in offering webcasting.25 Also, the National Television Digital News Association’s26Cameras in theCourt: A State
by State Guide (an annual survey) indicates that a number the local state Supreme Courts
permit webcasting of iTCB. While it is not clear in all instances if the iTCB is organised by the local Supreme Court and webcast via its own website, or whether third party broadcasters are involved, it appears that oral Supreme Court proceedings are broadcast online by 16 local Supreme Courts.27 One local Supreme Court appears to permit iTCB of selected cases.28 Four local Supreme Courts appear to permit audio only webcasts.29 The Court of Appeal permits iTCB in three instances.30 Some of the other references are unclear.31
19 J Harris, ‘Court on Film: A Nice Idea, But Not For All’ The Lawyer (23 May 2011) 6. 20 See < http://www.supremecourt.gov.uk/ > and < http://news.sky.com/info/supreme-court >
accessed 19 January 2014.
21 BBC Parliament Channel, referred to in S Prince, above 96. 22 ibid 96.
23 See < www.the-shipman-inquiry.org.uk >, referred to in S Prince, above 420. 24 See < www.levesoninquiry.org.uk > accessed 19 January 2014.
25 RL Brown, ‘Just a Matter of Time? Video Cameras at the United States Supreme Court and
the State Supreme Courts’ (2007) 9 Journal of Appelate Practice and Process 1, 2.
26 (NTDNA) <
http://rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated#.U3kgqfld WSo > accessed 18 May 2014.
27 ibid, namely, Arizona, Florida, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Minnesota, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Texas, West Virginia.
28 ibid, namely, California.
29 ibid, namely Delaware, Kansas, Utah and Vermont. 30 ibid, Maryland, Mississipi and New York.
31 For example, the study indicates that the District of Columbia Court of Appeals ‘recordings
available upon request’ but it is not specified if it is audio or TV footage; the section on Massachusetts has a webcasting heading, but does not say that it occurs or is permissible;
Overall, however, the issue of iTCB has been considerably less considered and less researched than TCB generally. While there is a growing body of commentary and literature,32 the issue of effects - including distraction-effects - does not appear to have any legal-empirical research as yet.
It should not be assumed that just because judges are trained and experienced, they cannot be distracted. Indeed, the author’s topographical and eye-tracking proof-of-concept demonstration in court shows that judges are statistically the courtroom participant with most opportunity to be distracted.
In the US it appears that most of the State Supreme Court webcasting is undertaken in- house by or on behalf of the court service.33 This contrasts with TCB where most frequently the broadcasters themselves are responsible for the footage. Indeed, the broadcasters will own the copyright in the courtroom footage if they film it. Does that mean that courtroom footage becomes inaccessible for archival, historical and public use purposes later on? This does not appear to be considered in the literature. This could become a condition of such broadcaster TCB. The cost of funding iTCB in Florida is reported as $300,000 in year one and $135,000 annually.34 TCB cost is also a policy factor. US States Supreme Court broadcasting does not occur in all states, varies between the states, including the number of cameras, the cost and the location ‘configuration’ of the cameras.35
iTCB-Courting Publicity: RC Lee in the Stanford Law Review identifies the troubling temptation for lawyers to blog and post comments online about cases that they have