Wednesday 20 November 2019

Hugh O'Flaherty: Let cameras into courts -- but not when there is a jury

SHOULD we allow TV cameras into our courts? This issue has raised its head again, this time on TV3's 'Tonight With Vincent Browne' programme.

The Constitution is very clear that justice must be administered in public "save in such special and limited cases as may be prescribed by law". These special cases are very few -- such as criminal cases involving indecency or obscenity. But even in such cases, bona fide members of the press are not to be excluded and family-law cases are another exception.

The doors of the courts must always be open, so that members of the public may come and see for themselves that justice is done. The distrust of secret trials is rooted in the dislike of any democratic state for the practices of the Spanish Inquisition, the English Court of Star Chamber and the French monarchy's abuse of the lettre de cachet. The purpose of having public criminal trials is so that the accused is fairly dealt with and not unjustly condemned.

But sometimes a party may not want any publicity. In the 1960s, brewers Beamish and Crawford Ltd were litigants and sought to have the action tried in Dublin, rather than Cork (where the firm was based) on the basis that the evidence that would likely be given would cause them harmful publicity.

In rejecting this request, Chief Justice O Dalaigh was clear: "Publicity, deserved or otherwise, is inseparable from the administration of justice in public. I cannot accept that the fact that the trial will, for one of the parties, attract more undesirable publicity in one venue than in another is a matter properly to be taken into account in determining the venue."

So if it is clear that the public are to be admitted to courts not as a concession but as an entitlement and to take written accounts of what is going on there if they so wish, what is wrong with allowing TV cameras in court?

I think in principle there is no difference. Indeed, I have a memory of some cases where the numbers attending were so large that adjoining courtrooms had to be pressed into service and proceedings were relayed there by an internal camera. But is there any difference between that and allowing a nationwide audience to observe the proceedings on their television sets?

In the trial of Anders Breivik in Oslo for the murder of 77 victims, the only issue was whether he should be found insane, as sought by the prosecution, or sane, as contended by the defence. Much harrowing evidence was relayed on television -- although the court curtailed some of this.

The trial culminated with a finding that he was criminally sane, although with a complete disregard for others. Breivik's reaction was to "apologise" to "militant nationalists" for not having killed more than 77 people.

Here is an example of a democratic state electing to allow in television cameras. It must be stressed, however, that the Norwegian court comprised five judges without a jury. In our criminal justice system -- aside from the Special Court -- criminal trials are held with a judge presiding but with the verdict residing with a jury. So the televising of such trials would give rise to problems.

For example, jurors are asked not to discuss the case they are trying with anyone during any recess and not to look on the internet for information. A televised trial would put further temptation in a juror's path if extracts were played in front of family members. How could they then avoid a discussion?

I see no problem in allowing cameras in court where there are judges only involved, but with jury cases the outstanding requirement that justice is done must prevail over any benefits the enhanced publicity would bring. Even in a non-jury context, extreme delicacy would have to be employed but producers are adept at adjusting their skills to the required circumstances.

Finally, while the Constitution guarantees the public access to the courts, this does not extend to TV cameras. Their access would have to be regulated by the courts to ensure that business is conducted in a seemly and non-disruptive fashion.

Hugh O'Flaherty is a former judge of the Supreme Court

Irish Independent

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