Open Justice: Assessing Northern Ireland’s Move Toward Broadcasting in Courts

Graeme Littlemore

Northern Ireland is moving forward with changes to allow broadcasting in courts in limited situations. This recent news has received strong support, but not without concern or qualification. This proposal includes the potential to broadcast Court of Appeal rulings, Crown Court sentence remarks and possible exchanges between judges and lawyers, following a comprehensive consultation and pilot scheme.

As it stands, Northern Ireland is the only legal jurisdiction within the United Kingdom that does not allow any recording and broadcasting of courts and tribunals. This proposal warrants a deeper look at its implications and goals for the public. Specifically, this proposal raises pressing human rights questions regarding the key tension between the Article 8 right to respect for private and family life and the Article 10 freedom of expression contained in the Human Rights Act 1998. A brief outline of the UK legislative landscape warrants discussion first.

The Legislative Underpinnings and Landscape

Northern Ireland’s consultation paper on broadcasting in courts neatly compiled the current legislative landscape related to broadcasting in the UK outlined and summarized below. The current landscape contains a mix of self-regulation and stricter statutory provisions.

Northern Ireland

In Northern Ireland, section 29(1)(a) of the Criminal Justice Act (Northern Ireland) 1945 creates an offence related to taking of photographs and other forms of filming and 29(1)(b) prohibits publishing such photography or reproduction. Further, section 9 of the Contempt of Court Act 1981, (subject to making or using sound recordings for transcripts of official proceedings) makes it a contempt of court to use a tape recorder or sound recorder generally.

The UK Supreme Court

Current prohibitions on recording and broadcasting do not apply to the UK Supreme Court. Section 47 of the Constitutional Reform Act 2005 act disapplied section 41 of the Criminal Justice Act 1925 and section 29 of the Criminal Justice Act 1945.

Scotland

Scotland does not have a legislative prohibition on broadcasting in courts equivalent to Criminal Justice Act (Northern Ireland) 1945 and instead relies on its own jurisdiction and self-regulation. A Practice Note delivered by the Lord President, Lord Hope in 1992, mentioned in the consultations took one of the first steps toward allowing broadcasting in Scotland.

England and Wales

Here, section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981 can be disapplied. The Court of Appeal (Recording and Broadcasting) Order 2013 allowed filming of submissions of lawyers and exchanges between lawyers and the court. The Crown Court (Recording and Broadcasting) Order 2020 provided for recording and broadcasting of sentencing remarks at certain levels of judgement from all Crown Courts. One case, Scott (otherwise Morgan) v Scott [1913] AC 417, decided in the House of Lords, provides helpful and early judicial context as to the way courts grappled with open justice.

A Comparative Starting Point: Scott (otherwise Morgan) v Scott [1913] AC 417

The House of Lords decision in Scott (otherwise Morgan) v Scott [1913] AC 417 is a useful guide as to principles of open justice in court settings and was included in the England and Wales consultation paper on broadcasting.

The facts of Scott are not unusual in family court proceedings. Mrs. Scott, the appellant, petitioned against her husband and the respondent, Mr. Scott, for a declaration that their marriage be declared void and obtained a decree of nullity. The appeal concerned Mrs. Scott and her solicitor's conviction of contempt of court for publishing shorthand transcripts of the proceedings to third parties. Consideration was given to the proper jurisdiction to hear nullity proceedings in camera, and the judge’s discretion to exclude the public from the details of these proceedings. The House of Lords found the order to hear in camera was made without jurisdiction, and the order did not prevent subsequent publication of proceedings.

Lord Atkinson at page 463 commented that public court cases are “painful, humiliating, or deterrent both to parties and witnesses” but “this is tolerated and endured because it is felt that in public trials is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, and the best means of winning for its public confidence and respect”.

While current proposals suggest recording in limited circumstances, far from the public trials referred to by Lord Atkinson, these early remarks nonetheless emphasize support for open justice to secure public confidence and a degree of tolerance needed to reap its benefits. However, in the United Kingdom, and Northern Ireland more specifically, balancing exceptions to this broad principle must take on a sensitive, society-specific and tailored legislative character with safeguards to protect not just actors in the justice system, but also the public with extra regard for those most vulnerable and at-risk. Current support from the public through consultations and successful pilot schemes indicates that this is the case.

A Brief Assessment of Northern Ireland’s Department of Justice Consultation Responses

The Northern Ireland Department of Justice’s summary of responses to the consultation solicited approximately 69% of support from respondents. Some respondents included civil society stakeholders who represented broadcasters; victim support organizations and women’s aid federations who provided important perspectives on these proposals.

Comments Agreeing with the Proposal

Comments agreeing with the proposal included, but were not limited to, the need for court proceedings to be shown to promote public confidence and trust in the judiciary, combatting the spread of misinformation, preventing the unintentional editorialization of legal proceedings that would trivialize and sensationalize, and the overall impact on victims and other vulnerable people (see paragraphs 2.3, 2.5, 2.6, and 2.7 of the consultation).

Comments Disagreeing with the Proposal

While broad support was achieved, important concerns and qualifications were registered. These included, but were not limited to, giving platforms to people with extremist views, the potential for online attacks and bullying, the consideration of the solemnity of the court, the sensationalisation by the media, the risk of turning proceedings into entertainment, the recording of victims and defendants and the need for their privacy and protection, particularly in a small jurisdiction like Northern Ireland where they can be identified easier (see paragraphs 2.13, 2.18, 3.3, and 3.15 of the consultation).

Human Rights Considerations: Balancing Interests of Justice

One condition mentioned in paragraph 3.10 of these consultations included the potential inclusion of an “interests of justice” test to determine whether the recording and broadcasting of an individual would be allowed (albeit within existing applicable restrictions and limitations) on a case-by-case basis and without right of appeal. This lack of appeal should be given further consideration, and the Department promised to do so (see paragraphs 3.6 and 5.2).  Reasons for not including a right of appeal included the potential for delays and further complexity, and it was suggested by a respondent that a review of decisions not to make a broadcast order be taken every two years. However, this test may contain an unintended human rights dimension despite a department facilitated human rights assessment that found no Human Rights Act 1998 articles were engaged (see paragraph 6.10 of the consultation).

For example, the balancing act and key tension between a broadcaster’s Article 10 freedom of expression right to know about an individual (in the public interest), and that individual’s Article 8 respect for private and family life (and vice versa) may provide fertile ground to challenge this test, particularly in absence of the right of appeal. This, of course, may be an uncontrollable and unintended consequence of applying this test in practice and should not dissuade the more overarching objectives of this proposal.  

Summing Up and Further Considerations

Regrettably, any potential negative outcomes will be unwelcomed and unintended, but overall, they represent a predictable and natural consequence of ceding more of the Northern Ireland judiciary to the public sphere. Unintended and uncontrollable negative effects of broadcasting in courts will need to be counter-acted and, as Lord Atkinson stipulated in Scott, tolerated to a degree. As Lord Atkinson commented, the benefits that flow from the public, impartial and efficient administration of justice are the best means of securing greater public confidence; and will inevitably outweigh any potential costs of this proposal. It is time for Northern Ireland to take a cautious but ambitious step forward toward a more open judiciary in line with the digital age.