EITHERne evening in June 1994 – my first year as a criminal barrister – I arrived home from court, turned on the news and found myself watching something extraordinary, not only in the annals of crime but in the history of broadcasting.
OJ Simpson was being pursued by the police on a California highway, broadcast live from a television news helicopter. Eventually, 20 police cars joined the chase before Simpson reached his home in suburban Los Angeles, where he was arrested and later charged with two counts of first degree murder.
The high drama of the chase was just the beginning. Every moment of the legal process, including the enthralling jury trial, was captured on camera and broadcast live to the world. This was open justice in its most extreme form; nothing hidden, no broadcast editing or delays. Everyone had an opinion about the case but, in the end, only 12 opinions mattered. It took the jury just four hours to find Simpson not guilty.
The verdict was highly controversial and opinion remains divided to this day, but at least we were all able to watch the evidence unfold for ourselves, without the filter of selectivity. For me, for all the flaws of the US justice system, the televising of the Simpson trial was a huge advance for transparency and public engagement.
By the time of that verdict, I was almost two years into my career as a criminal defense barrister. Almost three decades later, now wearing a silk gown rather than the rough cotton of my junior robes, I still ply my trade in the criminal courts, often in cases making headlines around the world.
I have become increasingly frustrated and angered at the disparity between what happens in court in front of my eyes and what is reported in the media. I frequently watch or read reports of my cases that simply bear no relationship to the evidence presented or the judgments reached. The law and the evidence are mispresented, key details are distorted or omitted altogether; the picture painted by reporters is often simply wrong.
The problem is then compounded by news outlets further distorting the events in court, based on secondhand reporting by journalists who were nowhere near the courtroom. This is journalistic Chinese whispers of the most dangerous and damaging kind, distorting public perception of why a verdict was reached or a particular sentence was passed.
We are at an all-time low in public confidence in the justice system, with almost daily calls for “soft judges” to be sacked or for the law to be changed in response to verdicts and sentences, which are not even properly explained in the medium, let alone widely understood. When the public no longer trusts the courts to deliver justice, one of the vital pillars of a functioning democratic society is undermined. Our politicians, the present government more than most, ride every populist wave towards harsher, more irrational policies.
Boris Johnson came to power in 2019 on a platform of “cracking down” on crime, increasing the length of sentences, criminalizing more behavior than ever before and reducing the discretion of judges in the sentencing process. His government has kept its promises. We do have more people in prison and for longer than ever before. We have also just seen the highest levels of recorded crime in history. These two statistics are not unconnected – remove the opposite.
I have long been of the view that the only way to combat inaccurate reporting of events in court, whether in civil trials such as the recent “Wagatha Christie” libel case or in high-profile criminal litigation, is to open up our courts to the television cameras, once and for all. Finally, with baby steps at first, the courts are moving in that direction.
Last Thursday, Judge Sarah Munro QC made English legal history, when she passed a life sentence on Ben Oliver, a “very damaged man”, for the unlawful killing of his 74-year-old grandfather, early last year. Judge Munro’s clear and cogent sentencing remarks were captured by television cameras, allowed to film proceedings in a crown court in England for the very first time. It was broadcast to the nation on every news bulletin. She explained all of the difficult balancing factors in sentencing a case of this gravity, complexity and sensitivity, most of which never make their way into media reporting of criminal cases.
I challenge anyone who watches Judge Munro’s carefully chosen words to find fault with her judicial reasoning, sensitivity and compassion. In a sense, however, it does not matter whether the viewer agrees with the sentence or not. What matters is that public opinion is built on the truth of what happened in court rather than a partial and misleading media soundbite.
Open justice, of the kind we witnessed to a limited degree at the Old Bailey last week, is the only way we can hope that, when voters go to the ballot box, there is any chance that their views on the parties’ criminal justice policies will be informed by the truth.
For me, this should only be the beginning. Most people do not have the time, money or inclination to travel to a court and sit in the public gallery during the working week, to exercise their right to watch justice in action. Why should they have to? We live in an age when cameras are ubiquitous, filming and recording everything we do and everywhere we go. It is time for every criminal court in the land to be thrown open wide to the public, through their phones, tablets, computers and television sets, so that everyone can finally see how justice is carried out in their name.
Of course, we need to protect vulnerable witnesses and defendants but the courts and the broadcasters can easily cope with that. For everything else, as with the OJ Simpson trial all those years ago, let us give the people the information they need to judge our courts on what really happens, rather than the fiction of most media reporting. Knowledge, in the courts as much as anywhere else, is power. Let the people make up their own minds.
Chris Daw QC is a barrister and author of Justice on Trial
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