From TV documentary to feature film, courtroom drama has been flavour of the season. But how effective is the camera lens in promoting transparency and public legal education?
The Lord Chief Justice has recently added his voice to the many calls for more open justice, urging his fellow judges ‘to lift the veil a little and explain what we do’, and suggesting that better use could be made of cameras in court. Speaking on the topic of judicial independence at the Commonwealth Magistrates’ and Judges’ Association annual conference in Brisbane, Australia on 10 September 2018, Lord Burnett of Maldon urged his fellow judges to engage more with the media, saying:
‘In the United Kingdom we are by no means in the vanguard of broadcasting but almost all Supreme Court hearings are broadcast. Many of those in the Court of Appeal can be broadcast. I look forward to a measured expansion of livestreaming and broadcasting of proceedings more widely.’
The live streaming from the UK Supreme Court has certainly added a big dimension to that court’s accessibility to the people, with some of its hearings attracting huge publicity and public interest. All the footage is recorded and remains accessible via the court’s website, until the end of the following year, when it is transferred to the National Archives. According to its latest Report and Accounts, over the last year more than 137,800 people watched live sessions and 75,000 people watched on demand via the court’s website.
The Supreme Court is not subject to the same legislation as that which until recently forbade any photography in other courts. But in 2013 an amendment made it possible for filming to take place in the Court of Appeal, Criminal Division. Although launched with something of a fanfare back in 2013, this has not exactly opened the floodgates of footage to public view.
This summer, however, the viewing public were vouchsafed a rare glimpse by way of a carefully edited documentary on ITV, Inside the Court of Appeal. Whilst it gave some idea of what anyone could have seen if they had turned up and sat in the public gallery, the courtroom scenes were actually quite few and far between. Most of the programme was devoted to what the voiceover described as ‘the human stories behind the courtroom drama.’
Thus we went ‘behind the scenes’ to meet the victims or their families, on one side, and the hopeful appellant/defendants on the other, and heard their various stories. We also heard the barristers reflect a little on their role, as they shouldered their gowns and donned their wigs before making their ‘stage entrance’.
There wasn’t much drama in the actual courtroom. We saw the Lord Chief Justice (the previous one, Lord Thomas of Cwmgiedd) sitting with Hallett and Gross LJJ in a case in which a teenage gang member was applying for permission to appeal against his conviction, on the basis of joint criminal enterprise, for a desperately stupid and pointless gang killing in a launderette. Counsel for the applicant tried to argue that his client had not had the requisite intention under the revised rule on joint enterprise laid down by the Supreme Court in R v Jogee  UKSC 8;  AC 387.
Two other cases involved fatal motor accidents. In one, the driver sought to argue that he had been having an epileptic fit at the time and couldn’t be accountable for his actions; in the other, the Attorney General had referred what the victims’ family considered an unduly lenient sentence for review by the court. All these appeals were dismissed.
It’s hard to imagine what a non-lawyer would get out of this. There was little explanation of the legal issues or of the court’s final decisions, and a written judgment handed down somewhat perfunctorily drew the following comment from the voiceover: ‘After months of waiting and years of fighting on both sides, the verdict is delivered in a matter of seconds.’
Aside from understanding their judgments, it might have been nice to hear the judges speak about their role and watch them put on their robes and wigs, too. But there was no access to the judiciary. Studiously ignoring the cameras, they remained somewhat remote.
A novel approach
Access to one judge was at least more than ample in what must be considered the legal film of the year, The Children Act. This was based on the novel of that name by Ian McEwan and starred Emma Thompson as the High Court judge, Fiona Maye, caught up in her own domestic and emotional crisis as she decides life-and-death cases in the Family Division.
One of her cases involves an ardent but confused teenage boy, convincingly played by Ffion Whitehead, whose religious objection to a life-saving blood transfusion she may, or may not, overrule (pursuant to an application by the hospital authorities). Strong supporting roles were played by the always watchable Stanley Tucci as Maye’s frustrated husband and (for me the best performance of all) Jason Watkins as her diligent and long-suffering clerk.
The film improved on the novel in a number of ways. While its depiction of the life of a judge of the Family Division was intellectually satisfying, the novel seemed emotionally somewhat unengaged. The dramatic story in which Fiona Maye becomes slightly obsessed about the boy in the case after visiting him in hospital seemed more of a device to justify discussing (at some length) how she writes her judgments. It works much better in the film, partly because the actors bring out the latent drama in the text.
But there is something rather dated about certain aspects of the film. While supposedly set in the present day, there are aspects of the way the litigation is conducted that seem decidedly rooted in the past, as Lucy Reed has observed in her roundup of legal reviews of the film on her Pink Tape blog. Although, she says:
‘it was by far the most accurate and true representation I've seen of family justice … what I thought was (slightly) inaccurate … was the absence of a representative for the child (which I didn't spot myself till someone pointed it out) and the barracking cross examination of the father which was spectacularly unilluminating and undignified. But who knows, perhaps in  when the real case that the story is based on was heard, this was typical (although in the film it is set in 2016 so it jars somewhat with modern practice).’
That real case on which the story was based in Re E (A Minor) (Wardship: Medical treatment)  2 FCR 219, a decision of Ward J, as he then was. Sir Alan Ward was a legal adviser to the film and provided much of the research for the novel, as was revealed at the time of publication. This ensures that the fictitious representation of the world of family law is at least authentic, but perhaps not quite as up to date as if a modern practitioner or judge had been consulted.
Despite its occasional faults The Children Act does provide, as Lucy Reed attests, an accurate representation of family justice, though whether that promotes better public understanding than the continual media narrative of ‘secret courts’ and sinister proceedings ‘behind closed doors’ is a moot point. At any rate, it showed a bit more about the workings of the law, in this area, than the ITV documentary did in the area of criminal law, and a lot more about the way judges approach their cases, though few of them become quite so personally involved. Something for the Lord Chief Justice to think about perhaps, when urging the judiciary to engage more with the media.
Paul Magrath is one of the authors of Transparency in the Family Courts: Publicity and Privacy in Practice.