Crown Court (Recording and Broadcasting) Order 2020 — House of Lords, 2020-06-08
Topic: Law and Crime
Richard Keen (Conservative, Centre-right): My Lords, I thank noble Lords for their contributions to this debate. The noble and learned Lord, Lord Morris of Aberavon, was quite prescient when he described these moves as a "toe in the water". That point was supported, or commented on, by a number of noble Lords. We are proceeding here very carefully. On that point, I will address some of the observations of the noble Lord, Lord Thomas of Gresford. He talked about there having been no consultation since 2005, and the need for this. With great respect—this point was made by the noble and learned Lord, Lord Thomas of Cwmgiedd —we have been informed in the development of these orders by the work that has been ongoing since 2013, with the introduction of the means of live streaming into the Court of Appeal, and 2018, with the pilot. It is not as if we have approached this cold. Regarding the matter of costs which the noble Lord raised, these will be borne by the broadcaster who seeks to broadcast the relevant sentencing provisions under the Crown Court order. We have already established a live stream of non-family business in the Court of Appeal on a YouTube channel. There will be a process by which broadcasters can seek permission to broadcast from that My noble and learned friend Lord Garnier raised a number of points, with particular reference to the provisions in the Crown Court order. There will be a list of permitted broadcasters, approved by the Lord Chancellor. The BBC, ITV, Sky and the Press Association will receive permission. It could be withdrawn at some point in the future, but I do not understand there to be any time limit to it. Thereafter, it will be for the judge sitting in any one case to determine whether he will permit broadcasting of his sentencing remarks. He will not do that on behalf of any other judge or court. His determination will not be liable to appeal; it will be a final determination. Making an application will be an administrative process that the broadcaster will carry through by way of a written application, for which there is no charge. There will then be a decision on a case-by-case basis The noble and learned Lord, Lord Thomas of Cwmgiedd, outlined that it is already the practice for written sentencing guidelines to be available, and they have greatly assisted in the sentencing work of the criminal courts. He made three observations: that this is a complex area, and I agree; that there has been consultation, and, again, I agree; and that a number of safeguards have been developed in the light of our experience, particularly since 2013, to guide us with respect to both the Crown Court and family cases in the Court of Appeal The noble Lord, Lord Reid, and a number of other noble Lords raised the question of potential adverse consequences for judges from this process. That has been considered, and the view of both the Government and the senior judiciary is that there will not be any significant increase in such consequences. Of course, judges can already come in for criticism of their sentencing decisions. They are well able to deal with that and they have broad shoulders, but we do not consider that there will be any significant adverse effects as a result of this process My noble friend Lady Anelay of St Johns was one of the speakers who felt that the reach of the orders was perhaps too limited. We have developed them in the light of experience, particularly since 2013. We are moving carefully in this area and at present we do not have any intention to extend these provisions beyond the current orders. The decision with regard to the Crown Court order that permission should be available only from a High Court or senior circuit judge was arrived at after consultation and discussion with the senior judiciary, who felt that this was the appropriate way forward at this time The noble Lord, Lord Harris of Haringey, encouraged the idea of providing more than just the sentencing guidelines when broadcasting and mentioned the need for immediate attention to what is going on. Where a broadcaster seeks to broadcast in the Crown Court, I cannot say that that will be done live. There might be exceptional cases where it occurs, but I suspect that they will be unusual. One cannot anticipate the speed with which a recording of such a sentencing event would be broadcast, although one would have thought that it would have limited public impact if delayed for long My noble friend Lord Wei raised a number of points, the first being the risk of grandstanding by judges. I cannot imagine that any such thing could ever happen, and I do not believe that we need to guard against that in the present context. He also raised the question of security. There is a 60-second delay in the live stream so that it can be shut down if there is an extraordinary or outrageous event in the court. That has never been required but it has been tested on a number of occasions and has been found to work. The noble Baroness, Lady Jones, asked how we can improve public awareness. I agree that that is important, but I suggest that these are small steps in the right direction. She also asked how one regulates against misuse of the material. Of course, the contempt-of-court process is there for that purpose, and we can police the use of this material in just the same way as when it is recorded in the written press The noble Baroness, Lady Kennedy, raised the question of guidance on the behaviour of judges. There are sentencing guidelines that the judiciary is obliged to follow when applying these matters. Over and above those, there have from time to time been cases—they were mentioned during the debate—where the Lord Chief Justice and the Court of Appeal have indicated how these matters should be approached by the judiciary My noble friend Lord Bourne raised a number of questions, and I shall touch upon them briefly. I am not aware of any consultation with the Department for Education, although I note that there may be a point to be considered there. As regards costs, they are essentially minimal because the broadcaster will provide the cameraman and the camera, and there will be only a single camera for this purpose. As to who will take up the rights to broadcast, I think I mentioned who the permitted parties are going to be. My noble friend also mentioned security, which I hope I have touched upon, and the need for guidelines for judges. There are sentencing guidelines. I emphasise that the decision of the trial judge to allow or not to allow broadcasting will not be appealable My noble friend raised two points on the extension of Court of Appeal broadcasting to family cases. Parties may object, but that objection will be a consideration, not a determination of any application. He raised the question of whether litigants might be put off by the prospect of broadcasting. That is something that we have considered and we do not consider that that would be a material issue. Of course, any litigant’s case that would go to the Court of Appeal would be heard in public, and we do not believe that the element of broadcasting that is being extended here will give rise to any real difficulty The noble Lord, Lord Foulkes of Cumnock, pointed to the experience in Scotland, which has been instructive. He asked whether we would consider further broadcast options. I have to emphasise that that is not our present intention. I note that the noble Lord, Lord Marks, would like to see us go much further so far as remote hearings are concerned. That is not something that we intend to pursue at the moment I will take up one or two further points about vulnerable persons. This is clearly a material consideration. Witnesses’ and victims’ concerns have to be taken into account in approaching this matter, and we have sought to ensure that there are appropriate safeguards in place for the fairly limited steps we are taking in these two orders I hope that that largely covers the points that were raised by noble Lords and noble and learned Lords in the debate. I hope noble Lords will agree that these instruments are an important, necessary and, I would say, sensible and proportionate next step in ensuring that our courts are open and transparent. I observe that we are learning from the Covid experience of carrying on court processes remotely while ensuring that there is public access to those processes. We will continue to learn from the steps that are being taken. In the circumstances, I commend these draft instruments to the House.