Broadcasting of Courts

Scotland

There is no legislative prohibition of the broadcasting of courts equivalent to section 41 of the Criminal Justice Act 1925 (“the 1925 Act”) or section 29 of the 1945 Act. Instead, Scottish courts rely on their inherent jurisdiction to allow and regulate broadcasting. Section 9 of the 1981 Act, however, does apply in Scotland.

Historically the use of photographic and television cameras within Scottish courts and their precincts was not allowed. However, that position changed in 1992 when the then Lord President considered that filming might be allowed in certain circumstances. He issued the Television in Courts Directions (“the 1992 Directions”), which allowed television companies to request to film proceedings in the Supreme Courts – that is the Court of Session, which hears civil cases, and the High Court of Justiciary, which hears criminal cases – for the purpose of showing educational or documentary programmes at a later date. However, filming was only allowed if consent was given by all the parties involved in the proceedings and the presiding judge had to approve the final product before it was televised. In 2002, the then Lord President gave permission for the BBC to televise the appeal proceedings against Abdelbaset al-Megrahi, who was convicted the previous year of the 1988 Lockerbie bombing. This was the first time permission had been granted to televise any Scottish appeal court proceedings. Examples of TV documentaries made include Hitting Home, which was broadcast by the BBC in 2010 and included the first ever footage of Scotland's only domestic abuse court at work, and The Murder Trial, which was filmed in the High Court in Edinburgh in 2011 and screened by Channel 4 in 2013.

Despite the guiding principle in the 1992 Directions that the broadcast of court proceedings is in the interests of open justice, and informs and educates the public, generally speaking, only three or four requests to film were made each year and permission to do so was rarely given, except in a few high-profile appeal court cases. The biggest obstacle was that all parties had to give their consent. In view of this, in January 2012, the judiciary announced that, for a trial period, filming was to be allowed without the consent of everyone involved but only where an undertaking was given that the final broadcast would not identify those who had not consented to filming and that jury members would not be identified.

In a further development, in April 2012, permission was given by the then Lord President of the Court of Session to broadcast on the day the sentencing of David Gilroy at the High Court in Edinburgh for the murder of Suzanne Pilley. This sentencing broadcast was a first in the UK. Only the judge was filmed and the Scottish Courts and Tribunals Service (“SCTS”) vetted the footage.

In October 2012, the judiciary announced a review into TV cameras in court. The review’s report was published in January 2015. The report recommended that sentencing statements and civil and criminal appeals, including legal debates in civil first-instance proceedings, could be recorded and broadcast. It also recommended the recording and broadcast of proofs and civil jury trials in the Court of Session and of criminal jury trials in the High Court of Justiciary for the purposes of making of a documentary production. However, the report also recommended that there should not be live transmission or filming for subsequent news broadcast of criminal first-instance business or of civil proceedings involving witnesses; nor should filming of criminal trials for live transmission be allowed. All the recommendations in the report were accepted by the then Lord President and a new protocol was issued in 2018. As a consequence, the BBC made its award-winning documentary series Murder Trial, which has been aired since 2020, giving viewers a very interesting insight into the work of the police and prosecutors bringing suspects to trial in the High Court of Justiciary.

In June 2023, livestreaming of the Court of Session was introduced in respect of substantive civil appeal hearings before the First and Second Divisions of the Inner House as part of the SCTS’s commitment to open justice. There are currently plans to extend livestreaming to the Criminal Appeal Court.

In order to gather views on the future of open justice in Scotland, a ‘Think Tank’ event was held in April 2024. A report was subsequently published, which undertook, inter alia, to review the current protocol and to explore the live filming of high-profile sentencing statements, pleas in mitigation and cases where the accused wishes to plead guilty.

The UK Supreme Court

In 2009, the House of Lords’ judicial function was transferred to the newly established Supreme Court. It was decided that the Court should not be subject to the prohibition on recording and broadcasting that applied to other courts in England and Wales and Northern Ireland, given that filming had taken place in the Lords since 1985. Therefore, section 47 (Photography, etc.) of the Constitutional Reform Act 2005 provided that section 41 of the 1925 Act and section 29 of the 1945 Act did not apply to the Supreme Court. Hearings are livestreamed and previous hearings can also be viewed.

England and Wales

Background

Up until 2013, taking photographs or making a drawing in courts was prohibited by section 41 of the 1925 Act. This provision was introduced in response to the increasing prevalence of portable cameras in the 1910s and 1920s resulting in snatched photographs being taken in court, which was considered to be disruptive and undermined the administration of justice. Case law, for example Re Barber v Lloyds Underwriters (1987) and R v Loveridge, Lee and Loveridge (2001), subsequently interpreted that section 41 also prohibited filming in court.

In addition, section 9 of the 1981 Act applies in England and Wales.

In 2004, BBC, ITN and Sky cameras were allowed to film, but not broadcast, Court of Appeal cases at the Royal Courts of Justice in London under a pilot scheme. Following the pilot, the then Department for Constitutional Affairs launched a public consultation, Broadcasting Courts, in November 2004, publishing its response in June 2005. The majority of respondents supported the filming of judges’ decisions and sentencing remarks. However, the policy proposals were not progressed until 2011.

In September 2011, MoJ announced that, in the first instance, it would bring forward legislation to allow judgments and legal submissions to be broadcast in cases before the Court of Appeal (Criminal and Civil Divisions). Over a longer period, it intended to extend broadcasting to judges’ sentencing remarks in the Crown Court.

The Crime and Courts Act 2013

Consequently, section 32 (Enabling the making, and use, of films and other recordings of proceedings) of the Crime and Courts Act 2013 (“the 2013 Act”) was enacted, providing that the Lord Chancellor, in concurrence with the Lord Chief Justice, may set out in secondary legislation the specific circumstances in which section 41 of the 1925 Act and section 9 of the 1981 Act will be disapplied.

Recording and broadcasting of the Court of Appeal

Relying on the power conferred by section 32 of the 2013 Act, the Court of Appeal (Recording and Broadcasting) Order 2013 (“the 2013 Order”) was made. The 2013 Order provides that only the submissions of lawyers, exchanges between lawyers and the court, and the court giving judgment may be filmed. The late Alexander Cameron KC, brother of the then Prime Minister, David Cameron, was the first barrister to be filmed. His client, Kevin Fisher, was appealing against his sentence for his involvement in what was believed to be the largest ever plot to make fake pound coins in the UK.

In addition to the provisions in the 2013 Order, contracts between MoJ and broadcasters, as well as court protocols, were drawn up, setting out the conditions to be adhered to for recording and broadcasting in the Court of Appeal. 

In November 2018, the judiciary launched a pilot to livestream the entire hearing of selected civil appeals on a dedicated judiciary YouTube channel (via a link on the judiciary website). The aim of the pilot was to improve public access to, and understanding of, the work of the courts. Fixed cameras were installed by HM Courts and Tribunals Service (HMCTS) in five courtrooms in the Royal Courts of Justice and judges list appeal cases to be heard in those courtrooms which do not involve witnesses giving oral evidence (so as to comply with the provisions in the 2013 Order) and which they consider to be of public interest or of legal significance.  

The first case, which was considered to be high-profile with public interest, was WH Holding Limited and Another v E20 Stadium LLP, involving a dispute over how many West Ham football fans should be allowed into the former Olympic stadium for matches. Between 2022 and 2024, Court of Appeal cases that have been livestreamed have included some very high-profile judgments, for example those in respect of whole life sentences, the Rwanda deportation flights, Shamima Begum’s citizenship appeal and Andrew Malkinson’s wrongful conviction appeal. As well as watching a hearing live, previous hearings are also available for viewing.

In July 2020, the 2013 Order was amended to allow the recording and broadcasting of Court of Appeal proceedings where the appeal followed from a decision in family proceedings or an application for permission to appeal. The purpose was to bring selected family proceedings within the scope of the pilot to further test the livestreaming of proceedings.

A number of cases from the Court of Appeal (Civil Division) are currently livestreamed and the intention is to make it possible for all appropriate appeals to be livestreamed in the future.

Recording and broadcasting of the Crown Court

MoJ intended that there should be a gap in time before allowing the recording and broadcasting of sentencing remarks in the Crown Court as this would provide an opportunity to review any issues arising from the broadcasting of the Court of Appeal. In 2016, the Crown Court (Recording) Order 2016 was made to facilitate a pilot to film, but not broadcast, sentencing remarks at eight Crown Court venues between July 2016 and February 2017 to enable an assessment of the practical and technical challenges of filming in the Crown Court.

Following the success of that pilot, the Crown Court (Recording and Broadcasting) Order 2020 (“the 2020 Order”), as amended, was made to provide for the recording and broadcast of sentencing remarks of certain levels of judge from all Crown Court venues in England and Wales. As in the Court of Appeal, contracts between MoJ and broadcasters, as well as court protocols, were drawn up, setting out the conditions to be adhered to for recording and broadcasting in the Crown Court.

Following a delay due to the COVID-19 pandemic, the first broadcast was in July 2022 in the Central Criminal Court in London of Judge Munro KC sentencing Ben Oliver, who had admitted to the manslaughter of his grandfather. In the first year, 33 cases were broadcast. Two thirds of the broadcasts related to sentencing in murder trials. Recorded sentencing remarks are hosted by Sky News on a dedicated YouTube channel.

The recording and broadcasting of sentencing remarks was not evaluated by the MoJ or the judiciary. However, the University of the West of England examined the first twelve months of broadcasting of the Crown Court. The authors concluded that, notwithstanding the theoretical benefits of open justice, the broadcasting of sentencing remarks only offered a narrow view of the criminal courts and did not, therefore, represent a significant step forward for open justice. They suggested that the argument that the public’s understanding of the criminal justice process would be improved was questionable, given that only sentencing remarks were filmed and most aspects of the Crown Court process, such as the trial itself, were omitted. In addition, there was no recording and broadcasting of the magistrates’ courts. The authors also considered that the requirement for broadcasters to apply five working days prior to the sentencing remarks being made meant that only those trials that have already attained public interest were likely to be considered for broadcast.

The authors found that over half the cases filmed were not used in any TV news bulletins and, of the rest, only eight were excerpted on major TV news bulletins. Most of those eight were shown in the first few months, after which there was a drop-off in media interest. The authors were of the opinion that, given that the clips of the sentencing remarks were very short (thirty seconds or less), the stated aim of allowing the public to see the greater context behind sentencing would be difficult to achieve. They believed that much of the footage featured “quotable” emotive language and phrases used by judges, and that the media preference was for more “exciting” visual content, such as police bodycam footage. The authors also considered that YouTube views were modest, with only two videos receiving more than 100,000 views during their research period, while the majority received between 20,000 to 35,000 views. The report concluded that, while broadcasts theoretically revealed previously unseen processes and were publicly accessible, their limited and selective nature restricted their impact and, therefore, provided only a narrow window into a small part of the criminal justice process.

Recording and broadcasting of the Competition Appeal Tribunal

The Competition Appeal Tribunal (Recording and Broadcasting) Order 2022 sets out the conditions under which visual and sound recording and broadcast of proceedings in that tribunal may take place. Its proceedings are broadcast via a link on its website.

Review of Open Justice

In September 2021, the House of Commons Justice Committee launched an inquiry, Open justice: court reporting in a digital age, to consider two matters. The first was how the changing nature of the media was affecting court reporting. The second was how the court reform programme was affecting the public and the media’s ability to access information on court proceedings. The Committee published its report in November 2022. In it, the Committee welcomed the broadcasting of Crown Court sentencing remarks, saying it was a positive step for both open justice and public understanding of sentencing. It recommended that HMCTS and the judiciary should commission research to determine which civil and criminal proceedings could be suitable for broadcast and video archiving, saying that, in principle, the Committee would support the extension of broadcasting and recording to civil trials that do not involve oral evidence. In addition, it suggested that the broadcast and recording of sentencing in magistrates’ courts could also be beneficial. However, the Committee made it clear that it did not support the broadcasting of any elements of criminal trials other than the sentencing remarks of the judge.

In its response to the report, the Government said that it would monitor the impact of the recording and broadcasting of Crown Court sentencing remarks before deciding whether to make any further interventions. In addition, it announced that MoJ would launch a call for evidence, exploring the themes of open justice, access to information and data, and transparency across courts and tribunals. The Government added that MoJ would use the call for evidence to gather stakeholders’ views on whether the current broadcasting regime should be expanded and, if so, where this would be best targeted. MoJ would then consider this evidence alongside the conclusions and recommendations made in the Committee’s report.

Consequently, in May 2023, MoJ published a paper, Open Justice: the way forward Call for Evidence, in which it posed four questions in order to test public demand for expanding powers to allow for further broadcasting of proceedings. In January 2025, MoJ published a report, summarising the responses to the questions in the Call for Evidence. In terms of next steps, it said that the views expressed will inform its policies to modernise and improve the transparency of the justice system.

In April 2024, the Lady Chief Justice of England and Wales (“the LCJ E&W”) announced that she was setting up a Transparency and Open Justice Board to lead, support and coordinate a programme of change to promote transparency and open justice. She said that part of the Board’s remit will be to consider whether the current limitations on broadcasting that apply to court and tribunal hearings are an impediment to increased openness and transparency and, if they are, whether one of the ways to address this would be through the expansion of the broadcasting of hearings. However, the LCJ E&W said that there was a need to consider the effect that this may have on the parties to proceedings, and on any adverse effect it may have on the administration of justice, as well as public trust and confidence in the courts. She was of the view that proceedings in the Crown Court are very unlikely to be suitable for any significant extension in what can be broadcast as the protection of the integrity of trial by jury must be paramount.

Ireland

There are no statutory provisions regarding the taking of photographs and recording of sounds. The matter falls within the inherent jurisdiction of the court to regulate its own procedures. It is generally accepted, however, that photographs may not be taken, or proceedings recorded or televised without permission of the court. The matter of broadcasting of courts was raised by the Law Reform Commission in 1994. The Commission argued that allowing the televising of court proceedings would be beneficial in educating the public about the justice process. The Commission concluded that it was in favour of televising proceedings and recommended that consideration should be given to a pilot in the first instance.

However, it was not until 2017 that a pilot was launched which saw, for the first time, the broadcast on two occasions by RTÉ News Now of decisions handed down by the Supreme Court of Ireland.

In May 2024, the Chief Justice of Ireland announced that there would be a further pilot to “consistently” broadcast hearings in the Supreme Court.