On January 16, at the opening of the legal year, Hong Kong’s chief justice Andrew Cheung Kui-nung said it was important that the judiciary “moves with the times”; this is indisputable.
His predecessors since 1997 have always prioritised judicial transparency, and Cheung has now decided to take that commitment to a new level. He plans to establish a working group to conduct research on the guiding principles and implementation arrangements of live broadcasting of court proceedings, with a view to introducing live broadcasting in some courts, perhaps as early as this year.
When the UK’s Supreme Court was established in 2009, its proceedings were recorded from the outset. The submissions of the lawyers, their interactions with the judges, and the delivery of the judgments, can now be viewed online.
Although there were initially concerns over the impact of cameras in judicial proceedings, their introduction has been a great success. Cameras were subsequently introduced in the Court of Appeal in 2013.
As the UK Supreme Court’s first president, Lord Nicholas Phillips would have overseen the original project. Since Phillips is now a non-permanent judge of the Hong Kong Court of Final Appeal, he is ideally placed to advise the working group on implementation, and the avoidance of pitfalls.
As Cheung explained, there is a “strong case” for the live broadcasting of appeal hearings, especially at the Court of Final Appeal, although it is likely that, as in the UK, there will need to be limits on the televising of trials. After all, if juries are involved, or vulnerable witnesses are testifying, restrictions will be unavoidable, for privacy reasons. Some parts of the trial, however, such as the giving of the reasons for verdict or the sentencing of the offender, are not problematic.
A graphic example, however, of how the televising of a case can be inimical to the interests of justice arose in the trial of the NFL football star, O.J. Simpson, in the US in 1995. Simpson was charged with the murder of his ex-wife, Nicole, and her friend, Ron Goldberg, and a solemn proceeding was conducted in a circus-like atmosphere. Whereas the defence lawyers indulged in grandstanding of the worst sort, some of the witnesses blatantly played to the camera, and many people were disgusted.
Whereas a poll conducted by NBC and The Wall Street Journal at the time revealed that 55 per cent of Americans felt that criminal trials should not be broadcast, the producer of CBS’s 60 Minutes, Don Hewitt, condemned the presiding judge, Lance Ito, for having allowed the trial to be televised. He commented that “the camera has turned this into the longest-running entertainment special in America”.
Although any system can be abused, Cheung was right to say that judicial transparency “is key to maintaining public confidence in the judicial system and upholding the rule of law”. Anything that can reasonably be done to demystify criminal proceedings is beneficial, and Hong Kong has fallen behind other places in terms of live broadcasting. It is, however, never too late to catch up, but lessons must be learned from elsewhere over how far it is safe to go.
As Lord David Neuberger, a Court of Final Appeal non-permanent judge (and Phillips’ successor as president of the UK Supreme Court), has pointed out, it is not enough for the courts to be open as a matter of general principle, and they must also be open as a reality.
Whereas the cameras can play a vital role in opening up the courts, this cannot be at the expense of justice. If, however, the parameters of open justice can be sensitively expanded at all levels, the legal system will be the big winner.