After the recent joys of the Boris Johnson interrogation, Donald Trump’s New York indictment could only be, for connoisseurs of extended demagogue-humbling, a two-star show.
Delightful as it was to watch Trump fail to make something dashing of his entrance, the judge’s refusal to indulge broadcasters meant the public were denied even the sound of his historic contribution: “Not guilty.” His team had objected, as is sometimes convincing from lawyers whose famous clients are less like clowns, that it would “create a circus-like atmosphere”. Broadcasting permission, as demonstrated in the irresistible US footage of Gwyneth Paltrow’s jumpers, can depend on the judge and the state, as well as the country. In the UK, David Pannick KC was an early if unavailing enthusiast. “It is difficult,” he wrote, “to even formulate an argument against the admission of the television camera and the radio microphone into British courts if the parties do not object and there are no witnesses giving evidence who may be influenced by the broadcasting of proceedings.” That was in 1984.
Still, if Trump’s court outing fell short on drama (especially for procedural enthusiasts recently spoiled by Paltrow’s “Well… I lost half a day’s skiing”), it was nice to imagine his dumb rage at having to endure the judge, Juan Merchan, warn him “to please refrain from making statements that are likely to incite violence or civil unrest”. Some fine court reporting hinted at the perhaps even greater agony for a performer used to posing, as he believes magnificently, in his ballroom or gold lift of a morning sagging like any nonentity behind a scruffy, non-golden table, underneath a messy, non-golden noticeboard. “You could practically smell the vending-machine coffee,” wrote the New York Times chief television critic, James Poniewozik.
Frustrating admirers of this pilot, Trump’s next in-person court appearance is not due until December. British spectators can console themselves with the return to court of Prince Harry. In June, the prince (whose case against Associated Newspapers is currently being examined by another judge) will be one of four “representative” individuals claiming damages from Mirror Group Newspapers for alleged hacking. Again, an event of great public interest, one there seems no safeguarding or other reason to not broadcast, will be mediated via tweets, reports and illustrations to the millions unable to access the traditional offer of open justice: actually turning up. The contributions of, say, Piers Morgan (who is expected to appear) while safe for viewers of TalkTV, could still, you gather, be incompatible with the administration of justice. Which suggests that both the supreme court and English and Welsh appeal courts, where broadcasting is allowed, are legal disasters waiting to happen.
That the judicial system may be missing, given these constraints, many more opportunities to build public confidence than the opposite, has become clearer as standards in political discourse and in public deliberation have collapsed around it. Like the select committee that, with sublime courtesy, exposed a Boris Johnson helpless without the insults and bluster that constitute his entire rhetorical and intellectual capability, the courts, at their best, add to their familiar attractions those of civility, listening, fairness and respect. Understandably, these qualities – “incredibly, nobody called anyone a bollard”; “the word fascist was notable for its absence” – are not calculated to make it into news reports.
Even the silliest legal attraction – Wagatha Christie has few rivals – might demonstrate methods of adversarial engagement that are blessedly remote from social media disputes by pile-on, name-calling, whataboutery and Hitler analogies or, courtesy of our MPs, debates featuring screaming, evasion and, what seems to be a new low, competing slurs about child protection. More sensible ones, including some important tribunals live-tweeted by volunteers, may make space for public analysis unlikely to be heard anywhere else. Assuming the tendency of judges is away from complacency, the Garrick Club and weirdnesses comparable to (from the dazzled Mary Archer-sympathiser) “is she not fragrant?”, maybe it’s not totally desperate to see their courtrooms as, ideally, a deliberative asset. That much has actually been acknowledged: as of last year, sentencing remarks in crown courts can be broadcast, only the relevant judge being visible. Dominic Raab said the innovation would “improve transparency and reinforce confidence in the justice system”.
That will naturally depend on how successfully the efforts of Raab’s own government and its allies at Associated Newspapers have undermined judges, “enemies of the people”, ditto “lefty lawyers” and, indeed, the rule of law. (Two years after he was thwarted by Baroness Hale’s proroguing judgment, Johnson was still publicly lying “with iron determination we saw off Brenda Hale”.)
What evidence there is, however, on the impact of court broadcasting, seems to point to the benefit of showing people treated with dignity. Researchers have identified a “surrogacy effect” whereby, watching litigants in court, people become more confident of being treated fairly themselves. Along with the priceless glimpses of the benefits of daily bone broth, the Paltrow skiing trial also showed viewers a steady, respectful process for getting at the truth. And should this not be what emerged from English and Welsh courtrooms, it would obviously be good to know about it.
A principal objection to court broadcasting has long been, à la Trump, that the most watched cases, featuring celebrities, would become “media circuses” in which justice surrendered to entertainment.
Provided judges forbid harmful filming (as should certainly have happened in the case of Depp-Heard), you could see some cases as advertising, to the contrary, the great advantages of the combination. As with Johnson at the privileges committee or, years ago, Jeffrey Archer shamed for perjury (Michael Billington called it “the best free show in town”), the sight of Trump sulking in court was inspiring as well as, in its admirably decorous way, hilarious. Only the addition of live streaming could more usefully have disseminated the message of equality before the law.
