Doing Justice to TV Cameras
I wasn't present in Mr Justice Hilary Squires's court when lawyers argued the pros and cons of allowing television coverage of the Schabir Shaik trial, so I don't know if anyone mentioned OJ Simpson. But I would be surprised if nobody did.
Throughout the US, trials are televised every day with a minimum of fuss - and a minimum of viewers, otherwise the networks would broadcast them all day.
Yet the one that sticks in the mind as an example of the baleful influence of television coverage on the judicial process is the case of Simpson, the football player acquitted of murdering his wife.
The verdict was televised live and watched by a staggering 150 million viewers making it, at the time, the second biggest television news story in history after the first Gulf War.
The presence of television cameras in the Simpson courtroom, the conventional wisdom goes, caused proceedings to degenerate into a farce, perverted the administration of justice and destroyed public confidence in the legal system.
That view ignores the fact that television formed a relatively small part of the media covering the trial and that the most serious offences against justice were committed by journalists (and lawyers) operating outside, not inside, the courtroom.
The Simpson trial degenerated into a "media circus" despite, not because of, television coverage.
Simpson, however, may have been in Squires's mind when he rejected e.tv's application to broadcast the Shaik trial on the grounds that television cameras would be "conspicuously intrusive" and distracting for witnesses and other participants.
The ruling highlighted an inherent conflict of interests between the judicial system and the media.
The primary concern of the judge is the administration of justice; the media's focus is to display the social interest and exploit the entertainment value involved in the dispute.
From the judge's point of view, only one question is pertinent: would the presence of cameras detract from the administration of justice? If so, he has no option but to disallow them. If not, there is no reason to bar them.
In the wake of Squires's ruling, one legal commentator spoke of the "dearth of information" about the effect of cameras in courtrooms. In fact, there is an abundance of research on the topic, mostly supportive.
One of the main arguments against allowing cameras in courts is that they may distract or intimidate participants in a trial, including witnesses and lawyers.
But the experience in the 48 US states that allow television coverage of courts suggests otherwise. Not one of those states, it bears mentioning, has re-instituted a ban on cameras after first allowing them.
The Federal Judicial Centre, the US equivalent of our Law Commission, conducted a three-year pilot project on cameras in courts and concluded in 1994 that broadcasts had little effect on the administration of justice, provided some common-sense guidelines were followed on, for instance, camera placement and the conduct of journalists.
The majority of judges were initially neutral about tele-vision coverage, but became favourable after the experience of the pilot programme. Judges and attorneys reported that cameras had no or little effect on witnesses.
Studies by several state governments, the New York State Defenders' Association and the UK's Southampton Institute produced similar results.
The Southampton Institute surveyed judges and lawyers at the International Criminal Tribunal in The Hague, finding that televising war crimes trials helped ensure fair and balanced coverage and contrib-uted to a better understanding of proceedings.
Squires left the door slightly ajar by saying he may allow broadcasts of parts of the Shaik trial, such as legal arguments and the judgment. (Though those would make less than riveting television and are probably the parts that e.tv would least want to broadcast.)
As such, the trial may yet make South African legal history. But that won't stop e.tv, or another broadcaster, from launching an expensive application to broadcast the next high-profile trial.
Our Supreme Court recognised as early as 1915 in the case of Transvaal Chronicle v Roberts that the media coverage of trials is an indispensable part of the justice process because it makes court proceedings accessible to the public.
The constitution affirms that principle in its freedom of expression and open courts provisions.
There is no need to argue that television reporters should be allowed to cover trials; the question is whether they should be allowed to use the tool of their trade, the tele-vision camera, as print reporters use their notebooks and radio journalists their tape recorders.
That is a policy issue that should be regulated by the rules of court.
Perhaps it is time for the Judicial Service Commission to set in motion a pilot programme, using guidelines that have become standardised in other jurisdictions, to evaluate whether our courts could bear television coverage without turning into circuses.
With acknowledgements to Robert Brand and the Daily News.