tim's experiment

Some time ago a Hong Kong judge threatened to install closed circuit TV cameras in his courtroom, so that he could keep an eye on what happened in his absence.

At the time I wrote that this was an unnecessary and legally unjustified proposition, and had the reprehensible feature that it might discourage members of the public from attending court cases, which they are perfectly entitled to do.

However it seems that this judge’s remark was merely the tip of an iceberg of judicial paranoia, which has now blossomed (if an iceberg can blossom) in plans for whole court buildings to be subject to electronic surveillance, a pre-trial recording warning court-goers of the powers which judges can wield over them, and screening for court visitors.

This is all rather implausibly justified as necessary for “security”, although there has been no sign that security as such might be a problem.

Judges are strange creatures. Some of them are sweet and nice people. But the job can go to their heads. Judges bullying the inhabitants of their courtrooms have now become such a problem in England and Wales that a hotline has been set up on which people can report abuse anonymously.

Some of our new measures will no doubt be justified on the basis of experience elsewhere. I understand that people arriving at UK courts these days are routinely asked to open their bags. This did not happen when I was a reporter and it did not happen in colonial Hong Kong either. Times have, no doubt, changed.

It is reported, on the other hand, that people will no longer be allowed to carry water. Why on earth not? The Wanchai District Court is not an aeroplane which can be destroyed by a cunning mixture of liquids detonated in a toilet. Water is harmless.

There appears to be a general failure to appreciate the danger of appearing like one of those paranoid despotic regimes which sees a subversive behind every bush. Every citizen is a suspect and every bag a potential bomb.

Video cameras in courtrooms bring other perils. To start with there is the danger that judges will inflate their powers to an unjustified and indeed unlawful degree. The powers they exercise over events in their own courtrooms extend as far as is necessary to permit the orderly conduct of court proceedings. And no further.

If the judge is not in the room then no proceedings are in progress and the judge has no more powers over the waiting audience than any other citizen. Similarly once the case is over the law reverts to its everyday form, as a judge in Liverpool discovered when, after discharging a prisoner who had been acquitted, he told the miscreant he had been lucky in his jury. This was not part of the proceedings, the defendant threatened to sue, and the judge was constrained to make a grovelling apology in open court.

The purpose of the cameras is apparently to curb disorderly behaviour in the public gallery. This is an extremely expensive solution to a minor problem. Most cases attract no public interest at all. During the three years when I was a regular court reporter I do not remember the number of people in the gallery ever exceeding five. Usually there was nobody.

A tiny number of recent cases in Hong Kong have attracted much larger numbers. People whose friends are enduring long periods of imprisonment without trial for nakedly political offences do tend to turn up and offer moral support.

Occasionally this take the form of waving, or even talking, during pauses in the progress of the legal juggernaut. On other occasions speeches of explanation or mitigation have been greeted with applause, which is improper but hardly a major disruption of the proceedings.

Most of the interaction between public and prisoner takes place during the interval – commonly quite long – between the time when everyone is ready for the kick-off and the time when the judge arrives and takes the field. There is another obvious opportunity at the end when his or her lordship disappears and there is a pause while the correctional van is lined up.

So when Big Brother is watching he is, I fear, going to see a lot of conduct of which he disapproves but to which there is strictly speaking no legal objection. Why then, are we pursuing a “deterrent effect”? Well of course it depends what you wish to deter.

It is painfully offensive to some people in the national security industry that people charged with national security offences do, during their long periods of imprisonment without trial, receive the moral support of their friends and sympathisers. One of the ways in which this support is provided is by turning up for court appearances.

We cannot ban this, alas. Court hearings are supposed to be public. We can however discourage it by assuring said supporters that their attendance and activity are being recorded and the resulting evidence may be used against them in another court later.

An interesting legal milestone was passed recently when two people were charged with “sedition” on the basis of their behaviour in a courtroom public gallery. Be careful what you clap for.