Following on from the Law Column a fortnight ago where one of my colleagues, explored the intricacies of access to documents used within court proceedings, another interesting, and positive, judgement along a similar vein has come to light.
The case concerns the criminal trial of Andrew Hill, the pilot of the 1950’s Hawker Hunter fighter jet that crashed to the ground killing 11 people during a display as part of the Shoreham airshow in 2015.
Mr Hill denies the 11 counts of manslaughter by gross negligence with which he is charged and as part of the trial, the jury has been shown footage captured on a video camera mounted in the cockpit of the aircraft which recorded the moments leading up to the crash.
It is this footage that has generated some interesting legal argument – separate to the issue of the trial.
An application for disclosure of the cockpit footage was made jointly by the BBC and the Press Association who relied on principles of open justice and a need for the ability to broadcast material seen by a jury as part of responsible and accurate reporting of a high-profile criminal trial.
The application was resisted by the Secretary of State for Transport and the British Airline Pilots Association (BALPA).
The circumstances of this case meant that aside from the usual presumption that non – parties to proceedings are entitled to material used as part of proceedings in open court, as discussed previously in this column, Mr Justice Edis, the presiding judge in the criminal trial, also had to have regard to the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018, SI 2018 No. 321 (“the 2018 Regulations”).
Under the 2018 Regulations the key question for Edis J to consider was whether disclosure of the cockpit footage to the media “produce benefits which outweigh the adverse domestic and international impact which it might have on any future safety investigation?” The short answer to this question was “no”. The technical and detailed reasoning as to why Edis J reached this conclusion is not the focus of this article and I therefore don’t intend to delve any deeper at this juncture.
What was of more interest, was the significant weight that Edis J attached to the vital role of the Media in the administration of justice. In his decision concerning disclosure of the footage he recognised that the media had proper cause for seeking permission to use the material, stating that “Open justice and proper reporting of criminal proceedings is a mere slogan unless people view or read reports. However, it was in dealing with the ever present issue of costs, that Edis J’s supportive attitude concerning the role of the media became most apparent.
As the successful party, BALPA had sought to recover their costs of involvement in the proceedings from the media organisations involved. Though he was not critical of BALPA’s involvement or conduct in the matter, in his decision to refuse BALPA’s application, Edis J said “It would be contrary to the public interest, in my judgment, to deter responsible broadcasters and other news organisations from seeking to uphold the interests of open justice “. He continued “It is often only the media which is willing to help the court by holding it to its duty to conduct proceedings in public unless there is some extremely powerful reason to do so.”
This is of course very much a case that turns on its own facts but here it isn’t the facts, or even the decision that is important. What is of considerable note, is the attitude of Edis J, who showed great respect and recognition for the vital role played by the media in the preservation and maintenance of open justice.
However, whether or not Edis J. speaks for the judiciary as a whole is another matter…