WHETHER the police and Crown Prosecution Service should or should not disclose photos and film footage to news organisations has recently created much heat and a little light.

It started with the CPS announcing that the police would no longer hand over footage relating to criminal trials — even shown to the jury. This was met with alarm across the print and broadcast media. Rarely has an issue raised such united concern.

The ban would have had serious ramifications for reporting at a national and local level. Such images often form the backbone of post-trial reports and television documentaries. They frequently show how the crime was committed and how the police went about investigating it. The ban would have done little to promote understanding of, or confidence in, the work of the police, the CPS and the judiciary.

But then the CPS announced a “clarification”. From now on the prosecution would “usually” disclose custody photographs of defendants, videotapes of police reconstructions, sections of interview transcripts read out in court, police maps and diagrams and videos of crime scenes or of property seized, such as drugs and stolen goods. A separate category of material that “may be released” comprised closed-circuit television footage of defendants viewed by the jury, videos of police interviews with defendants and victims’ statements.

This was quite a turnaround. If the initial ruling had stood, images such as Roy Whiting being interviewed about the murder of Sara Payne, the police questioning of Maxine Carr or CCTV images showing violence on the streets would no longer have been seen on our screens or in our newspapers. It would, in effect, have prevented the public from seeing the criminal justice process in action on television.

Many big cases — Tony Martin, Fred West, Jane Andrews, the Millennium Dome diamond raid — have been the subject of post-verdict documentaries on national television and all relied to a lesser or greater extent on such material. Programmes highlighting cases of possible miscarriages such as Trial and Error on Channel 4 would have been curtailed significantly, as would documentaries on how the criminal justice process works such as Watching the Detectives on BBC or any programme that follows the process from the first call to the police to the verdict.

The original concern about disclosure is likely to have stemmed from two issues: privacy and police powers over the release of prosecution material.

On privacy the European Court of Human Rights decided last year that a man’s privacy had been infringed when Brentwood Council in Essex issued CCTV footage of him attempting suicide in a public street. The court found the council’s action in handing over the footage to local newspapers and the BBC to be disproportionate and unjustified and compensation was awarded.

On police powers, the issue is whether interviews in a police station are confidential and whether disclosure must be restricted to purposes for the detection and prevention of crime — not to inform the public what happened in court.

An absolute ban on disclosure of any prosecution material was always going to be open to challenge. Freedom of expression and open justice are at stake here. Such footage allows the wider public to see justice being done, not just those sitting in the court. If the public can see this footage by attending court in person, why can’t they see it on their screens? Only last month the High Court ruled that the Metropolitan Police were entitled to release photographs of people aged 15 to 28 who had been subjected to antisocial behaviour orders.

Article 10 of the European Convention on Human Rights — now law under the Human Rights Act 1998 — specifically creates the right for information to be imparted and received. Last month the House of Lords underlined the importance of Article 10 in the context of court reporting and backed the primacy of open justice against privacy rights in a criminal trial. Lord Steyn said: “A criminal trial is a public event . . . Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.”

The ban also seemed to clash with the spirit of the Freedom of Information Act 2000, shortly to come into force. In this new dawn, the public were promised more information, not less.

The “clarification” by the CPS is a step in the right direction but not necessarily the end of the matter. It is likely that media organisations will press for a presumption that all footage viewed by the jury and audio tapes of police interviews should be disclosed unless there are exceptional circumstances — the promise that such material “may” be released leaves too much of a grey area. There are other issues: at what stage in the trial process should material be released, and what should happen to prosecution material when a defendant pleads guilty before the end of a trial? In the end it is time for more rather than less information from the justice system. News organisations have the task of telling the public what is happening in the criminal courts and it is inherently important that this role is recognised. Unless there is some very good reason to the contrary, the public should have the right to see footage shown in open court.

The author is head of compliance at ITN and a barrister

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