It’s Channel 4’s fault!
Was it just coincidence that on 10 July, the day after “The Murder Trial” was first screened on television, the Court of Appeal (Recording and Broadcasting) Order 2013 was published?
Or that yesterday (17 July) saw the release of the Crime and Courts Act 2013 (Commencement No 3) Order 2013 which, amongst other things, permits the Lord Chancellor by order to enable the making and use of films and other recordings of proceedings in courts in England and Wales?
Nick Holt's documentary concerned the retrial of Nat Fraser for the murder of his wife, Arlene, in Scotland. Mr. Fraser had already been tried and found guilty but in 2011 his conviction was quashed by the Supreme Court and the Channel 4 film followed his retrial.
Compressing a five week trial into two hours was always going to be challenging. Six remote cameras were placed inside the courtroom in Edinburgh with the consent of all the parties including Mr. Fraser who was re-convicted for the murder of his wife whose body has never been found after she went missing in 1998.
The public can already watch proceedings in the Supreme Court. The new Order sets out the conditions under which broadcasters in England and Wales will be able to film in the Court of Appeal later this year.
Currently, section 41 of the Criminal Justice Act 1925 makes it an offence to film in court and section 9 of the Contempt of Court Act 1981 makes it a contempt of court to record sound in court except with the permission of the court. The new Order provides that these provisions do not apply where the conditions in the Order have been satisfied. There is power in the Order to prescribe the types of hearing that can be recorded, what part of the hearing can be recorded and who can record a hearing. There is also power to set out when the recording of a hearing in the Court of Appeal can be broadcast and what content is permitted in a broadcast.
In “The Murder Trial” I thought Mr. Fraser's defence team did a pretty good job on his behalf. However, dramatic compromises were still necessary. These included the action in the court room being interspersed with shots of isolated forest tracks and a soundtrack clearly chosen to ratchet up the tension and anxiety.
Personally, I get all the tension and anxiety I need just by being in the Court of Appeal but when drafting my next skeleton argument, I will definitely give some thought to the music to go with it … just in case!