Meeting of the Parliament

Meeting date: Tuesday, October 23, 2012

Official Report 823KB pdf

---

Role of the Media in Criminal Trials

The next item of business is a debate on motion S4M-04505, in the name of Christine Grahame, on the role of the media in criminal trials. I call Christine Grahame to speak to and move the motion on behalf of the Justice Committee. You have up to 13 minutes, Ms Grahame, but it would be helpful if you used less than that.

15:22

I certainly hope that I do not use 13 minutes, Presiding Officer.

I am pleased to open this debate on the role of the media in criminal trials on behalf of the Justice Committee, which is to have a very busy week—we are back again on Thursday.

I ask members to cast their minds back to the images—albeit that this is something that happened in England—of the landlord Chris Jefferies and the murdered tenant, Jo Yeates. In fact, if one googles “landlord” and “murder”, up come strings of references to those events. Images of Chris Jefferies as a rather strange-looking individual ran on the front pages. Even people of whom I would have thought better said that he had done it. Of course, he had not done it. Trial by media; conviction by media. Had the case proceeded to court, could Chris Jefferies have been given a fair trial? In the meantime, the real murderer had time to cover his tracks.

That was in England, and we have different restrictions on reporting; nevertheless, we have seen many developments such as the televising of the sentencing of a person convicted of a high-profile crime, and Twitter and internet blogs being used to report court proceedings, notably in the case of Tommy Sheridan. We have also observed the ease with which members of juries can now access, on the internet, material relevant to the case in which they are involved. What impact might that have in prejudicing a trial?

The committee’s work to date on those issues has involved the commissioning of a briefing by the Scottish Parliament information centre and the holding earlier this month of an introductory evidence session with leading legal, media and criminal justice experts. With personalities such as Donald Findlay QC, Alistair Bonnington, Magnus Linklater and Aamer Anwar around one table, one can imagine how lively and challenging the session was. Even I could not get a word in edgeways, and that takes some doing. The session certainly provided much food for thought and demonstrated to us that there are no easy answers on some of the issues.

That is one of the reasons why we were keen to hold the debate. We wanted to throw the discussion open to more members, and we wanted members to put their heads together to try to come up with ideas about where the committee should go next with the issue. We have yet to decide whether to undertake a full-blown inquiry into the role of the media in criminal trials, if, indeed, we have the time to do so in our heavy legislative timetable—the minister and the cabinet secretary should take note, please—or whether we should focus on one or two particular issues of interest.

To set the scene for the debate, I intend to highlight some of the key issues that were raised during the evidence session and in the written evidence that we received. I want to focus on three issues in particular: contempt of court legislation; the televising of court proceedings, jury deliberations and the use of the internet and social media; and filming witnesses arriving at and leaving court. I am sure that my colleagues on the committee will deal in more detail with some of the other topics that were raised.

The Contempt of Court Act 1981 is the main piece of legislation that relates to contempt of court in Scotland. We heard from some witnesses that it works fairly well in relation to the print and broadcast media, but it is completely unsuitable for controlling material that is published through social media and the internet. As a demonstration of the frailties of the legislation, witnesses cited the example of the print and broadcast media not being able to disclose the identity of a famous footballer who had been granted a super-injunction, although his identity was well known on social media and internet sites. The internet is no respecter of national and therefore legal boundaries, of course. However, it came through strongly that it would be foolish to pass legislation in an attempt to police the internet, given the amount of information that is published and republished across many jurisdictions, and the difficulties—and, indeed, the costs—of tracing the authors of information or disinformation. Witnesses agreed that that particular genie is already out of the bottle.

The televising of court proceedings generated the most debate and dispute among the witnesses. Some were vehemently opposed to the television broadcasting of criminal trials on the basis that that could lead to proceedings being broadcast on prime-time TV and to what some called the Hollywoodisation of criminal trials. “Judge Judy” springs to mind, of course. I actually quite enjoy “Judge Judy”, but the programme is more entertainment than something that I consider to be serious.

Other witnesses disagreed and felt that the scrutiny that would be provided through placing cameras in court would contribute to the administration of justice and increase the understanding of court procedures among the wider public. However, it was widely accepted that if televising court proceedings was to extend beyond the experiments that have taken place so far—for example, if it was to extend to the live broadcasting of High Court trials—a set of guidelines and safeguards would certainly be needed.

Some witnesses said that, in general, TV exposure would give a more rounded portrait of participants than a newspaper article would, but others expressed concern that TV coverage and the ability to replay proceedings on the internet and, indeed, to edit them could lead to additional risks to the accused, and even the acquitted, from those who might want to seek revenge. There was understandable concern from the police and victims groups in particular that victims and witnesses would be even less likely to come forward to give evidence if they knew that they might have to appear on TV.

Given the difficult issues that were raised around the televising of criminal trials, I was pleased to hear that the Lord President announced last week that judicial office-holders would conduct a fundamental review of the current policy on the use of television cameras in court and that, until that review is completed, no further applications to film in court would be considered. Although little detail of the review’s timescale and remit is currently available, it is expected that the applications submitted to date, the experience of handling such applications and the applicability of the current practice note will be considered in it.

For clarity, I will give my understanding of practice as it was and is. On 6 August 1992, Lord President Hope issued a notice that stated that filming by television companies

“may be done only with the consent of all parties involved in the proceedings”.

In January this year, Lord President Hamilton made an alteration to that notice to state:

“The Lord President has today directed that, for a trial period, filming may be done without the consent of all parties but only where the production company and broadcaster have provided the presiding Judge with an undertaking that the final broadcast will not identify those who have not consented to the filming. In addition, no member of a jury may be filmed.”

Ultimately, of course, it is for the presiding judge to decide whether the filming of court proceedings or even a part thereof should take place.

With regard to jury deliberations and the use of social media and the internet, the witnesses agreed that it was almost inevitable that jury members would research or inadvertently come across material relevant to the trial in which they were involved. Some thought that although that is unavoidable in the current climate, jury members are far more likely to be influenced by what they heard during the day’s proceedings in court than by reading material online or in newspapers, or hearing about the case on the TV. However, others thought that it was essential that judges’ directions to juries were in “severe and unequivocal language” so that jurors understood that if they prejudiced a trial by deliberately researching relevant material they could be punished and even sentenced to prison, which is the nuclear option.

Some witnesses felt that jurors should be issued with written guidelines on their role and responsibilities. If I may step outside my role as convener, that seems to me to be a reasonably good and uncontentious idea.

A number of witnesses highlighted that it is illegal under the Contempt of Court Act 1981 to inquire of juries how they carried out their functions and suggested that now is the time to get rid of the ban. They believe that the time is right to conduct research into issues such as whether a jury member understood the judge’s directions or whether they had any prior knowledge of a case from the internet or television. I have some sympathy for the view that such research should be conducted.

One witness concluded that

“if, at some future point, there is evidence-based serious concern about this, then juries should be abolished.”

That is a step too far for me, but it is an interesting argument.

I move on to the filming of witnesses arriving at and leaving court. Although there can be protections in court with proceedings being held in camera, there is nothing to prevent witnesses from being filmed when they arrive at and leave court. The witnesses were agreed that there was no reason why an adult witness should not be filmed participating in what was seen as a public event. However, they felt that it was unacceptable for the media to follow witnesses beyond the steps of the court. Of course, there could be repercussions for witnesses. For example, some might be perceived to have grassed on neighbours—on fellow men and women.

It was clear that on occasion things get a little out of hand—to put it lightly—especially when a witness or the accused is in the public eye. For example, Aamer Anwar spoke of media scrums when witnesses, the accused and solicitors were chased down the street to their cars. It was highlighted that such unacceptable behaviour might be covered by the common law and by the Protection from Harassment Act 1997, but I have my doubts that that would be a robust deterrent, given that it does not seem to be being used now.

Having raised some of the issues that we have tentatively identified following our round-table discussion, I look forward to hearing the views of other members on the role of the media in criminal trials, which has evolved so much in recent years, and their ideas on where the committee might focus any future work.

I move,

That the Parliament notes that the Justice Committee is examining the role of the media in criminal trials and that, in order to inform any future work in this area, the Committee would welcome members’ views on the issues arising in both SPICe Briefing 12-50, Role of the Media in Criminal Trials, and in the summary of evidence gathered to date.

15:33

The Justice Committee has chosen an important and topical issue for debate. I look forward to hearing the views of all members, and I have no doubt that those will be wide ranging, given the complexities involved in how the media and our courts should appropriately interact. This is very much about striking the right balance. We need an open and transparent court system, but one that also ensures a fair trial and is sensitive to all those involved.

The issues bring into focus the way dearly held rights and freedoms act on one another. Members will be familiar with many of the almost universally accepted propositions involved: the press should be free; individuals have a right to express their own opinion; accused persons are innocent until proven guilty; accused persons should have a fair public trial, free from prejudice; and victims and witnesses should be protected from threats and adverse comment. We can immediately see how those basic propositions may impact negatively on one another. Balancing them will always be difficult, but necessary.

At the outset, I point out that almost all our trial proceedings take place in open court where the public can sit and watch. The issue is whether the communication of trials can be modernised while the rights of all parties, including the right of suspects to a fair trial, are respected.

I will mention some of the issues that have been raised. A major one is the televising of court proceedings. As Christine Grahame said, Lord Hope issued directions in 1992, which were supplemented in January 2012, that allowed television cameras in courts in Scotland with the permission of the courts and the parties involved. The Lord President announced last week that he will review that policy. I have utmost confidence in him and in judicial office-holders to do that—the judiciary are best placed to consider when TV cameras should be allowed in court while maintaining an open and fair court system. I look forward to seeing the outcome of the review.

Applications are rare. In recent years there have been 10 applications, of which seven were granted. The first broadcasts were for the BBC2 series “The Trial” in 1994. Some members may remember that—I grant that many will not.

The televising of sentencing decisions in some high-profile cases, such as that of David Gilroy for the murder of Suzanne Pilley, has been mentioned. I welcome the filming of sentencing decisions in which there is a high, justified public interest—when the courts allow it. There are likely to be fewer issues to consider with the televising of sentencing decisions as opposed to the televising of the trial itself. For example, the difficult issues surrounding the filming of witnesses are not relevant in the context of sentencing. However, it is right and appropriate that the Lord President and the courts decide on those matters, in the light of each individual case.

The use of live text-based communications from court is another issue that has arisen recently. Again, there have been relatively few applications: three have been successful to date, one has been turned down and there are no applications outstanding. Again, the decision rests—rightly—with the presiding judge. The judicial council for Scotland is considering producing a practice note on the matter. As some members will know, as one of the members in the chamber with an active Twitter account, I am conscious not only of the attractions of using that medium to disclose information coming out of a court, but of the dangers of using that medium. With comments confined to the small number of characters that are allowed, it is a little challenging to see how justice could be done to a court trial, although, no doubt, some people would like to try.

On the media’s reproduction of materials that relate to trials, a joint protocol is in place between the Association of Chief Police Officers in Scotland and the Crown Office and Procurator Fiscal Service on working with the media. That sets out information that can be provided at various stages of a criminal investigation and prosecution. Since work with the media is a day-to-day operational matter for those bodies, that is not an area in which the Scottish Government would—or should—interfere.

On other issues, there has been some concern that Scotland’s interpretation of contempt of court legislation is more restrictive than in England. The existence of the law of contempt of court is important. Our court system deserves to be treated with the utmost respect. I acknowledge the responsible approach by the Scottish media—newspapers and broadcasters—to reporting criminal cases and, in particular, to protecting the anonymity of victims of sexual offences, even though that is not, in Scotland, a statutory requirement. Our law on contempt of court contributes to that responsible culture. I certainly want the position of victims to be at the centre of our considerations, rather than at the margins. The discussion should not therefore be just a technical one about the pros and cons; it should be about the victims, first and foremost

Points have been raised about the possibility of jurors doing independent net-based research, and whether there should be professional jurors who would not need to be instructed on appropriate behaviour. The Government carried out a major consultation exercise on juries in 2008. The responses clearly established the value put on independent, randomly chosen representatives of society applying their common sense to cases of all descriptions. The Government accepts that and strongly agrees with it. In response, we widened the juror pool by abolishing age limits. Using the wisdom and experience of older members of society is extremely important.

Jurors are given guidance on how they should conduct themselves, which includes a clear warning that they should make their decisions only on the evidence that is presented to them.

All those examples show that there is a balancing act to be performed, in which politicians should tread particularly carefully. That was one of the considerations that led us to establish, clearly and beyond doubt, the independence of the judiciary and the courts in the Judiciary and Courts (Scotland) Act 2008, which establishes the Lord President’s position at the apex of an independent court system. That is an arrangement in which we can have great confidence. We can all agree that Lord Hamilton, to whom the act gave those responsibilities in 2008, is a man of the utmost skill and integrity who discharged his responsibilities impeccably and that, in Lord Gill, he has a worthy successor.

The propositions that I set out at the beginning of my speech must be applied carefully. It is difficult to provide in statute for all situations that might arise. It is not always helpful to set in legislation long, complicated clauses or endless exceptions that make the law difficult to understand. Again, it is necessary in legislation, as elsewhere, to strike a balance.

The interaction of my original propositions is best decided by people of the highest integrity applying their training and intellect to the specific circumstances before them, which will always be different. One size will not fit all. The Government is confident that our courts are run by people who have precisely those essential capacities. That is why we have confidence in our system of independent courts. We believe that the judiciary are best placed to make decisions on how to balance the rights of the media with an open and fair court system. I am confident that they will continue to do so in the future against the background of the rapidly changing challenges that are posed by this digital age.

15:41

Members will know that it is not only in this place that the relationship of the media with the criminal justice system is under scrutiny. Lord Justice Leveson’s inquiry has heard a good deal about the impact of press intrusion on criminal investigations and court proceedings and, today, the director general of the BBC has had to respond to the opposite—to allegations of cover-up in the Jimmy Savile scandal. Those inquiries are just as pertinent to Scotland as they are to other jurisdictions.

A few weeks ago, the United Kingdom Government said that it would legislate to allow filming of some aspects of court proceedings in England and Wales. Here, as we have heard, the Lord President announced just last week a detailed review of policy on the use of television cameras in court. That review will no doubt take account of the evidence to the Justice Committee, which, as we have heard, has so far been largely—although not entirely—sceptical about or hostile towards increased media access.

As has been said, filming in court has been permitted in Scotland, on the basis of consent, for the past 20 years. Christine Grahame mentioned the amendment to the notice that was made earlier this year. In practice, only very limited parts of a very small number of court cases have been broadcast in that time. I have no doubt that what Lord Gill intends to hold is a review of whether now is the right time to increase such coverage, as is happening elsewhere, or whether it should be curtailed.

It is important to consider the wider context, starting with the European convention on human rights. The minister referred to the existence of almost universal values in this area, but Governments are also under specific obligations. The ECHR requires that an accused person be given a fair trial, that individuals’ right to privacy should be respected and that a free press should be able to

“impart information and ideas on all matters of public interest”.

That is a set of obligations that are potentially in conflict. As the minister said, it means that legislation must be properly balanced to protect the rights of all who are involved in court proceedings, as well as the rights and duties of the people who report them.

Later this session, ministers will propose new laws on support for victims and witnesses, and I believe that that should be the starting point for and the centre of this afternoon’s debate. In dealing with the issue of filming in court, Alan McCloskey of Victim Support Scotland told the Justice Committee that

“From the perspective of victims and witnesses, coming to court is one of the most traumatic things that an individual has to do ... The potential to be in the media spotlight and to be part of that circus adds a different dimension.”—[Official Report, Justice Committee, 2 October 2012; c 1779.]

In other words, witnesses could be deterred from coming forward if trials were televised. They might be concerned about the impact that giving evidence could have on their families or on themselves.

Indeed, although witnesses might be given assurances about confidentiality in a particular case or in relation to their evidence, they might find those assurances difficult to believe if they were seeing other cases being played out on television or their broadcasting being repeated in detail after the trial.

Does the member think that there might be a balancing act performed by television in court, given the uncensored information that can come out of court through the new media now?

I will come on to the new media, but I completely accept Margo MacDonald’s point that the two issues are related and that any inquiry that the Justice Committee—or indeed anyone else—engages in has to look at the relationship between the new media and the broadcast and print media, because if there are concerns about protecting victims and witnesses those concerns must apply to the accused as well. Accusations that are made in court will have a much greater impact on the lives of all concerned if they are broadcast to the nation.

There will be an impact not only on the accused person himself or herself or only on those who are found guilty. A story, once written, can be accessed on the internet for ever more. Instead of today’s news becoming tomorrow’s chip paper, the risk is that today’s proceedings could become a virtual life sentence, whether the person is convicted or not.

The broadcasting industry acknowledges some of that burden of responsibility. Its code of conduct says:

“Broadcasters should try to reduce the potential distress to victims and/or relatives when making or broadcasting programmes intended to examine past events that involve trauma to individuals.”

That safeguard and the practice of considering any application for filming in courts on a case-by-case basis provide confidence in the working of the current Scottish system. It is important that that confidence is not undermined. It will also be important when consideration is given to the benefits that broadcasting and greater access can have in increasing public understanding. It is important to recognise that the bits of court proceedings that are most likely to be of interest to most people are precisely the ones that are likely to be protected under any imaginable statutory provision.

Nobody wants witnesses or victims—or indeed the accused—to become bit-part players in a soap opera, as happens in some other jurisdictions. Their rights to a fair trial and to a just outcome have to be at the top of our list of priorities.

Mr Macdonald, please start to conclude.

I conclude by referring to the new media issue that was raised by Margo MacDonald. As has been said, those who tweet, text or blog can reveal unreported information, find out about cases or discuss the day’s developments with friends or strangers. If jurors do any of those things, they compromise their own impartiality and the judicial process. That is equally true of witnesses.

In considering what priorities the Justice Committee should have, I note that a review of filming in courts is under way, commissioned by Lord Gill. The issues around social media are the ones where the greatest difficulties arise—that is a fact. Social media is not optional; it is there, and how the courts respond to it is something that bears future scrutiny.

On a point of order, Presiding Officer. There is an important matter that needs to be addressed. I apologise for interrupting the debate. Earlier today, the Deputy First Minister told the chamber that the Scottish Government had not sought legal advice on an independent Scotland’s continuing membership of the European Union. However, in an interview with Andrew Neil from the BBC in March the First Minister said, in response to a question on whether he had sought advice from his own Scottish law officers,

“We have, yes ... Everything that we have said is consistent with the legal advice we have received.”

Those two statements cannot both be true. Either the First Minister has misled this chamber since the spring or the Deputy First Minister has misled the chamber today. Can the Presiding Officer advise whether an early opportunity can be provided to allow the First Minister to clarify this serious matter?

Mr Rennie, as you will know, the Presiding Officers are not responsible for the veracity of the statements of members of Parliament. However, you have raised the point of order and it will be reflected on and a response will be given to you.

To resume the debate, I call John Lamont, who has an extremely tight six minutes.

15:49

We welcome today’s opportunity to consider the role of the media in the criminal justice system. Scotland’s criminal justice system does not exist in a vacuum and must respond to and evolve within modern-day conditions if it is to remain a credible and effective institution.

Today, we have heard of a number of the difficulties that the modern world and the digital era present to the criminal justice system. Many of those challenges can be observed most starkly when considering the Contempt of Court Act 1981. In an age of citizen journalism and unfettered access to new media platforms, some have raised concern about the suitability of a strict liability offence of contempt of court. During evidence to the Justice Committee earlier this month, some witnesses observed that the majority of the public do not know and cannot be expected or presumed to know the legal implications of what they write or broadcast online regarding criminal trials.

While “ignorance of the law is no excuse” and the need to ensure the fairness of criminal trials must remain fundamental tenets of our legal system, the appropriateness of a strict liability offence punishable by a custodial sentence of up to two years must, in the light of modern conditions, be seriously assessed with regard to the principles of fair labelling and proportionality. However, evidence to the Justice Committee raised the possibility of the need for a more comprehensive reform of the 1981 act. Aamer Anwar commented on the need to bring the law of contempt into the 21st century, and Steven Raeburn likened the 1981 act to

“using a bow and arrow against chemical weapons”—[Official Report, Justice Committee 2 October 2012; c 1777.]

and called for a “fundamental overhaul”. The witnesses did not share one view, though, with Alistair Bonnington supporting the case-by-case discretionary approach that the 1981 act allows.

It cannot be denied that today’s digital era threatens the efficacy of the 1981 act in securing its objective that jurors’ minds are free from the effects of prejudicial information that may endanger the fairness of a trial. Nevertheless, although there is evidence that jurors are discovering and actively accessing information relevant to their trial online, we have no similar evidence as to the effects that such exposure has on the decision making of a jury. Studies from Canada and Australia have shown the effects of trial reporting on the jurors’ consideration of evidence to be markedly less pronounced than expected. For example, a study from New South Wales found that, although jurors often tracked down coverage that was relevant to their trial, they were generally not influenced by bias or incomplete reporting. Publicity was found to have influenced a verdict in only three out of 41 cases, underlining jurors’ scepticism towards sensationalist and speculative reporting.

The need for such information in a Scottish context is clear. If experience elsewhere shows that jurors either do not believe or are uninfluenced by prejudicial information from citizen journalists, bloggers or even ardent tweeters, a knee-jerk overhaul of the 1981 act in the absence of solid empirical evidence would simply put the cart before the horse. A more sensible suggestion, which has been mooted in England and Wales, is an amendment to section 8 of the 1981 act to allow evidence on the matter to be gathered.

Discussion of the media brings us to the televising of court proceedings. Although rare, cameras in Scottish courts are nothing new. We have accepted their use in principle since 1992. It was Lord Hewart, the Lord Chief Justice, who said that it is

“of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Open justice is critical in ensuring the fairness of a legal system, and the televising of certain court proceedings has the capability of furthering that aim.

However, the public interest in open justice is not limited to its capacity to deliver fairness in our legal system; there is also a public interest in increasing public knowledge of our legal, court and criminal justice systems. The most recent Scottish crime and justice survey statistics show that 64 per cent of Scots do “not know very much” about the criminal justice system, with 17 per cent saying that they knew nothing at all. Furthermore, only 19 per cent of those surveyed stated that they had ever come into contact with the Scottish judiciary. Making court proceedings more accessible to the public through television not only may increase the public’s awareness of the criminal justice system, but goes to the very heart of the authority of the law.

Does the member agree that there is a potential hazard in the case of someone accused of behaving inappropriately towards children who is filmed in court, but is then released because there is no case to answer and goes back to their community?

I acknowledge that concerns exist, but many such arguments are not against the use of cameras in court proceedings per se, although they might be arguments against unfettered camera usage in all forms of court proceedings or arguments for restricting filming to the sentencing or appellate level, as has been proposed in England and Wales. If any proposals included televising criminal trials, strategic camera placement might be one solution to combat not just Margo MacDonald’s concerns, but other concerns that were raised in the Justice Committee’s evidence session.

It is important that the nuances in all aspects of the debate are recognised and that it is not presented as an argument between polar opposites. Presenting it as such would inevitably result in the baby being thrown out with the bath water. All parties should work together to avoid such an outcome.

As a result of interruption, the debate is very tight for time. Although members have six minutes for speeches, shorter speeches would be appreciated and might allow us to fit everyone in.

15:55

I will try to be as speedy as I can be, to allow everyone to speak.

At the Justice Committee meeting, one witness—Iain McKie—made the good point that

“we cannot put the genie back in the bottle”.—[Official Report, Justice Committee, 2 October 2012; c 1775.]

He could very well be right. Of course, we cannot stop—and, perhaps importantly, some people would not want to stop—the growth of certain media and people’s access to it.

It is important to debate the role of the media in the justice system in order to listen to both sides of the argument, and I hope that we can move towards a consensus on the best way forward. Some argue that we need to look more closely at the juror system and even suggest that we should explore the possibility of having professional jurors. I take on board the minister’s comments on jurors, but I would like to touch on that aspect. The idea of professional jurors involves jurors being trained to understand the complexities of some cases and have expert knowledge, or being given a better understanding of the media and social media in particular.

A recent—unintended—case of expert jurors in America springs to mind. In a patent dispute between two very well-known companies over the use of software, one juror was revealed to have expert knowledge of software. In his words, he was quickly able to see that copyright had been infringed. In an interview after the trial, he said that he was able to inform the other jurors of his knowledge, and the reasons for his decisions helped the jury to reach a verdict much more quickly than it might have done without him.

In that case, having a juror with expert knowledge of a complex issue seems to have helped in reaching a verdict, but I am still to be convinced that moving towards a system in which all jurors are professionally appointed is the way to go. The professionalisation of the jury service could raise a number of questions about its impartiality, which is of serious concern, although I take on board what the minister said.

We all know that our jury system is intended to represent a broad section of society and to involve people of many differing backgrounds, professions and opinions, who can reach some form of consensus. However, I admit that, given the complexity of some criminal trials, many jurors may feel somewhat overwhelmed—other members have mentioned that. In such cases, it would be a good idea to explore the possibility of offering impartial expert advice on the issue and on points of law that are being discussed.

On broadcasting criminal trials, I have sympathy with the idea of having wider access, transparency and therefore oversight of trials in general, but it is important for any move towards more coverage to ensure that the principle of protection for the victims and the accused is paramount. Many witnesses expressed concern to the Justice Committee about the need to protect victims and witnesses from any undue stress as a result of the media’s role. Going to court can be a difficult experience for many, as they have to relive the crime that was perpetrated against them and face the accused. That can be traumatic, as Lewis Macdonald said.

As was mentioned in the committee’s evidence session, it is true that many witnesses come forward reluctantly. However, if they did not come forward in the first place, we might not get a conviction for many crimes, especially those of a violent or sexual nature. That issue is of paramount importance in informing any proposals.

Conversely, it is also important to protect those who are accused. Many people have mentioned Aamer Anwar. In his evidence, he noted that it is important to protect the rights of the accused who are subsequently acquitted. I agree that that is important. We have all read about cases—some have been mentioned—in which the police have released the name and details of their suspect, only for that to be the wrong person. In the time that it has taken for the mistake to be corrected, the media have seized on that information and, in the process of reporting, put the suspect and their family under considerable stress.

That can also be the case with trials, which are highly publicised. Even if the accused is acquitted, they may find themselves having to live with the public perception that they are somehow guilty by association for many years to come.

If reform is needed—and I say “if”—it must be done as carefully as possible to ensure that people have the right to a fair trial by their peers and that those who are involved in the criminal trial are protected at all times.

The genie cannot be put back in the bottle, but—as in many stories involving genies—we must be very careful about how we deal with the issue once the genie is out of the bottle.

16:00

The digital era offers a severe challenge to the courts with regard to how they administer justice in the modern environment. There is no doubt in my mind that there is a need to modernise the culture and administration of our courts, which are couched—as many see them—in arcane convention and processes that are often difficult to understand.

Sandra White was correct to identify that we need to take great care before we move forward on any reforms on access to courts by the media. We should remember why the courts are there in the first place: to seek and deliver justice, and to pay appropriate attention to fairness. They are not an entertainment, nor are they a source of information in a broad sense. However, it is an agreed convention throughout Europe—not solely in Scotland—that in order to administer justice it should be seen to be done. Evidence is often tested and the credibility of witnesses and witness statements is subject to examination and cross-examination.

In those circumstances, one of the overriding effects of attendance at court is fear. That fear affects witnesses, who have been drawn into a situation that is often not of their making, but who seek to deliver their civic duties; victims, who have unfortunately been on the receiving end of some criminal activity; and the accused, who are there before the courts so that the courts can decide on their guilt or otherwise in respect of the charges. In my experience, jurors too are not particularly keen to volunteer to provide their duties.

Equally, officers of the court, along with the other actors in the trial process, expect that they will be seen and be subject to public scrutiny in the court and that, given that there is physical access to the court, people will be listening to the process. However, they do not expect to be the subject of a public broadcast in which their identities—and the identities of all those people—are transmitted to some unknown and unseen viewer.

Such changes create additional pressures with regard to the consideration of safety and the attraction that the courts hold in bringing people to offer evidence. I suggest that the development of closed-circuit television in recent years has been based to some extent on the fact that it is difficult to encourage witnesses to come forward and offer evidence. The provision of CCTV images has filled the vacuum that has developed in the past decades.

The use of TV in the court will have an impact on witnesses, who know that it may well transmit their identities to the areas that they have come from to give their evidence. Those witnesses who are unfortunate enough to come from areas that are notorious for criminality may well fear all passing adults for weeks and months after their appearance in court. Such pressure is too much for ordinary people to bear. The same attaches to those who serve the court as officials and those who are there as jurors, as well as to the accused.

Equally, TV’s appetite for rerunning court proceedings might influence jurors who are engaged in the process of a trial, or jurors coming to live cases in the future. In 2010, a trial involving a former member of the Scottish Parliament created such a press feeding frenzy that the subject was rarely off our televisions. From that experience, I did not detect any improvement in the way in which justice was delivered in the Scottish context.

How justice is delivered in such circumstances is now to be the subject of a review by Lord Gill, and I welcome that. It is right that those who have the greatest experience of the processes should have the opportunity to assess the likely impacts. The transmission of judges’ decisions goes a long way towards allowing the general public to understand what is done in their name in our Scottish courts, and I think that most judges would be happy to accept the responsibility of being the subject of such transmissions.

I apologise for my question looping back a bit, but I wanted to get in before the member progresses his argument much further. Is there the possibility of having an intervention on the part of an accused who feels that media publicity has made his or her trial impossible?

I am sure that such an intervention, once televised, would create a great deal of conflict and difficulty for courts in deciding such a challenge.

I encourage the Government to spend a great deal of time looking at how TV could be used for pleading diets and procedural matters in the courts, so that the number of journeys that are made to court by prisoners who are in custody can be reduced. I also ask it to take great care before it decides to change the way in which media is used in our court processes.

16:07

I refer to my register of interests as a member of the Faculty of Advocates.

The televising of court proceedings has not been reviewed since the then Lord President issued guidance 20 years ago, so many will view Lord Gill’s announcement of a review as a measure that is coming not before time. My view on the matter is one of caution. We clearly need an open and transparent criminal justice system, but the interests of justice must remain paramount. Allowing television cameras into court to film proceedings must not be for the purposes of entertainment—it should not be reality TV for those who are at home during the day to fit in between “Cash in the Attic” and “Countdown”. It can be justified only if it improves public understanding without impinging on the administration of justice.

Our nearest neighbours south of the border are looking at the possibility of televised trials. The traditional difference between the jurisdictions of England and Wales and of Scotland, until Lord Gill’s announcement suspending it, was that the final decision was left up to individual trial judges.

While televising proceedings was banned altogether in England, there has been no such ban in Scotland, but there was a requirement for all involved parties to consent, until Lord Hamilton’s recent change. However, it is clear that, while in both jurisdictions there is little disagreement that judgments, sentencing and the disposal of appeals can be televised safely, there are concerns that filming might seriously impact on the ability of witnesses and victims to give evidence.

If we look over the sea to Norway, another of our close neighbours, few of us will not have caught a glimpse of proceedings in the trial of Anders Breivik, the man who was convicted in August of murdering 77 people in one of the worst indiscriminate killings in memory. His trial was televised in its entirety, with the exception of his testimony. The decision not to air that was made because of the considerable emotion that surrounded his crimes and the concern that giving air time to his extremist views, the basics of which were already widely known, would reopen emotional wounds across Norway. However, the televising of his trial was widely seen as having a cathartic effect: it allowed people to see with their own eyes that justice was done and, in some ways, perhaps offered through the objective spectacle a degree of closure to the nation.

To what extent should we follow such practice here? At the recent round-table discussion on the issue at the Justice Committee, a recurring concern was the need for safeguards and guidelines. Particularly strong points were made in that regard by Victim Support Scotland in relation to the protection of witnesses. Donald Findlay QC was strongly against the proposal to televise trials and suggested that lives could be put at risk by doing so, and Aamer Anwar referred to the unhappy experience of the O J Simpson trial. By contrast, Steven Raeburn of The Firm argued that

“the functions of the court are not operated for victims or for any particular interest group; they are for the public interest, and the public interest must be fully served.”—[Official Report, Justice Committee, 2 October 2012; c 1787.]

However, the public interest is surely best served by ensuring that the interests of justice take precedence. Any future change must surely be conditional on an assurance that the safety of no one—be they victim, witness, juror or other interested party—will be jeopardised and should be introduced only on the basis of clear guidelines for broadcasters, the judiciary and the public alike.

If there is a genuine case for televising trials, particularly in respect of evidence—I am not fully convinced that there is—it should be the subject of careful consideration. I think that we all await with interest the Channel 4 series “Windfall”, which will include the Nat Fraser trial. We should approach the issue with caution, but certainly not with closed minds. I await the outcome of the Lord President’s review with interest.

Today’s debate is of course wider than just whether to televise trials; it extends to how the media and press interact with our court system. The Contempt of Court Act 1981 is a piece of legislation that is worthy of closer scrutiny in these circumstances. As other members suggested, at the Justice Committee’s round-table session a wide range of views was expressed on how the Scottish justice system should work with the media, not least the press.

The “superinjunction farce”, as it was labelled by Steven Raeburn—when an English footballer sought a ban on newspapers reporting his alleged affair in order to protect his identity, while the social networking site Twitter was awash with his name—is an example from England and Wales of the frailty of legislation in the face of modern mediums of communication. Several witnesses at the round-table discussion suggested that the 1981 act is in need of review to make it robust enough to deal with 21st century communication, although how that can be done without venturing into the territory of policing the internet is not clear.

On the issue that the member just raised about policing the internet, was that not debated during the passage of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill?

There was certainly a reference to it, but I do not think that it was a substantial part of the debate on the bill. However, that debate is now history and we shall see how the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 operates in practice.

Most people at the round-table discussion believed that extending the provisions of the 1981 act to cover internet communications would be a futile exercise. I agree with that view.

In view of the time, I will make one final point. Aamer Anwar said:

“We have reached a stage at which the judge’s directions must be in severe and unequivocal language, so that jurors understand that if they go home and research and download material, they can be sent to prison for doing so. Jurors need to understand that it is as serious as that.”—[Official Report, Justice Committee, 2 October 2012; c 1780.]

I agree with that and I think that the matter needs further attention.

16:13

I draw attention to the register of members’ interests and the information that I am a columnist with the Daily Record.

I welcome the opportunity to participate in this debate, because although the decision on televising court proceedings is quite rightly one for the Lord President, Scotland’s most senior judge, it is proper that parliamentarians have the opportunity to contribute their views and experience in that regard. My experience comes from a background in the print media, though I confess that my shorthand was never quite fast enough for me to follow a career as a court reporter. That said, the age of the court reporter passed many decades ago, and that, combined with the decline of the print media generally, is the reason why we are having a debate about trial coverage today.

We have heard a lot about modernisation and responding to advances in technology, but equally there is a debate to be had about the decline of traditional media and the effect that that has had on the reporting of court proceedings. How do we fill the gap to keep the public well informed and ensure that justice is seen to be done? Even those newspapers that cover trials today simply do not have the space, or indeed the manpower, accurately to reflect lengthy court proceedings in the level of detail that was common 50 years ago. One will read edited highlights of the day’s action—and “action” is how it is presented. The reporter will have to make a judgment on what he or she considers most newsworthy and construct a narrative around that. As a consequence, the reader may remain ignorant of witness testimony and other evidence that turns out to be critical to the outcome of the case.

The dwindling number of local newspapers is also a factor in the debate. High Court trials of national interest will continue to be given space in our national newspapers, but the decline in the local press over the past 50 years means that cases that might be of great interest to a particular community go unreported. Combined with the closure of smaller courts—albeit for perfectly legitimate reasons—that means that the dispensation of justice could be increasingly remote unless we modernise.

It seems to me that this decline must be addressed by using electronic technology to deliver the kind of forensic reporting that we once saw in newspapers. That is not to say that every fad can meet this need. In my view, Twitter is an entirely unsuitable vehicle with which to report court proceedings. As has already been said, the pitfalls of trying to express a subtle, nuanced case in 138 characters are well known. Twitter should be used only to direct viewers to a verbatim report of proceedings.

However, I believe that it is worth exploring whether there might be a role for accredited bloggers in court, if they are trained in Scots law to the same level as traditional newspaper reporters and subject to the same expectations and restrictions. As others have said already, we have already seen such bloggers in action in high-profile trials, particularly in the work of James Doleman in the Sheridan perjury trial last year. If such accreditation were possible, that might also address the difficulties that have been highlighted, such as members of the public blogging from a trial and presenting it in a highly partisan manner.

Obviously, allowing television in court is another suggestion for filling the gap caused by the decline in verbatim reporting. I am not against television cameras in court per se, but I take the point made by Donald Findlay QC and others about witness intimidation. However, the same arguments could have been made 50 years ago to prevent newspapers from covering trials and printing witness names and addresses.

That is an intriguing point. Obviously, the member was not in favour of witnesses blogging afterwards and giving a highly partisan account, but does not every human rights law that we have allow us to be wrong and to talk about it in public?

Yes, absolutely—after the trial. I guess that I was talking about people blogging from the court and giving partial reports of what was happening in court that would never appear in any newspaper under the rules that we have at the moment.

Personally, I do not think that ratings-driven television channels are the correct vehicle for the coverage of trials. The Channel 4 briefing pointed out that its High Court programmes used small, silent, remotely operated cameras so as not to disturb the proceedings, but at the end of the day television stations will want to show edited highlights and will concentrate on high-profile cases. That is already the pattern in the limited televisation of Scottish court proceedings that we have already seen. In 2008, cameras were allowed into the appeal court for the decisions on Nat Fraser and Luke Mitchell, but those decisions would have received considerable coverage whether or not they were filmed. My concern is for the less high-profile cases up and down the country that do not get coverage.

One way to avoid the Hollywoodisation of trials that is causing so much concern might be to take the matter out of the hands of television stations by having an independent court TV service provide a verbatim recording of proceedings in the way that the newspapers of old did. Such a service could be bound by the same rules as the televising of this Parliament and forbid editorialising through the use of camera angles and cut-aways.

Having said all that, we could be putting the cart before the horse in looking at television as the only solution to the decline of verbatim reporting.

I would be grateful if you would close, please.

Thank you.

The Scottish Court Service already has stenographers who compile verbatim transcripts of trials, but it is difficult for members of the public to get hold of them without going through a complex application procedure and paying a great deal of money. If the Parliament can provide a timely written report of proceedings, I do not understand why we cannot get the same for our courts.

16:20

When the Contempt of Court Act 1981 came into force, people received news through the print and broadcast media. At that time, the print and broadcast media were information services that delivered facts to people. However, in the past few decades, the media have become far more gossip driven. With the creation of the internet and social media, we now live in an information and gossip-intensive age. I have grave concerns about the use and influence of Facebook and Twitter in our courts and I have reservations about the broadcasting of criminal trials on television.

The main priority of any discussion about involving the media in court procedures needs to be the administration of justice, because our court system looks only at facts and not at gossip. In the past, cameras have been allowed in courtrooms with the express permission of the presiding judge and of all the parties involved. On occasion, we have had live televising of judges during sentencing proceedings but, crucially, that has been without witnesses present. The justice system needs to ensure that potential witnesses are protected and do not feel intimidated. I agree with the point that Victim Support Scotland made in evidence to the Justice Committee that going through a court case as a victim or witness can be traumatic. As I understand it, it is already difficult to get witnesses to come forward.

Donald Findlay QC, in his evidence to the Justice Committee, raised the fear that relaxing media restriction on the reporting of criminal cases might harm the people who are on trial. Currently, when someone is acquitted, that is because the justice system and a jury of their peers have listened to evidence and reached an informed decision. It is not fair to say that a person has been acquitted but that people can decide for themselves and watch it on television. That could also harm an offender’s rehabilitation. If we want a Scotland that is a progressive beacon, those who commit offences in our society should be given a fair trial and, if convicted, should be judged on their actions, not vilified on prime-time television.

Many court cases involve the most vulnerable people in society, whether they are the victims or perpetrators. If we allow cameras into court, court cases could become voyeuristic. Regardless of the crime that is committed, we have a duty to ensure that justice is carried out in a fair and measured manner. We must ensure that victims, witnesses and the accused, and their families, are protected from retribution and retaliation.

We need only look at examples from across the Atlantic to see what might happen if we relax the restriction on media broadcasting of criminal trials. The trials of O J Simpson and, more recently, Casey Anthony were broadcast to every home in America and everyone had an opinion on whether they were guilty. Is there any evidence in America to show that the general public have a greater understanding of their justice system as a result of watching those high-profile cases, or does televising simply fuel more gossip?

Although I feel strongly that the general public need to be educated about how our justice system works, I am yet to be convinced that that can be done through the broadcasting of criminal trials. In evidence to the Justice Committee, Mr Steven Raeburn made the point that televising criminal trials could help to educate the public on criminal proceedings such as the double jeopardy and corroboration rules. However, I remain unconvinced that televising trials with no explanation of process or legal jargon will help to educate the public.

Before I became a member of Parliament, for many years I sat on employment tribunals. Tribunals do not involve nearly as much legal jargon or process as criminal cases, but I found that many people who brought cases to tribunals and many witnesses who were called to give evidence did not understand the process and found the legal jargon difficult and complex. If the process is difficult to understand at that level, how much harder would it be for the public to understand criminal proceedings?

One example that has been overlooked is the Leveson inquiry. It is not a criminal trial but, although it has heard evidence from many high-profile politicians and celebrities, there has not been a huge interest among the general public in its proceedings.

If a member of the public has a great interest in criminal proceedings, they can attend court in the gallery. However, I am not aware that there is a great public clamour to attend criminal trials unless the case has a high profile or is particularly salacious. Although I understand that a five-minute summary on the evening news might focus on one particular issue in the case, the general public would rather watch that than four hours of a criminal court case.

I am pleased that we are considering ways to educate the general public better on how our justice system works. However, broadcasting criminal trials is not the way forward. Any changes to the media reporting of criminal trials must not jeopardise the administration of justice. They must also protect the victims, witnesses and the accused.

16:26

This is an incredibly interesting subject and there have been some excellent speeches from members.

Over the years, we have trusted the integrity of journalists and news providers to ensure that the proceedings from a court of law are handed down to us understandably and truthfully. Journalists, proprietors and editors also understood that there were legal limits that could not be crossed. Woe betide anyone who did cross them, as they might have ended up facing a charge of contempt of court.

However, the reality was and is that journalists, editors and proprietors always pushed the boundaries of law and journalism in the race to get a headline-grabbing story for the next print edition or broadcast. As Joan McAlpine said, we live in a society in which journalists and editors are under pressure because of falling sales.

The new thing is news media on the internet. It is fast paced and updated every minute or so. Anyone can be a media journalist, can they not? Therein lies the first of our problems. A well-trained journalist knows the boundaries that they cannot cross without running into contempt of court. However, what happens if someone reading a third-hand report of proceedings produces a report outside Scotland?

My second problem—I am sorry to pick on it—is Twitter. Tweets have a maximum of 140 characters. The author sits in court and produces numerous tweets, all of which sit nicely on the screen for any reader. However, if a reader subsequently picks a tweet, puts it into an inappropriate context with some of his or her comments and that tweet goes viral, lo and behold, we have a possible contempt of court. Who would be charged: the original author or the person who doctored the original text?

Steven Raeburn and Aamer Anwar mentioned those problems and connected ones at the 2 October Justice Committee meeting. It was one of the most fascinating meetings that I have attended in a long time, not least because, as the convener pointed out, she did not get much chance to speak.

How do we police the internet in a manner that is fair to the reader and the author? How do we maintain an adequate quality of reporting online? Should we allow Twitter to be used in criminal courts? At this moment, I just do not know. What is the difference between Twitter and journalists sitting in court passing paper messages out the door? My answer is that I suspect that anyone who passes paper notes out the door would be far more concise than someone who has just 140 characters.

As has been pointed out, Magnus Linklater suggested that the law in Scotland is tougher than that in England.

There is also the problem that, at the end of a day’s proceedings, a juror could go home and start doing research on the accused and the witnesses involved in the trial. How are we to stop that so that the juror can come to a determination on the information that is gained in court alone? What happens if the news source that the juror uses is not professional and reliable? I suggest that there would be even more chance of a wrong judgment.

The question that has to be asked is whether the current laws on the reporting of trials are fit for the 21st century. My point of view on the televising of court proceedings is probably closer to Mary Fee’s at this time. We have all seen fictional courts of law on television or in films. They are often perfectly filmed, with camera angles chosen to show the drama and emotion of the cross-examination and verdict, and they often have little regard for the legal niceties. However, that is not what we are likely to see. I am aware that there is a review of television access to criminal court proceedings, but I cannot imagine that it would provide riveting viewing. There would not be Hollywood-style productions. What has been shown of previous trials suggests that watching live proceedings would be boring to anyone but those with an interest in law or a particular case.

I would have concerns about images of the defendant, witnesses and jury being shown on television. A court appearance is stressful, and unless the defendant is a trained actor, his or her demeanour might be seen as a look of guilt by viewers. If the defendant’s demeanour allows viewers to believe in their guilt, what will happen afterwards if they are found not guilty? Donald Findlay QC raised concerns about the safety of participants in a criminal trial should their images be seen on TV.

Should the rules on TV coverage be relaxed in the event of an appeal? After all, the defendant is seen as guilty at that time. Another issue is how the media react to friends and family outside the court. The reaction can be quite shocking in some instances—Aamer Anwar’s media scrum comes to mind.

The Justice Committee’s round-table discussion on the issue was phenomenally interesting and it gave us some food for thought, but the priorities should be the welfare of the victim and the principle that people are innocent until proved guilty.

16:32

I will say a little about the role of the accused in the process. I do not think that members have said much about that in discussing television exposure.

The basic principle is that someone is innocent until found guilty. Donald Findlay asked the Justice Committee:

“If someone is acquitted, why should they have their image blasted into every home by the television?”

He also said:

“The lives of people who are convicted or acquitted of serious criminal charges could be put at risk, because there are people out there who want to seek vengeance.”—[Official Report, Justice Committee, 2 October 2012; c 1781-2.]

I associate myself with those concerns.

I would also like to comment on the position of victims of miscarriages of justice. I have specific constituency experience of that from two cases in particular. At the times of the trials, there was significant media interest. A victim of a miscarriage of justice has a statutory right to appeal, and the appeal can again be subject to significant media interest. One day, with almost no support, the person is released from jail and told that they can walk free, yet they receive less support from society than someone who was guilty and has served their time.

Such people are a tiny minority, thankfully, but their individual human rights need to be protected as well. Are we saying that their images should be blasted across the television? If we allow that to happen, it could create danger as well as compounding the miscarriage of justice. I have seen at first hand how such people’s mental and emotional wellbeing is damaged by the lack of support. I wanted to put that on the record while we are discussing media exposure.

I want to say something about the vulnerability of witnesses. Detective Chief Superintendent Cuddihy said in his evidence to the committee:

“When the due process of law results in judicial proceedings, we must ensure that victims, witnesses and their families are protected from the fear of intimidation and influence—perceived or otherwise—and that they are free to give evidence without any undue pressure being applied to them that may result in the integrity of the evidence, the trial and justice being compromised.”—[Official Report, Justice Committee, 2 October 2012; c 1793.]

Again, I associate myself with that concern.

Without going into any details, as that would be inappropriate, I am convinced that I have witnessed intimidation of witnesses in a courtroom simply by the fact the accused was in the same courtroom—never mind what would happen if greater exposure was shone on witnesses in the schemes and communities from which they come. I have significant concerns in relation to that.

I have significant concerns about the concept of someone who willingly gives evidence being labelled a grass by a minority of people in some of our communities and how that plays out in those areas. We should be doing what we can to support people to give evidence rather than putting barriers in their path. I am concerned that, although we want to see as much transparency as possible in the judicial system, we might not meet the ends of justice for people who are vulnerable by shining more of a light on the system.

On the other side, there is the issue of conniving witnesses. Not all witnesses go to court to tell the truth. If someone agrees to be a witness, there could be a concern that they will play to the audience when giving evidence. The criminal defence solicitor Aamer Anwar stated in his written submission that potential safeguards will do

“little to tackle how the filming of witnesses will stop them embellishing their evidence or tailoring it, due to the fact that they will be judged by millions watching at home”.

Indeed, witnesses may follow the trial via whatever media platform in advance of taking to the stand. That is another concern of mine.

I am concerned about how things will play out in the reporting of serious and organised crime. I tend to think that those involved at the very top of serious and organised crime do not like light to be shone on their activities, as they can be quite secretive. However, their henchmen are not that secretive and have a swagger in some of our communities. At times, they have been quite impudent when they have been on the witness stand or, indeed, been the accused. The idea of giving more exposure to that behaviour causes me significant concern. The issue is reducing, but it is still the case that in some of our communities glamour is associated with the gangster—the person who derives an income from criminality. I worry that the more exposure those people get, the more antiheroes we may create in some of our vulnerable communities. I therefore have a series of concerns.

Flipping completely on the issue, I go back to the core position that the more information we can get into the public domain about how the judicial system operates and the process of trials, the better. However, there is a huge array of significant issues, some of which I have outlined, which I am sure that the minister will consider when she weighs up her personal views on what will of course be an independent judicial review of the role of the media in the justice system.

16:38

It is clear from this afternoon’s debate that the issue of how the media interact with criminal trials is extremely complex. Any liberal society must walk a fine line between allowing free and open reporting of criminal proceedings and ensuring that the right to a fair trial is in no way compromised. With the growing prevalence of social media and 24-hour news channels, the first of those aims is flourishing while the second is increasingly threatened.

I emphasise that I hope and believe that no media outlet in Scotland would ever intentionally seek to compromise criminal proceedings for the sake of a story. Yet with increasing and, particularly in the case of Twitter, instant access to various details of on-going criminal cases, there is a greater risk of unfiltered information entering into the public domain, of the publishing of partial facts, or of skewed or prejudiced perspectives—any one of which has the potential to influence proceedings.

A particular concern in this regard, which was raised by many of the experts we heard from in committee, is about the role of jurors in the information age. The question of how the changing manner in which information from court cases is disseminated to the public—and so often into the hands of those involved in deciding the case—should impact on how the justice system works is far from straightforward.

In committee, we heard suggestions ranging from the rewriting of the Contempt of Court Act 1981 to a move to a system of professional juries. I would be interested to know whether the minister is considering the media’s impact on jury trials as part of the Government’s wider reforms of the Scottish justice system.

I am sure that much of the focus of the debate, particularly in the press, will be on the on-going discussions about the presence of TV cameras in courtrooms, which is what we have mostly discussed this afternoon. That is not least because of the Lord President’s announcement last week that current policy is to be reviewed.

Cameras have been permitted to film in Scotland’s courts only on the rarest of occasions. The amount of press attention that the decision to allow coverage of the Gilroy sentencing attracted is testimony to its unusualness.

The arguments in favour of greater TV coverage—that there would be greater transparency in the legal process, which is an inherently Liberal Democratic view, and that justice would be shown to be done, which is perhaps not so much an inherently Liberal Democratic view—are well rehearsed. Greater transparency and more open access to our justice system can only be a good thing.

For lay people who come into contact with the courts for the first time, the experience can be intimidating. I hope that I will not offend anyone in the chamber with this observation, but lawyers and judges can oftentimes seem to go out of their way to confuse, not least by the use of jargon and Latin terms. I do not intend to spend the day making the case for the use of plain English in courts—although that case might be worth making—but people should have the right to understand how the legal system works. They can be reassured that it works and works fairly only through that understanding, and the system will become less intimidating only through that understanding. Opening up court proceedings and letting more people see what takes place in the courtroom appears to be a prime way of achieving that aim.

The Government will soon publish its victims and witnesses bill. Protecting witnesses and victims must remain a primary concern whenever we talk about media coverage of the courts. That is one of the key arguments against greater media access. Even attending court can be a daunting experience for those concerned, and the presence of television cameras is unlikely to make things easier. Donald Findlay QC was particularly clear on that point. He argued that broadcasting a criminal trial

“would put pressure on witnesses, and it is difficult enough to get people to come forward.”—[Official Report, Justice Committee, 2 October 2012; c 1781.]

That is a legitimate concern.

Mr Findlay also fairly made a point that is often overlooked: what of the accused who is subsequently found not guilty? Other members have said that it would perhaps be unfair for them to return to their lives having spent a fortnight being publicly and professionally accused of committing a crime that their peers subsequently determined that they did not commit. Does that not risk the public prejudging and endangering the fundamental principle of being innocent until proven guilty?

There are also practical concerns. Broadcasting an entire trial is one thing, but if there are cameras in the courtroom, it is inevitable that an edited highlights reel of the day’s proceedings will find its way on to the evening news. Having a reporter presenting a balanced summary is one thing, but whether it is possible to edit five or six hours of footage into a two-minute report without creating a narrative is quite another matter.

Others have referred to OJ Simpson effect. The last thing that we want is a media circus around criminal trials. That would favour no one. It would not favour the accused, the victim, the witnesses, the jury or, ultimately and most important, justice itself.

Despite those problems, I still find myself drawn to the position that we ought to allow greater access to our justice system. It is a fact that the justice process seems closed off and mysterious to outsiders. It is not as open and transparent as it could or should be. It is not as simple as telling the TV companies to go ahead and start filming, but it is clear that we should give greater consideration to the matter.

In our committee evidence session, Steve Raeburn of The Firm magazine drew an interesting parallel. He said that the BBC Parliament channel

“is an example to follow ... It runs debates as often as Parliament sits, late into the night, probably to a limited audience but to a dedicated audience that is interested. It is our Parliament and we are entitled to see it.”—[Official Report, Justice Committee, 2 October 2012; c 1787.]

I wonder whether the principle is not the same. Of course, many issues must be addressed first and balances need to be struck, but is it not still our justice system and should we not be entitled to see it in action?

16:43

There are few more important subjects than our criminal justice system, because at the heart of any society is the public’s confidence that those who break the law will be dealt with fairly and without prejudice and that justice will be done. The victim expects that, the accused is entitled to it, and the public interest requires it.

Those fundamental tenets must be kept to the fore in any debate about our criminal justice system. Above all else, as other members have indicated, the criminal courts do not exist to provide public entertainment or media gratification. That is the umbrella that I want to hoist up before I consider in more detail the important issues that have emerged during the debate.

It is not surprising that the main elements in the debate have focused on the Contempt of Court Act 1981 and the possibility of extending the televising of criminal court proceedings. Let me therefore deal with the 1981 act first.

The 1981 act was passed in a communications environment that was dramatically different from what we know today, but the underlying principle of the act remains important and relevant: to ensure that the course of justice and court proceedings could not be seriously impeded or prejudiced by the publication of material and that a person who created a substantial risk of such impediment or prejudice would become strictly liable for such publication of material, thereby committing a statutory contempt. There is also a common law contempt, which requires the proof of mens rea—an intention to prejudice the court proceedings.

The whole reason for the underlying principle of avoiding impediment and prejudice to justice is to ensure that the guilty are convicted and that, in so far as possible, the conviction is safe from challenge. Although the world of communication has been transformed by the advent of the internet and social media, which has brought a new raft of challenges to preserving justice in criminal court proceedings, we must not lose sight of the fundamental principle of protecting and preserving justice. That is paramount when we consider any reform.

There are two prerequisites that the Justice Committee might consider before any amendment to the 1981 act is contemplated. First, research should be carried out to gather empirical evidence about the impact of the internet and social media on juries. As my colleague John Lamont said, accessing information online is not the same as being influenced by that information, but we need data on the issue.

Secondly, there is a need for official guidance now on the use of live communication devices from the court. The Lord Chief Justice of England and Wales last year issued guidance on the issue. Can there be some indication as to whether the Lord President in Scotland has reflected on that guidance? The convener of the Justice Committee may wish to clarify that point directly with the Lord President.

I will now reflect on televising court proceedings. As others have indicated, a limited facility already exists, but it is interesting that it is restricted to hearings that do not involve witness testimony. Those who support extending the scope of televised proceedings believe that it would strengthen the principle of justice being seen to be done and better serve the public interest.

I am very clearly of the opinion that exactly the same criteria as apply to determining contempt of court and what is acceptable communication from the court apply to televising court proceedings: those who break the law will be dealt with fairly and without prejudice; justice will be done; the guilty will be convicted; and, in so far as possible, the conviction will be safe from challenge.

As I said, the courts exist to deliver justice, not to provide entertainment. The current—and in my opinion correct—emphasis on fairness, impartiality and transparency does not derive from some abstract tenet of benevolent philosophy to make everyone feel good; it exists to minimise the possibility of prejudice, oppression and collusion resulting in unsafe convictions and miscarriages of justice. That is because the public interest and the victim expect that convictions should be sound and safe against challenge.

It is completely flawed to confuse the principle of justice being seen to be done with the notion that every man and his dog requires to view the minutiae of court proceedings. Mary Fee and Colin Keir alluded to that aspect. The reality is that the average man and his dog could not give a toss about the detail of court proceedings and court procedure. He may be interested in the identity of the accused, the charge against the accused and a summary of the evidence—all of which he can learn from news reporting. Indeed, that will also be sufficient to alert a member of the public that he or she may have evidence relevant to the case. None of that requires detailed viewing of the proceedings.

In relation to the particular issue of the public interest, I think that it is very clearly defined. It is a confidence that the guilty will be convicted and that the conviction will not be vulnerable to challenge because of prejudice to the accused or a lack of impartiality, or because nervous and frightened witnesses were unable to give clear evidence. Graeme Pearson referred to that aspect.

I can see the public interest being disserved by any significant expansion of televised court proceedings, especially if that intrudes on occasions when witnesses are giving testimony. Media coverage will distort the court environment. The accused, who may be innocent, could look shifty and edgy; witnesses who are already nervous could become agitated and confused; and bold, but lying witnesses could look confident and convincing. That has the makings of a parallel trial.

The one aspect of public interest that I do not agree with is the view that, because the taxpayer pays for the judges, the courts and the legally aided solicitor, the public is entitled to know what is going on. By that analogy, because surgeons, nurses and theatre porters are paid for by the public, we would have viewing galleries in the operating theatres of our hospitals.

There are perplexing issues in relation to the media’s role, and it is healthy and encouraging that the Justice Committee is looking at those issues.

The member must close now.

I urge the utmost caution in contemplating the extension of televised court procedures because I would have serious concerns were the coverage to include witness testimony.

16:50

This has been an interesting debate and the Justice Committee is to be congratulated on its work so far. I extend my sympathies to Colin Keir, who I suspect may not get to speak very often at future committee meetings following his comments to Christine Grahame, the committee convener, although I am sure that she will forgive him soon.

I come to the debate as someone with not only a keen interest in the media but a concern to ensure that our justice system is as robust as it can be and that it serves our country well. Roderick Campbell referred to the evidence given by an individual who suggested that the public and not the victim is the main player. I fundamentally disagree with that comment because, to my mind, the victim must be at the heart of the system. At the end of the day, victims are emblematic of us all: they are the symbol of our community in court on that particular occasion. They must be central to our notion of justice and the system that we put in place to deliver it. We must take great care not to turn their tragedy into a soap opera.

We must also take seriously the difficult job that we ask jurors to do on our behalf and the responsibility that we entrust to them. Any changes that we make must help to shine a light on the proceedings in our courts, not trivialise the role of the court service or jurors or—worse still—expose them to danger just for doing the job that society demands of them.

I share the concerns raised by many members that the use of social media in its many forms makes it difficult for jurors to maintain their impartiality. There is a concern that its increased use could see jurors led or witnesses influenced by information that may appear online during a trial. That is not in anyone’s interests, but it is right that the Justice Committee progresses the discussion about how, or whether, the use of social media should be regulated on our behalf.

In evidence to the committee, one witness, Matt Roper of Scottish Television, made the telling point that, with the use of the internet and the plethora of hand-held devices that are available to us,

“The media can be the public at large”.—[Official Report, Justice Committee, 2 October 2012; c 1778.]

How do we regulate such matters and, indeed, should we?

As we have heard, going to court is one of the most traumatic things that a witness or victim will ever have to do—in some ways, it is perhaps even more traumatic than the original crime or incident. We must ensure that victims or witnesses are not prevented from giving the best evidence that they can or do not try to avoid appearing at the trial at all.

My colleague, Lewis Macdonald, was correct to point out the difficulty that can arise when a person who is found innocent by the court is, in effect, given a life sentence by the court of public opinion. That is something that we must all guard against. John Lamont was perhaps correct to suggest that the filming of the sentencing of a convicted person may be appropriate in some cases. My hope is that the starkness of that particular element of the trial may even act as a deterrent to others.

A point of interest is that the sentencing that has been televised was not in real time. My understanding is that the judge ultimately decides what will be broadcast. For example, any sounds from the gallery can be edited out, so the footage is a rather more dignified than it perhaps would have been had the trial been broadcast in real time.

Christine Grahame is absolutely right about that. That is the way it should be, and that approach helps to encourage the starkness of that particular element of the trial as I have described.

My colleague Graeme Pearson highlighted how difficult it often is to persuade witnesses to come forward and cited the need to use closed-circuit television. In my view, that is proof of how difficult it can be to make witnesses feel that they are giving their evidence in a safe and secure environment.

Four years ago, I sat through the many weeks of the public inquiry into the Stockline disaster in my constituency, which was an extremely detailed and interesting process. The inquiry considered the events that led up to an incident that ultimately caused the death of nine people and injury to several others, and it allowed a highly detailed discussion to take place in a calm and reasoned way.

It occurred to me at the time that television coverage of that inquiry might have been in the public interest. The key distinction to make is that it was not a trial. It was a very different beast with a very different way of working and a very different atmosphere, and it was something that involved—to pick up on Mary Fee’s point—a minimum of legal jargon. Indeed, the presiding judge was quick to pull up anyone who strayed into that territory too often.

My own view is that we need to be extremely cautious in taking forward this debate. I am not convinced that a right to televise trials would be a step forward, and I worry about the way in which social media are often used. However, Alison McInnes had a point when she suggested that there are other ways that might usefully be considered of making our courts and their processes more transparent, open and accessible to members of the general public with a legitimate interest. That was a useful point to make.

Similarly, Annabel Goldie was absolutely correct to say that, in taking forward its inquiry, the Justice Committee needs to look at the broader evidence—of course it will do that—at what the data suggests is the effect of televising and using social media to cover court proceedings, and at what impact that might have on individual jurors in particular.

If our discussion has told us anything, it is that the Justice Committee is right to have begun its debate on the issue. I wish it well with its deliberations. I do not think that it has taken on an easy task, as this afternoon’s debate has demonstrated, but it is an important piece of work, which I am sure will be complementary to the Lord President’s review.

16:57

I suppose that it is in the nature of such a debate that we have more questions than answers at the end of it, but I have been struck by the almost unanimous expression of caution from all sides of the chamber—almost every member who has spoken has expressed exactly the same reservations. It is instructive that, on such an issue, there is virtually no difference between individual members’ views, regardless of party. It is important to state that, because we are discussing an area in which we want to be able to proceed as one, and it is quite clear that that will happen.

Understandably, a wide range of topics have been covered, and I might not get to mention them all. It is not surprising that such a variety of subjects have been raised, given the fundamental nature of the propositions that any debate on the media and the courts will involve and the fact that the issue touches on many principles that we hold dear. Therefore, I commend the Justice Committee for its courage in the face of a very large task.

As the First Minister remarked on one aspect of that task to the Leveson inquiry in June—this will be the only reference that I will make to the Leveson inquiry—

“it’s much easier to say it’s an undesirable thing to merge news and comment than to work out what to do about it.”

We could apply the same dictum here. Nevertheless, a number of interesting suggestions have been made on what to do about the issue in the course of the debate. We listen carefully to all such suggestions with interest and to the deliberations on the wider questions that are posed in such a discussion, which include that of how we can continue to protect victims and witnesses of crime and to ensure fair trials.

John Lamont made some useful references to studies of juries in other countries and other jurisdictions that suggested that juries are less easily swayed by biased reporting than might have been imagined. Their exposure to the reality of court processes may be quite telling in being a rather brutal reminder that regardless of what we see—particularly on American television programmes—a court process can be a lengthy, detailed set of days that is not easily encapsulated in the edited highlights version that one sees in fiction and from across the Atlantic in practice. Jurors who confront that reality may reflect on some of the comment that they then see and realise that they have to consider it quite carefully.

Sandra White talked about a number of things including the possibility of some kind of expert who would be provided for the jury. We need to be careful about going down that road in our discussions, because although there are complex and challengeable areas of law, the provision of some kind of expert who was not giving evidence in the trial would become a complex and challengeable position, too. We need to remember that most trials involve expert witnesses as well as outside experts who may wish to comment or not.

Joan McAlpine made some interesting points, particularly because in a sense she turned the debate on its head and challenged the mainstream media about their coverage. She implied—she did not use this terminology, so I hope that I do not put words in her mouth—that the mainstream media had effectively opened up a vacuum that had allowed the social media in. That is interesting to reflect upon.

Joan McAlpine then raised the interesting notion of accredited bloggers. Again, I am sure that the Justice Committee will have taken that on board and will consider whether that is a good point to pursue. On the issue of a court TV channel, which one or two other members also raised, most people would accept that we could really only progress on that if we were going to forbid editorialising or the selected highlights version of events.

There are a lot of questions. Each time that someone comes up with what might seem to be an answer, the answer leads to a whole other set of more questions.

To respond to Colin Keir, two Twitter requests have already been agreed to in Scotland. The sentencing of Tommy Sheridan in 2011 and the sentencing of David Gilroy in 2012 were both permitted to be communicated by Twitter from the court, but of course that is not the same as tweeting throughout a trial—that would be an entirely different question.

A number of interesting points were raised, but equally each point that was raised begs many more questions. The Government is listening, but it is listening from a definite position, which is that it has put in place robust protections for the independence of the courts and the judiciary and it trusts in the people who operate those protections.

In the Judiciary and Courts (Scotland) Act 2008 we established for the first time in Scotland a statutory guarantee of the independence of the judiciary and we placed the Lord President firmly in control of the running of the administration of our courts. That was not merely a grand declaration of principle. It was also the way, we believe, to promote the efficient, professional running of the court system and to guarantee people’s rights within it. It makes abundantly clear the separation of Government from the judiciary. As the cabinet secretary said, the people into whose hands the act entrusted the courts system deserve the highest confidence. They are the people who can best be trusted with balancing the issues before us.

The use of public media in court requires a careful balancing act to be performed at times between the principle that justice should be open and subject to public scrutiny and the requirement that trials should be conducted fairly. We must not risk prejudicing the outcome of criminal cases through our appetite for more modern communication of trials.

As the judiciary are the guardians of fair trials in this country, ultimately we should leave it to them to decide what role the media should have in individual criminal trials. That will vary according to the circumstances of the case. A trial for a sexual offence will raise very different issues—particularly of protecting victims—from those that are raised by a tax fraud trial. Moreover, the kind of issue that publicity might raise may become apparent only during the trial itself. The cabinet secretary has alluded to the difficulty of Parliament making rules for all those and other eventualities. Lewis Macdonald and Alison McInnes, among others, rightly reminded us how intimidating court proceedings already are for victims and witnesses without a further complication being added. It is very much the view of the Scottish Government that we must counterbalance the public interest with upholding the criminal law, and it is our view that upholding how our courts operate alongside the media should be left to those whose job it is to do so—the courts and the judiciary.

Undoubtedly, it is harder to deal with the impact of the uncontrolled third-party comment in the cybersphere and its implications, although it is not clear to me how the committee might investigate that. The Lord President’s review is confined to the issue of television in court, but I doubt that the issue of social media coverage is far from the minds of all our judges.

This has been a timely debate about a fast-changing situation. I look forward to the further work of the committee on the subject and, as always, I will examine its conclusions with interest.

I call Jenny Marra to wind up the debate. Ms Marra, I would appreciate it if you could continue until 5.15.

17:06

I am pleased to close this debate on the role of the media in criminal trials on behalf of the Justice Committee. As the convener, Christine Grahame, said at the start of the debate, advances in social media and the internet alone have had a significant impact on the way in which criminal trials are reported and have provided major challenges for jurors in carrying out their functions responsibly.

Although the Justice Committee’s work in the area so far has been limited to a round-table session, we felt that it would be useful at this stage to explore some of the key themes arising from the evidence session and written submissions further in the debate. I am glad that we have done so, as the contributions from all sides of the chamber have been extremely valuable and the committee will use them to shape any future work that we undertake on the role of the media in criminal trials.

I will touch first on the Contempt of Court Act 1981, which is the principal piece of legislation relating to contempt of court in Scotland. The committee heard from witnesses that the act probably works quite well for broadcast media and newspapers but is completely unsuitable for controlling social media and the internet. We cannot expect everyone who uses blogs and Twitter to be experts in contempt of court legislation in the way that the print and broadcast media must be. We have heard from members that it is crucial that we find the right balance between freedom of speech, an open press and the rights of the victims and witnesses of crime to their privacy.

The witnesses at the Justice Committee were divided on whether the televising of criminal trials would be a positive development in opening up scrutiny and assisting in the administration of justice or whether it would be unwelcome and would lead to the sensationalising of criminal trials and potentially even put the accused, the acquitted, victims or witnesses at risk.

I have one query. The member said that we cannot expect everyone who uses the social media to be as aware of the law as others. I thought that ignorance of the law is no excuse and that, therefore, we might expect everybody who comments on legal matters to have a knowledge of the law that they are using.

That is precisely the reason that Twitter is not generally used in courts at the moment—people do not have the detailed knowledge of the law that the broadcasters and journalists have to be trained in. We would have to look very carefully at that if we were going to expand the legal provisions.

We heard today that any further consideration of the role of the media in trials must be balanced against the needs of those who unwittingly find themselves involved in the justice system, who are often very vulnerable members of our communities. Victim Support Scotland expressed concern—as Bob Doris eloquently did today—that trials are already traumatic events for victims and witnesses and that any further media involvement could affect the quality of the evidence that they supply or even their willingness to supply evidence in the first place. That concern was backed by the Association of Chief Police Officers in Scotland.

As my colleague Mary Fee said eloquently, we must avoid the prospect of a Jerry Springer or Judge Judy scenario, in which real and traumatic experiences are broadcast in the name of entertainment. In Scotland, we pride ourselves on having a civilised justice system that does not allow voyeurism. We must remember that in the debate.

In announcing a fundamental review of the policy on the use of television cameras in court, the Lord President has recognised the challenges in televising criminal trials beyond specific aspects such as sentencing. We await further details of the review, and the committee will consider its outcome.

I will sum up some of the very good speeches that have been made. Graeme Pearson reminded us that it is difficult to encourage witnesses to come forward to give evidence in court. If their image was to be transmitted back into their community, we would have to consider that carefully.

Roderick Campbell made an excellent speech. He drew our attention to the Anders Breivik trial in Norway and he certainly made me think again about the role of television in such big trials. He advised us to proceed with caution but not with closed minds, given how useful that televised trial was to the people of Norway earlier in the year. He also asked for a review of the legislation that regulates what the media can print about court proceedings, which would be timely.

Joan McAlpine made a number of interesting suggestions, including that of having accredited bloggers, as the minister said. The committee will certainly want to look at that idea, which draws on the experience of James Doleman in the Sheridan trial. I was also interested in her suggestion of a verbatim report of court proceedings, similar to that in Parliament. That is worth considering.

Mary Fee reminded us that, often, some of the most vulnerable people in our communities are in our courts. She warned us against the voyeurism to which televising trials might lead us. She drew our attention to the evidence from Steve Raeburn, the editor of The Firm, that televising trials would elucidate the changes in the law on double jeopardy and the possible forthcoming changes to corroboration. Having sat through several criminal trials in the High Court and the sheriff court, I was confused by the evidence that sitting all day to watch such trials could possibly elucidate those changes in the law. We need to scrutinise that evidence properly before making any decisions.

Colin Keir raised the important question whether the television restriction should be relaxed in appeals. The committee will certainly want to consider that. He made an astute and empathetic observation on the demeanour of accused people in court—guilt could be inferred across the medium of television, as being in our courts is a traumatic experience for many people.

This is an appropriate place at which to close the debate for the committee. Wherever we decide to take the issue, we must remember the importance of striking the balance between protecting the administration of justice and ensuring the freedom of expression of our media in Scotland. I thank members for their valuable contributions in today’s committee debate.