Hansard

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.

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