Hansard

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.

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