Hansard

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.