Hansard

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.