Hansard

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