Lights! Camera! M'Lud!

Should TV cameras - and in this age of social media  - why not? - committed licit punters with video equipment - be permitted to film proceedings in our criminal courts? If so, which courts, and which aspects of proceedings? What about hot-thumbed twitterers, diligent bloggers, idling facebookers, loafing about in court, waiting for the sun to stretch over the yardarm? What challenges might your amateur court reporter with an iPad pose for our Contempt of Court legislation, dating from the 1980s?

Those were just a few of the questions animating Holyrood's Justice Committee this morning, in a one-off evidence-gathering session.  Our tribunes were joined by fantooshly-face-furnitured QC Donald Findlay, Magnus Linklater, Alistair Bonnington, Aamer Anwar, the Firm's Steven Raeburn, STV lawyers and others. A number of the witnesses also made paper submissions in advance. The meeting was also anticipated by this SPICe briefing. 

More or less, the legal witnesses were much less keen on the idea of broadcasting of criminal trials than the folk from the telly and the press, but rather more content to see cameras in to film sentencing diets, or criminal appeals before the High Court of Justiciary. While Findlay and Anwar seemed more or less categorically opposed to any broadcasting of proceedings, Raeburn mooted potential safeguards which he hoped might allay fears about the impact of cameras on witnesses, and on the administration of justice.  Rather than allowing the media to carve proceedings up into inflammatory morsels and scandalous revelations, why can't courts simply be livestreamed online, as they happened, without editorialising from the folk behind the telly, he asked? If folk are worried about trials being corrupted by contemporaneous reporting, it is not beyond the wit of man to require that broadcasts be delayed. 

About social media, witnesses' perspectives ranged from baroque Luddism to (probably well-founded) anxieties about hasty bloggers, twitterers and folk of that ilk, ignorant of the law of contempt of court, but  opinionated, and generally gadfly observers when it comes to criminal proceedings, easily slipping the frayed nets, and faded assumptions, informing our laws on contempt of court, and risking spiking ongoing trials, either by prejudicing the jury with salacious and unbecoming evidence about the accused's past, or alternatively, by creating an insidious atmosphere of commentary to the disadvantage of the soul in the dock.

It seems something of a missed opportunity not to have invited James Doleman along to talk to MSPs about his experience of blogging the Sheridan trial, and navigating his legal obligations and terrors of contempt of court, without a legal background, when blogging and moderating comment on the immensely charged and over-exposed criminal proceedings against the former MSP.  That said, both Anwar and Raeburn mentioned his efforts in dispatches.  Rather more helpful, I should have thought, to have solicited the actual experiences of a "lay" observer, outside the mainstream press, than speculating on that experience from the perch of a practising lawyer, or an employee of the Scottish print media.

But what about the issue of filming trials? What's the legal position in Scotland right now? As those of you who've seen the odd reel of footage of the Senators of the College of Justice in their cross-etched criminal gowns, there's no statutory impediment to setting up a camera.  On the 5th of August 1992, Lord Hope (then Lord President of the Court of Session), issued a new directive on the presence of cameras in court, applying the following strictures to their use. Inconveniently, the best source I've been able to find online on these conditions seems to leave a few out. Nevertheless, the main lineaments of Lord Hope's policy were (emphasis mine):

"The Lord President has issued the following directions about the practice which will be followed in regard to requests by broadcasting authorities for permission to televise proceedings in the Court of Session and the High Court of Justiciary. 

(a) The rule hitherto has been that television cameras are not allowed within the precincts of the court. While the absolute nature of the rule makes it easy to apply, it is an impediment to the making of programmes of an educational or documentary nature and to the use of television in other cases where there would be no risk to the administration of justice. 

(b) In future the criterion will be whether the presence of television cameras in the court would be without risk to the administration of justice. 

(c) In view of the risks to the administration of justice the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances. 

(d) Civil proofs at first instance do not normally involve juries, but the risks inherent in the televising of current proceedings while witnesses are giving their evidence justify the same practice here as in the case of criminal trials..... 

(h) Requests from television companies for permission to film proceedings, including proceedings at first instance, for the purpose of showing educational or documentary programmes at a later date will be favourably considered, but such filming may be done only with the consent of all parties involved in the proceedings, and it will be subject to approval by the presiding judge of the final product before it is televised."

Since, consent has been gained for various press forays into Scotland's courts, most recently in April of this year, when Lord Bracadale's sentencing statement in the case of David Gilroy, convicted of the murder of Suzanne Pilley, was broadcast, though it wasn't exactly clear what purpose was served by sharing Lord Bracadale's slightly awkward stage presence with the public. Did it really "open up" Scottish justice, or serve the "public interest" by allowing your average punter, unable to leave work, to traipse along to the High Court, to see how public justice is done (more or less) in their name? For those who enjoy such things, the paper-shuffling atmosphere of the UK Supreme Court's sittings can be surveyed from your laptop.  Generally speaking, my own instincts are towards transparency.  For example, it seems to me a grand, and rather belated, development for Edinburgh City Council to webcast their full council meetings.  Scooshing a gust of air through the stale environs of Scotland's council chambers, and exposing our baillies to public scrutiny, seems no bad thing.

Abstractly at least, this obtains for courts too.  Mystification is a Bad Thing, not least because it tends to lead to false impressions about the quality and character of justice, whether civil or criminal, being dispensed in our collective name. Yet, as I noted when Lord Bracadale's sentencing statement was recorded at the instance of STV, beneath the placid universality of, say, broadcasting most High Court cases in their entirely, lurks another distorting principle of selection, another, much more quiet mystification and misdirection about the character of courts and court-work.

Statistically, at least, High and Sheriff Court jury cases make up a tiny proportion of the criminal work undertaken by courts in Scotland, and the indictments laid and answered, only a smidgeon of the offences alleged to have been committed by the lieges on this side of the Tweed.  For representativeness, our broadcasters and their cameras would really have to head along to summary sheriff and justices of the peace courts, to hear how John Doe caused a drunken but more or less harmless fracas, or larcenously dipped into the patrimony of someone else, to commit a minor fraud or theft. You can bet your last groat that broadcasting that sort of thing won't attract investment, or one imagines, much interest, but it remains the day-to-day reality of the substantial bulk of criminal justice work done in this country.

Watch the full Justice Committee session here.