Lights! Camera! Court!

Should TV companies be entitled to broadcast criminal trials on a regular basis? Ought journalists - or members of the public - to be allowed to sit back in the public gallery, furiously live-tweeting a judge's sentencing statement, or relaying the arguments being advanced by counsel in the latest round of litigation engulfing Rangers Football Club, to the interested public? 

The issue of cameras and tweeting court proceedings contemporaneously has quietly inched up the agenda in Scotland and the UK. Recent years have seen sections of Nat Fraser's trial for the murder of his wife broadcast on Channel 4. STV sought and secured permission to transmit Lord Bracadale's remarks sentencing David Gilroy for the homicide of Suzanne Pilley and more recently, Lord Matthews jailing Angus Sinclair for the Worlds End Murders. 

But it isn't all about the conventional media. During Tommy Sheridan's perjury trial in 2011, James Doleman curated a blog, providing accurate and contemporaneous commentary on the evidence heard in the High Court that day. 

These issues have been weighing on the mind of Scotland's most senior judge, Lord President Gill, who asked his colleague Lady Dorrian to look into the rules governing social and traditional media reporting from Scottish courtrooms. In Edinburgh this morning, at a conference on digital justice, Lord Gill announced the general findings of this review.  He told the conference:

"... access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim – to open our court s to public scrutiny and to public understanding and, in that way , to de - mystify our law and its procedures. In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court. When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise."

So what did Lady Dorrian and her colleagues recommend? Gill outlined the proposals under six key headings which will considerably liberalise media access to Scottish courtrooms, while continuing the protect the integrity of live criminal proceedings:

• Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines 
• In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses. However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses. 
• For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge. 
• Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters. 
• Filming should be subject to robust, clear and comprehensive guidelines.
• Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

As Lord Gill notes, giving effect to these general principles will require additional work. "This may involve further consultation with the media on practical points", he says. With my social media hat on, I am interested in the final point -- which will allow hacks to live tweet proceedings, but only if they have been put through the wringer on the dos and don'ts of the tough contempt regime of the 1981 Act.

This is a safety-first approach, and would seem to imply that duly registered reporters should be able to tweet from criminal trials while they are ongoing. It will undoubtedly save some journalists, whose court training is a bit rusty, from themselves. If an unthinking reporter inadvertently tweets legal argument heard outwith the presence of the jury, a jail cell of their own beckons, and if that can be avoided, so much the better.  

I wonder, however, if these strictures aren't excessively paternalistic. Are these restrictions really necessary, for example, in less sensitive cases, where criminal penalties are not at stake? It should not, I think, be assumed that folk are only likely to be interested in relating criminal cases, blow by blow, on social media. In particular, the travails of certain football clubs in our civil and tax courts are of considerable interest to a significant section of the public -- and are likely to be reported by journalists and interested citizens, unused to visiting and relaying court proceedings and therefore unlikely to have registered with the Court Service. 

Justice sometimes demands some limits to be imposed on the openness of the proceedings of our courts, but unless some overriding interest dictates otherwise, the principle of open justice must prevail. Weighed on that scale, the Lord President's commitments this morning are broadly to be welcomed. Lord Gill and Lady Dorrian are also to be commended for their openness to the possibilities - as well as the challenges - of these innovations for our courts.

Today's plans lend new meaning to the old principle of open justice, and stand in quiet rebuke to the vision of the judge as a technical Luddite, who still regards the transition from vellum to paper with ill-disguised suspicion.

UPDATE

Lady Dorrian's full recommendations can be read here.