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.

Misleading anti-Nationalist invective, Vol. 56...

Someone’s been nibbling the bitter almonds. In the Telegraph this morning, BBC lawyer Alistair Bonnington has written an extraordinary gouge-piece attacking the SNP, and Kenny MacAskill, under the headline “SNP’s arrogance leaves Scottish libel law stuck in the past”.   

My interest was piqued by the queer combination.  There has been little to no commentary on the fact that the Defamation Bill currently wending its way through Westminster means only means to apply in England and Wales.  As usual, the press commentary has tended to forget that we live in a union state, not a unitary state, and that the Bill’s provisions as introduced – limiting defamatory statements to those whose publication has or is likely to cause ‘serious harm’ to reputations, enhanced protections for writing published in peer-reviewed academic journals, for operators of websites attracting potentially defamatory comments – would only reform the English and Welsh law of slander and libel, leaving Scotland’s defamation law intact. Back in June, I speculated on the consequences which these English reforms might have for Scottish courts.

In his piece this morning, Bonnington sketches an ugly picture.  For him, the Defamation Bill is ‘a reasonable set of rules for the modern world’. Rules which Bonnington believes the SNP have conspired to defeat for suspect reasons.  He writes:

“Scots media lawyers have noted with some disquiet that Kenny MacAskill, the Scottish Justice Minister has decided to reject almost all of the Bill’s liberalising provisions and include only one minor subsection.”

“In libel, Scots law is miles behind English law.  That gap is about to become wider still courtesy of Mr MacAskill.” 

He buttonholes this with the suggestion that...

"... the Legislative Consent Memorandum announcing this decision came out in June at a point when the parliament at Holyrood was going on holiday – a ploy possibly aimed at preventing any opposition MSPs from having the effrontery to ask questions about this daft decision."

Bonnington then goes on to summarise the measures proposed in the Bill in warm terms: various new defences and the welcome reframing of definitions of defamation. The sting:

“MacAskill’s policy seems to be to deprive Scots law of these important liberalising and modernising measures – for no other reason than to be different from England.”

Reading this, I thought I’d been seriously remiss.  Bonnington’s trenchantly accusatory piece makes three critical allegations and insinuations. Firstly, he implies that comprehensive defamation reform was put to the Scottish Government by Westminster, to liberalise the law on both sides of the Tweed, to protect freedom of speech and melt the perceptible "chilling effect" of the current law on defamation. Secondly, that the Scottish Government knocked back this request from Westminster, grudgingly instead accepting only a peripheral subsection in their legislative consent motion.  Thirdly, Bonnington suggests that that the Cabinet Secretary’s motives for this limited motion were scurrilous, allowing atavistic legal nationalism to trump a sensible and liberalising reform. As neatly as these allegations fit with certain cherished suspicions of Scottish Nationalists, and as satisfying as Mr Bonnington clearly seems to find it to fulminate and froth against such perfidy, there doesn’t seem to be a breath of truth in any of these claims.

Pick up the Defamation Bill which Ken Clarke introduced to Westminster in May this year on behalf of the UK government. Bounce your eyes down the page, to section sixteen, “short title, commencement and extent”: “This Act extends to England and Wales only”. That seems tolerably categorical. So when and how did Scotland get roped into this, you might well wonder? Bonnington’s brain is haunted by reactionary SNP ministers, haughtily rejecting the overtures of Westminster’s solicitous, sensible modernisers.  If that were the case, a dip into the House of Commons' Public Bill Committee records should surely uncover a word or two about them and their activities, and critically, an amendment proposing that the whole Bill be extended to Scotland. You won’t find one. You can’t. It doesn’t exist. 

Here’s what Jonathan Djanogly, Tory MP Huntingdon and Parliamentary Under-secretary to the Ministry of Justice, contributed on Tuesday 26th June 2012, lodging government amendments which would extend the Bill’s protection for academic publications to Scotland.  Djanogly said:

“Amendments 1, 2 and 3 extent certain provisions of the Bill to Scotland.  The civil law on defamation is generally a devolved area, and the Bill reforms the law in relation to England and Wales only.  However, we have been requested by the Scottish Government to extend certain specific provisions to Scotland, and these amendments are intended to fulfil that request.  The Scottish Government have confirmed that a legislative consent motion will be put before the Scottish Parliament on a timely basis following these amendments being moved in order to secure their consent.”(Col 170)

One doesn’t have to be an honorary professor to see that asking for sections of the Bill to be extended to Scotland isn’t easily constructed as rejecting “the Bill’s liberalising provisions” for the idle sake of being different from the English. To double-check, I rummaged around Holyrood’s archive for June, and up popped the pertinent legislative consent memorandum, from Kenny MacAskill’s hand. The Scottish Government don’t see reform of the Scots law of defamation as a priority, he writes, but having considered extended privilege to scientific and academic activities, it was concluded that:

“…the parity of protection across the UK was desirable given that much scientific and academic research is done collaboratively and without reference to national borders. Therefore, limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange.” [para 26].

Despite Bonnington’s preferred narrative of nationalist mischief, I can find no evidence whatsoever suggesting that Westminster has ever proposed to Scottish ministers that the Defamation Bill should simultaneously reform Scottish and English law, nor that they ever enjoyed the formal opportunity to accept or reject such a proposal.  You might well think that this is for the bad, and that it would be preferable if Scots law mirrored the English proposals, which will substantially shrink the scope of defamatory speech, and enlarge on the defences available to those sued in particular scenarios.  I have some sympathy with that perspective.

Each man may be guilty of the good he does not do, and the inactivity of the Scottish Government on defamation reform may well be complacent, but the scenario which Bonnington so ill-temperedly promotes in this Telegraph piece is simply fictional. To avoid Bonnington’s wroth, MacAskill would presumably have been obliged unilaterally to ask Westminster to pass defamation legislation for us. The distinction between acts and omissions may be of philosophical interest, but the impression aggressively cultivated by this piece of invective is seriously misleading.