SCOTLAND’S most high-profile lawyers believe social media laws in relation to the justice system need to be reviewed.
VIDEO cameras in court should be resisted and some of the media’s court privileges removed in the interests of justice, according to two of Scotland’s most high-profile lawyers.
Criminal defence lawyer Aamer Anwar, whose clients have included MSP Tommy Sheridan and acquitted Glasgow “ice cream wars” accused TC Campbell, said allowing television cameras into court would lead to the “Hollywood-isation” of the justice system.
The media does not have “a genuine interest” in justice, he said.
Current press freedoms such as the right to film in the street should be restricted, court bloggers should be limited and contempt of court laws extended, Mr Anwar said.
Donald Findlay QC, who has represented mass murderer Peter Tobin and teenage killer Luke Mitchell, said there is a “crying need for regulation” of bloggers and social media commentators.
He also called for tougher penalties for jurors who look up previous convictions on the internet and argued that allowing court cases to be filmed will lead to “trial by television”.
But former BBC solicitor Alistair Bonnington argued that Scotland’s contempt of court laws are already among the most restrictive in Europe, and that even President Obama has struggled to regulate freedom of speech on the internet.
He called on the police and the Crown Office to trust the media to report responsibly and trust jurors to discern between online speculation and courtroom evidence.
The three men were giving evidence to the Justice Committee’s investigation into the role of the media in criminal trials.
Mr Anwar said: “Contempt of court is essential. It needs to be extended and rigorously updated to take account of technological advances. Otherwise we’re going to have a rush to get the cameras into court.
“With the greatest respect to the media saying they have a genuine interest, your genuine interest is not concern for justice. Your genuine interest is getting the cameras in there and opening the floodgates to the Hollywood-isation of our courts.”
Mr Findlay said: “There are people who write what I am reliably informed are blogs, or diaries of some kind. You can’t find them, you can’t locate them but they can put on the internet ‘This man is on trial today has 43 previous convictions. He’s a villain, he’s a rouge, he’s a charlatan. He’s done this before. It’s your job to convict him’.
“Apparently there is nothing we can do about it and the media will shrug their shoulders and say ‘well that’s the way it is’.
“There is a crying need for regulation at the hands of this parliament to preserve the justice system, that I think is important to us all, much more than the media’s ability to cover criminal trials.”
Mr Bonnington said: “Let us not proceed on the basis that something on the front of The Sun (newspaper) that says ‘this man has 43 convictions, guilty man, hang him’ would lead to his conviction. I don’t think it would and there is no research to justify that conclusion.
“Juries are healthy bodies, they do not need a germ-free atmosphere. There may be greater risks today but it remains the case that a jury listening to the day’s proceedings is far more likely to be influenced by what they heard in court than reading a very unsatisfactory newspaper report.”
Mr Anwar told MSPs that cameras in court will lead to OJ Simpson-style “sensationalism” and could lead to “vigilante justice”.
He asked: “What about the individual who has been found guilty’s rehabilitation, vulnerability in prison, or the danger they could be killed, stabbed or whatever simply because of a television report?”
“That’s the price we would pay if we let cameras into the courtroom. I don’t believe that we believe in mob justice and vigilante justice.”
Judges should be clear that jurors may be “sent to prison” for reading the news or blogs, he said.
“I don’t believe that contempt of court can police the internet. The fact remains that research is going on. I really think we have reached a stage now that the judges’ directions have to be in a language that is severe and unequivocal, and for jurors to realise that if they do take the step of researching and this was to arise then they could be sent to prison for it,” he said.
There was widespread praise in the committee for citizen journalist James Doleman’s blog from the Tommy Sheridan perjury trial, but Mr Anwar believes this was a “lucky” exception.
“James Doleman’s blog was an excellent piece of blogging but we were lucky that it was one blogger that was conscientious and wrote down exactly what was said. But what if it was someone who wasn’t, if it was someone who invited opinion?” Mr Anwar asked.
He said he does not see what sending Twitter messages from court would add to the coverage or court process.
He also called for limits to the long-standing freedom to film in the street and “retribution” meted out to journalists that approach people in public.
“During the Sheridan trial attempts were made for certain high-profile witnesses to disappear out the back door but that wasn’t allowed to happen. They were public witnesses and so they were filmed,” he said.
“I don’t think it should go beyond the steps of the court though. I don’t think they should be followed out into the street and out into the car park. That’s unacceptable but when you are coming in and out of court, it’s fair game.
“There is no retribution which is why the laws need to be revisited.”
Mr Findlay said spectators with mobile phones and iPads are already “interfering with the trial process” by broadcasting background information in real-time from the courtroom.
“That is something that must be regulated. Nobody wants to see a juror ending up in prison. Nobody is talking about that,” he said.
“But it has to be made plain to jurors that if they break the rules and prejudice a fair trial then they run the risk of significant penalty.”
He also said he is not opposed to cameras in court in some circumstances but is “totally and always will be opposed to television broadcasting a criminal trial”.
Television images are “very different from a fuzzy image on the front page of a newspaper”, he said.
“Why should it be for a television company to put together some kind of package of what it thinks should happen in the trial, what it thinks the evidence amounted to and show it to the public at large and say ‘this man’s been acquitted but you decide for yourself, you have a go, you try him by television’.”
He also challenged a suggestion that courts should be put in the same bracket as parliament where debates are filmed and broadcast.
“I happen to think that there is a real danger that parliaments generally are imposing far too many restrictions on freedom of speech,” he said.
“I’m a great believer in restricting the power of the state at every opportunity, but it is a balancing act.
“We broadcast parliaments under freedom of speech. If we are entitled to know everything then broadcast the Cabinet meeting. Let us see what they actually are deciding and how they are going about it.
“Never mind the public debate. Broadcast the Cabinet meeting and all the private meetings where the decisions are taken.”
He also rejected a suggestion by Steven Raeburn, editor of legal website The Firm, who suggested cameras could increase convictions for perjury by exposing lying witnesses to greater public scrutiny.
Mr Findlay said: “I’ve known people sent to prison, and I’ve defended a number of people, for committing perjury in High Court trials so you don’t need television cameras for that.”
Mr Bonnington said the Contempt of Court Act is already interpreted “very restrictively against the media” and told MSPs that it would be “useless” to extend it to bloggers.
“Barack Obama made a speech last week that said that he, as president of the most powerful nation on earth, with every form of internet communication device at his hands, could do nothing about the dissemination of the anti-Muslim film (Innocence of Muslims).
“Now if Barack Obama can’t do anything about it, then can I respectfully suggest that you can’t do anything either.”
He said freedom of speech is not just “freedom of nice middle-class speech”.
He said: “I find tabloids revolting but I have no right to prevent tabloids reporting in the way that they do.
“If we get into qualitative judgments then we’re not in favour of free speech anymore.
“Frankly, the UK’s position is bad enough as it is. Contempt is much more strict and always has been more strict than the rest of the UK and in European terms, we’re in the Jurassic age.”
Magnus Linklater, former editor of The Scotsman newspaper, said there is “no real trust” between journalists and the justice system and that contempt of court sanctions are restrictive and inconsistent.
The Crown Office once issued an advisory to The Scotsman to refrain from publishing details of an assault involving a celebrity, only to find it on the front page of The Sun the following day, he said.
“When I rang up to complain to the Crown Office I was told ‘well, that’s The Sun. There’s a different perspective for that sort of newspaper but in The Scotsman it wouldn’t be permitted’.
“Newspapers get very little help from the Crown Office and the police who are notoriously restrictive in Scotland. There’s no real give and take. There’s no real trust between the two. I think the law of contempt needs to be revisited with these realities in mind.
“The communication between newspapers and officers of the law needs to be reconsidered in that light, and a new atmosphere of trust built up so that the openness and accountability is a two-way process.”