CAMERAS should be allowed to film more widely in Scottish courts, including from the very start of proceedings, the Law Society of Scotland has said.
But the national body, which represents all active solicitors in Scotland, said there would be a need for caution on the televising of certain cases involving co-accused and separate trials, sexual and family cases, and defamation in the civil courts.
In its suggestions to the Judiciary of Scotland’s review group, it also said TV companies who want to film court proceedings should pay for the privilege.
To date, very few criminal cases have been filmed in Scotland; in most cases, they have been appeals or sentencing.
The “ice cream wars” appeals of TC Campbell and Joe Steele were filmed in 1998, followed by the appeal by Lockerbie bomber Abdelbaset al-Megrahi in 2002.
More recently, cameras were allowed in for the sentencing of Suzanne Pilley’s killer, David Gilroy, and the latest trial of Nat Fraser.
In its response to the review, the solicitors’ body said: “The society sees no issue with the courts allowing the filming of criminal proceedings at first instance for documentary purposes.”
The response is even more telling as it is from defence lawyers representing accused people, who might be the most likely to oppose cameras.
Peter Lockhart, of the Law Society of Scotland’s criminal law committee, said they could not bury their heads in the sand in the face of rapidly developing technology. And that went beyond documentaries shown months later, to pieces on TV news programmes.
He said: “We’ve done the documentary where there’s much more control and time for editing. But I think we’re now moving towards – if it’s a high-profile trial – the media wanting to cover it there and then.
“Saying we can’t do it is a non-starter. We have to accept technology has moved on.”
The society said it “anticipates very few live transmissions” but this would be down to levels of demand.
One key concern it has is over one witness being influenced by the testimony of a previous witness, which in normal circumstances they would not be allowed into court to watch. It believes on issues such as this, the judge should have the final say on what could be filmed.
The society also said that permission to film could be withdrawn in sexual offence trials involving vulnerable and child witnesses.
The consultation looked at various international models, and lawyers favour the New Zealand system. It requires applications to be made at least ten working days in advance and permission to film is at the judge’s discretion, except in sexual offence cases where the alleged victim objects.
The consultation also examined allowing “text-based communication”, which would see journalists tweeting from inside court proceedings.
The ongoing hacking trial of Rebekah Brooks, Andy Coulson and others has been tweeted live. But the society urged caution. Mr Lockhart said: “We’ve seen in America examples of witnesses giving evidence, it’s tweeted and almost instantaneously you’re getting feedback from people who have nothing to do with the case. How does that impact on potential jurors?”
The Scottish Government has made clear that the decision on whether to televise court proceedings should sit with Lord Gill, Scotland’s most senior judge, who announced the TV review in 2012.
Greater use of cameras in courts also attracted a mixed reaction from Scottish politicians.
Labour and the Liberal Democrats generally supported the idea, if safeguards are in place, but Tory justice spokeswoman Margaret Mitchell said: “This is not something we believe should become routine.”
Analysis by John Scott: Why live coverage would be a step too far
I HAVE responded to the consultation and my response, like the Law Society’s, is a qualified yes. There are things we need to be careful about, but everyone recognises what they are. However, I think there is too great a risk in allowing more live coverage of trials, or even showing it in the teatime news.
Although we already have that, to some extent, through court reporters, there’s an immediacy about people seeing witnesses that may lead to an unintentional influence on the juror; for example, when they go home and speak to their family who watched it on TV. But if it is trials for documentaries, or appeal court cases, that should be fine.
Clearly we are moving very slowly in the direction of live trials, but ever since Lord Hope changed the rules and allowed cameras in 1992, we have been moving at glacial pace.
But at present, I don’t detect any enthusiasm in the judicial system for live trials, or even news reports featuring that day’s coverage. I think they would feel a certain lack of control.
That said, there are a lot of positives to be gained from greater access for TV cameras, because, while I understand folk like Donald Findlay saying the courts are open to the public and people can go and watch a trial whenever they want, that’s not realistic. Most people are working and, unless they are called for jury duty or as a witness, they have nothing to do with the system.
It’s pretty clear from some media coverage, and the discussion threads that follow stories online, that there’s a lot of ignorance about what goes on.
It’s everyone’s system, not the lawyers’ or the judges’, and everyone may have to use it at some point. And it will operate better if everyone has a proper understanding of it.
• John Scott, QC, defended Nat Fraser in his televised trial.
Q&A: So what are the rules on televising cases, and how might they be changed in future?
What is the current policy for filming court proceedings in Scotland?
Since Lord Hope issued guidance in 1992, requests have been considered on a case-by-case basis. The majority have been of sentencings or appeals which do not involve juries.
Why shouldn’t proceedings be televised?
While open justice is an important principle of the Scottish system, there are concerns it would affect another – the administration of justice. In particular, there are concerns about the impact on witnesses and jurors.
What impact might cameras have on witnesses?
In its consultation document, the Judicial Office for Scotland outlines its concerns, saying: “There is a risk that witnesses may be more guarded or hesitant, and less frank, in their evidence if it may be broadcast.”
What concerns surround jurors being filmed?
Most of the concerns are about them being unduly influenced by outside influences, such as social media or friends or family who have seen TV coverage of a trial. However, the consultation also raises concern about criticism of jurors in the media, making specific reference to the first Vicky Pryce trial, where the jury was discharged after failing to reach a verdict, and the judge said members had shown a “fundamental deficit in understanding” of their role.
The consultation paper raises concerns about whether jurors would be put off performing their civic duty through fear of public criticism.
Would everyone appearing in court be filmed?
While it is no longer necessary for everyone to consent to cameras being present, anyone who does not consent – including the accused – would not be filmed.
Will it be distracting to have film crews in court?
In the Nat Fraser case, six remotely controlled cameras were in the court. Those operating them were in a separate room. Microphones were also installed.
How does this compare with other justice systems?
In England and Wales, cameras were allowed in appeals from October last year. Further afield, several jurisdictions allow filming. The review group has looked at how this works in the US, New Zealand, South Africa, Australia and Canada.