Children (Care and Justice) Bill: Scottish Government plan would stop media reporting where Dunblane-style mass shooting took place – John McLellan

SNP-Green coalition’s new law would make it a criminal offence for journalists to identify the school of a child who was a victim or even a witness of a criminal offence

I remember March 1996 very well. The Meadows in Edinburgh glistened with late snowfall as I visited my wife and newborn daughter in the old Simpson Maternity Hospital, the open ward full of joyful families around their new arrivals. Unlike today, when healthy mums and babies are home within hours, my new family had been in for a couple of days – but this daily visit was different.

That day, I was editing the Edinburgh Evening News ─ the editor was on holiday ─ and, that morning, word came through of a shooting at a Dunblane school. Must be something to do with the Queen Victoria army school, we speculated. How wrong could we have been. We had a reporter on the scene within the hour and the first harrowing details made the late edition. Twelve hours on and the juxtaposition of a happy maternity ward and news of so many little children’s murders at Dunblane Primary was stark.

This is relevant today because if new laws about to be passed by the Scottish Parliament had been in place, those who reported the massacre could themselves have been guilty of a criminal offence, punishable by two years’ imprisonment. That’s the implication of the new Children (Care and Justice) Bill, which will make it an offence to publish any information leading to the identification of anyone under 18 who is a victim of, or witness to, a criminal incident.

Police officers and local people observe a one-minute silence at Dunblane Primary School following the mass shooting in March 1996 (Picture: Tim Graham/Getty Images)

Public interest in accurate information

It barely needs pointing out that every victim in Dunblane that day, bar the teacher, and scores of witnesses were under 18, including a young Andy Murray. Section 12 of the bill also makes it an offence to give the “identity of any school or other educational establishment attended by the person”. Imagine the terror of hundreds, if not thousands, of families if all news organisations could have reported that morning was there had been a mass shooting at “a school in Stirlingshire”. Wallace High? St Modan’s? Dollar?

Similarly at Cults Academy in 2015, when 16-year-old Bailey Gwynne was stabbed to death by another schoolboy, not just the victim but scores of witnesses were under 18. Although the new bill makes provision for restrictions to be waived, it needs a court order and there does not appear to be any mechanism for media organisations to make an application.

In any case that would take valuable time when there is a clear public interest in getting accurate information out as quickly as possible. But if just one family objects, what happens? Dunblane documentaries, and indeed the terrible crimes of child killer Robert Black, demonstrate that not all families react the same way, and this law potentially puts families in conflict with each other.

Media sidelined during discussions

As framed, this legislation puts the right of anonymity above all else, so the risk of reporters committing an offence would be high. Would it be in the public interest to prosecute? Probably not, but then should journalists even be put under threat of prosecution just for doing a job which until now was regarded as legitimate?

Of course, we journalists don’t expect sympathy, and while readers and viewers lap up what we produce there’s only one winner between nasty journalists and grieving families in the court of public opinion. But the law can’t work by emotion alone.

Whether the SNP’s year from hell has anything to do with it or not, it’s patently obvious from the way the bill’s consultation has been conducted that compared to the interests of pressure groups and the understandably upsetting accounts of families of a child who met a violent death, the media’s views did not matter.

At no point in the construction of this bill, a two-year process, have Scottish Government civil servants sought the opinions of media organisations or media law specialists. Invitations to a round table discussion next week linked to the bill, to be chaired by Justice Secretary Angela Constance, said media organisations would be represented, but it turned out only the National Union of Journalists had been invited, not broadcaster or publisher representatives, until representations were successfully made.

Maybe the SNP-Greens thought it wouldn’t matter, but for whatever reason it’s extraordinary that any legislation can get as far as the committee stage without those potentially being criminalised knowing about it. In fact, when a group of leading media lawyers, including those working for the BBC, STV and The Scotsman, met at the end of January they didn’t know the proposals were before the Scottish Parliament’s education committee the following week. By the time wheels were set in motion to react, the committee’s deliberations were already complete.

Captured by minority interest groups

This section of the bill is a mess, a tangle of new rules and procedures which will make reporting live crime and court cases a legal minefield, and as such almost certainly breaches Article 10 of the European Convention on Human Rights. Yet despite the likelihood of a blizzard of final-stage amendments, there is still an expectation it will be passed by the end of the month. Children and Young People minister Natalie Don told the education committee last week that the Lord Advocate Dorothy Bain says it’s all fine. Presumably we’re expected to accept it is, despite Ms Bain previously being on the wrong side of legal arguments at her political masters’ behest.

Like named persons, football behaviour, hate speech and gender recognition reform, it looks very like another example of SNP legislation captured by minority interest groups, where consequences, unintended or not, were either unconsidered or avoided in case the answers don’t fit with the project. Despite public and political opinion to the contrary, journalists are not beasts dedicated to ruining lives; we are parents, brothers and sisters too, and the daily job of reporting on the public’s behalf is already heavily constrained. These new legal traps make it infinitely harder and the best that can be said is the SNP hasn’t even thought about it.

Ex-Scotsman editor John McLellan is director of news-publishing trade association Newsbrands Scotland