Michael Kelly: Flawed elements of Criminal Justice Bill

THE piecemeal way in which the Criminal Justice Bill is making its painful way through the various stages of consultation both inside and outwith Holyrood has produced many serious debating points of principle.

It has also exposed many concerns over the fundamental changes it will inflict on Scotland’s robust legal system. The latest was raised yesterday at the justice committee. Convener Christine Graham asked her colleague, the justice secretary, Kenny MacAskill, to consider offering anonymity to people faced with certain serious crimes. Her determination is to avoid the increasing tendency for individuals accused in high-profile cases to be tried by the public as well as by a court.

This is an issue not confined to Scotland but it is even more important to examine it here in the context of the unwelcome changes that are being forced on the judiciary. The conventions which surround the reporting of pre-trial events and trials themselves have been loosened significantly throughout the UK in recent decades. We have not yet reached the American farce where trial by television can run concurrently with court proceedings and where analysis of evidence is conducted before that evidence has been fully presented.

At least here coverage is restricted to revealing the facts of what is said in court. Even that can be harmful in that court proceedings are only partially reported and a “fact” that is raised today can be contradicted later in the trial. The American way of doing things stems from their written constitution, which protects freedom of speech and of the press to the extent that little control is possible. This freedom of expression can lead to juries being sequestered for weeks on end to avoid their hearing or reading anything about the trial in which they are involved.

Again, many defend this system on the grounds that often the jury is wrong and public sentiment based on media coverage correct. It is hard to think of a case that was given wider publicity than that of OJ Simpson. Due to skilful defending he was acquitted of his wife’s murder. The public were not convinced. He was ostracised. And he lost the civil action brought by his wife’s family. Public opinion is not always wrong.

These issues are more concerned with ensuring fair trials than protecting other rights of the accused. But as the boldness of the media here results in pushing boundaries to expose every prurient detail, there arises the problem of accused people who are subsequently found to be not guilty. Very easily they can find themselves already condemned in the eyes of the public. Anonymity would protect their reputations. The much-quoted example is an English one where the impression was given across the media that a police suspect in the murder of Jo Yeates was the guilty party – an accusation that was found to be false only when another man was jailed for the crime. It is topical in Scotland today because MacAskill’s bill proposes changes making it as easy for police here as in England to arrest suspects. Anonymity is suggested as a way of balancing this deterioration in the protection individuals are currently offered here. If there is an issue here – and MacAskill in not dismissing the suggestion out of hand – then the simplest solution would be for him to abandon the proposed changes to the powers of arrest rather than to allow them to trigger further consequential changes.

If anonymity is to be applied it makes no sense, as the justice committee proposed to limit it to certain special or serious crimes. It should apply across the board. And that makes enforceability an issue that must be considered. MacAskill is wrong to allow the difficulties in enforcing action against social media to cause him to hesitate. Just this week we have had evidence that those who post threatening comments can successfully be brought to book. Lord McAlpine had already demonstrated that one could recover damages from people who defame others on Twitter.

It is an uneasy proposal that any part of the justice system be allowed to operate under a veil of secrecy. Publicity is often a weapon useful to the accused. There are instances where people who believe they are wrongly accused want the spotlight turned on them. Would they be allowed to make their names public? Again, there are many individuals who deliberately break the law over a “conscience” issue – Greenpeace in Russian waters and the roadblockers of Faslane spring to mind. They rely on publicity for their illegal actions to bring their cases into the public arena. Ensuring their anonymity would prevent their exploiting the court system for their own ends.

The more exposure the Justice Bill is subject to the more are the flaws exposed in it. Already the determination to remove the need for corroboration has produced condemnation for all sides of the legal profession. Why a government committed to independence would want to change this unique feature of the Scottish legal system on the grounds that it has been removed from all other jurisdictions is never satisfactorily explained.

Instead of paying attention to wise and experienced legal minds it is proposed to tamper with the jury system by increasing the majority needed for conviction possibly up to 12 out of 15. The current plea for anonymity arises from unease at the greater powers of arrest the new, already powerful national police service is being given. It is not a proposal of any merit. Those libelled or slandered as a result of court proceedings already have a ready remedy by recourse to the civil courts. Justice is best served in open court.

With its Offensive Behaviour at Football and Threatening Communications Act this government has already done damage to the right to freedom of speech. If anonymity for the accused were to be introduced as a principle of Scots law it would significantly interfere with freedom of the press with no corresponding benefit. It is the new police powers proposed in the bill that should be dropped.