Open Justice? What Is the Problem With Tweeting From a Scottish Court?

On 31st October Lord Hodge dealt with the long awaited application for the liquidation of the former Rangers Football Club PLC. The hearing at the Court of Session took much of the day, as counsel for the administrators and for a creditor argued over whether the order should be granted; whether the fees charged by the administrators should be reduced; and whether or not there should be a continuing investigation into allegations of conflict of interest on the part of Duff & Phelps, the administrators.

Coverage of the hearing was sparse as it proceeded. There is a ban on “tweeting” from Scottish courts. Indeed, when it was brought to the judge’s attention that tweets from the @Huddleboard account seemed to be coming from the court, those in attendance, including members of the public, were asked to confirm that their phones were off and that they were not tweeting. It was made clear that anyone “live tweeting” the case faced being found in contempt of court.

Not surprisingly no one owned up to being the tweeter. It was left to bloggers like me to fill the gap by taking what information had leaked out of the courtroom and trying to explain what I thought was going on.

At the lunch break, and at the close of the hearing there was then a mad rush by journalists and spectators to tweet what had happened, and one in particular, @mdkster, was kind enough to let me reproduce on the blog his detailed tweets regarding the morning’s proceedings.

What Are The Rules About Tweeting From Court in Scotland – The Lord President’s Guidance

On 14th December 2011 the then Lord President issued a statement regarding tweeting from court in light of guidance issued by the Lord Chief Justice of England and Wales. The Lord President said:-

“I note the Guidance issued today by the Lord Chief Justice of England and Wales on the use of live text based communication from court.  I will give full consideration to this Guidance and its implications with a view to formulating suitable Guidance in Scotland.

“Currently the permission of the court is required to use devices that allow live text based communication from court.  That position remains unchanged.”

Unless I have missed it, we have not had new guidance here, although the Lord President’s retirement meant that he probably had more pressing matters to attend to.

The position though is quite clear in Scotland. In any case it is not permitted to tweet about a case from the courtroom without the judge’s consent. That applies whether it is a High Court murder trial, a Sheriff Court or JP Summary trial or a civil proof or debate.

What Is The Position in England?

The Lord President’s statement came as a reaction to the LCJ’s English guidance.

After extensive consultation the LCJ laid down various principles:-

The judge has an overriding responsibility to ensure that proceedings are conducted consistently with the proper administration of justice, and to avoid any improper interference with its processes.

A fundamental aspect of the proper administration of justice is the principle of open justice. Fair and accurate reporting of court proceedings forms part of that principle.

The normal, indeed almost invariable, rule has been that mobile phones must be turned off in court. There is however no statutory prohibition on the use of live text-based communications in open court.

Where a member of the public, who is in court, wishes to use live text-based communications during court proceedings an application for permission to activate and use, in silent mode, a mobile phone, small laptop or similar piece of equipment, solely in order to make live, text-based communications of the proceedings will need to be made. The application may be made formally or informally.

It is presumed that a representative of the media or a legal commentator using live, text-based communications from court does not pose a danger of interference to the proper administration of justice in the individual case. This is because the most obvious purpose of permitting the use of live, text-based communications would be to enable the media to produce fair and accurate reports of the proceedings. As such, a representative of the media or a legal commentator who wishes to use live, text-based communications from court may do so without making an application to the court.

When considering whether to permit live, text-based communications the paramount question for the judge will be whether the application may interfere with the proper administration of justice.

Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials e.g., where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of a jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the courtroom may create pressure on witnesses, distracting or worrying them.

It may be necessary for the judge to limit live, text-based communications to representatives of the media for journalistic purposes but to disallow its use by the wider public in court. That may arise if it is necessary, for example, to limit the number of mobile electronic devices in use at any given time because of the potential for electronic interference with the court’s own sound recording equipment, or because the widespread use of such devices in court may cause a distraction in the proceedings.

Subject to these considerations, the use of an unobtrusive, hand held, silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice.

This is a welcome statement. The principle is that live reporting is permissible and indeed to be encouraged, unless (and this list is not exhaustive) there is a risk of disruption of electronic equipment in the courtroom, or interference with the evidence of witnesses.

The contrast with the Scottish position could not be clearer.

If the Rangers liquidation hearing had been in England, then live-tweeting by the press and public would have been permissible. In Scotland it led to the judge threatening to find people in contempt of court.

Jury Cases

I understand the concerns expressed by many about live-tweeting criminal trials, or even civil cases where evidence is being given. The nature of a tweet, restricted to 140 characters, is such that it is not easy to get the full flavour of an answer or a question into a tweet. Spreading comments over a number of tweets too can give an inaccurate impression of what has taken place in court. In addition, especially in jury cases, there is a risk of publishing something which might be prejudicial.

James Doleman, who was responsible for the brilliant Tommy Sheridan Trial Blog, and who is largely responsible for me deciding to start blogging, has discussed on various occasions how he went about covering the high-profile High Court case. He started from the premise that anything discussed in court outwith the presence of the jury would not be published. He then ensured that what he produced in his daily blog posts was a straight report of what had been said by and to the witnesses, and he consciously refrained from “editorialising” during the course of the trial.

As a result we have a far more comprehensive record of the case than is available from any media source.

James’ most difficult, or at least time consuming, task was moderating comments on the blog, on the basis that not everyone who wished to make comments knew or respected the guidelines by which he was reporting the case.

He tells of the moment in the trial when Mr Sheridan dispensed with his counsel, and the media dashed out of the courtroom to report this, only to be dragged back into court when they were told that the judge dud not want that reported at that time.

I imagine that James might not have fancied the challenge of live-tweeting a whole trial however. The reporting of evidence as it is given is fraught with difficulties, as the LCJ identified.

TV Coverage of Scottish Courts

Similar considerations apply to television coverage of Scottish courts, and on 18th October 2012 Lord President Gill announced a fundamental review of the use of TV cameras in court. The statement issued at the time said:-

The Lord President has determined that the current policy requires be revisiting and given extended consideration.  He has instructed that a review be undertaken by Judicial Office Holders.  Until this review is completed no further applications to film in court will be considered by the Judicial Office for Scotland.

The Lord President will appoint a number of judicial office holders to conduct a fundamental review into the current policy on the use of television cameras in court.  The committee charged with this task will outline the remit and scope of the review and the expected timescales.   It is anticipated that the review will consider the applications submitted to date, experience of handling such applications and the applicability of the current Practice Note.

Windfall Films, on behalf of Channel 4, was granted permission to film a number of High Court trials.  This project will continue to completion, but until the review findings are published no further filming requests will be considered.

So, whilst the review is ongoing, there will be no repeat of the very limited TV coverage which there has been so far, which in itself was restricted to the sentencing or appeal decisions in a couple of high profile cases, as well as recording for use in later documentaries.

An Anomaly?

Interestingly enough, there is regular live broadcast coverage of a Scottish court, or at least a court dealing with Scottish cases. The UK Supreme Court’s proceedings are shown on the internet live, through Sky.

It might be seen as rather a niche interest, but already a number of very important and far-reaching Scottish cases have been argued before the Justices. There are no frills to the coverage – no presenter to set the scene; no helpful captions; no commentators analysing what has been said, or how well Counsel for the Respondent or Appellant has performed.

Instead you get what you would hear if sitting in the courtroom – learned legal argument with the Justices testing the Counsel and Solicitor-Advocates who appear before them fully.

I can imagine that this would be a great resource for students, and indeed for anyone looking at the de-mystification of law.

It reminds me of the first court I ever saw sitting – the Judicial Committee of the House of Lords. Back in the 1980’s I was lucky enough to visit Parliament as part of my degree course. We had the pleasure of meeting Lord Mackay of Clashfern who sat with eight Glasgow students for an hour, discussing his work and that of the Lords, before apologetically saying he needed to go to court. He led us along the corridor, greeting various eminent politicians previously only seen by us on TV, before showing us through one door, as he joined the judges entering court through the other.

I was taken aback immediately by the judges in the Lords, as is also the case in the Supreme Court, being unrobed. Whilst counsel were robed in all finery, the judges sat in their lounge suits.

I recall Senior Counsel making a lengthy point, only to be derailed by Lord Ackner. His Lordship had appeared for the previous 30 minutes to be asleep, but, like the Dormouse in Alice in Wonderland, roused himself briefly, asked a killer question, and settled back to what looked like, but clearly was not, a slumber. The case was Kay’s Tutor v Ayrshire & Arran Health Board, and Jimmy Reid, the famous Trades Unionist and journalist was sitting in the public seats watching and noting the course of the appeal.

The informality of the House of Lords sitting as a court was very surprising, and I am sure that anyone unaware of how courts operate would be very surprised now to log onto the Supreme Court. To be frank, the proceedings at Coatbridge District Court seemed to have more formality and pomp and circumstance than the Supreme Court does!

The Justices of the Supreme Court seem to have no trouble with their deliberations being broadcast live. On occasion I am sure that counsel appearing might have wished for the cameras to be switched off, but overall it is highly recommended.

The Up To Date View From Scotland

Last week saw an open forum event held at the University of Strathclyde debating the use of social media in the criminal courts. It was addressed by James Doleman, described by The Firm Magazine as “acclaimed blogger”.

The Firm reported that the head of Judicial Communications, Elizabeth Cutting said that the courts had been and remained receptive to permitting social media use when approached and under circumstances which did not affect the administration of justice. However, as regards the possibility of widening Twitter use to jurors, members of the public and those attending court in a non professional capacity, Ms Cutting said that she would not be recommending this approach as part of the judiciary’s review.

Now, this session was specifically addressing the criminal courts, yet it again emphasises what seems to me to be the fundamental difference between the Scottish and the English courts – in Scotland the question is whether we should permit Twitter use at all; in England the default position is to permit it, and the question is in what limited circumstances it should be restricted.

So What Should Be Allowed?

As I said, the issue of live tweeting from a criminal trial can clearly be problematic. Equally, live coverage of a case involving the welfare of children could be difficult, especially where an order under the Children and Young Persons Act has been made preventing disclosure of the identity of the children.

However, other than that, I see no reason why, in criminal appeals and in any civil case, the presumption should be that live Twitter coverage ought to be permitted.

If the UK Supreme Court permit the cameras to show the Justices and Counsel, then why can’t the Scottish courts permit live Twitter coverage from court?

As the LCJ recognised, the presence of smart-phones, iPads and laptops in court is now commonplace. It is perfectly possible to tweet unobtrusively. In fact I must confess to having tweeted from court, although not connected in any way with the cases ongoing at the time. Lawyers use computers as part of their case presentation routinely now.

Indeed I recall conducting an appeal at Aberdeen where opposing Counsel seemed to be assiduously typing what I was saying into his laptop – despite the shortcomings in my case I felt reassured that my opponent was noting my arguments in such detail. As I addressed the Sheriff Principal, I stepped back from the table in an effort to glimpse the laptop screen. I should not have done so. Rather than noting down my Ciceronian prose, then advocate was answering his email!

I must confess that the wind was rather taken from my sails at that stage.

That was also, as an aside, the case where my opponent introduced his case by saying that he had not had the opportunity of preparing a full response to my submissions, so he would restrict himself to an argument comprising eighteen main points and fifty three sub-points!

Laptops, phones and the like can all be used silently in courts. There seems little that might be done interfering with the course of justice in all civil cases but the limited ones I mentioned.

In cases like the Rangers liquidation there is clearly a public interest in people being able to know what is happening without having to travel through to Edinburgh.

And as I said, is it not an indictment of the Scottish courts that people were threatened with a finding of contempt for something which would not even have needed the court’s permission in England?

And if someone tweets something offensive about the court or the judge, then we have a good and long-standing term for that – “murmuring the judge” – and action can be taken against the miscreant for that.

The Scottish courts have embraced many technological advances. The Lord President should allow this one too to be utilised fully. After all, as the Lord Chief Justice said:-

A fundamental aspect of the proper administration of justice is the principle of open justice. Fair and accurate reporting of court proceedings forms part of that principle.

Posted by @paulmcc12 (Paul McConville)

 

 

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21 Comments

Filed under Contempt of Court, Courts

21 responses to “Open Justice? What Is the Problem With Tweeting From a Scottish Court?

  1. Ernesider

    Your story about the opposing counsel answering his emails brought to mind the Irish PM Enda Kenny checking his, while sitting in the front row of an assembly being addressed by the Pope. Predictable outrage from the usual suspects, for having disgraced our god-fearing nation.

  2. willy wonka

    ‘Fairness to the accused’ is a principle tenet of Scots Law.
    Take the example of a witness, let’s say a cop, giving evidence at a criminal court and being given a hard time by the defending solicitor. Somebody is inside the Court ‘tweeting’ and the corroborating police officer is sitting in the witness room being passed information on how his partners evidence is progressing.
    Is that fair ?
    As much as it may be annoying that blow by blow accounts of the Rangers case couldn’t be broadcast immediately to the world I’d rather leave things as they stand right now.

    • Ernesider

      Willy

      I believe Paul dealt with your concerns.

      ” When considering whether to permit live, text-based communications the paramount question for the judge will be whether the application may interfere with the proper administration of justice.

      Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials e.g., where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence.”

    • Budweiser

      @ willie wonka

      I believe if you re-read Paul’s post, you’ll find that he states that tweeting in criminal trials and child welfare cases could be problematic and ,in the main, is advocating allowing tweeting in civil cases eg rangers liquidation.

  3. Excellent Paul – a great read, and very well explained, as ever. Many thanks for posting that.
    I agree that the England & Wales approach seems much more sensible (and probably more cost-effective to apply) – although I do think that further technological advances could well make a lot of the argument here redundant. Who knows how easy it will become to communicate? The E&W approach still seems to fit better to this – the Scots law approach seems to be set up for future chaos.
    Perhaps the answer will eventually just come down to special accreditation and licensing of persons/bodies allowed to report/tweet – or whatever new way of communication will no doubt replace current methods. If it was based on readership/followers, you’d be shoe-in!
    (PS. BTW, I would certainly now call your good self a journalist – especially if Jimmy Reid got to be called one.)

  4. JohnBhoy

    CraigieWhyte@HidingPlace
    Scotslawthoughts@PaulMcC12. Charlie boy, I’m tweeting like a canary! Tweet! Tweet! Tweet! LOL! Gers1-7TiC.ur/ShitE.

    • Is it cold in the Third Division wee man? Club deed wee man? Seven wan against the mighty Alloa wee man – bring on the mighty east stirling eh wee man? Sevco in trouble wee man. Naebody paying attention tae yer Zombie rants wee man? wee man wee man talkin big pee wee man.

  5. ecojon

    The big problem in ‘broadasting’ information from a court using any media is the state of legal knowledge of the ‘broadcaster’ and also the areas where contempt or biased/incorrect reporting might be created even where permission is granted to cover and distribute the proceedings.

    Quite a bit of the training of journalists, even in this day and age, is based on these areas of law. Anyone can ‘broadcast’ a report amd most people can do it fairly accurately but it also has to be fair and balanced which takes a bit of supervised training.

    It’s one of the reasons why there is a decline in live court coverage but there is a legal duty to balance the ‘output’ which means you can’t just report all the juicy salatious bits and ignore what might be more than adequate responses which destroy the ‘good’ bits from a press point of view. But that means having to hang about to get both sides and that is regarded more and more as too expensive in time spent.

    Another problem is that, in most cases, the people tweeting will be personally involved with parties involved in the proceedings either as witnesses or accused and it is hard to believe and expect a fair and balanced report under these circumstances.

    We have to put people serving sandwiches or coffee through an Environmental Health short course to get their certificate and perhaps a basic law course certificate should be demanded of would-be tweeters to show that they have a basic understanding of the pitfalls.

    I hasten to add that I am not trying to restrict the right to tweet before Marching Together comes along 🙂 I am trying to protect the rights of people actually appearing before the court.

    To be honest anyone without a reasonable short-hand speed IMHO can’t adequately report court proceedings in any case and that can’t be picked-up in a few days 😦

    • ecojon

      Quite sad that on such an important subject as this 2 anonymous posters give me TDs and yet advance no argument to explain their position. Perhaps you are too narrow-minded to understand that in debate we can reach more-inclusive positions which don’t suffer the weakness of being compromise ones,

      • Budweiser

        @ Ecojon

        I can see your point re debating but I wouldn’t worry over much. Tbh I very rarely take any notice of td’s or tu’s unless it is brought to my attention by someone like yourself or others.

        • ecojon

          @ Budweiser

          Oh I don’t worry in the slightest – I just like trying to understand the thinking that goes on in other minds. Usually if I give a TD I also post a reply to the person explaining my position.

        • Ernesider

          Ecojon

          In my first post I was anticipating a few TDs and have not been disappointed. Problem to me is that our usual thoughts garner such general approval and such is the low quality of debate from the opposition that occasionally the whole process becomes tedious. My usual inclination is to stick up for the underdog, but the trouble is if you ever took your foot off the head of the rabid mutt it would bite you in the leg.

          So I find it refreshing on occasion to indulge my iconoclastic tendencies and raise a few hackles here and there.

    • Budweiser

      @ Ecojon

      I can see where there might be problems in criminal or child welfare cases where live reporting could possibly affect the outcome. However ,in civil actions eg. d&p v collyer bristol or rangers liquidation proceedings, I feel that tweeting should be allowed, as I fail to see what harm could be done.

      • ecojon

        @ Budweiser

        I think one of the major problem areas is the arcane character of the civil courts in particular. There are very very few journos who actually understand the civil courts procedures and I would hazard a guess at no tweeters other than the odd Paul.

        There are many things disclosed in courts where if there is more than one journalist in attendance with unofficial agreements being made over allowable ‘taste’ in what is reported.

        With people tweeting who are personally involved that is an inhibition that flies out the window and you tend to see the same happen with celebrity cases with tabloid journos that have no care for the emotional damage done.

        It’s the easiest thing in the world to say open up the flood gates and let it rip but there could be penalties to pay in damage done to people. Certainly on the civil side there is a lot less opportunity for a lawyer or fiscal to grandstand to the gallery and throw a tit-bit in to get a mention in the paper. Lawyers love the publicity to get clients and fiscals like it as well to build careers.

        The vast majority of cases that fill our courts on a daily basis, whether civil or criminal, are incredibly sad in my experience in terms of the human beings involved.

        In any case there are always ways to ensure that publicity is avoided and the connected are well able to arrange these matters. I realise that there might be a low opinion of a lot of MSM journos on here and that is often well-deserved especially with celeb journos and columnists.

        But there are a lot of good solid jornos out there who know their craft and are good at it but they have no say over the newspaper ‘line’. But that doesn’t make court reporting an easy thing to do and few tweeters could keep-up their tweeting as well as following what was actually happening in court.

        I am not opposed to changes but I feel it is wrong to support the change solely on the grounds of press freedom as that isn’t what is really at issue here IMHO. I think it is more to do with the ability of the tweeter to present balanced and accurate copy without allowing personal emotion or involvement to cloud the copy produced.

        If we could address how that is achieved then I would feel happier about flinging the doors open and I feel sure so would their Lordships.

        On the day in question before LH I did point out that the way round any contempt of court proceedings was to have two people covering with one writing the tweet on a pad and nipping outside to send it while the other remained in the court writing down a new tweet to be sent in turn.

        So there are already way to do this although if the court ended-up with dozens of people constantly on the move it would be stopped as that would start to interfere with the dispensation of justice which is the main priority of the proceedings.

    • Wembley

      At the Harry Redknapp tax trial earlier this year, tweeting was subsequently banned after a Guardian sports journalist had clearly not had any training in court reporting. This was at the very start when the jury was being selected and their names are read out. As one potential juror had the same name as a player who had played at 3 different clubs under Harry’s management, there was some hushed laughter in the court and the journalist from The Guardian who knew no better decided to share the mirth and tweet his name! They had to reselect the jury because of this. To compound things he then later on that morning went and tweeted the legal discussions that occurred when the jury had been sent out.

      He was not seen back at court since that first morning.

  6. JohnBhoy

    Tweet, live recording, ballroom dancing, let’s have the lot. Might stop everybody falling asleep.

    Jamie could liven things up with Jamie’s 15 minute Trials.

  7. Pingback: Craig Whyte in Court of Session Next Week for Four Days? | Random Thoughts Re Scots Law by Paul McConville

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