There is nothing the media likes better than a juicy headline to grab the readers attention. But how often do those headlines and stories have a direct affect on the outcome of any subsequent jury trial? Two of Scotland’s leading court practitioners speak to Steven raeburn about the dangers of a free press and self regulation.

In November 2006, Luke Mitchell, sentenced to life imprisonment for the murder of teenager Jodi Jones, won the right to have his appeal heard outwith Edinburgh. The decision passed largely without remark, but quietly and disturbingly, this move signifies a nadir in the relationship between the criminal courts and the media who report activities there. The fact that it is believed necessary to move the location of the appeal at all, is due to the adverse publicity which accompanied the original trial, and in anticipation of feverish coverage generating a storm of indignant interest, Mitchell’s defence team, led by Donald Findlay QC, aim to pre-emptively avoid negative press in the city. Such is the confidence Scottish legal practitioners have in their own media.

Findlay is in a position shared by only a few. The majority of his clients will have experienced some form of newspaper coverage of their activities prior to appearing in court under his representation. In many cases, even of brutal murder, the coverage will have been scant to the point of anonymity. On the day The Firm caught up with him, he had been defending an accused charged with murder, alleged to have used a shotgun in an Edinburgh public house. Almost no publicity heralded nor trailed this case, for reasons known only to editors. Yet earlier in the month, Findlay had defended Imran Shahid, Zeeshan Shahid, and Mohammed Faisal Mushtaq, all found guilty in the murder of Kriss Donald, a case so saturated with media coverage that you cannot fail to have known of it.

Whilst of course not able to discuss any specific cases, in considering the attitude of the newspapers in general, Findlay believes that in some instances, the level of coverage can be dangerously prejudicial, particularly prior to the point of any arrest. “That is the worrying area. How you strike a balance between the right of the press with the right of the individual. That is where you get the proverbial feeding frenzy,” he observes.

There is a trend, exemplified in the English case of Geoff Knights, that suggests the default setting of the newspapers, and the tabloid press in particular, is to sensationalise events if the participants are in any way known to the public. Knights was charged with an assault on a taxi driver in 1996, after a fracas of some kind which involved one or both parties in some combination of a jealous rage, two black eyes, a bust nose and jaw like the Elephant Man, scars for life and Knights going berserk with an iron bar. At least according to the tabloid press at the time. And of course, all before anyone had risen in the presence of a judge to hear whether any of this might have happened.

Was any of it true? Who knows. Judge Sanders of Harrow Crown Court was forced to abandon proceedings due to the adverse media coverage, citing a “grave abuse of process”, and whatever the truth of it, justice was halted by the baser elements of the newspapers. Hardly a triumph of journalism. An aberration, or a harbinger of things to come in Scotland?

“Proceedings have been halted because of press coverage, but not stopped,” Findlay says. “There are two underlying approaches. The jury will do what they are told, so if you tell the jury to ignore all publicity, the jury will. That is the basic principal. The other, which is the area of perhaps more concern, is the notion that people forget what they read in the newspapers. What you can never be sure of, if there is a huge amount of prejudicial press coverage, is, is that absolutely right, can you guarantee that?”

There is a legitimate issue of public concern in that question. Findlay’s daily bread is defending those who may have carried out horrendous crimes. The public would not be satisfied if they believed there was a chance of a case being abandoned because a daily newspaper published alleged specific detail in advance of court proceedings. Yet, bizarrely, that is exactly what they often do, up until the point of arrest when the Contempt of Court Act kicks in, barring reporting of all but that which takes place in court.
“You can never know the extent to which jurors or forthcoming witnesses read the press, and whether or not they are in some way influenced by what they read. The whole system operates on the basis that the jurors are told only to decide the trial on the evidence that they hear, and they will do that.”

The Contempt of Court Act also forbids attempting to solicit information from jurors about their deliberations. It is therefore not possible to inquire if juries do actually absorb nothing from the papers they have read. However, it is unrealistic to think that a person’s memory empties like a goldfish. The law in this area seems unnecessarily based on faith, and somewhat in denial of basic human capability. Findlay also observes a common human trait, which speaks to the subtle but pernicious influence of memory, and what we recollect.
“You will hear a story that is repeated from various sources, and many people get to a stage where they can’t remember if this is a story that they heard, or whether they were actually there at the time. If you are asked about things from your childhood, do you remember them because you remember them, or because your parents told you that they happened? Given that all of that exists, and the law says there is freedom of the press, the concern of defence lawyers is if the press are allowed to report that a man is being sought for a crime, you surely must do everything that you can to ensure the individual gets a fair trial. That is why in some cases it may be necessary to move it from one part of Scotland to another.”

Findlay calls for a legitimate inquiry to be made into the pervasiveness of press coverage, to allow the law to be informed in this area. “I would like somebody to do good research on the impact this has on jurors. Let’s find out whether this does affect the public at large, instead of guessing. Then we would know what we were dealing with.”

I show him a front page I had saved from 30 July 2005, the day after the arrest of the three men alleged to have carried out the failed London suicide bombings, two weeks after the carnage of 7 July. The picture is of a heavyset, dark-skinned man, his hands in the air, wearing only his pants. His face is confused; he has been tear-gassed, and the red pinpoints of laser sights can be seen across his chest. The headline reads, “Got the bastards”. Innocent until proven guilty no longer the case, apparently.

Had the arrests taken place in Scotland, Findlay or one of his colleagues would be required to defend these men. If they are guilty as alleged, the public would demand justice. A headline like that cannot be easily dismissed as ineffective. “That is something that would deeply concern me. I think it is tasteless in the extreme. That is the kind of area of which I am fearful. That is bound to impact on a huge cross section. That is the kind of thing as a defence lawyer I find quite frightening,” he says.

“I don’t believe that kind of a headline should happen. It runs contrary to a free society that has to balance the right of the individual against the right of the media.”

One might think a headline such as that would represent a bounty for the defence, who presumably could use it to convince a court that a fair jury trial would be impossible. But Findlay’s concern is not selfish. It is solely that the principle of fairness is being overlooked in the name of sensationalism. “People have a very curious view of what the defence lawyer’s job is. My job is to get guilty people convicted. To ensure that guilty people are convicted if I can, but only guilty people. That is what I have spent 31 years trying to do. To ensure that if someone is convicted, then the chances are it is right that they are convicted.”

And he argues that the public’s right to know could have been just as well served by more tempered reporting. “What is the difference from the media’s point of view about ‘Three men arrested’ and ‘Got the bastards’? The reality, I am afraid now, is that it is just something we have to live with. There is nothing we can do about it. The court made it plain some time ago that, in an era of freedom of the press, what defence criminal lawyers might regard as prejudicial publicity, is just publicity.”

Alistair Bonnington, solicitor for BBC Scotland shares Findlay’s view of the quality of coverage by certain segments of the press. “I think some people buy tabloids as comics now. They read the football and gossip and then I reckon they get the news from television, radio and the Internet. All a newspaper can do to serve the public is analyse the news and have expert commentators. You are not giving the public the news any more, they already know it. They want analysis.”

The rise in sales over the last two years of the ‘quality’ press has been matched by a corresponding drop in readership of the tabloids, so there is empirical support for Bonnington’s view. However, he does not share Findlay’s concern that febrile pre-trial coverage will influence a jury’s decision-making.

“What I saw when I was doing jury trials week in week out, is that the jury court becomes its own little society. I don’t think for a minute the jury takes anything from outside. They are determined to do what their jury oath says, which is try the accused according to the evidence. If you actually look at what happens, the way juries behave, they are not affected by pre-trial publicity. They make up their own minds.”

What is of pressing concern to Bonnington are the less visible but nefarious side effects of concentrated media ownership. In the era where newspapers and television stations are coming under the umbrella of international news organisations, a compression of agendas, and consequent narrowing of focus, may be detrimental to the long-term objectivity of the press. The trend is exemplified in the lack of press challenges to S. 4(2) orders under the Contempt of Court Act, which prevent the media reporting certain aspects of a case until its conclusion. These are frequently put in place by judges during proceedings, when there may in fact be a strong public interest argument against doing so.

“It used to be that the media in Scotland would get together and oppose these. The media in Scotland is very short of money, they have all been taken over. The result is the BBC legal department here are about the only people that go to court now to object to them. No one else bothers for economic reasons. The newspapers will talk about this, but they won’t do anything. If you sit back and allow ridiculous S. 4(2) orders to be granted, we are going to be in a very difficult position.”

No one would question the validity of encouraging an inquisitive press. The public rely upon good investigative journalism to represent their interests, and to act as a visible monitor of the courts, ensuring that justice can be seen to be done. The Contempt of Court Act sees to that, for the most part, successfully. Where Donald Findlay and others have expressed concern is in the interim period before an arrest is made and the provisions of the Act cannot yet apply. The public rely on editorial sense to prevail. Does “Got the bastards” convince you that it always will?

“There is a balance to be struck, and I would be the first to defend the freedom of the press as being absolutely essential in a free society,” Findlay argues. “But it is how the law reacts to certain situations that is our concern. We are not seeking to shackle the press.”

In the absence of responsible restraint, Findlay believes there is no option but to press for greater empowerment in the regulation of the press. Something governments are notoriously shy of.

“It has to be some form of regulation. I don’t see how you get away from that. I don’t see that as infringing the right of the media to do their job. If you are going to have a free press, which you must have, I would favour regulation, so that they know precisely where they can and cannot go. I think it should be much clearer, and enforced. If it can’t be done by agreement or restraint, it may be necessary to have some form of framework set out, enforceable if required.”

The solution is simple, and neatly stated by Peter Hamill, former editor of the New York Daily News, quoted in John Pilger’s Hidden Agendas. He said: “You have to trust the readers. You don’t have to hit them over the head and say ‘This is tragic, this is shocking’ – they can make the moral point themselves. You don’t have to treat them like morons. It’s about respect and real journalism.”

Got that, bastards?