In Petition Of The British Broadcasting Corporation To The Nobile Officium Of The High Court Of Justiciary V.
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Court | High Court of Justiciary |
| Date | 07 March 2000 |
| Published date | 07 March 2000 |
| HIGH COURT OF JUSTICIARY OPINION OF LORD MACFADYEN in Petition of THE BRITISH BROADCASTING CORPORATION to THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY ___________ |
Petitioner: R.L. Martin QC, Dewar; Maclay Murray & Spens
A.P. Campbell, QC; Crown Agent
R. Scott, Balfour & Manson; Third Party
R.S. Kean, QC, M. McLeod; McGrigor Donald
W. Taylor, QC, J. Becket; McCourts
7 March 2000
Introduction
[1]This is a petition to the nobile officium of the High Court of Justiciary at the instance of the British Broadcasting Corporation. Its purpose is to seek the consent of the court to their broadcasting by television the proceedings in the trial of Abdel Bassett Ali Mohammed El-Megrahi (the first accused) and Al-amin Khalifa Fhimah (the second accused) on charges of inter alia murder arising out of the destruction of a civilian aircraft at Lockerbie on 21 December 1988. The trial is due to commence on 3 May 2000, and is to take place in the Netherlands in accordance with special diplomatic and legislative arrangements made for the specific purpose. The petition was served on the Lord Advocate, and on each of the accused through their respective solicitors, and was also, I was informed, intimated to the Advocate General. Answers were lodged by Scottish Television Limited and seven other television broadcasting companies seeking the court's consent to their also participating in broadcasting by television the proceedings in the trial. No other answers were lodged. At the hearing of the petition the parties who were represented were (i) the petitioners, (ii) the broadcasting companies on whose behalf answers had been lodged, (iii) the first accused, (iv) the second accused and (v) the Lord Advocate. There was no appearance for the Advocate General.
The Order Sought
[2]The prayer of the petition invites the court, in the exercise of its nobile officium, to give its consent to the petitioners
"to televise the proceedings of the trial (a) for the purpose of broadcasting simultaneously the entire proceedings of the trial, (b) for the purpose of broadcasting edited portions of the proceedings of the trial in news broadcasts and other broadcasts of topical or other interest, and (c) for the compiling and broadcasting after the ending of the proceedings of the trial one or more documentary programmes on the circumstances surrounding the subject of the trial and including parts of the proceedings of the trial, and that subject to such conditions as to [the court] shall seem proper".
[3]In their answers, the other broadcasting companies aver that they too wish to televise and broadcast the trial, submit that any order pronounced should be in such terms as to permit them to do so, explain that some of them would wish to broadcast the whole proceedings and all of them would wish to broadcast shorter extracts from the proceedings as part of news programmes or programmes commenting on the trial, and plead that the prayer of the petition should be granted "as varied in accordance with these Answers".
The Trial in the Netherlands
[4]In opening the submissions for the petitioners, Mr Martin was at pains to emphasise the unique nature of the application which the petitioners sought to make. That derived, he said from the character of the proceedings on indictment against the accused, namely that uniquely they are to take place in the Netherlands before a bench of three Lords Commissioners of Justiciary, sitting without a jury. The petitioners thus, it was said, did not seek to establish any precedent, either in domestic Scots law or by reference to the European Convention on Human Rights, to the effect that broadcasters have a right to broadcast the proceedings in criminal trials generally. What was sought was no more than a judicial determination that in the particular circumstances of this unique case the petitioners should be permitted to televise the proceedings.
[5]In view of the way in which Mr Martin presented his case it is convenient to note at the outset the basis on which the proceedings on indictment against the accused are to take place. The arrangements are regulated by an inter-governmental agreement between Her Majesty's Government and the Government of the Kingdom of the Netherlands (petitioners' production No. 24). The legislative basis for the proceedings is to be found in an Order in Council made under section 1 of the United Nations Act 1946, namely the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 (S.I. 1998 No. 2251) ("the Order"). Article 3 of the Order (1) enables the High Court of Justiciary to sit in the Netherlands for the purpose of conducting the specified criminal proceedings on indictment against the first and second accused, and (2) provides that, except as provided for in the Order, the proceedings before the court sitting in the Netherlands are to be conducted "in accordance with the law relating to proceedings on indictment before the High Court of Justiciary in Scotland". Article 5(1) provides for the appointment of three Lords Commissioners of Justiciary to constitute the court for the purposes of the trial to be conducted by virtue of the Order, and article 5(3) provides that the trial will be conducted without a jury.
The Lord President's Directions
[6]In article 3 of the petition it is averred that the televising of proceedings in the Court of Session and the High Court of Justiciary has been permitted in accordance with Directions issued by the Lord President and Lord Justice-General on 5 August 1992. There are then set out excerpts from the Directions and an accompanying press release issued by the Lord President at the same time. Since the Directions played a central part in the submissions made on behalf of the petitioners, it is convenient at this stage to set out the material parts both of the Directions and of the press release.
[7]The Directions (which were in fact formally issued on 7 August 1992) are headed "TELEVISION IN THE COURTS", and begin as follows:
| "The Lord President has issued the following directions about the practice which will be followed in regard to requests by broadcasting authorities for permission to televise proceedings in the Court of Session and the High Court of Justiciary. | ||
| (a) | The rule hitherto has been that television cameras are not allowed within the precincts of the court. While the absolute nature of the rule makes it easy to apply, it is an impediment to the making of programmes of an educational or documentary nature and to the use of television in other cases where there would be no risk to the administration of justice. | |
| (b) | In future the criterion will be whether the presence of television cameras in the court would be without risk to the administration of justice. | |
| (c) | In view of the risks to the administration of justice the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances. | |
| (d) | Civil proofs at first instance do not normally involve juries, but the risks inherent in the televising of current proceedings while witnesses are giving their evidence justify the same practice here as in the case of criminal trials." | |
| Paragraphs (e), (f) and (g) are concerned respectively with appellate proceedings, ceremonies and the use of television pictures, without sound, in place of still photographs of judges, and are not material for present purposes. The Directions conclude: | ||
| "(h) | Requests from television companies for permission to film proceedings, including proceedings at first instance, for the purpose of showing educational or documentary programmes at a later date will be favourably considered, but such filming may be done only with the consent of all parties involved in the proceedings, and it will be subject to approval by the presiding judge of the final product before it is televised." |
[8]The press release was in inter alia the following terms:
"The Lord President has been considering for some time whether the present restrictions on the televising of court proceedings in Scotland might be altered. The position at present is that, although Section 41(1) of the Criminal Justice Act 1925 - which prohibits photography in court - does not apply in Scotland, the photographing of court proceedings in the Supreme Courts in Scotland is permitted only with the permission of the Lord President. The practice to date has been for all such requests to be refused.
The Lord President does not think that it is in the public interest in the long term that such an absolute restriction should remain. ...
It is also in the public interest that people in Scotland should become more aware of the way in which justice is being administered in their own courts. There is a risk that the showing on television of proceedings in the courts of other countries will lead to misunderstandings about the way in which court proceedings are conducted in our own country.
It is clear that it would not be possible to begin to conduct the investigations which are necessary into the practical aspects of this matter without some statement of principle setting out the background against which these steps were to be taken. This is necessary to re-assure those who will be concerned about risk to the administration of justice that this vital aspect of the whole matter has not been overlooked. It is also necessary to give some guidance about the kind of proceedings for which permission to televise might be given, and the conditions which would require to be satisfied.
The Directions which the Lord President has issued to the Principal Clerk of Session & Justiciary today are intended to set out the framework of policy for the future. It is clear that detailed investigation and experiment will be necessary before any televising of proceedings could properly be undertaken. For this reason no forecast can be given at this stage as to when...
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