UNTIL quite recently I was at court most days, covering proceedings for our sister title, the Glasgow Times.
I looked at covering court as a privileged role and I miss it. It was a fascinating insight into the life of the city for readers and important for a local paper to shine a light on the operation of justice.
I don't miss two things: the relentless jokes along the lines of, "what are you up for?" and the relentless emails and phone calls from people surprised to find themselves appearing in the pages of a newspaper.
There is an understandable disconnect between the public and the role of the media in reporting court proceedings which manifests in various ways. Often this misunderstanding is around what the press can and can't publish. Rarely a day would go by without an accused or an accused's family member getting in touch to rail that they hadn't given me permission to write about them in the paper.
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There followed an explanation about the principles of open justice and the fact that we can – in the main – report anything said in open court. So, no permission needed.
This, as you might imagine, buttered few parsnips for those who'd rather their indiscretions were not made public. The lack of knowledge here makes sense. Unless you're routinely involved in court proceedings, or you know someone who is, why would you need to have an understanding of how the courts work and what the media can say about them?
The confusion sometimes extends to complainers too. I'd occasionally have a complainer – or victim – in a case getting in touch to express frustration that fuller details of "their side" hadn't been shared in the story.
Reporters can't pad out court stories with extra details or we'd be in contempt. We must, strictly, only report what is said in court during a hearing.
Another frequent misconception is around descriptions of offences. Again, and I'm labouring the point here because it's a point worth labouring, reporters can only report proceedings. We can't interpret events, alter wordings or give opinions on them.
This can lead to misplaced charges of the press being sexist or misogynistic in reporting of sexual crime. A common tweet or comment on a story is something like: "It's rape. There. Fixed that for you." If the press hasn't reported a crime as rape it's because the specific crime, while appalling, was not tried as rape.
It's one thing for members of the public to become incensed about this but it's quite another, as my colleague David Leask pointed out in these pages at the weekend, when it's our own legislators.
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In response to court story about a man convicted of sexual activity with a child, the Labour MSP Carol Mochan tweeted, "I think the word is 'rape'". Well, you can think all you like, Ms Mochan, but that's not what the accused was convicted of and it would be wrong for the press to inaccurately report proceedings.
She was backed by the SNP's James Dornan and, most troublingly, by Scotland's junior justice minister Elena Whitham, who replied that Ms Mochan was "Absolutely correct". If only there was some way of these three addressing what they clearly see as a gap in the law.
I think the word is ‘raped’ https://t.co/TimeQCn3EC
— Carol Mochan MSP (@CMochan) January 20, 2023
Last week I took part in an event at Glasgow Caledonian University designed to analyse and reflect on a campaign by the legal department there. Another common misconception about Scots law – and one that is reported poorly in the press – is that complainers in sexual assault cases have the legal right to anonymity.
They do not, and lawyers and law students at GCU are lobbying to change this. Complainer anonymity is enshrined in law in England, Wales and Northern Ireland but not in Scotland.
This comes as a surprise to the public, who assume rape and sexual assault survivors have the protection of the law. Rather, their anonymity is protected in Scotland by convention; Ofcom regulations and the Editors’ Code prohibits the publication of a survivor's identity.
The reason for the public surprise, I believe, is due to the fact the press adheres well to this. The public do not see the name of complainers in the press because the press do not publish them with errors in this regard being vanishingly rare.
While some might say "if it ain't broke, don't fix it", GCU's campaign argues that complainers deserve the legal right to privacy and protection while low reporting rates of sexual crimes might be bolstered if survivors knew their identities would be protected.
Reports often - as they currently do in the case of University of Glasgow student Ellie Wilson who has been speaking out about her experience of rape - refer to the survivor "waiving her right to anonymity". This is despite no such right existing and is poor reporting.
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The Campaign for Complainer Anonymity at GCU looks set to be a success but legislation changes will have to be handled carefully to avoid the sorts of unintended consequences that have occurred elsewhere. In Australia, for example, complainer anonymity law inadvertently gagged victims from ever talking publicly about their own experiences, removing autonomy and forcing them to go back to court to petition for an order allowing them to speak.
Given it's Ms Mochan et al who will be ultimately responsible for any Scottish legislation passed, you'd hope they get across the subject before any votes. The media, too, could do with being clearer on the topic – clarity is a vital part of shining that light.
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