Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> IN PETITION OF THE BRITISH BROADCASTING CORPORATION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY [2000] ScotHC 29 (7th March, 2000)
URL: http://www.bailii.org/scot/cases/ScotHC/2000/29.html
Cite as: [2000] ScotHC 29

[New search] [Help]

IN PETITION OF THE BRITISH BROADCASTING CORPORATION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY [2000] ScotHC 29 (7th March, 2000)

HIGH COURT OF JUSTICIARY

OPINION OF LORD MACFADYEN

in Petition of

THE BRITISH BROADCASTING CORPORATION

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 broadcasting by television of proceedings in the Scottish Courts is likely to begin."

[9] The petitioners aver that following the issue of the Directions they have televised proceedings in the Court of Session and the High Court of Justiciary on a number of occasions. Scottish Television Limited likewise aver, in their answers, that they too have broadcast criminal trial proceedings. Mr Martin acknowledged, however, that there has been no occasion on which proceedings in a criminal trial have been broadcast during the currency of the trial.

The Form of the Application for Consent

[10] Mr Martin said that the petition proceeded on the basis that, in light of the Directions, there was no general prohibition of the broadcasting of court proceedings in Scotland, and such broadcasting might take place with the consent of the court. Consent had in the past been given administratively, without formal application to the court. An attempt had been made to obtain such consent in the present case, but without success. The petitioners had first written to the Lord President in September 1998 (petitioners' production No. 4), and had received a reply from the Lord Justice Clerk in October (No. 6) which made reference to the Lord President's Directions of August 1992. There was further correspondence with the Lord Justice Clerk in November and December 1999 (Nos. 7 and 8). In light of the terms of that correspondence, the question of the attitude of the accused to the trial being televised was taken up with their solicitors, and on the first accused's behalf it was made clear that he would not consent (Nos. 13 and 20), while the response from the second accused's solicitors was also unfavourable (Nos.12 and 19). The petitioners had then sought to be represented at a preliminary diet which took place in the proceedings on indictment against the accused, and to make at that diet their application for consent to televise the trial. It had been held, however, that they had no locus to take part in that diet. In these circumstances and in the absence of any formal procedure for seeking such consent, the only available means of doing so was by a petition to the nobile officium of the court. Such a petition was the appropriate way of proceeding where as a result of a lacuna in procedure there were no other means of addressing an issue which affected the interests of justice (Alison, Practice of the Criminal Law in Scotland, page 23, � 13; Moncrieff, A Treatise on the Law of Review in Criminal Cases, page 264). It was now competent for an application to the nobile officium of the High Court of Justiciary to be entertained by one Lord Commissioner of Justiciary sitting alone (Express Newspapers plc, Petitioners 1999 JC 176 at 181F-182A). In the absence of a wish expressed by one or both of the accused to be present, it was competent for the hearing of the petition to take place in Scotland (Order, article 14(1)).

[11] The Advocate Depute, when he came to address me, stated that he did not propose to take any point of competency. Mr Taylor for the first accused likewise took no such point. Mr Keen for the second accused did, in the course of his submissions, advance the proposition that it would be incompetent for me to grant the prayer of the petition. That argument, as I understood it, however, went to the competency of the substantive order sought by the petitioners rather than to the competency of proceeding by way of petition to the nobile officium of the court. It is convenient to reserve discussion of this aspect of Mr Keen's submission until later in this opinion. I am satisfied that it is competent for the petitioners to make the application which they now make in the form of a petition to the nobile officium of the High Court, and for that application to heard by me sitting alone. I would only add at this stage that I have reservations about the soundness (or for that matter the necessity) of Mr Martin's reliance on article 14(1) of the Order. It seems to me that the reference to "any application to the nobile officium" in that provision is made in the context of "any appeal ... in relation to any proceedings to which this Order applies". It seems to me to be questionable whether this petition comes within the scope of the Order at all. A concluded view on that point would, however, require to be taken only if one or both of the accused wished to be present, and no such wish was expressed on behalf of either of them. In these circumstances I reserve my opinion on the relevance of article 14(1) to the present petition.

The Application of the Directions

[12] Mr Martin submitted that the background to the Lord President's Directions was that there was in Scotland no statutory prohibition which would stand in the way of the televising of court proceedings. Section 41 of the Criminal Justice Act 1925, which prohibited the taking of photographs in court and the publication of any such photograph, did not extend to Scotland (section 49(3)). The rule against photography in Scottish courts had depended simply on the practice of the court, and the terms of the Directions and the press release made it clear that it was now recognised that television broadcasting of court proceedings was in principle acceptable. That applied in the same way to the proceedings in the Netherlands under the Order as it did to proceedings in Scotland (article 3(2) of the Order).

[13] As further background to the petitioners' application for consent to their broadcasting the trial, Mr Martin drew attention to their position as public service broadcasters. He pointed to the quotation from their objects which is set out article 2 of the petition and refers to their providing "as public services, sound and television broadcasting services". The petitioners did not intend, he said, their broadcasting of the proceedings of the trial to be a profit-making venture. As is averred in article 9 of the petition, they would not claim any intellectual property or other exclusive rights in their record of the proceedings of the trial. The other broadcasting companies had adopted a similar position in their answers.

[14] Mr Martin also drew attention to what had been said in paragraph 5 of the letter from the United Kingdom and United States Ambassadors to the United Nations dated 24 August 1998 and addressed to the Secretary General of the United Nations (petitioners' production No. 23). An assurance was there given that the trial would be held in public "adequate provision being made for the media". Mr Martin also referred to Article 11 of the Inter-Governmental Agreement (No. 24), which deals with communications facilities, but those provisions do not seem to me to have any relevance to the question of public broadcasting of the proceedings of the trial.

[15] The Directions were intended, Mr Martin submitted, as temporary guidance for a trial period, were not intended to remain in force permanently, and were expected to be modified in light of experience. That was to be gathered from the terms of the Directions themselves, and from those of the press release and the letter of 5 August 1992 from the Lord President to Mr Cargill of the petitioners (petitioners' production No. 1). It was clear that the object of the Directions was to enable court proceedings to be televised without risk to the administration of justice (see paragraphs (a), (b), (c) and (d)). As was expressly stated in paragraph (b) the criterion was to be whether the presence of television cameras in the court would be without risk to the administration of justice. It was to be noted that the language of that paragraph concentrated on the presence of cameras in court. That demonstrated that at least in part the concern was with the impact of the presence of the equipment rather than with the impact of the broadcast output. It was acknowledged that paragraph (c) expressed the continued prohibition of televising current criminal proceedings at first instance in categorical terms. Paragraph (d), although maintaining a similar prohibition on televising civil proceedings at first instance, acknowledged that the absence from such proceedings of a jury was a material consideration. It was only in relation to filming proceedings for future documentary use that provision was made for obtaining the consent of parties (paragraph (h)). The consideration mentioned in the third paragraph of the press release, namely the importance in the public interest of the avoidance of misunderstanding about the way court proceedings are conducted, was of particular importance in the context of the unique procedure to be followed in this trial.

[16] In turning to the reasons which the petitioners put forward as justifying the granting of the consent which they seek, Mr Martin reiterated his acknowledgement that (i) the Directions do not provide for the simultaneous broadcast of first instance criminal proceedings, (ii) no party had consented to the proceedings being televised, and the accused had expressed opposition to that taking place, and (iii) whatever might be said about the detailed arrangements to be made, the critical issue was whether or not broadcasting in the ways for which consent was sought would be "without risk to the administration of justice". Although he had, earlier in his submissions, stressed that the language of paragraph (b) concentrated on the physical presence of the equipment in the courtroom, he acknowledged that it could not be argued that no regard need be paid to the impact of the ultimate broadcast output.

[17] The first reason put forward as supporting the proposition that the trial proceedings should be televised, following the averments in paragraph (i) of article 8 of the petition, related to the nature and significance of the proceedings. They related to an allegation that a civilian aircraft had been deliberately destroyed. The aircraft was registered in the United States. Before its destruction, it had taken off from London. Its remains had crashed in Scotland. All of its passengers, many of them from the United States, its crew and a number of persons on the ground in Scotland had been killed. It is averred that:

"The trial is of international significance. Its conduct and outcome are of unique significance for a criminal trial in Scotland having regard to the number of victims, the fact that they are of different nationalities, and its implications for a number of governments including those of the United Kingdom, the United States, Libya and the Netherlands."

[18] The second reason (article 8, paragraph (ii)) related to the fact that the trial, although before the High Court of Justiciary, would take place in the Netherlands by virtue of the inter-governmental agreement, in a purpose-built courtroom within a secure cordon. It is averred that the trial will not be accessible to members of the public in Scotland as would any other sitting of the High Court of Justiciary "by virtue of its physically distant location from Scotland and by virtue of the security surrounding it". While I understand the force of the first of those points, it is not my understanding that the security measures in force in the Netherlands will prevent public attendance at the trial. The averment continues:

"The conduct of the trial is a matter of legitimate public interest in Scotland having regard to the fact that the destruction of the aircraft caused the deaths of persons in Scotland".

That point seems to me to be somewhat parochially expressed. I have no difficulty in accepting that the conduct of the trial is a matter of legitimate public interest in Scotland, but I should not have thought that that was so solely because persons were killed in Scotland. It seems to me, moreover, that the trial is a matter of legitimate public interest not only in Scotland but also elsewhere.

[19] The third reason advanced (article 8, paragraph (iii)) is that, since the trial will be conducted by three judges sitting without a jury, televising and broadcasting the trial "will not raise the risk of any prejudice as a result of effects on members of the jury". That is obviously so.

[20] The fourth proposition advanced by Mr Martin in support of the petitioners' application for consent to the televising of the trial (article 8, paragraph (iv)) was formulated thus in the pleadings:

"The televising and broadcasting of the trial would not give rise to any material effect on potential witnesses before they give evidence or on witnesses in the course of the trial in the particular circumstances of this case."

In support of that proposition reference was made (i) to the fact that the event giving rise to the trial took place in 1988, and has been the subject of "widespread publicity and public speculation throughout the world since", (ii) to the fact that photographs of the accused have been published and shown on television on many occasions in Scotland and elsewhere, and (iii) to the fact that arrangements had been made for concealing the identities of particular witnesses at the discretion of the court. That last factor, it was submitted, was an important consideration. Broadcasting would not compromise any concealment of identity thus authorised. In these circumstances the submission was that paragraph (c) of the Directions should not be regarded as a reason for refusal of the consent sought. Given that there was no jury, the effect of broadcasting on jurors did not enter into the matter. The effect on witnesses was not likely in the circumstances to be such as to afford a reason for refusal of consent. Televising for subsequent use in documentaries was unlikely to have any effect on witnesses as they gave their evidence.

[21] The fifth and sixth reasons advanced by the petitioners in support of their application for consent (article 8, paragraphs (v) and (vi)) raise matters which I find it convenient to deal with separately. Before addressing them I propose to turn to the positions adopted by the other parties to the petition proceedings on the broad question of whether the court can and should give consent to the broadcasting of the proceedings in the trial.

The Position of the Other Broadcasting Companies

[22] On behalf of Scottish Television Limited and the other broadcasting companies on whose behalf answers to the petition had been lodged, Mr Scott adopted the submissions made by Mr Martin, and added no separate submissions of his own.

The Position of the Crown

[23] In moving me to refuse the prayer of the petition, and submitting that there were formidable obstacles in the way of granting consent to broadcasting of the trial, the Advocate Depute sought first to identify the nature and effect of the Lord President's Directions. One of the ways in which the proceedings of the court are regulated, he submitted, is by rules of practice. It is part of the function of the Lord President and Lord Justice General to make decisions on matters of policy affecting the practice of the courts. In The Laws of Scotland, Stair Memorial Encyclopaedia, Vol. 6, � 930, the matter is put thus:

"Apart altogether from his purely judicial duties the Lord President, as head of the Court of Session and also as Lord Justice General, has a wide range of administrative and other functions to perform ...

He has general supervision over all the business of both the Court of Session and the High Court of Justiciary, and is responsible for the policy governing courts and judges."

It was formerly a rule of practice of the Court of Session and the High Court of Justiciary (a) that no cameras might be used in court and (b) that no sound recording facilities might be used in court. Sound recording was made the subject of legislation in the Contempt of Court Act 1981, section 9, which made it a contempt of court to use a sound recording instrument in court and to publish any recording made by means of such an instrument, except in each case with the leave of the court. (Reference was also made to the commentary on that provision in Archbold on Criminal Pleading, Evidence and Practice, � 28-93.) The use of cameras, and in particular television cameras, in court was addressed by the Lord President in the Directions which he issued in 1992. The Advocate Depute accepted that the Directions did not have the force of law, but submitted that behind them lay rules of practice which, except to the extent that they were thereby relaxed, prohibited the use of television cameras in court. He submitted that, so far as current criminal proceedings at first instance were concerned, the Directions could not be clearer in identifying that the rule of practice against televising such proceedings remained in force. He referred to paragraph (c) of the Directions: "... the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances". The rule of practice reflected in that paragraph of the Directions was, the Advocate Depute submitted, binding on me. Although the rule was not to be found in statute or in subordinate legislation, that did not reduce its binding force. It was conclusive ground for refusal of part (a) of the prayer of the petition.

[24] If the rule expressed in paragraph (c) of the Directions was not absolutely binding on me, the Advocate Depute submitted in the alternative that I should be very slow to depart from it. What was sought by the petitioners was wholly novel. It had never been done or sought in Scotland before. It was not permitted in England or elsewhere in Europe. The rule of practice was well justified by the rationale which underlay it. Its purpose was to ensure that there would be no risk to the administration of justice. In the present case there were three particular reasons, all relating to witnesses, for holding that to permit the televising of the proceedings at the trial would entail a risk to the administration of justice.

[25] One requirement of the administration of justice was that witnesses should come to court to give their evidence. If they did not, the administration of justice was at risk. In the present case, a large number of witnesses live abroad, i.e. beyond the jurisdiction of the Scottish courts. They are therefore not compellable witnesses. In that context the Advocate Depute informed me that over the past year a team of members of the Procurator Fiscal Service has been engaged in the precognition of witnesses all over the world. They have worked in close co-operation with local prosecutors. In anticipation of the hearing on the petition, the Advocate Depute had arranged for the views of the members of that team and their foreign counterparts to be taken. The clear conclusion at which they had arrived was that if the proceedings of the trial were to be televised, many of the witnesses simply would not attend, whether out of concern for their own safety, or because of the total loss of privacy or simply because of increased nervousness.

[26] Secondly, the Advocate Depute submitted, televising the proceedings of the trial would materially increase the risk of witnesses being briefed about the evidence of earlier witnesses. It is a rule of Scots law that witnesses should not hear the evidence of earlier witnesses (Hume, Commentaries on the Law of Scotland Respecting Crimes, II, 379). The common law rule has been relaxed to the extent of conferring on the court a discretion to permit or excuse the presence of a witness in court during the evidence of earlier witnesses, but only where it would not be contrary to the interests of justice (Criminal Procedure (Scotland) Act 1995, section 267). English law recognised the same consideration (see the commentary on section 9 of the Contempt of Court Act 1981 in Archbold at � 28-93). Although it was recognised that there was nothing to prevent a witness from reading a press report or hearing a radio or television report of the evidence of a previous witness, the Advocate Depute submitted that it would be wholly different in quality for a witness to be able to hear and see the entirety of an earlier witness's evidence as it was given. Contemporaneous broadcast of the trial would be wholly destructive of the law's endeavour to prevent the briefing of witnesses as to the detail of the evidence of earlier witnesses.

[27] Thirdly, witnesses should be able to give evidence without being influenced unduly by external circumstances. There was a risk that the evidence of witnesses might be affected in a variety of ways if the proceedings were televised. A witness might be more affected by nervousness than he would otherwise be. He might play to the gallery. He might restrict or expand his evidence in light of his knowledge that his evidence was being televised. That last consideration applied even where the evidence was only being televised for later documentary use.

The Position of the First Accused

[28] Mr Taylor submitted that the rules set out in the Lord President's Directions applied in relation to the petitioners' application for leave to televise the proceedings of the trial. Two parts of the Directions were relevant. First, paragraph (c) contained an absolute prohibition of the televising of first instance criminal proceedings, and the trial would be such proceedings despite its unique format. Secondly, paragraph (h) made the consent of all participants a pre-requisite of televising such proceedings for future documentary use, and no such consent was forthcoming from the accused.

[29] Supplementing the Advocate Depute's submissions on the grounds for apprehension that televising the proceedings would entail a risk to the administration of justice, Mr Taylor mentioned that the Crown had, in recognition of the fact that some witnesses would be reluctant to give evidence if they had to do so in open public view, presented a Minute seeking authority for certain witnesses to be screened from view and for their voices (as transmitted to the public part of the courtroom) distorted to obstruct recognition. Mr Taylor suggested that a witness who was already apprehensive to the extent that such precautions were required would be likely to be adversely affected by the proceedings being broadcast, even if assured that the broadcast would preserve the protective measures taken.

[30] Mr Taylor next made the point that the accused had voluntarily agreed to attend for trial before the High Court in the Netherlands. They had done so on the clear understanding that the trial would be conducted in accordance with existing Scots law and practice. Scots practice is that criminal trials at first instance cannot be televised. Both accused had specifically inquired if a trial under Scots law could be televised, in 1993 and again in 1999, and had been advised in light of the Lord President's Directions that it could not.

The Position of the Second Accused

[31] Mr Keen adopted Mr Taylor's reliance on the fact that the accused had voluntarily submitted to the jurisdiction of the court in the Netherlands on the understanding that it would follow Scots law and practice. He referred to the letter to the Secretary-General of the United Nations (petitioners' production No. 23) which in paragraph 3 stated that the court:

"would follow normal Scots law and procedure in every respect except for the replacement of the jury by a panel of three Scottish High Court judges. The Scottish rules of evidence and procedure, and all the guarantees of a fair trial provided by the law of Scotland, would apply";

(c.f. articles 3 and 5 of the Order).

[32] Mr Keen sought to distance himself from the Advocate Depute's refusal to take any point of competency. He argued, on the contrary, that it would be incompetent to grant the prayer of the petition. He submitted that the application flew in the face of paragraphs (c) and (h) of the Directions, and that it would not be competent for the court to waive the application of those provisions of the Directions. He submitted that it was well established that, absent the Directions, any broadcasting of court proceedings would be a contempt of court at common law. Section 41 of the Criminal Justice Act 1925 did not apply to Scotland, he submitted, because it did not require to do so; the matter was regulated by the court in exercise of its common law power to lay down its own procedure (Report of the Committee on Contempt of Court (the Phillimore Committee) (1974) Cmnd, 5794, paragraph 41). The stringency of the court's approach to such matters at common law was well illustrated in Stirling v Associated Newspapers Limited 1960 JC 5. The purpose of section 9 of the Contempt of Court Act 1981 was to relax that stringency to the extent of allowing sound recording with the leave of the court. So far as television broadcasting was concerned, the court had addressed the question whether the common law rule should be relaxed, and had formulated the relaxation in the Lord President's Directions. It was not open to the petitioners to seek leave to televise proceedings in circumstances not provided for in the Directions without bringing the Directions themselves under review on an available ground for judicial review, such as irrationality or illegality. The petition, however, made no attempt to challenge the validity of the Directions. In the absence of such a challenge the Directions stood, and should be applied according to their terms.

[33] Mr Keen advanced a further argument based on the terms of section 9 of the Contempt of Court Act 1981. Any broadcast would involve the recording of sound as well as pictures. It would therefore require leave in terms of section 9(1)(a). The reference in that provision to "the leave of court" should be construed as a reference to the trial court. It followed, he submitted, that only the court specially constituted for the trial of the accused in the Netherlands could grant such leave.

The Petitioners' Response

[34] Mr Martin submitted that Mr Keen was wrong in his submission that in order to open the way to the granting of consent for the broadcasting of the trial proceedings the petitioners required to bring under review the validity of the Directions. What the petitioners sought to do was review the application, not the validity, of the Directions. They disputed the proposition that it was not open to the court to give consent to broadcasting otherwise than in accordance with the Directions. The consent of the court, whether in accordance with the Directions or not, would elide any contempt. The argument based on section 9 of the Contempt of Court Act 1981 was wrong for two reasons. First, what the petitioners sought leave to do was to broadcast the proceedings by television, not make a sound recording of them. If and so far as leave to make a sound recording was required, it would be subsumed within any consent granted in pursuance of this application. Secondly, the trial was to take place before the High Court of Justiciary (Order, article 3(1)), albeit sitting in a special form. The present petition was before the High Court of Justiciary. There was nothing to prevent leave being given in these proceedings for the recording of the trial proceedings. If that was wrong, I should remit the present application to the specially constituted court provided for in the Order.

[35] In relation to the arguments advanced by the Advocate Depute against the merits of granting consent to televise the trial proceedings, Mr Martin responded by pointing out (i) that because of the arrangements made to transmit the trial proceedings to four remote sites in the United Kingdom and the United States, similar hardware to that necessary to televise the proceedings would be present in the courtroom, and the impression, so far as an uninformed witness was concerned, would be that the proceedings were being televised; (ii) that so far as the briefing of witnesses was concerned, the practical effect of the common law rule excluding witnesses from court during the evidence of earlier witnesses was already much reduced because of newspaper and broadcast reporting of the proceedings; the difference between watching a televised broadcast of the proceedings and reading or hearing reports of the proceedings in other forms was slight; and (iii) so far as witnesses' reaction to the physical presence of cameras was concerned, there was no difference between the impact of cameras present for the purpose of public television broadcasting and that of those present for the purpose of the transmission of the proceedings to the remote sites.

[36] In response to the submissions that the accused had voluntarily submitted to the jurisdiction of the court in reliance on the assurance that the proceedings would not be televised, Mr Martin submitted that on a proper understanding of the Directions, no absolute assurance to that effect could soundly have been given. In any event, the court's power to grant consent to television broadcasting of the proceedings could not be affected by the understanding on which the accused had proceeded in submitting to the court.

Transmission of Trial Proceedings to Remote Sites

[37] I turn now to the submissions made on the petitioners' behalf in paragraph (v) of article 8 of the petition. The proposition, in brief, is that the court has already consented in principle to television broadcasting of the proceedings of the trial. The basis on which the petitioners advance that proposition is their understanding of arrangements which have been made for the transmission of the proceedings to four remote sites. As Mr Martin pointed out the information which the petitioners had about the arrangements that had been approved was incomplete, and it is convenient, before recording the submissions that were made, to set out the understanding of the arrangements that was conveyed to me in the course of the hearing.

[38] It is the case that approval has been given by the court for the transmission of the proceedings of the trial by television to four locations beyond the precincts of the court in the Netherlands. Those locations, which are referred to as the remote sites, are situated one in Dumfries, one in London, one in New York and one in Washington DC. The initiative which resulted in that approval being given came from the Office for Victims of Crime (OVC), an agency of the US Department of Justice. The model on which the arrangements are based is to be found in the US Code, Title 42, Section 10608. That section is headed "Closed circuit televised court proceedings for victims of crime". It provides that where the venue of a trial is changed out of the original state and more than 350 miles from the original location, closed circuit television transmission of the proceedings to the original location may be ordered to enable victims of crime to watch the trial proceedings. Viewing is permitted by persons with a "compelling interest" in doing so. An exception is made excluding anyone whose testimony would be materially affected by hearing other testimony in the trial. The signal is transmitted under the control of the court, and public broadcast of it is prohibited. The OVC originally approached the Crown with a view to a similar arrangement being made in the present case to enable relatives of those who died in the incident at Lockerbie to view the proceedings without travelling to the Netherlands. The Crown supported the initiative, and regarded the making of such arrangements as desirable, but took the view that the approval of such arrangements would be a matter for the court and therefore put the OVC in touch with the Justiciary Office. A detailed scheme was worked out involving strict rules for the conduct of the remote sites. The system to be adopted utilises closed circuit television cameras which were installed in the courtroom in any event to enable proceedings to be transmitted from the courtroom to the media centre within the precincts of the court. The same pictures as will be transmitted to the media centre will also be transmitted to the four remote sites. The transmission will be rendered secure by encryption. At each of the remote sites the facility will be under the control of Scottish Court Service personnel. There will be no recording of the proceedings, other than such recording (carried out at the court in the Netherlands) as is necessary to enable the proceedings to be transmitted to the remote sites at a suitable local time, and the tape on which the recording is made for that purpose will be physically destroyed after transmission. Only previously accredited members of the families of the victims of the incident will be permitted to attend to view the proceedings at the remote sites. Any such family members who are themselves witnesses will not be accredited unless they have already given evidence or have been excused or have received permission to attend from the court pursuant to section 267 of the Criminal Procedure (Scotland) Act 1995. All persons who wish to be accredited to attend the remote sites will require to read and sign a declaration agreeing to abide by the rules and acknowledging that breach of the rules may result in exclusion from the facility and possible contempt proceedings. A formal application for approval of the arrangements was made by OVC on 28 January 2000, and approval was given administratively by Lord Sutherland, the presiding judge, on 4 February 2000. The accused, although their legal advisers have been involved in discussions about the arrangements for transmission to the remote sites, have neither consented nor objected to the arrangements.

[39] Mr Martin's submission was that the court's consent to those arrangements was consent in principle to the television broadcasting of the proceedings of the trial, albeit to a restricted number of locations. The Lord President's Directions did not distinguish between different types of broadcast output, save in so far as they distinguished between contemporaneous output and recording for subsequent documentary use. The court must therefore be taken to have been satisfied that there was no reason in principle to withhold consent to the televising of the trial. In particular, the court had accepted the presence of television cameras in the courtroom, was satisfied that live transmission was acceptable, and (if the accused had not consented to the arrangement) was satisfied that such consent was unnecessary. If the petitioners' application was to be refused, therefore, it was necessary to identify a positive reason for limiting the output of the broadcasts to the four remote sites. There was, he submitted, no reason for doing so.

[40] The Advocate Depute submitted that the arrangements for transmission of the proceedings to the four remote sites did not fall within the scope of the Lord President's Directions at all. The Directions applied to requests by broadcasting authorities for permission to televise court proceedings for public broadcasting. The transmission to the remote sites was wholly different. It involved no public broadcast. It was being undertaken by the court itself. It effected an electronic extension of the courtroom, which enabled persons who had a particular interest in viewing the proceedings to do so without travelling to the Netherlands.

[41] Mr Taylor submitted that the existence of arrangements for closed circuit television transmission of the proceedings to the remote sites under the control of the court was irrelevant to the question of whether public television broadcasting of the proceedings should be permitted. Like the Advocate Depute he adopted the position that the arrangements did not constitute broadcasting. It was a matter of the court's internal arrangements. Mr Keen adopted the same position, expressing it even more categorically. The remote sites actually were extensions of the court. It was not merely a matter of analogy. The Remote Site Guidelines themselves stated the position in unqualified terms: "The remote sites are an extension of the Scottish Courtroom".

[42] Since more detail of the actual arrangements was given in the course of the submissions made by the other parties, in particular by the Advocate Depute, than had originally been available to him, Mr Martin took the opportunity of elaborating on this aspect of his submissions in response. He invited me to make findings in fact to the effect -

that the trial court will contain live television cameras which will record the proceedings, including the testimony of witnesses, as they occur;
that the signal from those cameras will be transmitted beyond the precincts of the court in the Netherlands;
that the signal will be transmitted to three countries, Scotland, England and the United States; and
that access to the output of the signal will be enjoyed in those countries by persons who are not officers of the court or otherwise involved in the trial.

Such findings would apply likewise to any other broadcasting. Arrangements involving those features constitute television broadcasting of the proceedings as contemplated in the Lord President's Directions. As a matter of principle, therefore, the Directions apply to those arrangements. In giving its consent to those arrangements, the court has given consent as contemplated in the Directions.

[43] The proposition that the arrangements were analogous to an extension of the court site rather than to public broadcasting involved, Mr Martin submitted, considerable difficulties.

There was no precedent in Scotland for the court transmitting its proceedings to another locus not within the judge's control.
Two of the so-called extensions of the courtroom are in a foreign state, yet none of the diplomatic or legislative formalities which were required to set up the Scottish court in the Netherlands have been undertaken in relation to the remote sites in the United States. There will be no formal presence of the court at the foreign sites. The Scottish Court Service personnel will be visitors in the United States, subject to the laws of the United States. The court will have no sanction to deploy to secure compliance with the proposed rules regulating conduct at the remote sites, short of complete withdrawal of the transmission.
The accreditation of persons attending the remote sites (even the ones in Scotland and England) will be in the hands of an agency of the US Department of Justice, the OVC.
The public in general is not to be admitted.
The remote sites are to be funded by the OVC.

It was difficult in face of these considerations to see the remote sites as extensions of the court. Mr Martin invited me to hold that they could not be so regarded. He invited me to hold that in the circumstances the court had given its consent to television broadcasting of the proceedings of the trial in terms of the Directions, albeit without strict adherence to their terms because of the particular circumstances of the case. Mr Martin stated that he was instructed to say that it was of concern to the petitioners, as public service broadcasters operating under royal charter, that the approach from the OVC had been accepted by the court without public disclosure that that was being done. The approach by OVC should, in the circumstances, have been regarded as an application by a broadcasting authority within the meaning of the Directions.

Article 10 of the European Convention on Human Rights

[44] In paragraph (vi) of article 8 of the petition the petitioners seek to rely on the European Convention on Human Rights. Although the Human Rights Act 1998 is not yet in force, the Convention has in some respects been given effect in Scots law by the Scotland Act 1998. The petitioners aver circumstances which they assert give rise to a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998. That paragraph provides that "devolution issue" means inter alia:

"(d)

a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights ...".

Section 57(2) of the Scotland Act provides that:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights...".

By virtue of section 44(1)(c) of the Scotland Act the Lord Advocate is a member of the Scottish Executive. By virtue of section 126(1) of the Scotland Act the phrase "the Convention rights" has the same meaning in that Act as in the Human Rights Act 1998. The particular Convention right relied upon by the petitioners in the present case is that contained in Article 10 of the Convention as set out in Schedule 1 to the Human Rights Act 1998. Article 10 is in the following terms:

"Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The petitioners' contention is that the Lord Advocate has acted in a way that is incompatible with the petitioners' Convention rights under Article 10.

[45] The circumstance on which the petitioners rely in advancing this argument is that in August 1999 the Lord Advocate was reported as having indicated to the families of the victims of the incident that the proceedings of the trial would be broadcast to the remote sites, but would not be available for wider broadcast. The particular reports relied upon appeared on BBC Online on 19 August 1999 (petitioners' production 25) and in the Herald of 25 August 1999 (petitioners' production No. 26). The former stated that the Lord Advocate:

"revealed plans for closed circuit television links for relatives in Britain and the US to watch court proceedings live from the Netherlands. ...

But he ruled out general TV broadcasts of the trial and said only relatives would be able to watch the CCTV link.

He said a final decision would be at the discretion of judges who are to hear the case."

The petitioners aver, in paragraph (vi) of article 8 of the petition, that:

"In arranging in August 1999 that the trial would be televised and broadcast to restricted locations in Lockerbie (sic), London, Washington and New York, but that general broadcasting of the trial would not be permitted, the [Lord Advocate] acted in a manner which was incompatible with 'Convention rights'",

and continue, after quoting Article 10:

"The said actings of the [Lord Advocate] which the petitioners believe and aver have now been approved by your Lordships amount to interference by a public authority with the petitioners' legitimate wish to impart information about the trial by broadcasting in the public interest the television images which are to be taken of the proceedings of the trial."

On that basis the petitioners argue that what they describe as "the restrictions on the consent to the broadcasting of the proceedings of the trial" amount to a contravention of Article 10 by the Lord Advocate, and that that gives rise to a devolution issue which they wish to have determined.

[46] Although Mr Martin accepted that, since section 6 of the Human Rights Act 1998 is not yet in force, it is not unlawful for the court to act in a way which is incompatible with a Convention right, he submitted that it was undesirable that the court should, by giving its consent to restricted broadcasting of the proceedings of the trial, validate a breach of a Convention right committed by the Lord Advocate. He reminded me that the Human Rights Act 1998 was to come into force in October 2000, at which time the trial was expected still to be proceeding. Restrictions on the availability of the televised proceedings would, he submitted, constitute a breach of the petitioners' right to receive and impart information and ideas without interference by public authority. He was unable to refer to any authority on the application of Article 10 of the Convention in relation to the televising of court proceedings. He accepted that court proceedings were not regularly televised in any country in Europe. He submitted, however, that since the televising of court proceedings was in principle acceptable in Scots practice, a restriction on the availability of the output was a breach of the right conferred by Article 10. He referred to the decision of the European Court of Human Rights in News Verlags GmbH & CoKG (Application No. 31457/96, 11 January 2000). Although the circumstances of that case were very different from the present case, he submitted that the judgment (at paragraph 40) supported the view that a prohibition which limited a party's choice as to the form in which information could be presented constituted an interference with the right to freedom of expression; and (at paragraph 52) supported the view that the court had a supervisory jurisdiction to determine whether a restriction was reconcilable with freedom of expression as protected by Article 10. Any such restriction, Mr Martin submitted, required to be justified in terms of Article 10(2). The onus was therefore on the Lord Advocate to justify the restriction on the scope of broadcasting of the proceedings of the trial.

[47] The Advocate Depute submitted that, properly understood, what the Lord Advocate was reported as having said in August 1999 was that, although transmission of the proceedings to remote sites for the benefit of relatives of the victims of the incident was in contemplation, it was ultimately a matter for the discretion of the court; general broadcasting on the other hand would not be permissible. The latter point simply reflected the Lord President's Directions. The Lord Advocate did not, merely by supporting transmission to the remote sites as subsequently approved by the court, commit an act within the meaning of section 57(2) of the Scotland Act 1998. The decision about transmission to remote sites was one for the court, not for the Lord Advocate.

[48] The Advocate Depute accepted that even before the enactment of the Human Rights Act 1998 and the Scotland Act 1998 the court had increasingly had regard to the European Convention on Human Rights (see for example McLeod v H. M. Advocate (No. 2) 1998 JC 67). He therefore proceeded on the basis that he was content to test the arrangements which had been made by reference to the Convention. He submitted first that refusal of the present application would not constitute interference with the petitioners' right under Article 10 to receive and impart information and ideas. He pointed out that the petitioners were not prevented from broadcasting information about the proceedings in the ordinary way. Indeed, exceptionally comprehensive facilities for the press and broadcasting authorities were to be made available within the precincts of the court in the Netherlands. The petitioners would have as full access to the court as in any other case, and be in a position to make broadcasts in the normal way from the precincts of the court.

[49] The Advocate Depute went on to submit, secondly, that if he was wrong in his submission that there would be no interference with the petitioners' right under Article 10(1), refusal of the application would satisfy the tests set by Article 10(2). The prohibition of contemporaneous television broadcasting of criminal trials was "prescribed by law": see (i) the rules of practice already discussed which were, in that respect, not relaxed by the Lord President's Directions, and (ii) section 9 of the Contempt of Court Act 1981. The prohibition was imposed in pursuance of aims which were recognised in Article 10(2) as legitimate, namely "the protection of the ... rights of others", in particular the right of the accused to a fair trial, and "maintaining the authority and impartiality of the judiciary". It was "necessary in a democratic society", since it corresponded to a pressing social need, as to the assessment of which there was a margin of appreciation (C Limited v United Kingdom, European Commission on Human Rights, application No. 14132/88, 61 DR 285 (1989) at 293; Hodgson v United Kingdom, European Commission on Human Rights, applications Nos. 11553/85 and 11658/85, 51 DR 136 (1987) at 145). When the right to freedom of expression was balanced against the right to a fair trial, the latter ought to prevail (Montgomery v H. M. Advocate, 16 November 1999, page 26).

[50] In response, Mr Martin acknowledged that he was not arguing that every refusal of permission to broadcast the proceedings of a criminal trial would constitute a contravention of Article 10 rights. His case was based on the special consideration that, as he submitted, broadcasting was being permitted in the present case but subject to restrictions. It was in the restrictions that the interference with the petitioners' rights under Article 10 was to be found. C Limited v United Kingdom was distinguishable. That case was concerned a dramatic re-enactment of court proceedings. It could not be said that broadcasting the actual proceedings of the court would entail the risk of undermining public confidence in the court that was perceived to be present in that case.

Discussion

[51] I find it convenient to begin my consideration of the submissions made to me in favour of and in opposition to the granting of the prayer of the petition by addressing the petitioners' contention that by authorising the transmission of the proceedings of the trial to the remote sites by television the court has in principle authorised television broadcasting of the proceedings. On that foundation the petitioners build an argument that the court must be taken to regard television broadcasting of the trial as acceptable; and that there is therefore no onus on the petitioners to justify the granting of consent to public television broadcasting of the proceedings: on the contrary the onus is now on those opposing the petition to show cause why consent should not be granted. In my opinion that contention is not well-founded.

[52] In my opinion there is a clear distinction between the transmission to the remote sites that the court has already authorised and the broadcasting of the proceedings to the general public for which the petitioners and the other broadcasting companies seek authority in this petition. It is no doubt true, as Mr Martin submitted (paragraph [42] above) that there are features of the arrangements made for the transmission of the proceedings to the remote sites which would also be present in general public broadcasting of the proceedings. The trial courtroom will contain cameras which will film the proceedings as they occur; the output of those cameras will be transmitted beyond the precincts of the court to locations in other countries; and at the remote sites access to the output of the cameras will be enjoyed by persons who are not officers of the court or otherwise involved in the trial. In my opinion, however, it does not follow from these considerations that there is no distinction to be made between the nature of the arrangements made for transmission to the remote sites and the nature of general public broadcasting. In my view the type of broadcasting contemplated in the Lord President's Directions, and proposed by the petitioners and the other broadcasting companies represented in these proceedings, is broadcasting which is (1) carried out by a broadcasting authority or broadcasting company (whether a public service broadcaster or a commercial broadcaster) and (2) available for reception by members of the public generally. The transmission to the remote sites which the court has authorised is different in a number of respects which are, in my opinion, cumulatively of critical importance. The nature of the transmission is different from public broadcasting, in that the signal is to be encrypted so that it may only be received at the designated remote sites. Access to those sites is not to be open to the general public, but is to be strictly controlled and available only to a defined category of person. The arrangement is made in recognition of the fact that the relatives of the victims of the incident have a particular interest in watching and listening to the proceedings as they happen, but for geographical and economic reasons would have difficulty in attending at the courtroom in the Netherlands. The transmission to the remote sites is for their benefit in recognition of their special position. The arrangements take specific account of the risk of briefing witnesses, by excluding from accreditation to attend the remote sites any relative who is to be a witness, until he or she has given evidence, or been excused, or been given leave to be present in accordance with the relevant provision of Scots criminal procedure, namely section 267 of the Criminal Procedure (Scotland) Act 1995.

[53] In these circumstances, it is in my view realistic to regard the remote sites as extensions of the courtroom, and the transmission of the proceedings to those sites as no more than an internal arrangement within the court. That is certainly the way the remote sites are presented in the Remote Sites Guidelines. The force and effect of the point does not, in my opinion, depend on its being literally true that the remote sites are parts of the courtroom. It is sufficient that there is a strong functional analogy to that effect. The points made by Mr Martin in attacking the proposition that the remote sites will be parts of the courtroom (see paragraph [43] above) therefore do not, in my opinion, undermine the validity of the distinction between transmission to the remote sites and public broadcasting. The fact that there is no Scottish precedent for transmission of criminal proceedings to sites remote from the courtroom in which the proceedings are to take place does not seem to me to be material. Nor is the fact that two of the remote sites (New York and Washington) are to be in a foreign state and a third (London) in a different jurisdiction. It is in my view a matter for the court to be satisfied that there are adequate arrangements in place to give it sufficient practical control of what is to happen at the remote sites. It does not, to my mind, matter that the court has no formal jurisdiction over the remote sites, if it is satisfied that the practical arrangements with the relevant authorities who do have jurisdiction over those sites are sufficient for its purposes. As the arrangements were explained, it seems to me that the court retains absolute control over the transmission of the proceedings to the remote sites. It will have in place arrangements for the occupation of the premises at the sites, with Scottish Courts Service personnel in attendance, and, through its accreditation arrangements with OVC, control over access to the sites. The facts that the initiative for setting up the remote sites came from OVC, and that the model for the arrangements was (at least in some respects) found in US Federal legislation do not seem to me to be of critical importance. The fact that accreditation is to be in the hands of the OVC is, it seems to me, simply a matter of administrative delegation. The source of funding is in my opinion irrelevant. The fact that the public at large is not to have access to the remote sites distinguishes them from the public parts of the courtroom, but it does not, in my view, undermine the proposition that they can be regarded as detached parts of the court.

[54] I am therefore of opinion that the arrangements for the transmission of the proceedings of the trial to the remote sites are properly to be seen as special arrangements made with the authority of and under the control of the court to enable a defined category of persons with a special interest in the proceedings to watch and listen to them, as if they were present in the courtroom, but with less inconvenience and expense than would be entailed in actually travelling to the courtroom in the Netherlands. Those arrangements are, in my opinion, of a wholly different nature from public broadcasting of the proceedings, and serve a wholly different purpose. Their existence, therefore, has in my opinion no bearing on whether the consent which the petitioners seek to the televising of the proceedings for public broadcast should be granted. In particular, I am of opinion that the fact that the court has granted authority for those arrangements to be made cannot be taken as constituting approval in principle of television broadcasting of the proceedings of the trial. The submission that the existence of those arrangements, authorised by the court, removes from the petitioners the burden of demonstrating that consent to public broadcasting should be given, and casts onto those opposing the petition the burden of showing cause why such consent should be refused, is in my opinion unsound.

[55] In turning to consider the merits of the petitioners' application, I recognise at once the legitimacy of the interest which they have in the matter. They point to their role as public service broadcasters, operating under royal charter, with the object of providing sound and television broadcasting as public services. It seems to me that the other broadcasting companies who have intervened in the proceedings may likewise claim a legitimate interest in the matter. I recognise that the event which forms the subject matter of the trial, involving as it did the destruction of a civilian aircraft and the deaths of approximately 270 passengers, crew members and persons on the ground, is of great public interest. I accept that the trial in the Netherlands can properly be described as unique. The conduct and outcome of the trial are properly to be regarded as matters of great public interest, in Scotland, in the rest of the United Kingdom, in the United States, in Libya, and indeed throughout the international community. In so far as the public of Scotland has a particular interest in the administration of justice in Scottish courts, I accept that the unique arrangements for the trial to take place in the Netherlands place difficulties in the way of public attendance in court which would not be present if the trial took place in Scotland, and therefore underline the importance of full and detailed reporting of the proceedings by all news media. I understand the petitioners' view that the most effective, complete and detailed way for them to report the proceedings of the trial is for them to broadcast the whole proceedings live. If there were no countervailing considerations to be taken into account, that view would be entitled to prevail.

[56] It is, however, in my view appropriate to approach the question of consent to the televising of court proceedings in the relevant historical context. As has already been noted, the legislation which prohibits photography in court in England does not extend to Scotland (Criminal Justice Act 1925 sections 41 and 49(3)). The matter was not, however, unregulated in Scotland. The settled rule was that cameras (and, by extension, television cameras) were not permitted within the precincts of the court. That was a rule of practice, part of the court's inherent power to regulate its own proceedings, but it was backed up by a legal sanction in respect that any attempt to photograph or televise proceedings would have constituted a contempt of court and would have been punishable accordingly. The Lord President's Directions issued in 1992 innovated upon that situation in respect that it was contemplated for the first time that in certain circumstances the court might be willing to consent to the televising of court proceedings. If proceedings were televised with and in accordance with the consent of the court, that would not constitute a contempt of court. In one sense it is right that the Directions were tentative, and contemplated that they might be modified in the light of experience. On the other hand, the Directions were in some respects expressed in categorical terms. One respect in which they were so expressed is to be found in paragraph (c) which made it clear that "the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances". One other matter that was made clear in the Directions was that the criterion which would be applied in determining whether the televising of proceedings would be permitted was whether that could be done "without risk to the administration of justice" (paragraph (b)). It was because such risk could not be eliminated in the case of current proceedings in first instance criminal cases that paragraph (b) was expressed as it was.

[57] Although the Lord President's Directions clearly contemplate that the court may give consent to the televising of court proceedings, it would in my view be wrong to regard them as expressing any general presumption in favour of granting such consent. The Directions identify the ruling consideration, namely whether televising the proceedings would be without risk to the administration of justice. They then address a number of different types of proceedings and express a view about the application of that ruling consideration to those types of proceedings. The view expressed in relation to the televising of appellate proceedings and ceremonies is presumptively favourable, subject to practical considerations (paragraphs (e) and (f)). Requests to televise for future documentary use are also to be favourably considered, but in such cases the participants are to have a veto (paragraph (h)). The categorical prohibition of televising current criminal proceedings at first instance is, however, maintained (paragraph (c)). The effect of the Directions on the pre-existing practice therefore, in my view, requires to be considered separately for each type of case.

[58] If the Directions were to be applied in the present case according to their terms, the prayer of the petition would be refused. Parts (a) and (b) of the prayer would fall to be refused in terms of paragraph (c) of the Directions, and part (c) of the prayer would fall to be refused in terms of paragraph (h) of the Directions. As I have recorded, Mr Keen submitted that it would be incompetent for me to grant the prayer of the petition in face of the terms of the Directions. That seems to me to be a tenable view, if the Lord President's Directions are regarded as relaxing the former rule of practice only to the extent expressly contemplated therein. Even if it is not to be regarded as a matter of competency, I am of opinion that the submission that I should not depart from the express terms of paragraphs (c) and (h) is well founded. The Directions are of relatively recent date. They are categorically expressed. They contain no suggestion that an application such as the present petition might be granted. Although they refer to the consent of parties only in paragraph (h) in the context of televising for future documentary use, it seems to me that that is only because of the categorical form of paragraph (c). There can be no reason for regarding consent as necessary for recording for future documentary use but as not necessary for live transmission. It therefore seems to me that if paragraph (c) had contemplated that consent to the current broadcasting of proceedings in a criminal trial might be given, it would have incorporated a reference to the consent of the participants similar to that in paragraph (h). The absence of the consent of the accused therefore seems to me to be an obstacle in the way of granting any part of the prayer of the petition, not just part (c). It seems to me that the course which I ought to follow is to apply the Lord President's Directions according to their terms, and therefore refuse the prayer of the petition.

[59] It is no doubt correct that part of the reasoning underlying paragraph (c) of the Directions is that one way in which the broadcasting of proceedings at first instance in a criminal trial is liable to involve a risk to the administration of justice is in its impact on the jury. In the present case, that consideration can be said to be irrelevant, because there will be no jury, and the bench of judges who will hear the case may be taken not to be susceptible to influence in the same way as a jury might be. It does not seem to me, however, that that affords a sufficient basis for setting aside the prohibition contained in paragraph (c) of the Directions. In paragraph (d), it is recognised that in civil first instance proceedings there is not normally a jury, but the risks in respect of witnesses are regarded as sufficient to justify adherence to the same practice of not permitting the televising of current civil proofs. It therefore seems to me that, on a fair reading of the Directions, the potential impact of broadcasting on jurors is seen as strengthening the case for the prohibition of the televising of trials, but as not being essential for the soundness of that case. In these circumstances, I do not regard the fact that there is to be no jury in the trial in the Netherlands as sufficient ground for departing from the prohibition expressed in paragraph (c) of the Directions.

[60] If I am wrong in applying paragraphs (c) and (h) of the Directions according to their terms, I am of opinion that before the prayer of the petition could be granted the petitioners would require to show that televising of the proceedings of the trial would involve no risk to the administration of justice. The onus would in that event, in my opinion, rest on the petitioners. It would not be for the Crown or the accused to demonstrate that there would be a risk to the administration of justice. Mr Martin sought to argue that televising the proceedings would not be likely to have an adverse impact on witnesses. It seemed to me, however, that the submissions made by the Advocate Depute (and recorded in paragraphs [25], [26] and [27] above) were cogent, and supported the conclusion that the risk that the televising of proceedings would have an adverse impact on witnesses, and would give rise to a real risk of prejudice to the administration of justice, was greater in the unusual circumstances of this case than in the ordinary run of criminal cases. In my opinion the petitioners have failed to demonstrate that televising the proceedings would entail no risk to the administration of justice. On the contrary it seems to me that the considerations identified by the Advocate Depute render the risk greater than it would be in a routine criminal trial. I am therefore of opinion that, if the proper approach were for me to consider the petitioners' application on its merits, without regard to the categorical prohibition contained in paragraph (c) of the Directions, the result would be the same, namely that consent should not be granted.

[61] There remains for consideration the petitioners' argument that the Lord Advocate has acted in a way that is incompatible with their rights under Article 10 of the Convention. Mr Martin invited me to hold that in that connection a devolution issue arose, and to refer it to a larger court in terms of paragraph 9 of Schedule 6 to the Scotland Act 1998. I take the view that a devolution issue does arise. The petitioners argue that, by making arrangements in connection with the transmission of the proceedings to the remote sites but not for general broadcasting of the trial, the Lord Advocate acted in a way which was incompatible with their Convention rights under Article 10. Without at this stage expressing any conclusion as to whether that argument is sound, I take the view that it raises an issue which falls within the scope of paragraph 1(d) of Schedule 6, and is therefore a devolution issue. I do not consider that I can treat the point as vexatious or frivolous, and therefore do not consider that I can on that ground hold that no devolution issue arises (paragraph 2). Mr Martin accepted that if I held that a devolution issue arose, it was within my discretion whether or not to refer it to a larger court under paragraph 9. Having regard to the conclusion which I have reached on the merits of the argument, I do not consider that it would be appropriate for me to refer the issue. I therefore decline to do so.

[62] In my view it has not been shown that any exercise of a function by the Lord Advocate was incompatible with the petitioners' rights under Article 10. For reasons which I have already discussed, I do not consider that the arrangements for transmission of the proceedings of the trial to the remote sites were concerned in any way with any right of the petitioners under Article 10. They imposed no restriction on the petitioners. More significantly for the purposes of this argument, the arrangements for transmission to the remote sites cannot in my view be regarded as an exercise of a function by the Lord Advocate as a member of the Scottish Executive. The authority for the arrangements for transmission to the remote sites came from the court, not from the Lord Advocate. It follows, in my view, that even if the arrangements for transmission to the remote sites could properly be regarded as placing a restriction on the petitioners' freedom of expression, involvement on the part of the Lord Advocate in the discussion of the arrangements before the formal application for approval was made to the court cannot in my view be regarded as causative of that restriction.

[63] Mr Martin did not seek to argue that every refusal of leave to broadcast the proceedings of a criminal trial would be a contravention of the broadcaster's right of freedom of expression under Article 10(1), unless justified in terms of Article 10(2). He confined his argument to the case where restricted broadcasting had been allowed. I have to say that I find that approach difficult to follow. In any event, for the reasons already discussed, I do not consider that the arrangements for transmission to the remote sites can be regarded as the allowance of restricted broadcasting. In light, however, of the Advocate Depute's willingness to have his submission that the prayer of the petition should be refused tested by reference to Article 10, it is appropriate that I should express my views briefly on that point. It seems to me to be arguable that despite the facilities made available to the petitioners and other broadcasters at the court the refusal of permission to televise and broadcast the proceedings is to be characterised as an interference with their right to receive and impart information and ideas, since it restricts the form in which they may do so (News Verlags GmbH & CoKG, paragraph 40). Because of the limited extent of the argument that I heard on that point, however, I prefer not to express a concluded opinion on it. Assuming for the sake of argument that that point is sound, however, I am persuaded by the submissions made by the Advocate Depute that refusal of the prayer of the petition would satisfy the tests set by Article 10(2). I am of opinion that the prohibition of broadcasting of current proceedings in criminal cases at first instance, formulated in paragraph (c) of the Lord President's Directions, based as it is on the settled practice of the court and supported by the sanction that such broadcasting would be regarded as a contempt of court, is properly to be regarded as "prescribed by law". Its purpose is to protect the rights of others, in particular the rights of the accused to a fair trial. It may therefore, well within the available margin of appreciation, be regarded as "necessary in a democratic society". I therefore take the view that any restriction on the petitioners' right to receive and impart information effected by refusal of the prayer of the petition is a restriction which is legitimate in terms of Article 10(2). I therefore do not consider that in refusing the prayer of the petition I would be acting in a way which is incompatible with a Convention right. Thus, even if section 6 of the Human Rights Act 1998 had already been in force, I would have refused the prayer of the petition.

Result

[64] For the reasons which I have discussed I have come to the conclusion that I should not give consent to the petitioners to televise in any form the proceedings of the trial. I shall therefore refuse the prayer of the petition. Since I have not heard submissions on expenses, I shall reserve that matter meantime.