Scottish High Court of Justiciary Decisons

PETITION OF THE BRITISH BROADCASTING CORPORATION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY [2000] ScotHC 56 (20th April, 2000)

This is a petition to the nobile officium of the High Court of Justiciary at the instance of the British Broadcasting Corporation. Abdel Bassett Ali Mohammed El-Megrahi and Al-Amin Khalifa Fhimah (hereinafter referred to as "the accused") are due to stand trial 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 it is to take place in the Netherlands. As a result of an agreement between the Governments of the United Kingdom and the Netherlands, the trial will take place in a specially constructed court room in the Netherlands and will be conducted according to Scots law and practice and presided over by three Scottish judges sitting without a jury. The petitioners wish to broadcast the entire trial by means of transmission on the Internet on a channel known as "BBC On-line".

In February 2000 the petitioners presented a petition to the nobile officium seeking the consent of the court to televise and broadcast the entire proceedings of the trial. Alternatively, they sought consent (a) for the broadcasting of edited parts of the trial proceedings in news broadcasts and other broadcasts or (b) for the compiling and broadcasting after the end of the trial of one or more documentary programmes on the trial, including parts of the proceedings of the trial. The petition was heard by Lord Macfadyen on 22 and 23 February and on 7 March he issued an Opinion refusing the prayer of the petition.

The petitioners have now presented another petition to the nobile officium to be exercised by two or more judges. In the prayer of the petition they seek (1) review of Lord Macfadyen's Opinion and refusal of the prayer of the first petition, (2) reference to the Judicial Committee of the Privy Council, in terms of paragraph 11 of Schedule 6 to the Scotland Act 1998, of the devolution issue which has arisen under paragraph 1(d) of Schedule 6 and (3) the consent or consents sought in the prayer of the first petition.

At the hearing before us the parties who were represented were the petitioners, the Lord Advocate and the two accused.

The petitioners wish to televise to the public the whole of the forthcoming trial. They regard the trial as having unique features, including the fact that it will involve a Scottish court, consisting of three judges without a jury, sitting in the Netherlands and it is a trial which will be of international significance and will give rise to considerable public interest. The judge who will be presiding at the trial, Lord Sutherland, has given permission for restricted television transmissions of the whole of the trial following an application by the United States Office for Victims of Crime (OVC) which is an agency of the United States Department of Justice. This permission was given on 4 February 2000 and will involve the trial proceedings being relayed to four remote sites for viewing by immediate family members of the victims. These remote sites will be in Dumfries, London, New York and Washington. The television signals will be encrypted so that they will not be able to be intercepted and used by others and Lord Sutherland has directed that, at the end of each day's viewing (there being a time lapse to allow for the times of viewing in the United States) the tapes will be physically destroyed. A set of guidelines has been approved for the operation of the remote sites and we were provided with a copy of those guidelines. Only family members who have been accredited through OVC will be admitted. Family members who may be called as witnesses will not be allowed to view the proceedings until they have given evidence or are informed that they will not be called. No journalist or member of the media will be allowed to view the trial at a remote site under any circumstances. The guidelines lay down rules regarding dress and decorum for those attending to view the trial proceedings at the remote sites on the basis that those sites are an extension of the Scottish court room. A member of the Scottish Courts Administration will be in attendance at each site. While counsel for the petitioners stated that it was their understanding that the television signals would be transmitted by satellite, the advocate-depute informed us that the signal would be transmitted by fibre-optic cable via the telephone system.

At the preliminary diet held in Scotland on 2 February before Lord Sutherland, the petitioners sought to appear with a view to applying to the court for permission to televise the proceedings at the trial but it was held that they had no locus to appear at the preliminary diet and they subsequently presented their first petition to the nobile officium.

Counsel for the petitioners began his submissions by pointing out that Lord Macfadyen had found, in paragraph 61 of his Opinion, that a devolution issue had arisen within the meaning of section 98 of, and paragraph 1 of Schedule 6 to, the Scotland Act 1998. Paragraph 13 of Schedule 6 provides inter alia that a party may appeal with leave to the Judicial Committee of the Privy Council against a determination of a devolution issue. Such an appeal may be taken against a determination by a court of two or more judges of the High Court of Justiciary but may not be taken against a determination by a court of only one judge. The effect of the first petition having been put out before one judge was to deny the petitioners an opportunity to appeal a determination of the devolution issue to the Judicial Committee. Counsel accepted that it would be open to this court in hearing the present petition to determine of new whether or not a devolution issue arose and, if a devolution issue does not arise, it was accepted that the present petition would fall to be dismissed. If a devolution issue does arise the petitioners' primary argument was that the devolution issue should be referred to the Judicial Committee in terms of paragraph 11 of Schedule 6. Alternatively, the court should determine the devolution issue in favour of the petitioners.

Counsel accepted that it was for the petitioners to establish that a devolution issue arose. Lord Macfadyen had found (in paragraph 61 of his Opinion) that a devolution issue did arise and that the petitioners' argument was not frivolous or vexatious, and he had been right to reach that conclusion. The devolution issue arose under paragraph 1(d) of Schedule 6 in that a question had arisen whether a purported exercise of a function by a member of the Scottish Executive was incompatible with the petitioners' Convention rights. The question had arisen in the present proceedings and the Lord Advocate was a member of the Scottish Executive. The acts of the Lord Advocate on which the petitioners sought to found constituted the exercise of a function by him and his acts were incompatible with the petitioners' rights under Article 10 of the Convention. The petitioners were inviting the court to refer the devolution issue to the Judicial Committee without making a determination. The terms of paragraph 11 made it clear that Parliament recognised that it could be appropriate in certain circumstances for a court of three judges to refer a devolution issue to the Judicial Committee without having made a determination. In this case the consent to television broadcasting which had been sought by the Lord Advocate had been given by the High Court and in the circumstances it would be more appropriate if the determination of the devolution issue were to be made by the Judicial Committee rather than by members of the same court. Further, the proposed reference would lead to the devolution issue coming before the Judicial Committee at an earlier date than would be the case if the court made a determination and it was then appealed to the Judicial Committee. The trial is due to commence on 3 May. If the court is not prepared to refer the devolution issue to the Judicial Committee, then counsel submitted that the issue should be determined in favour of the petitioners.

Counsel for the petitioners submitted that a devolution issue arose in the present proceedings in respect that there had been a purported exercise of a function by the Lord Advocate, who was a member of the Scottish Executive, which was incompatible with the petitioners' rights under Article 10 of the Convention. Counsel accepted that there was no material difference between an "act" (section 57(2) of the 1998 Act) and an "exercise of a function" in paragraph 1(d) of Schedule 6. The acts of the Lord Advocate which were founded on by the petitioners, singularly or cumulatively, were -

Counsel very frankly conceded that the petitioners had had to rely on press reports and what had been said at the hearing before Lord Macfadyen. There had been a request by OVC for television transmission to the remote sites and Lord Sutherland had agreed to that request in February. OVC had made the arrangements for the accreditation of those who would be viewing the television transmissions at the remote sites. The petitioners had no evidence that the detailed arrangements had been approved by Lord Sutherland. In the circumstances the remote sites could not properly be regarded as extensions of the court room. In particular, there could be no question of contempt of court at any of the remote sites. The acts of the Lord Advocate were in exercise of his functions. Anything which the Lord Advocate does in the course of his duties is an exercise of one or more of his functions. While the actual decision to allow restricted broadcasting had been made by the court, the earlier actions of the Lord Advocate had to be taken into account and they had led to the decision which the court had made. Television broadcasting of the trial had been permitted but only to the remote sites and it was the actions of the Lord Advocate which had led to that decision being taken and that restriction being imposed. The court had simply consented to the restriction on the broadcasting of the trial which had been proposed by the Lord Advocate. The true position was that the Lord Advocate had refused to allow the public at large to receive television transmissions of the trial proceedings and that was a breach of the petitioners' rights under Article 10.

The starting point for the petitioners' contention was that the court had already given consent to television transmissions of the trial proceedings to members of the public, subject to the restriction that the members of the public are to be limited to relatives of the victims. It followed that there will be television cameras in the court room and television signals which will be encrypted. The petitioners' contention is that the restriction which has been imposed is in breach of their rights under Article 10, which clearly applies to broadcasting and television. The petitioners are entitled to receive and impart information without interference by public authority. In the circumstances they are entitled to receive the television signals which will emanate from the equipment in the court room and to impart the information contained therein, namely the trial proceedings, to the general public. Permission for television transmissions to the remote sites having been given, it was a breach of the petitioners' rights under Article 10 to prevent them from receiving the signals and broadcasting the trial proceedings to the general public. This restriction on television broadcasting was unlawful. The Crown sought to contend that the restriction on broadcasting which had been imposed was justified by the provisions of Article  10(2) but that was not so. The trial will be an important and unique one, which is already exciting great public interest, and the general public have a right to see and hear the proceedings at the trial. Certain specified members of the public are being permitted to view the trial at the remote sites but no one else is being allowed to do so. The electronic signals from the equipment in the court room fall within the definition of "information" in Article 10(1). The petitioners have the right to impart the information, being the sounds and images of the trial, contained in the electronic signals. The public also have a right to receive that information. The existence of the electronic signals was crucial to the case being presented by the petitioners, which was that it was unlawful to restrict access to the information contained in the signals to the remote sites (News Verlags GmbH & Co KG v Austria, Application 31457/96, 11 January 2000). The petitioners were not suggesting that they should be permitted to place their own cameras in the court room. They merely wished access to the signals generated by the television equipment which was already in place there. The onus was on the Crown to justify the restriction on the television broadcasting of the trial proceedings. The Crown had put forward factors which allegedly justified the restriction on television broadcasting but they were without substance. Thus, it was suggested that witnesses would be reluctant to give evidence if they knew that the trial was being televised - but the trial is being televised and there is nothing to show that public broadcasts would have a greater effect on a witness than broadcasts to victims' relatives at the remote sites. In any event, witnesses from the United States may not be surprised that the trial is being televised. Then, it was said by the Crown that televising the trial to the public would increase the risk of witnesses being briefed about the evidence of earlier witnesses. However, if any witness wished to be briefed the court has effectively no power to prevent him as he could readily arrange for someone to attend the trial, which will be open to the public, and give him the necessary information. There will also be newspaper reports of the evidence which is given. Again, it was said that if the trial is fully televised witnesses could be nervous or could play to the gallery but this was simply speculation. In order to be valid, any restriction on broadcasting under Article 10(2) would have to be "pre

The advocate-depute began by submitting that if the court held that the decision to permit television transmissions to the four remote sites was contrary to the petitioners' rights under Article 10 and was unlawful, the likely consequence would be that the consent for any television transmissions would be withdrawn. It was also important to note, he said, that the petitioners had not asked the court to review the whole of Lord Macfadyen's judgment and, in particular, had not sought to challenge his conclusion that his decision met the tests set out in Article 10(2) of the Convention. Nothing that the Lord Advocate had said or done could in any way have affected Lord Macfadyen's decision.

The advocate-depute set out what he described as an accurate account of the Lord Advocate's involvement in the matter of the television transmissions to the remote sites.

The advocate-depute stated that the Crown had not been involved in the installation of the television cameras and other equipment in the court room. The financial contribution made by OVC had gone to the court and not to the Scottish Executive. OVC was paying for the equipment which was being installed at the remote sites. It was not the case that the Lord Advocate had made all the arrangements allowing the television signals to be made.

I should add at this stage that counsel for the petitioners stated that he was not in a position to challenge any of the factual information presented to the court by the advocate-depute.

The advocate-depute then turned to the question whether or not the petitioners had discharged the onus, which was admittedly on them, of showing that a devolution issue arose. In terms of section 100 of the Scotland Act, proceedings alleging breach of a Convention right could not be raised unless the party bringing the proceedings would be a victim. Reference was also made to Article 34 of the Convention. It followed that it could only be the petitioners' Convention rights which could be taken into account in the present proceedings. Before a devolution issue could arise in this case there must, in the first place, be a purported exercise of a function by the Lord Advocate as a member of the Scottish Executive and there must be some causal link between the purported exercise and the alleged wrong. The initial approach about televising the trial to remote sites had been made by OVC in the summer of 1999. When Lord Sutherland had been approached he had indicated that he had no objection in principle but that very strict guidelines would have to be put in place before authority could be given. For example, representatives of the court would need to be in attendance at each of the remote sites. Draft guidelines were prepared by OVC, modelled on those prepared in relation to the Oklahoma explosion. A meeting was held on 20 January 2000 attended by representatives of the Crown and the accused and adjustments were made to the draft guidelines. So far as the cameras which had been installed in the court room were concerned, they were installed after discussions between OVC, court staff and experts. The quality of the cameras being installed was not good enough for public broadcasting and was not up to the standard which would be required by the petitioners. With regard to the suggestion that the petitioners could screen documentary programmes after the trial had been completed, and could for that purpose use the tapes of the transmissions to the remote sites, Lord Sutherland has made an order that after each day's transmission to the remote sites had been made the tapes were to be destroyed. So far as the authority for the transmission of television pictures to the remote sites was concerned, Lord Sutherland on 4 February had written "I agree" on, and had signed and dated, the OVC letter applying for the necessary permission. In the circumstances the petitioners had not established that a devolution issue had arisen.

If the court concluded that a devolution issue does arise, the reasons advanced by the petitioners to justify reference to the Judicial Committee were not satisfactory and would not result in any significant saving of time. The court should determine it, adopting the same approach as Lord Macfadyen in paragraph 62 of his Opinion. In that connection it was important to have regard to Lord Macfadyen's analysis of the nature of the remote sites in paragraphs 52 to 54 of his Opinion. In particular, there was a clear distinction between transmissions to the remote sites and broadcasting of the trial to the public. As Lord Macfadyen observed, the fact that the court had granted authority for arrangements to be made for the transmission of the trial proceedings to the remote sites cannot be taken as constituting approval in principle of television broadcasting of the trial. The transmissions to the remote sites are not a restricted form of television broadcasting. The remote sites can be treated as extensions of the court room in which the trial is to be held, and transmissions to them do not impose any restrictions on the petitioners. In the circumstances there is no wrong to be identified and no question under Article 10 properly arises.

If a question does arise under Article 10 and the petitioners' rights have been affected, the advocate-depute submitted that the decision to allow only transmissions to the remote sites was justified under Article 10(2). The question of onus gave rise to some difficulty but it may be that the correct approach is that, if an application is made to the court for permission to televise to the general public a particular trial, it will be for the court, in exercising its undoubted discretion, to take into account all the information before it, including any representations by the Crown and the defence. The refusal to allow public television broadcasting of the trial was justified and was in the interests of justice. It was clearly in the interests of justice that witnesses should attend at the trial to give evidence. The procurator fiscal had made enquiries from witnesses proposed to be called by the Crown and it appeared that if the trial is to be televised to the general public, a number of witnesses who live abroad, and could not be compelled to attend, would not come to court on account of fears for their personal safety. Such witnesses would, however, be prepared to attend court if there were only to be transmissions to the remote sites. In the second place, it was an established principle of Scots law that witnesses in a criminal trial should not hear the evidence given by earlier witnesses. The advocate-depute referred to Hume ii. 379 and section 267 of the Criminal Procedure (Scotland) Act 1995. If the trial was broadcast to the general public, witnesses still to give evidence would be able to hear all the evidence which had already been given. There was another potential difficulty in that there was a real possibility that some witnesses, knowing that their evidence was being televised world-wide, would either become very nervous or would play to the gallery. Another consideration is that it was in the interests of justice generally that the relatives of the victims should have an opportunity of following the proceedings at the trial, particularly those resident in the United States, without having to travel to the Netherlands. The advocate-depute referred to Hodgson &c v United Kingdom (Applications 11553 and 11658/85, 9 March 1987), C. Ltd. v United Kingdom (Application 14132/88, 13 April 1989) and B.B.C. Scotland, McDonald, Rodgers & Donald v United Kingdom (1997) 25 E.H.R.R. C.D. 179 at page 181. On the whole matter the prayer of the petition should be refused.

Mr Wolffe, counsel for both of the accused, submitted that the present petition to the nobile officium was incompetent. There were two aspects to the petition, namely (1) an attempt to have the decision of Lord Macfadyen in the previous petition to the nobile officium reviewed and (2) an invitation to the court to refer what is alleged to be a devolution issue to the Judicial Committee of the Privy Council. The petition was incompetent in both respects. The original petition to the nobile officium had been determined by Lord Macfadyen and, due to the nature of the remedy being sought, no appeal lay against his decision. The principle was the same whether the quorum was one judge, or three judges. The issue of the competency of asking the court to review its own decision cannot depend on the quorum selected. If, in relation to the exercise of the nobile officium, three judges could review the decision of one judge, there would be no reason why five judges should not review the decision of three judges and so on. There was no statutory mechanism for an appeal from an exercise of the nobile officium. The present petition was seeking to found on grounds which were presented to Lord Macfadyen and sought a review of his decision insofar as it related to the alleged devolution issue. Counsel had not been able to find any previous case of an appeal against an exercise of the nobile officium. The case of Express Newspapers Ltd, Petitioners 1999 J.C. 176 is authority for three propositions, namely (1) that a petition to the nobile officium can competently be presented, in circumstances falling within its scope, in order to review a decision of the High Court, (2) that such a petition is competent to review a court's decision to impose a penalty for contempt of court and (3) that for the purposes of a petition presented to it (including a petition to the nobile officium) the court may sit with a quorum of one, unless there was a statutory requirement for a different quorum. In a case not covered by the 1995 Act, it was for the court to decide what was the appropriate quorum. In the case of Express Newspapers there had only been one petition to the nobile officium seeking to review a decision by three judges in relation to a petition and complaint for contempt of court, contempt of court not being a crime (Robb v Caledonian Newspapers Ltd. 1995 S.L.T. 631; H.M. Advocate v Aird 1975 J.C. 64 at page 69 and Macpherson, Petitioners 1989 S.C.C.R. 518).

The advocate-depute informed us that he was not submitting that the petition was incompetent. It had been the practice for petitions to the nobile officium to be presented to three judges but in Express Newspapers it had been held that it was competent for one judge to hear such a petition. In these circumstances it seemed to be in accordance with principle that if one judge determined a petition to the nobile officium an appeal would lie to a court of three judges.

On the issue of competency, counsel for the petitioners accepted that the petition has two aspects and submitted that each could be regarded as independent of the other, so that even if one was incompetent it would not affect the other. It was accepted that in certain respects the petition was in effect an appeal against Lord Macfadyen's decision, but that part of the prayer which sought a reference to the Judicial Committee was certainly not an appeal and the petitioners were clearly entitled to seek such a reference, even if an appeal was not competent. It was the decision to have the earlier petition heard by a single judge which had removed the petitioners' right to appeal to, or seek a reference to, the Judicial Committee. In the exercise of the nobile officium the court would react to different circumstances and the petition is competent. It was of particular significance that, whereas it had been the practice for petitions to the nobile officium to be heard by three judges, it was now the law, following Express Newspapers, that it was for the court to decide the appropriate quorum. If a petition to the nobile officium is heard by a single judge, it is logical, and in accordance with principle, that the decision should be able to be reviewed by a court of three judges, although counsel conceded that he, too, had not been able to find any reported case of an appeal against a decision of the court in a petition to the nobile officium.

Mr Wolffe went on to submit that on the basis of the information provided by the advocate-depute as to the nature and extent of the Lord Advocate's involvement in relation to the decision to allow transmissions to the remote sites, no devolution issue arose. Even if a devolution issue did arise, the determination of that issue would have no practical effect as the petitioners are not seeking review of Lord Macfadyen's refusal, after hearing argument on the point, to consent to television broadcasting of the trial to the general public. The alleged devolution issue relates to what the Lord Advocate is said to have done but that was not relevant to the question of the court's decision. The High Court has refused to consent to the public transmission of television pictures of the trial but the petitioners have not been prevented from making their application to broadcast the trial, and it has been refused. Even if the petitioners succeeded in establishing that their rights under Article 10 had been infringed, it did not follow that that would result in unrestricted public broadcasting of the trial being permitted. Mr Wolffe went on to inform the court of the position of both accused in relation to the petitioners' proposal to broadcast the trial. Neither accused is prepared to agree to the public broadcasting of the trial on the basis of any of the three heads set out in the prayer of the petition. The Lord President's 1992 Direction relating to Television in the Courts stated that the televising of current proceedings in criminal cases at first instance "will not be permitted under any circumstances" and that, so far as proposals for the broadcasting of documentary programmes at a later date are concerned, that could only be done with the consent of all parties involved in the proceedings. Both accused came to the Netherlands voluntarily to stand trial and that was on the basis that Scots law and practice would be applied. Before surrendering themselves for the purpose of the trial they had specifically asked whether the trial was to be televised and had been told that it would not be televised. It would clearly be prejudicial to the accused if their images were to be televised world-wide in the context of the allegations made against them and there were legitimate concerns about the effect which public television would have on a fair trial. The accused were not prepared to agree to a documentary programme being televised after the trial was over. If they were acquitted they should not have to endure re-runs of the trial and the risk of undergoing a subsequent trial by the media.

Mr Wolffe went on to submit that Article 10 just did not apply at all. The petitioners were not being denied access to the court room and will be able to report the trial fully. However, their objective is to obtain access to the encrypted signal, to have it decrypted and to broadcast the whole proceedings to the world. The petitioners' desire to gain access to the television signals does not raise any issue under Article 10. The right to "receive information" conferred by Article 10(1) is the right to receive information only from persons who are willing to impart it to them. Article 10(1) does not give the petitioners a right of access to information which is in the hands of others who are not willing to impart it to them. Reference was made to Leander v Sweden (1987) 9 EHRR 433 at page 456; De Geillustreerde Pers N.V. v The Netherlands (Application 5178/71) and Human Rights Law and Practice, Lester & Pannick, page 197. Even if Article 10(1) did come into play, the restrictions on televised transmissions are clearly justified by Article 10(2).

Article 10 of the Convention is in the following terms:

The first question for consideration is whether the present petition to the nobile officium is incompetent, as Mr Wolffe submitted, although the advocate-depute did not associate the Crown with that submission. We were informed that it has been the practice for petitions to the nobile officium to be heard by three judges, but as a result of the decision in Express Newspapers it is now for the court to determine the appropriate quorum. A petition to the nobile officium can now be heard by one judge and the petitioners' first petition was put out for hearing before Lord Macfadyen. Counsel informed us that they had been unable to find any reported case where a decision on a petition to the nobile officium had been the subject of an appeal. An issue of principle arises as to whether, if a petition to the nobile officium is decided by one judge, it is competent to appeal the decision to a court of three judges and presumably whether, if such a petition is decided by three judges, it is competent to appeal to a court of five judges. I have found this question to be attended with some difficulty and, while I tend to the view that the present application to review Lord Macfadyen's decision, insofar as it relates to what is said to be a devolution issue, is of doubtful competency, I do not feel that the issue was fully argued before us and I would prefer to reserve my opinion as to the competency of the application for review. In the circumstances I will turn to consider whether or not a devolution issue arises in these proceedings on the assumption that the application is competent.

In considering whether a devolution issue arises it is important, at the outset, to note that the petitioners, in their first petition to the nobile officium, asked the court to give them consent to televise the entire proceedings at the trial. In the event that such consent was not given, the petitioners sought consent for two more limited forms of broadcasting of the proceedings, either edited portions of the proceedings in news broadcasts and other broadcasts of topical or other interest or one or more documentary programmes after the trial has ended. Lord Macfadyen considered the petitioners' application for such consent and refused it and the petitioners have not sought to bring under review that part of Lord Macfadyen's decision. The petitioners have only sought a review of his decision insofar as it related to the alleged devolution issue with a view to having that issue brought before the Judicial Committee, either by way of a reference under paragraph 11 or by way of an appeal under paragraph 13.

It is common ground that the onus is on the petitioners to establish that a devolution issue has arisen in the present proceedings. The petitioners allege that a devolution issue has arisen because the exercise of a function by the Lord Advocate has been incompatible with their rights under Article 10. In my opinion it is not sufficient for a party simply to aver that a devolution issue has arisen. The court must consider whether, in light of the particular circumstances of each individual case, it has been demonstrated that a devolution issue does relevantly arise. The petitioners' case is that the restriction on the television transmissions resulted from an act or acts on the part of the Lord Advocate and the restriction has contravened their rights under Article 10. There appeared at one stage to be a dispute between the petitioners and the Crown as to the precise nature of these alleged acts. However, counsel for the petitioners frankly conceded that their account was based on press reports and information given at the hearing of the first petition. The advocate-depute gave us what bore to be a factual account of the Lord Advocate's involvement in relation to the issue of television transmissions to the remote sites before Lord Sutherland granted consent on 4 February. Counsel for the petitioners stated that he was unable to dispute the account given by the advocate-depute. It seems to me that the appropriate course will be to proceed on the basis of the factual information which we received from the advocate-depute. It is clear that it was OVC which made the initial proposal that there should be television transmissions to the remote sites to be viewed only by the relatives and that the Crown referred OVC to the Justiciary Office. It is accepted that the Lord Advocate was sympathetic to, and supportive towards, the OVC initiative and that he told the relatives that he hoped that the initiative would be successful, but that it was the court which would have to make the decision. The financial contribution made by OVC has gone to the court and the Crown has not been involved in the installation of the cameras and other equipment in the court room. In the event OVC made a formal application to the court and the court granted the necessary consent subject to strict guidelines which would prevent the television pictures being viewed by anyone other than the relatives. The decision to allow the transmissions to the remote sites was made by the court, not by the Lord Advocate, and in my view the fact that the Lord Advocate was supportive of OVC's application could not lead to the conclusion that any acts on the part of the Lord Advocate resulted in, or had any practical effect on, the decision which was made and, in particular, the restriction which was imposed. Indeed, it is by no means clear to me that anything which the Lord Advocate said or did in this case could properly be regarded as an "act" or the "exercise of a function". It follows, in my view, that it cannot properly be contended that a purported exercise of a function by the Lord Advocate was incompatible with any rights which the petitioners may have under Article 10 of the Convention.

The petitioners go on to contend that the restriction on television transmissions contravenes their rights under Article 10. The petitioners do not seek permission to install their cameras in the court room in order to broadcast the proceedings of the trial to the general public. Their position appears to be that permission in principle has already been granted by Lord Sutherland for television broadcasting to members of the public of the entire trial subject to the restriction that the only people who will be able to view the transmissions will be relatives of the victims of the tragedy and that viewing will be limited to the four remote sites. As permission in principle for public broadcasting of the trial has been given subject to that restriction, and the restriction is incompatible with the petitioners' rights under Article 10 of the Convention and is therefore unlawful, the restriction, which resulted from an exercise of the Lord Advocate's function, should be removed with the consequence that there will then be an unfettered permission by the court for the televising of the trial to the general public. The petitioners will then, so the argument ran, be entitled to access to the television signals from the equipment which is already situated in the court and, on the basis that these signals will be decrypted, will be able to televise the proceedings at the trial to a world-wide audience.

In my opinion, however, that argument is misconceived. I agree with Lord Macfadyen that there is a clear distinction between the transmissions to the four remote sites for the benefit of the victims' relatives which the court has already authorised and broadcasting the proceedings at the trial to the general public. In particular, I do not consider that the consent which was given by Lord Sutherland on 4 February amounted to permission in principle for television broadcasting of the trial. The permission to view the proceedings at the remote sites was restricted to the relatives and guidelines were approved by the court which had the object of ensuring that only relatives will be able to view the television pictures. In my view the restriction imposed by the court cannot be said to be incompatible with the petitioners' rights under Article 10 Even if that restriction was held to be in contravention of the petitioners' rights under Article 10 it does not, in my view, necessarily follow that if the restriction is held to be unlawful the consequence will be that there will remain an unconditional permission to televise the trial to the general public. One obvious possibility is that if the restriction was held to be unlawful, the court which had imposed the restriction could refuse to permit any television transmissions at all. There is no doubt that the court has power to decide if any television transmissions are to be permitted and, if they are, the conditions on which any such permission is to be granted. In my opinion, the consent granted by Lord Sutherland for transmissions to the four remote sites could not be said to constitute consent in principle for public broadcasts of the whole trial and, that being so, the fundamental basis of the petitioners' contention disappears.

I am also of the opinion that Mr Wolffe's submissions in relation to the remedies sought by the petitioners under Article 10 are well-founded. The arrangements for transmission of the proceedings of the trial to the remote sites did not place any restriction on the petitioners. They made application to the court for consent to televise the proceedings at the trial and consent was refused. As I have said, the petitioners are not seeking the right to install their cameras in the court room in order to televise the proceedings world-wide. What they are seeking is an unrestricted right of access to the encrypted signals which will emanate from the cameras which have already been installed on the basis that they will be decrypted so that they can be used by the petitioners. Article 10, which deals with freedom of expression, confers the right to receive and impart information without interference by public authority. In Leander v Sweden, supra the court observed (in paragraph 74) that "the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him". I do not consider that Article 10 could properly be construed in such a way as to give the petitioners the right to use the encrypted television signals which will be produced by the cameras presently installed in court when there is every indication that those who will be producing the signals are not willing to allow the petitioners to make use of them.

On the whole matter I am satisfied that the petitioners have not established that a devolution issue within the meaning of paragraph 1(d) of Schedule 6 arises in these proceedings.

I would only add that, if I had been satisfied that a devolution issue does arise, I would have had no hesitation, having regard to the particular circumstances to which I have referred, in determining the issue against the petitioners. In particular, I would have concluded, in light of the submissions made by the advocate-depute and by Mr Wolffe on behalf of the two accused, that the restriction which the court has imposed on the viewing of the television transmissions is justified by virtue of the provisions contained in Article 10(2).

However, as I have reached the conclusion that the present proceedings do not give rise to a devolution issue no question arises of a referral to the Judicial Committee and I would move your Lordships to refuse the prayer of the petition.

In common with your Lordship in the Chair I have grave doubts as to the competency of this Petition in any of its branches. However, since the Crown did not take the point and since there is considerable urgency regarding the subject matter of the Petition, I am prepared, like your Lordship, to consider what might be termed its "merits" despite my reservations as to competency. Nonetheless, it is important that the present proceedings should in no way be regarded as any form of precedent.

Turning, then, to the body of the Petition it is, in my view, also important to emphasise at the outset what this Petition is not about. In short, it is not an application to the court for consent to the televising by the petitioners of what has become known as the "Lockerbie trial". That application was made to Lord Macfadyen in the earlier Petition, and it was refused. Instead, as the argument developed, it became clear that the petitioners' position, so far as the present proceedings are concerned, is that the court's consent to broadcasting the trial by way of television could be seen as having already been given by the Chairman of the trial court but that the restriction which he imposed, namely the restricted link to the four "remote sites", was illegal under Article 10 of the Human Rights Convention. That argument, in turn, involved the proposition that the existing arrangements could somehow be laid at the door of the Lord Advocate and could thus be struck at under the Scotland Act 1998 in the form of a "devolution issue".

In reference to the argument which I have just summarised I should say at the outset that I have the gravest reservations whether anything said to have been done by the Lord Advocate in this context could possibly be regarded as an "act" or the "exercise of a function" within the meaning of the Scotland Act 1998, let alone that it had any practical result bearing in mind that, in the end, it is the court, and the court alone, which authorises any form of broadcasting. I also have grave reservations as to whether Article 10 can have any application to an encrypted signal emanating from a third party's equipment to which the petitioners have no immediate right of access; and I consider that this difficulty becomes all the greater if, as we were told during the course of the hearing, that signal is to be transmitted by way of cable rather than satellite. However, I do not find it necessary to enter into these areas in any detail because I am entirely clear in my own mind that the underlying premise of the argument advanced on behalf of the petitioners, namely that the court's consent to public broadcasting has already been given, is fundamentally unsound. As to that, I cannot do better than adopt the very careful and persuasive reasoning of Lord Macfadyen at paras 51 et seq. of the Opinion which he delivered in the earlier Petition. It is, in my view, simply a misuse of language to try to present the existing arrangements as public broadcasting in any shape or form. For this reason, if none other, I am of opinion that the Prayer of this Petition should be refused in its entirety.

I agree with the Opinions of your Lordship in the Chair and Lord Marnoch.