Editorial: Justice must be seen to be done – why the death of newspapers matters to lawyers

Graham Ogilvy

When Lord Hewart, the liberal Lord Chief Justice of England and Wales for much of the 1920s and all of the 1930s, issued his famous dictum, often paraphrased as: “Not only must Justice be done; it must also be seen to be done”, Britain’s newspapers were in rude health with national titles like the Daily Express selling millions of copies in dozens of local editions, serviced by an army of hundreds of journalists.

A battalion of court reporters made sure that Justice was seen to be done with lengthy, balanced and accurate reporting of trials. The local newspapers played their part too, prominently reporting the judgements and opinions of the local sheriffs and justices.

Today court reporters are as rare as SLAB sanction for senior counsel.

Across Scotland the business of many sheriff courts is now inadequately reported. Some are not covered at all. The quality of the reports that do appear is often lamentable. Last month one of Scotland’s formerly respected titles published a court report which failed to identify the court, the quoted sheriff and the defence solicitor while also omitting a quote from the anonymous procurator fiscal!

The Lord Advocate’s guidelines for reporting, once rigorously observed, are regularly flouted. Thirty years ago court cases were reported impartially with an account of each day of the proceedings required to ensure that Justice was seen to be done. Now cases, including those in the High Court, are “topped and tailed” with a reporter sent along for the opening prosecution and returning for the verdict – a practice which seriously distorts the public’s view of the law. Routinely, they will read an account of the accused’s alleged monstrous crimes and then a week later read that he “got off with it” without ever having read the defence. (It is worth noting that attempts to televise trials will inevitably drift the same way.)

In addition, the routine failure to publish sentencing rationale in cases creates the impression that the sentences reported as being toward one extreme or the other are the norm, thereby discrediting the law and creating the impression that the judiciary are detached from society.

Even at the turn of this century when a sheriff decided to highlight the scourge of parrot tranquiliser abuse in Auchenshoogle and issue stiff sentences pour décourager les autres his words of warning would be relayed to the community by the local newspaper.

That transmission belt has now all but gone – even if a dying newspaper did report the sheriff’s views, it is clear that the public are not reading the papers in the numbers that they once did. And, with the newspapers’ digital replacements chronically under-resourced, it is equally clear that the days of the court reporter are numbered. Take a look at the empty press benches the next time you are in court and ask yourself how a deterrent sentence can be effective when it is invisible and unreported. This problem is all the more acute at a time when sheriffs are no longer embedded in the communities that they serve.

The slow death of the newspapers is quickening as the latest disastrous circulation figures for The Scotsman and The Herald (under 25,000 and less than 35,000 respectively) graphically illustrate. Newspapers survived radio and television but few in the industry expect them to be around in another 10 years of the digital era.

The Scottish justice system is now addressing the challenges of the digital age but the death of newspapers may throw up another set of challenges. Scotland’s commercial law firms have recognised the need to “make their own media” publishing websites, Facebook pages, blogs, newsletters, tweets and Linkedin alerts. It may be that the Scottish legal system will soon require to follow suit in a much more organised and coherent fashion.

Is it too fanciful to imagine a website for each sheriff court publishing and tweeting verdicts, sentences and opinions? Perhaps so, but justice unreported is justice unseen.

Graham Ogilvy