Proposed Holyrood legislation aims to improve outcomes for children involved in the Scottish criminal justice system. However, there are concerns about the effect of the new law on freedom of expression and open justice.
Safeguards to protect children and promote rehabilitation are of course to be welcomed. The Children (Care and Justice) (Scotland) Bill, currently progressing through the Scottish Parliament, changes the definition of a “child” and raises the age at which a young person can be referred to the Children’s Hearing System to 18. This means most 16 and 17-year-olds will be referred to the specialist children’s tribunal rather than the adult justice system.
From an open justice perspective however, a tension arises where the Bill seeks to introduce new restrictions on media reporting of cases involving children, and which could restrict publication of matters of public interest concerning adults.
The Bill makes it an offence to publish information that is likely to lead to the identification of a person suspected of committing an offence when they were under 18.
A perhaps unintended consequence is that someone disclosing on social media or to the press that they had been the victim of an offence would be in breach of the legislation.
A newspaper exposing bullying or historic abuse in schools, or sexual assaults of under 18s on university campuses would be unable to name the institution involved – a perverse outcome which is arguably contrary to the right to freedom of expression under the European Convention on Human Rights, with a potentially chilling effect on investigative reporting.
Proposed amendments seek to address anomalies that could arise, but the Bill will also place additional restrictions on reports of criminal proceedings involving children.
It is currently an offence to include information in a newspaper report or broadcast calculated to lead to the identification of an under 18 as the accused, victim or witness in criminal proceedings.
The Bill goes further however, so that identifying information about an accused person must not be published if the accused was under 18 at the date of the alleged offence.
The new restrictions will also mean that where the accused was under 18 and the proceedings end with an acquittal or are discontinued, the restrictions apply for their lifetime – meaning lifelong anonymity.
“What’s in a name?”, one might reasonably ask. The answer can be found in the 2010 Supreme Court case of In re Guardian News and Media Ltd.
News without names is sterile. The media are the means through which justice is seen to be done. If the media choose not to, or are unable to, challenge reporting restrictions, they are less likely to cover a trial.
Concealing the identity of the accused could erode public confidence in the administration of justice. Scrutiny of the courts and informed debate about criminal justice will suffer.
The Scottish media are accustomed to and indeed, by their own codes of practice, committed to complying with restrictions on reporting of cases concerning children. They rarely apply for restrictions to be lifted – only in the most newsworthy cases and where the public interest demands it.
Open justice is a centuries-old constitutional principle. Where there are to be exceptions, a balancing of rights and factors is necessary, but open justice should be the starting point.
The Bill lists factors that the courts should have regard to in considering whether it is in the public interest to dispense with restrictions, but freedom of expression is not among them. The scales are weighted heavily in favour of censorship and against freedom of expression.