Secret Justice: The trial you cannot read about

LEGAL commentators have criticised highly unusual moves by an Inverness sheriff to ban all reporting of a trial, saying they set a worrying precedent for the Scottish justice system.

The Inverness Courier was denied access to the case involving a teenager at the city’s sheriff court and blocked from reporting the outcome. The court even refused to say what charges he faced. Officials confirm the only way to have the ban lifted would be to present a petition to the Nobile Officium — either the High Court of Justiciary or the Court of Session — a legal process costing thousands of pounds.

Yesterday the affair was branded “extraordinary” by Scottish media law expert Rosalind McInnes.

“What we have had here is a secret trial for reasons that haven’t been disclosed,” she said. “I cannot imagine facts or circumstances that would justify this. Courts sit in public and we don’t have any reasons for why there was a secret trial in this case, in a democracy, subject to Article 6 of the European Convention. I think this is outlandish. This is not normal — it is extremely difficult to understand.”

The case was called at Inverness Sheriff Court last month and a motion made by Procurator Fiscal Andrew Laing for it to be a closed court, which often happens when there are vulnerable witnesses such as sexual abuse victims or children. However, the press is usually permitted to sit in and report on such cases on the basis they do not identify the witnesses involved.

Even where reporters are excluded, details are made available afterwards.

Mr Laing’s motion under common law was upheld by Sheriff Margaret Neilson and our court reporter told he must leave. It was made clear there would be no reporting of the case, which was brought at summary level — the category for less serious offences.

The trial took place and the male accused found guilty and sentenced. In addition to being barred from the hearing, our reporter was denied access to the charge sheet, which includes the name, age and address of the accused and the charges he faced.

The Crown Office confirmed a motion had been made to Sheriff Neilson to sit in private based on “the facts and circumstances of the case.” However, it refused to divulge the reasons. Meanwhile, attempts to obtain details of the charge and sentence from the sheriff clerk at Inverness also failed, with officials claiming the order of the court prevented this information being released.

The Inverness Courier has now written to the sheriff principal, Sir Stephen Young, seeking an explanation.

Media law consultant David Banks, a co-author of McNae’s Essential Law for Journalists, is concerned about the sheriff's actions.

“It is rather odd and disturbing and while we understand the court has these powers, it would seem contrary to the interests of justice to exercise them without properly explaining why they are being exercised,” he commented.

Munlochy-based solicitor David Hingston, a former procurator fiscal, thinks any reason for completely excluding the press in a summary trial is difficult to justify.

“To remove the press from listening to the evidence is itself extremely unusual, but to then go further and say you cannot even report on the result is additionally unusual,” he said. “This isn’t something contrary to national interest or security. It is going against the principle of the freedom of the press and I don’t like it as a precedent. It is extremely rare, if not unique.”

Highlands and Islands MSP David Stewart is to seek further information from the procurator fiscal.

“My view is that the press should have access to the vast majority of court cases — the public interest is served by the press being able to report cases,” he said. “However, clearly the sheriff is in the best position to determine whether, in exceptional circumstances, the press should be barred.”

An order under the Contempt of Court Act is sometimes made in Scottish courts to postpone the reporting of court cases, for example, when a co-accused is still to stand trial and any reporting would prejudice forthcoming proceedings, but no such order was made in this case.