Another year over and a new one just begun. War isn't over but Scots Law News hopes that all its readers have some fun in 2011.
Looking through our posts for 2010, we are most struck by the advances of social media into what might once have been thought no-fly zones. The Scottish judiciary now have their own website, and the Stair Society – not to mention Stair himself – are on Facebook. The Scottish blawgosphere is flourishing, as a glance at our sidebar will confirm. So far as we know, however, while solicitors, advocates and of course Scots Law News have their own Twitter accounts, no Scottish judge has yet dared to tweet, whether on or off the bench. But jurors may well be doing so (see Jennie Law on this here), and the Scottish Law Commission has just pointed out, as part of an argument that an accused's previous convictions should be before the court from the outset of a trial, that jurors are searching for such information on the Internet as a case proceeds, with concomitant risks that the information they get is wrong, incomplete or misleading (Discussion Paper No 145 on Similar Fact Evidence and the Moorov Doctrine, paras 7.74-7.79). In England the Lord Chief Justice issued on 20 December an interim practice guideline on the use of mobile communication devices by anyone in court, noting that photography and sound recording are generally not allowed, but saying that nevertheless "the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice". We already have our own example illustrating this in Scotland with James Doleman's blogging coverage from the courtroom of The Sheridan Trial: for his comments on the experience see especially here.
This time last year Scots Law News ventured into the realms of prophecy, and reviewed in the light of what actually happened, we think we did not too badly. True, we failed to predict the eventual outcome of the UK General Election while Captain Calamity and Sergeant Eros disappointed us with their failure to do anything noteworthy in 2010. But otherwise we feel emboldened to look again into our crystal ball.
We confidently expect to remain interested in the health and well-being of Mr Megrahi, and we will also keep tabs on the Naked Rambler while not expecting much from him before the build-up to next Christmas. We will replace the Captain and the Sergeant with Mr Sheridan, news of whom may be expected also to fill the gap left by the enforced absence from the public stage of Mr Gough. A Scotland Bill is before the Westminster Parliament and may be on the statute book by the time a new Scottish Parliament is elected in May. We suspect that there will still be a minority Scottish Government after that election but beyond that our crystal ball goes a little grey. In the meantime we can expect at least an Inner House ruling or two on the legislative competence of the Scottish Parliament (pleural plaques and, maybe, cigarette sales); perhaps even offerings on the same subject-matter from the Supreme Court.
But perhaps the biggest thing likely to happen is the transformation of the basics of criminal law evidence and procedure, or at least the beginning of a transformation set in motion some years ago by the World's End trial outcome and accelerated by the Supreme Court decision in Cadder. After the World's End case the Scottish Law Commission was asked to consider Crown appeals, the rule against double jeopardy and similar fact evidence. Reports on the first two topics led to sections 73-76 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Double Jeopardy (Scotland) Bill now before the Scottish Parliament, while as noted above a Discussion Paper on Similar Fact Evidence was published just before Christmas 2010 and proposes inter alia that there be disclosure of an accused's previous convictions where relevant to the case against that person. Cadder has already led to change in the law relating to the legal representation of a suspect in police custody – see the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 – while the Carloway review will surely lead in due course to the disappearance of the requirement of corroboration. All these changes, actual and potential, will surely mean a fundamentally different system of criminal justice in Scotland by the end of 2012 if not 2011. And finally, reverting to our previous thoughts on social media in court, what price reconsideration of the ban on live camera coverage in court, whether for broadcasting on TV or streaming on the Internet?