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Last Updated: Friday, 21 January, 2005, 12:18 GMT
Jodi Jones: A uniquely hard case
By Rosalind McInnes
BBC Scotland lawyer

Police appeal
Jodi Jones was murdered near her home in 2004
The Jodi Jones murder case is, it has been said, the longest Scottish murder trial against a single accused.

For the jurors, and for anyone with even a professional interest in this especially disturbing case, it certainly must feel that way.

The millennium has already seen some outstandingly protracted and terrible Scottish murder proceedings - the mass slaughter of Lockerbie, the carnage of William Beggs, the calculating horror of Nat Fraser's crime.

Each represents an unimaginable tragedy for those intimately involved. Each also poses delicate legal questions.

How does a journalist do the job of letting the public know what is going on, in a case evoking widespread outrage and fear, whilst protecting vulnerable participants and the presumption of innocence?

The law tries to hold the values of open justice, human sensitivity and legitimate public interest in a workable tension.

Fraught trial

First, we have the Contempt of Court Act 1981. This makes it a contempt to publish anything which gives rise to a substantial risk of serious prejudice to court proceedings - whether a journalist intended to do any harm, or not.

The act allows a banning order to be made even in relation to facts the jury have already heard. The journalist has to give a fair and accurate report of what goes on in court.

Secondly, there are various legal rules to protect the privacy of children who are caught up in legal proceedings.

Thirdly, the judge has authority to protect the integrity of his courtroom.

Luke Mitchell's trial was fraught from the very beginning. At the time of Jodi's murder, he was, as defence counsel was later to stress, 14.

Everyone in Dalkeith, and soon throughout the UK, knew who he was. When he was arrested, at the age of 15, the legal rules protecting the anonymity of children kicked in.

Luke Mitchell
Luke Mitchell was prematurely named by some newspapers

As a mere suspect, he could be named, and was. As an arrested minor, his name could not be published.

The outcome was an ironic happy birthday from some chagrined tabloids when Luke Mitchell turned 16, and, later, contempt proceedings against some newspapers which were felt by the Procurator Fiscal to have jumped the gun.

The publicity before the arrest, including the boy's own television interview, denying Jodi's murder, helped to muddy the waters.

As preparations went ahead for the trial, the court reporters felt increasingly embattled.

Swingeing demands by the defence to recover vast amounts of material from broadcasters, without a reason being offered, were only trimmed back after a hearing before the trial judge, Lord Nimmo Smith.

The defence made an early, unsuccessful attempt to have the BBC found in contempt for reporting on the planned reconstruction of the wall behind which the victim's body was found.

The Telegraph was also called into court to apologise for an article it published early in the trial

Defence counsel apparently even objected at one point to being sketched by BBC courtroom artist Julia Quenzler, who had flown up from London for the trial.

Unusual structure

Broadcasters especially began to struggle to make meaningful packages. The tight Scottish approach to identification evidence means photographs of the accused are rarely shown.

In the Mitchell trial, however, it was made clear by the judge that shots of the crime-scene might themselves amount to contempt.

This unusual stricture began to make sense as the Crown's case developed, but would have been difficult to predict.

Donald Findlay
Defence counsel Donald Findlay apparently objected over sketches
The trial judge, although in no way obstructive to the media's need to do their job, felt unable to give a pre-trial briefing, beyond saying that the media could report what went on in court.

For television reports, this resulted in a continual struggle to describe adequately to the audience images - of photographs, of weapons, of maps - which the people in this public court were seeing; hence the poignant over-use of the home video of Jodi Jones.

The challenge to make television coverage relevant and comprehensible, especially when the evidence was complicated and circumstantial, was at least partly mitigated by the courtroom sketches, but increased as the weeks wore on.

In the context of the trial of a young man for the brutal murder of a young girl, reporters' difficulties pall into insignificance.

A combination of factors in the Jodi Jones murder trial, however - the young age and the late arrest of the accused, the nature of the evidence, the aggressive approach of the defence to coverage and the absence of visual material - made this a uniquely hard case for 21st century court reporting.

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