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Last Updated: Wednesday, 8 November 2006, 13:11 GMT
Open justice and the fair trial
By Rosalind McInnes
BBC Scotland lawyer

Murder trials seem to end with a dignified finality - the jury renders its verdict, the judge pronounces in reaction and the media rolls out its "backgrounder".

This is a piece which may have been worked on for days, months, or - as in the Kriss Donald case - even years beforehand.

It tells the public the verdict.

Kriss Donald
Kriss Donald's burned body was found in the east end of Glasgow

It also tries to distil what may have been a tangled skein of evidence, to give a voice to the survivors, and not least, to reveal the surprises which have been kept from the jury - hence, under the Contempt of Court Act 1981, from the public too.

There may be previous convictions, confessions, or uncharged violent conduct.

The backgrounder, in short, tells the whole story and not just the unhappy ending.

In reality, the notion of closure can be as legally premature - given the appeal process - as it is emotionally facile.

A murder case ends the victim's life, defines the life of a convicted attacker and permanently affects the families of those intimately concerned in a way which is impossible to imagine.

Unique and loved

That said, the conviction of Imran Shahid, Mohammed Faisal Mushtaq and Zeeshan Shahid for the murder of Kriss Donald does represent the end of a chapter.

For Kriss Donald's family, they should never again have to listen - as they have done, twice - to forensic evidence about exactly what was done before his death to someone who was just 15, unique and loved.

For the public, this is the first chance to hear the whole story of the legal prosecution of his killers.

As is already well-known, this is not the first murder trial in the Kriss Donald case.

Imran Shahid, Daanish Zahid, Zeeshan Shahid, Zahid Mohammed and Mohammed Faisal Mushtaq (l to r)(Pictures from Ciaran Donnelly)_
The criminal gang arrested and convicted in the Kriss Donald case
In November 2004, Daanish Zahid and Zahid Mohammed were convicted for their parts in the teenager's death.

Originally, there was a flat ban on reporting that trial.

The BBC, STV, the Daily Record, the Evening Times and The Herald had to go to court to get this order lifted.

Then a fresh one was granted, stopping the media from reporting any evidence identifying Imran Shahid, Mohammed Faisal Mushtaq and Zeeshan Shahid and their "names, nicknames, gender, ethnicity, whereabouts, past, present or future, character, previous convictions and other alleged criminal acts".

The Advocate Depute opposed even that rider.

He said that it allowed reporting of the allegations of involvement by these men when they had been identified in pre-trial publicity.

Garbled travesty

The press, he said, would still have "plenty to report" if they described the nature of the killing without mentioning the involvement of other parties at all.

Lord Philip, the judge, pointed out: "But that is the whole nature of the crime."

So the media, not without a struggle, managed to report the first Kriss Donald murder trial in a way which did not actively dis-inform.

The public was at least told that five men were in the frame for the murder. This was some relief to the court reporters present.

Kriss Donald card
Kriss was a pupil at Bellahouston Academy and lived in Pollokshields

Had an order been granted in the terms the Crown wanted, the first murder might not have been reportable at all.

Legal protection only exists for the "fair and accurate" contemporaneous reporting of open court proceedings, not the garbled travesty the Crown proposed be foisted on the public.

At the time this legal debate took place - 3 November 2004 - the three men convicted this time were in Pakistan, a country with which the UK does not have an extradition treaty.

They were not brought back to Scotland until October 2005.

The second trial started two-and-a-half years after the publicity to which the Crown objected.

The point is not that the press should have "plenty to report".

Open court

The point is that they should be able faithfully, and as fully and as quickly as possible, to inform the Scottish public about what is happening in its ostensibly open court system - especially where the charge is the racially aggravated murder of a child.

Sometimes the fullness of reporting will have to give way.

Of the unholy trinity of defamation, privacy and contempt, contempt is probably the one which Scottish journalists most respect, in both senses of the verb.

First, traditionally the Scottish judiciary has come down very hard on what it sees as prejudicial publicity and secondly, reporting restrictions are usually finite.

The Scottish media exercise a degree of self-censorship which would astound the cynical.

Kriss tributes
Tributes were paid throughout the community in the southside of Glasgow

For example, the defence unsuccessfully argued that the second trial should not take place, because of publicity from March 2004 which would, it was claimed, make it impossible for their clients to get a fair hearing.

Allegations about previous convictions were gone into in some detail.

When a reporting restriction was sought to prevent re-publication of these allegations, the judge refused it as unnecessary.

No Scottish newspaper would report such allegations now, he said, for fear of being prosecuted for contempt.

Legally speaking, his Lordship was probably wrong. S4(1) of the Contempt of Court Act protects reporting of legal proceedings held in public, prejudicial or not, so long as there is no order in place.

His prediction as to what the Scottish media would do was nonetheless entirely correct.

They were influenced not by the law, but the desire to see justice swiftly done.

Confused many

The first Kriss Donald trial took place against a background where there had, historically, been damaging criticisms of the accused, some of whom were not in the jurisdiction and could not have been legally forced to return.

The fact that the second murder trial took place at all is down to the dogged and combined efforts of Strathclyde Police, the local MP Mohammed Sarwar and the Crown.

That, coupled with the moral leadership shown by Kriss Donald's mother, is the only positive aspect of what, to most, is a particularly horrific and shameful crime.

It still matters, though, that the right to a fair trial and the right to open justice are properly interpreted, so as to allow the public to be told as much as possible as soon as possible.

The extensive reporting restrictions over the first trial were an impingement on the principle of open justice which satisfied nobody and confused many.

Police officers patrol the Clyde walkway where Kriss was found
Police officers patrol the Clyde walkway where Kriss was found

The significance of this issue is growing in the UK at a time when open reporting of terrorist trials has been worryingly compromised.

The media victory in England in R v B on 27 October is a beacon.

There, the Court of Appeal lifted an order banning the contemporaneous reporting of the sentencing of a man who had pleaded guilty to conspiracy to commit murder until the end of the trial of another man who had been arrested as part of the same anti-terrorism operation.

The appeal judges declared that the right to a fair trial had to take account of "the hallowed principle" that the media have the freedom to act as the eyes and ears of the public in reporting a trial.

The jury, they said, would act fairly, not just because the judge told them to, but from the basic instinct for justice.

Whether or not it is an optimistic view of human nature, the reality is that we have a jury system for Scottish murder trials.

Ultimately, such a system must be more ready to trust its jury than to gag its media or blind its public.



Kriss Donald Murder trail
A look back on how Kriss Donald's killers were brought to justice






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