Dr Nick McKerrell

Open Justice seems to be a fundamental principle of our legal system. Walk into any court around the country and you can take a seat in the public gallery to witness all sorts of criminal prosecutions and civil litigation. Justice must be seen to be done is a well worn cliché but seems to be a concrete reality. Yet the decision of Lord Matthews to identify Aaron Campbell in this horrific rape and murder case is quite unusual.

In truth, cases involving vulnerable witnesses and sensitive issues can see the court doors slam shut all over Scotland and be heard in private. The law over naming young people involved in criminal proceedings has an equally clear limit.

Section 47 of the Criminal Procedure (Scotland) Act 1995 puts a ban on identification of any under 18-year-old either accused or acting as a witness in a criminal case. This was lifted from the age of 16 four years ago to put the Scottish approach in line with UN Convention on the Rights of the Child and the English legal system.

This approach in Scotland was seen relatively recently in the Bailey Gwynne culpable homicide trial. Bailey was killed at an Aberdeen school by another 16-year-old boy who was found guilty of the crime. His identity was only revealed on his 18th birthday when he was serving his sentence.

What is the thinking behind this ban when an adult in the same situation would be fully identified? A child as defined by the 1995 Act – even one who has committed as crimes as heinous as this – has to also have their welfare considered in the court. Also the possibility of rehabilitation of a young offender must be taken as a factor in the justice system. There could be a possibility of further criminal appeal.

A body advising the UK government under behavioural expert Charlie Taylor in 2016 recommended a lifetime anonymity order for child offenders to help end re-offending and promote rehabilitation. This proposal is currently being considered in England and Wales.

The notorious child offenders who murdered Jamie Bulger twenty five years ago is one case where there is a lifetime ban on revealing their identity and location. Just last month two people who revealed the current identity of Jon Venables, one of the convicted, online were given suspended jail sentences for contempt of court. Even now the public tensions of this case and the possibility of vigilante action keep this ban in place.

How, then, was Campbell named given this context? The law does allow for discretion in unusual circumstances to lift the restriction. This can be done by the judge, as in this case, at any point in the judicial process or unusually by a minister of the Scottish government after the trial.

The legal test that Lord Matthews looked to was whether it was “in the public interest” to reveal the name. His ruling seems to emphasise the public outrage at the horror of the crime itself. Coupled with the overwhelming evidence perhaps he thinks the possibility of appeal or indeed rehabilitation is so remote that revealing his name to the broader public is justifiable. Perhaps the fact he was 16 rather than a younger offender was relevant.

The naming of Aaron Campbell seems to be going in the opposite direction to the trend around youth justice and criminal law but perhaps that is simply down to the terrible events on the Isle of Bute. It would be difficult for this precedent to be used in future cases involving children accused of criminal behaviour.

Dr Nick McKerrell is a law lecturer at Glasgow Caledonian University