The High Court of Justiciary last week published a judgment, originally given in October 2017, finding the Scottish Daily Record and Sunday Mail Ltd guilty of contempt of court for its reporting on the arrests of two (unrelated) individuals. The judgment had not been published at the time, no doubt to avoid adding any further prejudice to the trials in question. Conduct amounts to “contempt of court” in relation to publications (i.e. newspapers, blogs, television programmes etc) if it “creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.” Contempt of court cases involving major publications often attract wider interest and this one is no different.

The case

There were two separate Daily Record articles that gave rise to the petitions by the Lord Advocate, both involving individuals arrested and subject to ongoing court proceedings. In one article, the Record named the accused (“A”) and printed photographs of him. It contained details of the allegations made against him and detailed information about his criminal history, such as previous convictions and prison sentences, as well as referring to other live proceedings against him. The High Court described the article about A as “sensational in nature”.

The second article also named and printed photographs of the other individual (“B”), including a photo in which B was being restrained by the police, and contained details of the allegations against him. The High Court said that the article “linked B by name with the offences of which he is charged, and implied his guilt thereof”.

Both articles had been the subject of legal advice. The article about A had been reviewed by a solicitor but she had been seriously unwell and taking strong medication at the time, and was working contrary to a doctor’s recommendation. In relation to the article about B it appears that the Record’s legal advisers had advised against publishing the photographs at least.

The Record had originally disputed that there was any contempt of court in either case, but ultimately conceded the point in respect of both articles.

The Court described the terms of the article about A as constituting “blatant contempt”, after Counsel for the Record had recognised that any editor might have questioned advice that the article did not constitute contempt. The Court noted that the article about A carried a severely prejudicial risk to the course of justice, having clearly implied that he was a “dangerous, violent criminal, involved in serious violent crime, including gun crime, and organised crime”.

In relation to the article about B, the Court referred to previous caselaw that had confirmed the seriousness of publishing photographs of arrested individuals, particularly where identification may be an issue at trial (as in B’s case). While the photograph was a particularly serious matter, the article also set out details of facts that might be expected to be the subject of evidence at trial, including potential witness statements.

While the Record had accepted guilt and given an apology, that appeared to carry limited weight with the Court as it only came at a relatively late stage in the proceedings. The Court imposed a fine of £80,000, covering both cases.

Analysis

The offence of contempt of court in relation to publications is a strict liability offence. This means that it does not matter whether the authors/publishers realised the publication could be in contempt, or took steps to try to ensure it was not in contempt; what matters is whether the publication was actually in contempt. The High Court referred to HM Advocate v Caledonian Newspapers Ltd 1995 SLT 926: “publishers and responsible editors must not only try to avoid committing contempt of court, they must succeed in doing so.” If the publication of an article is likely to affect the evidence of witnesses or the views of members of the jury, contempt will arise. However, the mindset of authors, editors and/or publishers, or steps taken to mitigate against the risk of contempt, may be relevant to the level of penalty imposed.

The publication of photographs of an accused person is an area fraught with dangers. If the identification of the perpetrator and/or of the accused is not in issue at trial then publication of a photograph may be less likely to give rise to a risk of contempt. However, the High Court in the present case restated the observation in the Caledonian Newspapers case that the only safe way to publish a photograph of an untried prisoner is with the consent of the Lord Advocate. Any other approach will almost certainly carry at least a degree of risk.