Hold The Presses: Contempt Of Court

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...