Page 332 - Law and the Media

The Law in Scotland
However, the ‘record’ (pronounced with the emphasis on the second syllable), the parties’
collected written pleadings which form the basis for any hearing of evidence or argument in
the case, is not itself privileged until its contents are referred to expressly or by implication
in open court.

In short, even if a journalist obtains from one of the parties, or a helpful solicitor or a clerk,
a set of the pleadings in the case, they should only be quoted with care at an early stage in
the case.

20.3.2 Contempt of Court Act 1981

The privilege granted to court reporting for contempt purposes is as set out in Section 4 of
the Contempt of Court Act 1981.

Section 4(2) Orders
Order for reporting restrictions under Section 4(2) of the Contempt of Court Act 1981 are
quite commonly sought in Scotland.

Orders under Section 4(2) have been granted in relation to hearings:

That deal with the impact of prejudicial publications (Robb v Caledonian
Newspapers (1995))
Where evidence has been given in the course of a plea in bar of trial (HMA v Little
(1999))
Where separate trials have been set with linked charges or defendants
Where the accused is particularly psychologically vulnerable (Scottish Daily
Record and Sunday Mail Petitioners (1998)).

The media have no direct right to appeal a Section 4(2) Order in Scotland, since the terms
of Section 159 of the Criminal Justice Act 1988 do not extend to Scotland.

However, it is accepted that the media nonetheless have a right of challenge. In 1999, Kim
Galbraith was convicted of murdering her husband. The trial was very widely reported.
Galbraith appealed, and sought a Section 4(2) Order prohibiting all reporting until the appeal
was determined or until the end of any second trial. The Scottish media were, unusually,
given prior notice by the court of the application, and invited to address the court. They
opposed the application.

The court refused to grant the order:

. . . as we have explained, the main thrust of [the] argument was that, unless the
Section 4(2) Order were made, the appeal proceedings in this case would prompt
a barrage of articles containing comment from Mr Galbraith’s relatives and others
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