Page 333 - Law and the Media

Law and the Media
which would be hostile to the appellant and would poison the minds of any
potential jurors in a retrial. It is plain, however, that a report of this kind would go
beyond a simple report of the proceedings . . . In that event, the court would have
power to deal with the matter in terms of Section 2(2) [of the Contempt of Court
Act 1981] and in an appropriate case, to punish the publisher. That is the
mechanism which Parliament has provided for protecting the course of justice
from the effect of publications of that kind. The court’s power in Section 4(2) is not
intended to be used to deal with such publication but to deal, rather, with reports
of its proceedings which are fair and accurate and should nonetheless be
postponed. It would accordingly be an abuse of this particular power to pronounce
an order . . . not for the purpose of warding off an anticipated consequence of the
fair and accurate reporting of the appeal proceedings but for the purpose of
warding off prejudicial comment which those proceedings might prompt.
(Galbraith v HMA (2000))

Since Galbraith, the Scottish supreme courts have developed a practice of advising various
media organizations of the existence of an order and giving them a chance to oppose it before
the Order is made final. A generally more cautious attitude towards reporting restrictions has
developed in the wake of the case.

Interim interdict
An interim interdict (or interlocutory injunction), which prevents material from being
broadcast or published, is apparently still available, even where publication would not
amount to contempt (Muir v BBC (1997)).

Children
As in England, there are restrictions on the identification of children in proceedings. Section
47 of the Criminal Procedure (Scotland) Act 1995 restricts reporting of particulars, including
photographs, calculated to reveal the identities of people under 16 involved in criminal
proceedings as the accused or alleged victim. The court may also impose restrictions in
relation to the identity of other child witnesses, although this is not done automatically.

The court may also restrict reporting in relation to children involved in civil proceedings
under Section 46 of the Children and Young Persons (Scotland) Act 1937 as amended by the
Broadcasting Act 1990. Section 44 of the Children (Scotland) Act 1995 prohibits publication
of matters in respect of proceedings within the ‘children’s hearing’ system.

In the past, the Scottish court has treated photographs as a statutory breach even when the
photographs were not thought to identify the child (McArdle v Orr (1994)).

Only living children are protected by reporting restrictions (Caledonian Newspapers Ltd,
Petitioners (1995)).
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