Page 334 - Law and the Media

The Law in Scotland
20.4 Contempt of court

20.4.1 General principles

The Contempt of Court Act 1981 (the ‘CCA’) was designed in part to harmonize the law of
contempt of court on both sides of the border. The last couple of years have seen a greater
similarity of approach between Scotland and England. The Scottish media have benefited
from the successive stewardship of the Scottish Supreme Courts of Lord Hope and Lord
Rodger, both of whom have shown a visionary regard for freedom of expression and the role
of the media.

However, the Scottish media continue to operate within a law of contempt that is considerably
less liberal than that enjoyed by its southern counterparts. Moreover, Scottish contempt law is
still the riskiest area of involvement for a non-Scottish media organization. The Scottish courts
impose some of the strictest rules against pre-trial publicity in the world.

20.4.2 Plea in ‘bar of trial’
The situation in which a newspaper is found to be in contempt, but the trial of the subject of
the newspaper story goes ahead, has a long pedigree in Scottish law. A successful plea in ‘bar
of trial’, in other words that the trial should not go ahead because of the damaging effects of
publicity, is rare in Scottish law. Quashing a conviction on the basis of such publicity, as
happened in the case of the Taylor sisters in England (R v Taylor & Taylor (1993); R v
Solicitor-General ex parte Taylor & Taylor (1994)) is unknown.

In 1989, the Daily Express was fined £30 000 by a Scottish court for contempt of court in
respect of a story checked in Manchester by an English barrister (HMA v News Group News-
papers (1989)). The newspaper had published an article under the headline ‘Hit Man Guns
Down Red Defector’. Although the article did not name the arrested man, the court held:

. . . [he] could readily and sufficiently be identified in general from the text of the
article . . . The story was told in a sensational way and we do not for one moment
accept that the article did not tend to suggest that the guilt of the arrested person
might be presumed . . . It described the victim as a Yugoslavian political exile . . .
Under the headline it contained assertions of fact about the incident itself, including
the statement ‘He was blasted by a fusillade of shots fired from a parked car . . . The
car, believed to be a black-coloured Metro, raced away’.

[We] were astonished that the publishers of the Scottish Daily Express have attemp-
ted to defend their article, which in our opinion was a disgraceful one, perhaps one of
the clearest examples of contempt of court which could be envisaged.

The court went on to say that it was unfortunate, given the extent to which the Scottish legal
system depends on the absence of pre-trial publicity, that advice about publication was given
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