Page 335 - Law and the Media

Law and the Media
by an English lawyer rather than a Scottish one. Despite the excoriation of the Express by
the court, the prosecution of the arrested man continued. He was ultimately convicted.

The double standard involved and the disparity with English law have been criticized by
media lawyers in Scotland. In recent years, the Scottish courts have begun to develop a
greater regard for consistency in this area.

20.4.3 Identification

A striking difference between Scotland and England is the rarity with which pictures of
criminal suspects may be published in Scotland. Although such a publication is usually only
a contempt of court where an issue of identification arises, it is best to assume that
identification will be an issue in the average Scottish case.

In March 1992, the BBC was found guilty of contempt for broadcasting a couple of seconds
of footage of accused murderer Paul Ferris being led from a police van into court. The court
observed:

It is clearly essential that witnesses are not materially influenced in any way. It
follows that in any case where the question of identification may arise it is clear
that the publication in the press or television of any film, photograph, or even an
artist’s likeness during a trial or after a warrant has been issued, causes a potential
risk to the administration of justice . . . There is only one safe route for the media
to follow and it is this – do not publish any picture of an accused person in
Scotland until a trial is finished or the charge has been dropped by the Lord
Advocate. It has been made clear in many cases that any breach of this rule is liable
to be dealt with by this court as contempt.

In recent years there have been occasions where the Scottish media have published
photographs of an accused in the course of his trial. However, each instance has been
exceptional in one way or the other. Photographs were printed of Mohammed Sarwar, the
Govan MP, prior to his acquittal of electoral offences (HMA v Scotsman Publications
(1999)). Photographs were also printed of the two men accused of the Lockerbie bombing.
By the time the case came to trial, although identification was very clearly an issue, images
of the accused had been shown around the world over a period of almost 10 years.
Photographs were also printed of Sister Marie Docherty, a nun found guilty of physical child
abuse in Aberdeen in September 2000. However, it had been made explicit that identification
would not be treated as an issue in the case.

Printing pictures of witnesses who have completed their evidence will not, under normal
circumstances, pose a risk. However, there may be a risk if a defence of ‘incrimination’ is
raised – in other words, if the accused states that another person is responsible for the
crime.
298