Page 336 - Law and the Media

The Law in Scotland
20.4.4 Strict liability rule

Complainant
In Scotland, the accused himself, the Lord Advocate and the judge or sheriff may bring
proceedings for contempt. This potential for a three-sided attack may partly explain the
greater caution of the Scottish media in contempt matters.

Active proceedings
When proceedings are ‘active’, the strict liability rule applies as it does in England.

Criminal proceedings
Criminal proceedings become active in Scotland from:

The moment of arrest without warrant
The grant of a warrant to arrest
The grant of a warrant to cite, or
Service of an indictment or of a document specifying the charge.
There is no equivalent of the ‘oral charge’ in Scotland.

Criminal proceedings are concluded by:

Acquittal or sentence
Any other verdict, finding, order or decision that puts an end to the proceedings, or
Discontinuance or operation of law.
When the Crown in Scotland abandons or ‘deserts’ a trial, it may do so either for the time
being or absolutely. Only absolute, or express, abandonment brings the proceedings to an
end. Express Newspapers were fined £50 000 (Express Newspapers plc (1999)) for reporting
fully on a case that had been deserted for the time being, under the misapprehension that this
meant that the matter was entirely concluded.

Civil proceedings and criminal and civil appeal proceedings
For most Scottish civil actions, the ‘closing of the Record’, in other words the period by
which the parties’ written pleadings are supposed to be complete, is the significant date when
proceedings become ‘active’.

In the case of a motion or application to the court, for example for interim interdict, the
trigger is the point at which the motion is enrolled or the application made.

In any other case, the relevant point is when the date for a hearing is fixed or when a hearing
is allowed (Schedule 1 Paragraph 14 of the CCA).
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