Page 337 - Law and the Media

Law and the Media
Given the comparative rarity of the civil jury in Scotland and the assumption that those
acting in a judicial capacity, even trained lay justices (Aitchison v Bernardi (1984)), are
substantially immune from being influenced by media comment, civil proceedings and
criminal and civil appeal proceedings are unlikely to give rise to contempt difficulties.

Substantial risk of serious prejudice

Under Section 2(2) of the CCA, strict liability will arise in respect of ‘a publication
which creates a substantial risk that the course of justice in the proceedings in question
will be seriously impeded or prejudiced’.

In HMA v News Group Newspapers (1989), the court held:

In our opinion, which fortunately coincides with opinions expressed in English
cases, there can be no contempt unless there is some risk, greater than a
minimal one, that the course of justice in the proceedings in question will be
seriously impeded or prejudiced. The adverb ‘seriously’ does not require
translation. It must be given its familiar and ordinary meaning.

In that case, ‘substantial’ was taken as meaning:

. . . material or . . . greater than minimal risk that the course of justice in the
proceedings . . . would be . . . seriously impeded or prejudiced.

In contrast, ‘seriously’ was held to require a real impediment or prejudice to the course of
justice.

In HMA v Caledonian Newspapers Ltd (1995), the court observed:

We do not agree . . . that the strict liability rule imposes a very high test . . .

In the case of criminal proceedings . . . the impediment or prejudice will be
regarded as serious if it may affect the outcome of the trial in regard to such
matters as the evidence of witnesses or the evaluation of the jury of the
evidence . . .

If, as in . . . probably most . . . criminal trials upon indictment, it is the outcome
of the trial or the need to discharge the jury . . . that is put at risk, there can be
no question that that which . . . is put at risk is as serious as anything could
be.

The court agreed that the public policy underlying the strict liability rule was that of
deterrence.
300