Page 338 - Law and the Media

The Law in Scotland
Risk
It is probably impossible, on either side of the border, to set out exhaustively the ways in
which contempt of court may be committed. However, certain criteria regularly arise in
connection with the assessment of risk.

Link to accused
Where the publication or broadcast does not link the accused with the charges, there may be
no contempt (Robb v Caledonian Newspapers (1995)).

Public domain
It is not a defence that other newspapers have already released the same or similar
information in recent history. Repetition may be regarded as especially dangerous.

Curing prejudice
The ability of the judge or sheriff to direct the jury so as to ‘cure’ any prejudice caused is not
traditionally regarded by the Scottish courts as an adequate defence unless the directions
would, in any event, be appropriate in the circumstances (HMA v Scottish Media Newspapers
(2000)). The difference between a general and a specific direction might not be that material.

Jury
The absence of a jury is a matter of vital significance in assessing risk. Scottish sheriffs sit
alone in many criminal cases. It is generally considered to be the case that they and other
judges are capable of ignoring media comment.

In Al Megrahi & Khalifa Fhima v Times Newspapers (1999), the two men accused of the
Lockerbie bombing argued that the Times newspaper was in contempt of court in respect of
an article and editorial in which the Sunday Times claimed Colonel Ghadaffi had personally
ordered the bombing of the PanAm flight. The editorial, headed ‘The Guilt of Ghadaffi’,
stated:

It would be an odd sort of justice that found [Ghadaffi’s] cat’s paws guilty of
murder and let the real villain off the hook . . . but even if the suspects are
convicted (and it is conceivable that a verdict in Scottish law of not proven or even
not guilty might be found after all this time), what will the Government do then?
Lift sanctions against a regime convicted of mass murder.

The two men claimed, not unreasonably, that this article assumed their guilt. However,
because the trial was without a jury and before a panel of senior Scottish judges, they were
unable to put forward the normal arguments. The court found that the Sunday Times pieces
did not constitute a contempt. However, there was some suggestion by the court that judges
may in certain circumstances be ‘subconsciously’ influenced or influenced by the publication
of, for example, details of previous convictions. It is thought that these suggestions primarily
reflect the particular concerns of the Lockerbie trial.
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