Page 339 - Law and the Media

Law and the Media
Time of trial
The presumed shortness of public memory is a major factor in determining whether or not
there will be a finding of contempt. The risk steadily increases as the trial approaches.
Scottish law has relatively short timescales in which an accused is brought to trial, known as
the ‘110-day’ and ‘40-day’ rules. An accused may not be detained for a total period of more
than 110 days by virtue of a warrant committing him for trial for any offence except to be
placed on trial. An accused may not be detained for a period of more than 40 days after the
bringing of a complaint against him in court. Extensions of the 110-day period may be
granted only by a High Court judge. Extensions of the 40-day period may be granted by a
sheriff. As a result of these rules, trials can move quickly in Scotland and time is not quite
as great a healer for contempt purposes.

The further the circulation of the publication and the more intense its circulation in the area
around the trial itself, the greater the risk.

Public figures
The celebrity of the accused can be a double-edged sword for the media. It may permit them
to use a photograph of the accused during the currency of the trial. Mohammed Sarwar’s
celebrity status as an MP was probably the single deciding factor in the Scotsman recently
being held in contempt (HMA v Scotsman Publications (1999)). On the other hand, the fact
that the accused is an offender of some notoriety does not mean that it is safe to remind the
general public of this fact yet again.

There are some signs that the courts in Scotland are beginning to recognize that an article
relating to a well-known public figure may not tell potential jurors anything of which they
are not already aware. In HMA v Scottish Media Newspapers (2000) the court considered a
front-page article in the Evening Times about the arrest of a Scottish actor, Iain McColl, for
allegedly threatening a sheriff officer with an axe. The article referred to the actor’s debts,
his ‘well-documented history of personal setbacks, including drink problems’, the fact that
his neighbours had complained about disturbances at his home, and to his claim to have
‘beaten his demons’. The court observed that the case was unlikely to come to trial until
around nine months after publication, and said:

Where personalities, whether from the world of politics, sport or entertainment, are
tried by a jury, the jurors may often know more about their way of life and the
background to any charge than they would in an ordinary case. That in itself may
mean that the judge presiding at any trial would think it appropriate to give a more
pointed direction about the need for a jury to reach their verdict solely on the
evidence led in court. Nothing in the article would in our view significantly affect
the decision whether to give such a direction.

Subject matter
Suggestions in the publication that the accused is guilty or that he only has a technical or
legal defence are clearly capable of creating a risk, even if the implication is not direct. In
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