Page 340 - Law and the Media

The Law in Scotland
HMA v Scotsman Publications (1999) the court accepted that the average reader, reading
allegations that witnesses in a trial were being intimidated, would assume that the accused
or supporters of the accused were behind any such intimidation. The court observed:

Where, in the context of the criminal prosecution, particularly one involving
charges of election fraud and attempting to pervert the course of justice, there is
reference to fear and intimidation, the ordinary reader is likely to assume that the
accused is ultimately the person whose intimidation is to be feared . . . I have to say
that in my opinion there could hardly be a more prejudicial suggestion in advance
of a trial than the one in question.

The reporting of previous convictions is extremely dangerous, as is the reporting of alleged
confessions (X v Sweeney (1982)).

Implications that a witness other than the accused is dishonest may also amount to contempt.
The Daily Record was found in contempt in 1999 for prejudicing a ‘children’s hearing’,
which takes place without a jury, by carrying an article the day before an eight-year-old child
was due to give evidence about allegations of parental ill-treatment. The newspaper argued
that it was unlikely an eight-year-old would read the article or understand it sufficiently to
let it colour her version of events in court. However, the court said that it was satisfied that
there would have been a substantial risk of the story impairing or prejudicing the evidence
of the child and her two siblings, because the day before the three children were due to give
evidence one of them had been branded a liar in the newspaper. That was held to create a risk
of prejudice.

In the significant decision of Cox & Griffiths, Petrs (1998), the Daily Record described the
movement of a number of high-risk prisoners from one prison to another under heavy
security precautions and quoted a police insider and a prison source on the security measures
involved. The trial judge held the article to be a contempt of court and imposed a fine of
£1500 each on the editor and the reporter. On appeal, it was held the article did not give rise
to a substantial risk of serious prejudice to the course of justice. The court accepted that
although there may have been a risk of prejudice, potential members of the jury did not need
a ‘germ-free atmosphere’. The court held that risk of prejudice had to be weighed against
freedom of speech.

20.4.5 Common law contempt

There is one somewhat unusual instance of common law contempt of court finding in
Scotland that was quashed on appeal. In February 1997, a freelance journalist was found
guilty of common law contempt in court and fined £750 after he misheard evidence in a
crowded courtroom during a drugs trial and filed an incorrect report. Despite the reporter’s
submission that he did not have the necessary intent to impede or prejudice the
administration of justice, the court held that the report was so reckless that it was not
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