Page 341 - Law and the Media

Law and the Media
necessary to establish intention. On appeal, it was held that the trial judge had applied the
incorrect test.

20.4.6 Statutory defences

Scottish decisions on the statutory defences of innocent publication under Section 3 of the
CCA and discussions in good faith of public affairs under Section 5 of the CCA are
scant.

Section 3
A somewhat unorthodox use was made of the Section 3 defence by the newspapers that
printed the copy of a freelance journalist who radically misheard the evidence and was found
guilty of the common law offence of contempt (see part 20.4.5 above).

Section 5
There was a brief discussion of the Section 5 defence in the Lockerbie case. The court
observed that there were questions about its applicability, particularly if material that was
said to be ‘incidental’ incorporated specific reference to the trial concerned.

Generally, the construction of the Section 5 defence in Scotland is characterized as ‘much
narrower’ than it is in England. In 1997, the BBC made a programme about brutality in
prisons. A prison warder who was due to be tried for an alleged assault successfully obtained
an interdict which stopped the programme from going out until after his trial. The BBC
argued that the programme was a discussion in good faith of public affairs and fell under the
Section 5 defence. The Scottish court held that it would not consider a Section 5 defence
before a publication had actually occurred. In other words, the court held that the defence
could only be used by a person who was accused of committing contempt. It could not be
used by a person to publish a controversial article or programme (Muir v BBC (1997)). The
European Commission on Human Rights declined to intervene in the case.

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