Cox and Griffiths, Petitioners

JurisdictionScotland
Judgment Date10 July 1998
Docket NumberNo 32
Date10 July 1998
CourtHigh Court of Justiciary

JC

LJ-G Rodgers Lord Prosser and Lord Coulsfield

No 32
COX AND GRIFFITHS
PETITIONERS

Crime—Contempt of court—Prejudicial pre-trial publicity—Newspaper article referring to a number of high risk prisoners being moved to another jail under armed police guard and referring to prisoners as “heavy duty guys” who were “facing a lot of heavy charges”—Prisoners standing trial week following publication of article—Whether pretrial publicity prejudicial to interests of fair trial—Whether contempt of court—Contempt of Court Act 1981 (cap 49), secs 1(1) and 2(2)1

Section 1(1) of the Contempt of Court Act 1981 enacts that: “In this Act "the strict liability rule" means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.” Section 2(2) enacts that: “The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”

A newspaper reported that a dozen high risk prisoners had been moved from one jail to another under a massive armed police guard. The article indicated that the prisoners were heavily guarded and security was tight. They also indicated that the prisoners were “heavy duty guys” and that they were “facing a lot of heavy charges”. The week following the publication of the article, 11 prisoners faced trial in the Edinburgh High Court. Before the jury were empanelled, counsel for one of the pannels, drew the trial judge's attention to the article and submitted that, when taken as a whole, it created a substantial risk that the course of justice would be seriously impeded or prejudiced and that the publication of the article, therefore, amounted to a contempt of court in terms of sec 2(2) of the 1981 Act. The trial judge thereafter summoned the duty editor of the newspaper and the reporter of the article to answer the charge of contempt. Having heard submissions by counsel for those individuals, the trial judge thereafter invited counsel for the pannel to make any further submissions, which he did. His Lordship then invited the Advocate-depute to make any submissions on behalf of the Crown and, on that being done, found that the publication of the article had constituted a contempt of court and proceeded to fine the two individuals concerned. They thereafter petitioned the nobile officium of the High Court of Justiciary against the finding of contempt.

Held (1) that although a judge was entitled to invite the assistance of the Crown as representing the wider public interest, nevertheless, counsel for the pannel in a trial might well have a different but important perspective to bring to bear on the matter so that there was no reason why, with the bounds of fair procedures, the judge should not obtain the benefit of that perspective, if he so wished, by inviting submissions from the representative of the pannel; (2) that for a finding under sec 2(2) of the Act to be made, the publication had to create a substantial risk of seriously impeding or prejudicing the course of justice in the proceedings which test fell to be applied at the time of publication rather than the time when the jury came to consider their verdict; (3) that, in considering whether publication constituted a contempt by reason of the risk that it might prejudice the jury in their deliberations, one had to proceed on the basis of a jury who received only standard directions from the trial judge and not on the basis of a jury who received a special direction designed to

eliminate any possible prejudice due to the article; (4) that although it was quite likely that some of the jurors in the proceedings would have read the article and were quite likely to assume that the prisoners destined for a large trial in Edinburgh were the prisoners involved in the large trial starting in Edinburgh in the week in which he was a juror, the question then became whether, in those circumstances, the publication of the article created substantial risk of seriously impeding or prejudicing the course of justice in the proceedings, the answer to which inevitably depended on the facts of the particular case; (5) that the fact that the article appeared in a tabloid newspaper was irrelevant as the standard which the court had to apply was to be the same regardless of whether it was a tabloid or other type of newspaper; (6) that an attentive reader of the article would be likely to carry away an abiding impression that the prisoners concerned, as a group, were facing very serious charges and were people who, for that reason and perhaps for other reasons, the police considered had to be kept under tight security conditions in case someone engineered their escape, as well as to wonder whether the prisoners on trial were people with underworld contacts who might try to arrange their escape but further than that the reader would not go; and (7) that as Parliament had decided to regulate the boundary between the due course of justice and the principle of freedom of expression, although the article might have created a risk of some prejudice to the course of justice, there was no risk of the course of justice being “seriously impeded or prejudiced” and, accordingly, that no contempt of court had occurred; and petition granted.

Observed (per Lord Prosser) that in judging the potential for prejudice, it would usually be important not merely to look at the whole of any given article, so that particular words or passages were seen in context, but to have regard to the whole tone of that article so that if an alleged contempt occurred in an apparently thoughtful or closely reasoned discussion, or perhaps in a careful leader, with editorial weight behind it, then it might have a persuasive potential which would not be there if the same words occurred in the very different context of a snippet in a diary column and, that in judging the impact of any article, one could not separate style from substance.

Peter Cox and Stuart Griffiths petitioned the nobile officium of the High Court of Justiciary against a finding of contempt made against them in respect of an article published in theDaily Record newspaper. The full facts and circumstances are sufficiently set forth in the opinions of their Lordships in the High Court of Justiciary.

Cases referred to:

Attorney General v Times Newspapers LtdELR [1974] AC 273

R v KrayUNK (1968) 53 Cr App R 412

Sunday Times v United Kingdom Series A No 30 (1979); 2 EHRR 245

The cause called before the High Court of Justiciary comprising the Lord Justice General (Rodger), Lord Prosser and Lord Coulsfield for a hearing.

At advising, on 10 July 1998—

LORD JUSTICE-GENERAL (Rodger)—This petition to thenobile officium arises out of events which began when Michael Bennett and ten others were indicted for trial in the High Court in March 1998. The indictment contained two charges, the first, of being concerned in the supplying of cannabis resin to another or others over a four year period, contrary to sec 4(3)(b) of the Misuse of Drugs Act 1971 and, the second, of being knowingly concerned over the same period in the fraudulent evasion of the prohibition on importation of cannabis resin, contrary to sec 170(2) of the Customs and Excise Management Act 1979. On 19 March the trial judge granted an application for the postponement of the trial diet to the sitting of the High Court at Edinburgh beginning on 6 April, the Crown having given an undertaking that the trial would not actually start before 14 April.

On Friday, 10 April 1998, on p 23 of the Daily Record there appeared an article which was accompanied by the tag “Exclusive”. The article was written by the second petitioner, Mr Stuart Griffiths, a journalist who works for theDaily Record. When the decision to publish the article was taken on 9 April, the first petitioner, the Deputy Editor, Mr Peter Cox, was on duty. The article was in the following terms: “A DOZEN high-risk prisoners were moved to another jail under a massive armed police guard yesterday. They were loaded into police vans and sped along Scotland's busiest motorway accompanied by two cop cars and four motorcycle outriders. All the vehicles had their blue lights flashing and it's thought one of the vans and one of the cars were carrying armed officers. A police insider said: "We are taking no chances with this lot". Dozens of officers arrived at Barlinnie prison in Glasgow shortly after 10 am to take...

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9 cases
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    ...by sections 1 and 2 of the 1981 Act. As was pointed out by the Lord Justice General in the recent case of Cox and Griffiths, Petitioners 1998 J.C. 267 at page 273, the Act was passed in order to change the law of the United Kingdom and so to bring it into conformity with the interpretation ......
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