MEGRAHI v TIMES Newspapers Ltd
| Jurisdiction | Scotland |
| Judgment Date | 10 August 1999 |
| Docket Number | No 6 |
| Date | 10 August 1999 |
| Court | High Court of Justiciary |
JC
LJ-C Cullen, Lord Coulsfield and Lord Caplan
Crime—Contempt of court—Prejudicial pre-trial publicity—Newspaper publishing assertions of fact requiring to be proved by Crown and suggesting pannels' guilt could be assumed—Trial to take place before panel of High Court judges unless pannels opted for jury trial with Lord Advocate's consent—Whether effect of publicity on potential jurors relevant—Whether pannels' perception of effect of publicity on judges relevant—Whether “strict liability” rule contravened—Whether contempt of court—Contempt of Court Act 1981 (cap 49), secs 1(1) and 2(2)
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.”
Warrant for the arrest of the two petitioners, who were Libyan nationals, on charges of, inter alia, the murder of 270 passengers on board an aeroplane which exploded over Lockerbie in 1988, were issued on 13 October 1991. Following their surrender by the Libyan government, the petitioners were fully committed for trial on 14 April 1999 before a panel of three High Court judges in terms of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998. Under art 16(2) of the Agreement between the governments of the United Kingdom and the Netherlands dated 18 September 1999 regulating the sitting of the Scottish court in the Netherlands, it was provided that the United Kingdom government might transfer the petitioners for trial by jury in Scotland but only when the petitioners had consented thereto. On 23 May 1999 the Sunday Timesnewspaper published an article entitled “Official: Gadaffi's Bomb Plot” in which it was alleged that the British security services had obtained intelligence that the Libyan leader had personally ordered the bombing of the aeroplane and that he had instructed the head of the Libyan external security organisation (who was the first petitioner's supervisor) in connection with the bombing. It was also alleged that a cousin of the first petitioner had ordered timers from a Swiss company and that fragments of a bomb timer used in the explosion had been traced to that order. An editorial in the same edition entitled. “The Guilt of Gadaffi” stated that it would be an odd sort of justice that found his cat's-paws guilty of murder and let the real villain off the hook.
The petitioners applied to the nobile officium of the High Court of Justiciary for the newspaper publishers, its editor and a journalist to be found in contempt of court and for an order prohibiting them, pending the conclusion of the trial, from publishing anything which would be liable to prejudice the administration of justice in general and the case against the petitioners in particular. The petitioners did not argue that there had been an intention to impede the course of justice but contended that the publication might prejudice potential jurors if the petitioners chose to be tried by jury and that, in any event, it usurped the function of the court by suggesting to the public that the panel of judges might be influenced by what was published and thereby undermined the petitioners' confidence that they would be tried by an impartial tribunal.
Held (1) that any liability for contempt of court in regard to the effect of the publication on the course of justice in the current proceedings was regulated by secs 1 and 2 of the Contempt of Court Act 1981 and not the common law (Muir v BBC 1997 SLT 425 distinguished); (2) that as matters stood at the date of publication it was unrealistic to consider the effect of the article and editorial on potential jurors since there was no indication that the petitioners might wish instead to be tried by jury; (3) that there was nothing in the 1981 Act which enjoined the court to apply as the test the perception of others as to whether the course of justice might be affected and, in any event, liability for contempt should not depend on the viewpoint of a party to the proceedings, whether that was based on his subjective attitude or an objective assessment of his position; and (4) that the article and editorial, whether taken together or individually, did not fall foul of the strict liability rule in sec 2(2) of the 1981 Act; and petitiondismissed.
Abdelbasset Ali Mohammed Al Megrahi and Al Amin Khalifa Fhima petitioned the nobile officium of the High Court of Justiciary for an order against Times Newspapers Limited, John Witherow, its editor, and Nicholas Rufford, a journalist, finding them to be in contempt of court in respect of an article and editorial which were published in the Sunday Times newspaper on 23 May 1999. The petitioners also sought an order prohibiting the respondents, pending the conclusion of trial proceedings, from publishing any article, feature or comment relating to the proceedings against them where such publication was liable to prejudice the administration of justice in general and the case against the petitioners in particular. The facts of the case are sufficiently set forth in the opinion of the Lord Justice-Clerk (Cullen).
Cases referred to:
Advocate (HM) v Caledonian Newspapers Ltd 1995 SLT 926
Advocate (HM) v News Group Newspapers Ltd; HM Advocate v Scottish Express Newspapers LtdUNK 1989 SCCR 156
Advocate (HM) v Scotsman Publications LtdUNK 1999 SCCR 163
Attorney General v EnglishELR [1983] 1 AC 116
Attorney General v Channel 4 Television, 16 December 1987, unreported, Court of Appeal (Criminal Division)
Attorney General v Times Newspapers LtdELR [1974] AC 273
Attorney General v Newspaper Publishing plcELR [1988] Ch 333
Cox and Griffiths, Petitioners 1998 JC 267
Hall v Associated Newspapers LtdSC 1979 JC 1
Lonrho, (In re) [1990] 2 AC 154
Muir v BBC 1997 SLT 425
Robb v Caledonian Newspapers Ltd 1995 SLT 631
Schering Chemicals Ltd v Falkman LtdELR [1982] QB 1
Smith v Ritchie (1892) 3 White 408
Sunday Times v United KingdomHRC (1981) 3 EHRR 317
Textbooks, etc referred to:
Report of the Committee on Contempt of Court (the Phillimore Report) (Cmnd 5794, 1974), paras 49 and 106–111
The cause called before the High Court of Justiciary comprising the Lord Justice-Clerk (Cullen), Lord Coulsfield and Lord Caplan for a hearing.
At advising, on 10 August 1999—
LORD JUSTICE-CLERK (Cullen)—This petition arises out of the publication of an article and editorial in the issue of theSunday Times newspaper on 23 May 1999.
On 21 December 1988 270 persons were killed as a result of a bomb exploding on a Pan American World Airways aircraft on flight 103 over Lockerbie. On 13 October 1991 the sheriff of South Strathclyde, Dumfries and Galloway granted a warrant for the arrest of the petitioners, against whom charges of conspiracy to murder, murder and contravention of sec 2(1) and (5) of the Aviation Security Act 1982 had been preferred in connection with that explosion. The petition in respect of which the warrant was granted alleged, inter alia, that the petitioners had conspired together and with others, and acted in concert together with others, to further the purposes of the Libyan Intelligence Services by criminal means, and in particular the destruction of the aircraft and the murder of its passengers.
In a letter dated 24 August 1998 to the Secretary General of the United Nations the acting permanent representatives of the United Kingdom and the United States of America proposed that the petitioners should be tried before a Scottish court sitting in the Netherlands in accordance with the arrangements set out in that letter. Following on resolution 1192 of the Security Council of the United National on 27 August 1998, the governments of those two countries entered into an Agreement dated 18 September 1998 for the regulation of the sitting of the Scottish court in the Netherlands and all matters necessary for the proper functioning of that court in the Netherlands for the trial of the petitioners. On the same day there came into force the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, which was made in exercise of the powers conferred by sec 1 of the United Nations Act 1946. This provided by art 4 that, upon notice being given that both of the petitioners were present in the Netherlands, a direction was to be given forthwith that in respect of the proceedings against the petitioners and subject to arts 6 and 14 of the Order, the High Court of Justiciary was to sit in the Netherlands at premises made available by the government of the Netherlands for the purpose of proceedings conducted by virtue of the Order. Article 5 provided for the appointment of three Lords Commissioners of Justiciary to constitute the court, conduct the trial without a jury, and following its conclusion deliver its verdict. Paragraph 6 of art 5 provided that in the event of a verdict of guilty, the presiding judge was to pass sentence and that, without prejudice to its power apart from that paragraph to give a judgment, the court should, at the time of conviction or as soon as practicable thereafter, give a judgment in writing stating the reasons for the conviction. Article 7 provided for the appointment of an additional judge who could take the place of a member of the court in certain eventualities. Article 10 of the Order stated that anything which, under or by virtue of any enactment or other rule of law, required to be done or might be done by a sheriff in relation to criminal proceedings might, in relation to proceedings conducted by virtue of the Order, be done...
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