Scottish Daily Record and Sunday Mail Ltd v Thomson

JurisdictionScotland
CourtHigh Court of Justiciary
Judgment Date12 March 2009
Neutral Citation[2009] HCJAC 24
Docket NumberNo 17
Date12 March 2009

Appeal Court, High Court of Justiciary

Lord Nimmo Smith, Lord Wheatley, Lady Paton

No 17
Scottish Daily Record and Sunday Mail Ltd
and
Thomson

Justiciary - Statutory offence - Contempt of court - Newspaper publishing photograph of accused during trial - Accused a well-known football player - Whether contempt of court - Contempt of Court Act 1981 (cap 49), secs 1, 2(2)

Justiciary - Statutory offence - Contempt of court - Whether criminal standard of proof applied - Contempt of Court Act 1981 (cap 49), sec 2(2)

Section 1 of the Contempt of Court Act 1981, as amended, creates an offence of strict liability for contempt of court, which applies only in relation to publications (sec 2(1)) which "create a substantial risk that the course of justice … will be seriously impeded or prejudiced" (sec 2(2)), and only if proceedings are active (sec 2(3)).

On 15 May 2007 two accused, Keith Burrell and Derek Riordan, went to trial before the sheriff at Edinburgh on a summary complaint libeling two charges of assault and one of breach of the peace. Mr Riordan was, at the time, a well-known football player. On the first day of the trial evidence was led in part from one of two complainers. The first complainer made dock identifications of both accused during examination in chief. It was necessary to continue the trial to 5 June 2007 for the first complainer to be cross-examined and for further evidence to be led, inter alia, from the second complainer. Identification of the accused was a crucial issue at trial. On 16 May 2007 the petitioners' newspaper, the Daily Record, carried a report of the previous day's proceedings, which included a photograph of Mr Riordan and the headline "Riordan beat up bouncer, court is told". The trial continued, on 5 and 26 June and on 26 August, all 2007, and concluded. The sheriff acquitted both accused of all charges. The petitioners, together with other media organs, were subsequently held in contempt of court, at a hearing before the sheriff on 4 September 2007. The petitioners appealed by presenting a petition to the nobile officium of the High Court of Justiciary. The petitioners accepted that, in general, in a case in which identification was in issue, publication of a photograph of the accused would be a contempt of court but argued that an exception fell to be made in the case of a celebrity whose image was well known. In response, the Crown argued that any exception required to be justified by reference to the particular circumstances of the case and that the sheriff had not erred in this case.

Held that: (1) the law was as stated in HM Advocate v Caledonian Newspapers Ltd and the authorities quoted therein: where identification was in issue, publication of a photograph of the accused that gave rise to the possibility, not remote and greater than minimal, that it could affect the ability of a witness to identify the accused, would constitute a contempt of court within the meaning of sec 2(2) of the 1981 Act (para 29); (2) there were not categories of person, such as footballers, of whom it could be said, a priori and without other evidence, that they were "celebrities", attracting instant recognition, so that an exception could be made in respect of them without regard to the circumstances of any particular case (para 30); (3) the sheriff had not erred in the circumstances of this case (para 31); and petition refused.

Observed that contempt of court being an offence sui generis, and the criminal standard of proof being applied to the 1981 Act in England, the criminal standard of proof beyond reasonable doubt was to be applied by the Scottish courts in determining whether there had been a contempt of court within the meaning of the 1981 Act (paras 20-24).

Scottish Daily Record and Sunday Mail ltd were found in contempt of court by the sheriff at Edinburgh on 4 September 2007. The finding was in respect of the publication by the petitioners of a photograph of an accused person during a summary criminal trial on 15 May 2007. The sheriff fined the petitioners £1,750. The petitioners subsequently sought to have the finding reviewed by presenting a petition to the nobile officium of the High Court of Justiciary.

Cases referred to:

A (A Child) (Re)UNKFLRUNK [2008] EWCA Civ 113; [2009] 1 FLR 1; [2008] Fam Law 1189

Advocate (HM) v AirsSC 1975 JC 64; 1975 SLT 177

Advocate (HM) v Caledonian Newspapers LtdUNK 1995 SLT 926; 1995 SCCR 330

Advocate (HM) v Scotsman Publications LtdUNK 1999 SLT 466; 1999 SCCR 163

Advocate (HM) v Scottish Media Newspapers LtdUNK 2000 SLT 331; 1999 SCCR 599

Anwar, RespondentSCUNK [2008] HCJAC 36; 2008 JC 409; 2008 SLT 710; 2008 SCCR 709

Atkins v London Weekend Television LtdSC 1978 JC 48; 1978 SLT 76

Attorney-General v Express Newspapers plc [2004] EWHC 2859; [2005] EMLR 13; [2005] ACD 41

Attorney-General v MGN LtdUNK [1997] 1 All ER 456; [1997] EMLR 284

Attorney-General v Sport Newspapers LtdWLRUNK [1991] 1 WLR 1194; [1992] 1 All ER 503; [1992] COD 9

Attorney-General v Times Newspapers LtdELRWLRUNK [1974] AC 273; [1973] 3 WLR 298; [1973] 3 All ER 54; 117 SJ 617

Attorney-General v UngerUNK [1998] 1 Cr App R 308; [1998] EMLR 280

B v KennedySC 1987 SC 247; 1987 SLT 765

Byrne v RossSCUNK 1992 SC 498; 1993 SLT 307; 1992 SCLR 898

Cox and Griffiths, PetrsSCUNK 1998 JC 267; 1998 SLT 1172; 1998 SCCR 561

Eutectic Welding Alloys Co v Whitting 1969 SLT (Notes) 79

Gribben v Gribben 1976 SLT 266

Mayer v HM AdvocateUNK 2005 1 JC 121; 2004 SLT 1251; 2004 SCCR 734

R (McCann) v Manchester Crown CourtUNKELRWLRUNK [2002] UKHL 39; [2003] 1 AC 787; [2002] 3 WLR 1313; [2002] 4 All ER 593

Robertson and Gough v HM AdvocateSCUNK [2007] HCJAC 63; 2008 JC 146; 2007 SLT 1153; 2008 SCCR 20

Stirling v Associated Newspapers LtdSCUNK 1960 JC 5; 1960 SLT 5; [1960] Crim LR 265

Sunday Times v UKHRC (1979) 2 EHRR 245

Textbooks etc. referred to:

Arlidge, A, Eady, D, and Smith, ATH, Contempt (3rd ed, Sweet and Maxwell, London, 2005), paras 16.316-16.319

Bonnington, AJ, McInnes, R, and McKain, B, Scots Law for Journalists (7th ed, W Green, Edinburgh, 2000), paras 11.01-11.12

The appeal called before the High Court of Justiciary, comprising Lord Nimmo Smith, Lord Wheatley and Lady Paton, for a hearing, on 4 February 2009.

At advising, on 12 March 2009, the opinion of the Court was delivered by Lord Nimmo Smith-

Opinion of the Court-

Introduction

[1] This is a petition to the nobile officium of this court at the instance of Scottish Daily Record and Sunday Mail Ltd. They are the owners, printers and publishers of the Daily Record newspaper, which has a wide circulation in Scotland. They seek to bring under review a finding made by the sheriff at Edinburgh on 4 September 2007 that in publishing a photograph in the Daily Record on 15 May 2007 they were in contempt of court. The sheriff fined them £1,750. If they were properly found to be in contempt, they take no issue with the level of fine.

Proceedings before the sheriff

[2] On 15 May 2007 two accused, Keith John Burrell ('Mr Burrell') and Derek George Riordan ('Mr Riordan') went to trial at Edinburgh Sheriff Court on three charges in a summary complaint at the instance of the respondent procurator fiscal, which were in these terms:

'(001) On 18 December 2006 at Biddy Mulligans, Grassmarket, Edinburgh you KEITH JOHN BURRELL and DEREK GEORGE RIORDAN did while acting along with others meantime to the complainers [sic] unknown assault Ben Mallinson … and did push him on the body and repeatedly punch and kick him to the head and body, all to his injury

  • (002) On 18 December 2006 at Biddy Mulligans, Grassmarket, Edinburgh you KEITH JOHN BURRELL and DEREK GEORGE RIORDAN did while acting with another conduct yourselves in a disorderly manner, shout, swear and challenge others to fight and commit a breach of the peace

  • (003) On 18 December 2006 at Biddy Mulligans, Grassmarket, Edinburgh you KEITH JOHN BURRELL and DEREK GEORGE RIORDAN did while acting with others meantime to the prosecutor unknown assault James Kennedy … and did repeatedly kick and punch him on the head and body, causing him to fall to the ground, all to his injury'.

[3] In his judgment, the sheriff narrates that the trial began late in the day on 15 May 2007. There was only time to hear part of the evidence of the first of the two civilian witnesses to be called by the Crown, who were the alleged victims of the assault charges. This witness was James Kennedy, the complainer in charge (3), who had made dock identifications of Mr Burrell and Mr Riordan as his assailants in the course of his evidence in chief, but had not yet been cross-examined on behalf of either of them. It was necessary to continue the trial from 15 May to 5 June 2007, when it was anticipated that James Kennedy's evidence would be completed and Ben Mallinson, the complainer in charge (1), would give evidence, to be followed by that of any other witness called by the Crown and by any defence evidence. The sheriff warned James Kennedy not to discuss his evidence on any aspect of the case with anyone, in particular Ben Mallinson, until both had completed their evidence. The sheriff states: 'Identification was a critical issue in this case and the issues surrounding identification were crucial to the defence of the two accused.'

[4] On 16 May 2007 the Daily Record carried a report of the previous day's proceedings. At the top of the front page, next to the masthead, there was a photograph of Mr Riordan, the headline 'Riordan beat up bouncer, court is told' and a report which started:

'Celtic star Derek Riordan and his cousin battered a doorman in a pub stockroom, a court heard yesterday. And a second pub worker claimed he was punched as he tried to help his colleague. Riordan, 24, and his cousin Keith Burrell, 25, went on trial accused of two charges of assault and two of breach of the peace yesterday. The Scotland international lost his temper after one of his friends...

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