Scottish Daily Record And Sunday Mail Limited V. Procurator Fiscal, Edinburgh

CourtHigh Court of Justiciary
JudgeLord Nimmo Smith,Lord Wheatley,Lady Paton
Neutral Citation[2009] HCJAC24
Docket NumberXM9/08
Date12 March 2009
Published date12 March 2009

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith Lord Wheatley Lady Paton [2009] HCJAC24 Appeal No: XM9/08

OPINION OF THE COURT

delivered by

LORD NIMMO SMITH

in

PETITION TO THE NOBILE OFFICIUM

by

SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED

Petitioners;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

_______

Act: Moynihan QC; Levy & McRae

Alt: Beardmore, AD; Crown Agent

12 March 2009

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 £1750. 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 was ordered to leave....."

The reader was then invited to turn to page 4 for a continuation of the story, where an account was given of the evidence given at the trial thus far. No issue arises from the headline or the text of the report. The sheriff held, however, that the publication of a photograph of Mr Riordan constituted a contempt of court.

[5] We note in passing that the petitioners were not alone in doing this. Reports of the first day's proceedings at the trial appeared on the 6pm news bulletin on Scottish Television on 15 May 2007 and in the Scottish Sun newspaper on 16 May 2007. Each of these reports included a photograph of Mr Riordan. On 4 September 2007 the sheriff also made findings of contempt of court with regard to the publication of these photographs against STV Central Ltd and News Group Newspapers Ltd, the publishers of these reports, and fined each of them £1750. Neither of them has sought to bring under the review of this court the finding of contempt of court.

[6] When the trial resumed, a devolution minute was tendered on behalf of Mr Riordan. It was averred that he could no longer receive a fair trial because of the media reporting of the first day's proceedings. In particular it was submitted on his behalf that the publication of his photograph prejudiced the issue of identification in the trial. The sheriff reports that he declined to allow the minute to proceed on the basis that it would be for the court to ensure that the right to a fair trial was not prejudiced. This would involve hearing the evidence of the two civilian witnesses, particularly the second one who had not yet started his evidence, and "establishing whether or not the substantial risk of prejudice had passed into actuality". In the event, neither of the two civilian witnesses knew or was ever aware of having previously seen or heard of Mr Riordan (other than in connection with the alleged events with which he was charged). Further proceedings in the trial took place on 5 and 26 June and 6 August 2007. On the latter date the sheriff found charge 1 against Mr Burrell not proven. He found Mr Burrell not guilty of charges 2 and 3. He found Mr Riordan not guilty of all three charges.

The legislation and other authorities

The Contempt of Court Act 1981 and the European Convention on Human Rights

[7] In making the finding of contempt of court against the petitioners, the sheriff applied the relevant provisions of the Contempt of Court Act 1981 (as amended) ("the 1981 Act"). These are:


"1. The Strict Liability Rule.

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.

2.-- Limitation of Scope of Strict Liability.

(1) The strict liability rule applies only in relation to publications, and for this purpose "publication" includes any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.

(2) 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.

(3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication.

(4) Schedule 1 applies for determining the times at which proceedings are to be treated as active within the meaning of this section.

....

4. Contemporary Reports of Proceedings.

(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. ....."

There is no need to quote from the provisions of Schedule 1, because the proceedings against Mr Burrell and Mr Riordan were clearly active when the photograph of Mr Riordan was published in the Daily Record on 16 May 2007.

[8] The provisions of the 1981 Act reflect a tension between two Articles of the European Convention on Human Rights ("the Convention"). Article 10, "Freedom of Expression", provides inter alia:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary."

Article 6, "Right to a Fair Trial", provides inter alia:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."

The common law

[9] Before the 1981 Act was passed, contempt of court such as that in the present case was dealt with under the common law. We were referred to a number of authorities which demonstrate how the law has developed.

[10] In Stirling v Associated Newspapers Ltd 1960 JC 5 the petitioner, who had been detained in custody on a charge of murder, complained of the publication of an article and a photograph relating to him in the Scottish Daily Mail newspaper, after he had been arrested by the police in connection with the investigation of two murders with which he was subsequently charged. In finding that the respondents had been guilty of contempt of court, and imposing a fine upon the publishers and editor of the newspaper, Lord Justice-General Clyde, who delivered the opinion of the court, said at page 11:

"[I]n regard to photographs, if the criminal...

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