Alistair Bonnington: Contempt and hypocrisy

Alistair Bonnington

It was inevitable that the question of the strict limitations on media coverage of the Police Scotland investigation into the possible misuse of donors’ money by some within the SNP would be raised by journalists. Understandably Mr Myers wondered if it was fair and proper that these restrictions applied largely because this was a Scottish case and not an English one. After all we are dealing in the main with the same provisions of the Contempt of Court Act 1981 in Scotland and England. But the principal, and here vital difference is the “trigger point” for the starting off of the contempt rules. In England that point is oral charge while in Scotland it’s earlier, from arrest (see Schedule 1 1981 Act). Given that the old 12 hours’ “detention” (originally part of the amended Criminal Procedure (S) Act 1975) has been reclassified as arrest by the Scottish Parliament’s amendments in 2016, the Scottish contempt rules come into play very early indeed so it’s perfectly reasonable for Mr Myers to point out that had this been an English case, he and other journalists would have been able to advise their readers of many more aspects of this affair. As always, we find that it is in Scotland where we have “ye cannae dae that!” approach in the ascendancy.

Given that almost all newspapers are now published on the internet and so can be read anywhere (irrespective of Hadrian’s Wall), while TV and radio signals can now be picked up worldwide, the present position whereby the English and Scottish contempt rules are different is practically absurd, never mind any legal objections to it. The restrictions which the Scottish judges set out to apply are in truth unenforceable in the digital world.

Furthermore, the outpourings on social media from interested parties, deranged conspiracy theorists and downright lunatics will almost certainly create and disseminate hundreds of quite baseless theories as to what is and has been going on. Despite social media having substantial penetration amongst the public, more than many newspapers in fact, the Scottish Crown, if they act as normally, are likely to turn a blind eye to all this. They just pretend that it didn’t happen. Unlike in England, in Scotland the accused persons, and perhaps that includes potential accused persons, can draw the High Court’s attention to the publications in question. But the prime movers in contempt have always been the Crown. They are under an obligation to try to ensure that the trial process is not corrupted in any way. This includes the possibility of corruption by improper advance publicity.

Now you might argue that the Crown’s usual treatment of social media as opposed to the mainstream media is downright hypocritical. I can’t think of an argument against that. But perhaps we should remember that the Scottish judges are pretty hypocritical in this area of law themselves. Whilst on the one hand railing against journalists for their dreadful prejudicial publications and visiting severe penalties on them, they are perfectly content immediately afterwards to dismiss a plea in bar of trial from the accused based on that same dreadful prejudice. Intellectually there can be said to be justification for this seemingly conflicting approach because contempt is found where the publication is deemed to have created “a substantial risk of serious prejudice” (see 1981 Act section 2(2)). Dealing as they are with only risk not reality, the judges say they can properly dismiss the plea in bar on the basis that the risk of prejudice can be dealt with simply by proper directions to the jury. That will cure any possible ills.

If this is good law, does it not follow as a matter of logic that if the risk created by the publication is curable by direction, then it can’t possibly be put into the category of “substantial risk of serious prejudice”, and so the statutory test hasn’t been met and there is no contempt. But as far as I know from my 25 years or so of conducting these cases in the Sheriff Court and the High Court, there have been no successful “acquittals” in contempt cases on that argument. Nor have there been any successful pleas in bar of trial (See HMA v George Outram and Others 1980 JC 51 and Stuurman and Others v Lord Advocate in July 1980 for illustration of the contrasting, and arguably inconsistent, approaches taken by the Scottish High Court).

The Scottish High Court and Court of Session also spend an inordinate amounts of their time granting orders under s.4(2) and s.11 of the 1981 Act to prevent publication of media reports of many proceedings (see the Scottish Courts website for the very long list). The media is not represented at such hearings (despite the order being granted against them) and must apply for a recall in whole or in part. Inevitably there is a degree of reluctance for one judge to overturn the order another has made. So usually the restrictions remain even when challenged.

Overall, based on my experience from contempt cases, I can’t help wondering if some of our judges would prefer that they carried on their work in private. They certainly seem very ready to snatch at any argument that the media should be excluded from the courtroom. In fact in one case before the Edinburgh High Court I was prevented from making submissions on behalf of the BBC despite having told the clerk in advance of my intention to make representations. I did so because I knew the court was considering making a s.4(2) order. I took the matter to the European Court of Human Rights in Strasbourg, who found that the High Court had handled the matter improperly by not hearing the media’s submissions. I happen to know (as one does when a little older and a bit better connected) that the concern in Parliament House when the news of the ECHR decision was issued was how to restrict its application as much as possible. So I think it fair to say that our judges, doubtless with some exceptions, are not heavily committed to the concept of the free exchange of information in a democratic society. Folk like Thomas Jefferson have been putting that kind of thing into Constitutions and Bills of Rights since the 1780s. But Scots law and practice currently favours “The Darkness”.

Whatever may be the strengths and weaknesses of the competing arguments set out above, as pleaders and commentators, ultimately we can only deal with the law of contempt as it is set out in the 1981 Act and as applied by our courts.

Against the background of Scottish practice as set out here, it is hardly surprising that journalists are currently terrified of the wrath of Scottish judges over their reporting of Operation Branchform, the police operation which so far includes the arrests of Murrell, Beattie and Sturgeon. But there is a newspaper article which has gone unchallenged and which may suggest that the Crown are taking a hands-off approach to this case. On 23 May Murray Foote, who was almost up to the date of this publication the SNP’s communications director, had an article in the Daily Record which directly attacked the police investigation into the SNP. He stated he was confident that the police work, which has taken over two years thus far, was destined to come to nothing. Further he called its motives into account saying that there was every chance of damages having to be paid to those arrested as had happened in the Rangers insolvency case. That Rangers case depended on the admission from the lord advocate that the prosecution of certain individuals was motivated by malice. So damages were due to them. So to summarise, Mr Foote tars the Branchform inquiry into the SNP finances with the same exceptionally disreputable brush. Just in case we are left in any doubt as to what should happen to this police investigation, Mr Foote tells us that Mr Murrell and Mr Beattie are fine upstanding honourable folk who wouldn’t be mixed up in dodgy dealings. A character witness who now has no need to take the stand.

I have seen plenty of cases where the media was brought before the court for a lot less. But nothing has happened here. The Crown hasn’t brought the matter to the High Court’s attention. I further note that an SNP MP called Jamie Dornan speaking to The News Agents podcast this week has claimed that the police are colluding with the media in Branchform by tipping off journalists as to what is to happen next. As far as I could see he has absolutely no evidence to support this allegation. He’s very clearly saying that the police are acting with improper motives in their dealings with Murrell, Beattie and Sturgeon. Is this now permissible under Scots contempt law? It certainly wasn’t when I practised.

At the risk of stating the blindingly obvious, the kind of prejudice which the law of contempt seeks to prevent and perhaps punish, can be either anti-accused or anti-Crown. Both are potentially equally injurious to a fair trial. Under Scots law as presently enforced, to attack the motives of the police who are carrying out one of the most important Scottish criminal investigations for many years, seems to me to be prima facie contempt of court. The Crown are very well aware that their hopeful statements to the media, and the public at large as social media users, stating that nothing prejudicial can be published from the point of arrest in Scotland are always ignored by many of the public, especially the weirdos. The Crown know that in a case like this, which has enormous media interest here and abroad, they must go into court to enforce the draconian contempt rules for which Scotland is infamous. But they haven’t done so. At least not yet.

The SNP’s main obsession is to get good media coverage. They have employed a veritable army of special advisers (spads) at huge public expense to spin the news their way. Due to the impoverished condition of much of the Scottish newspaper industry and the supine nature of far too many Scottish radio and TV journalists they have succeeded. So the close-to-the-wind forays of Mr Foote and Dornan are likely to be just the beginning of their attempt to rubbish the police investigation and any subsequent move by the Crown to proceed to a criminal court. On any view it would be a disgraceful situation for Scots law if its independence from government were compromised in this tawdry fashion. I am merely a spectator nowadays, but I await development from the Crown with interest.

As I observe events from afar might I suggest to younger lawyers who are still at the coalface that there are two further aspects of contempt law which are worthy of consideration on the facts set out above.

Firstly there is Section 5 of the Act which states:

Might Mr Myers and his journalist colleagues pray this in aid to allow them to publish a fuller examination of the situation in Scotland? There haven’t been enough decisions on s.5 to be sure what the Scottish judges will do with that provision when advanced in this kind of situation. Given their usual approach it is tempting to believe that they will just pretend it doesn’t exist. But it is the law and it must mean something.

Secondly there is the Supreme Court decision in HMA v Montgomery & Coulter 2001 SLT 37; 2000 SCCR 1044 – the case often referred to as the murder of Surjit Singh Chokkar. There the Supreme Court faced with a plea in bar of trial by the accused were shown a quite incredible amount of media coverage which pointed towards the accused being guilty and deserving of extreme punishment. However Lord Hope took the view that a Scottish jury would “well and fairly try the accused” despite all this advance publicity. The same view had been taken in X v Sweeney the so-called “Glasgow rape case” – although one questions if Lord Emslie’s reliance in X v Sweeney on the concept of “the notoriously short memories of public” (as potential jurors), would be as applicable today with the internet allowing repeated reading of historical material. That’s something which we lawyers know that many jurors must do during the trial, but we pretend we don’t know.

I did many jury trails as a young criminal lawyer at Glasgow Sheriff Court, then the busiest criminal court in Europe. I would agree with Lord Hope that jurors do their job as properly and honestly as they can. They become a separate little group cut off from the world. My observations of juries over the years make me believe that they do try the accused according to the evidence and not according to their readings of media – both mainstream and mad. If we argue backwards from this point, logically it must have an effect on where the bar is set when determining if the test of “substantial risk of serious prejudice” in the 1981 Act has been met. If jurors are indeed pretty much immune from any biased reporting/opinions they have read in the media, the test as currently applied in Scotland is obviously wrong. It is also illogical to use one approach in contempt cases but a contrasting one in plea in bar cases. As I no longer appear in the High Court I am free to say that it would be sensible for the judges in Edinburgh to remember that nowadays, under the Human Rights Act, the Scottish judges of the Supreme Court are available to exercise their supervisory jurisdiction if it is required.