Daily Record fined £80,000 for contempt of court over ‘severely prejudicial’ articles relating to criminal proceedings 

The article in relation to the accused in the first case named him and printed photographs of him, and referred to him as a “gang boss” and “cocaine kingpin”, while the story concerning the accused in the second case also named him and included photographs of him as he was arrested by police, with quotes from Facebook describing as “beastie scum”.

In the first case the newspaper had taken legal advice from a solicitor who was “heavily sedated” and “incapable of rational thought let alone advising clients on legal matters”, while in the second case the editor acted against legal advice to the effect that there was a risk of contempt.

The High Court of Justiciary imposed the fine after the newspaper owners admitted that there was a “substantial risk” that the course of justice in the cases in question were “seriously impeded or prejudiced”.

‘Cocaine kingpin’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the Lord Advocate brought the complaint against the Daily Record and Sunday Mail Ltd in respect of articles published by the newspaper and online concerning to two separate matters relating to two individuals, “A” and “B”.

“A” had been arrested on 21 January 2017 in connection with firearms offences and appeared on petition in the sheriff court before being fully committed and remanded on February 1, in respect of charges which were all subject to bail aggravations and said to be connected with serious organised crime.

“B” had been arrested on 20 May 2017 in connection with offences said to have been committed in Falkirk the previous day and appeared on petition in the sheriff court on 22 May 2017 on charges of attempting to abduct two nine-year-old girls, and other offences, all committed while subject to a sexual offences prevention order.

The article in relation to “A”, which was published by the Record newspaper and website on February 11, was sensational in nature, describing him as “one of Scotland’s most wanted men”.

It named him and printed photographs of him and associated him with drug trafficking and with a number of shootings of members of organised crime, using phrases such as “gang boss”, “cocaine kingpin” and “cocaine baron”, and suggested that he had been “involved in a violent turf war with rival gangsters”, while also referring to the recovery of a “fearsome arsenal” and “horrific array” of weapons and money. 

The story contained details of the allegations against him that may have formed part of the evidence at any future trial, and revealed detailed information about his criminal history, including previous convictions and prison sentences, as well as referring to other live proceedings against him.

‘Beastie scum’

The article in relation to “B” also named him, and added photographs from at least one of which he might have been identified. 

The photographs and captions were sensational in nature, showing him being pinned down to the ground and in handcuffs, one bearing the caption “GOT HIM” and another stating “Dramatic moment cops restrain man accused of attempting to abduct two young girls in the woods”, a phrase repeated elsewhere in the article in similar terms. 

It included detail of the allegations that may have formed part of the evidence at trial, and narrated the broad circumstances of the alleged incident.

The article also contained quotations from a Facebook posting said to have been made by the mother of one of the children saying, “This absolute beastie scum tried to get my daughter and her friend to go into the woods with him in broad daylight” - a phrase suggestive of offending of a sexual or indecent nature. 

The story linked “B” by name with the offences of which he is charged, and implied his guilt.

Legal advice

The court was advised that both sets of articles were “legalled” by solicitors, but in very different circumstances. 

In the “A” case, the solicitor had been seriously unwell and there was a report from her doctor that she should not have returned to work. 

She was “heavily sedated” at the time the advice was given and the effects of the medication alone would have “rendered her incapable of rational thought let alone advising clients on legal matters”.

But there was no such excuse in the “B” case, where the editor acted contrary to legal advice.

Initially, answers were lodged to the petition in each case disputing that there was any contempt arising, with notes of argument to similar effect also lodged at a later date. 

However, in September last year it was conceded that the articles did indeed constitute contempt of court, and senior counsel for the respondent also tendered an apology for the creation of circumstances where the course of justice was put at risk. 

The judges imposed a cumulo sentence - a fine of £80,000 - after observing that both contempts were “serious” in nature and noting that the admissions came late in the day.

‘Blatant contempt’

Delivering the opinion of the court, the Lord Justice Clerk said: “Counsel, in his submission, recognised that the nature of the articles, at least in the ‘A’ case, might be considered so glaringly flagrant that any editor might have questioned the advice given. 

“There is some force in that concession: in the case of ‘A’ the terms of the article were blatant contempt.

“In the ‘B’ case, the editor was warned by the solicitor engaged for advice, that publication of the photograph carried a risk of contempt but nevertheless proceeded to run that risk.

“In the ‘A’ case, the article is one which in our view carries a severely prejudicial risk to the course of justice…The clear implication of the article is that ‘A’ is a dangerous, violent criminal, involved in serious violent crime, including gun crime, and organised crime.

“In the case of “B”, the publication of the photograph is a particularly serious matter. However, it is also the case that the article set out details of facts which might be expected to be the subject of evidence at trial, including statements made by potential witnesses.”