Thomas Ross KC

It came as a surprise to many that the provisions of the Act were triggered so early in the process. This – I suspect – happened by accident. Before the Criminal Justice (Scotland) Act 2016 the power exercised by the police last Sunday – to deprive a citizen suspected of a criminal offence for a limited period – was known as ‘detention’. Despite some Scottish judicial resistance – it was eventually determined that the ‘fair trial’ provisions of the European Convention on Human Rights extended to the provision of legal advice from the stage of detention. This led to a reconsideration of the whole process – and in short – in 2016 ‘detention’ became ‘arrest’. I’m not certain that anybody did consider the consequential effect upon the Contempt of Court Act 1981 – but here we are.

The 1981 Act strikes at “publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced”. The problem is that nobody can predict with confidence whether any particular comment would be likely to offend the Act, with the result that debate on matters of widespread public interest can be completely shut down.

A relatively recent example of a spectacular breach of the 1981 Act is given by The Lord Advocate v Scottish Daily Record and Sunday Mail Ltd [2018] HCJAC 32. The article not only named the accused and published photographs of him, it associated him with drug trafficking and a number of gangland shootings. It used phrases such as “gang boss”, “cocaine kingpin” and suggested that he had been “involved in a violent turf war with rival gangsters”. The court ruled that a contempt had been committed and imposed a fine of £80,000.

The matter occasionally arises where an accused person complains that – because of prejudicial publicity – he/she cannot (or did not) obtain a fair trial. Coincidentally a different SNP politician provides the most recently reported example – see [2023] HCJAC 8. On 12th May 2022 former member of Parliament Natalie McGarry was convicted of embezzlement and sentenced to imprisonment for two years. The charges involved the embezzlement of sums of £19,974 and £4,661.02 from an organisation called Women for Independence and from the Glasgow City branch of the SNP.

Unusually this was her second conviction in relation to this matter, she had previously pleaded guilty, then been permitted to withdraw her plea. Naturally this unusual procedural development drew a great deal of publicity which allowed Ms McGarry to argue that the publicity generated had been so prejudicial as to prevent a fair trial. The Appeal Court did not agree, but it provided the Lord Justice Clerk (Lady Dorrian) with an opportunity to comment upon publication by social media, “… a further factor of relevance is the difference between mainstream publications and social media. Unlike the former the latter operate without editorial control, frequently in an irresponsible manner and usually unaccountable to others, unless in extreme cases they may be traced and prosecuted for contempt. They do not represent what is commonly understood by the word ‘journalism’. They are not designed, and frequently do not even purport to be, fair and accurate reports of proceedings. They are in many respects the modern day equivalent of gossip and tittle-tattle at the bus stop. As adults with a collective intelligence and common sense, jurors know and understand this”.

Cases of this type have repeatedly provided our judges with the opportunity to publicly state their unshakeable faith in the system of trial by jury. In Fraser v HMA (2014 JC 115) the court (Lord Carloway) stated: “Jurors are adults. They have a collective intelligence. Of course a rogue juror may decide to disregard the admonitions of the trial judge. If that is shown to have occurred, there may be an arguable ground of appeal. However it is not be assumed that this will occur. It may be that some aspects of a judge’s charge can be difficult to follow. The direction telling the jurors not to conduct an Internet search on the facts of the case or the accused is not in that category. The court has no reason to suppose that it will not be understood and followed … In the absence of material which would tend to demonstrate the contrary, the court must proceed on the basis that the directions were followed.”

In HMA v Thomas Sheridan (unreported – 18th November 2011) Lord Bracadale noted “the focusing effect of listening to evidence over a prolonged period … will be a powerful safeguard. The focusing effect of listening to evidence is not a polite fiction. It is within the daily experience of judges and counsel that juries do become engrossed in the evidence and return verdicts which reflect the evidence. It seems to me that listening to the evidence and hearing it being tested in cross examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. That is more likely … to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views”.

These opinions make the current call for juryless trials even more difficult to understand. Where material of an undoubtedly prejudicial character has actually been published – we can nevertheless trust our jurors to follow judicial guidance and put that material completely out of their heads. But in a rape trial, where nobody has uttered a word about the way that a woman should dress, or made anything about a lack of physical resistance on the part of the complainer, the jurors will be so distracted by these irrelevant issues that they cannot be trusted to try the case at all? I am afraid that this position makes absolutely no sense to me. I believe that a jury does possess ‘collective intelligence’ and that jurors can be trusted to stay true to the promise that they made at the start of the trial, “to well and truly try the accused according to the evidence”. My faith in the system of trial by jury is not a blind one – it is based upon the conduct of hundreds of trials – an advantage that some of the loudest critics of the current system do not possess.

This article first appeared on the Scottish Criminal Law Blog