Proceedings before the sheriff

"(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".

"Identification was a critical issue in this case and the issues surrounding identification were crucial to the defence of the two accused."

"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.

The legislation and other authorities

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

"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.

"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

"[I]n regard to photographs, if the criminal authorities have not specifically asked for a photograph to be published in the Press, the Press must not procure or obtain a photograph of any person involved in the investigation and publish it, either during the investigations by the criminal authorities, or during the trial itself. In particular is this so in regard to a man arrested in connexion with the perpetration of a crime. Identification may be a really substantial issue in the trial, and publication of such a photograph may gravely prejudice that trial by affecting the evidence of identification at the trial by witnesses who have already seen the photograph. The whole object of all this throughout is to secure a fair and impartial trial for the arrested person."

At page 12, the opinion concluded:

"We have refrained from imposing a sentence of imprisonment in this case with some hesitation, and, the next time an application of this kind comes before this Court, a much more drastic and severe penalty than a mere fine may be necessary, if justice and fair play in criminal proceedings in Scotland are to be maintained, as we are determined that they shall be."

"The complaint is....that the showing of photographs of the petitioner and the particular references to her in sound made all the difference and converted a discussion of what was already a matter of public interest and comment into an act of contempt. So far as the photographs were concerned, said [senior counsel for the respondents], there is no hard and fast rule that the publication of a photograph of an accused person will always constitute contempt. We have no difficulty in accepting this proposition and we accept, too, the further proposition that the publication of a photograph of an accused person will only constitute contempt where a question of identification has arisen or may arise and where the publication is calculated to prejudice the prospects of fair trial."

At pages 55 to 56 the court said:

"It was ... essential for the Crown to identify the petitioner as the perpetrator [of the alleged offence]. In the whole circumstances the inclusion of the photographs but, more importantly, the verbal references to her in the context of the feature as a whole, were likely to be highly damaging to the prospects of a fair and impartial trial of the petitioner in Scotland."

The genesis of the 1981 Act

"I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. ... I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases."

"Had it not been for the publication of the photograph, we would have been able to hold that in this case ... there was no breach of the strict liability rule. The question would then have been whether there was anything in the text that the course of justice in these proceedings would be seriously impeded or prejudiced.

We do not agree with [counsel for the respondents] that the strict liability rule imposes a very high test in regard to a publication of the kind referred to in section 2 while the proceedings in question are active. In Attorney-General v English [1983] AC 116 at p142 Lord Diplock said that the words "substantial risk" were intended to exclude a risk that is only remote. In HM Advocate v News Group Newspapers Limited 1989 SCCR 156 at p161F Lord Justice-General Emslie said that there can be no contempt unless there is some risk, greater than a minimal one, that the proceedings would be seriously prejudiced. Nor can the publisher pray in aid steps which may be taken afterwards by the court to minimise the risk of prejudice resulting from a publication which would seriously impede or prejudice the proceedings if these steps were not taken. As Lord Diplock pointed out in the passage already quoted from his speech in Attorney-General v English, the public policy that underlines the strict liability rule is that of deterrence. The court must do what it can to minimise the risk of prejudice, because it is in the public interest that proceedings for the detection and punishment of crime should not be interrupted by the effect on the course of justice of publicity. The purpose of the rule is to make the taking of such steps unnecessary, by deterring the publication in the first place of anything which might create risk of such prejudice. The risk must be assessed at the time of the publication without regard to what may happen or may be done afterwards.

...

The publication of the photograph ... so close in time and place to the incident referred to in the petition in the charges of assault and robbery and of assault and attempted robbery, raises the question whether, when taken together with the article, this may have affected the position of witnesses."

After quoting the passage in Stirling v Associated Newspapers Ltd quoted above, his Lordship continued:

"Consequently a contempt will be committed if the publication of the article is likely to affect the evidence of witnesses in the question of identification. In Atkins v London Weekend Television at page 53 Lord Justice-General Emslie accepted the proposition for the broadcasters that there is no hard and fast rule that the publication of the photograph of an accused person will always constitute contempt. He said that it will only do so when a question of identification has arisen or may arise and when the publication is calculated to prejudice the prospects of a fair trial: see also Attorney-General v Guardian Newspapers Ltd (No. 3) [1992] 1 WLR 874, per Mann LJ at p879H. The test, in regard to the strict liability rule under section 2 of the 1981 Act with which we are concerned in this case, is whether the publication of the photograph created a substantial risk that the course of justice in the proceedings would be seriously prejudiced.

In a case where identification is not in issue, the publication of a photograph of the accused is unlikely to give rise to any risk of prejudice, because the evidence of witnesses will not be at risk of being affected by its publication. Nor will the jury be affected by it either, because it will not relate to any issue which they will have to decide. But where identification is or may be in issue the situation is entirely different. The publication of the photograph, linking the name of the accused to the offence with which he is charged, may assist witnesses in their identification of him as the perpetrator of it. The closer in time and place this is to the publication of the photograph, the greater the risk that this will occur. Similarly the publication of a photograph of the perpetrator in this way may affect the jury's determination of the issue of identification at the trial. The closer the trial is to the date of the publication the greater will be the risk of this."

In the circumstances the court made a finding of contempt against the publishers and editor of the newspaper and fined both of them.

"We consider it rather unlikely ... that anyone cited to serve as a juror would even recall the article. The case is, of course, unusual in that it involves a person who may be known to the jurors as an actor on television. Where personalities, whether from the world of politics, sport or entertainment, are tried by a jury, the jurors may often know more about their way of life and the background to any charge than they would in an ordinary case. That in itself may perhaps mean that the judge presiding at any trial would think it appropriate to give a more pointed direction about the need for the jury to reach their verdict solely on the evidence led in court."

The court was not satisfied that the statutory test had been met in the circumstances of that case.

"As its origins demonstrate, the Act was designed to regulate the boundary, which had always, of course, existed, between freedom of expression and the requirements of the due course of justice. That boundary may have been displaced from the familiar place where once it ran; Parliament may have re-drawn the boundary at a point which would not have been chosen by people looking at the matter primarily from the standpoint of the administration of justice. But these factors simply make it all the more important that the courts faithfully observe the boundary which Parliament has settled in order to meet the international obligations of the United Kingdom."

Lord Prosser, at page 274, said:

"Whatever defining words are chosen to express the risk and degree of prejudice which will constitute contempt, and define its boundary, I think it worth emphasising that quite apart from the 1981 Act, and quite apart from the European Convention on Human Rights, there was in my opinion never any excuse for the courts extending the boundary, and diminishing freedom of speech, on the basis that some wider boundary is more convenient, or simpler, or provides a useful cordon sanitaire, or the like."

Lord Coulsfield, at page 277, said:

"The second question to be considered must be whether the publication conveys some imputation or innuendo or creates an atmosphere which may in some way substantially interfere with the course of justice. That is a much more nebulous question and it is in that area that, in my opinion, the courts have to be cautious before finding that there has been a contempt."

These passages need to be read in light of the fact that at that time the Convention had not yet been incorporated into our domestic law by the Human Rights Act 1998 and the Scotland Act 1998, whereas now it is directly binding on our courts.

Textbooks

"We have ... to ask ourselves whether we are satisfied beyond a reasonable doubt that, when published, the article created a substantial risk that the deliberations of the jury would be so affected as to give rise to serious prejudice to the course of justice." (Emphasis added)

"The court will not convict of contempt unless it is sure that the publication has created this substantial risk of that serious effect on the course of justice." (Emphasis in original)

The word "sure" in this context refers to the criminal standard of proof, as is apparent from Attorney General v Express Newspapers, where Rose LJ at paragraph 4 said:

"The burden of proving contempt to the criminal standard rests on the Attorney-General."

The present case

The sheriff's approach

"[T]he publication of the photograph of Derek Riordan in these circumstances not only before the first witness had completed his evidence but before the only other civilian witness/alleged victim had begun to give his evidence, created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced. The fact that the name of Derek Riordan and his photograph might be well-known to the many persons who follow football is nothing to the point.

The issue in this case was whether the conduct allegedly perpetrated against the two victims in the public house in this case could properly and lawfully be laid at the door of the person or persons accused in this case. If, as turned out to be the case here, neither of the two civilian witnesses knew or were ever aware of having previously seen or heard of Derek Riordan, the risk of prejudice or impediment to the course of justice was substantial.

...

That is why such great care and attention requires to be given to the question of the publication of a photograph of an accused person in the course of a trial if identification is in issue.

This rule is so obvious and so well established that one would have thought it was part of the basic and elementary training for all journalists involved in court reporting.

I consider that this case demonstrates a significant and serious lapse in the well-established rules and, as I have indicated, I consider that the publications concerned created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced."

Submissions of counsel

Discussion

Result