Scottish High Court of Justiciary Decisons

I have had the advantage of reading the opinion of Lord Marnoch in draft. I agree that the article falls to be interpreted in the manner described by him. On the other hand, having regard to the date of publication and the likely date of any trial, combined with the very small readership of The Scotsman in the west of Scotland, I have found it harder to be satisfied that the risk of any serious prejudice to the course of justice is other than remote. None the less, particularly because of the high profile of Mr. Sarwar which might make the story stick in a reader's mind, I have come to the view that it would not be right to dissent from your Lordships' determination of what is essentially a matter of inference.

I have had the advantage of reading the Opinion of Lord Marnoch and agree with it. In my view a damaging reading of the article under scrutiny, which casts aspersions on Mr Sarwar's character, is all the more likely because he has been so much in the public eye. In addition he is said, in the article, to have been charged with just the kind of activity which the article may be said to impute to him. If he had been a relatively anonymous accused then I should have found it difficult to conclude that the import of the article would have been retained in the mind of a juror participating in any trial which occurs some months hence. However because of the publicity which has surrounded him, an adverse impression of his character, which a reader might derive from the article, could readily be retained in his or her mind until the trial. What are the odds of this happening I do not know but the risk is certainly a serious one. There is some doubt about the spread of the Scotsman's circulation in the area where any trial is most likely to take place. However this is not a case where it can be said that the risk of a juror having read the article can be taken as remote because the publication concerned is not distributed where the trial is likely to occur. The Scotsman claims to be a national newspaper and is widely on sale in Glasgow. Thus in my opinion it cannot be concluded that the chance of a juror having information derived from the article does not represent a substantial risk. The risk may be a limited one but it is real nevertheless. I therefore agree that the respondents have been guilty of contempt under the provisions of section 2 of the Contempt of Court Act 1981.

This is a petition and complaint arising out of the publication on the front page of the Scotsman newspaper of 2 February 1998 of an article of which the headline read "Sarwar charge witnesses ask for protection" followed by a smaller headline "Exclusive: Police told of pressure over evidence". This was clearly a headline which invited further reading as to which the substance of the article, so far as relevant to the present case, is in the following terms:

During the hearing reference was made to four authorities which, in chronological order, were Kemp and Others, Petitioners 1982 S.L.T. (Notes) 357; H.M. Advocate v. Newsgroup Newspapers Limited 1989 S.C.C.R. 156, particularly at p. 161F; H.M. Advocate v. Caledonian Newspapers Limited 1995 S.L.T. 926 at p. 929B, and Attorney General v. M.G.N. Limited and Others [1997] 1 All ER 456 at pp. 460-461. The last reference provides a particularly useful index of the various matters which should be borne in mind in a case of this sort. In the end, however, I did not understand there to be any serious doubt as to the law which was applicable. In that connection the advocate depute made it clear that the petitioner relied exclusively on section 2(2) of the Contempt of Court Act 1981 and it was not, I think, disputed that the test which accordingly fell to be applied was whether, at the time it was made, the publication in question created a "substantial" or "material" or, to use the words of Lord Emslie in H.M. Advocate v. Newsgroup Newspapers Limited cit. sup., "greater than minimal" risk that the course of justice in the proceedings commenced against Mr. Sarwar would be, to use the words of the Act, "seriously impeded or prejudiced". There was also, I think, no dispute but that the effect of the publication had to be judged according to its likely impact on the ordinary reader at the time of publication; - Attorney General v. M.G.N. Limited and Others cit. sup. at p. 460.

As to the likely impact of the publication on the ordinary reader at the time I am not in any doubt that he would be left with the impression that two "key" witnesses had asked for police protection because they feared intimidation from Mr. Sarwar or associates of Mr. Sarwar for whose actings Mr. Sarwar was directly or indirectly responsible. That, it seems to me, is the natural inference which would be drawn from the first paragraph of the article in question; - and that, I think, was by and large the submission of the advocate depute. In particular, I did not understand him to make any separate or independent submission regarding the first sentence of article 7 of the petition. As regards what I have just said, it is, of course, true that there are other possible candidates for the role of intimidator, namely persons not acting under the control of Mr. Sarwar but for one reason or another well disposed or sympathetic to his cause. That, according to Mr. Mitchell for the respondents, was "the furthest the article could go". In my opinion, however, where, in the context of a criminal prosecution, particularly one involving charges of election fraud and attempting to pervert the course of justice, there is reference to feared intimidation, - without further particulars, - the ordinary reader is likely to assume that the accused is ultimately the person whose intimidation is feared. He, after all, is the person with the most obvious interest in the outcome of the trial.

If I am right so far then I have to say that in my opinion there could hardly be a more prejudicial suggestion in advance of trial than the one in question. The fact that an accused should stoop to intimidating witnesses is one which many readers, including the ordinary reader, would regard as almost tantamount to guilt. Moreover, once the ordinary reader has formed that impression I do not consider that he is likely to forget it, particularly when applied to someone as well-known as Mr. Sarwar. It is, in short, an impression which, in my opinion, is likely to "stick". For these reasons I am not, myself, much moved by the submission that the effect of the article would have been spent or forgotten by the time, some months later, the hypothetical juror took his place in the jury box. Nor do I think that its effect would necessarily be removed by the ordinary directions of a trial judge to have regard only to the evidence in the case. Whatever directions along these lines may be given jurors will, I think, always form some impression of the sort of person they are dealing with and, if they had read the article in question, I cannot but think that that impression might well be coloured in a manner prejudicial to the accused. I emphasise, here, that what I have in mind are what I have described as the "ordinary directions" of a trial judge since these are the only ones which can be assumed as at the date of publication. Particular directions, sensitively given, to ignore entirely any suggestion of intimidation from any quarter might be in a different category but in my opinion that sort of direction cannot be prayed in aid by the present respondents.

It remains only to consider a submission which was made, I think, rather hesitantly on behalf of the respondents to the effect that the Scotsman's principal readership, as one might expect, was in the Lothians and that its circulation in the region of Strathclyde was no more than around 12,000 copies. Again, for myself, I do not find this a very compelling consideration. As I understand it the Scotsman does see itself as a national newspaper and in my view there would be a material risk of serious prejudice if even one juror had read the article and was affected by it in the way which I have envisaged. In any event, it cannot nowadays be assumed that High Court trials will always take place where the crime or crimes are said to have been committed.

In the result, and for all the foregoing reasons, I am of opinion that the petitioner has made out his case and that the respondents are guilty of contempt under the provisions of section 2 of the Contempt of Court Act 1981.