PETITION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
to the nobile officium
HER MAJESTY'S ADVOCATE
SCOTTISH MEDIA NEWSPAPERS LIMITED & OTHERS
Petitioner: Mulholland, A.D.; Crown Agent
Respondents: M. Jones, Q.C.; Balfour & Manson
8 June 1999
This is a petition by Her Majesty's Advocate seeking the punishment of the respondents for contempt of court. The respondents are the publishers and the Editor of the Evening Times and a journalist on that paper.
On 5 March 1999 Iain Patrick McColl appeared on petition at Glasgow Sheriff Court on a charge alleging that on the previous day at an address in Hyndland Street, Glasgow he did deforce a Sheriff Officer and apprentice Sheriff Officer, threaten them with violence, present an axe at them and prevent them executing a warrant issued by Glasgow Sheriff Court on 15 April 1998. Mr. McColl was committed for further examination and admitted to bail on the standard conditions. We were told that the procurator fiscal was precognoscing the case at present and that it was unlikely to come to trial until about the end of 1999. The Mr. McColl in question is an actor who has played a character "Big Tam" in a long-running B.B.C. Scotland comedy series.
On the same day as Mr. McColl's appearance, the respondents published an article on the front page and page two of the Evening Times under a headline "Big Tam in Cell over Axe Claims". The text of the article is:
"Troubled Scots actor Iain McColl has been arrested over claims that he threatened Sheriff Officers with an axe.
McColl - who played Big Tam in the sitcom City Lights - woke up in a jail cell today after spending the night in custody.
Police arrested him at his home in Glasgow's West End yesterday lunchtime. He was due in court today.
McColl (45) allegedly brandished the axe when the Sheriff Officers called at the Hyndland Street flat he shares with wife Nora.
It is understood the officials had a court warrant to get access to his home.
They had called to carry out a poinding of the actor's assets over an unpaid bill for driving lessons.
Instructor John McCluskey (43) sued McColl for £173 at a small claims court last year.
Despite a lengthy legal battle, the television star still hasn't paid a penny of the money he owes.
A Strathclyde Police spokeswoman said: 'A 45-year-old man has been arrested and is presently detained in police custody in connection with an incident in Hyndland Street, Glasgow.'
McColl shot to fame in City Lights in the 1980s playing the gormless Big Tam. He has also starred on the hit show Rab C. Nesbitt.
He has a well-documented history of personal setbacks, including drink problems.
Neighbours have complained in the past about disturbances at his home.
But in July 1997, McColl told the Evening Times how he had beaten his demons."
While not being able to say positively that all the statements in the article were correct, the Advocate Depute could not point to any which was inaccurate.
In a brief submission, the Advocate Depute specifically refrained from arguing that in publishing the article the respondents had intended to interfere with the course of justice. He argued, however, that the article had tended to interfere with the course of justice in the proceedings against Mr. McColl and therefore constituted a contempt of court in terms of Sections 1 and 2 of the Contempt of Court Act 1981. The test was whether the article created a substantial risk that the course of justice in those proceedings would be seriously impeded or prejudiced (Section 2(3)). The Advocate Depute highlighted, as being particularly damaging, the statements about the officers being present to carry out a poinding over an unpaid bill for driving lessons and about the civil court proceedings, the reference to Mr. McColl's "well-documented history of personal problems, including drink problems" and the statement that neighbours had complained in the past about disturbances at his home.
On behalf of the respondents Mr. Jones, Q.C., admitted the publication of the article but argued that it did not constitute a contempt of court.
As the Advocate Depute accepted, he appeared on behalf of the Lord Advocate who has, since 20 May of this year, held his appointment from Her Majesty on the recommendation of the First Minister with the agreement of the Scottish Parliament under Section 48(1) of the Scotland Act 1998. The Lord Advocate is a member of the Scottish Executive (Section 44(1)(c)) and, as such, by virtue of Section 57(2) he has no power to do any act so far as it would be incompatible with any of the Convention rights to be incorporated next year by the Human Rights Act 1998. Until the Human Rights Act comes into force Section 57(2) of the Scotland Act is to have effect as it will have effect after that time (Section 129(2)). It follows that, subject to Section 57(3) which does not apply to this case, the Lord Advocate cannot move the court to grant any remedy which would be incompatible with the European Convention on Human Rights.
The Lord Advocate seeks to have the respondents punished for the publication of an article which is said to constitute a contempt of court under the Contempt of Court Act. That Act was itself passed by Parliament to bring our law into line with Article 10 of the European Convention. The Advocate Depute had accordingly no difficulty in accepting that the Contempt of Court Act should be interpreted in such a way as would be compatible with the respondents' rights under Article 10. Both he and Mr. Jones were content indeed to proceed on the basis that those rights would be vindicated by the court finding the respondents in contempt only if the article had created a substantial risk that the course of justice in Mr. McColl's case would be "seriously impeded or prejudiced", as that phrase had been interpreted by the courts.
There was no dispute about how we should approach the question. In applying the statutory test, we must consider whether, at the time when the article was published, it was likely to create a substantial risk of seriously impeding or prejudicing the course of justice. In assessing the risk, we have to take account of the time which would elapse between publication and the likely date of trial. Here, in a case where Mr. McColl was released on bail, trial would be likely to take place within twelve months but, realistically, would not be likely to take place within the first three months. In fact we know that it is unlikely to take place until around nine months after publication. We must also assume that a jury will hear and pay attention to the evidence led in the case, that they will be addressed by the procurator fiscal depute and by the agent for Mr. McColl and that they will then be given the standard directions by the trial sheriff, including the direction that they are to consider only the evidence which has been laid before them in court. We have then 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.
In our view it is impossible to say that, when so judged, the publication of the article was in contempt of court. We consider it rather unlikely indeed 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. Nothing in the article would in our view significantly affect the decision whether to give such a direction, since we have no reason to believe that, even if a juror or jurors did happen to remember what the article said about Mr. McColl and the supposed background to the alleged offence, this would diminish their ability to reach a proper verdict on the evidence.
For these reasons we are of the opinion that the statutory test is not satisfied in this case and that the petition must be dismissed.