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Cite as: [1999] ScotHC 202

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PET AND COMPLAINT OF ABDELBASSET ALI MOHAMED AL MEGRAHI and AL AMIN KHALIFA FHIMA v. TIMES NEWSPAPERS LTD and JOHN WITHEROW and NICHOLAS RUFFORD [1999] ScotHC 202 (10th August, 1999)

PETITION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Coulsfield

Lord Caplan

Misc. 104/99

OPINION OF THE LORD JUSTICE CLERK

PETITION and COMPLAINT

ABDELBASSET ALI MOHAMED AL MEGRAHI

and

AL AMIN KHALIFA FHIMA

Petitioners;

against

TIMES NEWSPAPERS LIMITED, JOHN WITHEROW and NICHOLAS RUFFORD

Respondents:

_______

Petitioners: Taylor, Q.C., Beckett; McCourts: Keen, Q.C., McLeod; McGrigor Donald

Respondents: Lord Advocate, Armstrong for the public interest: Davidson, Q.C., Clark; Crown Agent

10 August 1999

This petition arises out of the publication of an article and editorial in the issue of the Sunday Times newspaper on 23 May 1999.

On 21 December 1988 270 persons were killed as a result of a bomb exploding on a Pan American World Airways aircraft on flight 103 over Lockerbie. On 13 October 1991 the sheriff of South Strathclyde, Dumfries and Galloway granted a warrant for the arrest of the petitioners, against whom charges of conspiracy to murder, murder and contravention of section 2(1) and (5) of the Aviation Security Act 1982 had been preferred in connection with that explosion. The petition in respect of which the warrant was granted alleged, inter alia, that the petitioners had conspired together and with others, and acted in concert together and with others, to further the purposes of the Libyan Intelligence Services by criminal means, and in particular the destruction of the aircraft and the murder of its passengers

In a letter dated 24 August 1998 to the Secretary-General of the United Nations the acting permanent representatives of the United Kingdom and United States of America proposed that the petitioners should be tried before a Scottish court sitting in the Netherlands in accordance with the arrangements set out in that letter. Following on resolution 1192 of the Security Council of the United Nations on 27 August 1998, the governments of those two countries entered into an Agreement dated 18 September 1998 for the regulation of the sitting of the Scottish court in the Netherlands and all matters necessary for the proper functioning of that court in the Netherlands for the trial of the petitioners. On the same day there came into force The High Court of Justiciary (Proceedings in the Netherlands)(United Nations) Order 1998, which was made in exercise of the powers conferred by section 1 of the United Nations Act 1946. This provided by Article 4 that, upon notice being given that both of the petitioners were present in the Netherlands, a direction was to be given forthwith that in respect of the proceedings against the petitioners and subject to Articles 6 and 14 of the Order, the High Court of Justiciary was to sit in the Netherlands at premises made available by the government of the Netherlands for the purposes of proceedings conducted by virtue of the Order. Article 5 provided for the appointment of three Lords Commissioners of Justiciary to constitute the court, conduct the trial without a jury, and following its conclusion deliver its verdict. Para (6) of Article 5 provided that in the event of a verdict of guilty, the presiding judge was to pass sentence and that, without prejudice to its power apart from that paragraph to give a judgment, the court should, at the time of conviction or as soon as practicable thereafter, give a judgment in writing stating the reasons for the conviction. Article 7 provided for the appointment of an additional judge who could take the place of a member of the court in certain eventualities. Article 10 of the Order stated that anything which, under or by virtue of any enactment or other rule of law, required to be done or might be done by a sheriff in relation to criminal proceedings might, in relation to proceedings conducted by virtue of the Order, be done by any sheriff who would have jurisdiction if the proceedings were taking place in Scotland; and at the premises of the court.

On 5 April 1999 the petitioners travelled to the Netherlands, where they were handed over to United Kingdom authorities and arrested. On that date the appropriate direction was given in accordance with Article 4 of the Order. Thereafter the petitioners appeared before a sheriff in accordance with Article 10. On 14 April they were fully committed for trial. Since the date of their arrival in the Netherlands they have remained detained within the premises of the Scottish court in the Netherlands. On 7 June 1999 the 110 days period within which the trial of the case required to commence, in terms of subsection (4)(b) of section 65 of the Criminal Procedure (Scotland) Act 1995, was extended by a judge of the High Court to 4 February 2000. On the same date the period within which the indictment was to be served was extended so as to expire on 31 October 1999.

The first respondents are the owners, printers and publishers of the Sunday Times newspaper. The second respondent is its editor. The article which is complained of bore to have been written by the third respondent. It carried the headline: "Official: Gadaffi's Bomb Plot". It stated that during the period from 1990 to 1995 the security services of the United Kingdom obtained intelligence that Colonel Gadaffi, the Libyan leader, had personally ordered the bombing in revenge for an American air raid on Tripoli. The article was written against the background of a recent diplomatic initiative which could lead to the restoration of certain relations between Libya and the United Kingdom and significant orders for British companies. The article stated that the United Kingdom Government had "issued a last-minute gagging order" against the newspaper preventing it from publishing details of the intelligence operation which had produced this evidence. It was stated that Colonel Gadaffi had instructed Abdalla Senussi who was head of his External Security Organisation (ESO). Senussi was his brother-in-law and the first petitioner's supervisor. He had used the same method to blow up a French airliner, for which he had been sentenced in absentia in March. It was also stated that Said Rashid, who was described as "one of Gadaffi's inner circle", head of the engineering section of the ESO and a cousin of the first petitioner, ordered timers from a Swiss company. Fragments of a bomb timer from the wreckage of the Pan American aircraft had been traced to this order. Rashid had been sentenced in absentia by an Italian court for his part in the assassination of a Libyan dissident in 1980. In the editorial it was stated, under the headline: "The Guilt of Gadaffi" that, inter alia, "it would be an odd sort of justice that found his cat's-paws guilty of murder and let the real villain off the hook". It also went on to state:

"But even if the suspects are convicted (and it is conceivable that a verdict in Scottish law of not proven or even not guilty might be found after all this time), what will the Government do then? Lift sanctions against a regime convicted of mass murder".

The petitioners seek to have the respondents held to have been in contempt of court. They also seek an order prohibiting the respondents, pending the completion of their trial, from publishing any article, feature or comment relating to the proceedings against the petitioners which is liable to prejudice the administration of justice in general and the case against the petitioners in particular. At the hearing of the petition submissions were made on behalf of the first and second petitioners by Mr. W.J. Taylor, Q.C. and Mr. R.S. Keen, Q.C. respectively. The petition was opposed by the respondents, who were represented by Mr. N.F. Davidson, Q.C. The Lord Advocate, to whom the petition had been intimated, appeared for the public interest. He adopted a neutral position and provided information on a number of matters for the assistance of the court.

Counsel for the petitioners maintained that the article and editorial contained a series of assertions of fact in regard to allegations which the Crown would require to prove at the trial. A fair and dispassionate reader would be left with the impression that the guilt of the petitioners could be taken for granted, and that if there were to be an acquittal, it would not be because the petitioners were innocent, but because the evidence had been adversely affected by the passage of time. The effect of what was written was all the greater as it was partly contained in an editorial in a quality newspaper.

Mr. Taylor and Mr. Keen both invoked the strict liability rule as it is expressed in sections 1 and 2 of the Contempt of Court Act 1981. They pointed out that, by reason of the terms of paras. 4 and 11 of Schedule 1 to that Act, the criminal proceedings against the petitioners had become "active" again for the purposes of the Act with their arrest after they reached the Netherlands on or about 5 April. Section 1 defines the strict liability as meaning:

"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".

Section 2(2) states:

"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".

Counsel referred to a number of authorities for the propositions - which were not in dispute - that (i) the "risk" must be more than minimal or remote; (ii) "seriously" required a real impediment or prejudice to the course of justice; and (iii) the test fell to be applied at the stage of publication, without regard to what might have happened or might happen thereafter. (Att. Gen. v. English [1983] 1 A.C. 116, per Lord Diplock at page 141; H.M. Advocate v. Caledonian Newspapers Limited 1995 S.L.T. 926 at pages 929-930; and H.M. Advocate v. Scotsman Publications Limited 1999 S.C.C.R. 163 at page 167).

Mr. Taylor also sought to rely on the pre-existing common law of contempt of court. However, he made it clear that he was not relying on section 6 of the 1981 Act which provides:

"Nothing in the foregoing provisions of this Act -

...

to impede or prejudice the administration of justice".

That provision plainly ensures that the Act is not to affect liability in respect of conduct which is specifically intended to impede or prejudice the administration of justice, either in relation to particular proceedings or more generally (Att.-Gen. v. Newspaper Publishing plc, [1988] Ch. 333, per Sir John Donaldson M.R. at page 374). There is no suggestion to that effect in the present case. However, Mr. Taylor relied on Smith v. Ritchie (1892) 3 White 408, in which an accused who had been committed for trial on a charge of uttering as genuine certain forged manuscripts or other documents sought to have the editors and publishers of a newspaper prohibited from publishing or circulating any statement relating to the alleged forgeries or anything prejudicial to him until the proceedings had been brought to a conclusion. At page 411 the Lord Justice Clerk (Macdonald) said:

"When any person has been committed for trial, that person is necessarily under the protection of the court, and is accordingly entitled to apply to the court to prevent anything being done which may in any way prejudice him in his trial".

I have no doubt that it is as true today as it was then that a person who has been committed for trial is under the protection of the court. However, it is also clear that liability for contempt of court in regard to the effect of a publication on proceedings which are "active", that is to say liability regardless of any intent to interfere with the course of justice, is regulated by sections 1 and 2 of the 1981 Act. As was pointed out by the Lord Justice General in the recent case of Cox and Griffiths, Petitioners 1998 J.C. 267 at page 273, the Act was passed in order to change the law of the United Kingdom and so to bring it into conformity with the interpretation of Article 10 of the European Convention on Human Rights by the European Court on Human Rights in Sunday Times v. United Kingdom Series A No. 30 (1979); 2 EHRR 245. The Act represented a distinct shift in favour of freedom of expression (Att. Gen v. Newspaper Publishing plc, per Lloyd L.J. at page 382). On any view it could hardly be supposed that, in regard to the possible effect of a publication on the course of justice in particular proceedings which are "active", a publisher is exposed to liability according to one test under the statute and another test according to the common law.

The court was also referred to a passage in the Opinion of the Court in Muir v. B.B.C. 1997 S.L.T. 425, which was concerned with the prohibition of the broadcasting of a television programme. In that case the court indicated (at page 427) that it had the power in the exercise of its nobile officium to make an order even if there was not a contempt of court under the Act. However, when those remarks are read in context, it is plain that the court was distinguishing what fell within section 2(2) of the Act from what would properly constitute contempt of court after consideration of the defence under section 5. In these circumstances I am satisfied that any liability for contempt of court in regard to the effect of the publication on the course of justice in the current proceedings is regulated by the relevant provisions of the 1981 Act.

If the petitioners were in custody in Scotland and were to stand trial on indictment before a jury in Scotland, I would have had little difficulty in accepting that the statements contained in the article and editorial raised a serious question as to their effect on the minds of potential jurors. Counsel for the petitioners sought to bring the present case closer to that situation by relying on Article 16 of the Agreement between the governments of the United Kingdom and the Netherlands to which I have already referred. Para. (2) of Article 16 states:

"After their transfer to the premises of the Scottish court the accused shall not be transferred to the territory of the United Kingdom. However, the Government of the United Kingdom may, after due notification to the Government (of the Netherlands), transfer the accused from the premises of the Scottish court directly to the territory of the United Kingdom, but only:

(a) for the purpose of trial by jury in Scotland, provided that the accused have

given their written agreement, and have confirmed that agreement in person to the High Court of Justiciary in the presence of any counsel instructed by them, or

(b) for the purpose of serving a custodial sentence imposed by the Scottish

court following the conviction of the accused".

Mr. Taylor submitted that this enabled the petitioners to request that they should be transferred to Scotland, with a view to their being tried there before a jury. He went so far as to describe this as a "right" of the petitioners, although he accepted that such a transfer would require the consent of the Lord Advocate. Mr. Keen submitted that the terms of the paragraph clearly enured for the benefit of the petitioners and gave them a real right. The respondents had no right to pre-empt the petitioners' right to jury trial by publishing the article and editorial. There was no time limit to their right to elect for jury trial. The publication was bound to influence the petitioners when they considered whether they would so elect. It was also important to bear in mind that at the date of publication no decision had been made as to whether or not the petitioners would be against an extension of the 110 day period. At the same time neither counsel gave any positive indication as to whether any such option might be exercised. Mr. Taylor merely said that the prospect of its exercise could not be ruled out. Neither he nor Mr. Keen said that he had any instructions in regard to that matter. Mr. Keen said that there was "some chance of it happening", and no one could say that it should be ignored.

The Lord Advocate correctly pointed out that the main purpose of Article 16(2) was to protect the petitioners against being transferred from the Netherlands to the United Kingdom. The only right in them which the Agreement created was the right not to be transferred to the United Kingdom against their will. If the petitioners did request transfer to the United Kingdom with a view to their standing trial before a jury in Scotland, it would be for the Lord Advocate at that time to decide whether it was in the public interest for him to accede to that request; and, if so, to withdraw the notice which he had given under Article 4 of the Order. The Agreement and the Order had been required because the trial of the petitioners elsewhere than in Scotland was envisaged. The reality was that the petitioners through their representatives and their Government had shown no interest in coming to Scotland and being subject to a trial before a jury there. He referred to certain earlier correspondence to that effect. In these circumstances they had elected to go to the Netherlands. Nothing had been said on their behalf at their first appearance before the sheriff, their judicial examination, the stage of their committal until liberated in due course of law, or the hearing of the application for the extension of the 110 day period or at any other time to indicate that they were seeking or might seek to be tried before a jury in Scotland. He had specifically asked whether there was any question of this, in order to obtain clarification after a letter dated 25 April 1999 had mentioned the alternative of a jury trial in Scotland. The response was solely to the effect that the press had no basis for assuming that a jury trial in Scotland was not likely. It should be added that Mr. Taylor informed the court that at a meeting with the Lord Advocate on 10 May 1999 he had stated, as was recorded in the minute of meeting, that "jury trial was very much under consideration".

It is obvious that the arrangements in accordance with the Agreement and the Order were made in order to meet objections to the petitioners standing trial before a jury in Scotland. As at the date of publication of the article and the editorial there was nothing to indicate that the petitioners might wish instead to be tried in Scotland and the same applies at the present time. Thus, while the possibility of that happening could be absolutely ruled out, it was extremely remote. Accordingly I consider that, as matters stood at the date of publication, it is unrealistic to consider the effect of the article and editorial on potential jurors in Scotland.

Counsel for the petitioners then went on to submit that, even on the footing that their clients were to stand trial in the Netherlands before judges in accordance with the Order, the article and editorial represented a contempt of court.

Counsel did not maintain that there was any risk of a judge being influenced by the publication complained of. Further, counsel did not submit that there was any risk of the evidence or conduct of particular witnesses being affected. However, Mr. Taylor submitted that in two respects the publication complained of gave cause for concern. Firstly, the court should take action to prevent public confidence in the course of justice in the current proceedings from being undermined. Secondly, the petitioners were entitled to be assured that they would be tried by an impartial tribunal. Mr. Taylor stated that his client was concerned lest, if the press was not subject to regulation, there might be a trial by the media and not by a court of law. There was every indication that matters were going to get worse. Instead the court should exercise its nobile officium to prevent unfairness to his client between the present time and the conclusion of the trial. The media should not be allowed to think that the 1981 Act did not apply. Mr. Keen accepted that the position of the petitioners should be looked at from an objective standpoint. Pre-judgment of matters by the media usurped the function of a court by suggesting to the public that the court might be influenced by what was published. Each publication created a further risk. The petitioners had been assured, before they surrendered themselves to the United Kingdom authorities, that they would receive a fair and objective trial. His client had no detailed knowledge of the Scottish legal system. His reactions to the publication were understandable.

As the Lord Justice General (Emslie) observed in Hall v. Associated Newspapers Limited 1979 J.C. 1 at page 9:

"The law of contempt of court covers many diverse forms of conduct one of which is conduct that is liable to prejudice the administration of justice generally, or in relation to the case of a particular individual. Its source is to be found in the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities".

The scope of liability for contempt of court by publication in relation to particular legal proceedings which are treated as "active" is nowadays regulated by sections 1 and 2 of the Contempt of Court Act 1981, which, as was pointed out by the court in Robb v. Caledonian Newspapers Ltd. 1995 S.L.T. 631 at 634, restate in statutory form what is described as the strict liability rule. In regard to matters which are not regulated by sections 1 and 2, the question as to whether there is liability for contempt of court is governed by the common law.

Where a court is concerned with the question whether a publication has attracted strict liability for the purposes of sections 1 and 2 of the Act, it has to consider the prospective effect of the publication as at the date when it was made. In In re Lonrho plc [1990] 2 A.C. 154 Lord Bridge of Harwich said at page 209:

"The question whether a particular publication, in relation to particular legal proceedings which are active, creates a substantial risk that the course of justice in those proceedings will be seriously impeded or prejudiced is ultimately one of fact. Whether the course of justice in particular proceedings will be impeded or prejudiced by a publication must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed. The influence may affect the conduct of witnesses, the parties or the court".

The submissions made by counsel for the petitioners in this branch of the argument, which assumes a trial before judges in the Netherlands, plainly did not suggest that the article and editorial complained of might affect the conduct of anyone in such a way as to influence or divert the proceedings. Instead they concentrated on the way in which the administration of justice in these proceedings might be perceived from the point of view of the public on the one hand and the petitioners on the other.

In support of their submissions counsel for the petitioners referred to a decision of the Court of Appeal in Att.-Gen. v. Channel 4 Television, 16 December 1987, unreported. That case was later the subject of a decision of the European Commission on Human Rights on 13 April 1989 (Application No. 14132/88).

In its decision the Court of Appeal refused to discharge an injunction which it had granted on the application of the Attorney-General to prohibit the broadcasting of a television programme which reconstructed a prominent criminal appeal which was currently being heard. In giving the decision of the Court, the Lord Chief Justice, Lord Lane, said (at pages 8-9 of the transcript):

"The portrayal by actors of a witness, albeit using words or some of the words which the witness has used, is pretending to be the real thing and is subtly inviting the viewer, as Mr. Laws put it, to sit in the judgment seat, and subtly inviting the viewer to make what he thinks is his own comment or judgment, but in truth that comment and judgment will be conditioned, and predictably conditioned, by the way in which the actor, as he has been directed, has played the part of the witness. The actor has it in his power to make a truthful witness appear to be a liar and vice versa.

Such a representation would not, in normal circumstances, directly affect the judgment of the court. It would, or it certainly might, affect the public's view of the judgment of the court. As to that it might be said that a broadcast of this nature after judgment is delivered would have the same effect, but we doubt if that is true. Even if it is true, there is a further reason for at least postponing such a programme until after all the proceedings are over. That is this. Whatever may be the nature of the present programme, which we have not seen despite invitations to us to do so, the defendant in any case, or the appellants in the present case, in circumstances such as these, are entitled to be assured that so far as possible the court has not been influenced by external matters.

The broadcast of this sort of programme before the case is finally over may leave the defendant, or the appellants in this case, without such assurance. He will know that the court in all probability has seen the programme before judgment has been delivered. He may harbour doubts, however unjustified those doubts may be, about the effect which the programme may have had upon the judgment of the court".

The Commission was satisfied that the injunction constituted an interference with the television company's freedom of expression within the meaning of Article 10(1) of the European Convention on Human Rights. However, it held that, for the purposes of Article 10(2), the restriction was "prescribed by law", pursued the legitimate aims of protecting the rights of others and of maintaining the authority and impartiality of the judiciary, and was justified by a "pressing social need". Accordingly the Commission found that the case failed to disclose an arguable claim of a violation of Article 10. It was not, of course, for the Commission to determine whether the Court of Appeal had correctly interpreted or applied the law of contempt. It was concerned with whether the decision of the Court of Appeal was or was not compatible with Article 10. Accordingly I propose to concentrate on the basis of that decision.

It is reasonably plain that in arriving at its decision the Court of Appeal did not treat the injunction as justified by section 4(2) of the Contempt of Court Act 1981 which empowers the court to order the postponement of the publication of any report of proceedings or any part of proceedings "where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent". The court did not examine whether the test of necessity was satisfied. It did not proceed on the basis that the judgment of the court in the criminal appeal might be affected. It plainly distinguished the programme from the reporting of, or comment on, the proceedings in the appeal. It appears therefore that the injunction was sought to be justified on broader considerations relating to the administration of justice where contempt of court was in question.

In considering the value which should be attached to this decision, which was the sole decision founded upon by counsel for the petitioners in support of the submissions which they made in this branch of the case, it is of some importance to consider the legal basis on which it rested. At page 6 of the transcript the Lord Chief Justice referred to the following passage from the speech of Lord Diplock in Att. Gen. v. Times Newspapers Limited [1974] A.C. 273 at page 309:

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court".

The Lord Chief Justice rejected the argument that this dictum was not applicable to the case with which the court was concerned, stating that it was one of general application and that if conduct fell within the words used by Lord Diplock properly construed, that was the basis on which the court could exercise jurisdiction to grant an injunction. It appears that the third of the three requirements of the administration of justice which he stated was treated as being of most relevance.

From the speech of Lord Diplock and other speeches in the House of Lords in Att. Gen. v. Times Newspapers Limited it is plain that the members of the House sought to establish a general rule in the law of contempt that it was offensive to that law for the press to pre-judge issues in pending cases and hence "usurp the function of the court". Thus, for example, Lord Reid at page 300 said:

"I do not think that the freedom of the press would suffer, and I think the law would be clearer and easier to apply in practice if it is made the general rule that it is not permissible to pre-judge issues in pending cases".

It can be seen that, underlying the adoption of such a rule in that case there were a number of considerations. These included that pre-judgment by the press might lead the public to an opinion on the subject matter of the litigation (a claim of damages for the effects of the marketing of the drug thalidomide) before the issue had been adjudicated on by the court; and, of particular relevance to that case, that pre-judgment was liable to lead to replies by the parties in what Lord Morris of Borthy-y-Gest described at page 304 as "flurries of pre-trial publicity".

The same approach to pre-judgment may be found in a passage from the judgment of Shaw L.J. in Schering Chemicals Limited v. Falkman Limited [1982] Q.B. 1 at page 30, which the Lord Chief Justice quoted at page 7 of the transcript:

"There is the larger question of the undesirability of presenting simulated trials of the subject matter of pending or prospective litigation on so influential a medium of publicity as television. This must be a matter of degree. When the presentation appears to encroach upon the function and authority of the judicature, the limits of tolerance are clearly exceeded".

The difficulty about the pre-judgment test as such, i.e. irrespective of the circumstances of the particular case, is that it cannot stand with the enactment of sections 1 and 2 of the Contempt of Court Act, in which Parliament adopted a different test, following on the recommendations of the Report of the Committee on Contempt of Court (the Phillimore Report) in December 1974 (Cmnd. 5794). As Lord Bridge of Harwich observed in In re Lonrho at page 208, the pre-judgment test propounded in the speeches in Att. Gen. v Times Newspapers Limited was criticised in the Phillimore Report paras. 106-111. The decision of the House of Lords was held by the European Court of Human Rights (in The Sunday Times v. United Kingdom) to constitute an infringement of the right to freedom of expression under Article 10 in respect that, while the interference with the freedom of expression was for the legitimate aim of maintaining the "authority...of the judiciary" under Article 10(2), it was not justified by a "pressing social need" and could not therefore be regarded as "necessary" within the meaning of Article 10(2). As I have pointed out earlier in this opinion it is recognised that the 1981 Act represented a distinct shift in favour of freedom of expression, in conformity with Article 10 of the European Convention. Accordingly I do not consider that the judicial statements which were relied on by the Court of Appeal in Att. Gen v. Channel 4 Television could still be regarded as authoritative as at the time of its decision.

Quite apart from that, the ratio of the decision of the Court of Appeal does not appear to me to square with the 1981 Act. Where a court is asked to prohibit a publication in a case where proceedings are active its task is to determine the effect of the publication on the course of those proceedings. There is nothing in the Act which enjoins the court to apply as the test the perception of others as to whether the course of justice may be affected. The administration of justice has to be robust enough to withstand criticism and misunderstanding. It would, of course, be an entirely different matter if the court were faced with conduct intended to impede or prejudice the administration of justice, either in the context of particular proceedings or more generally. The court would be well justified in making an order to prevent a deliberate affront to the administration of justice, for example, where a publication was regarded as impugning the integrity of the court or attacking its authority.

I should add that on any view I do not consider that liability for contempt of court should depend on the viewpoint of the party to the proceedings, whether that is based on his actual attitude or upon some objective assessment of his position. It is one thing to say that it is good law that a party to proceedings should be able to rely on there being no usurpation by any other person of the function of the court to decide the case according to law. That is saying no more than that such a person has a right to complain about that as being contempt of court. It is quite another thing to say that what is contempt of court should be judged by reference to the perspective of that party.

In the present case it is sufficient for me to say that I am not satisfied that the article and editorial, whether taken together or individually, fell foul of the strict liability rule under section 2(2) of the 1981 Act. In any event, even if it had been correct to use as a test the question whether they might undermine public confidence in the administration of justice, I would have held that such a test was not met. Neither contained any direct reference to those who were to act as judges at the trial or to the functions which they were to discharge. They contained certain allegations of fact in regard to matters which, as Mr. Davidson demonstrated, have been the subject of considerable press coverage for some time. The main thrust of what was published was directed to the complaint that, despite information as to the alleged involvement of Colonel Gadaffi, the United Kingdom Government was taking steps with a view to restoring certain relations with Libya. The references to the case and to the first petitioner in particular, appeared to be incidental. Further, in considering any suggestion that this publication might tend to undermine public confidence in the administration of justice, one has to bear in mind that that question should be considered in a wider context. In this country the public and those who are the subject of criminal proceedings enjoy the benefit of an independent judiciary, the members of which are well used to concentrating on the evidence, and only the evidence, which is put before them in the proceedings, and to arriving at decisions in an impartial manner. Accordingly I do not consider that the article and editorial complained of constituted a contempt of court. In the circumstances I do not find it necessary to deal with the respondents' defence under section 5 of the 1981 Act. The question of pronouncing an order against the respondents in regard to their future conduct does not arise.

Before leaving the present proceedings I should point out that it does not follow from the decision in this case that no question can arise as to whether a further publication relating to proceedings against the petitioners is a contempt of court. It is not practicable to lay down guidelines for the media since it is not possible to anticipate what may be published, or proposed to be published, and in what manner and in what circumstances. A judgment can be given only in relation to the case which is put before the court. However, I can point out, as I have said earlier in this opinion, that contempt of court of the type to which section 2(2) of the Contempt of Court Act 1981 relates, depends on the influence which the publication may have on the proceedings. While the present instance is not one in which I have been able to discern any effect on intended or potential witnesses, another publication might be regarded as doing so. The proceedings against the petitioners have called for extraordinary arrangements under which, as matters stand, they are to be tried by a bench of judges. The prospect of the petitioners standing trial before a jury in Scotland appears to be extremely remote. However, in view of what was said at the hearing, as I have narrated above, it should not be assumed that circumstances cannot change in this - or indeed in any other - respect. It has not been suggested that a judge might be influenced by the article and editorial complained of. No doubt that is in accordance with the general view which has been adopted in the past, primarily in the context of appeals. Thus in In re Lonrho Lord Bridge of Harwich said at page 209:

"The possibility that a professional judge will be influenced by anything he has read about the issues in a case which he has to try is very much more remote. He will not consciously allow himself to take account of anything other than the evidence and argument presented to him in court".

That passage, as is plain, does not rule out the possibility that, no matter how hard and how conscientiously a judge strives to exclude something from his mind, he may subconsciously be affected by it. No doubt much would depend on the nature and content of the publication and the circumstances in which it is made. Thus I would not go so far as to exclude absolutely the risk of influence on this score.

Any future publication will require to be undertaken with due regard to these risks. Those who are responsible for publication should be well aware of the dangers inherent in the use of information in such a way as to convey an assurance of guilt on the part of accused who are entitled to the presumption of innocence until a court of law has decided otherwise. The well-recognised procedure by way of petition and complaint is available to enable any interested party, and the Lord Advocate in the exercise of his responsibility in the public interest, to draw the court's attention to any publication which is considered to constitute a contempt. It will then be for the court to reach a decision which strikes a proper balance between the interests of justice and freedom of communication.

PETITION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Coulsfield

Lord Caplan

Misc. 104/99

OPINION OF LORD COULSFIELD

PETITION and COMPLAINT

ABDELBASSET ALI MOHAMED AL MEGRAHI

and

AL AMIN KHALIFA FHIMA

Petitioners;

against

TIMES NEWSPAPERS LIMITED, JOHN WITHEROW and NICHOLAS RUFFORD

Respondents:

_______

Petitioners: Taylor, Q.C., Beckett; McCourts: Keen, Q.C., McLeod; McCourts

Respondents: Lord Advocate, Armstrong for the public interest: Davidson, Q.C., Clark; Crown Agent

10 August 1999

I agree with the opinion of your Lordship in the chair and I propose only to add a few comments because of the possible future importance of the decision on the present petition. It is clear, in my view, that article and leader published in the Sunday Times were directed principally towards issues which are legitimate matters of public discussion notwithstanding the existence of proceedings against the petitioners, namely, the possibility that senior figures in the Libyan Government may have had some responsibility for the Lockerbie crash and the conduct of the British Government in its relations with the Libyan Government. The main reason why the items published are said to constitute a contempt is that they included statements which affirmed, or at least assumed, the guilt of the petitioners. They also included some statements which might be taken as factual accounts of activities of Libyan officials related to the subject matter of the charges against the petitioners. Counsel for the respondents conceded that in normal circumstances, that is, if a jury trial were in prospect and there had not been the extensive earlier publicity which there has been in relation to this case, the publication would have been in contempt. I agree with your Lordship that, given the actual history of the investigation of the Lockerbie crash and the attempts to mount criminal proceedings in relation to it, and given the circumstances at the time of the publication, the publication did not amount to a contempt of court.

It is, however, possible, perhaps likely, that there will be occasions before the completion of the proceedings when reporters and commentators will want to discuss issues related to the disaster and its implications for relations between the British and Libyan Governments and, no doubt, other similar matters. There is, therefore, obviously a risk that such discussion might transgress against the rules of contempt of court in their application to the criminal proceedings. I do not think that it is possible to anticipate what the newspapers and other media may want to engage in by way of discussion or comment and therefore I do not think that it is possible for this court to attempt to lay down anything so positive as guidelines for such discussions. It may, however, be of some assistance to say a little more about the general approach which this court has thought appropriate in considering whether there has been any contempt. I would, however, observe, before losing sight of the particular publication with which this application is concerned, that it does not seem to me that it would have been difficult, burdensome or unduly restrictive of freedom of speech or comment for the article and the leader to have been couched in terms which would have reminded the reader that the petitioners were still facing trial and still entitled to the presumption of innocence. If that had been done, I think it unlikely that any question of contempt would have arisen.

In my view, it is clear that the proper place to start is with the terms of the Contempt of Court Act 1981 and in particular section 2(2) which provides:

"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".

The Act followed on the decision of the House of Lords in Att. Gen. v. Times Newspapers Limited [1974] A.C. 273, the decision of the European Court of Human Rights in The Sunday Times v. United Kingdom (1979) 2 H.R.R. 245 and the Phillimore Report and was clearly intended to lay down a new rule to govern the application of the law of contempt in relation to court proceedings. The novelty of the test laid down in the 1981 Act was not, perhaps, fully recognised in Att. Gen. v. English [1982] C.A.R. 302 but it was recognised in In re Lonrho plc [1990] 2 A.C. 154. In the latter case, Lord Bridge of Harwich quoted passages from the speeches of their Lordships in Att. Gen. v. Times Newspapers dealing with the question of prejudgment of issues to come before a court as a form of contempt and said, (at page 208):

"How far these passages from the speeches of their Lordships may still be relied upon as accurate expressions of the law is extremely doubtful, certainly in relation to the kind of contempt which is the subject matter of the strict liability rule under sections 1 and 2 of the Act of 1981".

Having considered the European Court of Human Rights decision and the Phillimore Report, Lord Bridge continued:

"The only safe course, we think, is to apply the test imposed by the statutory language according to its ordinary meaning without any preconception derived from Att. Gen. v. Times Newspapers Limited [1974] A.C. 273 as to what kind of publication is likely to impede or prejudice the course of justice. The question whether a particular publication, in relation to particular legal proceedings which are active, creates a substantial risk that the course of justice in those proceedings will be seriously impeded or prejudiced is ultimately one of fact. Whether the course of justice in particular proceedings will be impeded or prejudiced by a publication must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed. The influence may affect the conduct of witnesses, the parties or the court. Before proceedings have come to trial and before the facts have been found, it is easy to see how critical public discussion of the issues and criticism of the conduct of the parties, particularly if a party is held up to public obloquy, may impede or prejudice the course of the proceedings by influencing the conduct of witnesses or parties in relation to the proceedings. If the trial is to be by jury, the possibility of prejudice by advance publicity directed to an issue which the jury will have to decide is obvious. The possibility that a professional judge will be influenced by anything he has read about the issues in a case which he has to try is very much more remote. He will not consciously allow himself to take account of anything other than the evidence and argument presented to him in court".

His Lordship then went on to deal with the situation in relation to appellate proceedings, with which we are not here concerned.

The position therefore is that the words of section 2(2) have to be applied according to their ordinary meaning. In some of the cases, there have been attempts to analyse the wording of the subsection in greater detail. In particular, it has been suggested that the word "substantial" carries a technical legal meaning, that is to say, something more than de minimis. I would be inclined to doubt whether Parliament did intend the expression to bear that technical meaning and I would prefer to try to read the subsection as a whole, giving each expression its ordinary meaning, but the point is not material for the present purpose. It is also necessary to bear some of the other provisions of the 1981 Act in mind in appreciating the effect of section 2(2). Section 3 protects the innocent distributor of materials containing contempt; section 4 protects fair reports of proceedings; and section 5 protects publications made as part of the discussion in good faith of matters of public interest, where the risk of impediment or prejudice to particular legal proceeding is merely incidental. On the other hand section 6(c) preserves the law of contempt in its full earlier force so far as it relates to conduct intended to impede or prejudice the administration of justice.

As the Lord Justice General pointed out in Cox and Griffiths, Petitioners 1998 S.C.C.R. 561, these provisions represent a significant shift in the law and, in particular, have the effect that a publication is not to be treated as contempt merely because it creates some risk of prejudice to proceedings. He observed that the Act was designed to regulate the boundary between freedom of expression and the requirements of the due course of justice and continued:

"That boundary may have been displaced from the familiar place where it once ran; Parliament may have redrawn the boundary at a point which would not have been chosen by those 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".

In the same case, I suggested that the first consideration in any question of possible contempt by publication was whether the publication had communicated information which, according to the ordinary rules of the procedure appropriate to the case, should be withheld from the tribunal deciding it. The obvious example is the communication of inadmissible evidence, such as the fact that an accused person has previous convictions. Beyond that, it is much more difficult to be clear or confident and caution is required if the interests of justice are to be properly balanced against the freedom of communication. It appears to me that the same caution is required in considering whether a publication which is criticised as prejudging the issue in some legal proceedings is to be considered a contempt. It is quite clear from the original Sunday Times case that the House of Lords took the view that prejudging the outcome of a case was objectionable and should be regarded as contempt, almost in itself, and without reference to any need to identify some particular prejudice to the parties or the outcome of the case. There are frequent references in the Sunday Times case and in some of the other authorities to the undesirability of "trial by newspaper" and I think that one can detect in the pre-1981 cases and, indeed, in some of the later ones, a feeling that once an issue has been taken to the courts, the courts should be left alone to deal with it without further comment. It seems to me, however, that that must be one of the areas in which a the shift in the balance between freedom of expression and regard for the administration of justice has occurred. That, in my view, follows directly from the terms of section 2(2). Accordingly, while, as is apparent from the extract from the speech of Lord Bridge quoted above, it is still the case that critical public discussion of the issues in a proceeding is capable of being regarded as impeding or prejudicing the course of that proceeding by influencing the conduct of witnesses or parties or affecting the court, it cannot, in my view, be correct, in the application of the 1981 Act, to assume that all references to the proceedings, the evidence, the conduct of the parties or the likely outcome of the case must be excluded from public discussion without reference to the question whether the actual publication meets the statutory test. On the contrary, it appears to me that the application of the statutory test must require the court in every instance to look at the publication or intended publication concerned and ask whether it can be seen to involve a real risk of prejudice to the proceedings. Further, I find it difficult to see how it can be suggested that there is such a risk unless the prejudice can be pointed to in some reasonably specific way.

I appreciate, however, that that approach may not be consistent with the decision of the Court of Appeal in the Channel 4 Television case. The Channel 4 case was concerned with a proposal to broadcast a dramatic representation of parts of the evidence heard in the course of an appeal, which had been referred to the Court of Appeal by the Home Secretary. The court regarded the form of programme proposed as different from an ordinary article or television or radio commentary and the reason for that view was expressed by Lord Lane C.J. as follows:

"Press comment does not pretend to be any more than comment. But what is proposed here is the portrayal with actors not only of members of the court (which does not matter), not only of counsel (which probably does not matter), but also of the witnesses. The portrayal by actors of a witness albeit using words or some of the words which the witness has used, is pretending the real thing and is subtly inviting the viewer, as Mr. Laws puts it, to sit in the judgment seat and subtly inviting the viewer to make what he thinks is his own comment or judgment, but in truth that comments and judgment will be conditioned, and predictably conditioned, by the way in which the actor as he has been directed, has played the part of the witness. The actor has it in his power to make a truthful witness appear to be a liar and vice versa.

Such a representation would not, in normal circumstances, directly affect the judgment of the court. It would, or it certainly might, affect the public's view of the judgment of the court. As to that it might be said that a broadcast of this nature after judgment is delivered would have the same effect, but we doubt if that is true. Even if it is true, there is a further reason for at least postponing such a programme until after all the proceedings are over. That is this. Whatever may be the nature of the present programme, which we have not seen despite invitations to us to do so, the defendant in any case, or the appellants in the present case in circumstances such as these are entitled to be assured that so far as possible the court has not been influenced by external matters.

Earlier in his opinion, the Lord Chief Justice quoted a passage from the speech of Lord Diplock in Att. Gen. v. Times Newspapers Limited which included the statement that the due administration of justice required, inter alia, that once a dispute had been submitted to a court of law the parties should be able to rely upon there being no usurpation by any other person of the function of the court to decide it according to law. Lord Lane described that dictum as one of general application which, properly construed, provided the basis upon which a court could proceed to grant an injunction to prevent publication, presumably on the ground that publication would be a contempt. What concerns me about that reasoning is that it appears to proceed directly from an application of the view expressed by Lord Diplock in a case before the 1981 Act, indeed a case whose effect the 1981 Act was designed to alter, to a conclusion as to what the court is entitled to treat as contempt without touching upon the provisions of the 1981 Act itself. Moreover, in so far as Lord Lane's judgment proceeds upon the basis of the perception of the parties as to the effect of any publication on the proceedings, I have to say that I can find no warrant for such an approach in the 1981 Act. What, it seems to me, the Act requires, on its plain terms, is that the court which has to undertake the task of deciding whether or not there has been a contempt, or whether or not a publication should be prevented as a contempt, is required to take the responsibility of deciding whether or not there is a substantial risk of serious prejudice to the course of justice. If the court decides that there is no such risk, the perception of other persons as to the fairness or otherwise of the proceedings is, so far as I can see, neither here nor there for the purposes of section 2(2) of the 1981 Act. In these circumstances, I find myself unable to agree with the reasoning by which the court reached its conclusion in the Channel 4 case. The case was, of course, concerned with a proposal to mount a dramatic representation of a kind very different from the publication which we have to deal with in this case, and about which we have heard argument. On the basis of what we have heard, I do not think that I would altogether exclude the possibility that an argument might have been made that the representation considered in the Channel 4 case could have been held a contempt in terms of section 2(2) and therefore that the result in the case might be supported: but it is not necessary for the purpose of this case to enter into that argument.

In passing, I would add that it appears to me that the fact that the decision of the Court of Appeal was considered by the European Commission on Human Rights, which concluded that there was no infringement of the Convention, does not advance the issue for the present purpose. What the Commission required to consider was whether the law of contempt, as interpreted by the Court of Appeal, did or did not comply with the Convention. The Commission decided that the law as so interpreted did not impose any restraint on freedom of speech going beyond the limits of what is necessary in a democratic society for the preservation of, among other things, the administration of justice. That decision might possibly be regarded as implying that a wider power to restrict publication than that which is contained in the 1981 Act would not infringe the Convention but it is of no assistance in the interpretation of the 1981 Act itself.

For these reasons, it seems to me that the question to be asked must always be one as to the harm which it is anticipated that any particular publication may have done or be capable of doing. In considering whether the 1981 Act test is met, of course, it will be necessary to have regard to the nature of the court and the precise stage of the proceedings. As has been often said, therefore, greater restraint is necessary when a case is to be heard before a jury than it is when the case is to be heard by a judge: and much greater restraint is necessary before factual issues have been decided than when the case is on appeal or when the issue is one of law.

There remains an aspect of the question of restraint of publication which I find most difficult. It is, in fact, very rare to find that a court is so impressed by the risk of prejudice to legal proceedings resulting from a publication that the proceedings themselves are actually discharged. In the cases in which that does happen, it is normally because something has been disclosed which falls within the narrow class of information which, according to law and practice, should not be disclosed to the tribunal deciding the case, whether judge or jury. I would therefore expect that it would only be in an exceptional case that a single publication, like the present one, involving prejudgment of the issue of a criminal trial, would be regarded as so damaging that the trial could not proceed. Greater difficulty arises, in my view, in connection with repeated publications, whether by a single newspaper or by a number of newspapers or other organs of publication. It is, I think, much easier to see that repetition of an allegation, such as an allegation that the suspects in the present case are guilty, frequently made over a period of time might create an atmosphere in which it would be extremely difficult for the tribunal trying the case, whether judge or jury, to reach a proper conclusion. Such repeated publication might, in my view, properly be described as "trial by newspaper" and might be capable of being regarded as prejudicial to the course of justice. There is, therefore, I think, a problem in regard to repeated publication, to which there is no easy solution. So far as section 2(2) is concerned, the best that can be done, in my view, is to say that in considering the risk of prejudice to a fair trial, it must be open to the court not only to ask itself what the effect of the publication on an isolated occasion would be but what the effect of repeated publication of the same material would be. It is possible that the common law of contempt, so far as preserved by section 6(c), may also have a role to play in such a case, but there is considerable uncertainty as to how that law may apply.

In the light of the approach to the law which I have tried to explain, I have no difficulty in concluding that, given the previous history of the attempts to bring the petitioners to trial on the allegations which have been made against them, given the nature of the trial which is to take place and the time set for it to begin; and given, also, the probable length of the trial and the amount of evidence which will be led, the publication of the two items in question constituted no risk of substantial prejudice to the due course of justice. On the other hand, as I said earlier, I do not see that much infringement of the principle of freedom of speech would be involved in insisting that, particularly as the time for the commencement of the trial draws near, care should be taken to ensure that it is made clear in any discussion of the trial, or in any discussion in which the question of the guilt of the suspects arises incidentally, that their guilt remains to be determined.

PETITION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Coulsfield

Lord Caplan

Misc. 104/99

OPINION OF LORD CAPLAN

PETITION and COMPLAINT

ABDELBASSET ALI MOHAMED AL MEGRAHI

and

AL AMIN KHALIFA FHIMA

Petitioners;

against

TIMES NEWSPAPERS LIMITED, JOHN WITHEROW and NICHOLAS RUFFORD

Respondents:

_______

Petitioners: Taylor, Q.C., Beckett; McCourts: Keen, Q.C., McLeod; McCourts

Respondents: Lord Advocate, Armstrong for the public interest: Davidson, Q.C., Clark; Crown Agent

10 August 1999

The facts surrounding this petition, and the submissions of the parties thereto, have been comprehensively set out by your Lordship in the Chair and I need not repeat them. I also agree with your Lordship's conclusions. The two petitioners are Libyan subjects remanded as they await trial on extremely serious charges of murder arising from the blowing up of a Pan American aircraft over Lockerbie in 1988. In the petition they represent that the respondents, in the issue of the Sunday Times newspaper, dated 23 May 1999, published an article, and associated editorial, which they claim was a contempt of court that could seriously impede or prejudice the course of justice in the criminal proceedings affecting them. They claim that, as persons arrested and committed for trial by order of the Scottish Court, they are entitled to invoke the protection of that Court in respect of any matters likely to prejudice their prospect of obtaining a fair trial. They are, in my view, perfectly correct in making such a claim and they are certainly entitled to the level of protection which would be available to a British citizen in an equivalent position.

Our authorities show that what is acknowledged as contempt of court has often arisen in one of two ways. Firstly there are actings which take place directly in the course of court proceedings and which accordingly are generally immediately perceptible. The prevarication of witnesses, and offensive outbursts in court, are but two examples of this. However, the impact of published material can also affect the course of justice and, under our law, the implications of this have led to a distinctive category of contempt of court. Moreover, published material can have an injurious affect on the course of justice in two quite separate ways. The publication may be harmful to the resolution of particular proceedings. Alternatively, the publication may injure the legal system in a broader sense, as it would if it were to prejudice the administration of justice generally.

Contempt of court by publication is regulated by the Contempt of Court Act 1981. Under the pre-existing common law published material which risked causing prejudice to the course of particular court proceedings, or to the more general administration of justice, could give rise to a contempt of court. With the evolution of concepts of Human Rights, and in particular the introduction of Article 10 of the European Convention, doubts were raised as to the appropriateness of some aspects of the common law. In particular the conflict between the need to have a fair and effective system of justice, on the one hand, and the need to have freedom of expression, enquiry, and debate, on the other, came more to the fore. Article 10 sets out the essential parameters of freedom of expression and provides for a series of qualifications of the right including restriction where necessary for "maintaining the authority and impartiality of the judiciary". The review of the law of contempt of court was referred to the Phillimore Committee which reported in 1974 (Cmnd. 5794). Section 2 of the 1981 Act which eventually emerged clearly took into account the recommendations of the Committee. Strict liability remained applicable in respect of a contempt of court emerging from certain categories of publication but the requirements inherent in such liability were strictly regulated. In terms of section 2(2) strict liability 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". Thus the strict liability rule only applies to particular proceedings, as distinct from relating to the questions which can arise if more general areas of justice are affected. Under the rule there must be a substantial risk of impediment or prejudice to the course of justice and this effectively means "a risk greater than a minimal one". (L. J-G. Emslie in HMA v. News Group Newspapers Ltd and Scottish Express Newspapers Ltd 1989 S.C.C.R. 156 at p16). The historical perspective I have been seeking to give is that adopted by the Lord Justice-General in Cox and Griffiths Petrs. 1998 S.C.C.R. 561 at 568. At the same page his Lordship observes that the Act was designed to regulate the boundary, which had always existed, between freedom of expression and the requirements of the due course of justice. As he proceeds to state "That boundary may have been displaced from the familiar place where it once ran". Thus in my view it is clear that any contempt of court finding which relates to publication said to affect the outcome of a particular case, must if founded on strict liability, be circumscribed by the statutory provisions set out in Sections 1 and 2 of the 1981 Act. The effect of the enactment of the 1981 Act can be illustrated by reference to the House of Lords case of Attorney-General v. Times Newspapers Ltd [1974] A.C. 273 (the Spycatcher case). In that case their Lordships expressed clear views that there should be a rule of law that any prejudging of a case by the media is prejudicial to the administration of justice and thus a contempt of court. However that decision pre-dated the 1981 Act and it is worth noting that it was criticised in the Phillimore Report. In my view the proper modern view is that clearly stated in the opinion delivered by Lord Bridge of Harwich in the Report of the Appellate Committee of the House of Lords, In re Lonrho plc. [1989] 3 W.L.R. 535 at 557. His Lordship stated

"The only safe course, we think, is to apply the test imposed by the statutory language according to its ordinary meaning, without any preconception derived from Attorney-General v. Times Newspaper Ltd as to what kind of publication is likely to impede or prejudice the course of justice. The question whether a particular publication, in relation to particular proceedings which are active, creates a substantial risk that the course of justice in those proceedings will be seriously impeded or prejudiced is ultimately one of fact. Whether the course of justice in particular proceedings will be impeded or prejudiced by a publication must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed".

It follows from the approach of Lord Bridge, which was not delivered in a full exercise of the appellate function of the House of Lords but deserves considerable respect, that in the present case the petitioners could only establish a contempt of court if they could demonstrate that the publication complained of created a substantial risk that the course of justice in their cases will be seriously impeded or prejudiced. However, "the course of justice" can be an elusive concept. What is just must take account of human rights and these of course, when different interests are affected, can be in competition. However the paramount human right of an accused in criminal proceedings is to have a fair trial. Article 6 of the Convention recognises this and indeed defines the essential features of such a trial. If a publication were to give rise to a substantial risk that it might influence the course of proceedings so as to have an adverse effect on the human rights of the accused, and thus prevent a fair trial, then this could sit comfortably within the boundaries of contempt of court set by Lord Bridge. Such a situation would clearly prejudice the accused. I raise the matter of human rights because is this case it was claimed on behalf of the accused that the publication complained of had jeopardised their human rights. However, I so not see their submissions on the matter as giving rise to any particularly difficult legal issue. The facts in each case need to be separately analysed and then at the end of the day the court falls back on the words of the 1981 Act which are relatively straightforward. It must also be recalled that when the Act was enacted a concern with Human Rights was very much to the fore.

It should be noted that it is not disputed that the published material complained of was published after the petitioners had been committed for trial, with the result that their cases fell within the active category of proceedings which are covered by the protection of strict liability. Nor is it disputed that in assessing the effect of published material said to be in contempt of court, the effect of the material on current proceedings must be assessed as at the time of publication (H.M.A. v. Caledonian Newspapers Ltd. 1995 S.C.C.R 330)

Looking to the article and editorial dated 23 May 1999 which are complained of, I have little difficulty in concluding that these publications are apt to give rise to an explicit inference that each of the accused is guilty of the crimes with which he is charged. To put matters in proper balance I do not think the purpose of the published material was to suggest that the accused were personally guilty. The aim was to implicate Colonel Gadaffi in the crime and then use this to query the propriety of certain alleged commercial dealings said to be pending between Britain and Libya. Of course, in order to complete the chain of responsibility said to lead to Colonel Gadaffi, the author of the published material thought it necessary to connect Colonel Gadaffi, and certain orders he had given, with the activities of the two petitioners. However, unless the publications fall within the ambit of Section 5 of the 1981 Act (which deals with the discussion of public affairs and which I shall refer to later) the motivation of the publisher is immaterial if it falls within the mischief affected by strict liability. The petitioners' counsel each claimed that the publications prejudiced their client's right to a fair trial. If the petitioners had in fact been facing trial by jury, or if I were persuaded that trial by jury in Scotland had been a substantial prospect at the time when the Sunday Times material was published, then I could quite possibly have been persuaded that there was some risk that the publications could have influenced the minds of jurors against the accused. However I do not accept that at the time of publication there was any information whatsoever from which it could have been supposed that the accused, (or either of them), would have elected to submit to trial by jury in Scotland. On behalf of each petitioner reference was made to the terms of Article 16(2)(a) of the Inter-Governmental Agreement between Great Britain and the Netherlands. This enables the British Government to transfer the accused to Scotland for jury trial but only if the accused have given their written agreement and confirmed that agreement in person to the High Court of Justiciary in the presence of the counsel instructed by them. Neither Petitioner has made an election to be tried by jury but each of their counsel submitted that he had not taken final instructions on the point. It was claimed that there was at least a possibility that an election for jury trial could be made. The submission was that this right of election has been adversely affected because the said published material has created a substantial risk that it would influence prospective jurors to adopt the view that the accused were guilty.

In my view the petitioners' position on this matter is simply not sustainable particularly in the light of the information given to the court by the Lord Advocate. Put shortly, throughout the lengthy interval before the accused were handed over for trial, they and those representing them made it absolutely clear that they were not prepared to stand trial in Scotland. Doubts were publicly expressed that the accused would be unable to get a fair trial before a Scottish jury. It was to offer the accused an opportunity to stand trial without a Scottish jury, and to avoid their coming to Scotland, that elaborate arrangements were made to provide an alternative, namely trial in the Netherlands before a panel of Scottish judges. Neither of the petitioners had at any time suggested that he might be prepared to contemplate electing for the right to have a jury trial in Scotland. Nor had they responded to invitation on the part of the Lord Advocate to indicate if they were considering this.

Even at this point of time it would be difficult to conclude that there is any serious prospect of the petitioners being tried before a jury in Scotland. The accused do not appear to have given their counsel instructions in relation to their attitude to trial by jury; nor have they sought their counsel's advice. At best they rely on a supposed right to a jury trial in Scotland, and in particular to what are described as their rights under Article 16 of the Inter-Governmental Agreement. However, as the Lord Advocate submitted, Article 16 does not confer any right to jury trial on the accused. Indeed the obvious aim of Article 16 is to limit the circumstances under which the accused could be transferred to Scotland against their wish. This indeed must explain why any transfer to Scotland for jury trial is hedged with protection against involuntary transfer. At best the accused could apply to be tried by jury in Scotland rather than before a panel of judges. The Lord Advocate would require to consent to such a course before it could happen and, as he informed us, he is not prepared to commit himself to any particular course of action in the matter. There could be serious reasons for refusing an application for a transfer to Scotland. The problem of securing jurors for what is expected to be an exceptionally lengthy trial is just one consideration.

In the circumstances I have no difficulty in concluding that at the time the Sunday Times material was published there was no apparent possibility that the petitioners would be tried by jury in Scotland. By their acts they had made it perfectly clear that they did not consider that they could be tried fairly in Scotland. Any opinion that they were facing the prospect of a trial in Scotland would have appeared very speculative and indeed difficult to support. Thus my conclusion is, that at the critical time of publication, the risk that the article and editorial would expose the petitioners to prejudice in the course of trial by jury would have seemed negligible.

The petitioners nevertheless contend that the publication would expose them to prejudice even if the trial took place before three judges. It was said that the terms of the publications were such that the accused and the public could readily believe that the judges trying the case may have been influenced by them. The accused were under the protection of the Scottish Court and were entitled to a trial, that not only was fair, but that appeared to be so. The law of contempt of court prohibited trial by media but that is precisely what the Sunday Times purported to achieve. The article was such as could affect the behaviour of witnesses. The Sunday Times material accordingly was said both to impede the course of justice and to be prejudicial to the petitioners' trial.

In my opinion trial by professional judges is a very different procedure from a jury trial. It has often been stated that professional judges are able to judge cases on the evidence before them and to set aside material, which becomes known to them, but is found not admissible as being incompetent or irrelevant. It is as well that judges generally have this capacity because in Scotland, for example, professional judges, and in particular sheriffs, regularly carry out a great proportion of criminal business and often find themselves in a position where they have to ignore some information incidentally revealed to them. In Schering Chemicals Ltd v. Falkman Ltd [1982] Q.B. 1 it was held that judges would not be influenced by material that may have come to their attention but should not have been before them (in that case a film). In the Phillimore Report (par 49) it was observed that experience will allow a judge to discount what might affect a jury. There have been a number of judicial pronouncements to the same effect in other cases although Lord Bridge stated in Lonrho that a judge would not consciously allow himself to take account of anything other than the evidence and argument (the underlineation is mine). The proper view, I think, is that the possibility of a judge allowing himself to be influenced by extraneous material is generally remote but that the degree of risk, in exceptional cases where it might exist, would revolve round particular facts and circumstances. In the present case the facts are quite exceptional. The case is one which because of the scale of the disaster, and the political potential of the incident, has been marked by an extraordinary degree of media interest and comment. Indeed much of this has been outside Scotland. Thus, even at this point, detailed allegations about the factual circumstances leading up to the fatal explosion are available on internet and a Scottish Court would have no control over most of the published material. It is no doubt because of the massive amount of published comment (which may well be capable of creating prejudice in a juror's mind) that concerns were raised on behalf of the Libyan government and the petitioners, (and indeed acknowledged by the British prosecution authority to the extent that exceptional arrangements were offered for a trial by three High Court Judges sitting in Holland). Thus, assuming that the case does not go to a jury trial, it will be tried by three experienced High Court Judges under an arrangement that was designed to give the petitioners as fair a trial as the Scottish system found it possible to devise. The judges concerned will, by the history surrounding the case, be alerted to the problems of media involvement in the situation. They will give reasons for their conclusions and I think it most unlikely either that any of the material published by the Sunday Times will be in their minds when they sift through the actual evidence, or that if it were, they would allow it to influence their deliberations.

The questions of prejudging the trial and "trial by media" are really the same point although sometimes described in different terms. I have dealt with the views of Lord Bridge in this matter which I respectfully adopt. Nor do I consider that any prejudging of the case against these petitioners would affect the general public respect for the Court. What the Sunday Times printed was not intentionally aimed at usurping the function of the Court but rather was a political comment about Britain's future relationship with Colonel Gadaffi. The trial itself is likely to be exceptionally protracted and no doubt it will attract a lot of publicity. Thus if the public were inclined to form any views about the quality of Scottish justice from this trial it is more likely to be influenced by the manner in which the trial itself is conducted. Equally if the effect of the publicity on the petitioners is being considered, the object of strict liability for contempt of court is to ensure that the petitioners, as other accused tried in Scotland, receive a fair trial. Whether the material complained of was desirable journalism or not, I do not think it will prejudice the outcome of the petitioners' trials. Nevertheless if the petitioners get the impression that newspapers are publicly prejudging their case this could well hurt their feelings. However provided that the trial itself is not impeded or prejudiced they retain their private civil right to protect their reputation if they judge that to have been injured (see L. J-G. Hope in HMA v. Caledonian Newpapers Ltd at p341).

I accept that if there was any risk that the publications objected to could influence or affect the conduct of witnesses then that could impede the course of justice in respect of the trial and could prejudice the petitioners. However, I am not satisfied that such a risk has been shown to exist in this case. We have been given no indication by the petitioners of the nature of any evidence by witnesses who are likely to have read the relevant issue of the Scottish edition of the Sunday Times. From the background circumstances of the case it may well be that the controversial witnesses are foreign. Nor does it appear that the publications complained of contain the sort of detail that might influence a witness. Thus the possibility that the publications would make any difference to the evidence which is given at the trial, in my view is extremely speculative and remote. This is particularly so when the publications are viewed against the compendious press coverage the question of responsibility for the outrage has already received.

The petitioners Counsel relied heavily on the case of Attorney General v. Channel Four Television Co. This was a case in the Criminal Division of the Court of Appeal. The case remains unreported. The relevant judgment was advised on 16 December 1987. The facts of the case were somewhat exceptional. While a trial was still in progress, a television company were proposing to stage a dramatised version of it using professional actors as witnesses. The Attorney General obtained an injunction from the Court of Appeal and on a second application to it the Court of Appeal refused to set it aside. The main objection to the proposed programme appears to have been that to enact with professional actors a trial which is in progress, is inviting the viewing public to take over the function of the Court in a most specific way. As the Lord Chief Justice said in his judgment, a dramatic representation of the trial with witnesses is "pretending to be the real thing" and is "subtly inviting the viewer to sit in the judgement seat". That is quite a different situation from the present case and the first branch of the reasons stated for refusing the appeal is concerned with the due administration of justice. The concern of the court seemed to have been general, rather than confined to prejudice to the accused and the impeding of justice in their particular case. This is not so in the second ground for rejecting the application. The Lord Chief Justice accepted that the programme would not, in normal circumstances, directly affect the judgment of the Court. However, he proceeded to indicate that the appellants were entitled to be assured that the Court has not been influenced by external matters. An appellant in the case might not be so satisfied because "He may harbour doubts, however unjustified these doubts may be, about the effect which the programme may have upon the judgment of the Court". However, as his Lordship in the chair observes, the judgment in Att. Gen. v. Channel 4 Television seems to an extent to be founded on the speech of Lord Diplock in Att. Gen. v. Times Newspapers Limited. I have already referred to the change which the 1981 Act produced on the authority of that case. I thus agree that the authority of Att. Gen. v. Channel 4 Television is to be regarded as doubtful. In any event I find it hard to understand why the course of justice in particular proceedings should be seriously impeded or prejudiced by the view which an accused forms about the proceedings.

I have earlier made reference to the possible existence of a defence to the publishers under section 5 of the 1981 Act. However there are questions as to the applicability of such a defence, particularly if material said to be "incidental" incorporates reference to a trial that is specifically mentioned in the publication. However, given the view I have arrived at as to the absence of adverse affect on the trial of the accused, I need not decide these questions which become academic.

It is to be hoped that the foregoing analysis of the law, and the views expressed in the other judgments, will give some guidance to the media about the future reporting of this trial. It is certainly also to be hoped that the decision in this case will not be taken as a signal that there are no limitations in the reporting of the pending trial. Apart from other considerations, the fact that both petitioners have publicly reserved their claim that they have a right to elect for jury trial, may affect the protection they are entitled to in the situation which has now developed. Moreover, the degree, mode and circumstances of publication which is prima facie injurious to the rights of either petitioner could result in a different assessment of prejudice to that which we have formed in this case. The press have a right to keep their readers informed, but if they show the restraint and fairness which is normally expected from the Scottish press in relation to an accused awaiting trial there should be little difficulty.