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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> PROCURATOR FISCAL, PAISLEY v. JOHN SCOTT and TERENCE MANNERS and RAMSAY SMITH and NORMAN McDONALD and ALAN RUDDOCK and SCOTTISH MEDIA NEWSPAPERS LTD and SCOTTISH & UNIVERSAL NEWSPAPERS LTD and SCOTSMAN PUBLICATIONS LTD and EXPRESS NEWSPAPERS LTD and ASSOCIATED NEWSPAPERS LTD [1999] ScotHC 217 (7th September, 1999)
URL: http://www.bailii.org/scot/cases/ScotHC/1999/217.html
Cite as: [1999] ScotHC 217
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PROCURATOR FISCAL, PAISLEY v. JOHN SCOTT and TERENCE MANNERS and RAMSAY SMITH and NORMAN McDONALD and ALAN RUDDOCK and SCOTTISH MEDIA NEWSPAPERS LTD and SCOTTISH & UNIVERSAL NEWSPAPERS LTD and SCOTSMAN PUBLICATIONS LTD and EXPRESS NEWSPAPERS LTD and ASSOCIATED NEWSPAPERS LTD [1999] ScotHC 217 (7th September, 1999)
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Kirkwood Lord Cowie |
Appeal No: 423/99
OPINION OF THE LORD JUSTICE GENERAL
in
APPEAL TO COMPETENCY AND RELEVANCY
by
PROCURATOR FISCAL, Paisley Appellant;
against
(1) JOHN SCOTT, (2) TERENCE MANNERS, (3) RAMSAY SMITH, (4) NORMAN HUGH McDONALD, (5) ALAN STEPHEN DENNIS RUDDOCK, (6) SCOTTISH MEDIA NEWSPAPERS LTD, (7) SCOTTISH AND UNIVERSAL NEWSPAPERS LTD, (8) SCOTSMAN PUBLICATIONS LIMITED, (9) EXPRESS NEWSPAPERS LTD and (10) ASSOCIATED NEWSPAPERS LIMITED Respondents:
_______ |
Appellant: Bell, Q.C., A.D.; Crown Agent
Respondents: Lord Mackay of Drumadoon, McBryde (1) and (6); Levy & McRae (1) and (6):
N. Boyd (2)-(5) and (7)-(10); Carruthers Gemmell (2); Ballantyne, Kirkwood & France (3)-(5), (7)-(10)
7 September 1999
In 1998 in the Sheriff Court at Paisley there were divorce proceedings between Mr. Robert McIlroy and Mrs. Janet McIlroy. It is alleged by the appellant, the Procurator Fiscal of Paisley, that various newspapers published a report of those proceedings containing particulars other than those permitted under the Judicial Proceedings (Regulation of Reports) Act 1926 ("the Act").
The appellant raised a complaint against the editors and publishers of five newspapers. Since, with one exception, the point which arises is precisely the same in each, Charge 1 may serve as an example:
"[Y]ou JOHN DANIEL SCOTT and you SCOTTISH MEDIA NEWSPAPERS LTD being respectively the Editor and Publisher of the Evening Times Newspaper did on 17 June 1998 in an edition of said newspaper circulating in Paisley and elsewhere in Scotland print or publish or cause to be printed or published a report of judicial proceedings for dissolution of marriage, namely an action for divorce between Robert McIlroy and Janet McIlroy at Paisley Sheriff Court containing particulars other than those permitted by Section 1(1)(b) of the aftermentioned Act, in particular material which was not a concise statement of the charges, defences and counterclaims in support of which evidence had been given;
CONTRARY to Judicial Proceedings (Regulation of Reports) Act 1926 Section 1(1)(b)".
The charge contains a considerable amount of surplusage. For present purposes the important point is that, despite the width of the averments, the only contention actively pursued by the Crown is that the respondents "did ... publish" the relevant report. It is also noteworthy that the basis for jurisdiction is said to be the commission of the offence by publishing the offending particulars in an edition of the newspaper "circulating in Paisley and elsewhere in Scotland".
Even though the Act has been on the statute book for more than seventy years, the researches of counsel have turned up only one reported decision on it, Moynihan v. Moynihan (No. 1) [1997] 1 F.L.R. 59. Unfortunately, the decision does not help to solve the problem in this case. The paucity of decisions is, presumably, a tribute to the effectiveness of the legislation. The origins of the Act have been elegantly described by Lord Simon of Glaisdale in the Ampthill Peerage Case [1977] A.C. 547 at p. 575 B - D:
"My Lords, if ever there was a family, seemingly blessed by fortune, where the birth of a child was attended by an evil spirit bearing a baneful gift liable to frustrate all the blessings, it was the Ampthill Russells. Its curse was litigation. In the early 1920s there were two long hearings in the Divorce Division of the High Court, in the first of which the jury disagreed. Some of the most famous and expensive counsel of the day were briefed for the petitioner, for the respondent and (ultimately) for no less than three named co-respondents. The most private and embarrassing marital intimacies were investigated and extensively regaled to a salacious public; Parliament was apparently so disturbed as in consequence to pass the Judicial Proceedings (Regulation of Reports) Act 1926."
Something of the flavour of the proceedings comes over even in the sober report of the speeches of the Lords of Appeal in Russell v. Russell [1924] AC 687. By a nice irony, the baby whose birth gave rise to the Act, Geoffrey Denis Erskine Russell, was to go on to become the distinguished deputy chairman of Express Newspapers plc.
The origin of the Act in a desire to prevent a salacious public being regaled with accounts of unsavoury details from judicial proceedings is of some importance for present purposes. The charge refers to the newspaper "circulating in Paisley and elsewhere in Scotland" and the complaint was brought by the Procurator Fiscal of Paisley. The Advocate Depute sought to argue that this was particularly appropriate since the divorce proceedings had taken place in Paisley Sheriff Court and the principal harm would be done by circulating the newspapers containing the offending articles in that area. This argument rests on a misunderstanding of the purpose of the legislation: it was not introduced to protect the privacy of those involved in the proceedings but to prevent injury to the morals of those who might read the reports in the newspapers. Not only can one deduce this from the circumstances in which Parliament passed the Act; it can also be seen from its Long Title: "An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals." The same can be seen from Section 1(1) of the Act which I quote along with subsection (2):
"(1) It shall not be lawful to print or publish, or cause or procure to be printed or published -
(a) in relation to any judicial proceedings any indecent matter or
indecent medical, surgical or physiological details being matters or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of
marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:-
(i) the names, addresses and occupations of the parties and
witnesses;
(ii) a concise statement of the charges, defences and
countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of
the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury
(if any) and the judgment of the court and observations made by the judge in giving judgment:
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding five hundred pounds, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act."
Section 1(1)(a) applies to judicial proceedings of any kind and makes it unlawful to publish matters or details "the publication of which would be calculated to injure public morals". This is indeed the dominant provision since the proviso to subsection (1)(b) is designed to ensure that whatever may be published about divorce and similar proceedings is not such as would be calculated to injure public morals in contravention of paragraph (a). The aim of the Act is therefore to prevent injury to public morals throughout Great Britain by the publication of unsavoury matters and details from judicial proceedings, wherever they may be held. Nor is this surprising: in 1963, for instance, newspaper reports of Lord Wheatley's opinion in the Argyll divorce case were devoured just as eagerly in London as in Edinburgh, where the action was heard. Similarly, even though the McIlroys' divorce action was heard in Paisley, Parliament would have been just as much concerned to prevent injury to the morals of readers in Morningside as to prevent injury to the morals of readers in Paisley.
In the court below the Sheriff held that "publication for the purposes of the statute takes place once and that is when the paper is handed over to the wholesaler at [the] point of printing." In the hearing before us the Advocate Depute submitted that the Sheriff had erred and that "the offence of publication involves the circulation for sale of a newspaper within the jurisdiction of the court". He went on to clarify this by arguing that for the purposes of Section 1(1)(b) publication of offending information should be regarded as a continuing offence, beginning at the printing works when the publisher hands the newspapers over to the wholesalers for distribution to retailers, going on when the wholesalers pass the papers to the retailers and still going on when members of the public buy their copies from the retailers. All these are steps which are contemplated and indeed intended by the publishers of the newspapers. Quoting from the article on "Publication; Publish" in Stroud's Judicial Dictionary, the Advocate Depute argued that for these purposes a newspaper is published "whenever and wherever it is offered to the public by the proprietor". Since in this case, through the network of wholesalers and retailers, the publishers had offered the newspapers to the public in Paisley, they had published them in Paisley. There had accordingly been a contravention of Section 1(1)(b) in Paisley and the Sheriff Court there had jurisdiction to deal with the complaint.
The formula in the Judicial Dictionary is based on the decision of Cozens-Hardy J. in McFarlane v. Hulton [1899] 1 Ch 884. The context of the discussion in that case is so far removed from the present one that it could hardly be expected to provide any definitive assistance in construing the terms of Section 1(1)(b) of the Act. In any event, when properly understood, the opinion of Cozens-Hardy J. furnishes no support for the Advocate Depute's argument.
The case concerned an agreement between the plaintiff, the publisher of the Sporting Life, and the defendants, under which the plaintiff bought a sporting title from the defendants and, in return, they agreed not to "print or publish, or cause to be printed or published ... any sporting paper or periodical within ten miles of Bouverie Street," which lies just off Fleet Street. At the time of the agreement the defendants carried on business in Manchester and in Bouverie Street, but they subsequently moved their premises and at the relevant time their London offices were in Fleet Street. The defendants were the owners and publishers of the Sporting Chronicle and the Handicap Book, both of which were printed in Manchester. Parcels of these papers were sent by train to a distributing agent in London who delivered them to the addressees, including the defendants' own Fleet Street office. Between fifty and a hundred copies of the Sporting Chronicle were sent to the office every day and between four and five hundred copies of the Handicap Book every week. These copies were used partly for filing and, to a considerable extent, for sale, mostly, if not entirely, at trade prices. The contention for the defendants was that the Sporting Chronicle and the Handicap Book were both published in Manchester and not in London. Cozens-Hardy J., having observed "It seems to me that a paper is published when and where it is offered to the public by the proprietor", went on to hold that the papers were published in both Manchester and London. His conclusion (at p. 889) was that
"where a newspaper proprietor has two offices one in Manchester and the other in London, at each of which he offers for sale or distribution copies of his paper, the paper is 'published' at each office."
Since the defendants were therefore publishing the two sporting papers at their Fleet Street office, they were in breach of the terms of their agreement with the plaintiff. The plaintiff was therefore granted an injunction to restrain the defendants from publishing the papers there.
Cozens-Hardy J. held that the papers were published at the office in Fleet Street because the defendants offered copies of the papers for sale or distribution there. This reasoning would justify the view that in the present case the Evening Times, for instance, was published at the offices of Scottish Media Newspapers Ltd. in Albion Street in Glasgow where copies of the paper are offered for distribution. The reasoning goes no further, however. The plaintiff focused his attention on the activity in the defendants' Fleet Street office. He did not suggest, for instance, that the defendants were publishing their sporting papers within ten miles of Bouverie Street just because newsagents, having received the papers in parcels from the defendants' Manchester offices, were offering them for sale in, say, Southwark or Baker Street. Therefore his Lordship did not have to consider an argument of that kind. All that one can say is that there is nothing in his opinion to support the view that such sales would have constituted "publishing" for the purposes of the agreement: his decision was based on the defendants themselves offering copies of the papers for sale or distribution. For that reason the case does not support the view that the respondents should be regarded as publishing their newspapers not only at their offices but, say, at the point of distribution by the wholesaler in Paisley or in the shops of Paisley.
I am satisfied that the approach of the Crown should be rejected. The terms "publish" and "publication" are capable of a variety of meanings, depending on the context. The court does not need to explore that range of meanings; its task is simply to identify the meaning which those words bear in the Act. In that context it appears to me that an editor or publisher publishes a newspaper at the point where it has been printed and the publisher offers it for sale or distribution. The publisher may allow members of the public to come to the premises and buy copies hot off the press. Most of the copies will, however, be put into the wholesalers' vans and will be driven off for distribution throughout the areas where the paper circulates. By this stage the papers have been published and, where they contain offending particulars, the offence has been committed. For what it may be worth, that construction appears to me to be consistent with the conclusion in McFarlane that the papers had been published in the defendants' Fleet Street office. It is unnecessary to decide how the Act would apply in a situation where the proprietor offers papers for sale or distribution at two points.
More to the point, this construction is consistent with the statutory aim of preventing the publication of reports which would be calculated to injure public morals: the aim must be to prevent any publication of newspapers containing such reports and so the bar on publication must be breached and the offence committed as soon as the newspapers are offered for sale or distribution. Since the bar has been breached and a punishable offence has been committed at this stage, the legislation is effective if a prosecution can be based on what has occurred at this point. There therefore seems to be no reason why Parliament should have intended the subsection to cover any later stage in the distribution process when it is being carried on by others. Moreover, this construction makes the provision easy to apply, whereas the construction favoured by the Advocate Depute introduces considerable complexities, not least in determining the exact circumstances in which a publisher would be held to be committing a crime through the actings of an independent wholesaler.
I also find support for this view in the proviso to subsection (2). The offence is couched in wide terms, "If any person acts in contravention of the provisions of this Act...", but in the proviso the draftsman cuts them down by saying that no person other than a proprietor, editor, master printer or publisher is to be liable. This excludes any distributor, wholesaler or retailer of the newspapers containing the offending particulars. It is a reasonable inference that in enacting the offence Parliament was concerned, not with the stage when the papers are in the hands of such people, but with the stage when they are still in the hands of the proprietors, editors, master printers or publishers. It is by offering the papers for sale or distribution at this initial stage that the editors or publishers "publish" the offending particulars and so commit the offence - indeed it is not easy to see how an editor could properly be made criminally liable by subsequent actings of the wholesalers and others.
The Advocate Depute sought support for his construction from the wide definition of publishing in Section 1(3)(a) of the Obscene Publications Act 1959, in terms of which a person "publishes" an article if he
"distributes, circulates, sells, lets on hire, gives, or lends it, or...offers it for sale or for letting on hire...."
So far from supporting his case, this provision tends to undermine it. The Obscene Publications Act is designed to catch anyone - from a major distributor down to a private individual - who publishes an obscene article and, by using this extensive definition, Parliament has deliberately cast its net far and wide. As I have just noted, in the 1926 Act, by contrast, Parliament has deliberately restricted the circle of offenders. A narrow interpretation of what is meant by publishing tends to support that approach.
At the outset I indicated that one of the cases is slightly different. Charge 4 is directed against the editor and publishers of the Paisley Daily Express. Counsel for these respondents accepted that at the relevant time the Paisley Daily Express claimed that it was published at 14 New Street, Paisley, although in fact, he told us, it was printed at premises in Blantyre and distributed from the same premises. He recognised that, if Charge 4 had been amended to aver that the paper had been published at 14 New Street, Paisley, he would not have been able to argue that Paisley Sheriff Court did not have jurisdiction. Although the Assistant Procurator Fiscal had raised the possibility of such an amendment before the Sheriff, the charge had not in fact been amended. Before this court the Advocate Depute made no motion to amend. In that situation it appears to me that the editor and publishers of the Paisley Daily Express should be treated on the same basis as the other respondents. And indeed the Advocate Depute did not ask us to adopt a different approach in their case.
For these reasons I agree with the decision and indeed with the general approach of the learned Sheriff. If any offences were committed by the respondents, they were committed when the papers were offered for sale or distribution at the publishers' relevant works or offices. They were not committed at the stage when the papers were circulating in Paisley; there is accordingly no basis for the Sheriff Court at Paisley having jurisdiction to try the alleged offences. I move your Lordships to refuse the appeal.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Kirkwood Lord Cowie |
Appeal No: 423/99
OPINION OF LORD KIRKWOOD
in
APPEAL TO COMPETENCY AND RELEVANCY
by
PROCURATOR FISCAL, Paisley Appellant;
against
(1) JOHN SCOTT, (2) TERENCE MANNERS, (3) RAMSAY SMITH, (4) NORMAN HUGH McDONALD, (5) ALAN STEPHEN DENNIS RUDDOCK, (6) SCOTTISH MEDIA NEWSPAPERS LTD, (7) SCOTTISH AND UNIVERSAL NEWSPAPERS LTD, (8) SCOTSMAN PUBLICATIONS LIMITED, (9) EXPRESS NEWSPAPERS LTD and (10) ASSOCIATED NEWSPAPERS LIMITED Respondents:
_______ |
Appellant: Bell, Q.C., A.D.; Crown Agent
Respondents: Lord Mackay of Drumadoon, McBryde (1) and (6); Levy & McRae (1) and (6):
N. Boyd (2)-(5) and (7)-(10); Carruthers Gemmell (2); Ballantyne, Kirkwood & France (3)-(5), (7)-(10)
I am in full agreement with the opinion of your Lordship in the chair and there is nothing I can usefully add.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Kirkwood Lord Cowie |
Appeal No: 423/99
OPINION OF LORD COWIE
in
APPEAL TO COMPETENCY AND RELEVANCY
by
PROCURATOR FISCAL, Paisley Appellant;
against
(1) JOHN SCOTT, (2) TERENCE MANNERS, (3) RAMSAY SMITH, (4) NORMAN HUGH McDONALD, (5) ALAN STEPHEN DENNIS RUDDOCK, (6) SCOTTISH MEDIA NEWSPAPERS LTD, (7) SCOTTISH AND UNIVERSAL NEWSPAPERS LTD, (8) SCOTSMAN PUBLICATIONS LIMITED, (9) EXPRESS NEWSPAPERS LTD and (10) ASSOCIATED NEWSPAPERS LIMITED Respondents:
_______ |
Appellant: Bell, Q.C., A.D.; Crown Agent
Respondents: Lord Mackay of Drumadoon, McBryde (1) and (6); Levy & McRae (1) and (6):
N. Boyd (2)-(5) and (7)-(10); Carruthers Gemmell (2); Ballantyne, Kirkwood & France (3)-(5), (7)-(10)
I have had the opportunity of reading the Opinion of your Lordship in the chair with which I concur. I agree that this appeal should be refused, and have nothing to add.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Kirkwood Lord Cowie |
Appeal No: 423/99
OPINION OF LORD KIRKWOOD
in
APPEAL TO COMPETENCY AND RELEVANCY
by
PROCURATOR FISCAL, Paisley Appellant;
against
(1) JOHN SCOTT, (2) TERENCE MANNERS, (3) RAMSAY SMITH, (4) NORMAN HUGH McDONALD, (5) ALAN STEPHEN DENNIS RUDDOCK, (6) SCOTTISH MEDIA NEWSPAPERS LTD, (7) SCOTTISH AND UNIVERSAL NEWSPAPERS LTD, (8) SCOTSMAN PUBLICATIONS LIMITED, (9) EXPRESS NEWSPAPERS LTD and (10) ASSOCIATED NEWSPAPERS LIMITED Respondents:
_______ |
Appellant: Bell, Q.C., A.D.; Crown Agent
Respondents: Lord Mackay of Drumadoon, McBryde (1) and (6); Levy & McRae (1) and (6):
N. Boyd (2)-(5) and (7)-(10); Carruthers Gemmell (2); Ballantyne, Kirkwood & France (3)-(5), (7)-(10)
7 September 1999
I am in full agreement with the opinion of your Lordship in the chair and there is nothing I can usefully add.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Kirkwood Lord Cowie |
Appeal No: 423/99
OPINION OF LORD COWIE
in
APPEAL TO COMPETENCY AND RELEVANCY
by
PROCURATOR FISCAL, Paisley Appellant;
against
(1) JOHN SCOTT, (2) TERENCE MANNERS, (3) RAMSAY SMITH, (4) NORMAN HUGH McDONALD, (5) ALAN STEPHEN DENNIS RUDDOCK, (6) SCOTTISH MEDIA NEWSPAPERS LTD, (7) SCOTTISH AND UNIVERSAL NEWSPAPERS LTD, (8) SCOTSMAN PUBLICATIONS LIMITED, (9) EXPRESS NEWSPAPERS LTD and (10) ASSOCIATED NEWSPAPERS LIMITED Respondents:
_______ |
Appellant: Bell, Q.C., A.D.; Crown Agent
Respondents: Lord Mackay of Drumadoon, McBryde (1) and (6); Levy & McRae (1) and (6):
N. Boyd (2)-(5) and (7)-(10); Carruthers Gemmell (2); Ballantyne, Kirkwood & France (3)-(5), (7)-(10)
7 September 1999
I have had the opportunity of reading the Opinion of your Lordship in the chair with which I concur. I agree that this appeal should be refused, and have nothing to add.
© 1999 Crown Copyright