Scottish High Court of Justiciary Decisons

KIM LOUISE SCARSBROOK OR GALBRAITH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 86 (7th September, 2000)

[1] The appellant is Kim Louise Scarsbrook or Galbraith who was convicted at the High Court at Glasgow in June 1999 of murdering her husband, Ian Quintin Galbraith. At her trial she admitted killing him but contended that she had been suffering from diminished responsibility at the time and that she should be convicted of culpable homicide only. By their majority verdict the jury rejected that contention.

[2] The appellant has appealed against her conviction of murder on three grounds. The first is to the effect that it cannot be said that she was seen to have a fair trial due to certain publicity during her trial about the extra-professional life of her senior counsel. If successful, that ground of appeal would lead to the conviction being quashed, but her counsel before this court, Miss Scott, anticipated that the Crown would seek authority to bring a fresh prosecution. In her second ground the appellant contends that, on the available evidence, no reasonable jury would have rejected her defence of diminished responsibility and convicted her of murder. Miss Scott said that, if successful, that ground of appeal would lead to the appeal court substituting a conviction of culpable homicide. In her third ground the appellant submits that the trial judge misdirected the jury when he told them that they would have to find that the appellant was suffering from a mental disorder before they could sustain a plea of diminished responsibility. Miss Scott argued that, if successful, this ground of appeal might lead the court either to substitute a conviction of culpable homicide or to grant authority to the Crown to bring a fresh prosecution. She acknowledged, of course, that the third ground of appeal could succeed only if a larger court were convened and decided to overrule Savage v. H. M. Advocate 1923 JC 49 and subsequent authorities such as Carraher v. H. M. Advocate 1946 J.C. 108. The possibility of a retrial if the first or third grounds of appeal were successful has a bearing on the issue relating to reporting with which we are presently concerned and which was argued at a preliminary hearing.

[3] Prior to that hearing the appellant's agents had given notice that counsel would ask the court to pronounce an order under Section 4(2) of the Contempt of Court Act 1981 relating to the reporting of the proceedings in the appeal. Requests for orders under Section 4(2) are by no means uncommon and are frequently made at short notice. Hitherto the media have not been represented when the possible granting of such orders has been under consideration and often the parties to the case have simply agreed that an order should be pronounced. As a result there is little guidance in the Scottish cases on the proper approach to Section 4(2). In that somewhat unsatisfactory situation the court decided to inform the agents acting for various media interests of the motion in this appeal and told the appellant's agents that it had done so. As a result, at the hearing of the appeal, Mr. Jones, Q.C., appeared along with Miss Springham on behalf of a number of newspaper publishers and broadcasting organisations. Especially in view of the fact that the Advocate Depute indicated that the Crown did not wish to make any submissions either on the general approach to be adopted to applications under Section 4(2) or on the particular circumstances of this case, the court was greatly assisted by the submissions advanced by Mr. Jones.

[4] At the outset of the hearing Miss Scott explained that she was seeking an order prohibiting all reporting of the appeal proceedings until the determination of the appeal or, in the event of authority being granted for a fresh prosecution, until the end of the retrial. In making that motion, Miss Scott drew our attention to the fact that the appellant's trial had been widely reported. It is indeed unquestionably the case that the trial attracted far more attention in the media than most murder trials. Among the factors which made the trial particularly newsworthy were, doubtless, the fact that Mr. Galbraith was a police officer, the evidence that the appellant shot him while he was asleep and the fact that she gave evidence that he had subjected her over a long period to various forms of abuse, principally of a sexual nature. In addition, during the trial there was considerable publicity about aspects of her senior counsel's extra-professional life.

[5] Miss Scott made two submissions. The submission upon which she placed the main emphasis took as its starting-point the nature of the press reporting of the appellant's trial and conviction. Miss Scott submitted that, while some of the reporting had been sympathetic to the appellant, for the most part it had been hostile and had given prominence, for example, to comments made by Mr. Galbraith's parents after the verdict. It could be anticipated that, if no order under Section 4(2) were granted, the appeal would be reported in much the same way. There were two aspects to the prejudice which this kind of reporting might cause. First, in view of the comment it might not appear that the appeal court could address the issues in the appeal in an impartial fashion. This might give rise to an issue under Article 6 of the European Convention on Human Rights. But, in addition, the hostile press comment would be likely to be read by those who would serve as jurors at any retrial and this would be liable to affect their ability to judge the issues impartially.

[6] Miss Scott's other submission can be summarised in this way. If the appeal proceedings were reported, this would bring the (somewhat sensational) evidence and events in the case back to the attention of the public, including any members of the public who might be called to serve as jurors in any subsequent retrial. More particularly, since it would be necessary, for the purposes of the argument in relation to the second ground of appeal, for the court to hear submissions on the evidence about the alleged abuse of the appellant and about her actings at the time of the shooting, a report of the proceedings would be likely to draw attention to these matters. This in turn could have an adverse effect on potential jurors' approach to the appellant's credibility - and her credibility as a witness would be crucial in any retrial.

[7] On the basis of both of her submissions, Miss Scott argued that there was a substantial risk of prejudice to the administration of justice in the proceedings and that an order in terms of Section 4(2) should accordingly be pronounced. For the purposes of this motion, we assume that the reporting was indeed unfavourable to the appellant.

[8] As Mr. Jones pointed out, the appropriate place to begin considering these matters is with Section 2(2) of the 1981 Act which refers to the strict liability rule that applies to publications and provides:

Section 4(1) and (2) are to this effect:

1. In any such proceedings the court may, 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, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."

In terms of Section 2(2) a person commits an offence if he publishes something which creates a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced. Section 4(1) then creates an exception to Section 2(2): even though a publication creates a substantial risk that the course of justice will be seriously impeded or prejudiced, none the less the person publishing it does not commit an offence if the publication is simply a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. This exception does not apply, however, where the court has made an order requiring that publication of the report should be postponed and the report is published during the period of postponement.

[9] When Parliament created the presumption in favour of allowing contemporaneous publication of a fair and accurate report of legal proceedings, even though it might have potentially detrimental effects on the proceedings or on certain other proceedings, it was recognising that such reports act as a safeguard "against judicial arbitrariness or idiosyncrasy" and help to maintain public confidence in the administration of justice: Attorney-General v. Leveller Magazine Ltd. [1979] A.C. 440 at p. 449 per Lord Diplock. But this particular benefit to the public and to the administration of justice flows only from reports of the proceedings in court and, moreover, only from reports which are fair and accurate. It is therefore only to such reports that the presumption applies and it is only in the case of such reports that the court needs - and is given by Section 4(2) - a power to require that in an appropriate case publication be postponed in the interests of justice.

[10] When we apply these provisions to the circumstances of this case, we see immediately that any publication which does not simply constitute a fair and accurate report of active court proceedings, such as the present appeal, does not fall within the scope of Section 4(1). Hence, if that publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, the publisher will be in contempt of court by reason of the strict liability rule. As we have explained, the main thrust of Miss Scott's main argument was that, unless a Section 4(2) order were made, the appeal proceedings in this case would prompt a barrage of articles containing comment, from Mr. Galbraith's relatives and others, which would be hostile to the appellant and would poison the minds of any potential jurors in a retrial. It is plain, however, that comment of this kind would go beyond a simple report of the proceedings and so would not enjoy the benefit of the exception in Section 4(1). Accordingly, if such comment did actually create a substantial risk that the course of justice would be seriously impeded or prejudiced, the strict liability rule would apply in terms of Section 2(2). In that event, the court would have power to deal with the matter in terms of Section 2(2) and, in an appropriate case, to punish the publisher. That is the mechanism which Parliament has provided for protecting the course of justice from the effects of publications of that kind. The court's power in Section 4(2) is not intended to be used to deal with such publications but to deal, rather, with reports of its proceedings which are fair and accurate but should none the less be postponed. It would accordingly be an abuse of this particular power to pronounce an order, as Miss Scott urged, not for the purpose of warding off an anticipated consequence of the fair and accurate reporting of the appeal proceedings but for the purpose of warding off prejudicial comment which those proceedings might prompt. For these reasons we reject both aspects of Miss Scott's main submission.

[11] We turn to Miss Scott's other argument, that even a fair and accurate report of the appeal proceedings would give rise to a substantial risk of prejudice to the appellant's right to a fair trial in the event of her appeal being successful and permission being given for a fresh prosecution. This submission presupposes that the retrial is either part of the same proceedings as the appeal or else that it can properly be regarded as being "pending or imminent" in terms of Section 4(2). Miss Scott did not present any detailed argument on this point and the Advocate Depute did not deal with it either. Mr. Jones was unable to cite any authority on the precise point, but he referred us to certain observations in R. v. Horsham JJ. Ex parte Farquharson [1982] 1 Q.B. 762 per Forbes J. at p. 773 and per Shaw L.J. at p. 797. The point is not entirely free from difficulty since, as this court noticed in McPhelim v. H. M. Advocate 1997 S.C.C.R. 87 especially at p. 90 E - G, the exact relationship between the proceedings in which an appeal takes place and any fresh prosecution is not worked out particularly clearly in the legislation. In the absence of a full argument we therefore prefer to say no more than that, if the retrial is not to be regarded as part of the same proceedings, we incline to share the view of Shaw L.J. that the words "pending or imminent" would include "the possible (not necessarily the inevitable) outcome of legal process" ([1982] 1 Q.B. at p. 797 E). We should add that we are aware of cases in which, though the point was not argued, this court has indeed made an order under Section 4(2), covering the appeal proceedings, in view of a possible retrial.

[12] It would be necessary to reach a concluded view on the applicability of Section 4(2) in these circumstances only if we would in any event consider it proper to make the order sought under Section 4(2). In fact, however, we do not consider it proper to do so. The proposed order is in the widest terms, requiring in effect that all reports of any aspect of the proceedings in the appeal should be postponed until after any retrial. An order in these terms would exclude, for instance, any reporting of argument about the proper interpretation of earlier authorities on diminished responsibility in connexion with the third ground of appeal - even though that argument would not be likely to have any bearing on the jury's assessment of the credibility or reliability of evidence in any retrial. Even on the basis of Miss Scott's own submission, therefore, an order preventing the contemporaneous reporting of that aspect of any appeal hearing would not be necessary and so could not be justified by reference to the test set out in Section 4(2). The position might, of course, be different if the appeal court were dealing with prejudicial and inadmissible material such as an appellant's previous convictions. These considerations merely serve to underline the need for the court to consider carefully the scope of any order which it is asked to make and to ensure that it is no wider than is necessary to avoid the relevant risk of prejudice. We refer generally to the comments of Lord Denning M.R. in R. v. Horsham JJ. [1982] 1 Q.B. at pp. 793 - 795.

[13] Even if we examine those parts of the appeal which might relate to the evidence led at the appellant's trial, we see no reason whatever to anticipate at present that a fair and accurate report of the appeal hearing would create a substantial risk of prejudice to the fairness of any possible retrial. This court and courts in other jurisdictions have frequently had occasion to express their confidence - based on accumulated experience over many years - in the ability of jurors, when properly directed, to reach their verdict on the evidence led at the trial unaffected by any extraneous considerations. We refer, for instance, to Ex parte The Telegraph PLC [1993] 1 W.L.R. 980 at p. 987 E - F per Lord Taylor of Gosforth L.C.J., to Cox and Griffiths Petitioners 1998 J.C. 267, especially for the observations of Lord Prosser at pp. 274 H - 275 F, and to Coulter and Montgomery v. H. M. Advocate 16 November 1999, unreported, and the authorities cited there. For the reasons given in those cases, we are confident that, in this case also, jurors who had read and remembered reports of the appeal proceedings would still be able to reach an impartial verdict at any retrial. That being so, there is no basis upon which the court could properly make an order under Section 4(2) in the proposed terms and we must therefore refuse the appellant's motion.

[14] On behalf of the interests which he represented Mr. Jones raised two more general matters. First, he pointed out that, at present, orders under Section 4(2) were pronounced without there being any opportunity for the media to make representations to the court. Prima facie it appears to us that the media have a substantial interest in the making or refusal of such orders and in their scope. We note that for England and Wales Parliament has recognised this by enacting Section 259 of the Criminal Justice Act 1988, conferring a right of appeal on any person aggrieved by the making of an order under Section 4. Such persons may include the media. Under reference to a passage in the opinion of Farquharson L.J. in R. v. Beck, ex parte The Daily Telegraph (1992) 94 Cr. App. R. 376 at pp. 381 - 382, Mr. Jones suggested that it might be preferable for judges initially to make a temporary order, for, say, two days, in order to give the media an opportunity to make representations before any final order was made. While at first sight attractive, such an approach could give rise to practical difficulties if the temporary order were made at the end of proceedings, or of a particular stage in proceedings, and the court would have to be reconvened simply to deal with the representations on behalf of the media. The Advocate Depute, who had not had notice of this particular matter and who was therefore not in a position to make any considered submissions about it, urged us not to rule on the point in this case. Therefore, we do not do so and merely draw attention to the matter, which is of some considerable importance.

[15] Mr. Jones's second point was that it is not always easy for the media to discover when orders have been made under Section 4(2). This is obviously important since the purpose of making such orders is to assist not only the parties but also the media by letting them know which parts of the proceedings they cannot report contemporaneously. The orders will fail in their purpose if the media are not aware of them. Referring this time to a passage in the opinion of Mann L.J. in Attorney General v. Guardian Newspapers (No. 3) [1992] 1 W.L.R. 874 at p. 882 F - G, Mr. Jones suggested that the court might adopt the practice of faxing the terms of any orders to the Press Association. Adopting that suggestion - perhaps in a modernised version involving e-mail - might help to ensure that the existence and terms of such orders became better known. We think it right to point out, however, that there is already a system for publishing the names of cases in which Section 4(2) orders are in force in the court announcements section of the Scottish Court Service website. The aim is to publish the details as soon as possible after the making of the order. While some orders may fail to be published due to an oversight, the website is the obvious place for journalists and others to look when trying to discover whether an order applies to the proceedings in any particular case.