Scottish High Court of Justiciary Decisons

[1] In this case, the panel faces an indictment containing allegations of assault, sodomy and murder. The trial commenced on Tuesday 18 September 2001. At the conclusion of proceedings on the first day of the trial, senior counsel for the panel brought to my attention certain material which he stated was a matter of concern. He explained that it was material which had been downloaded from an Internet Website that day. The material consisted in an article from a publication entitled "Garry Otton's Scottish Media Monitor". My attention was drawn particularly to page 11 of the article concerned, which dealt with media treatment of the panel. In that part of the article, there were critical references to the sexual behaviour of the panel and, in particular, a reference to the circumstances of a previous conviction of the panel for assault. There was also a reference to a previous conviction of the panel for murder in England, which was quashed on appeal. Senior counsel for the panel submitted that it was plain that the material concerned was not "a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith" relating the present trial. He submitted that it constituted a prima facie contempt of Court. It was calculated to prejudice the position of the panel in his trial. Senior counsel for the panel stated that, if the material remained on the Website concerned, he would be moving the Court for the publishers of this material to be summoned before the Court. Thereafter the Court adjourned.

[2] On 19 September 2001, the Advocate Depute responded to the issues raised on the previous day by senior counsel for the panel. He accepted that some of the material which appeared on page 11 of the printout from the "Scottish Media Monitor" was inappropriate. He considered that it would be possible to identify the Internet service provider through which this material appeared on the Internet, although that had not yet been done. He observed that that publication appeared to be dated February 2000, although it was still accessible. The Advocate Depute indicated that he had conducted an experiment by initiating a search of Internet materials related to the name "William Beggs". While a considerable amount of material was produced in response to this search, the "Scottish Media Monitor" did not appear. It was therefore unlikely that any juror would succeed in finding that material under reference to the name of the panel.

[3] Senior counsel for the panel next indicated that he had a number of submissions to make. He contended that the material which he had produced the day before was plainly of such a nature that, if it came to the attention of any juror, the result would be that it would be impossible for the panel to have a "fair trial" before an "impartial tribunal", within the meaning of Article 6 of the European Convention on Human Rights. However, he was able to report that the "Scottish Media Monitor" no longer contained the material complained of. In these circumstances he was content that nothing more should be done concerning that matter at the present stage.

[4] Senior counsel for the panel then proceeded to bring to my attention a bundle of further material, which had been downloaded from the Internet. Among this material were to be found articles from the Website of the "Guardian" newspaper, which contained material of an inappropriate nature, including references to the previous convictions of the panel and also to the previous conviction for murder of the panel, which had been quashed on appeal. In addition, in those articles, the panel was described in highly prejudicial and inappropriate terms. The material also contained extracts from an Internet publication entitled "Gay Today", emanating from the United States of America. It also referred to the panel in highly prejudicial and inappropriate language. Reference was made also to material appearing in the Website of the "Sunday Times" newspaper which referred to the panel in highly prejudicial and inappropriate terms, making reference to his previous convictions and, in particular, to his previous conviction for murder which was quashed on appeal. This material referred to the panel as the "gay ripper". It was the contention of senior counsel for the panel that this material was "published" every day that it appeared on the relevant Website. Reference was also made to material from the Website of the "Sunday Herald" newspaper. Against this background, senior counsel for the panel argued that there were a number of problems created by the material to which he had drawn attention. Firstly, the previous convictions of the panel had been disclosed, including one which had been quashed. Secondly, the published material contained references to the character of the panel, which would plainly not be admissible in the present Court proceedings. Thirdly, much of the material was of a highly sensational and irrelevant nature, which would be bound to have an impact on the reader. An example of that was the suggestion that the panel was in some way comparable to Fred West, a multiple murderer. Fourthly, it was quite obvious that the material concerned was not "a fair and accurate report of legal proceedings" within the meaning of section 4(1) of the Contempt of Court Act 1981, in respect that no references of the kind concerned had been made in any evidence which the Court had, so far, heard. Fifthly, if the material concerned became available to a jury member, the prejudice so created against the panel could not be cured by any direction given by the Court to the jury. In all the circumstances, there was a serious risk of irremediable prejudice being done to the panel in the present proceedings. While it was recognised that the Court might experience difficulty in exercising control over the publication of material on the Worldwide Web, to the extent that it could exercise control over that publication, it ought to do so.

[5] In the response to the production of the new material which had been placed before the Court, the Advocate Depute said that he recognised that there were serious issues of principle involved. There were certain authorities relevant to the situation. He then sought an adjournment with a view to considering the material which had just been produced and presenting a reasoned argument to the Court. I granted that motion.

[6] On 20 September 2001 the Advocate Depute made detailed submissions concerning the material which had been produced the previous day. At the outset he indicated that he was unaware whether any Court in the United Kingdom had considered the question of contempt of Court in relation to material appearing on the Internet. He had been able to find no case bearing directly on that issue. By way of introduction, the Advocate Depute drew attention to the provisions of the Contempt of Court Act 1981. It was clear from section 1 of that Act that the strict liability rule related to "conduct" having a certain effect. Section 2(1) defined "publication", to which the strict liability rule applied. The word "publication" was defined to include "any speech, writing, broadcast or other communication in whatever form, which is addressed to the public at large or any section of the public". It was made clear in section 2(2) that the strict liability rule applied only to a publication which created a "substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced". Section 2(3) enacted that the strict liability rule applied to a publication only if the proceedings in question were active within the meaning of that subsection at the time of the publication. The provisions of Schedule 1 of the Act applied for determining the times at which proceedings were to be treated as active. Reference was also made to the definitions in section 19 of the Act. Looking at these provisions, it was submitted that what was attacked was conduct of a particular nature at a particular and defined time. It was plain from section 2(3) of the Act that a "publication", to which the strict liability rule applied, was presumed to have occurred at a particular "time". The Advocate Depute contended that there was a distinction between publishing and archiving any particular material. The provisions of the Act of 1981 contemplated the application of criminal sanctions in certain circumstances. It was therefore to be supposed that active conduct or behaviour was envisaged at a time when proceedings were active. However, the Advocate Depute conceded that criminal behaviour, in general, might involve a failure to take action.

[7] In order to see whether the Act of 1981 applied to the material under discussion, it was necessary to look at the medium concerned. A Website was created on behalf of an individual or organisation where it was desired to make information available. In order to achieve that, an Internet Service Provider would generally be involved. A server would be provided, containing storage space for the material to be rendered accessible. That having been done, an individual member of the public was then able to access the material, either freely or subject to certain conditions. A Website might be used for a very wide variety of purposes, including the provision of information relating to current affairs. National newspapers and broadcasting organisations had created Websites for that purpose. Websites were also designed to assist in the function of research. They provided access to historical or academic information, for example, law reports. Whether a Website containing information constituted a "publication" within the meaning of section 2(1) of the Act would depend on the purpose of the Website. The material published in the "Guardian" printout, was dated 19 and 21 December 1999. It was accepted that the material, dated 21 December 1999, from that particular Website, if published in a newspaper when proceedings were active, could constitute contempt of Court. However, in the present case a petition warrant had been obtained only in the evening of 21 December 1999. Accordingly "publication" took place before the proceedings became active. That material was now stored in an archive. It was apparent that, on the day of publication, it was possible to see the material published on that day on accessing the Website. Later, however, it was necessary to use a search facility in order to search the newspaper's archives. In the light of that explanation, it was submitted on behalf of the Crown that it could not be that, by the passive act of storage for nearly two years, the authors of the material could be rendered guilty of a criminal act, simply because a researcher had searched the newspaper archives for information relating to the panel.

[8] The Advocate Depute, by way of illustration of his contention, stated that the Edinburgh Central Public Library stored back copies of national newspapers. In order to access these materials, it was necessary to request a member of the staff to obtain the material concerned. The reader was then furnished with a C.D.Rom or photocopy. He had personally done this, with the result that he had been able to obtain a copy of the "Guardian" story, dated 21 December 1999. It was quite ridiculous to suggest that the Edinburgh Central Public Library might be in contempt of Court by virtue of the storage of such material. Elaborating the position, the Advocate Depute indicated that, in order to obtain the particular newspaper material concerned from a search engine, it was necessary to search for the Website of the newspaper involved and not simply to furnish a key word, such as "Beggs". To equiparate availability with publication, as senior counsel for the panel had done, was erroneous.

[9] It had to be borne in mind that, by virtue of section 2(2) of the Act of 1981, the strict liability rule applied only to a publication which created "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced". It was submitted that, even if the submission relating to "publication" was wrong, no such risk was created by the availability of material in the research archives of newspapers. It was not to be supposed that a member of the jury would be likely to pursue research which would reveal such material, especially in a situation in which he or she had been told that material which came to their notice relating to the case from any source outside the Court was to be ignored. That had been done in the present case at the outset of the proceedings. While it was possible to suppose that, in an extreme case, a jury might find it impossible to accord to an accused person a fair trial, on account of massive publicity, that situation did not exist in this case. Prior to the commencement of the present trial, Lord Wheatley and the Criminal Appeal Court had both considered whether it was feasible for the panel to obtain a fair trial, having regard to the publicity which had already been accorded to the case. They had decided that such a thing was possible in the circumstances. In this connection reference was made to the Opinions of Lord Wheatley and the Criminal Appeal Court in connection with a plea in bar of trial, previously tabled by the panel, which had been repelled by them. There was no Scottish case in which a Court had held that it was impossible for an accused person to have a fair trial, on account of prejudicial pre-trial publicity. The European Court of Human Rights had never made such a decision. In addition to these considerations, the Advocate Depute argued that there were serious practical difficulties in connection with the possibility of holding some person in contempt of Court in respect of the Internet material concerned. It was not clear that the publishers of the information were within the jurisdiction of the Court. Furthermore, the author of the material might well have relinquished control over its use prior to the commencement of the present proceedings.

[10] The Advocate Depute next referred to certain commentaries and authorities. Firstly, he drew my attention to an article by Professor Clive Walker of the Department of Criminal Justice Studies in Leeds, entitled "Cyber Contempt - Fair Trials and the Internet", published in the Yearbook of Media and Entertainment Law, 1997-1998, at pages 3 to 29. In that article, the author drew attention to the difficulties of maintaining the sanction of contempt of Court in relation to Internet publications. Similar views were expressed in Arlidge, Eady and Smith on Contempt, paragraphs 1.143 to 145.

[11] The position of Internet Service Providers in relation to the issue of contempt could be contrasted with that of such providers in relation to defamation. Under section 1(3) of the Defamation Act 1996, it was made clear that a person was not to be considered the publisher of a statement, for the purposes of the Act, if he was involved in the activities described in subparagraphs (c), or (e) of that subsection, which provisions would cover the position of such a service provider. There appeared to be no counterpart to those provisions in the legislation dealing with contempt of Court.

[12] The position of Internet Service Providers in relation to issues of contempt of Court was considered in Contempt of Court, 3^rd Ed. C.J. Miller, at pages 461-462. The view was there expressed that an Internet Service Provider would be likely to enjoy the protection provided by section 3(2) of the Act of 1981, as "distributor". Furthermore, the author contemplated that serious practical difficulties would lie in the way of any attempt to render an Internet Service Provider, or the operator of a Website, liable for contempt.

[13] The Advocate Depute went on to refer to Godfrey v Demon Internet Limited [1999] 4 All.E.R.342, where it was held that, for the purposes of defamation proceedings, the transmission of a defamatory posting from the storage of a news server constituted a publication of that posting to any subscriber who accessed the newsgroup containing that posting. However, having drawn my attention to the case, the Advocate Depute sought to distinguish it from the present one. In particular, the word "publication" possessed a specific statutory meaning under the Defamation Act of 1996. Secondly, in the context of defamation law, no time factor operated, in contrast to the situation in the law of contempt. Thirdly, the facility which had been made use of in the present case differed from that used in the reported case, in respect that in it there was what was described as a "usenet" facility for the exchange of information on a particular subject; that was not comparable to an archive research facility, which was what was involved here. It was apparent that there was an important distinction between the position existing under the law of defamation and that which related to contempt of Court. In a question relating to the latter, the important issues were, firstly, whether there had been a publication of objectionable material and, secondly, whether the publication was made at a time when the proceedings in question were active.

[14] Summarising his position, the Advocate Depute submitted that none of the material complained of constituted "publications" at a time when the present proceedings were active. Accordingly, the strict liability rule did not apply to them in consequence of the provisions of section 2(3) of the Act of 1981. Secondly, even if the material complained of constituted "publications" at a time when the present proceedings were active, it did not create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced", in terms of section 2(2) of the Act of 1981. In connection with this second submission the Advocate Depute referred to Arlidge, Eady & Smith at paras.4.79-4.82 and to the case there quoted of the Attorney General v M.G.N. Limited [1997] 1 All.E.R.456, at pages 461-462. Applying the principles set out by Schiemann, L.J. in the case mentioned, it was necessary to assess the likelihood of the publication concerned coming to the attention of a potential juror. In the present case it was wholly a matter of speculation as to whether any of the material might come to the attention of a juror. A juror would require to undertake the search of newspaper archives in order to access the material. The likelihood of such an exercise being undertaken was extremely remote.

[15] In reply, senior counsel for the panel recognised that the issue was difficult and novel. What was of concern to him and what underpinned the approach of the Crown was the view that, in the face of modern technology, the Courts would retreat. In Contempt of Court, 3^rd Ed. by C.J. Miller, at page 462 in para.9.71, the view was expressed that modern systems of communication would pose formidable problems for maintaining an effective law of contempt. It was a matter of regret that such a view was accepted.

[16] Turning to the issue of "publication" within the meaning of section 2 of the Act of 1981, it was plain that the nature of a "publication" must vary according to the circumstances and the material concerned. A "publication" might be constituted by a broadcast lasting a matter of seconds, which thereafter was gone. However, it might be constituted by material in a national newspaper, which might be published over a protracted period of time. Furthermore, material which might originally be innocent, might become objectionable on account of a change of circumstances. For example, a biography of the panel might have been published prior to the commencement of the present proceedings containing full details of his former life. There could be no criticism of such a publication. However, if a second print run had been undertaken after the present proceedings became active, that would have been objectionable, albeit that the book was already in the public domain. The publication of details of the previous convictions of an accused person in a newspaper during a trial would plainly be objectionable and a contempt, even though members of the public would require to buy the newspaper in order to read the material concerned. Equally, they would require to switch on a radio or television receiver in order to hear or see the contents of a broadcast. The use of a computer was no different. The device required to be switched on, but thereafter it could give access to any material published on the Internet. If material appeared on the Internet, it was submitted that it was published every day that it was accessible. It would not do for a publisher of material on the Internet to say that the material was published only when it first appeared and that subsequently it was archive material. In certain circumstances, it was possible to purchase back issues of newspapers. It would be no defence to the publisher of a newspaper in connection with an issue of contempt to say that the publication occurred at some time when its contents were innocuous. It would be published at any time when it could be bought. The case of Godfrey v Demon Internet Limited, although concerned with defamation, tended to support the submissions made on behalf of the panel.

[17] In the present case, the "Guardian" and "Sunday Times" newspapers quite legitimately published the material involved at a time when that act was not objectionable. That published material had been made available in electronic form and remained available at a time when its contents were objectionable. Thus the attempt to argue that the material had become part of an archive and hence was not being published, was without substance.

[18] Turning to the question of whether there existed "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" by the material concerned, in terms of section 2(2) of the Act of 1981, it was plain that there could come a point at which the published material was so detrimental to the interests of an accused person that a fair trial might become impossible. There could never be actual proof of the "poisoning" of the "well of truth". In Atkins v London Weekend Television 1978 J.C.48, the Lord Advocate had decided not to continue with a prosecution on account of prejudicial publicity. The Crown's position in reality was that there could never be publicity so bad that remedial action would be ineffective. That degree of trust in the jury system was misplaced. Because of the confidentiality of the jury room, the issue of prejudice could never be the subject of proof. Judgments had to be made. Part of the risk for the panel in the present case was that there had been, at a very early stage after the death of the now-deceased, enormous and prejudicial publicity. The finding of the body parts of the now-deceased had been treated in a completely sensational way by the media. In these circumstances there was a substantial and justifiable fear that the memories of jurors might be revived by the material complained of. The notion that jurors would be unlikely to conduct a search on the Internet which would produce this material was unrealistic. A large proportion of members of the public surfed the Internet regularly.

[19] Summarising his position, senior counsel for the panel submitted that the documents concerned were a "publication" at a time when the present proceedings were active. There was a substantial risk that the course of justice in the present proceedings would be seriously impeded or prejudiced. The steps necessary to access the material were not formidable; in addition, the use of the Internet was widespread and increasing; it had become quite a normal activity for many people. In all of these circumstances there existed a prima facie contempt of Court in consequence of the material concerned. The appropriate persons should be summoned to appear before the Court. So far as the "Scottish Media Monitor" was concerned, the objectionable material had now been withdrawn.

[20] In a context in which I have been asked to conclude that the material placed before the Court constitutes a prima facie contempt of Court, it is a matter of agreement that the issue has to be considered in the light of the provisions of the Contempt of Court Act 1981 relating to the strict liability rule. Apart from the possible operation of that rule, there is plainly no basis for the conclusion that a contempt of Court may have occurred. That being so, the first question which I must consider is whether the material brought to my attention is material to which the strict liability rule could apply. Section 2(1) of the Act of 1981 enacts as follows:

In terms of section 19 of the Act, the word "publication", with an exception which is of no relevance here, is defined as having the meaning assigned by section 2(1). As can be seen from the terms of that subsection, the definition which it contains does not bear to be comprehensive. In these circumstances, it appears to me appropriate to consider the general meaning of the word. I would understand that it can be used in two senses. Firstly, the word "publication" may signify the action of making something publicly known, or issuing or offering something to the public. Secondly, the word may properly be used in the sense of signifying a work of some kind which has been published. I conclude from the terms of the subsection that the word is used there in this second sense. Proceeding upon that basis, it appears to me indisputable that the material involved here must be regarded as a "publication" or "publications" within the meaning of the subsection. On any view of the matter, the material accessible on the Websites involved, in my opinion, must fall within that part of the definition in section 2(1) which includes the words "writing ... or other communication in whatever form, which is addressed to the public at large or any section of the public". Plainly the Websites concerned have been created with a view to the communication of information to the public, or at least a section of it.

[21] Section 2(3) of the Act of 1981 provides:

Section 2(4) of the Act provides:

Turning to examine the provisions of Schedule 1 to the Act, it is provided in paragraph 3 that, subject to the following provisions of the Schedule, criminal proceedings are active from the relevant initial step specified in paragraph 4 until concluded as described in paragraph 5. Paragraph 4 provides that:

It was a matter of agreement before me that, in the present case, a petition warrant was issued in the evening of 21 December 1999 for the arrest of the panel. Accordingly, the proceedings in the present case were active from that moment onwards and remain so.

[22] In order to decide whether the requirements of section 2(3) of the Act of 1981 have been satisfied in the present case, it is necessary to consider the meaning of the expression "the time of the publication", used in that subsection. In my opinion, in considering that matter, attention must be focused upon the first sense of the word "publication", which I have set out above, that is to say the action of making something publicly known, or the issuing to the public of some work, that is to say an event which takes place at some particular moment. In the course of the argument before me, two different interpretations of the expression were advanced. The position of the Advocate Depute on behalf of the Crown was that the "time of the publication" referred to the moment when the material in question first appeared on the relevant Website. Thereafter, although that material continued to be accessible on that site, the moment of publication had passed and the material had to be seen as part of the contents of an archive of material previously published. The alternative view, advanced on behalf of the panel, was that the expression "the time of the publication" was capable of referring to a period of time during which the material was accessible on the Website, commencing with the moment when it first appeared and ending when it was withdrawn. During that whole period, the material was accessible to members of the public and ought to be regarded as being published throughout. I have reached the conclusion that the interpretation of the words concerned advanced on behalf of the panel is to be preferred. It appears to me unrealistic to make a distinction between the moment when the material is first published on the Website and the succeeding period of time when it is available for access on demand by members of the public. It appears to me that the better view is that the situation affecting the Website may be compared with a situation in which a book or other printed material is continuously on sale and available to the public. During that whole period, I consider that it would be proper to conclude that that material was being published. The Advocate Depute suggested that the view advanced on behalf of the panel was not consistent with the use of the word "conduct" in section 1 of the Act of 1981. With that view I disagree; it appears to me that the action of the publishers in maintaining the availability of material on a Website throughout a period of time may properly be described as their "conduct".

[23] I have considered the decision of Morland, J. in Godfrey v Demon Internet Limited in this connection. While I recognise at once that that case was concerned, not with the law relating to contempt of Court, but rather with the law of defamation, which involves a different statutory regime, it appears to me that some support for the view which I have formed may be derived from it. It was there held that the transmission of a defamatory posting from the storage of a news server constituted a publication of that posting to any subscriber who accessed the news group containing that posting. On that view, the publication of material stored in a server would be published whenever accessed by a member of the public. If I am correct in the conclusion which I have formed, then it is plain that the material which has been brought to my attention is material to which the strict liability rule could apply in terms of section 2(3) of the Act of 1981, since the proceedings concerned have been active "at the time of the publication".

Section 2(2) of the Act of 1981 provides:

Accordingly, before I could conclude that there exists a prima facie case of contempt of Court based upon that material, it would be necessary for me to be able to reach the conclusion, on a prima facie basis, that the material concerned had created such a risk. In this connection it appears to me that the observations of Schiemann L.J. in the Attorney General v M.G.N. Limited are of some assistance. In that case, at pages 461-462 he set out the principles which he conceived governed the assessment of the risk of prejudice in the application of the strict liability rule, which he described as being not the subject of serious dispute. His observations there were as follows:

[24] The terms of these observations, to my mind, indicate that they were framed having in mind publications taking the form of printed material, such as newspapers, magazines, books, and similar material. Furthermore, some of the factors to which reference is made involve the assumption that the time of publication has been prior to the time of the trial concerned. Nevertheless, recognising these circumstances, it does appear to me that certain parts of the observations are of assistance, in that they refer to factors which are capable of applying to material on an Internet Website as much as they apply to printed material. Among these factors it appears to me is the likelihood of the publication coming to the attention of a potential juror, or indeed an actual juror. It is plainly difficult to form any completely reliable view concerning that matter in this or any other case. I recognise immediately that the use of computers by members of the public to access Websites is relatively commonplace, although not as commonplace as reading newspapers, magazines etc.. However, in this connection, it is necessary, in my view, to take account of the manner in which the material concerned is now available. As was pointed out by the Advocate Depute, the material concerned was originally published in December 1999 and, although still accessible, is accessible only in the form of archive material forming part of the information available at the Websites of the publications concerned. It appears to me that the availability of the material as part of an archive, as opposed to part of a current publication renders it less likely that it may come to the attention of a juror than would be the case if it formed part of a contemporaneous publication. Furthermore, I was informed by the Advocate Depute that the material concerned would not be likely to be accessed by the insertion of the name of the panel in a search engine. In order to access it, it would be necessary to obtain access to the Website of the newspaper, or other publication which contained the material. Thus, an individual undertaking a random search using the name of the panel as the basis for it, would not be likely to access the material.

[25] Among the other factors referred to by Schiemann L.J. is the focusing effect of listening over a prolonged period to evidence in a case. It appears to me that in the circumstances of the present case this is a factor of some importance. Furthermore, he considered that an important consideration was the likely effect of the judge's directions to a jury. Likewise, I consider that this is a matter of great importance. At the commencement of the present proceedings I took pains to direct the jury that their ultimate decision would require to be based upon the evidence which they heard in the Court proceedings, and not upon any extraneous matter which might come to their attention. In due course, that direction will be repeated when the time comes for me to charge the jury. I have no reason to suppose that the jury in the present case will not follow that direction. The system of trial by jury depends upon confidence being placed in juries to follow directions which they are given.

[26] In the light of the foregoing circumstances and considerations, the conclusion which I have reached is that the material drawn to my attention by senior counsel for the panel has not been shown to be material which would create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." Accordingly, I am not persuaded that there has been demonstrated a prima facie contempt of court caused by that material. In these circumstances I refuse the motion made to me to order the publishers of the material to appear at the bar of the Court.