Respondent: McBride, Q.C. ; J.P. Mowberry, Solicitors, Glasgow

Crown: Ogg, Q.C, A.D.; Crown Agent

Liberty: Sheldon, Advocate; Brodies, Solicitors, Edinburgh

1 July 2008

The background circumstances
[1] On 17 September 2007, at the High Court in Glasgow, Mohammed Atif Siddique was found guilty after trial on charges which libelled that:

(1) between 1March 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire; Ibrox Public Library and Glasgow Metropolitan College, both Glasgow, at Glasgow Airport, Renfrewshire and elsewhere to the Prosecutor unknown, you did possess articles in circumstances which give rise to a reasonable suspicion that your possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism namely computers, computer files, video files, pictures and sound files and other files; a memory card containing computer files; mobile phones containing files and photographic images; a number of CDs and floppy discs containing computer files and audio files, video files and word documents depicting amongst other things terrorist propaganda, instructions and information on making bombs, the use of various weapon systems, terrorist and guerilla tactics, surveillance techniques, suicide and sacrificial operations and terrorist training camps: CONTRARY to the Terrorism Act 2000, Section 57(1) as amended;

...

(3) on various occasions between 1 September 2003 and 30 September 2005 at Glasgow Metropolitan College, Glasgow you did conduct yourself in a disorderly manner and did show to various students there images of suicide bombers and images of the murder and beheading of persons by terrorists, threaten to become a suicide bomber and carry out acts of terrorism in Glasgow or elsewhere, ...place said students ...there in a state of fear and alarm and commit a breach of the peace;

(4) between 1 September 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire, Ibrox Public Library and Glasgow Metropolitan College, Glasgow and elsewhere to the Prosecutor unknown you did provide instruction or training in the making or use of firearms and explosives by means of the Internet in that you did set up, manage and control web sites namely www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to documents providing instructions on how to operate various weaponry and to make explosives and further, containing links to other web sites containing similar documents: CONTRARY to the Terrorism Act 2000, Section 54(1) as amended; and

(5) on 13 April 2006, at 4 Myretoungate, Alva, Clackmannanshire, and elsewhere to the Prosecutor unknown you did distribute or circulate terrorist publications by means of web sites previously set up by you namely www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to terrorist publications with the intention that the effect of said distribution and circulation be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or the provision of assistance in the commission or preparation of such acts or you were reckless as to whether your conduct had an effect abovementioned: CONTRARY to the Terrorism Act 2006, Section 2(1)."

The verdicts on charges (1) and (3) were by a majority. The verdicts on charges (4) and (5) were unanimous. Following conviction, the case was adjourned for sentence to a sitting of the court on 23 October 2007 in Edinburgh. On that date, the panel was sentenced to six years' imprisonment on charge (1), backdated to 13 April 2006, when he had first been arrested. On charge (3) he was sentenced to a period of six months' imprisonment, to run concurrently with the sentence imposed on charge (1). Consecutive to the sentence on charge (1) but concurrently with each other, sentences of two years' imprisonment were imposed on charge (4) and one year's imprisonment on charge (5).

[2] Soon after the conviction of the panel on 17 September 2007, the respondent, who had been the panel's solicitor in connection with his trial, read a statement outside the court building in the presence of members of the public and journalists. The making of this statement was televised. The statement was in the following terms:

[3] Contemporaneously with the making of the foregoing oral statement a press release was issued by the respondent. It was in the following terms:

Young Muslims today live in a climate of fear no different to that experienced by the Irish community in the last century. There are two questions that remain unanswered: Why websites based in the United States full of hatred (such as those of the chief Crown Expert Evan Kohlmann - www.globalterroralert.com) are allowed to operate? and why are young Muslims looking for answers to the horrors of Iraq, Guantanamo and Palestine on radical websites?

Since the Prevention of Terrorism Acts of the 1970s terror laws have done little to ensure that we are safe from terrorist attack, but much to infringe the human rights and civil liberties of those living in the UK. Terrorism can and must be fought without sacrificing our human rights.

Repression and injustice, and the criminalisation of communities make us less safe, not more. They act as a recruiting sergeant to extremism and marginalise those whose engagement is vital to the effective fight against terrorism. The sensational and biased reporting of this case breached the most important principle of justice - that people are innocent until proven guilty. This is not a way to isolate extremism but only encourage it.

Atif Siddique states that 'he is not a terrorist and is innocent of the charges, that it is not a crime to be a young Muslim angry at global injustice.'

The prosecution was driven by the State, with no limit to the money & resources used to secure a conviction in this case, carried out in an atmosphere of hostility after the Glasgow Airport attack and ending on the anniversary of 9/11. In the end Atif Siddique did not receive a fair trial and we will be considering an appeal."

[4] During the evening of 17 September 2007, the respondent gave an interview on television in the BBC programme Newsnight Scotland. We have had the benefit of reading a transcript and seeing a video recording of that interview. During its course, the respondent repeated many of the things said in the press release quoted above. In some instances, the language used was virtually identical to that used in the press release. In addition, he stated that there had been no explosives, there were not bombs, there were not bullets and the panel had been convicted practically of "thought crime". He claimed that none of the materials possessed by the panel had been useful to a terrorist; it was more in the nature of propaganda, which was lawful in a free society. The images which the panel had displayed were of the same nature as could be seen on the television news. The kind of things which had been said by the panel, which were the basis of charge (3) in the indictment, were the kind of things said by young people frequently in discussion.

[5] The respondent was asked about what might be the repercussions of the imposition of a long sentence upon the panel. He replied in this way:

[6] Following upon the events of 17 September 2007, the trial judge instructed the writing of a letter to the respondent, dated 11 October 2007, in the following terms:

[7] In his report to this court, the trial judge explained that the purpose of the foregoing letter was to afford the respondent an opportunity to make such submissions as he wished before he, the trial judge, considered taking any further action. By the time of the hearing on 23 October 2007, the trial judge had determined that he should first proceed to sentence the panel, so as to avoid any prejudice to that process as the result of anything said on his solicitor's behalf. At that hearing, the respondent was represented by counsel. It was said then that the content of the press release, which he accepted had been issued by him, was intended to be the words of the panel. It was not intended to be a wilful challenge to the Court's authority and that, if any disrespect had been shown, then he tendered his apologies. On that occasion it was submitted to the trial judge that the content of the press release did not constitute a contempt of court, because the statement, taken as a whole, did not challenge the authority of the court. A contrary finding would amount to an infringement of the right to freedom of speech of the respondent. It was also submitted that, if a finding of contempt of court were to be contemplated, the case ought to be remitted to another judge for consideration. Finally, it was submitted that, before proceeding further, the court ought to ascertain the views of the Crown.

[8] On behalf of the Crown the Advocate depute then stated that the Crown would not be initiating any action in the case, standing the fact that the remarks in question had been made after the completion of the trial. However, that was not to say that the Crown were content that remarks such as those in the press release could be made with impunity. Rather it was a matter for the court as to whether to proceed further. If it did, then the Crown would assist in the process by ingathering and presenting the relevant evidence at a hearing by way of proof, or otherwise.

[9] Following that hearing, the trial judge decided that, since the statements made by the respondent might appear to be a criticism, not only of the jury, the prosecutor and a witness, but also of his own conduct of the trial, he would remit the matter for the determination of the High Court in Edinburgh; any procedure or hearings to be presided over by a judge other than himself. He expressed the opinion that, in the light of the issues of principle which seemed to be involved, it might be appropriate for three judges to deal with the matter. Thus the remit has come before this court. Following the making of that remit, a procedural hearing was held before us on 7 December 2007, at which the preparations necessary for the hearing itself were settled. That hearing took place before us on 29 April 2008.

[10] Prior to that hearing, the court received an application from solicitors acting for Liberty, formerly the National Council for Civil Liberties. Liberty is a company limited by guarantee. It is a non-party political campaigning organisation dedicated to the promotion of respect for civil liberties and human rights. Liberty sought leave to provide the court with a submission in a form analogous to that which could be made under the third party intervention procedure available in England and Wales. It considered that this case raised issues of general public importance and sought to assist the court by presenting submissions on the relevant parts of domestic and European Court of Human Rights case law. In particular, it wished to make submissions on the compatibility of the law of contempt of court with Article 10 of the European Convention on Human Rights and Fundamental Freedoms, "the Convention". The submissions would also involve consideration of whether or not the law ought to distinguish between the conduct of a member of the legal profession and a member of the general public. It was said on behalf of Liberty that it had intervened in more than 40 cases in the European Court of Human Rights and in the domestic courts of England and Wales.

[11] Having considered the very unusual circumstances of the present case, where there were put in question by the trial judge the terms of statements made by a member of the legal profession, it might be on behalf of his client, the accused in the trial, and this being the first occasion on which an issue of possible contempt of court had been remitted by a single judge, whose handling of a trial had apparently been criticised, to a court of three judges, we considered that it was appropriate to grant leave to Liberty to make submissions to us. The procedure in this matter, as in all questions of possible contempt, which is an offence sui generis, is, of course, exclusively for our determination.

[12] At the outset of the hearing, it was indicated by counsel for the respondent and the Advocate depute that the relevant facts were the subject of agreement between them. The Advocate depute indicated that if anything were said which appeared to him not to be in accordance with the agreed facts, he would draw that matter to the attention of the court. Furthermore, he agreed that he would also draw to our attention any aspect of the presentation of the law to the court that appeared to him insufficient, or unsound.

Submissions of the respondent
[13] Senior counsel for the respondent outlined for us the nature of the trial of the panel. That trial had started quite soon after the recent terrorist incident at Glasgow Airport and ended within days of the anniversary of the destruction of the Twin Towers in New York. There was no dispute as to the terms of the statements that had been made by the respondent and the terms of the interview conducted on Newsnight Scotland. He invited us to look at video recordings of the statement made outside the court building and the interview, which we did. The position was that the statement made outside the court building had been an attenuated version of the press release that had also been issued.

[14] The position of the respondent was that he had received instructions from the panel to make the statement contained in the press release. That was vouched by the affidavit, production 4. Statements had been prepared in advance of the conclusion of the trial which would be issued in the event of a conviction, or alternatively an acquittal.

[15] Senior counsel explained that a Note of Appeal against conviction and sentence had been lodged on behalf of the panel. The grounds of appeal tabled included grounds claiming error on the part of the trial judge in relation to the admission of evidence, misdirection of the jury in relation to charge (1) of the indictment, misdirection on the part of the trial judge in relation to the statutory defence of reasonable excuse provided for in section 58(3) of the Terrorism Act 2000, and misdirection taking the form of a charge said to have been unbalanced as regards the evidence. It was also claimed that the sentence imposed was excessive. Before the issue of the press release, there had been discussions with counsel then acting for the panel.

[16] Senior counsel then turned to explain the position regarding guidance made available by the Law Society of Scotland to solicitors in respect of the media. The first source of guidance was that relating to Comments to the Media by Solicitors, issued by the Law Society of Scotland in September 1998, production 7. Two principles emerged from that guidance: first, that solicitors presenting information to the media in relation to their clients' affairs were acting in a professional capacity, a position which carried with it certain responsibilities; and second, that before making a public statement concerning a client's affairs, a solicitor should first have the client's authority to do so and had to be satisfied that any communication was in the client's best interests.

[17] Senior counsel then drew our attention to the second source of guidance, the Code or Conduct for Scottish Solicitors, which dealt with ethical matters generally. The preamble to that document and paragraph 10 were of relevance to the present case. It showed that lawyers had to serve the interests of justice as well as those whose rights and liberties they were trusted to assert. However, solicitors had a duty not only to act as guardians of national liberties, but also to seek improvements in the law and the legal system. What could be drawn from these sources of guidance was that, first, the authority of the client was necessary before any public statement could be made relating to his affairs; second, any such statement had to be in the best interests of the client; and third, there should be no conflict between the client's best interests and other causes.

[18] Senior counsel indicated that the prosecution of the panel in this case was the first such prosecution in Scotland under the Terrorism Act 2000 and the Terrorism Act 2006. The offences created by this legislation were controversial and had been debated inside and outside of Parliament. Recently the Court of Appeal in England had set aside certain convictions under section 57(1) of the Terrorism Act 2000.

[19] It was recognised that, in Scotland, hitherto there had been no culture of solicitors issuing press releases or making statements to the media in relation to the outcome of criminal trials. The practice in England and Wales was different. Attention was drawn to examples of such statements, which were produced as production 9.

[20] In response to questions by the court, senior counsel said that what was set out in the press release had been authorised by the panel. In support of that position, there was produced to us a document, signed by the panel, dated 13 September 2007, which bore to be a press release relating to a guilty verdict in the trial, although of course the verdict had not been returned until 17 September 2007. Senior counsel pointed out that the terms of the statement signed by the panel were slightly different from the terms of the statement which had actually been released on 17 September 2007. Nevertheless, what had been issued as a press release on that latter date had been intended to reflect the views of the panel. The respondent had endeavoured to express the panel's views in more elegant language than was to be found in the document which he had signed. It was important to note that in the trial judge's report to this court, he appeared to question whether the press release had been made with the authority of the panel.

[21] Senior counsel then proceeded to deal with the law of contempt of court in general. He drew our attention to Arlidge, Eady and Smith on Contempt, 3rd ed., 2005, Chapter 16, which dealt with the law of contempt in Scotland. Contempt of court was constituted by conduct that denoted wilful defiance of, or disrespect towards, the court or that wilfully challenged or affronted the authority of the court or the supremacy of the law itself, whether in civil or criminal proceedings. In that connection reliance was placed on Her Majesty's Advocate v Airs 1975 J.C. 64, at page 69. There were generally three areas where contempt of court might occur: (1) disruptive conduct within a court itself; (2) the defiance of an order of a court; and (3) breach of the prohibitions enacted in the Contempt of Court Act 1981. However, the court ought to recognise that sometimes very intemperate comments were made relating to court proceedings and decisions. In such comments there might be inaccuracy. Comments of that kind should not be seen as contempt of court unless they jeopardised the authority of the court, or the supremacy of the law itself. In that connection senior counsel referred to Arlidge, Eady and Smith, op. cit. paragraphs 16.3, 16.6, 16.44 and 16.48. Judges had the capacity to be robust and cope with such intemperate comments. So far as jurors were concerned, their protection was their anonymity. The court ought to take into account the observations of Lord President Normand in Milburn, Appellant 1946 S.C. 301 at pages 315-316. On any view, in the present case, the statements made following the conclusion of the trial did not amount to a contempt of court. The trial itself had been concluded. Only a sentence remained to be passed. Any professional judge would be unaffected in passing sentence by reading prejudicial material that had been published immediately following conviction. As was pointed out by Lord Scarman in Attorney General v The British Broadcasting Corporation [1981] A.C. 303, no judge worthy of the position would be influenced by what was said in the media. Certain things were clear. First, protestations of innocence by a solicitor on behalf of his client following the client's conviction could not, in themselves, be seen as a contempt of court. Second, a solicitor could not be in contempt of court simply for criticising in public the merits of a court decision. Third, as appeared from the Code of Conduct of the Law Society of Scotland, it was the duty of a lawyer to protest against injustice. Fourth, in a case which had been the subject of intense media interest, it was not contempt of court for a solicitor, on behalf of his client, to inform the media of the client's position in relation to the appeal process. Fifth, criticism of a court outside the court building could not constitute contempt of court. A prominent example of criticism of court decisions was to be found in the interview given by the Lord Advocate on 4 November 2007 concerning the unsatisfactory treatment of rape victims by the court system, a transcript of which was production 10. More recently, the Lord Advocate had publicly criticised the decision made by a court in the so-called World's End murder case, as appeared from the transcript of Parliamentary proceedings, production 11. That showed that criticism of a court decision might be very robust and yet not be contempt of court. In support of his argument, senior counsel drew attention to several statements made by solicitors in England in relation to court decisions, production 9. None of these statements had been the subject of any court action or action by a professional body. In the present case, no complaint had been made to the Law Society of Scotland against the respondents.

[22] The court should understand that the respondent specialised in human rights law. He had a distinguished record as an activist in that field. Since 1992 he had been involved in national campaigns against injustice in various forms and had received awards for his efforts. He was also a political activist in several areas. It was a fundamental principle that court proceedings that had been completed might be fully and freely commented upon, whether by way of praise or criticism. In expressing critical views of a court decision outside a court, a solicitor was not defying the authority of the court or the supremacy of the law itself.

[23] Senior counsel went on next to consider in detail the terms of the trial judge's report to this court, in which his concerns as to the possibility of contempt of court were expressed. Although, by the time that he wrote this report, he had known that the press release had been authorised by the panel, he appeared to express doubts about that matter. It was recognised that the statement did not expressly state that it was being issued with the authority of the client. There was nothing sinister about the minor changes in wording as between the statement which the panel had signed and the statement which had been issued. A solicitor was quite entitled to revise a statement to be made on behalf of a client into clearer terms. It had to be appreciated that, while the statement that had been issued was of a critical nature, it related to a trial which had been surrounded by a general atmosphere of hostility towards the panel, created by the media. Properly interpreted, the statement was not an attack upon the jury, rather upon the atmosphere of hostility in which the trial took place. Nor could it be said that the statement amounted to an attack on the expert witness Evan Kohlmann. Rather, questions were raised concerning the control of certain internet websites. Furthermore, it could not be said, as the trial judge supposed, that the statement amount to an attack on the independence of the prosecutor in the case. Finally, although it was claimed in the statement that the trial had been unfair, that, in itself, could not amount to a contempt of court. Such statements were frequently made, for example, in grounds of appeal. While parts of the statement might not have correctly reflected the terms of the convictions, they could not be said to be untrue or seriously misleading. It might be that the issue of a statement in the terms involved was not in accordance with the best practice; however, it had been authorised by the client and did not involve any breach of Law Society guidance. At the hearing before the trial judge on 23 October 2007, counsel for the respondent had said that, if any disrespect had in fact been shown to the court, then his apologies were tendered. The trial judge appeared to have dismissed this statement, but it was an appropriate apology to make where the interpretation of the document was a matter of debate.

[24] An opinion had been obtained on behalf of the respondent from Professor Donald Nicolson, Professor of Law at the University of Strathclyde with an expertise in professional legal ethics. His conclusion was that no clear professional or common law rules existed to render the respondent's actions a breach of his ethical responsibilities or duties as an officer of the court. That material had not been before the trial judge.

[25] Senior counsel then proceeded to consider the effect of Article 10 of the Convention. He submitted that the courts should not use the law of contempt of court merely to uphold the dignity of the bench in a narrow sense. It was legitimate for anyone to comment on court decisions, as a matter of public interest, even if the comment was unfavourable. The present case differed materially from that of Kyprianou v Cyprus E.C.H.R. 2 November 2005 (Grand Chamber). The remarks made by the pleader in that case had been made in court as part of his advocacy. They amounted to a personal insult to the judges. Here the remarks had been made outside the court following the conclusion of the trial. That conferred upon a commentator a greater freedom. It was submitted that the respondent's criticisms were mild by the standards of that case. He then drew our attention to R v Kopyto Court of Appeal for Ontario; 27 November 1987. The appellant in that case was a lawyer who had acted on behalf of a friend for a number of years. His client had been the executive secretary and subsequently chairman of the League for Socialist Action. He had brought on behalf of his client an action for defamation based upon a summary of a police investigation of the League. There followed extensive legal proceedings. Eventually the appellant instituted proceedings in the small claims court against members of the Royal Canadian Mounted Police. The allegation made was that the defendants had conspired to injure the claimant and had made injurious false statements about him. Eventually a truncated version of the case came before Judge Zuker. He dismissed the plaintiff's claim on several carefully considered grounds. Following the release of the reasons for the decision, the appellant was asked by a journalist for his comments on the judgment. Thereafter the appellant issued a long statement which contained the following quotation:

[26] Finally, senior counsel submitted that the respondent's comments might be covered by the terms of section 5 of the Contempt of Court Act 1981, that is to say that the statement was made in good faith as part of a discussion of public affairs or other matters of general public interest. The fact was that the respondent's comments were of a political nature. If they would not have been contempt of court if uttered prior to the trial, it was difficult to see how they could be seen as such after the conclusion of the trial. It might be that the media guidelines available to solicitors should be re-examined. However, in the particular circumstances of this case, the referral to this court was neither necessary nor appropriate. The court was invited to make no further order.

Submissions on behalf of Liberty
[27] Counsel for Liberty began his remarks by explaining the nature and functions of his client and why they had decided that it was appropriate to intervene in the present matter. Liberty regarded the present case as of being particular significance in relation to issues of freedom of speech, for a number of reasons. First, because the case was concerned, not with reports or comments made before or during a trial, or with prevarication by witnesses, but with a statement made immediately following the conclusion of the trial critical of the conduct of the case, the context in which the case was brought, and of the accused's conviction. The gravamen of the complaint was that the respondent's conduct was not calculated to prejudice the trial proceedings, but rather that it amounted to an affront to the court, to the jury and to certain participants in the trial. It raised sharply the question of the extent to which control of such criticism by means of a quasi-criminal prosecution was compatible with the respondent's rights under Article 10 of the Convention. It also raised the question of the extent to which the courts should be permitted to protect themselves against criticism, even unwarranted criticism, or whether in an open and democratic society such criticism might require to be tolerated. The second main reason for their intervention was that the respondent in this case was the legal representative of the panel. Such representatives might, from time to time, be instructed robustly to comment on perceived injustices in law, or in the court process. Accordingly, the case raised the issue of the extent to which lawyers could or should be penalised by the court, as opposed to their professional bodies, for making such statements on behalf of their client, or by way of expressing their own personal views. It appeared to raise the question of whether legal representatives who criticised court proceedings should be answerable under the law of contempt by reference to a different standard from ordinary members of the public.

[28] The third main reason for the intervention was that the statement made by the respondent related to matters of legitimate public interest and concern, namely the application of anti-terrorism laws to control the dissemination of certain types of information, the effect which such controls might have on civil liberties, and the extent to which they might tend to affect different ethnic groups or communities. The statement which had been issued expressed particular opinions on those issues. It was, in that respect, essentially a matter of political comment. The case accordingly raised the issue of whether such statements, although incidentally or even centrally critical of the court process, were worthy of particular protection under Article 10 of the Convention.

[29] Counsel went on then to consider the impact of Article 10 of the Convention in some detail. In determining whether or not a proposed interference with free speech amounted to a breach of Article 10, the court first had to consider whether there had been, or would be, an interference with the respondent's Article 10 rights. In so far as a quasi-criminal sanction might be imposed on the respondent as a result of a statement to the press, he submitted that there clearly would be such an interference. The court was required then to consider whether the interference was prescribed by law, pursued at least one of the legitimate aims set out in Article 10, and was "necessary in a democratic society" for achieving that aim. In that connection he relied upon De Haes and Gijsel v Belgium (1998) 25 EHRR 1.

[30] There were a number of factors which the court should consider in deciding whether, in the present case, a finding of contempt would be consistent with Article 10. The first feature of the situation which deserved emphasis was that the statement in question had been made following upon the conclusion of the trial. It was submitted that such comments should be treated with care by the court. In particular, it was recognised that some criticism of the courts and the court process should be permitted. Members of the public had a right to criticise the court free from the sanctions of the law of contempt. That was so, even if the language used was intemperate, or the terms of the criticism, in some respects, erroneous. In that connection counsel relied upon Milburn, Appellant, at pages 315-316 and R v Commissioner of Police of the Metropolis, ex parte Blackburn (No.2) [1968] 2 W.L.R. 1204 at pages 1206 to 1207. Furthermore, Convention jurisprudence emphasised that the court's central role in upholding the rule of law required that it should enjoy public confidence. This justified some restrictions upon unjustified and destructive attacks, particularly given the restrictions preventing judges from replying to such criticism. However, any restriction on freedom of speech had to be prescribed by law, had to pursue one or more of the legitimate aims set out in Article 10 and had to be "necessary in a democratic society".

[31] A further important point was that the European Court of Human Rights recognised that legal representatives were in a special position vis à vis the court. Importance had been attached by the trial judge to the respondent's position as agent instructed by the panel. However, it was submitted that, for the purposes of a finding of contempt of court, his position as such was of limited relevance. This was not a case like Kyprianou v Cyprus where the offence of the trial lawyer was to treat the court, as part of his advocacy, with serious disrespect.

[32] It was recognised that lawyers had certain responsibilities to the court, but they also had responsibilities to their client. They were frequently instructed to make statements on behalf of clients expressing disappointment or relief at a verdict. They might hold strong views of their own which, in general, they should be entitled to express. Miscarriages of justice did occur from time to time. To impose criminal sanctions in respect of a statement presenting criticism of the court process and of the laws forming the basis of proceedings against a client risked creating a chilling effect on the freedom of speech in relation to forensic matters generally and the inhibition of lawyers from forcefully representing their clients' interests in such cases. There should be no finding of contempt against a legal representative in such cases unless the comments concerned were grave or insulting. The requirement for grave and insulting language, before contempt should be established, had to be interpreted robustly. The courts ought to be open to lively and trenchant criticism.

[33] In the circumstances of this case, the respondent's comments related to matters of considerable contemporary public interest and concern. They contained at least an element of political expression. Such statements attracted the highest degree of protection from Article 10, as appeared from A Guide to Human Rights in Scotland 2nd ed., Reed and Murdoch, paragraph 7.35. The court should be slow to characterise such statements as a contempt of court. Reliance was also placed on The Sunday Times v The United Kingdom (1979) 2 EHRR 245. That case showed that the protection of Article 10 was available, not only to information or ideas that were favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed the State, or any sector of the population. Particular caution required to be exercised by the court where what was in issue was not a verifiable fact, but rather an expression of opinion, or a value judgment. In the present case, it was clear that the respondent's statement contained a substantial element of value judgment. Much of what it contained had to be judged in that light. In the statement the respondent had said:

"This verdict is a tragedy for justice and for freedom of speech and undermines the values that separate us from the terrorist, the very values we should be fighting to protect."

What was to be found, at least in that passage, it was submitted, was exactly the type of value judgment that the Convention jurisprudence sought to protect. The court should be cautious about characterising that as a contempt of court, lest it be thought that any criticism of the court would not be tolerated. That would be a most undesirable result, since, in a healthy democracy, the institutions and individuals that made and administered the law must be prepared to subject themselves to criticism from time to time.

Submissions of the Advocate depute
[34] The Advocate depute made clear that, in accordance with the invitation of the court, it was not his purpose to make submissions on the merits of the issue before it, but rather to supplement or correct any submissions made on behalf of the respondent regarding the facts or the law. Senior counsel for the respondent had submitted that there were no reported instances of the Scottish courts making findings for contempt of court outwith three areas, namely (1) conduct within the court that was an affront to the court's dignity; (2) defiance of an order of the court; and (3) the prohibitions of the Contempt of Court Act 1981. The Advocate depute submitted that that was wrong. There was a category of case where critical comments might amount to a contempt of court, beyond conduct within the court. It was recognised by the law that comments made outwith the court could, depending upon the nature of the comments, amount to contempt. In any event, it had to be recognised that the protection afforded by Article 10 of the Convention was not unlimited. It was qualified by the terms of paragraph 2 of Article 10 which provided that the exercise of the freedom of expression enshrined in Article 10.1 might be subject to restrictions where these were "prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary." It was evident that the law of contempt went beyond the characterisation of it advanced on behalf of the respondent. In that connection reference was made to the recommendations of the Phillimore Committee, which had examined the law of contempt of court in both Scotland and England and Wales and had reported in December 1974. Recommendation 21 was relevant to this matter. In any event, there was a body of law that regarded part of the purpose of the law of contempt as the upholding of judicial authority and reputation.

The decision
[35] It is important, at the outset, to make clear what is the nature of the present proceedings. On 28 March 2003, the Lord Justice General issued a Memorandum providing guidance as to the procedure to be adopted when a judge is considering whether the conduct of any person constituted a contempt of court. Paragraph 7 of that Memorandum states:

[36] In Robertson, Petitioner; Gough v McFadyen 2008 SCCR 20, a decision by a bench of five judges, the law of contempt was fully considered, as was its relationship to Article 10 of the Convention. The Lord Justice Clerk, at paragraph [29] of his opinion, said this:

"Contempt of court is constituted by conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself, whether in civil or criminal proceedings (Her Majesty's Advocate v Airs, Lord Justice General Emslie at page 69; cf. Manson, Petitioner, at page 178)."

In paragraph [30] he continued:

"The power of the court to punish contempt is inherent in the system of administration of justice (Hume on Crimes, ii, 138-141; Stair Memorial Encyclopaedia, vol.6, para.301; Hamilton v Anderson, L.C. Chelmsford at p.373). That power is held by every judge (Hume, ibid.; Erskine's Institute, I.ii.8). In Petrie v Angus the nature of that power, and the reasons for it, were described by Lord Justice Clerk McDonald as follows:

'In all such cases it is in the power and, indeed, it is the duty of the court, in order to protect the dignity, quietness, and regularity of its proceedings, and to prevent defiance of its orders, to deal with such acts of contempt, and it is the practice to do so within the proceedings in which the contempt was committed, at once, and without the necessity of any formal complaint, and this applies to both the procedure in civil and criminal causes.' (at p.363; cf. McDonald's Criminal Law (5th edn.) at p.266).

In Cordiner, Petitioner Lord Justice General Emslie described the court's jurisdiction as follows:

'Both the Court of Session and this court [sc. the High Court of Justiciary] have an inherent and necessary jurisdiction to take effective action to vindicate their authority and preserve the due and impartial administration of justice' (at p.18)."

Milburn, Appellant was a case in which the appellant appealed to the Court of Session against a finding of contempt of court made against him by the chairman of the Scottish Land Court and the imposition of a fine. The contempt of court there alleged to be involved was perceived to lie in the terms of a letter sent to that court by the appellant. The letter was construed by that court as containing (1) a request for action by the Land Court in the interests of the said John Davidson Milburn in relation to his tenants at Melness; (2) a complaint regarding previous decisions of the Land Court in connection with affairs at Melness affecting the said John Davidson Milburn and his tenants there during the last few years; and (3) an intimation of a continuing threat by him to bring pressure to bear on the Land Court. The First Division of the Court of Session held that, on the facts of the case, the Land Court was not entitled to find that the appellant was guilty of contempt of court. In the opinion of the Lord President (Normand) at page 315 the following passage appears:

"It is always of the highest importance, and especially in a process of contempt of court, that the court should be most careful to exclude not only everything which might create prejudice, but everything which might be thought to prejudice the court. It has been said over and over again that the greatest restraint and discretion should be used by the court in dealing with contempt of court, lest a process, the purpose of which is to prevent interference with the administration of justice, should degenerate into an oppressive or vindictive abuse of the court's powers. In the present case I regret to say that, in my view, a perverse interpretation was put upon a letter which may have been indiscreet and regrettable, but which was not directed towards interference with the administration of justice. The court should never forget that disappointed litigants sometimes feel aggrieved and that some of them are ill-tempered, and that they may say or write things which are foolish and reprehensible. The court should be on its guard against putting an overstrained construction upon such utterances, and above all it should not be too ready to find in them an attempt to interfere with the administration of justice and to visit them with the penal consequences of contempt of court."

Further observations which we consider helpful are to be found in Johnson v Grant 1923 SC 789 at page 790. There Lord President Clyde said of contempt of court:

"The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice ... it is not the dignity of the court which is offended - a petty and misleading view of the issues involved - it is the fundamental supremacy of the law which is challenged."

A similar view was expressed by Lord Ardmillan in Hamilton v Anderson (1856) 18D. 1003 where, speaking of the use of contempt process, he observed:

"... the true dignity of Courts of Justice very rarely requires to be vindicated by such an exercise of authority, and is most appropriately and effectually served by the courtesy, discretion, and magnanimity which refine intercourse, engage confidence, and command respect."

Once again, on the same theme, in R v Commissioner of Police of the Metropolis, ex parte Blackburn the Master of the Rolls (Denning) at pages 154 to 155 said this:

"This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

So it comes to this: Mr Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost."

In the same case, Salmon L.J. at pages 155 to 156 said this:

"The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism, even from the criticism of Mr Quintin Hogg. Their judgments, which can, I think, safely be left to take care of themselves, are often of considerable public importance. It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty - freedom of speech, which our courts have always unfailingly upheld.

It follows that no criticism of a judgment, however vigorous, can amount to a contempt of court, providing it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within these limits."

[37] While it is plain from the foregoing expressions of opinion that the law of contempt of court exists not to protect the dignity of the judge, or of the court, in a narrow or personal sense, it is necessary to bear in mind that there does exist a limit to the right of freedom of expression, which derives from the fundamental purpose of the law of contempt. Reverting to the observations of Lord Justice General Emslie in Her Majesty's Advocate v Airs at page 69, contempt of court "is the name given to conduct which challenges or affronts the authority of the court or the supremacy of the law itself ...". It is quite possible to conceive of language which would be of such an extreme nature that it did indeed challenge or affront the authority of the court or the supremacy of the law itself, particularly perhaps where the integrity or honesty of a particular judge, or the court generally, is attacked. That would be true, whether or not it related to particular ongoing proceedings. For that reason, if for no others, we reject the submission of senior counsel for the respondent that there could not be a contempt of court following the conclusion of the particular proceedings in question. We believe that what we have just said is wholly consistent with the terms of Article 10 of the Convention. In paragraph 2 of that Article it is said specifically that:

[38] Against the foregoing background of authority, we now come to examine the terms of, first, the statement read by the respondent to the press and public outside the High Court building immediately following the conclusion of the panel's trial; second, the terms of the press release issued on the same date and, third, to the extent that it is relevant, what was said by the respondent during the course of the Newsnight Scotland interview. As has been indicated, the terms of the statement read outside the court building reflected a part of the press release. The language is the same in the two statements; however, the order in which the points are made differs slightly as between the two statements. That being so, it is unnecessary to consider those statements separately. We can proceed to consider the terms of the press release itself.

[39] Before doing that, during the course of the discussion before us, an issue arose relating to the authorisation for the issue of press release. There was produced a copy of the press release signed by the panel. Comparison of the terms of the signed copy with those of the copy that was in fact released to the press shows certain relatively minor differences as regards the choice of words and order of the material. However, the differences between the two documents do not appear to us to be material for the present purposes. It may therefore be said that the press release was authorised by the panel. That is not to say, nor was it, we think, suggested that the words of the press release were, save perhaps where specifically quoted and in other limited respects, the panel's own words. The whole tenor of what was said appeared to emanate from the respondent himself, for which he must take responsibility. The authorisation granted by the panel would appear to have been to the fact of the issuing of a press release in words settled as between the respondent and his client. In the end, however, we are not persuaded that the issue of authorisation by the client is of great importance in the present context, which relates to the question of whether what was said amounted to contempt of court.

[40] The press release itself consists of nine separate paragraphs. We shall consider individually what is said in these paragraphs. In the first, it is stated that the panel "was found guilty of doing what millions of young people do every day, looking for answers on the internet." We are driven to conclude that that is a wholly inaccurate statement of the nature of the convictions recorded against the panel. In our view, that statement could have no relevance whatever to the subject-matter of the convictions on charges (3), (4) and (5). So far as charge (1) is concerned, it, of course, relates to the possession of articles, including, in part, no doubt, material which could have been derived from the internet, but that, of itself, plainly could not be an offence in this context. What was alleged by the Crown and proved in charge (1) was possession of the articles, in circumstances which give rise to a reasonable suspicion that the possession "was for a purpose connected with the commission, preparation or instigation of an act of terrorism." To describe that conviction as it was described in the first paragraph of the press release is, quite simply, an untruth, whatever the defence position may have been. The conviction was for the serious offence described in charge (1), the sinister element of which derives from the circumstances in which the articles were possessed. Nevertheless, seriously inaccurate though it was, in our opinion, it is not a statement which could be regarded as challenging the authority of the court, or the supremacy of the law itself and thus be a contempt of court.

[41] Turning to the second paragraph of the press release, in our view, it amounts to no more than the expression of an opinion about the verdict of the jury in general terms. We do not consider that it, standing alone, or as part of the statement as a whole, could be seen as a contempt of court. It amounts to criticism of the verdict, but it is just as much criticism of the legislation under which charges (1), (4) and (5) were brought as of the trial process itself. The contents of the third paragraph of the press release are limited. However, they do suggest that "it is farcical that part of the evidence against Atif was that he ... had documents in Arabic which he could not even read and downloaded material from a legitimate Israeli website run by Dr Reuven Paz ...". The trial judge informs us in his report that several witnesses at the trial had been under the impression that he could read Arabic, at least to some extent, and that although it was correct that the material which the panel linked to his website was available also on a website run by Reuven Paz, and might be found there if carefully searched for, there was no evidence that the panel knew that, or had himself consciously accessed that site. Accordingly, on that basis, which we have no reason to doubt, that paragraph could be regarded as misleading. Coming to the fourth paragraph of the statement, once again, the trial judge categorises it as misleading; of it he says:

[42] In the fifth paragraph of the statement, there are to be found comments on the context in which young Muslims now live. These comments seem to us to be no more than comments of a political nature. Mention is also made in this paragraph of the Crown witness Evan Kohlmann. Nothing is said of this witness other than that he has responsibility for a website operating in the United States, the content of which the commentator regards as "full of hatred". The question is posed as to why such websites are allowed to operate. It seems to us that this paragraph is the only basis upon which it might be said that objectionable statements were made concerning a particular Crown witness. However, looking at the whole terms of the paragraph, we find no suggestion bearing on the credibility or reliability of that witness or about his evidence. No doubt the trial provided every opportunity for cross-examination of the witness, if that was considered appropriate. In our view, this is a far cry from contempt of court. Turning to the sixth paragraph of the statement, in our view it amounts to no more than political comment on the efficacy of legislation designed to protect the public against terrorism. As regards the seventh paragraph of the statement, once again its contents amount to a political comment on public policy in relation to terrorist activity and the allegedly biased and sensational nature of the reporting of the panel's trial. It seems to us that these comments are, in no way, directed against the court, or the administration of justice. The eighth paragraph of the statement simply contains an assertion on behalf of the panel that he is not a terrorist and is innocent of the charges of which he has been convicted. Such assertions are frequently made and must fall within the category of legitimate comment upon the outcome of a court hearing. Finally, the ninth paragraph of the statement about the prosecution itself contains critical material. It is said that the prosecution was "driven by the State, with no limit to the money and resources used to secure a conviction in this case ...". Of that it can be said that there is a sense in which almost every prosecution is "driven by the State" with the State's resources available to back the prosecution system. We do not regard that comment, albeit in somewhat dramatic terms, as being an adverse reflection on the Lord Advocate, or her deputes. The same paragraph refers to the trial being conducted in an atmosphere of hostility following the Glasgow Airport terrorist attack and ending around the time of the anniversary of the attack on the Twin Towers in New York. We see those comments as amounting to no more than criticism of the atmosphere created by the reporting of these matters. In this connection, however, it is to be observed that, in this case, no plea in bar of trial was advanced on behalf of the panel to the effect that he could not have a fair trial on account of adverse publicity, nor was it contended that, in the interests of justice, the trial should take place in some location other than Glasgow on account of prejudicial reporting there. The final point made in this paragraph is that the panel did not receive a fair trial and that an appeal was being considered. Such statements are commonplace, in our experience, and cannot normally be seen as a fundamental attack on the justice system, or the supremacy of the law. They do not necessarily, or often, infer an attack on the integrity or honesty of the court, and, in our view, nor does this statement.

[43] We turn next briefly to comment on the transcript of the respondent's interview on Newsnight Scotland. Having seen the recording of this interview and read the transcript, we consider that there is only one passage which requires to be considered in the present context, that is the part of the interview where the respondent was asked the following question: "Don't you think that if your client gets ... a long sentence that that might act as a deterrent for others?" The respondent answered: "I suspect that a deterrent sentence ... will be set, but I do not think that we've asked the right question. ...". While in this part of the interview the respondent was asked about the possible effect of a long sentence and while he indicated that he suspected that a deterrent sentence would be set, all said in advance of the sentencing diet, we cannot think that these observations could reasonably have been supposed to have played any part whatsoever in the deliberations of the trial judge in considering an appropriate sentence. It is not clear to us that he ever saw this interview, although he appears to have been aware that some comments about sentencing were made in it. In any event, we cannot regard these remarks as constituting, in any way, an interference with the remaining stages of the panel's case, namely the process of sentencing.

[44] Thus having considered all the relevant material in detail, we cannot hold that anything said by the respondent amounted to "conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself", to quote again the words of Lord Justice General Emslie in Her Majesty's Advocate v Airs. While the statements which we have examined embody angry and petulant criticism of the outcome of the trial process and a range of political comments concerning the position of Muslims in our society, we believe that the authority of the courts and the supremacy of the law have not been challenged or damaged by this criticism. As has been said in many of the authorities to which we have referred, judges who administer the law must expect and accept that proceedings over which they exercise control may, from time to time, be publicly and trenchantly criticised. As regards the position of the jury - and after all a jury was involved in the trial of the panel - while the jurors in this case may have been annoyed, or even hurt, to hear or to read the comments of the respondent, their personal participation in this particular trial will never be disclosed; their anonymity is protected. They too, we think, as active participants in the trial process, must be expected, not only to do their duty, subject to the directions of the trial judge, but also to be robust in the face of any subsequent criticism of the verdict. Furthermore, we have no reason to suppose that members of the public will be likely to be deterred, in any way, by what has been said, from performing their public duty as jurors, when called upon to do so, although it should be appreciated by all that that duty requires them to reach a verdict in accordance with the evidence and with the law, as it is, whatever others may think of it. In all these circumstances, we conclude that no contempt of court has been committed by the respondent. Accordingly we make no order in this remit.

[45] It is no concern of ours to comment upon the actions of the respondent in the context of the requirements made of a solicitor in Scotland by the solicitors' professional body, the Law Society of Scotland. That is a matter exclusively for them. It is a matter for them too whether they wish to consider any revisals to their guidelines, to meet situations such as the present one. However, before parting with this case, we feel both entitled and bound to comment on the conduct of the respondent as an officer of the court, for as a practitioner in this court, that is what he is. Any solicitor practising in the High Court of Justiciary owes a duty to the court, a fact recognised in paragraph I of the Preamble to the Code of Conduct for Scottish Solicitors of 2002. In our opinion, the existence of that duty implies certain obligations upon such solicitors. If they are of the view that it is in their client's best interests to make public comments on court decisions in proceedings in which they have been involved, about which we ourselves say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings and, second, that their comments are not misleading. Regrettably, we do not think that those standards were met in this case. If any such comments are intended to represent nothing more than the client's own views or reactions, whether right or wrong, justified or not - and a certain degree of latitude would ordinarily be extended to such views or reactions - that can and should be made absolutely clear. In this case it was not. Instead, whatever may have been intended, the statement plainly read, and requires, in our view, to be judged as a submission by a professional representative, made on behalf of his client, which included, in part, and in quotations, the personal views of the client himself. In that submission the characterisation of the panel's convictions in the manner in which they were described in the first paragraph of the press release was, quite simply, entirely unfounded in fact. In addition, informed as we are by the trial judge's observations concerning the evidence at the trial, certain of the contents of the third and fourth paragraphs were, it seems, misleading. This court is entitled to expect better of those who practice before it.