Scottish High Court of Justiciary Decisons

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Cite as: [2009] ScotHC HCJAC_24, 2009 GWD 11-171, 2009 SLT 363, [2009] HCJAC 24, 2009 JC 175, 2009 SCCR 481

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith

Lord Wheatley

Lady Paton

[2009] HCJAC 24

Appeal No: XM9/08

OPINION OF THE COURT

delivered by

LORD NIMMO SMITH

PETITION TO THE NOBILE OFFICIUM

SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED

Petitioners;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

_______

Act: Moynihan QC; Levy & McRae

Alt: Beardmore, AD; Crown Agent

12 March 2009

Introduction

[1] This is a petition to the nobile officium of this court at the instance of Scottish Daily Record and Sunday Mail Ltd. They are the owners, printers and publishers of the Daily Record newspaper, which has a wide circulation in Scotland. They seek to bring under review a finding made by the sheriff at Edinburgh on 4 September 2007 that in publishing a photograph in the Daily Record on 15 May 2007 they were in contempt of court. The sheriff fined them £1750. If they were properly found to be in contempt, they take no issue with the level of fine.

Proceedings before the sheriff

[2] On 15 May 2007 two accused, Keith John Burrell ("Mr Burrell") and Derek George Riordan ("Mr Riordan") went to trial at Edinburgh Sheriff Court on three charges in a summary complaint at the instance of the respondent procurator fiscal, which were in these terms:

"(001) On 18 December 2006 at Biddy Mulligans, Grassmarket, Edinburgh you KEITH JOHN BURRELL and DEREK GEORGE RIORDAN did while acting along with others meantime to the complainers [sic] unknown assault Ben Mallinson....and did push him on the body and repeatedly punch and kick him to the head and body, all to his injury

(002) On 18 December 2006 at Biddy Mulligans, Grassmarket, Edinburgh you KEITH JOHN BURRELL and DEREK GEORGE RIORDAN did while acting with another conduct yourselves in a disorderly manner, shout, swear and challenge others to fight and commit a breach of the peace

(003) On 18 December 2006 at Biddy Mulligans, Grassmarket, Edinburgh you KEITH JOHN BURRELL and DEREK GEORGE RIORDAN did while acting with others meantime to the prosecutor unknown assault James Kennedy...and did repeatedly kick and punch him on the head and body, causing him to fall to the ground, all to his injury".

[3] In his judgment, the sheriff narrates that the trial began late in the day on 15 May 2007. There was only time to hear part of the evidence of the first of the two civilian witnesses to be called by the Crown, who were the alleged victims of the assault charges. This witness was James Kennedy, the complainer in charge 3, who had made dock identifications of Mr Burrell and Mr Riordan as his assailants in the course of his evidence in chief, but had not yet been cross-examined on behalf of either of them. It was necessary to continue the trial from 15 May to 5 June 2007, when it was anticipated that James Kennedy's evidence would be completed and Ben Mallinson, the complainer in charge 1, would give evidence, to be followed by that of any other witness called by the Crown and by any defence evidence. The sheriff warned James Kennedy not to discuss his evidence on any aspect of the case with anyone, in particular Ben Mallinson, until both had completed their evidence. The sheriff states:

"Identification was a critical issue in this case and the issues surrounding identification were crucial to the defence of the two accused."

[4] On 16 May 2007 the Daily Record carried a report of the previous day's proceedings. At the top of the front page, next to the masthead, there was a photograph of Mr Riordan, the headline "Riordan beat up bouncer, court is told" and a report which started:

"CELTIC star Derek Riordan and his cousin battered a doorman in a pub stockroom, a court heard yesterday. And a second pub worker claimed he was punched as he tried to help his colleague. Riordan, 24, and his cousin Keith Burrell, 25, went on trial accused of two charges of assault and two of breach of the peace yesterday. The Scotland international lost his temper after one of his friends was ordered to leave....."

The reader was then invited to turn to page 4 for a continuation of the story, where an account was given of the evidence given at the trial thus far. No issue arises from the headline or the text of the report. The sheriff held, however, that the publication of a photograph of Mr Riordan constituted a contempt of court.

[5] We note in passing that the petitioners were not alone in doing this. Reports of the first day's proceedings at the trial appeared on the 6pm news bulletin on Scottish Television on 15 May 2007 and in the Scottish Sun newspaper on 16 May 2007. Each of these reports included a photograph of Mr Riordan. On 4 September 2007 the sheriff also made findings of contempt of court with regard to the publication of these photographs against STV Central Ltd and News Group Newspapers Ltd, the publishers of these reports, and fined each of them £1750. Neither of them has sought to bring under the review of this court the finding of contempt of court.

[6] When the trial resumed, a devolution minute was tendered on behalf of Mr Riordan. It was averred that he could no longer receive a fair trial because of the media reporting of the first day's proceedings. In particular it was submitted on his behalf that the publication of his photograph prejudiced the issue of identification in the trial. The sheriff reports that he declined to allow the minute to proceed on the basis that it would be for the court to ensure that the right to a fair trial was not prejudiced. This would involve hearing the evidence of the two civilian witnesses, particularly the second one who had not yet started his evidence, and "establishing whether or not the substantial risk of prejudice had passed into actuality". In the event, neither of the two civilian witnesses knew or was ever aware of having previously seen or heard of Mr Riordan (other than in connection with the alleged events with which he was charged). Further proceedings in the trial took place on 5 and 26 June and 6 August 2007. On the latter date the sheriff found charge 1 against Mr Burrell not proven. He found Mr Burrell not guilty of charges 2 and 3. He found Mr Riordan not guilty of all three charges.

The legislation and other authorities

The Contempt of Court Act 1981 and the European Convention on Human Rights

[7] In making the finding of contempt of court against the petitioners, the sheriff applied the relevant provisions of the Contempt of Court Act 1981 (as amended) ("the 1981 Act"). These are:

"1. The Strict Liability Rule.

In this Act 'the strict liability rule' means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.

2.-- Limitation of Scope of Strict Liability.

(1) The strict liability rule applies only in relation to publications, and for this purpose "publication" includes any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.

(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

(3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication.

(4) Schedule 1 applies for determining the times at which proceedings are to be treated as active within the meaning of this section.

....

4. Contemporary Reports of Proceedings.

(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. ....."

There is no need to quote from the provisions of Schedule 1, because the proceedings against Mr Burrell and Mr Riordan were clearly active when the photograph of Mr Riordan was published in the Daily Record on 16 May 2007.

[8] The provisions of the 1981 Act reflect a tension between two Articles of the European Convention on Human Rights ("the Convention"). Article 10, "Freedom of Expression", provides inter alia:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary."

Article 6, "Right to a Fair Trial", provides inter alia:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."

The common law

[9] Before the 1981 Act was passed, contempt of court such as that in the present case was dealt with under the common law. We were referred to a number of authorities which demonstrate how the law has developed.

[10] In Stirling v Associated Newspapers Ltd 1960 JC 5 the petitioner, who had been detained in custody on a charge of murder, complained of the publication of an article and a photograph relating to him in the Scottish Daily Mail newspaper, after he had been arrested by the police in connection with the investigation of two murders with which he was subsequently charged. In finding that the respondents had been guilty of contempt of court, and imposing a fine upon the publishers and editor of the newspaper, Lord Justice-General Clyde, who delivered the opinion of the court, said at page 11:

"[I]n regard to photographs, if the criminal authorities have not specifically asked for a photograph to be published in the Press, the Press must not procure or obtain a photograph of any person involved in the investigation and publish it, either during the investigations by the criminal authorities, or during the trial itself. In particular is this so in regard to a man arrested in connexion with the perpetration of a crime. Identification may be a really substantial issue in the trial, and publication of such a photograph may gravely prejudice that trial by affecting the evidence of identification at the trial by witnesses who have already seen the photograph. The whole object of all this throughout is to secure a fair and impartial trial for the arrested person."

At page 12, the opinion concluded:

"We have refrained from imposing a sentence of imprisonment in this case with some hesitation, and, the next time an application of this kind comes before this Court, a much more drastic and severe penalty than a mere fine may be necessary, if justice and fair play in criminal proceedings in Scotland are to be maintained, as we are determined that they shall be."

[11] In Atkins v London Weekend Television Ltd 1978 JC 48 the petitioner, a nursing sister, was charged on indictment with an assault on a 13-year-old girl, a patient at Edinburgh Royal Infirmary, to the danger of life. On the day prior to her trial a television programme was broadcast throughout the United Kingdom by the respondents. It made reference inter alia to the circumstances of the alleged offence and the trial of the petitioner. Photographs of the petitioner, taken without her knowledge and consent, were shown twice. The court held that the references to the petitioner in the context of the programme as a whole were in the highest degree likely to prejudice her prospects of a fair and impartial trial, and that the broadcasting of the programme constituted interference with the administration of justice and amounted to contempt of court. The court made a finding of contempt against the respondents, the editor responsible for the programme, the managing director of the respondents and the producer with responsibility for the programme. The opinion of the court was delivered by Lord Justice-General Emslie who, on the matter of photographs, said at page 53:

"The complaint is....that the showing of photographs of the petitioner and the particular references to her in sound made all the difference and converted a discussion of what was already a matter of public interest and comment into an act of contempt. So far as the photographs were concerned, said [senior counsel for the respondents], there is no hard and fast rule that the publication of a photograph of an accused person will always constitute contempt. We have no difficulty in accepting this proposition and we accept, too, the further proposition that the publication of a photograph of an accused person will only constitute contempt where a question of identification has arisen or may arise and where the publication is calculated to prejudice the prospects of fair trial."

At pages 55 to 56 the court said:

"It was ... essential for the Crown to identify the petitioner as the perpetrator [of the alleged offence]. In the whole circumstances the inclusion of the photographs but, more importantly, the verbal references to her in the context of the feature as a whole, were likely to be highly damaging to the prospects of a fair and impartial trial of the petitioner in Scotland."

The genesis of the 1981 Act

[12] The case which led to the passing of the 1981 Act arose from the publication in the Sunday Times newspaper of the first of a series of articles designed to draw attention to the plight of children born with gross deformities to mothers who had taken the drug thalidomide during pregnancy. A large number of actions had been raised against the manufacturers of the drug, alleging negligence on their part, and litigation was still pending at the time of publication. The Attorney-General was granted an injunction by the Divisional Court of the Queen's Bench Division restraining publication of further articles. After the Court of Appeal discharged the injunction, the Attorney-General appealed to the House of Lords, who held that it was a contempt of court to publish material which pre-judged the issue of pending litigation or was likely to cause public pre-judgment of that issue, and accordingly the publication of the article, which in effect charged the company with negligence, would constitute a contempt, since negligence was one of the issues in the litigation: Attorney-General v Times Newspapers Ltd [1974] AC 273. The publisher, editor and a group of journalists of the newspaper then filed an application with the European Commission of Human Rights claiming that the injunction infringed their right to freedom of expression guaranteed by Article 10 of the Convention. The commission, by a majority, concluded that there had been a breach of Article 10 and referred the case to the European Court of Human Rights. A plenary court held, by a majority, that the interference with the applicants' freedom of expression was not justified under Article 10 (2) since, though prescribed by law and for the purpose of maintaining the authority of the judiciary, the restriction was not justified by a "pressing social need" and could not therefore be regarded as "necessary" within the meaning of Article 10 (2). Accordingly there had been a violation of Article 10.

[13] In the House of Lords, Lord Reid said at [1974] AC, page 300:

"I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. ... I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases."

The European Court of Human Rights disapproved of this approach. In its judgment, The Sunday Times v The United Kingdom (1979) 2 EHRR 245, at paragraph 65, the court said:

"The Court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted. In the second place, the Court's supervision under Article 10 covers not only the basic legislation but also the decision applying it. It is not sufficient that the interference involved belongs to that class of the exceptions listed in Article 10 (2) which has been invoked; neither is it sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; the Court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it."

It was to take account of these considerations that section 2(2) of the 1981 Act was enacted.

Post-1981 decisions

[14] The courts in Scotland and in England have had to consider the question of the publication of photographs in a number of cases since 1981. In HM Advocate v Caledonian Newspapers Ltd 1995 SCCR 330, the Evening Times newspaper published an article reporting the escape from custody of a man who, it was correctly said, was on remand on a charge of armed robbery. In a headline he was referred to as "Danger Man", and the article contained statements that he could be dangerous. It also referred to the fact that he had been freed two years before after standing trial twice on the same murder charge. The article was accompanied by a photograph of the man. In delivering the opinion of the court, Lord Justice-General Hope said at page 344:

"Had it not been for the publication of the photograph, we would have been able to hold that in this case ... there was no breach of the strict liability rule. The question would then have been whether there was anything in the text that the course of justice in these proceedings would be seriously impeded or prejudiced.

We do not agree with [counsel for the respondents] that the strict liability rule imposes a very high test in regard to a publication of the kind referred to in section 2 while the proceedings in question are active. In Attorney-General v English [1983] AC 116 at p142 Lord Diplock said that the words "substantial risk" were intended to exclude a risk that is only remote. In HM Advocate v News Group Newspapers Limited 1989 SCCR 156 at p161F Lord Justice-General Emslie said that there can be no contempt unless there is some risk, greater than a minimal one, that the proceedings would be seriously prejudiced. Nor can the publisher pray in aid steps which may be taken afterwards by the court to minimise the risk of prejudice resulting from a publication which would seriously impede or prejudice the proceedings if these steps were not taken. As Lord Diplock pointed out in the passage already quoted from his speech in Attorney-General v English, the public policy that underlines the strict liability rule is that of deterrence. The court must do what it can to minimise the risk of prejudice, because it is in the public interest that proceedings for the detection and punishment of crime should not be interrupted by the effect on the course of justice of publicity. The purpose of the rule is to make the taking of such steps unnecessary, by deterring the publication in the first place of anything which might create risk of such prejudice. The risk must be assessed at the time of the publication without regard to what may happen or may be done afterwards.

...

The publication of the photograph ... so close in time and place to the incident referred to in the petition in the charges of assault and robbery and of assault and attempted robbery, raises the question whether, when taken together with the article, this may have affected the position of witnesses."

After quoting the passage in Stirling v Associated Newspapers Ltd quoted above, his Lordship continued:

"Consequently a contempt will be committed if the publication of the article is likely to affect the evidence of witnesses in the question of identification. In Atkins v London Weekend Television at page 53 Lord Justice-General Emslie accepted the proposition for the broadcasters that there is no hard and fast rule that the publication of the photograph of an accused person will always constitute contempt. He said that it will only do so when a question of identification has arisen or may arise and when the publication is calculated to prejudice the prospects of a fair trial: see also Attorney-General v Guardian Newspapers Ltd (No. 3) [1992] 1 WLR 874, per Mann LJ at p879H. The test, in regard to the strict liability rule under section 2 of the 1981 Act with which we are concerned in this case, is whether the publication of the photograph created a substantial risk that the course of justice in the proceedings would be seriously prejudiced.

In a case where identification is not in issue, the publication of a photograph of the accused is unlikely to give rise to any risk of prejudice, because the evidence of witnesses will not be at risk of being affected by its publication. Nor will the jury be affected by it either, because it will not relate to any issue which they will have to decide. But where identification is or may be in issue the situation is entirely different. The publication of the photograph, linking the name of the accused to the offence with which he is charged, may assist witnesses in their identification of him as the perpetrator of it. The closer in time and place this is to the publication of the photograph, the greater the risk that this will occur. Similarly the publication of a photograph of the perpetrator in this way may affect the jury's determination of the issue of identification at the trial. The closer the trial is to the date of the publication the greater will be the risk of this."

In the circumstances the court made a finding of contempt against the publishers and editor of the newspaper and fined both of them.

[15] In Attorney-General v MGN Ltd [1997] 1 All ER 456 there had, over a period of several years, been "saturation coverage" in the media about the relationship between a well-known television personality and her boyfriend. Disclosures were made about his violent behaviour and his previous convictions. Thereafter he was arrested and charged with a serious assault. Various newspapers published articles about the alleged incident. He successfully applied for the proceedings to be stayed on the ground that the pre-trial press coverage of the case made it impossible for him to have a fair trial. Thereafter the Attorney-General applied for orders against a number of publishers for contempt of court on the ground that the publication of the articles at that time had created a substantial risk that the course of justice would be seriously impeded or prejudiced within the meaning of section 2 (2) of the 1981 Act. Schiemann LJ, in delivering the judgment of the Divisional Court of the Queen's Bench Division, said at page 458:

"The present application focuses, as these applications usually do, on the tension between two desiderata - (1) the desire that a person facing trial should face a tribunal which is not prejudiced against him by reason of matters which have not been proved in evidence, and (2) the desire that newspapers should be free to publish what they please.

This tension is particularly strong in cases which are of widespread public interest because of the notoriety of the persons or deeds involved. The problems posed by this tension are real and recurring. ..."

In the course of their judgment, the court set out, at pages 460 to 461, the principles which in their view governed the application of the strict liability rule. These included:

"(9) In making an assessment of the likely impact of the publication on an ordinary reader at the time of publication the court will consider amongst other matters:

(a) the prominence of the article in the publication, and

(b) the novelty of the content of the article in the context of likely readers of that publication."

Having regard to the previous "saturation publicity", which continued until a month before the incident which had led to the charge, it could not be said that any one of the publications thereafter had created a greater risk of prejudice than that which had already been created, so the publications were not in contempt of court. This decision was followed in HM Advocate v The Scotsman Publications Ltd 1999 SCCR 163, where it was described as providing "a particularly useful index of the various matters which should be borne in mind in a case of this sort".

"We consider it rather unlikely ... that anyone cited to serve as a juror would even recall the article. The case is, of course, unusual in that it involves a person who may be known to the jurors as an actor on television. Where personalities, whether from the world of politics, sport or entertainment, are tried by a jury, the jurors may often know more about their way of life and the background to any charge than they would in an ordinary case. That in itself may perhaps mean that the judge presiding at any trial would think it appropriate to give a more pointed direction about the need for the jury to reach their verdict solely on the evidence led in court."

The court was not satisfied that the statutory test had been met in the circumstances of that case.

[17] Attorney-General v Express Newspapers [2004] EWHC 2859 (Admin), a decision of the Divisional Court of the Queen's Bench Division, related to the publication in the Daily Star newspaper of information serving to identify two potential defendants, both footballers, with a partly pixilated photograph of one of them, in connection with allegations of gang rape of a girl. At the time of publication proceedings were active, and identification by the complainant was a potential issue in the event of a trial. Rose LJ with whom Pitchford J agreed, said at paragraph 15:

"For the reasons I have sought to explain there is, to my mind, no evidence before us from which it could properly be inferred that [the complainant's] identification evidence might, at the date of publication, [have] been tainted by some other route. In my judgment, contempt of court within section 2 (2) is proved beyond reasonable doubt."

[18] In Cox and Griffiths, Petitioners 1998 JC 267 this court considered a petition to the nobile officium against a finding of contempt made against the petitioners in respect of an article published in the Daily Record newspaper. The report in question, which appeared a week before eleven prisoners faced trial in the High Court of Justiciary, stated that they had been moved from one jail to another under a massive armed police guard, that they were heavily guarded and security was tight, that they were "heavy duty guys" and that they were facing "a lot of heavy charges". The trial judge made a finding of contempt against the duty editor and the reporter. Among the reasons for granting the petition, the court held that although the article might have created a risk of some prejudice to the course of justice, there was no risk of the course of justice being "seriously impeded or prejudiced" and, accordingly, that no contempt of court had occurred. Lord Justice-General Rodger, at page 273 emphasised the need for courts faithfully to observe the boundary which Parliament had settled, in enacting the 1981 Act, in order to meet the international obligations of the United Kingdom. He said:

"As its origins demonstrate, the Act was designed to regulate the boundary, which had always, of course, existed, between freedom of expression and the requirements of the due course of justice. That boundary may have been displaced from the familiar place where once it ran; Parliament may have re-drawn the boundary at a point which would not have been chosen by people looking at the matter primarily from the standpoint of the administration of justice. But these factors simply make it all the more important that the courts faithfully observe the boundary which Parliament has settled in order to meet the international obligations of the United Kingdom."

Lord Prosser, at page 274, said:

"Whatever defining words are chosen to express the risk and degree of prejudice which will constitute contempt, and define its boundary, I think it worth emphasising that quite apart from the 1981 Act, and quite apart from the European Convention on Human Rights, there was in my opinion never any excuse for the courts extending the boundary, and diminishing freedom of speech, on the basis that some wider boundary is more convenient, or simpler, or provides a useful cordon sanitaire, or the like."

Lord Coulsfield, at page 277, said:

"The second question to be considered must be whether the publication conveys some imputation or innuendo or creates an atmosphere which may in some way substantially interfere with the course of justice. That is a much more nebulous question and it is in that area that, in my opinion, the courts have to be cautious before finding that there has been a contempt."

These passages need to be read in light of the fact that at that time the Convention had not yet been incorporated into our domestic law by the Human Rights Act 1998 and the Scotland Act 1998, whereas now it is directly binding on our courts.

Textbooks

[19] For completeness we should add that we were referred to two textbooks, Bonnington, McInnes and McKain, Scots Law for Journalists (7^th edition, 2000), paragraphs 11.01 to 11.12, and Arlidge, Eady and Smith on Contempt (3^rd edition, 2005), paragraphs 16-316 to 16-319, the latter containing material contributed by Mr Bonnington. These works contain convenient brief summaries of the law, though it should be noted that Bonnington et al. (2000) does not refer to HM Advocate v Caledonian Newspapers Limited, which might be thought to contain the fullest and most up-to-date Scottish guidance about the publication of photographs of accused persons.

The standard of proof

[20] A question arose during the course of the hearing before us as to the standard of proof to be applied by the court when determining whether there has been a contempt of court within the meaning of the 1981 Act. Does the court require to be satisfied on a balance of probabilities, according to the civil standard, or beyond reasonable doubt, according to the criminal standard? There is no intermediate standard: B v Kennedy 1987 SC 247, 251. We gave the parties the opportunity to provide us with written submissions after the hearing, and these have greatly assisted us in our consideration of this question. In the event there was no dispute about it.

[21] Contempt of court is an offence sui generis: HM Advocate v Airs 1975 SLT 177. The position at common law seems clear. In respect that the court may fine or imprison a person against whom it has made a finding of contempt, it is akin to a criminal offence. Breach of interdict is a form of common law contempt, and the settled rule is that it has to be proved to the criminal standard: Gribben v Gribben 1976 SLT 266, 269, approving Eutectic Welding Alloys Co v Whitting 1969 SLT (Notes) 79; see also Byrne v Ross 1993 SLT 307 at p310. In recent Scottish cases relating to common law contempt - Mayer v HM Advocate 2005 1 JC 121, Robertson and Gough v HM Advocate 2008 JC 146 and Anwar, Respondent 2008 SCCR 709 - the court has not found it necessary to address the standard of proof; though in Robertson and Gough v HM Advocate the Crown conceded that contempt falls to be characterised as a crime for the purposes of Article 6 of the Convention.

[22] So far as the position under the 1981 Act is concerned, section 15 of the 1981 Act regulates the penalty for both statutory and common law contempt. This would suggest that the standard of proof of an allegation of contempt of court is the same both at common law and under the 1981 Act. There are indications of this in a number of Scottish cases, but the clearest recognition may be found in a passage in HM Advocate v Scottish Media Newspapers Ltd. at page 333, where the court said:

"We have ... to ask ourselves whether we are satisfied beyond a reasonable doubt that, when published, the article created a substantial risk that the deliberations of the jury would be so affected as to give rise to serious prejudice to the course of justice." (Emphasis added)

[23] In England, it is clear that the criminal standard of proof is applied. Schiemann LJ in Attorney-General v MGN Ltd, in the passage referred to above, said that the sixth principle was:

"The court will not convict of contempt unless it is sure that the publication has created this substantial risk of that serious effect on the course of justice." (Emphasis in original)

The word "sure" in this context refers to the criminal standard of proof, as is apparent from Attorney General v Express Newspapers, where Rose LJ at paragraph 4 said:

"The burden of proving contempt to the criminal standard rests on the Attorney-General."

Reference may also be made to Attorney-General v Unger [1998] 1 Cr App R 308 and In the Matter of A (A Child) [2008] EWCA Civ 1138, where Hughes LJ at paragraph 6 said:

"Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure."

In R (McCann) v Manchester Crown Court [2003] 1AC 787 Lord Hope, at paragraphs 81 to 83, discussed the rationale for applying the criminal standard in such cases. Lord Hope held that the criminal standard should apply on the basis of a general acceptance that that was the standard to be applied where what was at issue were allegations of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.

[24] The 1981 Act is a United Kingdom statute, and it appears to us to be not only in accordance with principle but desirable in the interests of consistency on both sides of the Border in matters of this kind that we should apply the same standard of proof as is required in England: cf. Attorney-General v Sport Newspapers Ltd. [1991] 1 WLR 1194 per Bingham LJ at p. 1207. This is especially so where publication of potentially offending matter may take place throughout the United Kingdom. In our opinion, therefore, the criminal standard of proof beyond reasonable doubt is the standard which the Scottish courts should accept as applicable in determining whether there has been a contempt of court within the meaning of the 1981 Act.

The present case

The sheriff's approach

[25] In his judgment, the sheriff referred to "the long-established and well-known rules". He said:

"[T]he publication of the photograph of Derek Riordan in these circumstances not only before the first witness had completed his evidence but before the only other civilian witness/alleged victim had begun to give his evidence, created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced. The fact that the name of Derek Riordan and his photograph might be well-known to the many persons who follow football is nothing to the point.

The issue in this case was whether the conduct allegedly perpetrated against the two victims in the public house in this case could properly and lawfully be laid at the door of the person or persons accused in this case. If, as turned out to be the case here, neither of the two civilian witnesses knew or were ever aware of having previously seen or heard of Derek Riordan, the risk of prejudice or impediment to the course of justice was substantial.

...

That is why such great care and attention requires to be given to the question of the publication of a photograph of an accused person in the course of a trial if identification is in issue.

This rule is so obvious and so well established that one would have thought it was part of the basic and elementary training for all journalists involved in court reporting.

I consider that this case demonstrates a significant and serious lapse in the well-established rules and, as I have indicated, I consider that the publications concerned created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced."

[26] Before us, Mr Moynihan sought to criticise this passage on the ground that, so he submitted, in using the word "rule" the sheriff had proceeded as if it were a requirement of law that a photograph of an accused person should not be published where identification was in issue. The only rule of law was that contained in section 2(2) of the 1981 Act, and the sheriff had accordingly fallen into error. We do not accept that this is the correct interpretation of the passage in the sheriff's judgment which we have quoted, especially when it is read in the context of the judgment as a whole. The sheriff had been fully addressed on a number of the authorities referred to above, as well as the terms of the 1981 Act. What he may be taken to have meant by the use of the word "rule" is the general and salutary practice of the Scottish media in following the guidance afforded by cases such as HM Advocate v Caledonian Newspapers Ltd.

Submissions of counsel

[27] Mr Moynihan accepted that the question whether there had been a contempt of court within the meaning of section 2(2) of the 1981 Act fell to be determined as at the date of publication, and therefore without the benefit of hindsight. He also accepted that, in general, in a case in which identification is in issue, publication of a photograph of the accused will properly be treated as a contempt of court. He therefore accepted that, had a photograph been published of Mr Burrell at the same time (assuming him to be an ordinary member of the public), that would have constituted a contempt. He argued, however, that an exception fell to be made in the case of a "celebrity". A person might be sufficiently well known to the reader of a newspaper for mere mention of his name to conjure up his image. In the present case the judgment of those concerned in the publication of the story in the Daily Record was that to have named Mr Riordan would be as good as fully identifying him. In an ordinary case, where identification might be in issue, there was a risk that a witness who was otherwise unable to identify the accused would be able to do so as a result of the publication of his photograph. In the case of a celebrity, however, this was not so. Publication of the photograph would not add to public knowledge and would not therefore be prejudicial. In referring to a "rule" the sheriff had precluded consideration of this possibility.

[28] The Advocate depute submitted that the sheriff had not erred in his approach: he had applied the law as stated in the 1981 Act. The provisions of section 2(2) required the court to proceed on a case-by-case basis. While there was no absolute rule against the publication of a photograph of an accused person, even where identification was in issue, in general such publication would constitute a contempt of court. Any exception to that generality required to be justified by reference to the particular circumstances of the case.

Discussion

[29] We reject the approach urged on us by counsel for the petitioners, which finds no support in the authorities when expressed as a general proposition. The law is as stated in HM Advocate v Caledonian Newspapers Ltd. and the authorities quoted therein. Where identification is in issue, publication of a photograph of the accused that gives rise to the possibility, not remote and greater than minimal, that it may affect the ability of a witness or witnesses to identify the accused, will constitute contempt of court within the meaning of section 2(2) of the 1981 Act.

[30] Fame, celebrity - its often tawdry modern counterpart - and notoriety all carry with them the possibility of recognition by members of the public. It may be that a person will be so well known that mere mention of his or her name may be expected to bring an image to the minds of the vast majority of members of the public. But such cases will be rare. We find it impossible to accept that there are categories of person, such as footballers, of whom it may be said, a priori and without other evidence, that they are "celebrities", attracting instant recognition and recall both on and off the pitch, so that an exception can be made in respect of them without regard to the circumstances of any particular case. Recognition of a person is a notoriously subtle process, one which is best described by psychologists; but our own experience in the criminal courts justifies this description. It is common experience that one may fail to recognise a person, familiar in a particular context, when seen out of context. The only safe course, where identification is in issue, is not to publish any photograph or similar image of the accused, at least until a stage of the trial when there is no question of further identification evidence being given.

[31] In the present case, what the Crown had to prove, in order to secure a conviction, especially upon charges 1 and 3 in the complaint, was that each of the two complainers had been assaulted, and that the two accused were identified as their assailants. Moreover, in order to establish concert, the Crown required to establish not only what each accused himself did, but that the inference could be drawn that each was acting in concert with the other in pursuance of a common criminal purpose. This required detailed consideration of the whole events. It would not be enough for the Crown that the complainers were each able to identify Mr Burrell and Mr Riordan as having been at the locus: the exact nature of the participation of each of them required to be described. It was therefore necessary that evidence be given which would serve to identify Mr Burrell and Mr Riordan and the parts played by them as participants throughout the incident. We can see no basis upon which it could be said that Mr Riordan, however well known as a footballer, was otherwise so well known that no risk would be created by publication of his photograph; and, although the matter fell to be determined at the point of publication, the fact that neither witness had previously seen or heard of Mr Riordan bears this out. On the contrary, it appears to us that its publication created a not insubstantial risk that the memory of the witness who had already started giving evidence, but had not yet been cross-examined, might be reinforced and thus make his identification of Mr Riordan more confident; and the other witness, who had not yet started his evidence, might be assisted in his identification by publication of the photograph. In our opinion, the proper approach is that already well recognised in the Scottish cases, passages from which we have quoted above. There may be cases in which publication of the photograph of an accused person may not give rise to a risk of substantial prejudice, but such cases are likely to be rare; and we are satisfied that this is not one of them. In our view, therefore, treating the standard of proof as proof beyond reasonable doubt, the sheriff correctly held that the petitioners were in the circumstances in contempt of court by publishing the photograph of Mr Riordan.

Result

[32] For these reasons, this petition is refused.