The news broke yesterday that Andy Coulson, former bigwig at the News of the World, and latterly Director of Communications for the Prime Minister, had appeared in private at Glasgow Sheriff Court last Thursday on a charge of perjury. He made no plea or declaration and was released on bail.
Why Was His Case Dealt With In Private?
Before anyone suggests that Mr Coulson was receiving privileged treatment by having his case dealt with in private, that is in fact the required procedure for the first appearance on petition in a serious criminal case. These are always dealt with “in private”. That can mean in Sheriff’s chambers, or in a closed court, where only the Fiscal, defence agent and accused are present (along with the Sheriff and court and security staff).
The reports indicated that Mr Coulson was represented by the Dean of the Faculty of Advocates, Richard Keen QC. It is unusual to wheel out the “big guns” so early in a case like this, but sometimes “visitors” from England fail to appreciate that solicitors deal with such appearances every single day. So Mr Coulson is likely to have incurred a substantial cost for Mr Keen’s appearance (and even if he applied for and was granted Legal Aid – and there is no indication he did – the public purse would not be paying for Mr Keen’s undoubtedly excellent services).
Why Was the Matter Reported Yesterday and Not Last Week?
The matter was only reported yesterday because the Sheriff had made an order at the hearing on Thursday prohibiting publication of any details of the case, but Sheriff John McCormick (who one assumes was that Sheriff) lifted the order yesterday.
Obviously, as there are live criminal proceedings, comment on the matter should be restrained, but, as sometimes happens when a UK figure appears in court in Scotland, the coverage seems unusual to Scottish eyes.
Why Was the Coverage Unusual?
Simply because all of the online pieces I have seen about the matter are illustrated with pictures of Mr Coulson!
Why is this a problem?
In England rules regarding publication of photos of the accused are very different.
Because of the different rules applicable in Scotland, including that of “dock identification”, the law has been for many years that it is not permissible to publish the photograph of an accused person, referring to the case against them, whilst proceedings are active. This applies unless, in a very rare case, the judge permits such publication, as in the trial of Tommy Sheridan. Of course such publication occurred at the stage of the trial, rather than at the very start of the proceedings.
A judge might accede to requests from the media to permit publication of photographs where identification of the accused is not an issue in the case. Otherwise, photographs of an accused are not published until a verdict is reached, or, in jury cases, until the evidence is complete.
That may very well have happened here, but if so it seems to be an unnecessary dilution of Scottish procedures.
The purpose of the rule is to prevent evidence of witnesses as to identification of an accused being tainted by their having seen pictures of the accused linking them to the alleged offence.
The Law on Publication of Pictures of Accused Persons in Scotland
The matter is governed by the Contempt of Court Act 1981 and the law in Scotland has been explained in various cases.
In the Scottish Daily Record & Sunday Mail v Procurator Fiscal, Edinburgh  HCJAC 24 the High Court reviewed the law on this matter in detail. The newspapers in question had been fined for contempt of court for publishing the picture, during the trial, of a well-known footballer charged with assault. The newspapers appealed against the finding of contempt, but were unsuccessful.
Lord Nimmo-Smith (a name well=known to the readers of this blog) delivered the court’s opinion, including a reference to various cases and particularly to HM Advocate v Caledonian Newspapers Ltd 1995 SCCR 330 which is considered to be the leading case concerning publication of pictures of an accused, and contempt.
In that case Lord Justice General Hope (as he then was) said the following:-
“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  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.”
“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)  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.” (Emphases added.)
Lord Nimmo Smith, after considering the submissions of counsel for the Daily Record & Sunday Mail concluded by saying:-
“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.
“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.
“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…” (Emphases added)
So Did Any Media Outlets Break the Law?
Bearing in mind the nature of the case it seems highly unlikely that identification would be an issue, so whilst on one view the reports may be contrary to the Act, they might not actually amount to a contempt of court, as per the formulations described by the judges above.
It is possible that the media, as well as asking for the restriction on reporting the matter at all to be lifted, asked for permission from the Sheriff to print pictures. It would be interesting to see the reasoning for the request and for the Sheriff’s decision.
How Does a Journalist Know a Contempt of Court Act Order Has Been Made?
For some years now the Scottish Court website has published a list showing cases where orders restricting or preventing reporting of cases under the Contempt of Court Act have been made. Bizarrely, since the redesign of the site, the link to the list is dead. Therefore, despite being in the internet age, a prudent journalist would have to make enquiries of the Clerk of Court to ensure that they did not, inadvertently, breach reporting restrictions!
What About Publications Pre-Restrictions Which Could Be In Contempt If Published Now?
One further interesting point regarding contempt relates to the matter of publication. There are websites, this one included, which have given extensive coverage to the Sheridan case and its aftermath. It would almost certainly amount to a contempt for a website or newspaper to publish now a piece which would have been entirely legitimate and appropriate before Mr Coulson was arrested and charged. Some recent discussions about contempt of court have suggested that, in some way, a judge should be able to make an order “purging” the internet of items which might prejudice a fair trial.
I await with interest any news suggesting that, for example, James Doleman’s excellent Sheridan Trial Blog, or any posts here, or more likely any online media reports of the case have been ordered to be removed, and indeed whether, as matters proceed, the defence make such an application.
After all, it would almost certainly have been a defence motion to impose the reporting restrictions which the Sheriff granted last week.
So if this blog disappears, we know who to blame! (Only joking Mr Keen!)
Posted by Paul McConville