Category Archives: Contempt of Court

Mark Daly Reveals Rangers’ “Smoking Gun” – Craig Whyte Taped David Grier of Duff & Phelps

Mark Daly of BBC Scotland has produced another chapter in his revelations regarding the events surrounding the administration of Rangers Football Club PLC. Following his two previous programmes, and his Scottish BAFTA nomination, he was on Reporting Scotland tonight.

The details can be read on the BBC website here.

The story tonight was based upon recordings made by Craig Whyte in a meeting with David Grier of Duff & Phelps. If Mr Whyte has been regularly taping meetings and calls in this process, one wonders if there might be people, in addition to Mr Grier, who are rather worried tonight.

Mr Daly’s previous programme in May prompted the issue of a statement by Duff & Phelps. The article, which was on the official Rangers website here – http://www.rangers.co.uk/news/football-news/article/2786614 – is no longer there.

However, I have a copy of it and the relevant extracts are below. You can read the full statement, and my comments on it here – https://scotslawthoughts.wordpress.com/2012/05/26/some-questions-for-david-grier-and-the-administrators-of-rangers/

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David Grier, who was the engagement partner at MCR, said: “I categorically deny that at the time of the Craig Whyte takeover of Rangers, I had any knowledge that funds from Ticketus were being used to acquire the Club. This accusation is wrong, highly defamatory and betrays a lack of understanding of the facts. Continue reading

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Filed under Contempt of Court, Courts, Craig Whyte's Companies, Rangers, Ticketus

Rangers Update – Mr Ellis & Mr Hughes, Wavetower Ltd, and the “Fit & Proper” Test

I picked a good night for an early bed! The Rangers Tax Case Blog burst into life with frenzied debate re a new issue and an ongoing matter. As is my wont, I started to post a comment, then realised that it would be better to put the comments here, with a link on the RTC blog.

 

Andrew Ellis and Barry Hughes

This week we saw the resignation from the board of Rangers Football Club plc of Mr Phil Betts, and his replacement by Mr Ellis. Andrew Ellis is already a director of the parent company, Rangers FC Group Ltd. He was in fact rumoured to be looking to take over Rangers himself prior to Craig Whyte’s public involvement.

Mr Ellis was referred to by Mr Whyte in the press release by Rangers on the PLUS SX newswire as follows:-

“Andrew is already a director of the Rangers 
FC Group and his previous experience in 
football will be a benefit to the Club 
as we look to the future.”

Mr Ellis attended Ibrox yesterday for his first match as a director of the Club. As he walked along the road to the ground, in the company of another gentleman, he was photographed by Willie Vass.

Mr Vass is an excellent sports photographer who generally snaps Rangers matches, and events surrounding them. His website can be found here.

However, from looking at his archives, he does not generally seem to wait outside Ibrox on a cold and wet match day to take pictures of people walking towards the ground.

Accompanying Mr Ellis as he walks to the ground is Barry Hughes. Mr Hughes is a well-known figure in the West of Scotland. He was the first boxer to be simultaneously licensed to box, promote and manage. He was a successful boxer, and has managed world champions.

He is a very successful businessman too.

However, in recent years he has been subject to some less than positive coverage, and in view of ongoing matters I propose to say no more about that. However, in light of the baggage he is metaphorically believed to carry, what message is being sent out by Mr Ellis in allowing the photos referred to to be taken?

I should say that I have had met Mr Hughes on a number of occasions over many years. I have always found him to be charming, pleasant and courteous individual. The man described in the press does not match the man I have spoken to. (For the avoidance of any doubt, none of my discussions with Mr Hughes have been in the role as his professional adviser, and therefore I am not breaching any confidentiality by referring to this.)

Did Messrs Ellis and Hughes just happen to bump into each other as they walked to the ground? Was Mr Hughes there as a guest of Mr Ellis? Do they have a business connection of any kind? Did someone tip off Mr Vass that there might be an interesting photo opportunity outside the ground?

The RTC discussion last night wondered if the flurry of comment, especially on Rangers fans’ message boards about the pictures of Mr Ellis and Mr Hughes, would be picked up in the press. It appears from what was being reported that these comments were negative in nature.

I suspect the press will not run with the story (if indeed there is a “story”) on the basis that, as certain issues are ongoing, there is a risk of the newspapers falling foul of the Contempt of Court Act. Safety first is probably going to be the watchword.

Mr Hughes is, in the eyes of the law and words of that great legal scholar Billy Joel, “An Innocent Man” and that he remains until a court declares otherwise.

The juxtaposition of Messrs Ellis and Hughes however has resulted in all sorts of rumour and innuendo. Until shown otherwise, I believe that they happened to bump into each other as they made their way to the ground, and Mr Vass, being a very good snapper with an eye for a great picture, just happened to catch them as he too made his way to the front door.

On the other hand, bearing in mind Mr Hughes’ current situation, it might be in Mr Ellis’ interests, as an example of openness, to confirm that he simply met Mr Hughes on the road. That would silence the inaccurate speculation.

I would guess that Rangers’ excellent PR team at Media House will take steps to make sure that the correct message goes out, as it is clearly not a good thing for people to be discussing openly alleged connections between reputable company directors like Mr Ellis and “less savoury” characters. (For the avoidance of doubt, I am NOT referring to Mr Hughes as such a character.)

 

Wavetower Ltd

This is the original name for the company formed on 17th September 2010 to be the vehicle for the takeover of Rangers.

It was an “off the shelf” company formed by Jordans. Jordans is a business which helps by dealing with the paperwork for incorporation of bespoke companies, and provides already created companies, like Wavetower Ltd, to people who want to be “up and running” straight away.

The first substantive steps with Wavetower therefore were registered at Companies House on 22nd October 2010 when the “pre-installed” director and Secretary resigned, to be replaced as director by Mr Ellis. At the same time the registered office of the company was changed to that of Collyer Bristow, the lawyers engaged by Mr Whyte, and one of whose partners is Gary Withey, now Company Secretary for Rangers Football Club plc.

Messrs Whyte and Betts only came on board (please pardon the pun) as Directors registered with effect from 8th March 2011.

After the takeover Wavetower changed its name to Rangers FC Group Ltd, which I will refer to as “Group” from now on.

This week the Directors of “Group” changed the accounting reference date for the company to bring it forward to 30th April. This has the effect of requiring them to prepare the first accounts for the business, formed for the purposes of taking over Rangers, as discussed above, earlier than first needed. But there is an additional consequence of the move, which seems, from commercial confidentiality purposes, to be a very good one.

This was brought to my attention by “Corsica”, a poster on RTC. The effect, perhaps deliberate, and perhaps not, of the change is that the first mention of the takeover in “Groups” published accounts will be for the year ended 30th April 2012. These accounts need not be lodged with Companies House until 31st January 2013!

One suspects that, because of the tax bill being considered by the Tribunal now, there might not be a “Rangers” owned by “Group” by that stage, but we must wait and see.

Companies House records, having checked using its Webcheck service 5 minutes ago, has not registered Mr Betts’ resignation yet, nor Mr Ellis’ appointment. Hopefully they will remember to do so within the 14-day period required by the Companies Act, which they missed regarding the resignations of Messrs Greig and McClelland in October.

It will be interesting to see (as I have not yet seen confirmation either way) if Mr Betts remains involved with “Group” or if he has left the scene entirely.

 

The “Fit and Proper” Test

To be approved as a director of a Scottish football club, one needs to pass the SFA’s “fit and proper” test.

Mr Whyte’s eligibility under this is being investigated by the SFA in connection with him having failed to declare his previous director disqualification.

Some have suggested that Mr Betts’ resignation might, in some way, be connected with a desire to play a part in a newco, formed after a Rangers insolvency event. It is said (to paraphrase)that, if a person has been a director of a Club suffering an Insolvency Event, then that will mean that they would fail the “fit and proper” test.

That however is not my understanding. It would be a reason for such a failure but, as with all of these issues, would be subject to the “discretion” of the SFA.

If a director of an insolvent club could satisfy the SFA that they were not implicated in the insolvency, then they could still pass the “fit and proper” test, unless there was some other impediment, like a formal disqualification.

One scenario suggested for Rangers which would allow Mr Whyte and his colleagues to be part of a newco would have been for the Club to be brought to Insolvency by the decision from the Tax Tribunal. In these circumstances Mr Whyte may well have argued that he had valiantly tried to keep HMS Rangers afloat, at great personal coat to himself, but that the holes left in the hull by Cap’n Murray and his crew were just too great, and despite all the bailing out by Wavetower, the ship had gone down. On that basis, a newco, subject to a myriad of other factors of course, would have been entitled to have Commodore Whyte at the helm.

 

 

Some more thoughts re “sources of funds” and UEFA Licences and “overdue” bills to follow

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Filed under Contempt of Court, Football, Rangers

Can Blogs Like Rangers Tax Case Take Over from Mainstream Media?

Today on the Rangers Tax Case Blog, there has been some detailed and interesting discussion about the nature of journalism and how blogs such as that might take over from the mainstream media as far as coverage of news is concerned.

It seems to be a law that any blogger, after blogging for a while, has to write a Meta piece about blogging, so her I go fulfilling my statutory obligation!

I have taken the liberty of copying the comments from RTC which inspired me to write this, and they are at the end of this piece.

I recently attended a Scottish Press Club meeting at which James Doleman spoke. James was responsible for the excellent Sheridan Trial Blog.

During the trial of Tommy Sheridan for perjury James attended court every day and wrote detailed and balanced reports of the day’s proceedings, at all times making sure he did not fall foul of the rules of contempt. Even the most assiduous newspaper could only produce a fraction of his output, and the comments on James’ blog, like the comments on RTC, provoked much thought and analysis.

James’ blog was, quite rightly, highly acclaimed and as I understand it is used generally as a source by writers now in connection with the events of the trial, rather than any mainstream media accounts. Therefore one would expect him to be an ardent advocate of new media.

He was not, and this is the fear for blogs like RTC and the future of reporting. He mentioned that at his peak he was getting 25,000 to 35,000 hits per day on the blog (James, if I have underestimated that, then feel free to correct me!) He pointed out that the main newspapers, even at the lower end of the scale had a far wider readership, and as for TV coverage, this reached hundreds of thousands of viewers.

Therefore whilst those who read his blog were almost as well informed as the judge and jury, the vast majority of the public and professionals relying on MSM were dependent on what the media fed to them. James posited that the press had a common view, formed unconsciously, and that it was very difficult for any one reporter to go “off message”. In addition, the reporters were working within the possibly blinkered view of their employers, and there is more than one anecdote about press men watching an incident being told by their editor far away that the event is not happening!

Therefore those “in the loop” were well informed – and those outside, including in fact some reporters who popped in to court when a “juicy” witness was in the box, were not.

“Old media” no longer have the will or resources to have a reporter sit all day, every day, in court or the Parliament. As was mentioned earlier, “reporting” has been dropped in favour of “news gathering” and “churnalism” as Guardian journalist Nick Davies says, is rife. PR companies can get their puff pieces into newspapers almost verbatim as this fills a space and keeps some celebrity or special interest group onside. The ultimate fear is having access cut off, as happened to the Herald and BBC with Rangers and also as between Sir Alex Ferguson and the BBC.

James Doleman said that, if there was money in it, he would have been delighted to sit in the High Court for every high profile case and provide the same service. However, there is not, and not just would the press refuse to send a reporter of their own to sit in for the whole duration of a case, but, as I understand matters from sources I have, they would not be prepared to pay to host an equivalent of James’ blog for any upcoming cases.

I think that RTC and Phil Mac Giolla Bhain have done wonders bringing the Rangers Tax case, and related stories, into the public domain. However (and I do not have access to either party’s web stats) I am sure that any article by the “usual suspects” in the press would have an enormously bigger readership.

None of the above is to say that bloggers, like RTC, or journalists, like Phil, should stop. In fact, the reverse. There is a danger however in thinking that the coverage is reaching far wider than it actually is. Take a full Ibrox or Parkhead. How many fans (by definition people with more than an average interest in these matters) will be aware of RTC or Phil, and how many will understand what the tax case means for Rangers? That is before we get on to the even more esoteric topics of UEFA licences, when is a tax bill overdue, how late can it be left to appeal a tax assessment and whether a reference to “disqualified within the last five years” refers to the expiry of the sentence or the date of “conviction”.

Some years ago we entered a time of great peril for newspapers and traditional media. Even the smartest, like Rupert Murdoch, have struggled to cope. His brilliant success with Sky TV has overshadowed a number of failures as he attempts to adjust to a 21st century business model. The Times newspaper going behind a paywall apparently cut its readership by 90%. Graham Spiers tweeted today that he is being made redundant by the Times. Redundancy implies that his role is gone, not to be replaced.

The Herald too seems to be heading behind a paywall too. One suspects that the hard working and dedicated journalists there will not benefit from this. Instead, in an effort to keep their jobs, they will find themselves forced to produce more and more copy, with the result, as mentioned in the posts below, that “investigative” reporting will become a thing of the past.

The journalist Charles Lavery wrote an excellent piece last week about the blind alley up which much of the media has travelled, due to its obsession with sport and “celebrity”. This contributed to the excesses now being pored over by Lord Justice Leveson.

We are in a state of flux. As the mainstream media loses its battle, there are literally thousands, if not millions, of “citizen journalists” contributing to the web. Most see very little interest, but an occasional few, like RTC and Phil Mac Giolla Bhain find topics of interest to many, and write about them so well that they attract more and more interest. But a hugely successful blog post will probably be read by less people than see an article in the Hamilton Advertiser!

Someone somewhere will work out how to turn what bloggers, and journalists with blogs, do into a money making pursuit. However, the only “successful” model so far is to become so attractive to main stream media as a result of blogging that you actually get a job there! Craig Calcaterra is a former attorney in the US. He blogged for some years about baseball, until finally getting a job with NBC to blog about baseball. He gave up the law with nary a second glance.

For every Craig, there are thousands of people like me, who blog because we want to, and who might, in their wildest dreams, imagine the editor of a major paper of magazine snarling to his minions “Get me McConville (or insert the name of the blogger – not everyone thinks about me, I am sure) – and give him the biggest office in the building, with a huge salary, and an unlimited expense account!”

However, that ain’t gonna happen.

So we plug on – Phil, RTC, Charles Lavery and the like making their serious points to large (by internet standards) audiences; small time bloggers like me speaking to our regular reader (hi!); and “proper” journalists writing pieces of vastly varying quality in accord with the agenda of their respective employers.

Are old media methods of news dissemination on the way out? Yes they are. Are new media methods going to take over? Ultimately yes. However we are stuck between at least two stools just now, and where we end up, no one knows.

So, I will keep going. I hope RTC, and Phil, and Charles, and James and the rest keep doing so, and maybe that gig in the Auchtermuchty Bugle might not pass me by…

Acknowledgements – I would like to thank James Doleman, whose blog encouraged me to pick up my own keyboard, and RTC and Phil Mac Giolla Bhain for opening up and then shining a spotlight upon the biggest Scottish sports story since 1967. I also want to thank Craig Calcaterra – if one lawyer can do it, maybe, just maybe…

Finally I want to than RTC and his commenters, especially the ones quoted below, for the excellent, erudite and civilised debate which has ensured that none of us are on Mr Craig Whyte’s Christmas Card list!

StevieBC says:

04/12/2011 at 4:42 pm (Edit)

Any intelligent, Scottish football consumer will now treat the MSM with the contempt it deserves – and will choose to obtain their information from other sources, such as the RTC blog.

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Private Land says:

04/12/2011 at 5:41 pm

But that’s where they still have the upper hand Stevie. Exponentially fewer people have easy access to this type of media compared to the print and TV stuff.

That’s the Elastoplast I spoke about earlier. They may be a bunch of incompetents. Many of them may be complete tubes. Some of them are corpulent and lazy with no peripheral vision whatsoever. Trouble is that not nearly enough people are aware of that.

Over time perhaps, things will change – but I don’t think that the greater mass of people are ready to shift their media allegiances just yet.

On another pessimistic note, I can’t see unfettered Internet access going unchallenged governmentally if the threat to the traditional media is maintained.

Not that I’m paranoid mind you

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StevieBC says:

04/12/2011 at 6:04 pm
Fair points.

Absolutely, print/TV media is currently most readily accessible. In time that could/should change.
But you could also argue that the people/consumers who currently have the influence/motivation for change are also savvy with current technology. [Yes, I do like to be optimistic sometimes.]

And I do agree re: unfettered internet access. The ‘copyright/IP’ legislation introduced in the States recently is disturbing. This could very well be abused to restrict internet content – not dissimilar to the abuse of terrorism legislation in the ‘interests of public safety’.

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Brogan Rogan Trevino and Hogan says:

04/12/2011 at 8:46 pm

Good Evening all,

Can I just add a few comments to the various points made by John?

I was recently speaking to two journalist friends of mine who are man and wife. They work for two different organisations, with one being a fairly senior Editor at one national quality paper and the other being in a senior position for a chain with a number of local titles. Neither works for a Red Top, and both know journalism as their only career.

Both said to me that it was at this time of year when the publishers decide to close offices and make folk redundant in big numbers. It makes the run up to Christmas very stressful whether you are one of the ones that stay or whether you are one of the ones that go. You lose friends and find that your workload is simply increased.

Journalists are not alone in feeling this pressure, nor does it explain the really poor quality of some reporting, as some reporters seem to just go along with, and even excel at the dumbing down of proper news coverage.

There will always be some good journos and some who are rubbish. Worse still are those who write and say (on the radio) whatever it takes to get readers or listeners irrespective of the truth.

Like at least one other poster on here, I used to read papers from cover to cover- especially at the weekends. Now? – Well I couldn’t tell you the last time I bought a paper!

As paper sales fall, advertising gets squeezed, and blogs like this one flourish and gain more and more followers, surely those who control newsprint can see that the public are no longer prepared to accept lazy and trivial reporting. Blogs such as this show that the new media, dedicated to specific areas of expertise and interest, bring out all sorts of different expertise and experience from some interesting commentators and contributors. To be honest, I am amazed that no one from mainstream media has, so far as I am aware, sought to contact anyone with input into this or other blogs, where information and views which are germane to the public interest is so readily and easily available.

Mainstream reporting and media is dying and in my view the only thing that will save it is “quality” reporting and reporters. Perhaps I am alone in that view, but if I were to make a pitch for funding for a new newspaper to Sir Alan Sugar or the Dragons in the Den then I would be pushing “quality reporting” as the market to go into.

In the interim the sports guys could do far more to enhance or restore their reputation, and meanwhile good folk like my friends who want to do a proper job wait to find out if this is their time for the chop. Neither thinks they will be in Journalism in 5 years time and both wonder where people in their 50′s with 30 years experience of print journalism experience will find a job outwith that profession.

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Filed under Baseball, Blogging, Contempt of Court, Football, Personal, Press

Is the Daily Mail Website Guilty of Contempt of Court?

I have attached below an article from the Daily Mail website published on 26th August. I do not know, at this stage, if the newspaper has printed the same piece, and the photograph which may lead to the journalist or editor involved appearing in court for contempt.

I have copied it into Word to include in this post. The article, subject to what I will mention, is as it stood at 7.30 am on 27th August 2011. As I do not have the technical ability to do so, none of the photographs in the piece are included below, but as it is one of the photos which causes the issue, then I do not think this causes a problem for me.

I have removed the links on the page to various other pages in the site (which on looking at the page are those links and photos down the right hand side).

The location of the photograph which causes me to write this piece is marked “PHOTO REMOVED”.

The address for the article is noted at the bottom of the piece.

 

As the reader can see, this relates to the alleged attack on Nick Clegg in Glasgow on 25th August. Stuart Rodger appeared in Glasgow Sheriff Court yesterday, in private charged with assault. He made no plea or declaration and was admitted to bail.

The article includes a picture of the man stated to be Stuart Rodger leaving court. Whilst it is common to see photographs in newspapers of people accused of crimes, and indeed offences far more serious than allegedly throwing a paint-filled egg at the Deputy Prime Minister and police officers (serious though that may be).

 

What might the Daily Mail have done wrong?

The big problem is that this relates to an offence being dealt with by the Scottish courts. In England the rules regarding such publication are very different. Perhaps the Daily Mail has not noticed where this case is taking place? I wonder if they have a difficulty with geography?

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 last year. 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.

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 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 [2009] 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 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 [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.”

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.” (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)

 

What Now?

The Daily Mail website, both on its front page and in the article shown below, displays a picture of the man they refer to as Mr Rodger. This was published one day after the alleged incident. Identification may well be an issue at any trial. At this stage Mr Rodger has neither pled guilty nor not guilty. He is entitled to the presumption of innocence.

I cannot see how this case differs from those referred to above and therefore one might expect that the Daily Mail will have to answer a charge of contempt.

On a related point, I note that comments are open. Usually the Daily Mail does not permit comment on ongoing cases, for fear, I am sure, of prejudicing a fair trial. How long might it take them to disable comments on this piece?

It is possible that the media have asked for permission from the Sheriff to print pictures but I would be very surprised, especially as Mr Rodger’s appearance was in private. I would also be surprised if, at this stage, a Sheriff would permit such a publication, if asked.

Let’s see (a) if the article changes and the picture is removed (b) whether, in the event of such a change, the article refers to the change (c) what steps the Daily Mail takes to “purge” its apparent contempt and (d) whether contempt proceedings do arise.

 

 

DAILY MAIL ARTICLE BELOW

Saturday, Aug 27 2011 6AM  9°C 9AM 13°C 5-Day Forecast

Ex-Lib Dem member appears in court charged with throwing blue paint at Nick Clegg

By Lucy Buckland

Last updated at 7:00 PM on 26th August 2011

 

PHOTO REMOVED

Bailed: Stuart Rodger waves to crowds outside Glasgow Sheriff Court after his court appearance

A man appeared in court charged with assault today after Deputy Prime Minister Nick Clegg was splattered with blue paint.

The Liberal Democrat leader was splashed with paint during talks with grassroots party representatives in Glasgow last night.

Mr Clegg later made light of the incident, saying it was ‘no big deal’.

This afternoon, Stuart Rodger, 22, from Inverkeithing, Fife, appeared at Glasgow Sheriff Court in connection with the alleged attack.

He faces charges of assault by throwing an egg filled with paint at Mr Clegg and three police officers.

Rodger is accused of throwing the egg which struck Mr Clegg ‘on the body’ in Glenfarg Street, Glasgow, yesterday.

Rodger made no plea and no declaration and was granted bail.

The case was continued for further examination and a date is yet to be set.

More…

Mr Clegg was at the meeting at Woodside Hall in the west of the city as part of a tour of the UK.

Rodger is believed to be a former Liberal Democrat member and it is understood he left the party after the last general election.

_

PHOTO NOT SHOWN

Feeling blue: Deputy Prime Minister Nick Clegg pictured in Scotland the day before the alleged assault

PHOTO NOT SHOWN_

Scene: A policeman stands guard outside Woodside Halls, traces of blue paint are still visible on the concrete column

Carol Shedden, of Real Radio Scotland, who had been waiting to interview Mr Clegg, said of the incident: ‘One half of his face was completely covered in blue paint.

‘People rushed to his aid to wipe it off but there were still traces of the paint on his clothing – it was quite a welcome to Glasgow.

‘He just said, “these things do happen in the job. It’s no big deal”.’

PHOTO NOT SHOWN_

Swift response: Police at the scene yesterday
Read more: http://www.dailymail.co.uk/news/article-2030574/Ex-Lib-Dem-member-appears-court-charged-throwing-blue-paint-Nick-Clegg.html#ixzz1WCwTT7pP

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