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.
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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
Random Thoughts Re Scots Law by Paul McConville 