Tag Archives: Crime

What Does the Neil Lennon Case Tell Us about the Issues of Sectarianism and Anti-Catholicism in Scotland?

Reader “Henry Clarson” made some detailed and thoughtful comments on my earlier post, so I thought it best to put them up as a separate piece, with my thoughts below.

Thanks Henry for taking the time and trouble to contribute!

 

Comment by Henry Clarson

Paul, I’ve read both of your Neil Lennon articles and also the one by Chris Fyffe. I don’t question for a moment that both of you are acting in good faith and are trying your best to learn from this case as well as avoid knee-jerk reactions.
I fear, however, that you’re asking too many of the wrong questions in the hope that the answers you find will be other than the fundamental one which is staring everybody in the face.

How many mature democracies have such a problem with sectarianism that they still need to discuss introducing specific legislation to address that issue in 2011? Scotland and where else?
In how many democracies in the Western world is the abolition of Catholic schools relentlessly debated at every level of society?
Notwithstanding imperfections in the current legislation, why is that the overwhelming majority of hate crime victims come from a minority group, namely, Catholics?
Mr McBride referred at the end of his Newsnight interview to jurors who can full of prejudices. If anything, he is understating the likelihood. In a sectarian society, it would be astonishing if it proved to be otherwise.

Lawyers and legal professionals can have all the intellectual discussions they want. At ground level, where I dwell, if I were giving evidence in court against a sectarian thug who had assaulted me I might have confidence in the prosecutor’s determination to secure a conviction. I might be prepared to believe that the judge would ensure that the law was scrupulously followed. I could even accept that the law itself had been framed by public-spirited legislators to protect ordinary people from harm. However, I would be wondering how many of the jurors would, in normal everyday life, curl a lip at someone entering a chapel or narrow their eyes at the sight of an acquaintance wearing a green tee-shirt. It might not matter when the verdict came in but it would nonetheless be a consideration.

The fact is that a great many people in this sad, nasty, wee country were pleased that Neil Lennon’s assailant got off with the assault charge. A great many more were not nearly as surprised by the verdict as has been made out. Some spoke of their ‘surprise’ but what they really meant was that they were disgusted, angry, sickened, deflated or in despair. It’s shocking and shameful but not much more ‘surprising’ than the routine scandal of a law-abiding black person being stopped and searched by the institutionally racist Met.

Not everyone who lives in Scotland is anti-Catholic, anti-Irish, anti-Celtic and anti-Neil Lennon but I would have no problem rounding up eight of them who would have delivered the same verdict that the jurors in Edinburgh returned. I could do that every day of the week for the rest of my life. McBride is quite right to bring up the issue of prejudice. It is the glaringly obvious reality from which every other debate is a digression.

 

 

My Thoughts in Response

What I was doing, and what Chris Fyffe was too, I think, was trying to address the specific circumstances of the John Wilson case. How could the court system possibly clear a man of a charge when literally thousands of people have seen the “assault” on television, on the Internet, and in the newspaper pictures? From time to time there are cases which shake public confidence in the “justice” system – and I feel that it helps if there are people who can make some comment to try to explain what happened.

As I have said in everything I’ve written about this case, the verdict of not guilty on the assault charge was a great surprise to me, but as Chris Fyffe pointed out, once the specifics of the charge, together with what little evidence was reported, are considered, it is possible to see where the jury (or at least eight of them) were coming from. Were they right to do so? They heard the whole case, evidence and legal submissions, and one should always be wary about criticising a court decision based on the evidence if one was not in court to hear it, or if one has not read a full transcript of the case.

Henry’s comment looks much wider than the specifics of the case. It can be true that those with a legal background might be more focussed on the particularities of a case, rather than upon the generalities. Usually, as here, there is a reason for doing so, partly because, when it comes to the debate on the wider issue of sectarianism in Scotland, there are many people far better qualified than I am to discuss it.

Before offering my view on the generalities, I would say the following about the specific issues Henry raises to make my views clear. (In response to one of the earlier pieces, I was labelled a “Hun apologist” on Twitter!)

 

1                    There is no doubt that there is a serious problem with what is labelled “sectarianism” in Scotland, especially in the West.

2                    It has been described by the First Minister as “Scotland’s shame” and as a “cancer” upon our society, and the Scottish Ministers are pledged to reduce and eliminate it.

3                    The furore about the incidents last season, and the proposed new football related legislation in the summer made it clear that, throughout Scottish society there was an apparent recognition of the problem and a stated desire to act to remedy it. The issue was how best to do so.

4                    The most common victims of “sectarian” offences are those perceived to be associated with Roman Catholicism.

5                    There are repeated efforts to attack the Catholic education system, which is wrongly blamed for promoting “sectarianism” even though many non-Catholic parents prefer to send their children to such schools, rather than to non-denominational ones.

6                    Jurors are human beings. They will have prejudices. The court system is designed, as far as possible, to eliminate these prejudices from jury verdicts.

7                    I agree that there will be some who welcome this verdict and who see this, in some warped way, as carte blanche to try to emulate Mr Wilson (although I suspect that when he is finally sentenced for his breach of the peace, people might react with surprise about how severe a punishment a court can, and will, impose for that crime).

8                    Are there people in Scotland prejudiced against Catholics, Irish people, Celtic fans and Neil Lennon? (which is not to say that those categories are always related – they are not) Of course there are.

9                    Is there a perception that, in the same way that Rangers are alleged always to benefit from support within the football authorities, the Scottish State is biased against Catholics? Yes, there is. As the saying goes, just because you are paranoid, it doesn’t mean they are not out to get you!

10                I grew up in Coatbridge, and even there, with its Catholic reputation, the problems of sectarianism were apparent, whether involving Celtic and Rangers or, on a lesser scale, Albion Rovers and Airdrieonians. Noticeably, in my day, the problems between school pupils did not relate to whether their were of a different demonination – being a different school was enough.

 

As I said, there are many better able to debate these matters than me, but I hope I can offer something from a legal background which might be of value (or indeed might not).

 

There is no doubt that there are tensions present in Scotland which are categorised under the heading of “sectarianism”. Anyone who suggests differently is wrong. But we need to look at how that manifests itself.

The majority of “sectarian” offences, as defined, seem to be committed in connection with football. This may relate to offences at or near the football ground, at or near a pub or club showing a game, or based upon someone wearing what is taken by someone else to be the “wrong” colours.

The law has recognised that there are certain matters categorised as “hate-crimes”. As an aside that always seems a rather Orwellian term, and not in a good way, but it is what those in authority use to describe these matters.

Specifically, in relation to sectarianism, we are talking about religion. The present law is laid down in the Criminal Justice (Scotland) Act 2003 section 74  titled “Offences aggravated by religious prejudice”.

Subsection 2 states:-

“For the purposes of this section, an offence is aggravated by religious prejudice if—(a)at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation; or(b)the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.”

The use of the term “Fenian b######” as Mr Wilson was alleged to have shouted, was considered by the Appeal Court in Walls v Procurator Fiscal, Kilmarnock [2009] HCJAC 59 where the court rejected Donald Findlay QC’s argument that the use of the word “Fenian” was a comment regarding politics, whereby his client had been referring to the “Fenian Brotherhood, a political society, set up originally in America in the 1850s, to bring about the independence of Ireland.”

The Appeal Court rejected this, stating “The Court does not accept that the appellant was referring to members of the American brotherhood formed in the 1850s. It is within judicial knowledge that the term “Fenian” is used by a certain section of the population to describe a person either of Irish ancestry or even a person of the Roman Catholic faith, whether of Irish ancestry or not. Coupled with the derogatory term “bastard”, this is either an expression of religious prejudice or racial bigotry or both.”

As a side issue, it is interesting that, in Mr Wilson’s case, the aggravation was not libelled as a racial one, as it was for Mr Walls, even though Neil Lennon is notably Irish!

What we find is that the authorities are treating supporters of, for example, Celtic Football Club as being members or presumed members of a “social or cultural group with a perceived religious affiliation”. In such a case abuse of a Celtic fan (or indeed of a Celtic manager), becomes a “religious” aggravation. Whilst football is very important to many, and some go as far as to refer to it as a religion, the fact is that football and religion are not synonymous. Rangers fans are not necessarily Protestants; Celtic fans not necessarily Catholics.

 

In an alternate universe, Celtic and Rangers might be disbanded. This would not solve the “sectarian” issue overnight, but undoubtedly would take some of the heat out of the tensions which exist. There have been problems between Protestant and Catholic in Scotland since the Reformation, but now the “badge” of each side seems to be the support of the appropriate football team.

But, for many reasons, and rightly so, Celtic and Rangers are here to stay (the HMRC involvement in Rangers’ financial affairs permitting). I don’t imagine that many of the people shouting vile abuse at the other side on a Saturday are in their place in the pews in the Kirk or Chapel on a Sunday. Yet these football hatreds are classified as “religious”.

 

One of the problems with the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the most recent effort to solve this problem, is the linking, I think, of football and religion.

Footballing hatred does not sit exactly on top of religious hatred in the relevant Venn diagram, but the approach to these matters seems to assume that they do.

Trying to squeeze circumstances into the guise of an “offence religiously aggravated” when it involves references to old political bodies, or even more ancient battles, such as the Battle of the Boyne, creates the problems exemplified by the Wilson case. The issue about whether he called Neil Lennon a “Fenian b######” which would have been a religious aggravation or as he claimed a “f##### w#####” which would not, seems bizarre. The bottom line was that the man attacked Neil Lennon and caused a breach of the peace, potentially inciting a riot. The linkage of football rivalry to religious has caused the stushie we have seen in recent days.

If then we are not to disband one, other or both of the Old Firm, how might the problems be addressed?

Parliament can make clear that offences are worse if they take place in particular places, or involving particular people. An example is the legislation protecting emergency workers.

Let our MSP’s forget about bundling football and religion together. Bring in specific legislation indicating that offences in connection with football can be treated more severely by the courts, due to the knock on effects on other “supporters”. Remove the references to hatred of specific groups from the proposed legislation. Let the Procurator Fiscal prosecute without the restrictions placed on him by the classification of the mater as a “hate crime.”

Other action to deal with perceived “religious” hatreds, such as greater ability for local authorities and the police to restrict, re-route or prevent marches which are likely to cause disorder, are already in place.

The curse of alcohol related violence at football was greatly reduced by the Criminal Justice (Scotland) Act in 1980.

Perhaps a focus on specific football related crimes for a period, would clear some of the nonsense away, and let us see precisely what specific problems of religious hatred remain. We need a clear sight of the problem to give the country the best chance of solving it.

Taking action to strip away the “respectability” with which football seems to cloak sectarianism, and laying the issue out starkly, would give our nation the best chance of solving the problem and lifting the curse!

 

 

Leave a comment

Filed under Courts, Criminal Law, Football, Jury System, Offensive Behaviour at Football and Threatening Communications (Scotland) Bill

Some More Thoughts Re the Neil Lennon’s Case – by Me @ Scotzine.Com

Scotzine.com is a comprehensive website covering all aspects of Scottish football.

 

In response to a piece by Joanne Lennie earlier today regarding the layperson’s view of the acquittal of John Wilson on the assault charge   I penned a few thoughts in the hope of clarifying and expanding upon various points.

Think of this as a follow on from my earlier posts about the John Wilson case. I think it’s worth a read (but then I wrote it!)

You will find it on the Scotzine site here.

Once you’ve read it, hang around and take in other stuff on the site. Well worth your time.

Thank you!

I will see you back here for the densely written and esoteric legal stuff soon!

1 Comment

Filed under Criminal Law, Football, Jury System, Me at Scotzine

Why Did the Jury Acquit Neil Lennon’s Attacker? Paul McBride QC Thinks He Knows

 

 

Following on from the furore regarding the acquittal of John Wilson on the charge of assaulting Neil Lennon last season at Tynecastle, Paul McBride QC turned up on Newsnight to discuss the verdict.

Mr McBride is one of the finest lawyers in Scotland, and his courage in dealing with having an alleged letter bomb allegedly sent to him is much to be admired.

However I think that he was slightly less than fair in all that he said, and I wonder if his comments are a preview of a position which will become more widely adopted.

Mr McBride expressed astonishment at the verdict passed by the jury. He commented that he had spoken to no one, whether in the legal profession or outside, who could remotely understand the verdict of not guilty on the assault charge. As he was speaking, various people, some with legal backgrounds, were seeking to explain the verdict if not seeking to justify it.

Chris Fyffe, a Dundee solicitor-advocate, in a detailed and thoughtful analysis commented at length regarding the matters which had been publicised to point out how the jury might have arrived at its decision.

The process by which a jury reaches its verdict is shrouded in mystery, and under Section 8 of the Contempt of Court Act 1981  it is an offence to “obtain, disclose or solicit” details of the jurors’ deliberations. The Scottish Courts have regularly confirmed that it is impossible to go past the jury room door once the judge has sent the jury off to consider its verdict, for example in the case of Scottish Criminal Cases Review Commission, Petitioners in which the decision was handed down on 25th July 2001 and which is reported here.

So all that anyone can do is to guess at quite how or why the jury reached its verdict as regards Mr Wilson.

Mr McBride however did appear to be well aware of what was, in his view, relevant to the decision. He commented that the Crown had presented an excellent case. Bearing in mind that Mr McBride was not present in court throughout the case, as I have had confirmed to me, one wonders how he is in position to comment on how the case was presented. It is not uncommon for an apparently watertight case to leak like a colander once the lawyers start talking, and witnesses enter the witness box. That is why, after all, we actually hold a trial!

Whilst I have read and heard opinions expressed that the Crown must, in some way have botched the presentation of the case, I am in an equally poor position as Mr McBride to comment on how the case was laid out in court as I was not there either. Any criticism I have of Crown Office relates to the background of the apparent removal of discretion from the individual prosecutor, rather than anything done in Edinburgh Sheriff Court by them.

But Mr McBride concluded with a statement which is, to me, of great concern. Whilst he did not specifically relate it to this jury (and neither he nor anyone else is capable of speaking with authority about this particular jury) his comment by implication did seem directed towards the jury box at Edinburgh Sheriff Court.

He complained that in Scotland, unlike many other systems, we had jurors who could not read, who could not write and who were laden with prejudices. Something had to be done, said Mr McBride, to resolve this problem.

Mr McBride, as well as his prominent position in the legal firmament, is closely linked with the Conservative Party, having left the Labour Party behind.

In light of that, might his musings about the defects in the jury system be given greater credence, than those of other lawyers?

Many lawyers over the years have blamed the jury and its quirks for a case ending in a way they did not like. This applies equally to prosecution and defence. It’s like blaming the referee for losing a football game, or the doctor stating that the operation was a success, but the patient died.

Is the Scottish court system imperilled by illiterate, innumerate and prejudiced jurors? Have we now reached a stage where the jurors’ oath and the directions of the judge are no longer sufficient to ensure that justice is done? Does Mr McBride want a return to the days of “peremptory challenges” of jurors, where generally the defence would object to any teacher sitting on the jury and if a person turned up for jury duty with a suit, bowler hat, rolled umbrella and copy of the Daily Telegraph, they would be objected to before they had had a chance to move towards the jury box?

Does Mr McBride want to have jury vetting, as in the United States? In a recent high profile case there, where the baseball star Roger Clemens was tried for perjury, jury selection went on for over a week, before the trial, having started, collapsed on Day 2! Whilst the legal profession might delight in the extra work such a process would bring, it would do nothing for the hard pressed courts and the amounts of work that has to be processed.

Should there be pre-jury service questionnaires to establish competence on the part of prospective jurors? I suspect some would try to “fail” such tests so as to avoid service! Should we revert to some form of property or other qualification for jurors? For example, must they be a home owner and in employment, and how does that deal with the questions of competence and prejudice?

I may be making far too much of a throw away remark by Mr McBride QC, but he is not a man known for that. Generally his comments are well thought out and delivered clearly. If he feels that the jury system needs revised in some way, then I am sure he could persuade others to that view. Where might that lead?

In conclusion, the maxim that “Hard Cases make bad law” is figuratively engraved on anyone who has studied law. Taking unique or especially troubling, distressing or baffling cases or incidents and trying to establish some across the board change as a result is usually a recipe for disaster, for example with the Dangerous Dogs Act. Let’s hope that the decision of the jury in Mr Wilson’s case, who were of course the best placed people to determine the issue of Wilson’s guilt or innocence, is not used to make radical changes of any sort.

 

8 Comments

Filed under Courts, Criminal Law, Jury System, Law Reform

Neil Lennon Was Not Assaulted by the Man Who Admitted Assaulting Him!

Lawyers are often sceptical of media reports of court cases where the media express shock at the decision of a judge or jury. The view amongst the legal profession is that, without having seen and heard all of the evidence, and legal submissions in the case, one cannot offer a properly informed opinion. It is generally not especially constructive to comment upon a court case based only upon the limited reports of proceedings in the newspapers and on television.

However, every once in a while there comes a case where even lawyers will say “What the @#%* happened there??!!”

One such reached a verdict today, in the case against John Wilson, heard before a jury at Edinburgh Sheriff Court. Mr Wilson faced charges that, at a Hearts v Celtic match last season, he had assaulted Neil Lennon, the Celtic manager, and had caused a breach of the peace “by conducting himself in a disorderly manner, running onto the field during the match, running at the away team dug out, shouting, swearing, making a sectarian remark, all to the alarm and annoyance of others and causing further disturbance within the crowd” and that both offences were aggravated by religious prejudice.

The jury returned a verdict of guilty on the charge of breach of the peace, with the sectarian element removed, and not proven on the assault charge.

Bearing in mind that the incident had been seen by several thousand spectators at the ground, by hundreds of thousands on television, and by large numbers on the Internet, it seemed astonishing that Mr Wilson was contesting the charges at all!

That surprise however was overtaken by shock at the jury’s verdict. How could this happen?

 

The “perverse” jury is an age old phenomenon.  John Liliburne was acquitted by a jury in 1649 on a charge of High Treason for his opposition to Oliver Cromwell, despite the clear direction of the court that he should be convicted. In Bushel’s Case in 1670  Edward Bushel had previously been a juror in the trail of the Quakers’ founder, William Penn. The jury had returned a verdict with which the judge had disagreed. The judge proceeded to “punish” the jurors, imprisoning and fining them. Bushel stood against this, and it was ruled that a jury could not be punished for the verdict it returned.

Even in recent years, such as in the case of Clive Ponting,  who had admitted passing on “secrets” to Tam Dalyell, MP, juries have stood against what they consider to be oppressive behaviour by the State. Mr Ponting was effectively guilty of a “Strict liability” offence under the Official Secrets Act 1911. The judge at his trial in 1985 was minded to take the case out of the jury’s hands as no legal defence existed. However the prosecution, perhaps concerned by political implications of a conviction without the jury “rubber stamping” the verdict, insisted that the matter should be put to them. Despite directions that there was no defence, the jury acquitted Mr Ponting.

It might seem strange to cite these important cases in connection with that of Mr Wilson. This, at first, seems more akin to a recent case before a jury in a Scottish court where the accused faced two charges. The Sheriff directed that he could be convicted of either, or of none, but not of both. After long consideration, the jury returned to court to seek the Sheriff’s assistance. Could they convict the man on both charges, as that was what they were minded to do? The Sheriff repeated the direction that it was one conviction, or none. After a further short break, and as the clock ticked past 5.30pm, the jury returned. A “Not Proven” verdict was delivered on both charges! The legal process puts itself in peril if it prevents a Scottish jury getting its dinner on time!

 

Already the theories regarding Mr Wilson’s jury being packed with Hearts’ fans or Rangers’ fans are doing the rounds. But comments by David Nicolson, Mr Wilson’s excellent defence counsel, seem perhaps to make the mystery clearer. He is quoted as having said in court that his client had earlier been willing to plead guilty to breach of the peace and assault under deletion of making a sectarian remark and being aggravated by religious prejudice, but the Crown had not accepted his plea.

On that basis, as an acceptable plea could not be agreed, the case had to proceed to trial.

From the evidence reported, it seems that there was only one witness who spoke in support of the “sectarian remark” allegation. As a consequence it could be argued that there was never any prospect of a conviction on that basis, and the jury, it would appear, seemed to decide to “punish” the prosecution by not convicting the man for an assault he had effectively admitted!

 

Why would the prosecution have taken such a stance, with the consequences it appears to have had?

As has been made repeatedly clear by successive Scottish administrations, there are certain types of criminal offence which are of particular concern and which the police and prosecuting authorities focus on stamping out. Offences motivated by prejudice, such as those aggravated by racial or sectarian hatred, domestic violence, and knife crime are all areas where the decision has been taken that extra effort is required to reduce, or even end, these blights on our society.

As a result, prosecutors have been given ever more strict guidelines as to how to deal with cases where there is one of these elements alleged to play a part. This can mean that prosecutors no longer have discretion, on a local basis, to remove such a part of a charge, without clearance from Crown Office in Edinburgh.

 

The net effect, as we see here with Mr Wilson, is that cases go to trial which really ought not to, and verdicts are arrived at which, frankly, make the Scottish justice system look ridiculous. The jury’s decision vindicates that plea of not guilty tendered by Mr Wilson’s legal team.

To an extent, one can sympathise with the Crown Office who must feel that they are damned if they do, and damned if they don’t. Only last week they were criticised  for not acknowledging a racial element in the killing of Mr Simon San.

 

However, it is clear amongst criminal defence lawyers that the approach taken by the Crown Office regarding these matters has resulted in verdicts which seem perverse, with victims having to give evidence in cases where they really ought not to have to, and to substantial additional costs in terms of court expense and Legal Aid. One of the vital elements of the Scottish criminal justice system has always been the discretion given to each local Procurator Fiscal, often deciding how to deal with cases “in the public interest” having taken account of local circumstances and conditions. A “one size fits all” approach is not the best here, I feel.

And also the insistence on the part of the Crown that the religious/sectarian aggravations stayed as part of the charges simply confirms what the late Sheriff John Fitzsimons discussed many years ago at a session for Dumbarton Faculty solicitors, where he was speaking about the difference between “racially aggravated offences” and “offences racially aggravated”. These “hate crime” aggravations have now been extended to other areas, as mentioned above, but the late Sheriff felt that these semantic distinctions, which were important as far as disposal of a case was concerned, were confusing enough for the Sheriffs, never mind the jurors who might be required to consider them in serious cases.

 

The chickens have come home to roost today and Mr Wilson has benefited, as far as his verdict goes anyway, from the apparent insistence of the Crown to have a sectarian element attached to his conviction, perhaps especially as this incident formed part of the shameful sequence of events surrounding football earlier this year which caused the SNP Ministers to promote the flawed Offensive Behaviour at Football and Threatening Communications (Scotland) Bill and had the First Minister referring to the “cancer” of sectarianism.

We now have a man who undoubtedly was guilty of an assault, aggravated by the circumstances in which it took place, cleared of that offence. This makes the campaign against the curse of sectarianism seem lacklustre.

 

Hopefully it will not provoke the Justice Secretary into deciding that the Bill referred to above should be revised to make it easier to gain such convictions.

Instead it would be better if the level of Procurator Fiscal independence, within the Crown Office framework as was the case of old, could be restored.

If not, I suspect we will see continuing cases where apparently ridiculous verdicts are returned, and whilst this is a good thing for newspapers and bloggers with space to fill, it undermines and demeans the whole justice system.

24 Comments

Filed under Courts, Criminal Law, Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, The Scottish Ministers

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

2 Comments

Filed under Contempt of Court, Courts, Criminal Law, Daily Mail, Politics, Press, Uncategorized