The Lord Advocate v. Scottish Daily Record and Sunday Mail Ltd [2018] HCJAC 32

Petition and Complaint:- Here the respondents admitted contempt of court in relation to two articles published by it in the Daily Record and its website on 11 February and 22 May 2017 in relation to two cases relating to two males ‘A’ and ‘B’. Criminal proceedings were ‘live’ in relation to both individuals. In relation to ‘A’ the proceedings related to alleged connections with serious organised crime and in relation to ‘B’ the proceedings related to alleged sexual offences against children. The published article relating to ‘A’ was described as sensationalist in nature and described him as a “gang boss”, “cocaine kingpin” and “cocaine baron” and suggested he was involved in a violent turf war with rival gangsters. References were also made to him having access to weapons and money and that he had a significant criminal history, describing him as “one of Scotland’s most wanted men”. The article in relation to ‘B’ included photographs taken of him following the alleged commission of the offence which he was to be prosecuted for and was accompanied by the words “Dramatic moment cops restrain man accused of attempting to abduct two young girls in the woods”. It was accepted on the part of the respondent that in relation to both articles the statutory test, namely, whether there was a “substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced” had been met. It was submitted, however, that whilst there had been a contempt no actual prejudice resulted, albeit that factor would only be relevant in relation to the issue of sentence. It was submitted on behalf of the respondents that both articles had been ‘legalled’, albeit, in relation to ‘A’, the solicitor who reviewed the article had been seriously unwell and heavily sedated by a doctor which rendered her “incapable of rational thought let alone advising clients on legal matters”. It was conceded on behalf of the respondent that the contempts were so glaring, particularly, in relation to ‘A’, that the editor ought to have questioned the legal advice given. Here the court considered that the contempts related to very serious charges. In relation to ‘A’ the court considered that the article carried a severe prejudicial risk to the course of justice in light of the detailed and prejudicial information contained within it. In relation to ‘B’ the court viewed the publication of the photograph as particularly serious as was the information provided in relation to what would be the subject matter of any future trial. Here the court noted that the respondent had accepted guilt and tendered an apology for the articles, albeit that had come relatively late in the proceedings, answers to the petitions previously having been lodged. The court also had regard to the time interval between the publications and the trials and imposed a cumulo sentence of £80,000 in relation to both petitions.