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The Law Column: Contempt without borders


Last week, many national, Scottish, and some of the more northern English regional media outlets received an “operational note” from the Crown Office and Procurator Fiscal Service, otherwise known as Scotland’s prosecution service in which a warning regarding contempt was given in relation to the case of Alex Salmond, former leader of the Scottish National Party.

As we all know, there are two types of contempt, the first being common law contempt covering matters such as attempts to pervert the course of justice, or interference with the administration of the law.

The second, and more relevant for current purposes, is statutory contempt pursuant to the Contempt of Court Act 1981 which relates to the publication or reporting of criminal, and other legal, proceedings.

The offence of statutory contempt occurs when material is published that would “create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.

As an English lawyer, I’m not going to delve into the specific detail of the warning or of Mr Salmond’s case here, as I don’t want to end up on the wrong side of Scotland’s hyper-stringent approach to the law of contempt.

As you may recall, this recently issued note from the authorities is not the first time that the issue of contempt has reared its head in relation to Mr Salmond’s trial.

Back in December, Channel 4 took the decision to pull a scheduled episode of Gogglebox in which members of one of the participating families were seen to make comments that could potentially have been considered prejudicial.

In relation to the current matter, to English legal eyes what is most interesting is that this note has been issued at all.

In Scotland, as in England and Wales, the Contempt of Court Act 1981 is the applicable law.  We all have to abide by the exact same provisions concerning contempt, anonymity given to victims of sexual assault, and so forth, and so surely provided that media outlets are taking care to adhere to the requirements of the relevant legislation, there should be no problem?

Well, not exactly… Despite the law in both countries being exactly the same, the approaches taken by each of the jurisdictions varies significantly.

It has long been understood that Scotland takes a far more strict approach to the application of the law concerning contempt. This highlights the tensions that can arise between two separate legal systems in the interpretation of shared legislation.

Aside from the legal peculiarities, these differences can result in practical difficulties too. For example, in a well-established Scottish case from 1979, the Glasgow Herald was found to be in contempt of court in relation to an article they had published which was based on a Press Association release which originated south of the border.

In England, the release caused no issues around contempt and was considered well within the confines of acceptable publication, but it was a different story in Scotland.

This case, in spite of its age, highlights issues that are, arguably, even more relevant, given the advent on online publication and news publication via social media.

Publications made anywhere in the UK, including online, concerning Scottish proceedings will be subject to the more strict, Scottish interpretation of the law regarding contempt.

So remember, you may be in England, reporting in the English media but the applicable approach to the law here is the Scottish one, and we have most certainly been warned…