JUDGEMENT OF SHERIFF J. DOUGLAS ALLAN
IN THE CASE OF THE
TRIAL OF KEITH JOHN BURRELL and DEREK GEORGE RIORDAN
HEARING IN CONNECTION WITH ALLEGED CONTEMPT OF COURT
By interlocutor of 6 August 2007, the Scottish Sun Newspaper, the Scottish Daily Record Newspaper and Scottish Television were appointed to be represented before me on Tuesday 4 September 2007 within Edinburgh Sheriff Court together with legal representation, to answer an alleged Contempt of Court in respect that on 15 May 2007, during the 6 p.m. News Bulletin on Scottish Television, and on 16 May 2007 in the Scottish Sun Newspaper and in the Scottish Daily Record Newspaper, there appeared a photograph of the accused Derek George Riordan.
On 4 September 2007 there appeared
STV Central Limited, represented by Mr Gordon McMillan, Head of News, and Ms Helen Arnot, Head of Legal Department, along with Mr McKie, of Levy and McRae, Solicitors ;
Scottish Daily Record and Sunday Mail Limited, represented by Mr Derek Stewart Brown, Managing Editor, along with said Mr McKie, Solicitor ; and
Scottish Sun Newspaper, trading as News Group Newspapers Limited, represented by Mr Paul McLaren, Deputy Editor in Scotland, along with Mr Lang, of Mellicks, Solicitors,
all three bodies being represented by Mr Moynihan, QC.
Mr Moynihan submitted that, in respect of all three said organs, despite the background to this matter, the contempt of court test was not met and that contempt was not established.
In order to deal with any question of contempt at common law, Mr Moynihan made reference to the case of
Mayer v HM Advocate 2005 JC 121
and in particular to the Opinion of the Court at paragraph [12] on page 125,
where it was made clear that intention was a crucial element for common law contempt. He submitted - and I accepted - that common law contempt was not applicable in this present matter.
Mr Moynihan next turned to the Contempt of Court Act 1981 in which the common law test had been departed from in that intention was not required.
He noted the terms of section 1 and of section 2, referring in particular to the test in section 2 (2), to the effect that the strict liability rule applied only to a publication which created a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced.
He stressed the importance of the requirement that the risk required to be substantial that the course of justice in the proceedings would be seriously impeded or prejudiced.
He noted also that the terms of section 4 excluded any fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. He noted in particular that what was being challenged here was not the report itself but the use of the accompanying photograph of the person accused.
And he submitted that the question of that person being a celebrity was a significant issue and questioned how that fact affected the risk.
By way of background, he referred to the case of
The Sunday Times v UK (1979) 2 EHRR 245,
which related to the Sunday Times and the thalidomide case
and Article 10 of the European Convention on Human Rights.
He referred to paragraphs 54, 55 and in particular to paragraph 65 of the Opinion of the Court, stressing that that Court was faced not with a choice between two conflicting principles, but with a principle of freedom of expression that was subject to a number of exceptions which required to be narrowly interpreted.
Mr Moynihan noted that the Contempt of Court Act 1981 attempted to import that intention of the Convention, but that we now had the Human Rights Act of 1998.
In that connection, he drew attention again to section 12 of the 1998 Act and in particular, under reference to section 12 (4) that the editorial and legal decision in this present matter had been that Mr Riordon was a celebrity in this locality because he had played for Hibernian football club, now played for Celtic, and was known in the press. He submitted that that had influenced the use of the material which was about to become available to the public.
Mr Moynihan accepted that in such publication, there was always a risk ; but that the test was whether there was a substantial risk, and the judgment had been made by those instructing him in this case that Mr Riordon was known to a sector of the public in Edinburgh and that accordingly his appearance would be likely to be known to that sector.
In the cases to which he was about to make reference, Mr Moynihan noted that the Court had stressed that, although the Contempt of Court Act required to be applied with suitable vigour, a degree of more latitude should be allowed when dealing with celebrities.
He referred to the case of
Cox & Griffiths Petitioners 1998 JC 267
and referred in particular to the Opinion of Lord Justice-General Rodger at page 271 B and in particular at page 273 C to F :
" I consider that there would be at risk of the article causing some prejudice to the course of justice in the proceedings ; from the point of view of the administration of justice it would be better if these thoughts were not stimulated in the juror's mind.
It is important, however, to recall that the due course of justice is only one of the values with which the Contempt of Court Act 1981 was concerned. The other value was freedom of expression.
Parliament passed the 1981 Act in order to change the law of the United Kingdom and so to bring it into conformity with the interpretation of Article 10 of the European Convention on Human Rights which the European Court of Human Rights had established in the Sunday Times v United Kingdom. Unless and until the Convention is incorporated into our domestic law, we must simply apply the terms of the legislation.
As its origins demonstrate, the Act was designed to regulate the boundary, which had always, of course, existed, between freedom of expression and the requirements of the due course of justice. That boundary may have been displaced from the familiar place where once it ran ; Parliament may have re-drawn the boundary at a point which would not have been chosen by people looking at the matter primarily from the standpoint of the administration of justice.
But these factors simply make it all the more important that the courts faithfully observe the boundary which Parliament has settled in order to meet the international obligations of the United Kingdom."
Mr Moynihan then referred to the case of
HMA v Scottish Media Newspapers 2000 SLT 331
in which the Opinion of the Court had been delivered by Lord Justice-General Rodger. At page 333, he referred to the following two passages
" The Lord Advocate seeks to have the respondent punished for the publication of an article which is said to constitute a contempt of court under the Contempt of Court Act. That Act was itself passed by Parliament to bring our law into line with art 10 of the European Convention. The Advocate depute had accordingly no difficulty in accepting that the Contempt of Court Act should be interpreted in such a way as would be compatible with the respondents' rights under art 10. Both he and counsel were content indeed to proceed on the basis that those rights would be vindicated by the court finding the respondents in contempt only if the article had created a substantial risk that the course of justice in Mr McColl's case would be ' seriously impeded or prejudiced', as that phase has been interpreted by the courts."
And later on the same page :
" In our view it is impossible to say that, when so judged, the publication of the article was in contempt of court. We consider it rather unlikely indeed, that anyone cited to serve as a juror would even recall the article. The case is, of course, unusual in that it involves a person who may be known to the jurors as an actor on television. Where personalities, whether from the world of politics, sport or entertainment, are tried by a jury, the jurors may often know more about their way of life and the background to any charge than they would in an ordinary case.
That in itself may perhaps mean that the judge presiding at any trial would think it appropriate to give a more pointed direction about the need for the jury to reach their verdict solely on the evidence led in court. Nothing in the article would in our view significantly affect the decision whether to give such a direction, since we have no reason to believe that, even if a juror or jurors did happen to remember what the article said about Mr McColl and the supposed background to the alleged offence, this would diminish their ability to reach a proper verdict on the evidence."
Although Mr Moynihan accepted that in this matter the court was concerned with the impact of the publication upon a witness, he submitted that this did chime with what had been said in connection with section 12 of the Human Right Act.
Against that background, Mr Moynihan submitted that the editorial judgment in this matter had been made on the basis that Mr Riordon was a local personality, was known to a section of the public in Edinburgh, was prominent in footballing circles, that in the locality of this public house there was a likelihood of the patrons there knowing him, and that it had not been perceived that the printing of the photograph alongside the report would pose a substantial risk of prejudice in that context.
He accepted that there was always a risk in publishing a report of court proceedings - but that a substantial risk was the test. And he submitted that this had to be judged with due recognition of the right of the media and the public to participate in freedom of expression.
Mr Moynihan submitted that, in order to establish whether there had been a substantial risk of prejudice, it was necessary to know what the issue or issues had been at the trial. In this case, on the basis of the Devolution Minute lodged by the defence, it was said that identification was an issue, and it appeared that the witness yet to give evidence did not have any knowledge of football.
Mr Moynihan said that, because of the celebrity of Mr Riordon, the judgment had been that to print the picture would not make available information not already within public knowledge. He noted that the next date for the trial to proceed was some time ahead and that, in the event, the witness concerned had not seen the material concerned. Thus, he said that the decision was borne out for different reasons. He also added that, as events had unfolded at the trial, the question of identification of Mr Riordan had ceased to be such a significant element.
Finally, Mr Moynihan submitted that the three media organs which he represented had taken the decision to publish the photograph based upon separate legal advice ; and he submitted that the publications in this case had not created a substantial risk that the course of justice in the proceedings in question would be seriously impeded of prejudiced.
My decision
In giving my decision, I noted that Mr Moynihan's submissions had helpfully focused the background against which the decision required to be made in this matter.
I entirely accepted the points to which reference had been made as expressed by Lord Justice-General Rodger in the cases referred to by Mr Moynihan and I also accepted fully the implications of Section 12 of the Human Right Act 1998 concerning freedom of expression.
However, I considered that the circumstances in this case were significantly different from those involved in the cases of Cox & Griffiths and Scottish Media Newspapers. This case was not concerned with potential jurors being influenced by what had been written and also the diminution in effect by the passage of time was not a factor here. This case was concerned with a trial - when the matter was of much more direct and immediate effect - where identification was crucial and where evidence of that was still to come.
As to knowing more by way of background of a celebrity, I considered that to have much less significance in this case because the issue was focused only here on this particular locus and about what the witnesses spoke to being done by the persons involved there.
I also considered that it was important to recall that the benefit of hindsight was not available at the time of this publication ; and to focus on events afterwards was to look at the matter in the wrong way.
I also considered it was important to keep in mind that implementation of the Human Rights Act and Convention involved a balance between the rights and freedoms of one individual and those of another or others.
In this case, I consider that the decisions by those with responsibility in the organs of the media concerned here failed to take account of the human rights of the accused in this case and his ability to receive a fair trial, unaffected and uninfluenced by the report of the proceedings in the case.
I also consider that the fact that witnesses were involved is of crucial significance here.
The two above named men were charged on summary complaint at Edinburgh Sheriff Court. They were each charged jointly with assaulting two different members of staff at Biddy Milligan's Public House, in the Grassmarket, Edinburgh, and with committing a breach of the peace there on 18 December 2006. It should be noted that each was acquitted of the charges against them.
Their trial began late in the day on 15 May 2007 and there was time only to hear part of the evidence of the first of the two civilian witnesses to be called by the Crown, who were the alleged victims of the assault charges.
Because the trial was being continued until 5 June 2007 with the first civilian witness not having completed his evidence, a warning was issued to that witness not to discuss his evidence on any aspect of the case with anyone - but in particular with the other civilian witness - until both had completed their evidence.
In addition, because he was a high profile footballer in the Scottish Premier League and the likelihood that the case would attract considerable media coverage, the solicitor for Derek Riordan invited the Court to consider using section 4 of the Contempt of Court Act 1981 in order to postpone the publication of any report of the proceedings that day.
The Court declined to make any such order upon the basis that, assuming Derek Riordan was such a figure, fair and accurate reporting of the proceedings within the long-established and well-known rules ought not to create a substantial risk of prejudice to the administration of justice in this case. In particular, the Court observed that the normal rules of free reporting in an open court ought to be followed wherever possible.
On 15 May 2007, during the 6 p.m. News Bulletin on Scottish Television, and on 16 May 2007 in the Scottish Sun Newspaper and in the Daily Record Newspaper, there appeared inter alia details of the evidence given by the first alleged victim and the fact of his dock identification of the accused persons, alongside a photograph of Derek Riordan.
Identification was a critical issue in this case and the issues surrounding identification were crucial to the defence of the two accused.
In relation to the conduct alleged at the locus on the date in question, the Crown evidence rested upon the evidence of two civilian witnesses, the two alleged victims named in the two assault charges. In relation to the alleged events within the public house, the Crown did not seek to rely upon any other eyewitnesses.
[ By means of a Devolution Issue Minute the solicitor for Derek Riordan submitted that the risk of prejudice was so substantial that he could not be guaranteed a fair trial and that, accordingly, his Article 6 Human Right (to a fair trial) had been breached. The court declined to allow the Minute to proceed on the basis that it would be for this Court to ensure that the right to a fair trial was not prejudiced ; but this would involve hearing the evidence of the two civilian witnesses - and particularly the second one who had yet to begin his evidence - and establishing whether or not the substantial risk of prejudice had passed into actuality. This however does not affect the issue arising of the publication creating a substantial risk that the course of justice in legal proceedings would be seriously impeded or prejudiced.]
Accordingly, the publication of the photograph of Derek Riordan in these circumstances not only before the first witness had completed his evidence but before the only other civilian witness/alleged victim had begun to give his evidence, created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced.
The fact that the name of Derek Riordan and his photograph might be well-known to the many persons who follow football is nothing to the point.
The issue in this case was whether the conduct allegedly perpetrated against the two victims in the public house in this case could properly and lawfully be laid at the door of the person or persons accused in this case.
If, as turned out to be the case here, neither of the two civilian witnesses knew or were ever aware of having previously seen or heard of Derek Riordan, the risk of prejudice or impediment to the course of justice was substantial.
I also considered that what was being considered in this matter was not the actual outcome of the publication ; but the assessment of the nature and extent of the risk that the course of justice would be seriously impeded or prejudiced.
That is why such great care and attention requires to be given to the question of the publication of a photograph of an accused person in the course of a trial if identification is in issue.
This rule is so obvious and so well established that one would have thought it was part of the basic and elementary training for all journalists involved in court reporting.
I consider that this case demonstrates a significant and serious lapse in the well-established rules and, as I have indicated, I consider that the publications concerned created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced.
I accordingly made Findings of Contempt against STV Central Limited, Scottish Daily Record and Sunday Mail Limited and Scottish Sun Newspaper, trading as News Group Newspapers Limited in respect of the publication of the photograph of Mr Derek George Riordan.
Sentence
Having heard Mr Moynihan briefly in mitigation to the effect that Scottish Television had never been before the court for Contempt, and that neither of the other two newspapers, so far as was known by those representing them, had been before a court for Contempt since 1998, and to the effect of reminding me that legal advice had been taken in the case of the newspapers and of senior editorial staff in the case of Scottish Television, I considered that the substantial nature of the risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced, would be reflected in the imposition of a financial penalty of £1750 in respect of each of STV Central Limited, Scottish Daily Record and Sunday Mail Limited, and the Scottish Sun Newspaper trading as News Group Newspapers Limited.
I therefore so ordered.
"J Douglas Allan"