Online publishing: press must consider other nations' laws

The work of the police and forensic archaeologists at the former home of Peter Tobin in Margate has caught the attention of the public, but for journalists and lawyers, the investigation raises some tricky problems.

To recap: After a long investigation throughout the UK, police have unearthed the remains of Vicky Hamilton and Dinah McNicol from 50 Irvine Drive. Tobin has been charged with Vicky’s murder, for which he will be tried in Scotland in due course.

This has shone the spotlight on the different legal systems of England and Wales on the one hand, and Scotland on the other, a distinction which was created way back at the beginning of the 18th century.

Three hundred years on, the different legal traditions are brought into sharp relief by the way in which the Contempt of Court Act is interpreted and applied in both countries.

The strict liability rule is well known to journalists and lawyers alike – when a case is ‘active”, nothing can be published which carries a substantial risk of serious prejudice to the administration of justice.

But the rub lies in how the same rule is interpreted in the two jurisdictions.

To English and Welsh eyes, the Scots apply the strict liability rule in a very restrictive manner, which appears to prevent virtually any but the most basic of information being published. Conversely, it seems our Scottish friends regard the way we southerners report pre-trial matters as dangerously cavalier.

The different approach to the same issue is nothing new for national broadcasters and newspapers.

But what has brought the issue to the attention of the majority of publishers in England and Wales is, of course, the development of internet publishing, complicated by the fact that there are active criminal proceedings against Tobin in Scotland but not in England.

Gone are the days when the local publishers in Kent or Essex (where Dinah McNicol lived) could report developments without needing to give any thought to active criminal proceedings in Scotland. We are all global publishers now. In stories such as this, even in the context of an exclusively British affair, the majority of publishers have to consider how their work will be viewed by what is essentially a foreign legal system.

As a result, all reputable publishers based south of the border are showing considerable respect for the Scottish interpretation of the strict liability rule. No TV news report which can be received in Scotland shows images which would result in Tobin being identified, and the detail made available to viewers is fairly limited. The same applies to internet articles.

Even for the purposes of this article, I have withheld mentioning a number of facts, which I know about Tobin, out of deference to my understanding of Scots law.

So what of the future? Is it still realistic or necessary to expect jurors to come to a trial with little or no knowledge of a case?

After all, as Sir Igor Judge recently said in the Court of Appeal in the case of Dhiran Barot Barot, jurors should be trusted to do the right thing.

A good few people have been calling recently for the strict liability rule to be reformed. Perhaps cases such as this, particularly when considered in the context of the views of senior judges such as Lord Justice Judge, will encourage the authorities to start that process.

Tony Jaffa is head of the media and publishing team at Foot Anstey – tony.jaffa@foot-ansteys.co.uk

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