The Scottish Daily Record has been fined a total of £80,000 for what a senior judge described as two serious contempts of court.
The title published one story detailing an arrested man’s criminal past and another illustrated with a photograph of a suspect as well as material which could feature in his trial.
The judgement of the Scottish appeal court was delivered on 4 October last year, but it is believed that publication was delayed because of associated criminal proceedings.
Lady Dorrian, the Lord Justice Clerk, sitting with Lord Menzies and Lord Turnbull, said the stories, about two different men, referred to only as A and B, appeared in the Daily Record and on its website.
The story about man A was published on 11 February, 2017, and the coverage of man B appeared on 22 May.
Man A had been arrested on January 20, on outstanding warrants relating to earlier proceedings, and arrested again the following day in connection with firearms charges, and was committed for trial on February 1.
Lady Dorrian said the “sensational” article named man A and carried photographs of him.
“It associated him with drug trafficking and dealing and with a number of shootings of members of organised crime,” she went on.
“It used phrases such as ‘gang boss’, ‘cocaine kingpin’ and ‘cocaine baron’, and suggested that he had been ‘involved in a violent turf war with rival gangsters’.
“The article contained details of the allegations against him that may form part of the evidence at any future trial, and referred to the recovery of a ‘fearsome arsenal’ and ‘horrific array’ of weapons and money.
“In addition, it revealed detailed information about his criminal history, including previous convictions and prison sentences.
“It referred to other live proceedings against him, suggesting that he had gone into hiding in connection therewith and describing him as ‘one of Scotland’s most wanted men’.”
Man B, who was the subject of a sexual offences prevention order granted in 2010, was arrested on 20 May in connection with offences said to have been committed in Falkirk the previous day, and appeared in court two days later, charged with attempting to abduct two nine-year-old girls, and other offences.
The article about him, said Lady Dorrian, named him, and carried photographs, at least one of which might identify him.
“The photographs and captions were sensational in nature, showing him being pinned down to the ground and in handcuffs, one bearing the caption ‘GOT HIM’,” she said.
“The article referred to the photograph on the ground with the words: ‘Dramatic moment cops restrain man accused of attempting to abduct two young girls in the woods’, a phrase repeated elsewhere in the article in similar terms.
“There is detail of the allegations that may form part of the evidence at trial. Detail of the broad circumstances of the alleged incident and what is said to have happened are narrated in the article.”
The story also quoted a Facebook posting said to have been made by the mother of one of the children, saying: ‘This absolute beastie scum tried to get my daughter and her friend to go into the woods with him in broad daylight’,” said Lady Dorrian, adding: “This is a phrase suggestive of offending of a sexual or indecent nature.”
The article also implied man B’s guilt, she said.
At first the newspaper’s publisher, Scottish Daily Record and Sunday Mail, denied contempt of court, but in September last year it conceded that the articles were contempts.
The court had been told that both articles had been checked for legal issues by solicitors, “but in very different circumstances”, Lady Dorrian said.
“In the ‘A’ case, the solicitor had been seriously unwell, and there is a report from her doctor that she should not have returned to work,” she said.
“She was heavily sedated at the time the advice was given and the effects of the medication alone would have ‘rendered her incapable of rational thought let alone advising clients on legal matters’.”
But there was “no such excuse” in the second case, she said.
“Counsel, in his submission, recognised that the nature of the articles, at least in the ‘A’ case, might be considered so glaringly flagrant that any editor might have questioned the advice given,” said Lady Dorrian, adding: “There is some force in that concession: in the case of ‘A’ the terms of the article were blatant contempt.”
She said that in the case of man B, photographs of an untried person were printed against advice.
It had been made clear in Stirling v Associated Newspapers 1990 JC 5 and HM Advocate v Caledonian Newspapers Ltd ( SLT 926) that publishing photographs of individuals arrested in criminal proceedings was an issue over which a newspaper had to take the “greatest of care”.
It was also clear that such publication could raise serious issues if identification was an issue at trial – as it was in the case of man B.
Lady Dorrian went on: “It may be possible to discount the effect on the jury of publication of photographs, because of the time which will elapse between the publication and trial, but the matter is much less clear in relation to witnesses, even allowing for the fact that one of the photographs was taken by a witness, and published on Facebook by the mother of one of the complainers.
“In HM Advocate v Caledonian Newspapers the court noted that the only safe way to publish a photograph of an untried prisoner was with the consent of the Lord Advocate.”
In the case of man B, the newspaper’s editor had published the photograph despite a warning by the solicitor doing the legal check on the story that doing so carried a risk of contempt.
The article about man A carried “a severely prejudicial risk to the course of justice”, said Lady Dorrian, adding: “The clear implication of the article is that ‘A’ is a dangerous, violent criminal, involved in serious violent crime, including gun crime, and organised crime.”
In the case of man B, publication of the photograph was a particularly serious matter – but the story also gave details of facts which might be expected to be the subject of evidence at trial, including statements made by potential witnesses.
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