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Book reviews

1 June 01

Reviews of Contempt of Court in Scotland; Licensing Law in Scotland

by Brian Pillans, Tom Johnston

As the author notes in the preface to this unique text, common law contempt is as old as the courts and the Contempt of Court Act 1981 has been around now for twenty years. In spite of contempt’s long history this is the first Scottish text devoted to the subject. Given that litigants, accused persons, witnesses and even professional court practitioners potentially run the gauntlet of contempt on each appearance in court this is a very welcome practical guide to the dangers this aspect of law holds for the unwary.

Of course, it is not just those who actively participate in court proceedings who must be careful: journalists and their editors tread a tightrope when reporting in particular the investigation and prosecution of crime. This is recognised in the text - by far the longest chapter is that dealing with contempt and the media which accounts for more than a third of the book. It would be sound advice to every journalist and editor covering Scottish crime stories to have a copy of this book to hand.

The only other published text which covers the law of contempt in Scotland is Arlidge, Eady and Smith on Contempt (Sweet & Maxwell, 1998), which is a detailed and comprehensive analysis of the (predominantly English) law of contempt of court. This book is a completely different animal - obviously it deals exclusively with the law of contempt in Scotland, but it is also a very accessible explanation of the law, given the fact that it is relatively short. In spite of this, it still provides a very comprehensive sourcing of authority, making it extremely useful as a ‘starting point for Scottish practitioners (including academics and researchers) involved in this complex area of law’.

The corollary is that the book is cautious in its provision of a critical analysis of the law of contempt - it tends to steer clear of independent comment and opinion, preferring to quote from judgments and occasionally referring to comment from Arlidge, Eady and Smith. For example, it devotes only four pages to the impact of the Human Rights Act 1998, and this is largely descriptive, with only a passing reference to Sunday Times v United Kingdom (1979) 2 EHRR 245 which has been seen as the catalyst which resulted in the passing of the Contempt of Court Act 1981. In its reference to Cox & Griffiths, Petitioners 1998 SLT 1172 (the first Scottish media contempt case where the Scottish courts took account of the ECHR - decided in July 1998), it does make the connection with the section later in the book on the ECHR, but it suggests that the case ‘represents a step forward, from the media perspective’ where other commentators have considered the case to represent a more fundamental shift in Scottish judicial attitudes to what amounts to a ‘substantial risk of serious prejudice’.

On the other hand, the book provides some useful guidance based on English decisions on the circumstances where the statutory defences provided in the Contempt of Court Act may be reliable, given that they appear never to have been successfully relied upon in Scotland. However, it does not follow the robust analysis of s.4 provided by Arlidge, Eady and Smith, who suggest that on a strict interpretation of the section a fair and accurate report of proceedings held outwith the presence of a jury will not amount to a contempt unless an order postponing publication has been made under s.4(2). In practice in Scotland the book no doubt provides good advice - that to avoid risk the media should assume that such reports are not protected by s.4.

The earlier part of the work deals with common law contempt issues. It provides chapters defining the nature and ambit of contempt and the procedure by which contempts are dealt with by the Scottish courts. It then examines particular examples of contempt under the headings: Contempt and the Legal Profession; Disrupting the Business of the Courtroom; Contempt and the Evidence and Contempt and Court Orders. The latter part deals with statutory contempt issues: Contempt and the Media; Contempt and the Jury and the book concludes with a short chapter on Human Rights and the Internet.

In spite of the apparent gravity of the subject the book adopts a fairly light touch and in places is a very entertaining read. For example, in its chapter on Contempt and the Legal Profession, the author points out that ‘the dress sense of Scottish lawyers has never apparently been a direct source of contempt proceedings, possibly because the traditional gown covers a multitude of potential contempts’! Obviously some of the cases make good tales too and the author’s treatment will at least provoke a wry smile.An interesting aspect of the book in respect of contempt and the media is its coverage on the relevance of the nature and gravity of the medium by which information which may create a risk of prejudice is disseminated. The author reviews the recent cases where arguments have been advanced in respect of the impact of broadsheets against tabloids etc and appears to hint that although the Scottish judiciary are reluctant to address the issue, there must be a difference which the judiciary perhaps tacitly recognise.

The book also provides some useful analysis and advice on the issue of publication of photographs of an accused person. The traditional attitude of the Scottish judiciary - that photographs of an accused person should not be published until after the trial – seems to have become more relaxed, and the book takes a fairly pragmatic approach to the issue.

There are a couple of slightly disappointing omissions. No reference is made to the reporting of cases in respect of which an application is being considered by the Scottish Criminal Cases Review Commission. Although clearly such cases are not ‘active’ under the Contempt of Court Act 1981, comment on the possibility of publication or broadcast of reports of such cases being contemptuous at common law may be useful for the media. Another more controversial issue in which the media has an interest is that of making payments to witnesses for their stories, which is surprisingly not touched on at all.

That said, this book does provide a very comprehensive and accessible account of the law of contempt of court in Scotland. It deserves a place not only on every legal practitioner’s but also every journalist’s desk.

Brian Pillans