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Attention media lawyers

15 January 18

Criminal law briefing: advisers of media organisations should be aware that the imminent commencement of part 1 of the Criminal Justice (Scotland) Act 2016 will impact on the contempt of court law

by Craig French

If you advise media organisations which report on criminal cases, there’s a change coming you should know about.

The Criminal Justice (Scotland) Act 2016 will effect changes to arrest and custody procedures in Scotland when part 1 of the Act is commenced. That is scheduled to happen on 25 January 2018.

There is a link between these changes and the Contempt of Court Act 1981, which is likely to affect media organisations and their staff.

Part 1 of the Act creates a new framework of powers and duties for the police. It simplifies powers of arrest and, following the recommendations of Lord Carloway’s Review of Scottish Criminal Law and Practice, establishes clear processes for custody decision-making.

Through these changes, the Act abolishes the separate concepts of detention and arrest. Section 1 replaces them with a single statutory power of arrest without warrant where there are reasonable grounds for suspecting a person has committed, or is committing, an offence.  

The Contempt of Court Act 1981 states that the rule on strict liability applies to criminal proceedings when they are “active” as defined in that Act. That legislation goes on to define proceedings as “active” from the point at which someone is arrested. 

From 25 January 2018 proceedings will be “active” when a person is arrested under s 1 of the 2016 Act. The fact that there will no longer be a statutory state of detention and that proceedings will be active from a point of arrest which occurs earlier in the process than hitherto will therefore be an important consideration for editors when considering news content. 

Craig French, Scottish Government Legal Directorate

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