Three media companies fined for contempt

"Substantial risk" of prejudice in publishing Derek Riordan photos after trial adjourned

News, 7 September 2007

Scottish Television and the publishers of the Daily Record and the Scottish Sun have each been fined £1,750 by an Edinburgh sheriff for contempt of court.

Sheriff Douglas Allan ruled that publication during a television news bulletin and in each of the newspapers of photographs of the footballer Derek Riordan, one of two accused charged with breach of the peace and assault in a Grassmarket public house, after his trial had been adjourned with the evidence of the first Crown witness only partly heard, created a substantial risk that the course of justice would be seriously impeded or prejudiced.

The sheriff said that the trial of Riordan and his co-accused Keith Burrell 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, the witness was warned not to discuss his evidence with anyone, in particular with the other civilian witness, until both had completed their evidence.

The court declined to make an order postponing media coverage on the basis that fair and accurate reporting of the proceedings within the well-known rules ought not to create a substantial risk of prejudice in this case. However in each of the reports complained of, there appeared details of the evidence given by the first witness and the fact of his dock identification of both accused, alongside a photograph of 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 alleged events inside the public house, the Crown relied only on the two complainers.

Editorial judgment

Gerard Moynihan QC for the media companies submitted that the editorial judgment in this matter had been made on the basis that Riordan was a local personality, was prominent in footballing circles, was likely to be known to the patrons of the public house, 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.

There had to be a substantial risk of prejudice, and this had to be judged with due recognition of the right of the media and the public to participate in freedom of expression. The next date for the trial was some time ahead and in the event, the witness concerned had not seen the material concerned. As events had unfolded at the trial, the question of identification had ceased to be such a significant element.

Giving his ruling, Sheriff Allan said that to focus on events afterwards was to look at the matter the wrong way. Identification had been a critical issue, and the publication of the photograph "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 case, he said, demonstrated "a significant and serious lapse in the well established rules".

As advice had been taken and none of the organisations had been in trouble for contempt in recent years, the sheriff imposed a fine of £1,750 in each case.

Both accused were ultimately acquitted after trial.

The sheriff's decision can be read at http://www.scotcourts.gov.uk/opinions/2007004186.html .