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25 May 2004, The Scotsman
MY LATE colleague Martin Smith once put a hypothetical scenario
to the then lord advocate that was deliberately absurd. At least,
it was hypothetical then.
If terrorists hijacked a plane at Glasgow Airport, killed passengers,
and were then overpowered, he asked, could the newspapers identify
the culprits? The answer, back in the 1980s, was a firm "no".
The story came to mind last week, after the arrest of Ron Davis,
the man charged with throwing purple flour at the Prime Minister.
You may have noted that there was no hesitation in naming him,
printing his photograph, or describing his motives. He even
gave a press conference to justify his stance. After all, he
was making a protest and is likely to welcome the publicity
for his cause.
But had the same protest been carried out in the Scottish Parliament,
some serious thought would have to be given to what the current
Lord Advocate’s attitude might be to naming those responsible
- even if they were seen by every MSP.
If those arrested were named and their photographs printed before
they went on trial, there is no doubt the Crown Office would
have the power to prosecute the news organisations concerned.
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That
is why you have the situation where someone can run onto a football
pitch in a televised match before millions, and his face is
blanked out when the incident is reported in the papers the
next day.
The basic principle of the Contempt of Court Act is that anyone
who is charged should have the opportunity to have trial without
the mind of the jury or any potential witnesses being possibly
affected by what they read. It’s a laudable aim but the
mechanics of it date from 1981, before there was the internet,
24-hour news coverage, or the ever-present threat of global
terrorism. It’s almost inconceivable now that, in the
scenario outlined above, Scottish newspapers would not explain
who was involved. If they didn’t, their readers would,
quite rightly, decide to go and find the information they wanted
elsewhere.
The Human Rights Act has done much to assist newspapers since
it specifically incorporates a right to freedom of expression.
The public wants to know what is going on and the press has
a responsibility to inform them. The difficulty is finding the
balance that will still allow the accused a fair trial.
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One
of the main beefs of Scottish editors is the way that the contempt
law has always been more strictly interpreted in Scotland than
south of the Border.
The Soham murder trial and the pre-trial publicity that ensued
has led the Attorney General in England to take a more forceful
stance in relation to possible contempt proceedings against
the media.
In Scotland, however, the Crown Office was recently criticised
by the Court of Appeal for failing to raise proceedings against
a paper that overstepped the mark. Whether the Lord Advocate
will flex his muscles against the media remains to be seen,
but one way or another, change is afoot.
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