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14th
July 2005, The Scotsman
WHEN Luke Mitchell was arrested for the murder of Jodi Jones
his identity had been published and broadcast by the media for
more than ten months. He had been named by the police as the
key suspect, and had given a TV interview denying any part in
Jones' death. At just 15, he was a household name. But on the
day of his arrest until his 16th birthday he became virtually
anonymous. Only two papers chose to inform the public of his
arrest. All other media outlets reported the arrest of a 15-year-old
boy. The Evening News and the Press and Journal stood alone.
But why was it that the press took cold feet following his arrest?
The law states that no report of proceedings in a court shall
identify someone under 16. As soon as he appeared in court at
age 15 he could not be identified. But Mitchell wasn't going
to appear in court until the day after his arrest, leaving a
window of 24 hours for the media to identify him. Following
legal advice, the Evening News took the lead and published his
name.
About this time, the Crown Office, fearing that papers might
identify Mitchell and somehow prejudice his trial, sent out
an advisory to all editors reminding them that the legislation
prohibited the identification of any person under the age of
16 concerned in court proceedings.
Once the Crown Office found out that the News had named Mitchell,
the editor was contacted and told he had breached the act.
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Later
that day the Crown Office sent out a further memo to all newspapers
saying that the Fiscal was investigating a potential breach
of the act. Either the Crown Office failed to understand that
the law only stopped identification once Mitchell appeared in
court, since it was only newspaper reports of proceedings in
court that were covered by the legislation, or they were intending
to mislead the media. Either way, it was undoubtedly a warning
not to identify Mitchell. It worked. Only the News and the Journal
named him.
It is a warning that the Lord Advocate Colin Boyd should be
ashamed of. What right had he to interfere with the freedom
of the press? Ultimately the two papers, which didn't follow
his warning, were prosecuted. That may have turned out to be
an astonishingly bad decision and a waste of public money, but
it was his right to prosecute.
Whether it was in the public interest, since Mitchell could
be identified when the trial started, is neither here nor there.
Whether anything can be taken from both papers being charged
on the very last day that the Crown were able to charge them
is not for me to say. The fact that the Crown continued despite
having secured a conviction against Mitchell may be irrelevant.
But to issue a threat to newspaper editors, that for all intents
and purposes said name and I will prosecute you, is nothing
short of disgraceful.
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Anyone
involved in advising media clients knows that it is easier to
get blood from a stone than advice from the Crown Office about
the legalities of publishing certain stories. As a rule they
refuse to help. Yet here they were handing out one piece of
advice, veiled as a threat - a piece of advice which, the courts
held, was wrong.
Last week, the High Court of Appeal dismissed the Crown's case
that the Journal had breached the legislation by naming Mitchell
during the window of opportunity. It was surprising that the
Crown decided to appeal given the very one-sided verdict from
a sheriff in Aberdeen that firmly rejected the Crown's argument
that attempted to link two entirely different pieces of legislation.
As any lawyer worth their salt will tell you, a criminal statute
must be interpreted according to its terms, not according to
other pieces of legislation. But press on they did.
Now three judges have issued a judgment on a point of law, which
did not need clarifying. No new law has been made. No legal
history has been created, just an abundance of ill will and
a large cost to the taxpayer.
Of course, the Crown does not apologise when criminal cases
go against them. Nor should they. Nor do they need to justify
a decision to prosecute or the advice that they give. Needless
to say there has been no statement or explanation from Crown
Office since the judgment was issued.
What they should apologise for is an unwarranted attempt to
stifle freedom of expression in the threat that they issued
to the media following the News's decision to publish. Their
advice that what was published breached the legislation was
incorrect. As a rule, lawyers are only as good as the advice
that they give. The advice from Crown Office was fundamentally
flawed.
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