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Differences between England and Scotland
If a publication is drawn to a Judge”s attention which creates a substantial risk of serious prejudice the Judge will decide if there is a prima facie case of contempt to answer.
In most cases, unlike in England, the Editor and journalist will require to attend Court the next day to argue the issue.
It is vital to have in place local knowledge of the Scottish Court system and an instant opinion as to whether a defence should be lodged.
Our legal team has vast experience in contempt issues and can provide this information.
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The Contempt of Court Act, 1981 lays down a test of substantial risk of serious prejudice.
Although the Act is a U.K. statute, the Scottish Courts take a different interpretation from their English counterparts to the meanings of substantial and serious.
In many cases in England where the Courts would not consider there to be a risk of prejudice, the Scottish counterparts would find the publication in contempt.
One only needs to compare the number of times in Scotland that papers are requested to appear in Court to answer a prima facie case of contempt to those in England to highlight the differences.
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During trials, Advocates and solicitors will examine what has been written in the paper the previous day to make sure there has been no inaccurate reporting or sensationalism.
They will not hesitate to draw these matters to the attention of the Trial Judge to assist their client’s position.
It is essential to obtain pre-publication advice on contempt issues to avoid such a risk.
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