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Scottish
Criminal Law
"Contempt revisited - A sting in the tail"
It was inevitable that it would end the same
way it began began — in the glare of the
media spotlight.
On 17 September 2007, in a broadcast
outside the High Court, solicitor Aamer Anwar launched a bitter
attack on the trial process, after his client Mohammed Atif
Siddique had been found guilty of terrorism offences.
Nine months later, after a referral
from the trial judge, Lord Carloway, as a result of those comments,
another media circus ensued outside the court, with a defiant
speech from Mr Anwar, following his acquittal on a charge of
contempt of court. Rather than snuffing out the media grandstanding
on which Mr Anwar flourishes, Lord Carloway's actions simply
fanned the flames of publicity. It put Mr Anwar in the spotlight
and allowed him to further his attack on the courts and advance
the human rights message to an even greater audience.
As a result of his earlier comments,
Mr. Anwar now has various notable additions to his CV. These
include being an author of misleading statements, and broadcaster
of serious inaccuracies and untruths. He is also tagged as a
solicitor known for angry and petulant criticism of the courts.
These are not my words, rather those of The Right Honourable
Lord Osborne, in remit by a trial judge of an issue of possible
contempt of court on the part of Aamer Anwar (Respondent) [2008]
HCJAC 36 IN932/06.
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He
can however rightly point to the fact that he was cleared of
a contempt of court, over his comments. Perhaps that is the
ultimate badge of honour for a human rights lawyer.
That result was not surprising.
The courts have long held that the administration of justice
has to be robust enough to withstand criticism. Many commentators,
including myself, although sympathising with Lord Carloway's
position, saw his decision to take matters further, as a failure
to spot political grandstanding for what it was. In assessing
the various statements that Mr Anwar had made, the court held
that none could be regarded as challenging the authority of
the court or the supremacy of the law itself and thus be a contempt
of court.
But like any good soap opera there
was a sting in the tail. Whilst the court accepted that Mr Anwar's
pronouncements did not amount to contempt, they made it clear
that his actions fell short of what they would expect and at
the same time steered the Law Society of Scotland towards reviewing
the guidelines on media contact, which will inevitably involve
the review of Mr. Anwar's actions.
In the February 2008 edition of
this publication, I argued that it was possible that there could
not be contempt in Mr Anwar's situation, on the basis that the
conduct complained of happened after the verdict was returned,
though admittedly before sentence was passed. That was not accepted
by the court.
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Indeed they rejected the submission
that there could not be a contempt of court falling on the conclusion
of the particular proceedings in question.
Nor would it seem to be that those
comments are limited to an attack on the administration of justice
by the agent representing an accused. It seems that an attack
from the media would also be caught. The court stated: “While…
the law of contempt of court exists not to protect the dignity
of the judge, or of the court, in a narrow or personal sense,
it is necessary to bear in mind that there does exist a limit
to the right of freedom of expression, which derives from the
fundamental purpose of the law of contempt".
Without providing any specific example,
Lord Osborne, delivering the opinion of the court, stated that
it would be possible to conceive of language which could be
of such an extreme nature that it did indeed challenge or affront
the authority of the court, or the supremacy of the law itself,
particularly perhaps when the integrity or honesty of a particular
judge, or the court generally was attacked. The door is therefore
clearly left open for future contempt proceedings depending
on just how far that attack goes.
With regard to the issue of integrity
however, it has not been unheard of for media commentators,
or indeed solicitors, to accuse judges of bias. I have represented
a newspaper in the past who accused a current Inner House judge
of bias when it came to sentencing.
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