Three news organisations are expected to appeal against a Sheriff’s decision to fine each of them £1,750 for contempt of court after they published pictures of a footballer who was on trial on charges of assault and breach of the pace.
Sheriff J Douglas Allan said publication of a photograph of Celtic player Derek Riordan had created a substantial risk of serious prejudice to the trial of the footballer and his cousin, Keith Burrell, who also faced the same charges following an incident at an Edinburgh pub in December last year.
Both men were subsequently acquitted.
Fining Scottish Television, the Daily Record and the Scottish Sun £1,750 each after a hearing on the contempt issue on September 4, Sheriff Allan said: “I consider that this case demonstrates a significant and serious lapse in the well-established rules and, as I have indicated, I consider that the publications concerned created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced.”
The decision, if upheld, means that in Scotland it would be a contempt to publish a photograph of someone facing trial on a charge no matter how famous they were, if it was claimed that identification would be an issue at the trial.
Scottish Television used Riordan’s picture in its 6pm news bulletin on May 15, the first day of the trial, and the two newspapers used pictures with their reports the following day.
The news organisations had argued that publication of Riordan’s photograph was not a contempt because he was a local personality, was known to people in Edinburgh, and was prominent in footballing circles.
It was also likely that people in area of the public house where the incident was alleged to have taken place would have known him.
Gerry Moynihan QC, for the media groups, argued that establishing whether there was a substantial risk of prejudice meant that it was necessary to know what the issues were at the trial. In this case the defence had said that identification was an issue, and it appeared that a witness who had not yet given evidence when the photograph was published had no knowledge of football.
Moynihan said that as Riordan was so well known, the news organisations – each of which had taken legal advice – had judged that using the picture would not make available information which was not already public knowledge.
In any event, the witness concerned had not seen the material which was the subject of the contempt complaint, and, as events had unfolded at the trial before Sheriff Allan, the question of Riordan’s identification ceased to be such a significant element.
But Sheriff Allan rejected these arguments, saying: “This case was concerned with a trial – when the matter was of much more direct and immediate effect – where identification was crucial and where evidence of that was still to come.
“As to knowing more by way of background of a celebrity, I considered that to have much less significance in this case because the issue was focused only here on this particular locus and about what the witnesses spoke to being done by the persons involved there.
“I also considered that it was important to recall that the benefit of hindsight was not available at the time of this publication; and to focus on events afterwards was to look at the matter in the wrong way.”
The media organisations, he said, had “failed to take account of the human rights of the accused in this case and his ability to receive a fair trial, unaffected and uninfluenced by the report of the proceedings in the case”.
In addition, the involvement of witnesses was “of crucial significance”.
Sheriff Allan said the trial started at Edinburgh Sheriff Court on May 15. But there was only time to hear part of the evidence of the first of two witnesses being called by the Crown before the case was adjourned until June 5.
Riordan’s slicitor had asked the court for an order under section 4 (2) of the Contempt of Court Act 1981 postponing reporting of the May 15 hearing, as the footballer was a high-profile figure in the Scottish Premier League and the case was likely to attract considerable media coverage.
“The Court declined to make any such order upon the basis that, assuming Derek Riordan was such a figure, fair and accurate reporting of the proceedings within the long-established and well-known rules ought not to create a substantial risk of prejudice to the administration of justice in this case. In particular, the Court observed that the normal rules of free reporting in an open court ought to be followed wherever possible,” Sheriff Allan said.
The Scottish Television news bulletin on the evening of May 15, and on the following day the two newspapers, included reports giving details of the evidence given by the first alleged victim and the fact of his dock identification of the two accused, with a picture of Riordan.
Sheriff Allan said: “Identification was a critical issue in this case and the issues surrounding identification were crucial to the defence of the two accused.”
Publication of Riordan’s photograph in these circumstances – before the first witness had completed his evidence and before the second witness had started his testimony – created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced, Sheriff Allan said.
“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,” he went on.
“The issue in this case was whether the conduct allegedly perpetrated against the two victims in the public house in this case could properly and lawfully be laid at the door of the person or persons accused in this case.
“If, as turned out to be the case here, neither of the two civilian witnesses knew or were ever aware of having previously seen or heard of
Derek Riordan, the risk of prejudice or impediment to the course of justice was substantial.
“I also considered that what was being considered in this matter was not the actual outcome of the publication; but the assessment of the nature and extent of the risk that the course of justice would be seriously impeded or prejudiced.
“That is why such great care and attention requires to be given to the question of the publication of a photograph of an accused person in the course of a trial if identification is in issue.
“This rule is so obvious and so well established that one would have thought it was part of the basic and elementary training for all journalists involved in court reporting.
“I consider that this case demonstrates a significant and serious lapse in the well-established rules and, as I have indicated, I consider that the publications concerned created a substantial risk that the course of justice in these legal proceedings would be seriously impeded or prejudiced.”