UK media apparently conflict with Scots law in Mikaeel Kular case

Saturday, January 18, 2014 

Media organisations in the United Kingdom have been focused on Edinburgh this week following the disappearance of three-year-old Mikaeel Kular. With the discovery of a body today Wikinews has found evidence suggesting media has been caught out by Scottish contempt of court law.

BBC coverage of the matter, censored by our correspondent who is in Scotland. The censored areas identify the detained person and include an image of them.
Image: BBC.

The BBC College of Journalism notes the differences. "...dock identification is a more important part of court procedure [in Scotland] and therefore pictures of the accused cannot be published until the trial is over. Scottish judges consider it contempt to publish pictures of the accused." Despite this, many sources, including the BBC, have named a person detained by police and published their photograph. The BBC did this online, in addition to naming the detained individual on Radio 4.

Our correspondent is based in Scotland and has been advised by a lawyer not to identify anybody detained until they have appeared in court, even if they have been arrested and charged. The Contempt of Court Act 1981 is designed to prevent prejudicial material going in front of juries before trial. Although UK-wide legislation, the law is interpreted differently north of the border than in England and Wales.

The BBC College of Journalism advises Scottish legal advice be sought before publishing images of the accused. Channel 4's Producer's Handbook notes "the law has tended to be interpreted more strictly in Scotland" but does not advise on how so. Images of arrested persons in high-profile cases are often published in cases south of the border.

Channel 4 is also amongst organisations to have named the detained person and put an image of them online. Police announced last night that a body believed to be the missing child had been found in Fife and that an individual had been detained. The boy had been missing since Thursday morning although there was a possible sighting of him then. Hundreds of volunteers have assisted police searching the Scottish capital for the boy.

Wikinews has also found the following organisations publishing material that may prove problematic as the case becomes a major media story.

The Guardian featured this box on their homepage today, naming the detained person.
Image: The Guardian.

• Sky News named the person in question and published a photo both online and on national TV
• The Guardian placed the person's name on their website
• The Telegraph placed a photo and name on their website
• The Independent placed a photo and name on their website, later removing the photo from their article but not their homepage
• The Daily Mail published online a profile of the person including several photos, and noted the person was friends with the victim of a gun murder in Edinburgh
• The Mirror published six articles on the case online, including a timeline and two live blogs. All named the detained person.
• Metro identified the person on their website but did not publish a photo
• The Evening Standard published the name and a photo on their website
• The Daily Star reported the person had been "immediately detained" and placed a photo on their website
• The Sun, which had offered a £25,000 reward, named the person in an article on their website that included a photo. Both the photo and identifying information appeared on their homepage.
• Manchester Evening News placed a live blog on their website naming the person

The Daily Mail have placed the story prominently on their homepage, with the material behind the boxes including a photograph, a descriptive link to a profile, and the name of the detained person.
Image: The Daily Mail.

Some Scottish publications have also been publishing similar material.

• The Scotsman published an article and video identifying the person on their website
• The Herald noted police would not identify the person but nonetheless placed their name and a photograph online

The articles rank amongst the most-read items on many of the news websites. Unlike in England and Wales, where only the Attorney General can prosecute contempt of this sort, in Scotland the media organisations can be charged by an accused person. Wikinewsies in Scotland have noted remarks made about the named person's alleged wrongdoing on public transport and Facebook, suggesting widespread knowledge of their identity.

Several of the organisations involved are no stranger to being prosecuted for contempt over cases in neighbouring England. In 2011 The Sun and The Daily Mail were successfully prosecuted for contempt by Attorney General Dominic Grieve after they published a photo of a murder defendant posing with a gun. The case did not involve firearms and Grieve spoke of "seriously impeded or prejudiced" proceedings if any jurors saw the photos. The trial was not stopped as the photo was removed from circulation before the jury saw it and the defendant was found guilty.

In 2011 The Sun and Mirror were fined for reporting negatively about an arrested suspect in the high-profile Jo Yeates murder investigation. Chris Jeffries, landlord of the victim, was subsequently released from police custody and proved to be entirely innocent. Jeffries also pursued libel action against a number of publications. Politicians subsequently considered a law banning the naming of arrested persons who have not been charged throughout the UK as a direct result of this case.

The Daily Mail and Mirror were back in court the next year for their coverage of a trial involving serial killer Levi Bellfield. The two papers were again fined after Dominic Grieve told the High Court in London of an "avalanche" of "seriously prejudicial" stories. The papers published their stories after Bellfield was convicted of abducting and murdering schoolgirl Milly Dowler. The trial was not yet over, however, as the jury was still considering an additional charge relating to another alleged attempted abduction. That charge was dropped because of news coverage.

Wikinews is awaiting comment from several prominent Scottish professors of law on the issues raised by this article.

Related news

• "UK newspapers face libel, privacy action over murder coverage" — Wikinews, April 22, 2011
• "UK's most-read papers found to be in contempt of court" — Wikinews, March 6, 2011

Sources

• "Contempt in Scotland and Northern Ireland" — BBC College of Journalism, Accessed January 18, 2014
• "Contempt or 'Sub-Judice' Rules" — Channel 4, Accessed January 18, 2014
• "Mikaeel Kular: 'Criminal act' a possibility in case" — BBC News Online, January 17, 2014
• "Newspapers guilty of contempt in Levi Bellfield case" — BBC News Online, July 18, 2012
• Josh Halliday. "Sun and Mirror fined for contempt of court in Christopher Jefferies articles" — The Guardian, July 29, 2011
• Steve Doughty. "Justice Secretary Ken Clarke considers new bill to stop media naming crime suspects arrested by police" — The Daily Mail, January 31, 2011