Bill Walker: (Sunday) Heralding trouble?

Most of you will have read today's Sunday Herald revelations about SNP MSP Bill Walker, who has now been suspended from the party and parliamentary group. In a report headlined "Revealed: MSP's history of violence against three ex-wives", the paper's investigations editor Paul Hutcheon draws from a range of sources, including interview material from Walker's second and third wives, to demonstrate that Walker was a serial domestic abuser during his first three marriages. Hutcheon also quotes extensively from court records concerning Walker's divorces, including the grounds cited by his first wife:

"Open files in the National Archives of Scotland, which can be ordered and inspected by any member of the public, reveal his first wife's reasons for divorce."

Is publishing this information problematic? You well might think not - think it positively desirable for the public to know - but the Sunday Herald might well find itself in a bit of legal pickle for splashing it across their front pages this morning. Take a look at the Judicial Proceedings (Regulation of Reports) Act 1926, still in force. Enacted to curb the salacious reporting of divorce proceedings, this little piece of legislation lay beyond my ken until Ian Smart pulled it out on twitter, but essentially, it regulates the amount of information the press can lawfully report about divorces, under threat of criminal sanctions being imposed on offending editors, printers, publishers and proprietors.

1 Restriction on publication of reports of judicial proceedings.
(1) It shall not be lawful to print or publish, or cause or procure to be printed or published—   (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:—
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.

If a newspaper's coverage of divorce proceedings strays beyond these four points of information, and offers more extensive detail about what transpired during a court case about a divorce or suchlike, its editor or proprietor may find themselves liable to a four month prison sentence and anything up to a £5,000 fine. Moreover, public transcripts of these judicial proceedings - such as those Hutcheon presumably accessed to glean his information about the cited grounds of Walker's divorces - are excepted from criminal liability under the s1(4) of the 1926 Act. It may strike some of you as absurd, but according to the law, such material may sit in public archives or in reports of case-law quite legally, while the same information appearing on the pages of a newspaper or a blog would be a criminal publication. What's more, the 1926 Act contains none of the qualified privileges attaching to journalists who reasonably cover court proceedings, nor would the consent of the parties involved in the divorce waive criminal liability for detailed, impermissible reportage about a divorce case.

While the legislation clearly has contemporaneous reporting of divorce proceedings in mind, the Act has no time limit, no statute of limitation, and so engages the Sunday Herald's coverage today, insofar as the paper has reported on the judicial processes that generated Walker's past divorces. The article itself is a curious and muddled mix of references - details culled from the archive about the divorce proceedings, and arguably autonomous evidence from the two women about specific instances of abuse at Walker's hands, some of which also appear to have been cited in their petitions for divorce.

I've no brief for the prosecution, and do not intend to go through Hutcheon's article with a fine tooth comb.  However, once you're familiar with the Judicial Proceedings Act, one question clearly suggests itself. Dramatic though it would be, factoring in the 1926 Act, might the paper be susceptible to prosecution for publishing today's story? It's a possibility. I'm no expert on this piece of legislation. Indeed, it seems to have been exceedingly rarely used in practice and if any fellow jurisprudes wish to chime in or vigorously dissent from the following analysis, all comments would be gratefully received.

The 1926 Act was intended to prohibit the publication of detailed factual information about divorce proceedings, hence the admonition that any reporting of the substantive issues - to avoid criminal sanction - has to be concise and only with respect to charges or counter-charges about which evidence had been given, or refer to the judge's conclusions.  The Sunday Herald's "First Wife's Story" is gleaned entirely from these court records. While the article's reference to "cruelty" is clearly a concise account of the basis for the divorce, the specific details about the assault alleged arguably shade beyond that. The reporting of "The Second Wife's Story" seems more obviously problematic.  Rather than quoting exclusively from an interviewee spouse, asking about her experiences rather than the divorce proceedings, Hutcheon references Walker's legal documentation from that second divorce action itself, arguably straying well beyond a protected "concise" account of the charges and counter-charges about which evidence was given, referencing implements used to carry out assaults, motivations, imputations about the character of Walker's spouse, her disposition, and his own conduct.

While today's revelations will undoubtedly have stark consequences for Walker's political career, one wonders whether the Crown Office won't also be taking a close look at whether, in pursuit of their quarry, the Sunday Herald haven't tumbled over this old, rusty legal tripwire, laid down in the 1920s.