5 February 2016

"On HM Advocate v Charles Green, Craig Whyte et al..."

I'm not a football man. I have no team. I have never been to a football match. I have no intention of extending the frontiers of my experience in this regard. But I am interested in law, and in free speech, online media, and fair trials. 

In the life of this blog, legal issues and football have seemed increasingly to converge. From the Offensive Behaviour Act, tax obligations, paid and unpaid, defamation threats and insolvency events -- legal curiosity is increasingly pulling me into the wacky world of the SFA and SPFL and the various legal ructions which have gripped them and their members.

But approaching us is the trial to beat them all. Former Rangers heid neeps Charles Green and Craig Whyte have been indicted for a range of offences, along with lawyer, Gary Withey, and Duff and Phelps administrators David Whitehouse, Paul Clark and David Grier. Today brings news from a preliminary hearing in the High Court that a number of charges against these men have now been deleted from the indictment. To suggest this case will provoke public interest and comment qualifies for the understatement of the legal year. If the indictment pours oil on troubled waters; the trial will follow it with a lit match. 

Forums, facebook, twitter, online comments on blogs, articles and website: if it was possible, this criminal trial will turn up the heat on the already boiling cauldron of feeling and opinion which is Scottish football. And that has its risks. Not only for the chances of these men receiving a fair trial on the evidence - which should concern us all - but also for any armchair advocates and prosecutors and defenders, who think the public would benefit from their insight into the case.

Which, perhaps, makes this a useful moment to flag up one or two important things which anyone with a keyboard and an opinion, or a broadcasting job and a desire to remain unfined and out of prision, would be well-advised to bear in mind. The trial of these men is covered by the Contempt of Court Act. Proceedings are active. And Scots judges - at least historically - have been credited with a no-nonsense attitude to applying the Act's restrictions on what you can and cannot publish. In the old days, you could count publishers on your fingers. Today, anyone with an iPhone qualifies. 

And you hear dark rumblings coming out of the Crown Office these days, that senior prosecutors in Scotland are getting tetchy - tetchy with certain well-known tabloid newspapers, flying remarkably close to the wind in their reporting of criminal cases - and tetchy with the opinonated world of folk online, breenging in a prejudicial way into active criminal cases. You hear talk of salutary examples being made, pour encouragers les autres.

Which makes the Rangers fraud case a perilous but fascinating thing for media big and small, professional and amateur. Let's put it this way. Given the issues and characters involved, if the Scottish media, and the easily agitated world of online comment, escapes the Rangers fraud case unscathed by contempt, it'll be a miracle. 

Make no mistake: the lawyers for the accused will be taking a keen and constant interest in what goes on on in the pages of the press, in blogs, on twitter, and in forums. As the criminal case is ongoing -- none of this scrutiny will leak into the public domain. The judge will deal with it in the absence of the jury, but if you fall foul of  the court's attention, you may well find yourself appearing to explain yourself, and mumbling your explanations. 

The days of court specialist reporters in the media are long behind us. This job seems likely to end up the responsibility of the sports desk. And all it will take is one careless reporter, filling in, despatched to the High Court, out of their element, rusty on the rules, to say something spontaneous and silly on the radio or on telly. Or, equally probably, it'll be wee feature piece with a glancing reference to the accused, which isn't legalled, and is thoughtlessly published, only for its potentially prejudical impact to become clear. And bingo. Contempt. 

Perhaps the journalist will refer to legal argument heard while the jury are out of the room. Perhaps they'll allude to evidence the judge has excluded. Perhaps they'll speculate on guilt or innocence of the accused, or criticise the credibility and persuasiveness of some witness or piece of evidence. Whatever it is, there'll be embarassing explanations to be made and an irate judge to placate. I hope this doesn't occur. I don't want to see anyone - professional hack or amateur commentator - hit with a prison term or a fine. But in the current environment, it seems all too probable. 

So what are the rules? Any conduct - any comment - any commentary - any tweet - which tends "to interfere with the course of justice in particular legal proceedings" is a contempt of court, "regardless of intent to do so." This catches any comments which create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." Your social media reach matters, but if you have any kind of audience, don't kid yourself. You aren't a world away from STV or the Daily Record, and you can't expect the judiciary to treat you as such.

You are protected if you are offering only a "fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith." Publications "made as or as part of a discussion in good faith of public affairs or other matters of general public interest" are also not treated as contempts of court "if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion". But if you breach that? The maximum penalty under the Act is two years in prison or a hefty fine. 

So don't kid yourself. Journo or punter, superfan or utterly indifferent to soccer: this isn't America. This isn't a free for all. Duly warned.


  1. Good article and thanks for that. Unfortunately I suspect that your words of wisdom may fall on stony ground.

  2. I assume you mean decourager les autres?

    Might be a good idea Andrew to appraise the alleged sports reporters at the Daily Record of your article.

    As for the more rabid commentators from various Rangers supporters' groups, anonymous or not, following your advice?

    Save your breath.
    They're unreachable; on various levels.

    1. Andy: The phrase "pour encourager les autres" is used ironically... of course one MEANS décourager in reality...

      What can you say...? Ce sont les français!

    2. Thank feck for Google!
      Context and everything.
      Merci beaucoup :-)

  3. I refer my learned friend to Chic Young on Tannadice V Tannadice

  4. That's for your wise advice. I'll stay very clear of commenting.

  5. Fucking lawyers. Take all the fun out of everything.

  6. The Scottish hacks will do as they are told.They already do. If they try to tell the truth, they know what happens. Just ask G Spiers or A Haggerty.

  7. Replies
    1. A dwindling band of triumphalist morons?

    2. It's passed on.
      It is no more.
      It has ceased to be.
      It's expired and gone to meet its maker.
      It's kicked the bucket.
      It's shuffled off its mortal coil.
      Its run down the curtain and joined the bleedin choir invisible!

    3. A question for the philosophers...

  8. Your opening two paragraphs will do for me,.. however.

    If it looks like a duck, walks like a duck, occupies the same patch as always... its no longer a duck? And I'll duck out from any "furious" responses.

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