Criminal juries need to remain uncontaminated by publicity surrounding a case. The Peter Tobin trial highlighted how the Contempt of Court Act, which prevents prejudicial information being published in newspapers, may be wildly unfit for purpose in the information age.

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Ros McInnes
“I’m going to the High Court in Dundee for a contempt hearing,” I told a Newsdrive colleague during the Vicky Hamilton murder trial. “The Digger magazine has said Peter Tobin is a paedophile who’s already serving life for killing Angelika Kluk.” “Who knew?” was the sardonic rejoinder.

Granted that those who work in newsrooms tend radically to overestimate the amount people know and retain of current affairs, that still seems a fair point. The Angelika Kluk murder trial was likely to remain in the mind, for a variety of reasons. The victim was young and a guest in our country. Her murder was brutal and her burial under the church floor macabre. Add to that Angelika’s complex personal life, Peter Tobin’s pseudonym and predatory past, witnesses including a penitent priest and a golf-teaching sheriff and the ultimate re-opening of St. Patrick’s;  this case received a good deal of sustained reporting. So the spectacle of referring to Peter Tobin without his criminal context may have puzzled a good percentage of the public. Despite a fair amount of restraint on the part of the Scottish media, the Peter Tobin file has so far put at least four editors in the dock- and there remains an active case in England.

Tobin is exceptional not just for its horrific facts, but because of its timing. His trial for the murder of Vicky Hamilton followed hard upon the heels of the Angelika Kluk trial. The discovery of Vicky’s body and that of another young girl in Tobin’s garden evoked the Cromwell Street murders. The lengthy mystery as to Vicky’s disappearance and the role of DNA in helping to solve it all increased interest in and coverage of the murder and possible other crimes. It is worth noting, too, that Lord Emslie, who could have granted an order postponing reporting of the trial itself- as has been done in relation to the preliminary hearings in the English case- did not do so, and no one argued with this. Open court reporting was therefore honoured (subject to narrowly crafted reporting restrictions over the contempt proceedings themselves). The strictures surrounding a full telling of the Tobin story may well have been artificial in this case, when so much about Tobin was thoroughly in the public domain already. Most cases -even murder trials- are not like that. An accused’s lurid history can usually be kept from the jury and public until the case has been decided upon its own evidence.

But what about the exceptional case? Tobin was one. Angus Sinclair, accused of the World’s End murders and acquitted following a no case to answer submission, was another. He had originally argued, unsuccessfully, that he could not get a fair trial because of the amount of material on the internet about him, directly accusing him of killing the two young women. Go back a little further to William Beggs. A storm of publicity has followed the discovery of a dismembered body scattered throughout Scotland, his flight to and extradition from the Netherlands, his trial and conviction and many subsequent legal proceedings involving him. During his trial, attention focused for the first time on the impact of internet archives on contempt law. Lord Osborne, although taking the view that publication occurred, or recurred, on downloading of an archived article, nonetheless refused to accept that what was available online would have a significantly prejudicial effect.In December 2007, in the less sensational circumstances of a fraud trial, Lord Osborne, chairing a unanimous three judge bench of the High Court of Justiciary, again refused to accept that internet publicity by, inter alia, the Financial Services Authority, would make it impossible for Raymond Coia to get a fair trial. In a candid and ruthlessly logical judgment, the Court concluded:

“In our opinion, criminal trials in our jurisdiction are not and cannot be conducted in a prophylactic vacuum. They are, and must be, conducted in the real world, of which the Authority, properly performing its statutory functions, and the internet are parts. As regards the Larry Cook blog site, like many others, it is, having regard to its origin, quite beyond the control of this court. The fairness of trials under our system must therefore heavily depend upon the assumption that juries follow directions given to them by the presiding judge.”

Cases have occurred, and will occur, where disreputable facts or allegations about the accused will be well known to many in the jurisdiction. That cannot mean, per se, that s/he will not get a fair trial. The jurors who acquitted Barry George of the murder of Jill Dando did so in the knowledge that he had been previously convicted of that offence, and, presumably, of many other claims about him. As regards Tobin, it seems much more likely that the jury convicted him of Vicky Hamilton’s murder because he had her body in his garden, her DNA on a hidden knife in his previous home, his DNA on and in her body and his fingerprints on the bodybag, than for media comment. As regards the majority of lower-profile cases, the media will probably continue to work comfortably enough within the discipline of not mentioning an accused’s previous convictions. But as the internet grows, the amount to be found and the ease with which it can be found, in and from any jurisdiction, will grow too.

The really significant issue for the responsible media would be any threat to the integrity of news archives. Wikipedia’s withdrawal of its Tobin entry is a matter for Wikipedia, but the evisceration of an archive, built from public funds and from proper contemporaneous news reporting, would be a breathtaking piece of informational vandalism. It is surely far more proportionate -as well as much more pragmatic- to concentrate on the role and responsibility of the juror, than to censor knowledge owned by the people against the off-chance than fifteen of them might ignore the judge and flout their oath.

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Campbell Deane 
It’s the oft asked question of the frustrated editor- ‘Why can’t I publish that information when it’s all over the net?’ It’s difficult to give a convincing argument in response, when you are shown various websites that highlight previous convictions and pronounce the guilt of an accused awaiting trial.

The press remain constrained, notwithstanding what individuals publish online, because their markets are easily defined in comparison to the mostly unregulated internet. Their risk of contaminating a trial is easily quantifiable by the size of their audience. The restraint on press freedom is to allow an accused a fair trial and is enshrined in the Contempt of Court Act 1981 which places a prohibition on publication which creates a substantial risk of serious prejudice.

But 27 years since its introduction, does the Act still effectively afford the accused that right, given the availability of news and accessibility of archives?  The drafters of the Act would not have envisaged the World Wide Web, 24-hour news, or blog sites discussing the minutiae of all matters. But jurors, potential or actual have these at their disposal.

In contempt cases, when examining the residual impact on the publication of a potential juror the court will consider the length of time between publication and trial. Does that hold water when it is easy to refresh memory by the click of a mouse? It used to be, with the exception of library archives, that today’s news was tomorrow’s fish and chip wrappers. Not so now. Today’s news is here forever.
Both aspects of this can perhaps be seen starkly in the Vicky Hamilton murder trial. As usual those balloted to serve on the jury were asked prior to the trial whether they knew anything about the people named on the indictment. It was explained to them that they should come to the trial completely free of any knowledge about the evidence that they might hear, so if they even had have any fleeting or questionable involvement with any of the people or matters alleged in the indictment then they should be excused.

When the remains of Vicky Hamilton were found alongside the remains of Dinah MacNicol, the excavation of the site remained lead news, both Scottish and UK wide. It begs the question of whether anyone sitting on that jury, resident in the UK who owns a TV, radio, or reads a newspaper would not have some knowledge of the accused. That’s not to say they didn’t perform their duties and follow the directions of the trial judge, namely to listen to the evidence and decide the facts of the case on the basis of the evidence heard in court and not on the basis of anything else. It just casts doubt.

So far as archive is concerned, then what is to stop the juror coming home after a hard day’s evidence and typing the name of the accused into a search engine?  Nothing, except the direction from the trial judge to decide the facts of the case on the basis of the evidence heard in court. Our entire system of trial by jury is dependent upon confidence being placed in juries to follow directions which they are given.  

In the Tobin case, Donald Findlay QC took exception to a reference on the Wikipedia website to Tobin’s previous convictions for the murder of Angelika Kluk. The reference to his previous conviction was removed from the site but a simple Google search of the word “Tobin” and “Wikipedia” brought up the cached page with reference to his murder conviction albeit with a tag confirming the page had been removed. Hardly decontamination.

In the World’s End murder case, it was argued that Angus Sinclair could not get a fair trial as a result of ten years of media speculation that he was the killer. The court was well aware that the availability of the internet and it’s increasingly wide use by members of the public, including potential and serving jurors, presented a challenge for the administration of justice. The court made reference to the position in Queensland, Australia where a statutory provision had been made to the effect that a person who had been sworn as a juror in a criminal trial must not enquire about the defendant until the trial was over. That prohibition is backed by criminal sanction, including the possibility of imprisonment.

Whilst one can see the purpose of such a sanction, it is hardly the greatest way to encourage your fellow citizens to roll up for jury duty.

Whilst we continue to get news saturation in very high profile cases it will be harder to argue fade factor. Thankfully such cases as Tobin’s remain few and far between. Knee-jerk reaction to amend the existing legislation is not the way forward.

Newspaper clients of mine were asked if they would remove all archived reference to Sinclair during his trial. They did, although were under no obligation to do so. Cooperation between the media and the authorities would be one way of limiting the risk of prejudice. The problem is that it tends to lead to the oft asked question of the frustrated editor - ‘Why should I do that, when it’s all over the net?’