On contempt of court

Sunday National, Herald on Sunday, 22nd February 2026.

“This is your friendly neighbourhood reminder that the case is now active and the Contempt of Court Act 1981 applies.

With the arrest of Andrew Mountbatten-Windsor, and the extensive discussion of the pending prosecution of Peter Murrell last week, lawyers are often to be found online, cautioning their followers about the potential consequences of speculating wildly about these cases. They’re strong. The maximum penalty for contempt of court is up to two years- imprisonment and an unlimited fine.

But I’m not sure this well-intentioned advice really lands – not least because the ordinary punter is unlikely to know what exactly the 1981 Act says you can and cannot say about a case once someone has been arrested or is awaiting trial after a lengthy police investigation characterised by substantial and ongoing leaks. Watching the press and some politicians last week, I wouldn’t blame anyone for a degree of confusion about what’s safe to say and what’s verboten.

From the publisher’s perspective, the biggest constraint is the strict liability rule. Under the 1981 Act, conduct can be treated as contempt of court if it “tends to interfere with the course of justice in particular legal proceedings, regardless of intent to do so.” This sweeping restriction is constrained by three important limitations.

Firstly, it applies only to publications addressed to the public. Speaking in a loud and happy voice on the Edinburgh to Glasgow train about an ongoing case is certainly foolish and unprofessional, but it isn’t contempt. A second caveat is that contempt rules only apply once a case is “active” normally once a suspect has been arrested, lasting until they are acquitted or sentenced. Thirdly, publications only count as contempt if they create “a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”

Prejudice and impediment can arise in different ways. Sharing lurid details about an accused person’s prior convictions and bad character before a trial is the classic example.

But more broadly than that, stating or implying that the accused person is guilty in advance of trial can have the same effect. Because of how slowly the wheels of criminal justice grind on, what’s often described as a “fade factor” is likely to reduce the impact of prejudicial articles, as it is less likely that potential members of the jury will read them in advance of trial months later.

Another way that contempt can arise is if publishers print a lot of detail about evidence which may end up being contested at trial, pre-litigating factual claims in the press, potentially influencing critical witnesses.

In principle, Scottish courts have held that publishing photographs of an accused person in advance of trial can constitute contempt, though in practice, photographs of some high-profile accused people have routinely been published before and during criminal trials, particularly in cases where there is no question about the identity of an attacker – but you can understand how splashing pictures might prejudice other cases.

If key witnesses are shown photographs of the suspect before trial, isn’t there a risk that they identify the person they’ve seen in the papers, rather than the person they remember attacking them? Eyewitness evidence is fragile enough already – and what we remember seeing can be edited, unconsciously, by ourselves and others in ways we know which can implicate the innocent in crimes they didn’t do.

Perhaps the biggest contempt case in recent years, curiously, went almost entirely unreported by the Scottish press at the time – perhaps to spare the blushes of their colleagues.

Back in 2018, the publishers of the Daily Record and Sunday Mail published two articles which caused significant vibrations in the criminal justice system.

The first of these referred to an accused person who was awaiting trial as a “cocaine kingpin” and a “-“gang boss”-” with lurid references to the “fearsome arsenal” of weapons associated with him. The Record’s plea in mitigation, remarkably, was that this copy had been legalled and passed as safe to publish, despite the fact that it should be obvious to any rookie hack who has gone through a whisper of media law training that publishing this kind of information presented a glaringly obvious risk of prejudicing the jury pool.

It transpired that the legal adviser who’d signed off the copy was, and I quote, “heavily sedated” and “incapable of rational thought, let alone advising clients on legal matters” – which at least partially explains the advice given.

This wildly prejudicial article was followed by a second piece, describing another man in a second pending case as “beastie scum”-” amongst other epithets, and included a photograph of the moment he was huckled by the police. Here, the editor was told by their lawyers they were flying close to the wind on contempt – but they decided to publish everything anyway. Choosing to publish these pieces proved to be an expensive error for the Record publishers, who only conceded that they’d screwed up very late in the day. They were fined £80,000.

Although it doesn’t normally take this form – baseless and unevidenced suggestions that the legal process is corrupt must also be capable of creating “a substantial prejudice” in a case – something a surprising number of Labour and Tory MSPs appear to have given themselves permission entirely to forget this week.

For example, Douglas Ross claimed that Lord Young’s decision to defer the preliminary hearing in Murrell’s case after an application from both the prosecution and the defence for extra time. In complex cases, this is entirely routine. Practitioners seeking to correct the record have taken to the airwaves, pointing out that it is more common for preliminary hearings to be deferred than not, particularly in complex cases.

Despite this evidence about how mundane this decision is, Ross insists it “stinks” and implies political interference in the trial process must be to blame. Logically, Ross must also be suggesting that this hypothetical official or political influence was successful, that Lord Young has effectively broken his judicial oath by taking a decision substantially influenced by political considerations.

Ross has precisely no evidence to support this extraordinary claim, but he seems happy to trash a judge’s reputation by way of political collateral, by spinning an ordinary decision in this extraordinary way.

While what you say in parliament may be absolutely privileged from the perspective of the law of defamation, MSPs aren’t immune from contempt of court laws. When perfectly ordinary decisions in the judicial process are immediately presented as evidence of corruption – without any evidence of corruption – we have a problem.

Some of our politicians seem intensely comfortable making remarkably serious accusations against the integrity of the judicial process on the basis of no evidence, on the off chance there’s a gram of political advantage to be found in it.

People without an elementary understanding of criminal procedure or the risks they’re potentially running can launch popular podcasts, create YouTube channels, and even create a Facebook live feed outside the court, pumping out content about active cases, often with a sense of impunity and the absence of consequence until there is a knock on the door and some unfriendly people with handcuffs and a warrant tell you that you need to come for a little chat with a High Court judge who didn’t like your TikTok video as much as your fans online did.

But given the last week, the biggest threat to the integrity of the justice system isn’t coming from the oft-maligned social media content creators – but from reckless politicians who should know better.