SOMETIMES the law
is extended, sometimes it extends itself. This week Scotland's
most senior law officer threatened editors with proceedings for
contempt if they continued to investigate the circumstances of the
Dunblane massacre. As though to sharpen the point, the
Crown Office said the remarks of Lord Mackay of Drumadoon, the Lord
Advocate, were themselves "not for publication or broadcast". The
curb on reporting is not to be reported.
At first sight, the Lord Advocate's note might
seem reasonable enough. Speaking of Lord Cullen's tribunal
of inquiry into the events at Dunblane, it records that he "has
noted with concern the publication of newspaper articles exploring
and attacking the conduct of individuals, including police officers,
councillors and local authority officials, whose actings may be
the subject of scrutiny at the inquiry and who may themselves be
required to give evidence to the inquiry; in certain cases such
articles have appeared after intrusive personal approaches to these
Lord Mackay, the note continues, "has raised concerns
with Lord Cullen, who has agreed that any further instances of harrassment
of potential witnesses by the media or publication of any material
which might impede the investigation or interfere with the giving
of evidence to the inquiry should be referred to him", at which
point Cullen could initiate proceedings for contempt. [Ed
~ Lord Cullen is a member of the exclusive, secretive and highly-suspect
Masonic Speculative Society of Edinburgh (Spec), numbered on its
roll at 1702. LINK]
This, in itself, is not actually a crime; it is
merely treated like one. The 1981 Contempt of Court Act, and
all the legislation which preceded it, is intended to deal, in an
old definition, with "conduct which challenges or affronts the authority
of the court or the supremacy of the law itself". Thus, improper
behaviour in court, the slandering of judges, prevarication or perjury
by witnesses, witnesses refusing to answer relevant questions, to
take an oath or affirm, or fail even to attend the court, are all
species of contempt.
For our purposes, however, other forms become important. It
is contempt to prejudice a fair trial by publishing statements which
might impede a fair trial, for example. It is also contempt
to interfere with the investigation of a crime. Newspapers
guilty of such offences are liable to heavy fines, and their editors
to imprisonment. That, many might say, is as it should be.
But think, if you still can, about Dunblane, and
about what actually happened there. Think of what the
public most wants to know about the causes of that inconceivable
event. Remember that Thomas Hamilton, dead at his own hand
cannot be tried now, and that Lord Cullen is conducting a tribunal,
not a trial. Remember, too, all the people who asked, bewildered,
how a killer could lay his hands on so many guns LINK,
why he eluded so many controls for so long, and why the police were
never once able to lay hands on him.
Be aware, further, that much of the investigative
work into possible official failures attempted by the press in the
aftermath of the massacre have proved fruitless, simply because
the very sorts of people Lord Mackay now seeks to protect - police
officers, councillors, and the local authority officials - have
taken cover behind Cullen LINK.
It seems the public interest, and the public's right to know, are
to be allowed only one representative. Such are the number
of potential witnesses to the long, squalid career of Thomas Hamilton,
indeed, that the media need hardly now dare speak to anyone.
Meanwhile, the police, the subject of most lay criticism, are given
the job of investigating themselves. LINK
If it seemed at all likely that the activities
of the media might prevent Cullen from getting at the truth, that
official culpability (if there was any) might somehow remain concealed
because of the press, the Lord Advocate's attempt at censorship
might almost be justifiable. But the reverse is more likely. By
common consent, the media conducted themselves well, for the most
part, in covering Dunblane. The press and television have
investigative resources at least the equal of any police force.
The real difference is that the media are not part of the system
which failed utterly when it permitted Thomas Hamilton to live and
die as he did.
Justice, if such a thing were even possible after
Dunblane, is not at risk here. Only the truth is at issue. To
claim, as Lord Mackay does, that media investigations would amount
to interfering with witnesses is a juristical sleight of hand, only
possible because tribunals have been granted the status of courts,
and because the sub judice rules applied to them - albeit tightened
in the aftermath of the Aberfan disaster - remain vague.
Thus, Lord Cullen's inquiry is not a court - how
could it be, with the only accused dead? - but has the powers of
a court where the press is concerned. It can wield the big
stick of the contempt laws, say the Lord Advocate, even if this
particular big stick looks suspiciously like a whole new weapon,
so far does it differ from precedent. The suspicion grows,
therefore, of an attempt simply to prevent the press from investigating
what happened at Dunblane.
Interestingly, Mackay's note does not quote legislation.
Instead, the second Salmon Committee report of 1969 is summoned.
This warned journalists against mounting any "parallel inquiry"
and suggested that evidence could become "contaminated in media
"The only legal sanction to prevent the evidence
from becoming contaminated," Salmon said, "lies in the law of contempt."
But what sanction prevents official failure, at
any level? What scrutiny is there when the press is forbidden
to look, far less to speak? What happens when a press that
calls itself free is drawn into direct conflict with a legal system
that calls itself just? The answer is that one or the other
has ceased to live up to its name.
"Tribunals of inquiry," says one standard work,
"are appointed to investigate serious allegations of corruption
or improper conduct in the public service, or to investigate a matter
of public concern which requires thorough and impartial investigation
to allay public anxiety and may not be dealt with by ordinary civil
or criminal processes."
Is it seriously proposed that the press could hinder
the utterly impartial Lord Cullen? LINK
Conversely, are we expected to believe that public anxiety is allayed
when the media is fettered? The only possible interpretation
of the Lord Advocate's note is that policemen and officials have
come complaining because the press is asking questions? How
would the public feel if the press, after Dunblane, did not?
The massacre was unprecedented, as was the public's
heartfelt response. Now the Lord Advocate steps forward to
create a precedent of his own with a patchwork of law, administrative
procedures, and jurists' reports. It is bad, it is dangerous
and it does not reflect well on a Scottish legal system whose pride
and glory is the claim to proceed, always, from principle.