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the Lord Advocate, were themselves "not
for publication or broadcast".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 individuals".
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.
~ N.B. Both Lord Mackay and Lord
Cullen are members of the exclusive, secretice and
highly-suspect Masonic Speculative
Society of Edinburgh (Spec),
numbered on its roll at 1676
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, 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.
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.
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.
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.
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.
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
Is it seriously proposed
that the press could hinder the utterly
impartial Lord Cullen?
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
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.