Thursday, February 13, 2014

Wikinews has obtained a letter by Scottish Justice Secretary Kenny MacAskill to former Conservative justice spokesman John Lamont in response to questions raised by our correspondent about the Mikaeel Kular murder case. Wikinews has investigated possible contempt by media publishing potentially prejudicial material, and MacAskill wrote he has “been following the case of Mikaeel Kular and [is] acutely aware of the unusual publicity this case has attracted.”

When Mikaeel Kular, three, vanished from his Edinburgh home last month police and volunteers scoured the capital for him. His body was found in Fife just before midnight on January 17, and his mother was arrested on January 18. That’s when Wikinews first reported on possible widespread contempt by UK and Scottish media.

Our correspondent is based in Scotland and has been advised by a lawyer not to identify anybody detained until they have appeared in court, even if they have been arrested and charged. Professor James Chalmers of the University of Glasgow has since reviewed our coverage and confirmed this position. Despite that a large number of major media outlets identified Rosdeep Adekoya, nee Kular, 33, as the arrested individual.

Adekoya has since been in Edinburgh Sheriff Court charged with murdering her son. She is in custody pending indictment and trial, but any eyewitness evidence may be tainted because her image has been widely published. This is common practice elsewhere in the UK but Scottish justice works differently and courts have viewed publication of photos as potentially prejudicial. Professor Pamela Ferguson of the University of Dundee notes “journalists do seem to be walking a dangerous line if publishing photos etc of suspects.” Crown Office, which is in overall charge of prosecutions, has indicated to journalists that no further comment will be made at least until indictment.

MacAskill however expressed confidence in the Scottish court system to deal with the situation. “I am confident… the courts themselves will intervene if they believe publicity is in danger of being prejudicial.” He also wrote to Lamont that he has faith in the court to successfully direct any jury that may try the case in order to maintain fairness.

The Contempt of Court Act 1981 is designed to prevent prejudicial material going in front of juries before trial. Although UK-wide legislation, the law is interpreted differently north of the border than in England and Wales. Witnesses in Scotland may be asked to identify accused persons standing in the dock. The BBC College of Journalism advises legal advice be sought ahead of publishing photos and notes it has previously been ruled contempt. The BBC used the accused’s photo prominently in their own online coverage.

Chalmers explains: “It may be a contempt of court to create a substantial risk of serious prejudice to someone’s right to a fair trial. A photograph might do this in a case where identification is an issue; on the face of it, that does not seem especially likely in this case, but it is impossible to know for certain at this point. The courts have said that the only safe route to avoid committing a contempt is to avoid publishing a photograph, but that does not mean that publishing a photograph is automatically a contempt.” MacAskill noted “the kind of issue that publicity might raise may become apparent only during the trial itself.”

Contempt has been a considerable issue in the UK in recent years after high-profile cases. In one instance a charge against serial killer Levi Bellfield was dropped owing to publicity while the jury were deliberating; in another, newspapers were fined and sued for libel over reporting on the arrest of a suspect who turned out to be innocent in a prominent investigation.

A proposal was mooted to ban identification of suspects arrested anywhere in the UK, but this was subsequently shelved. MacAskill confirmed “the Scottish Government is content with the way the courts are operating the rules on contempt of court in Scotland at the moment and has no plans to make changes.” He also wrote of the difficulties with trying to individually cover all eventualities with prescriptive legislation, saying “A trial for a sexual offence will raise very different issues — particularly of protecting victims — from those that are raised by a tax fraud trial.”

MacAskill says it is the Scottish Government’s position that the task of “counterbalancing the public interest in reporting with upholding the criminal law should be left to those whose job it is to do so — the courts and the judiciary, acting in the individual circumstances of the case”.