An unprecedented contempt case

About two weeks ago, Lord Carloway indicated that he was considering whether comments made by the solicitor Aamer Anwar to the media after Mohammed Atif Siddique’s conviction for terrorism offences might have been a contempt of court. Today, he has announced that he is remitting the matter to the High Court in Edinburgh for a decision. His full reasons have been published on the Scotcourts website.

The case seems unprecedented, focusing as it does on comments made (a) outside the courtroom and (b) after the jury's verdict was returned, thus avoiding any question of prejudicing the trial itself. In theory, “slandering” or “murmuring” judges in such circumstances can be a crime, although there is no reported prosecution for the offence since 1870, when a disgruntled coal-merchant sent letters to the Lord Chancellor and Home Secretary falsely accusing his local sheriff of corruption (Alexander Robertson (1870) 1 Couper 404).

But Mr Anwar did not make any allegations of that sort, and this case is not as simple as that. It revolves around a variety of claims made by Mr Anwar after the jury’s verdict (his press release is quoted in full in Lord Carloway's reasons), which Lord Carloway said appeared to be in part untrue and misleading, an “unjustified attack on almost every area of the trial process, other than the defence”, “an attack on the independence of the Advocate Depute” and “an attack on the fairness of the trial and thus presumably an attack on the Court itself”.

Significantly, there is no suggestion that a private individual who made similar statements could have been in contempt of court – so no doubt the media committed no contempt by reporting Mr Anwar’s remarks. Instead, the possible contempt turns on his status as a law agent and the duties which he owes to the court by virtue of that status.

Although Lord Carloway could have chosen to press matters no further, it would clearly have been inappropriate for him to have personally decided that there had been a contempt given that the remarks could be taken as an attack on him directly. For that reason, a remit to another judge (or possibly judges) was inevitable once he had decided not to let the matter rest. Just as importantly, the scope of the law here remains unclear. As Lord Carloway puts it:

“…there may be wider issues which, for the sake of clarity to the legal profession and the media, may require consideration. If agents are to make public statements in cases in which they are instructed, to what extent are they entitled, with impunity, to include material in these statements which is: (i) untrue; (ii) misleading; (iii) personally critical of jurors, witnesses and their professional colleagues; or (iv) of a political nature unconnected with the case? Furthermore, is an agent instructed in a case entitled to hide behind the cloak of his client by maintaining that such statements emanate from or were instructed by that client? Is he entitled to prepare such statements and escape scrutiny by arranging for them to be delivered by a third party, such as a friend or relative of the client?”

It seems unlikely that anyone would claim that a solicitor has a right to do all these things, but treating them as contempts of court could have a dangerously chilling effect on freedom of speech. There is little light to be shed on Lord Carloway's questions by the existing case law on contempt, and so the court's final determination will be eagerly awaited.

P.S. One intriguing bit of trivia: the copy of Mr Anwar’s press release lists his qualifications as “MA(Hons), Dip RCR, LLB, Dip LP, NP”. An impressively full set of qualifications, not unusual for a lawyer, with the exception of the “Dip RCR”. So far, extensive research (i.e. Google) has thrown up only the Royal College of Radiologists’ Diploma in Obstetric Ultrasound as a possibility. Alternative suggestions on a postcard please.