Judgment in the Aamer Anwar contempt case

Background On 17 September 2007, at the High Court in Glasgow, Mohammed Atif Siddique was found guilty after trial on several charges under the Terrorism Act 2000 and 2006. On 23 October 2007 in Edinburgh he was sentenced to imprisonment for a total period of eight years.

On the day when the jury's verdict was returned, Aamer Anwar the respondent in this remit, who had been the panel's solicitor in connection with his trial, read a statement outside the court building in the presence of members of the public and journalists. The making of this statement was televised. Contemporaneously with the making of that oral statement, a press release was issued by the respondent. The full terms of that press release are narrated in our opinion. It contained nine separate paragraphs.

For the present purposes it is necessary to mention only the first, third, and fourth of these paragraphs. In the first, it was stated that the panel "was found guilty of doing what millions of young people do every day, looking for answers on the internet".

In the third paragraph it was said: "It is farcical that part of the evidence against Atif was that he grew a beard, had documents in Arabic which he could not even read and downloaded material from a legitimate Israeli website run by Dr Reuven Paz, ex Mossad. (www.e-prism.org)"

In the fourth paragraph it was said: "When detained at Glasgow Airport by Special Branch on 6 April 2006, his laptop was confiscated and he was released, at liberty for seven days he made no attempt to escape or to destroy his home computer, hardly the actions of Al Qaeda.."

During the evening of 17 September 2007, Aamer Anwar gave an interview on television in the BBC programme Newsnight Scotland, a transcript of which we have seen. During the course of that interview, he expressed an opinion as to the sentence which he considered might be imposed upon the panel Mohammed Atif Siddique.

As a result of these events, the trial judge instructed the writing of a letter to the respondent, in which he raised the possibility that Mr Anwar's remarks might constitute a contempt of court. He also considered that a question arose as to whether he, or another court should deal with that matter. On 23 October 2007 the respondent was represented by counsel before the trial judge. Following upon that hearing, the trial judge decided that, since the statements made by the respondent might appear to be a criticism, not only of the jury, the prosecutor and a witness, but also his own conduct of the trial, he would remit the question of whether the statements amounted to a contempt of court for a determination by this Court.

That remit was the subject of debate before us on 29 April 2008. Prior to that hearing, this Court received an application from solicitors acting for Liberty, formally the National Council for Civil Liberties, to be permitted to appear at it. Having considered the very unusual circumstances of the present case, we considered that it was appropriate to grant leave to Liberty to make submissions to us. That is what happened at the hearing on 29April 2008. At that hearing counsel for the respondent also made submissions to the court, to the effect that the statements in question did not amount to contempt of court. The Advocate depute, on behalf of the Crown indicated that the Crown did not intend to make any submissions on the merits of the matter, but said that the relevant facts were the subject of agreement. He also assisted by contributing, as he considered necessary, to the discussion of the law.

In our Opinion we have narrated the detailed arguments presented on that occasion by counsel for the respondent, counsel for Liberty, and the Advocate depute. Numerous authorities were cited.

In the part of our Opinion which expresses our decision, we emphasise the nature of the present proceedings. This remit was one made in terms of the Lord Justice General's memorandum of 28 March 2003 the purpose of which is to enable this court now to determine whether any of the matters brought to our attention by the trial judge amount to a contempt of court, or not. The procedure is, of course, not a criminal trial, although the consequences of a determination that contempt had been committed might be of a penal nature.

In the Opinion we consider the authorities cited to us in detail. In accordance with the decision in Robertson, Petitioner; Gough v McFadyen 2008 S.C.C.R 20, a decision by a court of five judges, we hold that contempt of court is constituted by conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself, whether in civil or criminal proceedings.

We recognise that it has been said repeatedly that the greatest restraint and discretion should be used by a court in dealing with issues of contempt, lest a process, the purpose of which is to prevent interference with the administration of justice, should degenerate into an oppressive or vindictive abuse of the court's powers. In Johnson v Grant 1923 S.C. 789, it was said of contempt of Court that the offence consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is not the dignity of the court which is offended, a petty and misleading view of the issues involved, it is the fundamental supremacy of the law which is challenged. In this regard, we discern no difference between the law of Scotland and that of England. In our Opinion, we consider formulations of the nature of contempt of court in English decisions. It is there recognised, a view with which we agree, that it is the inalienable right of everyone to comment fairly and, it may be, critically upon any matter of public importance, including judgments of courts. This right is one of the pillars of individual liberty - freedom of speech, which our Courts have always unfailingly upheld.

In the Opinion we go on, however, to say that there does exist a limit to the right of freedom of expression, which derives from the fundamental purpose of the law of contempt. Thus language which would be of such an extreme nature that it did indeed challenge or affront the authority of the court, or the supremacy of the law itself, particularly perhaps where the integrity or honesty of a particular judge, or the court generally, was attacked, would be a contempt of court. We consider that that view is wholly consistent with the terms of Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which declares that "Everyone has the right to freedom of expression" and states: "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to suchrestrictions or penalties as are prescribed by law and are necessary in a democratic society..for maintaining the authority and impartiality of the judiciary."

We believe that the insertion of those particular words in Article 10 were at the insistence of the government of the United Kingdom, which was concerned to ensure that the British law of contempt of court was protected. Thus a balance has to be achieved between, on the one hand, the protection of public discussion of matters of legitimate interest in a democracy, and on the other, the prevention of interference in particular court proceedings or of undermining faith in the judicial process more generally.

Against the foregoing background, in our Opinion we go on to examine the terms of the statement read by Aamer Anwar outside the court building, following the conclusion of the panel's trial, the terms of the press release issued on the same day and the transcript of the interview on Newsnight Scotland. As regards the press release we accept that it was authorised by Mohammed Atif Siddique, in the sense that he gave authorisation to the issuing of a press release in words settled between them.

We then consider the terms of the nine paragraphs of the press release. As regards the first, which we have quoted, we conclude that it is a wholly inaccurate statement of the nature of the convictions recorded against Mohammed Atif Siddique However, seriously inaccurate though it was, in our view, it is not a statement which could be regarded as challenging the authority of the court, or the supremacy of the law itself and thus be a contempt of court. As regards the contents of the third paragraph, we conclude that it could properly be regarded as misleading. We reached the same conclusion in relation to the fourth paragraph.

However, misleading though these paragraphs may have been, in our view, their content could not amount to a contempt of court.

We considered the other paragraphs in the press release and reached a similar conclusion. As regards Mr Amwar's interview on Newsnight Scotland, while he expressed his opinion as to the likely length of sentence that might be imposed upon his client before that sentence was imposed, we do not think that these observations could reasonably have been supposed to have played any part in the deliberations of the trial judge in considering an appropriate sentence. Thus, they cannot be seen as an interference with the remaining stages of the panel's case.

Accordingly, having considered all of the relevant material in detail, while the statements which we have examined embody angry and petulant criticism of the outcome of the trial process and a range of political comments concerning the position of Muslims in our society, we are unable to conclude that anything said by the respondent amounted to conduct that denoted wilful defiance of, or disrespect towards the court, or that wilfully challenged or affronted the authority of the court, or the supremacy of the law itself. We therefore conclude that no contempt of court has been committed by the respondent.

We consider that it is no concern of ours to comment upon the actions of the respondent in the context of the requirements made of a solicitor in Scotland by the solicitors professional body, The Law Society of Scotland. That is a matter exclusively for them. However, before parting with this case, we feel both entitled and bound to comment on the conduct of the respondent as an officer of the court, for, as a practitioner in this court, that is what he is. Any solicitor practicing in the High Court of Justiciary owes a duty to the court, a fact recognised in paragraph (I) of the Preamble to the Code of Conduct for Scottish Solicitors of 2002. In our opinion, the existence of that duty implies certain obligations upon such solicitors.

If they are of the view that it is in their client's best interests to make public comments on court decisions in proceedings in which they have been involved, about which we say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings, and, second, that their comments are not misleading. Regrettably, we do not think that those standards were met in this case. If any such comments are intended to represent nothing more than the client's own views or reactions, whether right or wrong, justified or not - and a certain degree of latitude would ordinarily be extended to such views or reactions - that can and should be made absolutely clear. In this case it was not. Instead, whatever may have been intended, the statement plainly read, and requires, in our view, to be judged as a submission by a professional representative, made on behalf of his client, which included, in part and in quotations, the personal views of the client himself. In that submission the characterisation of the panel's convictions in the manner in which they were described in the first paragraph of the press release was quite simply entirely unfounded in fact.

In addition, informed as we are by the trial judge's observations concerning the evidence at the trial, certain of the contents of the third and fourth paragraphs of the press release were misleading. This court is entitled to expect better of those who practice before it.