A regular figure in the media is Aamer Anwar, a Scottish solicitor who came to fame when representing the family of the late Surjit Chokhar following an unsuccessful prosecution for a racially motivated killing. Mr Anwar has, since then, regularly appeared on the media and public platforms. He is today facing action for contempt of court.
Following the conviction of Mohammed Atif Siddique, represented by Mr Anwar, Mr Anwar issued a statement from the steps of the High Court in Glasgow and appeared on various media outlets. This statement (on pp 5 – 6 of the document here) suggested that Mr Siddique had been convicted of looking at the internet, suggested that Siddique has not destroyed any evidence, criticised the Prevention of Terrorism Act (something I would agree with), suggested media prejudice and the impact of the Glasgow airport attack had impacted on the possibility of a fair trial, and suggested that there was no fair trial. At the time I was unsurprised by the statement in that Mr Anwar regularly appears in the media. However, the tone was surprising. Usually lawyers couch things (if critical) by indicating “My client has asked for the following statement to be read” and remarks are attributed to the client not the lawyer. The reason is that lawyers are officers of the court, owing duties to the court and the process. This didn’t happen here. Further, it was apparent that the issue of prejudice had not been raised before the court, nor was the court asked to move the trial elsewhere in Scotland which the court could competently do, and in the circumstances would appear a reasonable request). Law applies a principle if you don’t ask, you don’t get – and it is not unreasonable to suggest that one of the functions of the defence is to put such arguments to the court – if only to put down markers for future appeals.
Lord Carloway, the trial judge, has today referred Mr Anwar for prosecution before a panel fo three judges in relation to his statement. His clerk wrote to Mr Anwar in response to his statement. The terms gave an opportunity to Mr Anwar to temper his remarks.
Lord Carloway pointed out that: (a) Siddique was convicted of specific offences in relation to the possession of material for terrorist purposes, not for looking at the internet (the material being saved in specific files; (b) there was forensic It evidence that files had been deleted on the accused’s desktop PC (which remained in his possession between his original arrest and his subsequent taking into custody); and (c) the conduct of the trial was not accompanied by any pleas to the court.
Mr Anwar’s reply to this letter was unfortunate. He adopted the politician’s apology.
“It was said that the content of the press release, which the agent accepted was issued by him, was intended to be the words of the panel. It was not intended to be a wilful challenge to the Court’s authority and that, if any disrespect had been shown, then he tendered his apologies.”
The problem with this was that first – the statement was not framed as being by the accused (the panel) – and second, the conditional apology did not pass muster with Lord Carloway.
“Accordingly, I did not understand the agent to be tendering any form of apology to the Court or anyone else who might have been affected by his remarks.”
Lord Carloway then has found the criticism of the prosecution (suggesting the trial was politically motivated), a particular witness, the jury, and himself, grounds for a possible contempt of court action and the matter will go to a bench of three judges.
They will consider (in the words of Lord Carloway at p 13)
“Apart from the specific remarks made in this case, 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?”
The potential implications of the case are important for Scots lawyers. Mr Anwar has intimated his defence will be based on the ECHR principle of freedom of expression. The clash between this and the professional obligations owed by court lawyers will be interesting to follow.
The hearing is awaited with interest.