Lawyers defend their right to freedom of expression

The Independent
Wednesday, 7 May 2008

Defendants rely on their legal representative to advocate their cause. But a trial in Scotland threatens to weaken the case for the defence, says Robert Verkaik, Law Editor

In some very notable respects, Scotland's criminal justice system is very different to the one established in England and Wales. The non-proven verdict and the unique position of its prosecution service are two examples of a varied approach to the practice of law in the Scottish courts. But, in the support of the fundamental principles of justice, the two systems are as one.

And it is for that reason that a Scottish case currently being heard in the High Court in Edinburgh has powerful resonance on both sides of the border. At stake is the right of the lawyer to freedom of expression. It could also end the career of Aamer Anwar, a well-known human rights lawyer based in Glasgow.

Mr Anwar is accused of contempt of court for criticising the conviction of his client, Mohammed Atif Siddique, a 21-year-old computing student, who was sentenced in October to eight years' imprisonment after being convicted of terrorist offences.

Shortly after Siddique's conviction, Mr Anwar took the steps of the High Court in Glasgow to denounce the verdict which he described as a "tragedy for justice and for freedom of speech". He added that by exploring the internet for answers to questions, his client was only doing what other students did every day of the year.

Lord Carloway, the judge presiding over Siddique's trial, took exception to these remarks and accused Mr Anwar of crossing the line that separates fair comment from a naked attack on the integrity of Scotland's legal system. The judge decided to refer Mr Anwar to three appeal court judges to consider a charge of contempt of court.

The case, the first time a lawyer from either side of the border has faced a public trial for contempt for expressing his client's opinion, has drawn condemnation from some of Britain's leading human rights lawyers.

Michael Mansfield QC, who recently acted for Mohamed al-Fayed in the Diana inquest, Gareth Peirce, the solicitor who represented the Guildford Four, and Shami Chakrabarti, the director of Liberty, all made submissions in support of Mr Anwar's right to defend his client in the court of public opinion.

Last week Mr Anwar's advocate, Paul McBride QC, told the High Court in Edinburgh that it was now the duty of the lawyer – in a case of intense media interest – to make his client's position clear. At a packed hearing before three senior judges, Mr McBride argued that Mr Anwar was voicing the views of his client and had even "toned down" the remarks Siddique wanted him to make.

"A solicitor, in my respectful submission, may take reasonable steps to deal with his client's reputation following a decision taken by a court" said Mr McBride. "It's a fundamental principle that court hearings which are held in public can be fully and freely commented upon, whether to compliment and praise, or whether to criticise." He said a solicitor expressing his own views, or those of a convicted person, outside a court, "does not wilfully challenge the authority of that court or the supremacy of the law itself".

The Scottish judges have retired to consider their verdict which is expected to be delivered very soon.

At risk of joining Mr Anwar in the dock, I believe that a finding of contempt in these circumstances would have a chilling effect on the right of lawyers to represent their clients properly in both jurisdictions. A ruling from a Scottish court may not create a strict precedent in England and Wales, but it is still bound to have a persuasive influence.