English law has come under scrutiny after three Scottish newspapers named the Cabinet Minister whose son was allegedly involved in a drugs deal.

In England and Wales, the Attorney General, John Morris, had obtained an injunction in the High Court, preventing newspapers from publicising any information leading to the identity of the alleged offender.

The law in question, the 1933 Children and Young Persons Act, only applies in England and Wales and prevents the identification of youths aged under 18 years.

English private law remains separate from its Scottish equivalent

The law is specifically designed to protect children involved in legal cases and prohibits publication of information which may lead to the naming of the child.

In Scotland however, the legal system is entirely separate and dates back to the Act of Union in 1707, which protected Scottish private law.

The Scottish Daily Mail, which first named the minister, has argued that in Scotland the injunction does not apply since a person involved in criminal proceedings is considered an adult at the age of 16.

The Attorney-General successfully obtained an injunction only hours before The Sun newspaper in London was to name the minister and thereby identify his son.

The injunction was granted on the grounds of contempt of court, which arises if an action or statement risks prejudicing or seriously impeding the course of justice.

Generally, contempt risks arise only when proceedings are "active", usually when a suspect has been arrested or a summons issued.

But The Sun has argued that the injunction which preventing it from publishing the identity of the minister is debatable.

It argues that the Children and Young persons Act only comes into effect when the alleged offender is the subject of legal proceedings which has not yet transpired.

A disparate nation

There are significant differences between the legal systems of England and Wales and those of Scotland.

In contrast to English law, the Scottish legal system is rooted in the legacy of Roman, feudal and Germanic customary laws and shares much in common with the legal systems of Western Europe.

The Act of Union protected Scottish private law - which regulated relations between individual subjects - from being altered. On the other hand, public law - which controlled relations between state and subject - was made the same throughout the UK.

There is little doubt that the identification of the Cabinet Minister by Scottish newspapers raises serious concerns about the incompatibility of Scottish and English law.

A Scottish legal expert, Alastair Bonnington, said it was unfortunate that on such a basic definition the two systems should collide.

"We have a highly developed system of child law in Scotland. But it is ludicrous that the laws defining what age an offender is judged to be adult are not as one [throughout the UK]."

"In Scotland we name from 16 onwards," he said. "But that does not mean that Scotland can ignore English law."

Whilst an English injunction does not apply in Scotland and no extension order was made, Mr Bonnington says it is imperative that each country, particularly those within the United Kingdom, respect each other's laws.

"There is no doubt that a limited degree of publication of these newspapers has taken place in England," he said. "So it is arguable that a contempt of court has already been breached."
 

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