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CRAIG MURRAY AGAINST HER MAJESTY'S ADVOCATE [2022] ScotHC HCJAC_14 (25 March 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_14.html
Cite as:
[2022] ScotHC HCJAC_14,
2022 GWD 11-168,
2022 SLT 647,
[2022] HCJAC 14
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 14
HCA/2021/14/XM
Lord Justice General
Lady Paton
Lord Woolman
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
the Petition to the nobile officium
by
CRAIG MURRAY
Petitioner
against
HER MAJESTY'S ADVOCATE
Respondent
Petitioner: Dean of Faculty (Dunlop QC), Young; Halliday Campbell WS
Respondent: A Prentice QC (sol adv) AD, A Gray (sol adv); the Crown Agent
25 March 2022
Introduction
[1]
This opinion follows the earlier determination by the court ([2022] HCJAC 5) that the
petitioner was entitled to present a petition to the nobile officium to challenge a finding that
he had breached a court order and was thus in contempt of court. The order prohibited
2
publication of any information likely to disclose the identity of the complainers in the trial of
the former First Minister, Alex Salmond, on sexual offences charges. The petition seeks to
quash the finding of contempt and the consequent sentence of 8 months imprisonment,
which has now been served. The petitioner was granted parole after serving about four
months in custody.
[2]
The finding by the court, that the petitioner had breached the order, related to a
number of articles which he had published on his website, notably those on 11, 18, 19 March
and 3 April 2020, together with a tweet of 2 April. These articles were found to have
contained information likely to disclose the identity of four of the complainers in the trial,
which had commenced on 9 March and concluded on 20 March 2020.
[3]
The petition raises a number of grounds of appeal. First, the court erroneously
applied a test of strict liability. Secondly, the court erred in making findings which were
contrary to the content of the petitioner's affidavits upon which he had not been cross-
examined. Thirdly, the court wrongly considered that it was sufficient that the publication
was likely to allow the complainers to be identified by a "particular section of the public"
rather than the public as a whole. Fourthly, in contravention of Article 10 of the European
Convention, the law of contempt was both vague and unforeseeable and could not be said to
be prescribed by law. Fifthly, the court erred in holding that the article of 18 March risked
revealing the identities of more complainers than was averred in the original petition and
complaint.
[4]
The petition challenges the sentence as excessive having regard to the petitioner's
personal circumstances. The sentence is said to be disproportionate, when imposed upon a
journalist, in the absence of exceptional circumstances.
3
The Court Order
[5]
On 24 January 2019, the former First Minister, Alex Salmond, was made the subject
of a petition charging him with a number of sexual offences, including attempted rape. The
trial commenced on 9 March 2020. On the second day, the trial judge, the Lord Justice Clerk
(Lady Dorrian) issued an order:
"... at common law and in terms of section 11 of the Contempt of Court Act 1981,
preventing the publication of the names and identity and any information likely to
disclose the identity of the complainers in the case ...".
The Articles
The Alex Salmond Fit-Up
[6]
On his website the petitioner describes himself as an "Historian, Former
Ambassador, Human Rights Activist". On 23 August 2019, he published an article on the
website entitled The Alex Salmond Fit-up. It begins with what is said to be a report from an
unnamed investigative journalist and friend of the petitioner. The report claimed that
Mr Salmond was being "fitted-up by officials in the Government". It referred to a judicial
review in which Mr Salmond had successfully challenged the Scottish Government's
procedures when investigating complaints against him. There were specific criticisms of the
involvement of a special advisor, namely AB, in the civil service group which had been
tasked with instructing the defence to the review. The actings of the permanent secretary to
the present First Minister, Nicola Sturgeon, came under fire. The report ended with a
comment that "this entire process against Salmond, already judged unlawful in the highest
court in the land, stinks to high heaven".
[7]
The petitioner continued by agreeing with that remark; adding that "no aspect of it
stinks more than the role in steering the affair throughout, of [AB]". AB's role in the
4
Government is identified. The article turns its attention to the police, who had "put 22
officers full time into trying to dig up historic dirt on Salmond". Police Scotland had
conducted the "biggest and most maliciously motivated fishing expedition in Scottish Police
history". Next come criticisms of the procurator fiscal, who had spent an inordinate amount
of time trying to "cobble together the pile of mince they have as `evidence' into some sort of
case". This is followed by an express reference to those who would later appear as
complainers at the trial, viz.:
"Meantime the parties behind the Salmond case can hide indefinitely from
investigation on the pretext that it would prejudice a so-called independent process".
Yes Minister Fan Fiction
[8]
A further article followed on 18 January 2020, under the heading Yes Minister Fan
Fiction. This consists of a script of a fictional conversation between a Minister and her
permanent secretary, along the lines of the popular, if now vintage, television series, Yes
Minister. The script is prefaced by a warning to readers not to attempt to link it with "any
actual court case" because this might cause them to "wander into contempt of court".
[9]
The script begins with the permanent secretary suggesting that the Minister could
destroy her predecessor's reputation by accusing him of sexual offences. In the absence of
evidence, creative thinking was needed to find "more women to make allegations ...
Minister, activate the women you know ...". The conversation covers the possibility of
asking the person involved in putting "the dossier" together. This person is given a
fictitious name, but it is similar to that of a particular institution, which is also the case with
that of AB. The satire is a thinly disguised one of Ms Sturgeon talking about how to tarnish
the reputation of Mr Salmond. The Minister's concern, that using a particular person would
5
necessarily implicate the Minister herself, is dealt with by a specific reference to "Accuser
anonymity" whereby:
"PERM SEC The identities of the accusers can be kept hidden by the court under
penalty of severe jail sentences for anyone who reveals them ...
MINISTER
... the accusers can just be my closest political cronies and the public
will never be aware of that! That's brilliant, Perm Sec!"
[10]
There is a separate suggestion that the wife of a politician may be willing to fabricate
allegations of sexual abuse in order to further her, and her husband's, career. Her former
position is mentioned, but a leak to the press would describe her as a "civil servant" to add
credibility to the allegations. The politician is referred to by a nickname which makes him
readily identifiable in the context of a particular comestible. His family were said to want a
safe seat in a particular area. The wife is said to be a former special adviser. The Minister
explains that she "can think of three or four women very close to us indeed who can make
allegations ... and nobody will ever know who they were". The script continues with a
disparaging and, as it turned out, erroneous prediction on the manner in which the jury
would reach their verdicts. In response to a request for the petitioner to substantiate his
allegations, he explains that he cannot do that without being in contempt of court. In an
associated tweet, a particular politician is named as intending to obtain a seat in the area
mentioned in the script.
[11]
On 19 January 2020, the article was re-posted as a tweet. The petitioner implored
everyone with an interest in justice to read the article "very, very carefully indeed ...
between the lines".
Your Man Excluded
[12]
On 11 March 2020, the day after the court had made the contempt order, the
6
petitioner published an article headed: The Alex Salmond Trial: Your man excluded from the
gallery. The petitioner was not a journalist accredited by the court. In accordance with
normal practice in cases involving evidence of a sexual offence, he had, along with all other
members of the public, been excluded from the courtroom during the testimony of the
complainers. Accredited journalists were allowed to remain. The court had adopted a
number of measures to ensure that the large number of accredited journalists could view the
proceedings, despite constraints of space.
[13]
This article commences with some misleading comments on the law of evidence
before describing the role of the journalist. It states that the petitioner knew the identities of
the "accusers" and other things, which the jury would not know because they did not "fit
into the judge's, or the lawyers', view of what is needful to be presented at trial". The article
digresses with remarks on the law of contempt. It comments on one of the complainer's,
Ms H's, testimony, as reported by others, "without fear of contempt of court". Ms H, who
was the complainer in the most serious of the charges (attempted rape), was described as
being:
"a person who could stay in a bedroom inside Bute House ... who was employed
then in a central, vital political capacity, who remains today very much an intimate
part of the small trusted inner circle of SNP leadership, a person approved as an SNP
candidate by central vetting, who attempted ... to get the nomination for [a named]
Holyrood constituency which overlapped with [a named] Westminster ... seat."
Your Man finally in
[14]
On 18 March 2020, a further article was published by the petitioner; this time
entitled: Your man finally in the public gallery. The Alex Salmond trial day 7. Day seven was the
point at which the complainers' testimony had ceased, the Crown had closed their case and
the petitioner was able to enter the courtroom and listen to Mr Salmond's evidence. In
7
reporting on the latter, including its allegation that the accusations had been politically
motivated, a number of descriptions of the complainers was given. Ms A was said to be
"extremely close to Nicola Sturgeon". The petitioner reported that he was constrained in
setting out Mr Salmond's description of Ms A because "it would identify Ms A". Ms A had
had input into a meeting on a specific date between Mr Salmond and Ms Sturgeon, when
two complaints against Mr Salmond had been discussed. Ms B was rated highly as a civil
servant by Mr Salmond. She prepared his answers to First Minister's questions. Ms B's line
manager's description of her, as given in her evidence, was narrated and a specific aspect of
her job was provided.
[15]
Ms D was described as smart and a person who got things done. She too was rated
highly and had accompanied Mr Salmond overseas, including to two named countries.
Ms F's job title was given. There was a specific occasion when she had returned with
Mr Salmond from Glasgow to Bute House on a particular date. Ms F had accompanied
Mr Salmond on tours. There was a reference to them travelling together on a particular
date. A twitter post by Ms F about the trip was quoted. There were diary entries in which
Ms F described herself being at a particular location in advance of an interview with Good
Morning Scotland.
I have a plan
[16]
On 3 April, the petitioner published another article : I have a plan so that we can remain
anonymous but have maximum effect. The lengthy title was said to be a quotation from a text
which Ms H had sent to a "co-conspirator". The plan was that the complainers, who "were
all very powerful women" would remain anonymous. This would "thus protect them
against any backlash". The article is critical of what the petitioner describes as "Scotland's
8
laughably biased corporate media" and in particular of an article by Dani Garavelli which
had painted a sympathetic picture of the complainers following Mr Salmond's acquittal on
all charges.
[17]
In the second half of the article, there is reference to a named person being the line
manager of both Ms B and Ms D. Ms A was said to have had a personal history with a
named journalist and was right at the centre of the Scottish Government. Ms D's hair was
described.
The Cases as Presented
[18]
In presenting their case, the Crown relied on the terms of a joint minute which
agreed the provenance of the petitioner's articles. No witnesses were called. The Crown
relied on the court being prepared to draw an inference from the published material that the
petitioner had "intentionally and repeatedly breached the court order" (Crown written
submissions at para 40). The petitioner's stated intention had been "to name those that he
claims are involved in a criminal conspiracy" (ibid at para 57).
[19]
In response, the petitioner lodged a number of affidavits. His own principal affidavit
begins with a description of himself as "a retired diplomat, now a historian and journalist";
the latter said to be in "new media". It describes his career. The petitioner refers to articles
which he published in 2018 and early 2019 before recounting, at some length, a meeting with
Mr Salmond. At this it was claimed that Ms Sturgeon was "behind the process designed to
generate false accusations; with a named person, [AB], as the orchestrator" (affidavit at
para 12). This meeting appears to have prompted much of the material in the August 2019
Alex Salmond Fit Up article. The petitioner had been unaware that one of his prime targets in
the article, namely AB, was to become a complainer.
9
[20]
The petitioner explains that, by November 2019, he had learned of the identities of
the complainers. He continues (para 40):
"If the public knew the identities of those being put up to make allegations, and just
how close to Nicola Sturgeon they were, they would immediately understand what
was happening. But the convention protecting the identities of those making
allegations of sexual assault, made such allegations the perfect vehicle for a positive
campaign to frame on false charges, while the perpetrators of this conspiracy to
pervert the course of justice had the protection of these courts against exposure".
It was, in the petitioner's mind, in the public interest that the public should know who the
complainers were "in order to judge the actions of those in power over them" (para 41). The
burden, of having this knowledge and not being allowed to reveal it, was a heavy one.
Although he supported the principle of anonymity, "this was an absolutely unique case"
(para 42).
[21]
Having become aware of the identities of the complainers, and knowing that "there
was no general law or court order in place preventing" (para 44) publication, the petitioner
explains that it would not be "responsible journalism" to reveal those identities. He was on
the horns of a dilemma once the potential damage to the independence movement, which he
thought would result from disclosure of the conspiracy, was taken into account. The most
cynical part of the plot was the use of witness anonymity to disguise what was behind the
allegations (para 46).
[22]
After publication of the indictment, the press coverage had been hostile to
Mr Salmond. Writing Yes Minister Fan Fiction had been (para 54):
"a challenge to work out how to tell them without being in contempt of court ... I
therefore very carefully used a number of strategies not to be in contempt of court;
...".
The petitioner emphasised that he had not published names and that the nickname of the
politician was not related to a particular comestible. The name of a particular financial
10
institution was unconnected to AB's real name. The petitioner had, at the forefront of his
mind (para 70), the need not to reveal the identity of the politician's wife in his Your Man
Excluded article.
[23]
After the court order, the petitioner became more careful. He explains that:
"It was necessary, for the public to have an understanding of the basics of the case, to
explain that several of the accusers held senior positions in the SNP structures, but I
was very careful to ensure that I gave no details of actual positions, or who worked
in Edinburgh, who worked in London etc ..." (para 71).
[24]
After gaining access to the courtroom, the petitioner continued his policy of taking
great care. He checked his prudence by carrying out Google searches. He deleted a
reference to AB being at a particular meeting, although others had not. The fact that both he
and Mr Salmond had been prosecuted, and Ms Garavelli had not, was "sinister" (para 78).
The media reporting of the testimony at trial had been biased; omitting much of the defence
evidence. The "mainstream" media had been overwhelmingly hostile to Mr Salmond. It
was mainly because of the petitioner's blogs that the public had become aware of that
evidence. He was fulfilling a "democratic duty" (para 84). Although he accepted that he
was "up to the line" (ibid), he had been very careful not to cross it.
[25]
On 20 March, the petitioner was excluded from the courtroom; a matter about which
he protests in his principal affidavit. He regarded it as ironic that he was the one upholding
the dignity of the court and explaining the correctness of the verdicts, while Ms Garavelli
was attacking the court; hence his article I have a plan. The Crown Office was, he believed,
"deeply corrupt" (para 114).
[26]
The petitioner did not give oral testimony. His counsel did say that he was prepared
to answer any questions which the prosecutor wished to ask. The Advocate depute declined
to ask any questions.
11
The Decision of the Court of First Instance
Merits
[27]
The court of first instance (sitting as a bench of three) rehearsed the practice in
Scotland whereby courtrooms are generally closed to the public, but not to journalists, when
complainers in sexual offence cases are giving evidence (H v Sweeney 1983 SLT 48 at 61). The
convention is that the press do not publish the identities of complainers. This is covered by
the Editors' Code of Practice (at para 11). The justification for the convention was set out as
early as 1975 by the Heilbron Committee (at para 153) as being, first, to prevent public
knowledge of the indignity to which a complainer had allegedly been subjected and,
secondly, to reduce the risk that such knowledge would operate as a deterrent to the
bringing of proceedings. In human rights terms the justification could be found in Brown v
United Kingdom (2002) 35 EHRR CD197 in which the European Court recognised (at CD200),
in the context of the legislation in England, that the prohibition on identifying complainers
"encourages victims to report incidents of rape to the authorities, and to give evidence at
trial without fear of undue publicity". In determining proportionality the court required to
pay special regard to the fact that giving evidence in sexual offence trials is often conceived
[28]
The petitioner's contention was not that the order should not have been made, but
that the material did not have the effect of identifying the complainers. The definition of
what was meant by "likely to identify" was that there was a real risk, danger or chance of
at para 29). In rejecting the petitioner's argument about a breach of Article 10, the
court determined (Opinion, para [53]) that an intention to breach the order was not required.
12
If the order had been breached, a lack of intention to breach it was relevant only to penalty.
If the order were Convention compliant, it could not be a disproportionate restriction of the
petitioner's Article 10 rights to be found in contempt in the event of a breach.
[29]
On the scope of the protection, where it was known that the complainers were likely
to have some connection with Mr Salmond, and the dates and loci of the offences had been
widely reported, there was an inherent and acute risk that the publication of any further
personal, but otherwise innocuous, facts relating to job title, role, career moves or public
appearances, would lead to identification. The question was whether the material was such
that, looked at objectively, it was likely to lead to identification. If the material would be
likely to enable a particular section of the public to identify the complainer, that would be
sufficient to constitute a contempt.
[30]
The court reiterated that the petitioner's intent was "beside the point" (para [59]). He
had been fully aware that material, which was likely to lead to identification, should not be
published. He was responsible for any contravention of the order (see Muirhead v Douglas
1979 SLT (notes) 17 at 18). It was publication in the face of the order which constituted the
contempt (Skeen v Farmer 1980 SLT (Sh Ct) 133).
[31]
On the relevance of the pre-order articles, which the petitioner had continued to
display on his website after the order had been pronounced, the petitioner had been entitled
to expect (para [62]) that the basis for the allegations of contempt should be set out clearly
and specifically in the averments (Byrne v Ross 1992 SC 498 at 506). The pre-order articles
could not, per se, be found to constitute a contempt but they did remain relevant because the
post-order articles, when read in conjunction with them, could be regarded as likely to lead
to identification.
13
[32]
The court considered (at para [66]) the petitioner's affidavits to be full of irrelevant
material, hearsay, gossip and potentially defamatory statements. They explored collateral
issues and presented material from only one point of view. The petitioner was not merely
identifying information but acting as arbiter, presenting it as proof of his conclusions,
inferences and point of view. The principal affidavit was polemical. The petitioner's
assertion, that he had never intended to publish the names of the complainers, may be "open
to question" (para [67]) in light of the terms of his own affidavits.
[33]
By the time of Yes Minister fan fiction, the petitioner considered that the public
interest required revelation of the identities. The court continued:
"[70] He wrote the `Yes, Minister' article after a health scare because `there were
things I would not wish to die without having told'. There was thus clearly an
intention to convey to the public information and opinion about the criminal
proceedings and the background thereto. It is clear that he understood the risk
inherent in the action he was taking, since he states that it was `a challenge' to work
out how to convey the information `without being in contempt of court'
(paragraph 54 of the affidavit). He used certain strategies seeking to avoid being in
contempt, the main one of which was `to leave information that people would not
understand the ramifications of but would after the trial or once further evidence
emerged'. It is a reasonable inference that by using coded language he anticipated
that if not at the time of the article, at least by the conclusion of the trial, the material
would be understood beyond its ex facie terms."
The court drew the inference that the petitioner's reference to the conclusion of the trial
meant that he was focusing on potential prejudice to the proceedings. The identity of the
complainers did not feature in his thinking. His reference to the lack of anonymity for
defence witnesses suggested a failure to understand the rationale and purpose of
anonymity.
[34]
The court determined that the articles of 11, 18, 19 March and 3 April, with the tweet
of 2 April, constituted contempt in identifying four of the complainers. The article of
23 August 2019 (The Alex Salmond Fit-Up), on its own, was not likely to lead to identification,
14
although it might be different when it was read along with the others. That of 18 January
(Yes Minister Fan Fiction) was likely to lead to the identification by "members of the public"
of two of the complainers. The petitioner's intention (para [73]):
"was to present material in a way which was effectively `encoded', aligning with his
view that there was `the strongest possible public interest' in knowing the identity of
the complainers".
The warning at the start showed that the petitioner was aware of the risk of contempt, if the
script was read as relating to Mr Salmond's trial, but it was reasonable to infer that this was
exactly what the petitioner had intended in terms of his tweet to his followers to read it
"Between the lines".
[35]
Linking the nickname of the politician to one of the complainers required very little
imagination. Even if the named job was not the one held by the person, it did imply close
contact with the minister in the workplace. The petitioner had breached the order by
continuing to publish this article on his website. The breach was blatant when read with the
earlier article. The court found (para [75]) that the article was "designed to allow [the
nicknamed person], and by association [a complainer] to be identified". Other published
details confirmed this intention.
[36]
The article of 11 March (Your Man Excluded ...), alone or taken with other material,
contained sufficient detail as to be likely to lead to identification. There was reference to
political aspiration and particular employment; the likelihood increasing when read in
conjunction with the earlier material. Similar considerations applied to that of 18 March
(Your man finally in ... Day 7), with its reference to a job description. When read along with
the article of the following day (Your man finally in ... Day 8), which provided further
information on a complainer's role and the name of her line manager (see also the Tweet of
2 April), this too was likely to lead to identification. The reference to another complainer,
15
wrongly initialled, having a specific job was tantamount to naming her. The 19 March
article contained further breaches relating to these complainers.
[37]
The article of 3 April (I have a plan ...) did not constitute a breach in relation to the
complainer having a link with a journalist, but it did in relation to another complainer by
referring to her role in public life.
Sanction
[38]
On 11 May 2021 the petitioner was sentenced to 8 months imprisonment. In
mitigation, reference had been made to certain cases in England and to a sentence of
6 months which had been imposed on Clive Thomson for publishing the names of the
complainers. The court took note of the petitioner's age (62), his lack of previous
convictions, and his previous useful contributions to society in the diplomatic service. He
was married with a young family. He had a number of serious health issues.
Imprisonment, it was submitted, would be disproportionate. A substantial fine, which
would be in line with other media contempts, would be appropriate.
[39]
In a note of reasons appended to the interlocutor, the court had regard to the factors
listed in Re Yaxley-Lennon [2018] 1 WLR 5400. The case was at the more serious end of the
scale. The potential consequences for the complainers had been significant. The risk of
identification would have been abhorrent and worrying to them, especially given the
enormous publicity which the trial had attracted.
[40]
The scale of the breach had been considerable; involving a number of publications
over a period of about a month. The petitioner had taken no corrective action, even when
members of the public had posted responses stating that they were able to identify
individual complainers. The petitioner maintained that he had a readership of 77,000 and
16
that his coverage of another case had "reached millions". The scale of dissemination had
been substantial.
[41]
The petitioner knew that the complainers had been given a specific protection. He
understood the risk inherent in his actions. He:
"deliberately decided to run that risk, knowing that jigsaw identification of
complainers might result, and did so repeatedly. It appears from the posts and
articles that he was relishing the task he set himself which was essentially to allow
the identities of complainers to be discerned, which he thought was in the public
interest, in a way which did not attract sanction. In that he failed."
A serious issue of principle arose; viz. the importance to the administration of justice of
granting anonymity to complainers in sexual offences cases. Actions, such as those of the
petitioner, in the face of a clear order of the court, required to be treated as a contempt of
considerable gravity. Despite the personal circumstances of the petitioner, the court did not
feel that it could dispose of the case other than by way of imprisonment.
Permission to Appeal
[42]
The petitioner at first applied for permission to appeal to the Supreme Court of the
United Kingdom. On 8 June 2021, the court refused that application. It distinguished the
petitioner's description of himself as a "journalist in new media" from that of the
mainstream press, which was regulated and subject to codes of practice. Cases involving
contempts by the mainstream press were not comparable.
[43]
The petitioner advanced three grounds of appeal, each of which was said to raise a
compatibility issue. The first was that a breach of Article 6 had occurred because the court
had gone beyond the terms of the original petition and complaint in relation to the article of
18 March (Your man finally in ...). The court explained (Opinion, para [6]) that it did not find
that this article constituted a breach of the order on its own. When taken along with the
17
other articles, the finding of contempt had been correct. The court was not, in looking at the
background, limited to the petition's averments.
[44]
The second ground was that the finding of contempt was not compatible with
Article 10(2) as the test was insufficiently precise and foreseeable. The court rejected that
contention, and the argument that it could not be a contempt if only work colleagues or part
of the community could identify the complainers. The court had not said that the ability to
identify was restricted to members of the complainers' immediate or personal circle, but had
proceeded (para [8]), on the basis of the risk of identification by members of the public.
[45]
The third ground was that the sentence was disproportionate. Only in exceptional
circumstances, notably where other fundamental rights had been seriously impaired, would
a prison sentence on a journalist be appropriate. The court explained (para [11]) that the
rights of the complainers, not to be identified, had been "seriously and flagrantly impaired"
by the petitioner's actions. The latter struck at the heart of the fair administration of justice.
The circumstances were exceptional, involving an infringement of the complainers' Article 8
rights. It was the repeated publication of material likely to lead to their identification "in the
face of a clear order of the court prohibiting that which drew the sanction".
[46]
On 29 July 2021 the UK Supreme Court refused permission to appeal because "the
application does not raise an arguable point of law of general public importance."
Submissions
Petitioner
[47]
The submissions on behalf of the petitioner were prefaced by a contention that the
petitioner held and continues to hold the genuine belief that there had been a conspiracy
and the public had a right to know of it. . He conceived that he was fulfilling a journalistic
18
role. In its opinion on the refusal to grant permission to appeal to the UK Supreme Court,
the court had, without justification, distinguished between the petitioner and the
mainstream press. This ran contrary to European Court jurisprudence (Magyar Helsinki:
Bizottság v Hungary (2020) 71 EHRR 2 at para 167). There had been no evidence that the
petitioner had sought deliberately to identify the complainers for any vindictive purpose.
His purpose had been, as a "public watchdog", to report on concerns about serious
misconduct at high levels of public and political office.
[48]
Five grounds of appeal were advanced. The first was that the court had erred in
applying a strict liability test for a breach of a section 11 order. It had erred in holding that
"intent to breach the order" was not a pre-requisite. Strict liability only applied where there
was a substantial risk of prejudice to the course of justice (1981 Act, s 2(2)). Skeen v Farmer
and Robb v Caledonian Newspapers 1995 SLT 631 were in that area in which proof of intent
was not needed. There was a presumption that there required to be a mental element in
statutory offences (Pwr v Director of Public Prosecutions [2022] 1 WLR 789). It was accepted
that publication had been intentional and that there was no need to prove an intention to
break the law. It was not enough just to show that a publication contained the last piece in a
jigsaw. The court had to find that the petitioner's actions had been in wilful disobedience of
the order (McMillan v Carmichael 1994 SLT 510). Intention to defy the court was necessary.
para [29]; McKinnon, 2
nd
Division, 26 January 2022, unreported Statement of Reasons). It was
possible for there to be a breach of a court order but not a contempt (Sapphire 16 v Marks and
[49]
The second error was that the court had made findings which were contrary to
passages in the petitioner's affidavits upon which he had not been cross-examined. They
19
explained how he had used strategies to avoid being in contempt of court. He was mindful
of the need not to identify the complainers. Although the court had expressed the view that
his statements about what he had intended were "open to question", it had not made a
finding of wilful disobedience. If there had been doubts about the petitioner's honesty,
these ought to have been put to him in cross and considered in the submissions (Browne v
Dunn (1893) 6 R
1
67 at 70; Lee v HM Advocate 1968 SLT 155; Robertson and Gough at para 94;
McKenzie v McKenzie 1943 SC 108 at 109). There had been insufficient evidence to infer an
intention to identify the complainers (R (Balajigari) v Home Secretary [2019] 1 WLR 4647 at
para 55). It was not fair to call a person a liar without doing so in cross-examination.
[50]
The third error had been that the court had considered it to be sufficient that there
was a likelihood of identification by a "particular section of the public". The test ought to
relate to the public as a whole and not merely to a group of work colleagues. The
remoteness of the risk, and the extent to which other parts of the jigsaw were already in the
public domain, had to be taken into account (A local Authority v Mother [2020] 2 FLR 652 at
para 18; Rotherham MBC v M [2016] 4 WLR 177). There had been no finding that any
member of the public could have identified the complainers. The court's decision was
inconsistent with its subsequent Opinion in refusing permission to appeal to the UK
Supreme Court.
[51]
Ground four maintained that the law on contempt was incompatible with Article 10
of the European Convention. A finding of contempt had to be one which was prescribed by
law and necessary in a democratic society. It had not been prescribed by law as it was vague
and unforeseeable. What was "a particular section of the public"? Journalists would not be
1
This is a reference to English law reports, namely "Reportable Reports", not to Rettie.
20
able to anticipate the consequences of their reporting. They would not know the other parts
of a jigsaw. The test to be applied went beyond the Editors' Code, (para 11), and would
have a chilling effect on the reporting of criminal proceedings.
[52]
Ground five complained that there was a breach of Article 6 and general unfairness
because the Crown had not said that the article of 18 March 2020 might have led to the
identification of B, F/J or H, even although there was a reference to it identifying A. There
was a need to confine the finding to the averments in the original petition and complaint
(Byrne v Ross 1992 SC 498 at 506).
[53]
On sentence, imprisonment had been excessive having regard to the factors in Re
Yaxley-Lennan (para 80), including the effect of the breach on the trial, the scale of the breach,
the gravity of the offence being tried, the level of culpability and the reasons for the person
acting in breach. The contempt could be aggravated by subsequent defiance or lack of
remorse. The scale of sentences in similar cases was a factor, although each case had to be
considered on its own facts. The contemnor's personal circumstances should be taken into
account as should whether a special deterrent was needed.
[54]
The petitioner was otherwise of good character. He had a history of public service.
His affidavits stated that no breach had been intended. He had personal health issues. In
terms of the Criminal Justice Social Work Report, he was unlikely to re-offend. He had been
willing to pay a fine. Comparative cases including that of Mr Thomson, who had identified
involved lesser sentences (respectively 6 months and 12 weeks suspended). The sentence
was disproportionate having regard to the fact that it was a journalist who was involved and
para 115). Journalists had an important role to play and the petitioner had been acting as a
21
"public watchdog". There should be no dilution of the protection offered by the European
Court (R (AB) v Secretary of State for Justice [2021] 3 WLR 494 at para 54). Imprisonment
should be the last resort.
Respondent
[55]
The respondent maintained that the court at first instance had applied the correct
test. It was not disputed that strict liability only applied in the circumstances set forth in
section 2(2) of the 1981 Act. The purpose of punishing contempt was to uphold the rule of
law (Transocean Drilling UK v Greenpeace 2020 SLT 825 at para 55). The purpose of a
section 11 order was protection from distress and indignity and a facilitation of the
investigation and prosecution of crime. The contemnor's intention was not relevant
(Muirhead v Douglas 1979 SLT (Notes) 17).
[56]
On ground two, the petitioner's assertion that he had not intended to breach the
order was "open to question". It had been contradicted by the other evidence which had all
been agreed by joint minute. The respondent's written submissions had maintained that the
respondent had deliberately published the material to provide a likelihood of identification.
On grounds three and four, the court had applied the correct test. That of a particular
section of the public was not applied, although it was said that it might be sufficient. On
ground five, the petition and complaint had given due notice of the articles which had
amounted to a breach of the order. The court had been entitled to conclude that the article
of 18 March, either in isolation or taken in conjunction with others, contained information
likely to disclose the identity of the complainers.
22
Decision
Merits
[57]
The trial of Alex Salmond was an extremely high profile event. Feelings were
running high between his supporters and others who seemed to enjoy the prospect of his
political demise. The revelation of the identities of the complainers would be likely to result
in considerable abuse and harassment (particularly on social media) against them. There
was a real danger that they would be physically harmed. It was obvious that they would be
persons who had had significant contact with the former First Minister, probably in the
workplace context. Quite apart from the risks of direct abuse to the particular complainers,
it was important, in the interests not only of their dignity and privacy and those of other
potential complainers in other settings but also of the general public in having sexual
offences reported, investigated and tried, that their identities were kept from public gaze
(Brown v United Kingdom (2002) 35 EHRR CD197 at para CD200).
[58]
The long-standing practice in Scotland has been to exclude the public from the
courtroom when a complainer in a sexual offences trial gives evidence. The media are not
excluded, but that is on the understanding that they do not publish or broadcast information
which is liable to identify a complainer. Over the years, the media has taken a very
responsible attitude to this. It has followed the Editors' Code of Practice (para 11), which is
published by the Independent Press Standards Organisation. The mainstream media, that is
to say journalists who have been duly accredited as such by the court, appear to have no
difficulty in abiding by what is a readily understandable and almost universally accepted
practice.
[59]
In cases in which the court has reason to believe that less scrupulous persons,
whether purporting to be journalists or not, may nevertheless publish information which is
23
likely to lead to the identification of a complainer, it may pronounce an order under its
general common law powers, prohibiting such publication and backing it up with an order
under section 11 of the Contempt of Court Act 1981. That is what occurred here; the court
pronouncing an order:
"preventing publication of ... any information likely to disclose the identity of the
complainers ...".
[60]
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" (Robertson and Gough v HM Advocate 2008 JC 146, LJC
(Gill) at para [29]). There is no strict liability. Where there is a court order in place, which
prohibits a particular action, and a person deliberately does something which breaches that
order, that is sufficient to prove the crime, including any mental element. The deliberate
conduct constitutes the wilful defiance of the court. It is not a defence to say that, albeit that
his actions did deliberately breach the order, a person nonetheless thought that he was
acting in such a way as to avoid a finding of contempt. It will not do to say that deliberate
acts, which are in breach of a court order, were not intended to constitute criminal conduct
when, as a matter of fact, they did by contravening that order. In that sense, although it
might have been better phrased, the court of first instance was correct to say that an
intention to breach the order was "beside the point".
[61]
The mental element relates to the deliberate nature of the publication, not to whether
the publisher, in his inmost thoughts, meant to breach the order. Strict liability is not in play
where deliberate publication is, as here, admitted. The only remaining question is whether
the material, viewed objectively, was likely to identify the complainers. It might have been
better to use "liable" rather than "likely", since there is no element of probability involved.
24
If material which is deliberately published produces a real or substantial risk of
identification, that is determinative of this issue.
[62]
The petitioner submits that the court of first instance did not make a finding of wilful
defiance. Although it is true that these words do not feature in the reasoning in the court, it
is clear from the language which was used that that is indeed what the court was finding in
concluding that a contempt had been made out. The court held (at para [70]) that the Yes
Minister Fan Fiction article disclosed that the petitioner intended to convey the information,
which he deemed it to be in the public interest to reveal (ie the identities of the complainers).
That task, if completed, would amount to wilful defiance, in due course, of the court even if
the petitioner thought that he might be able to achieve this without being in contempt. The
petitioner's intention was for his readers to see this article as referring (as it clearly was) to
Mr Salmond's trial. The petitioner's actions thereafter in the post-order articles were taken
deliberately to fulfil the task which he had set himself. The petitioner's principal affidavit
effectively admits the breach and the contempt. He states that in writing the Yes Minister
Fan Fiction article it had been a challenge to work out how to tell the public of the identities
without being in contempt. It was not a challenge, it was an impossibility, since doing so
would be a breach of the plain terms of the order.
[63]
The language of intention is conveyed in the court of first instance's sentencing
reasoning. It refers to the petitioner's knowledge of the risk which he ran and his
"deliberately" deciding to run the risk, repeatedly; "relishing the task he set himself which
was essentially to allow the identities of complainers to be discerned". As the court said,
when refusing permission to appeal to the UK Supreme Court, it was the repeated
publication of material likely to lead to identification "in the face of a clear order of the court
prohibiting that which drew the sanction".
25
[64]
The second ground of appeal is misconceived. The Advocate depute elected to rely
on the published material, whose provenance had been agreed by joint minute, to
demonstrate that the petitioner had deliberately posted that material with a view to
allowing the complainers, or at least some of them, to be identified. This was presumably
done by the petitioner with a view to fuelling his theory that the case against Mr Salmond
was a conspiracy amongst those close to his successor. That material was sufficient to
enable the court to draw the inference that the petitioner had deliberately, that is to say
wilfully, acted in a manner which was in breach of the court order and therefore in contempt
of court. It was a matter for the petitioner to decide, in the context of the summary
procedure on a petition and complaint, how to persuade the court otherwise. He elected to
do this by lodging affidavits which set out, amongst many other things, an explanation for
his conduct. Although it was said that the petitioner would have been prepared to answer
any questions, he did not elect to testify in open court. That was a decision for him to take;
no doubt upon legal advice. That would include his counsel's view on the potential
effectiveness of any cross. The respondent did not consider it necessary to put any questions
to him. In that situation, it was a matter for the court to compare and contrast the
information before it and to reach any findings in fact which were necessary for its
determination.
[65]
The respondent's case was presented in open court, with the material, which was to
be relied upon, agreed by joint minute. There was no unfairness. The petitioner was given,
and took, the opportunity to respond to it. It would have been apparent to the petitioner
that, on its face, the agreed material called for an explanation. His credibility was under
challenge by the Crown (cf R (Balajigari) v Secretary of State for the Home Department [2019] 1
WLR 4647). If he was unable to provide a satisfactory explanation, the court might draw
26
inferences adverse to his interests. As it transpired, the court was not at all impressed by the
content of the petitioner's affidavits; describing them correctly as containing irrelevant
material, hearsay, gossip and potentially defamatory statements. Rather than identifying
information, the affidavits contain a one-sided view, expressing the petitioner's beliefs,
opinions and selective interpretation. The court considered the petitioner's affidavits to be
polemic; an aggressive attack on another's view. In that situation, there was no requirement
for the Advocate depute to insist on questioning the petitioner and thus providing him with
an additional vehicle for expressing himself. On the contrary, the Advocate depute was well
advised not to do so and to confine his submissions to the written material.
[66]
This situation is in marked contrast to one in which a party is testifying and his
opponent does not put the case which he (the opponent) intends to present thereafter. In
that situation, it may well be unfair to present that later case without affording the party an
opportunity to comment on it in advance. There is an obligation, especially, but not
exclusively, in civil cases, to lay the foundation by cross-examination for substantive
contradictory evidence to be tendered subsequently (McKenzie v McKenzie 1943 SC 108, LJC
(Cooper) at 109; emphasis added; Lee v HM Advocate 1968 SLT 155, LJG (Clyde), delivering
the opinion of the court, at 157). The failure to cross may be fatal, although recall of the
party is the obvious alternative (ibid). That is not the position here. The Crown had already
set out their stall in detail. The petitioner had advance notice of the case which he had to
meet.
[67]
The order of the court, whose validity is not challenged, was a prohibition of the
"publication of ... any information likely to disclose the identity of the complainers". The
purposes of such an order has already been explored, but one is the protection of the
complainers' dignity and privacy. In order to achieve that result, the order must at least
27
prevent identification of a complainer within the community in which she either lives or
works. The court of first instance was correct to hold that it would be sufficient, for a breach
to occur, if the publication created a real risk of identification to a "section of the public". It
is not necessary for it to identify the complainer to the public as a whole.
[68]
In this case there were pieces of the jigsaw in place which would enable the public as
a whole to see that the complainers would be likely to be part of Mr Salmond's
governmental or political team. The revelation of further details regarding their jobs and
places where they worked with Mr Salmond would enable, at least, those in the
governmental and political communities to identify who they were. Although that would
be enough to constitute a breach, the court of first instance held that the ability to identify
the complainers went beyond those communities, as the petitioner had intended, and
extended to the general public. That, according to the court, was plain from the terms of the
article of 18 January (Yes Minister Fan Fiction) and continued with the post-order
publications. As was made clear in its opinion concerning the application for permission to
appeal to the UK Supreme Court, the court's finding of contempt was not based on the
ability of a section of the public to identify the complainers. It was much broader than that.
It is clear from comments on the petitioner's articles that members of the public were able to
identify some of the complainers.
[69]
As described above, contempt of court is a well-defined concept. That is, in the
context of this case, of peripheral relevance. The court had pronounced a clear and specific
order prohibiting publication of material likely to lead to the identification of the
complainers. There is nothing difficult to understand in this. Even without the order,
journalists in Scotland have, for many years, been trusted not to reveal the identity of
28
complainers. That trust, so far as responsible journalists are concerned, has been well placed
(see X v Sweeney 1982 JC 70, Lord Avonside at 93).
[70]
Article 10(2) specifically authorises freedom of expression to be curtailed in order to
protect the rights of others. The order itself is not challenged as being a breach of the
petitioner's Article 10 right of freedom of expression. Standing the European Court's dicta in
Brown v United Kingdom (2002) 35 EHRR CD 197 (at CD200) and SN v Sweden (2004) 39
EHRR 13 (at para 47), any such challenge would have been bound to fail. If the order is
valid, and is necessary to protect the complainers' Article 8 right to respect for their private
lives, it cannot reasonably be said that a breach of the order, and the relative finding of
contempt, is a contravention of Article 10.
[71]
The process of petition and complaint is intended to be a summary one, requiring a
swift determination of the court. It is not one in which extensive written pleadings are
desirable, since the process is not an adversarial one between the Crown and the alleged
contemnor but a method by which the Crown can bring to the court's attention instances of
possible contempt. It is nevertheless important that the contemnor is given fair notice of the
allegations against him in the same way in which a breach of interdict is considered (clear
and distinct averments: Byrne v Ross 1992 SC 498, LP (Hope), delivering the opinion of the
court, at 506).
[72]
The petition and complaint made averments about the article of 18 March (Your man
finally in), which were incorporated in the pleadings brevitatis causa. The specific complaint
was that Ms D had been identified by reference to a feature of her hair. There was a more
general averment that three articles published by the petitioner at around this time,
including that of 18 March, could lead to the identification of the complainers. As outlined
above, this article described a number of complainers, namely Mss A, B, D and F (actually J).
29
It is odd that the respondent did not make specific reference in the petition and complaint to
A, B and F, but the article as a whole was before the court. Submissions were made by the
Crown relative to Mss B, D and J. By the time of the hearing the petitioner did have fair
notice that the article was part of the equation.
[73]
In the context of a summary process, in which the article was not found to be a
contempt per se and, as the court explained in its opinion on permission to appeal, the court
was not confined to the specific averment involving Ms D, it could look at the article as a
whole and determine, as it did, that it did constitute a breach of the order when read along
with the other articles.
[74]
For these reasons, the appeal against the finding of contempt fails.
Sanction
[75]
Protection of the right of free speech is an important aspect of a civilised and open
society. It is primarily through the news media that the public are informed about matters
which "may call for consideration and action" (McCartan Turkington Breen v Times
Newspapers [2001] 2 AC 277, Lord Bingham at 290). Journalists act as conduits "for
information and thereby have a vital role in contributing to public discussion and debate
and acting in a `watchdog' role through investigative journalism" (Reed and Murdoch:
Human Rights Law in Scotland (4th ed) para 7.55). There is force too in the argument that
certain campaign groups outside the mainstream media, such as non-governmental
organisations, should be afforded similar protection where they too contribute to the public
debate (ibid fn 4; Magyar Helsinki: Bizottság v Hungary (2020) 71 EHRR 2 at para 167)).
[76]
The court must therefore:
30
"exercise the utmost caution where ... sanctions imposed ... are such as to dissuade
the press from taking part in the discussion of matters of legitimate public concern"
Even when considering any competing Article 8 right, the media should not be "unduly"
deterred from "fulfilling their role of alerting the public to apparent or suspected misuse of
public power" (ibid at para 113). Imposing a prison sentence on a journalist will only be
compatible with Article 10 in exceptional circumstances, "notably where other fundamental
rights have been seriously impaired" (ibid at para 115).
[77]
The petitioner attempts to portray himself as a journalist "in new media", thereby
securing what may be thought to be the added protections afforded to the press where a
contempt of court has occurred. This is unconvincing. A journalist is a person who writes
for or edits a newspaper or periodical; whether in hard copy or on-line. The petitioner is not
such a person, nor is he an NGO or campaign group. An individual does not become a
journalist merely by publishing his or her thoughts on-line, whether by operating a website,
running a blog or tweeting. If it were otherwise almost everyone would be a journalist.
That is not the case.
[78]
A journalist has responsibilities, notably in relation to the accuracy of the information
reported (Editors' Code of Practice para I i) viz: "The press, while free to editorialise and
campaign, must distinguish clearly between comment, conjecture and fact" (ibid I iv). The
petitioner has no such responsibilities. He is not, so far as the court is aware, subject to the
Editors' Code. He does not have an editor and seems to find it extremely difficult to
distinguish between comment, conjecture and fact. In short, the court does not consider that
the strictures, which, quite rightly, are imposed on the court when dealing with journalists,
apply to the petitioner. Having regard to the responsible manner in which the news media
behaves in relation to the identity of complainers, the court does not consider either that the
31
imposition of a prison sentence on the petitioner will have any effect on the ability of the
press to report upon sexual offences cases.
[79]
Even if the court were to regard the petitioner as a journalist, this was, in line with
the dictum in Cumpn, an exceptional case which did involve the fundamental rights of
others, notably the Article 8 right to respect for the complainers' private lives.
[80]
As the court of first instance determined, this was a contempt of very great gravity.
The petitioner deliberately set out to publish information likely to lead to the identification
of the complainers and did so. Displaying what some might describe as a substantial degree
of arrogance, he elected to circumvent the law, which permits the court to prohibit the
disclosure of the identity of complainers (or the publication of information likely to lead to
identification) in sexual offences cases, and the existing universal press convention of not
revealing these identities, simply because, in his mind, he knew best. It is one thing to
maintain, and disseminate, a view that the allegations against Mr Salmond were a criminal
conspiracy engineered by the First Minister and to face any consequences of so doing. It is
quite another to subject other persons, whether identified or identifiable, to the risk of abuse
and to having their dignity and privacy invaded in a manner which the courts strive to
protect.
[81]
Notwithstanding the petitioner's personal circumstances, but taking into account his
apparent total lack of remorse, and perhaps insight, in relation to the consequences of his
actions, the court is unable to conclude that a sentence other than one of imprisonment
would have been appropriate. The lesser sentence imposed on Mr Thomson is
distinguished by Mr Thomson's acceptance of his contempt, the limited circulation of his
been in breach of the court's order and had removed her Facebook posts when advised that
32
she was in breach of the order. Before taking into account the mitigation, the trial judge
considered that 6 months imprisonment on each of two counts was appropriate. The
defendant was the mother and sole carer of three children, one of whom had additional
needs. She too had health issues. The sentence was discounted accordingly and again for
what was analogous to an early plea. The conditions for a suspended sentence, which is not
available in Scotland, were then applied.
[82]
The petitioner is an intelligent person whose actions were deliberate and calculated.
They clearly showed contempt for the court's order and for the rule of law. They created
serious risks for the complainers' mental and physical health. Even if this court were to
sentence him anew, had an error in the first instance court's analysis been detected, it would
have reached the same, or a very similar, result. The appeal against sentence is refused.
