Court of five judges refuses contempt of court appeal by former ambassador who disclosed sensitive details in Alex Salmond trial

About this case:

• Citation:
  [2022] HCJAC 14
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Craig Murray, who was not an accredited journalist, was permitted to petition the nobile officium of the court following a finding that he had breached a court order. He was sentenced to eight months’ imprisonment, which he had served in full by the time the petition was brought. 

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lady Paton, Lord Woolman, Lord Pentland, and Lord Matthews. The Dean of Faculty, Dunlop QC, and Young, advocate, appeared for the petitioner and A Prentice QC and A Gray, solicitor advocate, for the Crown. 

Test of liability 

The High Court originally found that four articles published on the petitioner’s website between March and April 2020, along with an accompanying tweet from 2 April, contained information likely to allow a particular section of the public to identify four of the complainers in the Alex Salmond trial. The articles, including one titled Yes Minister Fan Fiction, also claimed that Mr Salmond was the subject of a government “fit-up”, and in one case encouraged readers to read “very, very carefully” between the lines. 

In presenting his case, the petitioner argued that it was 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”, and that while his actions were “up to the line”, he had not crossed it. On appeal, he continued to hold a belief that there had been a conspiracy and that the public had a right to know of it. 

It was argued that the court had erroneously applied a test of strict liability, and wrongly considered that it was sufficient that the publications allowed particular sections of the public to identify the complainers rather than the public as a whole. Counsel for the petitioner further argued that the court had made findings that were contrary to passages in his affidavits that he had not been cross-examined upon, including explanations of strategies he had used to avoid being in contempt of court.

In respect of the petitioner’s sentencing, it was submitted that it was excessive in the absence of exceptional circumstances, particularly for a journalist. He was unlikely to re-offend and comparative cases where complainers had in fact been identified by name had attracted a lower sentence than the one given to him. 

Deliberate and calculated 

Delivering the opinion of the court, Lord Carloway began: “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.” 

He continued: “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’.” 

On whether the court had erred in its treatment of the petitioner’s affidavits, Lord Carloway said: “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.” 

On whether the petitioner was truly a journalist, he added: “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.”

Lord Carloway concluded: “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 appeals against conviction and sentence were therefore both refused.