Ex-diplomat found in contempt of court over Salmond case refused permission to appeal to Supreme Court

Craig Murray was found to have published material that was likely to lead to the identification of the complainers in the trial. He sought to appeal under section 288AA of the Criminal Procedure (Scotland) Act 1995 on the basis of a compatibility issue.

The application was considered by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull. The Crown was represented by A Prentice QC and the applicant by the Dean of the Faculty of Advocates, Roddy Dunlop QC.

Incompatible with ECHR

The applicant, who had previously acted as the British ambassador to Uzbekistan, had been found to be in breach of an order under section 11 of the Contempt of Court Act 1981 and sentenced to eight months’ imprisonment. It was argued that a finding of contempt in this case was incompatible with several parts of the ECHR due to the “unprecedented” circumstances of the original trial and a lack of intention on behalf of the applicant.

Three alleged compatibility issues were raised by the applicant. The first was that the finding of contempt was incompatible with Article 6 of the ECHR because the conclusions the court reached about an article the applicant published on 18 March 2020 went beyond the contempt alleged in the petition, namely that it could lead to “jigsaw identification” of the complainers when read with other pieces.

The second issue raised was that the test applied by the court for establishing contempt was insufficiently precise and foreseeable and not prescribed by law for the purposes of Article 10 of ECHR. The court had erred in determining the scope of the protection under the 1981 Act, and there could be no contempt if the information allowed for the identification of the complainers by people who knew them rather than the general public.

Finally, it was argued the sanction of eight months’ imprisonment was disproportionate to the scale of the breach and thus incompatible with Article 10. There were other methods of sanctioning the applicant that would have achieved the same desired end, even taking into account the serious nature of the impairment of the complainers’ fundamental rights.

A preliminary issue was also raised as to whether the High Court of Justiciary was the correct forum for the application, although it was accepted by the Lord Advocate that the proceedings could be categorised as “criminal proceedings” for the purposes of section 288AA of the 1995 Act.

Struck at the heart of justice

The opinion of the court was given by Lady Dorrian. Addressing whether the proceedings could be considered criminal proceedings for the purposes of the 1995 Act, she said: “Contempt proceedings are sui generis but their true nature may reflect the nature of the proceedings to which they relate, in this case criminal proceedings, as may be seen from the fact that appeals against such decisions traditionally have been taken to the nobile officium of the High Court, not the Court of Session, where appeals against findings of contempt in relation to civil orders would be entertained.”

Addressing each of the alleged issues in turn, she said of the first: “The court concluded that it could not and would not consider whether the earlier articles which did not form part of the petition, and of which the 18 March article was one, constituted on their own contempt of court. What the court did consider permissible was to consider these articles as part of the background against which the subsequent articles would be read and ask whether the content made it more likely that the subsequent articles would lead to identification of complainers.”

She explained further: “This is no different from considering other material in the public domain to assess the likely effect of a subsequent publication, and is a familiar approach in cases of jigsaw identification. The reference in paragraph 80 of the court’s opinion to the article of 18 March as breaching the court order needs to be read with paragraph 63 where it was concluded that whilst the court would be entitled to consider whether the article factually breached the order, it would not reach a conclusion as to the article constituting a separate contempt.”

Turning to the second argument, Lady Dorrian said: “Although in certain instances the Crown had submitted that anyone who had contact with a complainer personally or through work would have been likely to be able to identify her from the information, as can be seen from the findings made in respect of individual articles, the court did not proceed on this narrow basis, but on a risk of identification by members of the public.”

She continued: “The court did not conclude that the risk of identification was restricted to those in any complainer’s immediate or personal circle. It made no error in applying the correct objective test. As the Crown submitted, the decision of the court met the requirements of Article 10(2), having taken account of the terms of both the Contempt of Court Act 1981 and the Independent Press Standards Organisation Guidance on the reporting of sexual offences.”

On whether it was appropriate to imprison the applicant, she said: “The sanctions determination was in itself an exercise in proportionality. In its determination the court considered the rationale for the protection of anonymity, and the fact that it extends beyond the rights of complainers in the individual case to providing comfort to those who may be considering reporting a sexual offence. It considered that the actions of the applicant were such as struck at the heart of the fair administration of justice.”

Lady Dorrian concluded: “The legislation - which is not attacked - provides for a sanction up to two years imprisonment. The sanction selected was well within the constraints of the legislation.”

For these reasons, the application was refused. The warrant for the applicant’s imprisonment was suspended for a further four weeks to allow him to make a direct application for leave to appeal to the Supreme Court.