Former UK ambassador held in contempt of court for Salmond case publications

Craig Murray, who previously served as a UK ambassador to Uzbekistan, was alleged to have published material that could lead to the identification of four of the complainers in the case of HM Advocate v Salmond in 2020.

The Crown petition was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull. The Crown was represented by Alex Prentice QC and the respondent by John Scott QC.

Jigsaw identification

On the second day of the trial diet, the court made an order under section 11 of the Contempt of Court Act 1981 to prevent the publication of the names and identity and any information likely to disclose the identity of the complainers. A further order was later made under section 4 of the 1981 Act to prohibit the publication of matters discussed in court in relation to the discharge of one of the jurors for reasons which led the Crown to consider contempt of court proceedings against him.

It was agreed by joint minute that the respondent had made repeated attempts to register to cover the trial as a journalist in new media, which were not granted by the Scottish Courts and Tribunals Service and had not received the media guidance on contempt it offered to reporters. He attended the trial following the conclusion of the prosecution case on 18 and 19 March 2020 but was prohibited from attending further following a Crown motion.

It was alleged that a number of articles published by the respondent on his website and on Twitter since 23 August 2019 contained content that breached both the contempt of court orders. Further, the improper moderation by the respondent of comments left on the site by readers created a substantial risk of prejudice to the trial proceedings.

The Crown contacted the respondent by email in January 2020 stating that an article published by the respondent gave rise to a potential contempt of court. In his reply, the respondent disputed that the relevant article constituted contempt. A later email was sent concerning another article, which the respondent denied receiving.

In written submissions, the advocate depute submitted that the articles written by the respondent, read either individually or collectively, were likely to disclose the identity of the complainers in the Salmond case and that articles written prior to the trial had created a substantial risk of prejudice to proceedings. Further, the respondent ought to have been aware of the Independent Press Standards Organisation code of conduct, which specifically emphasised the caution to be exercised when publishing online in relation to sexual offences, in particular the risk of “jigsaw identification”.

The respondent submitted that the Crown could not rely on articles published before the date of the section 11 order to establish a breach of that order, nor on articles published following the trial’s conclusion to establish prejudice. In respect of the second order, the Crown had asserted that he had breached the order by providing a “bizarre and unfounded” explanation for the juror’s dismissal, which if true would not by definition amount to a breach.

No relation to discussion

The opinion of the court was delivered by Lady Dorrian. Addressing the articles concerning the dismissed juror first, she said: “The basis for the submission for the Crown was that since the material published by the respondent constituted a ‘gross misrepresentation’ of what was actually said in court, it should be construed as breaching the order. We cannot accept that submission.”

She continued: “The article in question bore no relation at all to the discussion which had taken place. It did not assert to be a representation of what had been said in court but bore to be the musings and speculation of the respondent. Whatever criticisms may be directed at them, that they constitute a breach of the section 4(2) order is not one of them.”

Turning to the articles published before the commencement of the trial diet, she said: “No justification for was offered for delaying [these] matters until a month after the conclusion of the criminal proceedings. As noted above the issue was not drawn to the court’s attention as soon as possible, and this seems to have been a deliberate decision of the Crown who were aware of the second article at least within days of its appearance.” 

She continued: “Where the concern is that the material in question might be prejudicial to the course of justice, with a risk seriously of impeding it, we have difficulty in understanding what benefit might lie in delaying either proceedings, or the bringing of the matter to the attention of the court, until after those proceedings have been concluded and disposed of.” 

‘Fan fiction’ of Yes, Minister

Finally, Lady Dorrian addressed the material which the Crown submitted could lead to the identification of the complainers. She said of the standard to which the respondent should be held: “We note the terms of the convention and of the Editor’s Code of Practice, not merely to illustrate the background against which the present petition is brought, but because of the submissions repeatedly made on behalf of the respondent that he accepted that he should be held to the same standards as mainstream journalists.” 

Assessing the material published by the respondent, she said: “The respondent’s intent in publishing is beside the point. The question is whether the material is such that, judged objectively, it was likely to lead to identification of the individuals concerned as complainers in the case. The respondent is fully aware that such material must not be published, and claims to have had the prohibition, and the risk, in his mind at all times.” 

Lady Dorrian considered one article in particular which purported to be “fan fiction” of the TV and radio show Yes, Minister, of which she said: “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’.” 

She continued: “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.” 

Lady Dorrian concluded on the articles as a whole: “Having regard to the context in which these articles appeared, including the terms of the article of 18 January 2020 and the tweet referring thereto, as well as the content of the respondent’s affidavit, we are satisfied that these breaches of the court order, in respect of the articles of 11, 18, 19 March, 3 April and the tweet of 2 April, must be considered to constitute contempt of court.” 

The case was thereafter put out by order for a further hearing in respect of the consequences of the court’s decision.