Order preventing publication of identities of complainers in Salmond case varied by High Court

The incidental application was made by The Spectator Magazine following its publication of a submission made to the Scottish Parliamentary Committee looking into Mr Salmond’s conduct. The original order was made in March 2020 at common law and under section 11 of the Contempt of Court Act 1981.

The application was heard by the Lord Justice Clerk, Lady Dorrian. The applicant was represented by Clancy QC, and the respondent by Alex Prentice QC.

Jigsaw identification

The Committee was established to inquire into the actions of the First Minister, Nicola Sturgeon, Scottish Government officials and special advisers in dealing with complaints about Mr Salmond under the Scottish Government’s harassment procedure, and actions in relation to the Scottish Ministerial Code, following self-referral by the First Minister in that regard.

In January 2020, an article was published in The Spectator setting out the full text of a submission made on behalf of Mr Salmond to the Committee. It was averred that the submission was also addressed and submitted to Mr James Hamilton QC’s inquiry into a possible breach of the Scottish Ministerial Code by the First Minister. The Crown Office wrote to The Spectator suggesting that the publication of the article could constitute contempt of court.

The Crown’s reasoning was that, if read alongside other material published by the Committee, the article created a risk of “jigsaw identification” of the complainers. The applicant redacted the article as requested but subsequently made an application to vary the order.

The order was originally made to prevent “the publication of the names and identity, and any information likely to disclose the identity, of the complainers in the case of HMA v Alexander Elliot Anderson Salmond”.  The applicant did not challenge this text but sought to add additional text to the end of the order.

The proposed amendments were to add the words “in connection with these proceedings” at the end of the order, as well as text with the effect of excluding evidence submitted by or on behalf of Mr Salmond to the Scottish Parliamentary inquiry into his conduct and all reports issued by the Parliamentary Committee overseeing the inquiry.

It was submitted for the applicant that the court did not have a common law power to impose reporting restrictions which apply to the publication of information about the complainers unconnected to the proceedings in which they are the complainers. It was a reasonable inference that the Committee was interpreting the court’s order in an overly restrictive manner and that, as presently worded, the prohibition was not sufficiently clear.

Slight risk of misinterpretation 

In her opinion, Lady Dorrian began by noting: “The only matter with which this court should be concerned is whether the order made is clear, and is sufficient as a mechanism to enforce the common law order withholding the identity of the complainers in the criminal proceedings, and preventing publication of material likely to lead to such an identification.” 

On Section 11 of the 1981 Act generally, she drew comparison with the English Sexual Offences (Amendment) Act 1992, saying: “The 1992 Act provides blanket, lifelong anonymity for complainers in England and Wales, whether the publication takes place in England or in Scotland.” 

Turning to notable 1992 Act cases, she said: “In Brown v United Kingdom (2002), conviction and fine of a newspaper proprietor for a breach of section 1 of the 1992 Act was found not to be a disproportionate interference with the right to freedom of expression under Article 10 of the [ECHR] notwithstanding the blanket, lifelong nature of the restriction imposed by the Act, and the limited circumstances in which it can be lifted.” 

She continued: “There is no reasonable basis to suppose that a decision of a Scottish court at common law to withhold the identity of a rape complainer and back that up by a section 11 order prohibiting publication would meet any other fate.” 

Examining the current text of the order, Lady Dorrian said: “In my view the wording of the order makes it clear that the scope of it is, as would be the case under the 1992 Act, to prevent publication of matter relating to the individuals which would be likely to lead members of the public to identify them as the persons against whom the offences alleged in the trial are said to have been committed.” 

She continued: “However, I recognised that a reputable journal and responsible senior counsel have suggested otherwise, and that any slight risk of misinterpretation could readily be addressed by the addition of a few words to the order, which the Crown did not oppose.” 

Addressing the applicant’s proposed amendment, she said: “I did not consider that adding the words ‘in connection with these proceedings’ would achieve the stated aim: it seemed to me that these words ran the risk of actually creating confusion and of diminishing the protection of complainers.” 

Lady Dorrian concluded: “I considered that the addition of the words ‘as such complainers in those proceedings’ would serve to highlight the scope of the order whilst maintaining the necessary protection for complainers.” 

For these reasons, the text of the order was varied as specified. The full wording of the order now read: “preventing the publication of the names and identity, and any information likely to disclose the identity, of the complainers in the case of HMA v Alexander Elliot Anderson Salmond as such complainers in those proceedings”.