Craig Murray v. Her Majesty’s Advocate [2022] HCJAC 14

Petition to the nobile officium:- The High Court previously allowed the petitioner to present a petition to the nobile officium seeking to challenge a finding that he had breached a court order and was in contempt of court in relation to the trial of Alex Salmond on a number of sexual offences charges ([2022] HCJAC 5). The petition presented sought to quash the finding of contempt and the sentence of 8 months imprisonment imposed as a result a number of articles which the petitioner had published on his website on 11, 18, 19 March and 3 April 2020 along with a tweet by him on 2 April 2020 which contained information likely to disclose the identity of four of the complainers in the trial from 9-20 March 2020. The appeal had a number of grounds:- (1) that the court was wrong to apply a test of strict liability; (2) that the court erred in making findings which were contrary to the content of the petitioner’s affidavits which he had not been cross-examined on; (3) the court erred when it considered that it was sufficient that the publications were likely to allow the complainers to be identified by a particular section of the public rather than the public as a whole; (4) the law of contempt was vague and unforeseeable and could not be said to be prescribed by law and was thus in contravention of Article 10 of the European Convention; (5) that 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; and (6) that the sentence of 8 months imprisonment was excessive having regard to the petitioner’s personal circumstances. Here the court refused the appeal against the finding of contempt of court. In relation to the first ground the court stated that if material is deliberately published and produces a real or substantial risk of identification then that is determinative of the issue. Then court described the second ground as “misconceived” as the material whose provenance had been agreed by joint minute was sufficient to enable the court to draw the inference that the petitioner had deliberately and wilfully acted in a manner which was in breach of the court order and amounted to a contempt of court and, whilst affidavits were lodged, he did not give evidence and open himself to cross-examination and the court was not persuaded on the basis of the content of those affidavits. In relation to the third ground of appeal the court considered that the court of first instance was correct to hold that it would be sufficient if the publication created a real risk of identification to a “section of the public” and that it was unnecessary for it to identify the complainer to the public as a whole. In relation to the fourth ground of appeal the court considered that if the court 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 a finding of contempt would amount to a contravention of Article 10. In relation to the fifth ground of appeal the court considered that the court was not confined to the specific averment involving the complainer Ms D and it could look at the article as a whole and determine that it constituted a breach of the order when read along with the other articles. In relation to the contention that the sentence imposed was excessive the court refused the appeal. The court considered that this was an exceptional case which involved the fundamental rights of others, in particular, the Article 8 right to respect for the complainers’ private lives and this was a contempt of “very great gravity” and the deliberate and calculated actions of the petitioner showed contempt for the court’s order and for the rule of law.