NB No recording of proceedings was allowed. Journalists had to get clearance before watching the hearing via Zoom. James Dolman reports other salient facts here: https://twitter.com/jamesdoleman/status/1354381549316272138
Predicted final costs of over £160,000; threats of two years in prison and an ‘unlimited fine’; months of concern, and in the end, an hour and half (and 29 pages of contemporaneous notes) later, the virtually-held court case against the UK’s former ambassador, Craig Murray, for contempt of court, seemed largely to rest on a concept of his character.
Speaking for the Crown, the Advocate Depute twice referred to Murray’s “attitude” to the reporting of the case, and once to his “conduct”; both were significant, apparently, when reaching a judgement as to whether Murray’s blog posts had either a) posed a substantial risk of seriously prejudicing the recent court case against Scotland’s former First Minister, Alex Salmond b) breached an order by referring to the departure of participants c) contributed information likely to lead to the “jigsaw identification” of complainants in the case.
Referring to the issue of prejudice, the Advocate Depute, for the Crown, agreed from the beginning that Salmond’s trial had proceeded as planned, and that “no-one complained the trial was unfair”. Despite the fact that the articles the Crown referred to had been published by Murray in August 2019 and January 2020, respectively, while the trial itself was held in March, he agreed the Crown had decided not to bring forward proceedings against Murray. Murray had instead, he confided, “been put on notice”.
The judge, Lady Dorrian. commented that if these articles had created a substantial risk to the proceedings, it seemed strange that the Crown did not take any action at the time. The Advocate Depute accepted that this was “factually correct”.
Apparently referring to the issue of “jigsaw identification”, Lady Dorrian then moved on to the fact that in certain passages submissions to the court relied on information “which is asserted can be found on the internet or twitter”. How she asked, could a court determine the issue, or address this point, if today a different result would arise? Once again the Advocate Depute “completely accepted” that “all the court can proceed on is facts”. Which essentially meant, suggested Lady Dorrian, that “we have to leave it aside”. To which, once again, Advocate Depute agreed that “the court must proceed on facts”.
An issue, raised by Lady Dorrian, as to whether Murray was responsible for moderating the comments on his blog, concluded with Dorrian suggesting that, apart from the consideration of the respondent’s awareness and responsibility if the comments breached the “objective test” it would not be relevant to whether the articles themselves constituted contempt, or breached the “objective test” for it. The Advocate Depute agreed.
Continuing with the issue of “jigsaw identification”, the Advocate Depute then appeared to argue, that although the order was a “broad, wide-sweeping order” he was in fact interpreting it narrowly viz: “It is not my submission that the crown must demonstrate that a member of the Borough of London must be able to identify (the complainants from Murray’s writing)” as opposed to “someone from the workplace”. It would, he said “be much more distressing in a work environment”.
The Advocate Depute then continued to underline how widely publicised the case was, how much information there was in the public domain, and how the respondent was “clearly aware and recognised this”. “Taking account” of the whole broad relevant information “and the respondent’s conduct” he said that there appeared “to be a desire..” as to “the identity of the complainers”. Earlier he had referred to a “collusion of information”; although when asked by Lady Dorrian to repeat this, he did not.
“Am I to understand” asked Lady Dorrian “that the argument is that these articles breached the order only in conjunction with other material?” – not that somehow themselves they breached the circumstances of the order?
These were, the Advocate Depute agreed “difficult points” which “must be looked at not in isolation but in conjunction with other material”. “By the same publisher” Lady Dorrian added.
But it was, emphasised the Advocate Depute, “the overall conduct” of the respondent.
Lady Dorrian then again emphasised that the issue of whether any of the material led to the identification of the complainants had to be judged “objectively”.
For the defence, John Scott then reiterated the point made by Lady Dorrian about reliance on internet searches; adding that results were dependent on algorithms, which themselves could be affected by searches made by the Crown, thereby distorting results, or by the defence. Referring to other points about about jigsaw identification: the defendant was aware of the names of the complainants when there was no court order but it was not “responsible journalism” to have named them. Scott referred to material evidencing the care the defendant took to avoid jigsaw identification. “If he had wanted to do what the Crown say he has done he could have done so”.
There were references to Murray seeing “a bigger picture” – in this case, media bias and political affairs in Scotland, and on not being “fixated” on identifying witnesses. There was a discussion about Murray being excluded from the Salmond trial, and how his subsequent reporting could then be tested for accuracy.
The defence then reiterated points already mostly made about the Crown case – the fact that the case had not been prejudiced by Murray’s previous articles and the trial had been completed; that the Crown had not drawn them to the attention of the court; that the Crown could not “subsequently complain that there was substantial prejudice”. As the Advocate Depute had said “there was no complaint by anyone of the fairness of proceedings”.
The defence flatly denied, in the case of the specific order of the 2nd March (referring to the withdrawal of a participant) that the order was breached.
As to the “third and clearly main limb” of the Crown case: the jigsaw identification; Scott took issue with the idea that anyone, not just the wider public, should be prevented from seeing details which would mean anyone with particular knowledge of a situation could identify a complainant, since in that case, that would surely mean that nothing could be published.
Lady Dorrian, envisaging a situation where there would be a case when one clear piece of information would be enough to provide identification: for example, “an assault on a member of staff in a branch of a building society in Totnes and there is only one member of staff”, appeared to see this point. There were no questions from the bench.
Lady Dorrian then concluded the session: the court would take time and issue its decision in writing.
tabitha troughton 