The High Court in Edinburgh has confirmed the conviction of former British diplomat-turned-whistleblower Craig Murray on one of the contempt of court charges filed against him by the Crown. The charge related to Murray's alleged "jigsaw" identification of the identities of protected witnesses in the trial of former Scottish First Minister Alex Salmond.
"The court has concluded that, having regard to the context in which the articles appeared, including the terms of the article of 18th January and the tweet referring thereto on the 19th of January, that the articles of 11th, 18th, 19th March, 3rd April and the tweet of 2nd April, must be considered to constitute contempt of court relating to material capable of identifying four different complainers. We therefore make a finding of contempt of court. The reasons will be issued in full, in due course. Those reasons have been shared in draft with Mr Scott and the Advocate Depute", Lady Leeona J Dorrian said.
The hearing only lasted a few minutes and adjourned until 7 May, 10AM, so that the parties may file their respective submissions in relation to sentencing. Murray faces up to two years in prison and an unlimited fine.
John Scott QC, speaking for Murray, prepared the court for the kind of evidence that would be submitted in mitigation, for the purposes of what's known as a Criminal Justice Social Work Report.
"[A]s a precautionary measure, despite not having seen, of course, the opinion of the court or being aware of the court's conclusions, the Respondent [Murray] took down his blog page yesterday", he told Lady Dorrian.
Scott noted that, "there has been a change in the Respondent's family circumstances recently, in that his partner gave birth on the 18th of February to his son, Oscar", adding that Murray, "is also keen to communicate his anxiety and stress over these proceedings, especially the uncertainty of outcome, and also the possibility of very serious penalty, which clearly still exists".
Murray's contempt of court trial was heard by a three judge panel at the High Court, but it was led by Lady Leeona J Dorrian, the second most senior Scottish judge who also presided over Salmond's trial. Salmond faced a raft of sex assault allegations but was acquitted by a jury of all of the charges against him, and there is extensive evidence that his prosecution was in fact politically motivated, a position which Murray himself has taken.
All of the charges against Murray related to his writings via his blog and Twitter (as well as replies and comments made by others to those posts) before and during Salmond's trial.
Murray was charged with three offences:
- Publication of material that creates a "substantial risk" of prejudicing the jury in violation of the Contempt of Court Act 1981;
- Reporting on the exclusion of two jurors in violation of a court order "preventing publication of the details of the issues raised by the Advocate Depute on 23 March 2020" as they related to the jurors' removal; and
- "Jigsaw identification" of alleged victims who testified against Salmond.
The allegation of jigsaw identification argued that Murray's articles, individually or in conjunction with other articles and material that can be obtained via Google and social media, could indirectly result in a member of the public determining the identity of alleged victims in the Salmond case.
The Government argued in favour of a wide interpretation of jigsaw identification, meaning that a journalist might violate the law if a person with intimate knowledge of the case could piece together the identity of a protected witnesses. Murray's lawyers argued that such an interpretation would be unfair and would violate the Article 10 rights of journalists and the public. Consideration should also be given that in complex cases, it "might [also] be possible for good faith errors to be made there", Scott told the court during the trial. He added that if the court decides on a wider interpretation, court orders protecting the identity of participants in court cases would need to be written with greater specificity.
The court did not make a guilty finding with respect to the charges alleging prejudicing the jury and violating the court order on reporting on juror removal.
The Crown argued that two articles published by Murray, ten and six months before Alex Salmond's trial even began, created a "substantial risk" of prejudicing the jury. The defence, for its part, noted that the prosecution could have brought the articles to the attention of the presiding judge in order to get her to issue an order that they be taken down, a position which the Advocate Depute admitted his office had considered and ultimately rejected. Murray was not found guilty on this charge.
The government also suggested that Murray was responsible for "improper moderation" of comments made underneath those two articles on his website. A position that was objected to by the defence as creating too much of a burden and legal obligation on their client for remarks made by others. There was no reference to this argument in Lady Dorrian's brief statement, and as such, it appears that this charge was rejected.
During Murray's trial, the prosecution accepted that the former diplomat did not actually violate the express wording of the court order regarding the exclusion of two jurors, because Murray merely offered his own theory as to why the jurors were excluded. But they nonetheless argued that his post on the matter violated the spirit of the order - an interpretation that the defence argued was too broad. This charge was also, ultimately, unsuccessful.
Murray temporarily suspended his blog on 24 March, in the expectation that he would be found guilty on at least one of the charges due to a hearing being scheduled for the judgment, rather than the verdict simply being handed down in written form. The notice on his website read:
"In view of our understanding that the High Court has found some articles on this blog to be in contempt of court, and in view of the fact that the Crown Office had sought to censor such a large range of articles, this blog has no choice but to go dark from 15.00 today until some time after tomorrow's court hearing, when it will be specified to us precisely how much of the truth we have to expunge before we can bring the blog back up".
"This is a dark day for the entire team here. We will be looking to appeal this to the Supreme Court and if required (though we very much doubt it will be) to the European Court of Human Rights".
*This article was amended at 11:48 GMT, on 25 March 2021 to include quotes from John Scott QC and an explanation of jigsaw identification.
