Reading Craig Murray's blog on political issues, I came across accounts of his conviction for contempt. Reading the court judgment and commentary on it, I was struck by certain things that seemed particularly unfair (which have been pretty well commented on elsewhere anyway). But writing about them anyway I came across further points to comment on. So much so that it makes for a very long read.
Here are links to court judgments and the like:
I set out to write this article because of my reaction to three particular features of the contempt conviction judgment of 25 March 2021, things that seemed grossly unfair. In fact they are pretty well covered in the article by Kirsten MacDonald but I found a lot else to write about as well.
In fact, although Kirsten MacDonald's article is entitled "The Mind of Lady Dorrian" it is the judgment of three judges, Lady Dorrian, Lord Menzies and Lord Turnbull. Of course it is drafted by one of the judges, and since Kirsten MacDonald says
In my last report I recounted that an experienced journalist told me that they had never seen a judge so "emotionally invested", as Dorrian against Craig Murray.
that one may well be Lady Dorrian.The court has more recently turned down Craig's appeal to the nobile officium. On some points I refer to that judgment as well.
Craig swore two affidavits and said "my QC specifically made a point of saying I was happy to take the stand for cross-examination by the Crown or questions by the judges".
Quoting Kirsten MacDonald again
Yet Lady Dorrian decided to treat Murray's affidavit as lies despite hearing no evidence to contradict it, and despite no claim from the Crown that it was lies. She did so entirely on the basis that her own reading of Murray's articles revealed to her a deliberate "campaign" to reveal the names by "clues".
In the Sentencing Statement Lady Dorrian says "he was relishing the task he set himself which was essentially to allow the identities of complainers to be discerned" (also quoted in para 41 of the appeal judgment) which is quite contrary to his affidavit on which he was not cross-examined. The classic case on this is Browne v Dunn (1893) 6 R 67 for which the headnote says
If in the course of a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it is otherwise perfectly clear that he has hall full notice beforehand that there is an intention to impeach the credibility of his story, or (per Lord MORRIS) the story is of an incredible and romancing character.
This is well-known: it has been described as a basic principle of fairness. Craig's submissions to the nobile officium (para 25) refer to a Scottish case, McKenzie v McKenzie 1943 SC 108, which says much the same thing
On the other hand, the most obvious principles of fairplay dictate that, if it is intended later to contradict a witness upon a specific and important issue to which that witness has deponed, or to prove some critical fact to which that witness ought to have a chance of tendering an explanation or denial, the point ought normally to be put to the witness in cross-examination.
Nothing I've read indicates that the prosecuting counsel made a challenge to Craig's credibility, so a decision of the High Court of Australia may be relevant: it discusses the specific circumstance when the scepticism of the plaintiff's evidence originates from the judge, see Kuhl v Zurich Financial Services Australia Ltd  HCA 11 paragraphs 67 to 75:
75. ... In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff's evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself.
Meanwhile the appeal judgment says that Craig had notice that his evidence was disputed. Unfortunately it doesn't give any details of what was actually said, or whether it was specific enough to tell where and how Craig's affidavit was challenged, so as to enable him to respond to it. An Australian case which elaborates on the obligation is Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (discussed in the UK in Markem v Zipher at paras 57ff). In it the judge says (quoted in para 15 here) "it should be made clear ... not only that the evidence of the witness is to be challenged but also how it is to be challenged".
The appeal judgment cites Balajigari v Home Secretary - now there's a judgment that includes a level of detail that's useful for a reader in a case turning on whether a party has adequate notice of the case he has to meet.
The appeal judgment (para 64) also seems to suggest that giving evidence by affidavit amounts to an election to not be cross-examined (even when the contrary has been stated), and that therefore the rule in Browne v Dunn does not apply. This seems bizarre - if only because it would be such a strong disincentive to giving evidence by affidavit.
 had he wished to identify the complainers he could have done so prior to that date [the judgment says 10 March 2019, but it seems this should read 10 March 2020], "knowing there was no general law or court order in place preventing me simply from publishing". This however "would not have been responsible journalism". [para 44 of affidavit] That it would have been a clear contravention of the IPSO Editor's Code of Practice and of the local convention are not matters which appear to have engaged him
Why should it? And if it did engage him, why should he mention it? Should he also mention that, since his writings could be read in England, that it would contravene the law in England (if that is so - para 50)? Or any of the other good reasons (given in the judgment) for not identifying complainers?
It's rather like if someone says "I don't nick other people's things, because it's immoral", criticising him/her for not also saying it's illegal. Or for not also saying it's contrary to the eighth commandment. Or, for a better analogy, criticising someone of some other religion for not also saying it's contrary to the eighth commandment.
 The applicant describes himself as a "journalist in new media". Whatever that may involve, it is relevant to distinguish his position from that of the mainstream press, which is regulated, and subject to codes of practice and ethics in a way in which those writing as the applicant does are not. To the extent that the submissions for the applicant make comparisons with other press contempts, and the role of mainstream journalists, this is a factor which should be recognised.
Why do the codes of practice and ethics matter? He is accused of something which is equally criminal for any sort of journalist, or anyone else. In fact if a journalist who is subject to these codes of practice and ethics committed the same offence, and that offence also breached those codes of practice and ethics, I could see an argument that this would merit a greater penalty (though I wouldn't agree with that argument). But, try as I might, I can't make any sense of the reason given for treating a "journalist in new media" more harshly.
A similar comment is made in the nobile officium judgment, paras 77-78. Again, why should it matter whether one is a "journalist" or not? Surely it is what he was doing - here, reporting a subject of arguably immense public interest - that matters.
 ... There is force too in the argument that certain campaign groups outside the mainstream media, such as non-governmental organisations, should be afforded similar protection where they too contribute to the public debate (...; Magyar Helsinki: Bizottság v Hungary (2020) 71 EHRR 2 at para 167)).
This is carefully phrased to exclude reference to Craig's activities. In fact the whole of paragraphs 164 to 168 in that judgment need to be read. It is certainly true that they refer in several places variously to the press and to NGOs. This is naturally so: in a case involving the press, a court will refer to the role of the press, in a case involving an NGO, a court will refer to the role of NGOs.
But the dominant theme in paragraphs 164 to 168 is the role played, which is described as a "public watchdog". (The word "watchdog" appears 10 times in those 5 paragraphs). There is no suggestion that the "protection" is limited to particular players of that role, such as the press or NGOs, and there are several indications to the contrary. Indeed, in para 168 (quoted at para 12 of Craig's appeal submissions) it is made clear that it is not so limited: in particular it says
the function of bloggers and popular users of the social media may be also assimilated to that of "public watchdogs" in so far as the protection afforded by Article 10 is concerned.
Meanwhile, outside the European court, it has been well recognised that various sorts of "journalists" or others play this rule. The Committee of Ministers of the Council of Europe has addressed this.
In Recommendation No. R (2000) 7) they define a "journalist" as
"any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication"
In Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors they use the word "journalist" differently: as they repeatedly refer to "journalists and other media actors", the effect is the same. They elaborate on this in II. Principles, paragraphs 9 and 10.
9. ... Consequently, the European Court of Human Rights has repeatedly recognised that individuals, civil society organisations, whistle-blowers and academics, in addition to professional journalists and media, can all make valuable contributions to public debate, thereby playing a role similar or equivalent to that traditionally played by the institutionalised media and professional journalists.
10. The UN Human Rights Committee has similarly stated that "journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere". The UN General Assembly [Resolution 68/163, 18 December 2013] has also acknowledged that "journalism is continuously evolving to include inputs from media institutions, private individuals and a range of organisations that seek, receive and impart information and ideas of all kinds, online as well as offline … thereby contributing to shape public debate". According to the UN Plan of Action on the Safety of Journalists and the Issue of Impunity, "the protection of journalists should not be limited to those formally recognised as journalists, but should cover others, including community media workers and citizen journalists and others who may be using new media as a means of reaching their audiences".
Then there is the Declaration of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors of 30 April 2014 which refers to "others who contribute to inform the public debate and persons performing journalistic activity or public watchdog functions." (para 2) and to "Journalists and others who perform public watchdog functions through the media" (para 4).
These last two documents were not accepted by the Russian Federation insofar as they applied to "other media actors".
The United Nations Human Rights Committee in its General Comment No. 34, CCPR/C/GC/34 (at para 44) says
"Journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere ..."
Likewise the European Union Agency for Fundamental Rights in a document called Violence, threats and pressures against journalists and other media actors in the EU repeated some of the above and also said (pp 2-3)
Given the increased diversity of actors who contribute to public debate, journalistic and media freedoms should not be exclusively linked to the journalism profession. Instead, experts in the field highlight that these freedoms are instrumental to the realisation of the public watchdog role, a role that is also taken up by bloggers, citizen journalists and whistle-blowers.
The High Court of Ireland, in Cornec v Morrice & Ors said
66. ... A person who blogs on an internet site can just as readily constitute an "organ of public opinion" as those which were more familiar in 1937 and which are mentioned (but only as examples) in Article 40.6.1 [of the Irish Consititution] namely, the radio, the press and the cinema.
 it [is] clear from paras 40-43 [of his first affidavit] that he had formed the personal view that these identities were something which "there is the strongest possible public interest in knowing"
This is quite simply false. I say it is totally clear that Craig is referring to the nature of the conspiracy rather than the names of individual complainers. The fact that it may or may not be possible to provide all the relevant information about the conspiracy without giving clues as to the identity of complainers doesn't alter the fact that they are two quite distinct topics. Obviously one can want to satisfy the acute public interest in knowing about the "stitch-up" of Alex Salmond without having any desire to indulge the public's interest (if any) in the identities of the complainers.
 ... the concept of contempt concerning him was that which applies to prejudicing proceedings. The question of the identity of the complainers ... clearly did not feature in his thinking. ... The repeated reliance on the absence of a court order for anonymity ...
These sentences seem obviously contradictory. Paragraphs 40 and 44 of his first affidavit make it clear that the question of the identity of the complainers clearly did feature in his thinking.
 ... The fact that he refers to defence witnesses giving evidence "without the benefit of anonymity", and elsewhere refers to "the screen of court enforced anonymity" in respect of complainers, suggests a failure to understand the rationale and purpose behind anonymity for complainers in sexual offence cases.
Nonsense. It means he understand its effect in this situation (and that, as he alleges, it is used in this case for a purpose other than "the rationale and purpose behind anonymity for complainers in sexual offence cases"). Paragraph 42 of his first affidavit could hardly be clearer on this point.
 ... He states that in writing the Yes Minister Fan Fiction article it had been a challenge to work out how to tell the public of the identities without being in contempt. It was not a challenge, it was an impossibility, since doing so would be a breach of the plain terms of the order.
Well, I can't say what was in the parts of the affidavit that have been redacted, but it doesn't seem that they are relevant. So the court could only be referring to para 54 of the first affidavit where Craig says "It was, however, a challenge to work out how to tell them without being in contempt of court ..." (referring to the Yes Minister Fan Fiction article, see para 53). He says nothing to the effect that he is referring to the identities.
Two comments on this. Firstly, with the context of what else Craig has written, notably the article of 23 August 2019 and his affidavits it seems quite clear to me that what he was interested in was an alleged conspiracy to "stitch-up" Alex Salmond. The Yes Minister Fan Fiction article also focusses on the Moorov doctrine and the fact that the likely order for anonymity of complainers means that the usual disincentive for such an operation is absent.
Secondly, at the time he was working out how to write that article, supposing in fact that he wanted to tell the public the identities of the complainers without being in contempt, then this is hardly a "challenge", as he could just state their names. Because the court order against identifying complainers only was made later. And he was aware of this - see para 58 of the first affidavit.
I'm puzzling over why the judges think his interest was in disclosing the identities, rather than exposing the "stitch-up". Maybe they just don't consider such a conspiracy on the part of Police Scotland, the COPFS and those close to the First Minister is newsworthy, or a matter of public interest. In which case it is perhaps more understandable that they don't understand someone else wanting to report on it.
 The mainstream media ... appear to have no difficulty in abiding by what is a readily understandable and almost universally accepted practice.
(and para 69 is similar) This is not so - unless Craig's statement is false, where he says that his article of 11 March consisted entirely of material from those media who had been allowed in court (first affidavit, para 69). The Dorrian judgment specifically avoided looking at what had previously been published (para 64).
 [Craig's] apparent total lack of remorse, and perhaps insight, in relation to the consequences of his actions
The remorse aspect is discussed in Craig's account of the appeal hearing: the judgment makes no reference to this submission. As to his insight, paras 77 and 117-119 of his first affidavit shows a considerable effort to gain insight into the consequences of his actions.
 The affidavits are full of material which is irrelevant, hearsay, states gossip as fact ... The material is presented as proof of his conclusions, inferences and his point of view.
Well, evidence of his belief that there was a conspiracy to stitch up Alex Salmond, and evidence as to grounds for that belief, is not hearsay. And it is clearly relevant to his intent/motive/purpose in publishing what he did. Inevitably, such material will contain his own conclusions on the information he has received.
To the extent that it contradicts statements in the judgment about his thinking, or his understanding, it is obviously neither hearsay nor irrelevant.
"such a degree of carelessness or disregard of obligation leading to interference with or material disruption in the course of the administration of justice as to be equiparated with wilful or deliberate disobedience or interference"
with a vague suggestion "4.2 It was submitted that the test might be even lower" which seems to have been accepted in para 59 of the judgment. So this matter is dealt with in Ground 1 (paras 15-21) of the submissions to the appeal.
The appeal court dealt with this issue in paras 60-61. It seems to be saying that to constitute contempt, publication of certain material must be deliberate, but that his belief, or his carelessness, as to whether that material contravenes the order is irrelevant.
It further seems to be saying that this is not "strict liability". But so many cases are about offences which involve deliberate actions but where the issue is what needs to be shown about the defendant's knowledge or belief of facts that make those actions illegal or not. That is, an offence can be a "strict liability" offence in relation to the defendant's knowledge, although not in relation to his actions.
The case cited in the argument, Pwr v DPP, at para 26, makes this clear. And that case, at paras 26-28, is an example where offences are described as "strict liability" (or not) depending on what needs to be shown about the defendant's knowledge, where his actions need to be deliberate. 
Where the Contempt of Court Act 1981 does specify that strict liability applies to some contempts (s1), it provides two further sections of limitations (s2) and defences (s3). And, in comparison with other cases in appeal courts, the consideration by this court of this issue is very cursory. I think this case is a good example of why other jurisdictions, such as Australia (Proudman v Dayman), Canada (R. v. Sault Ste. Marie) and Hong Kong (Hin Lin Yee v HKSAR) presume what they call "strict liability", as distinct from "absolute liability", for some sorts of offences. This means that there are defences available, roughly along the lines of those in s3 of the Contempt of Court Act.
4.18 The approach of the Australian common law is to exclude evidence of similar facts in all but the most exceptional circumstances. [it goes on to refer to Pfennig v The Queen]
4.20 ... In the leading case of Phillips v The Queen the question was whether evidence relating to a number of counts of rape against different complainers was capable of being admitted in relation to each count. In Scotland, the case would have appeared a good candidate for the application of the Moorov doctrine; in Australia it was held that evidence relating to the other charges had to be excluded.The question of when charges may be tried together is closely related, see para 4.64. The report discusses how similar the charges have to be to qualify under Moorov, see pages 12-13, 78-81, 94-97. This recent Australian case arose from the need to have separate trials for similar offences, and the resulting suppression order re news of the first trial.
Secondly, the jury may have agreed the events happened but didn't meet the criteria of criminality given to them by the judge. This seems particularly plausible for some of the accusations against Salmond. Contrary to the nonsense I've seen on this (along the lines of "The jury decides the facts, the judge decides the law"), the jury decides the facts, the judge tells them the criteria for conduct to be criminal, and the jury decides whether the facts meet those criteria. It MUST be thus - if only because the judge doesn't know what facts the jury accepts as proven. R v Wang (link below, paras 8 and 12) has more on this.
Thirdly, the facts and the law, according to the jury's determination, may dictate a conviction, and the jury can acquit anyway. There's nothing to stop them, and no-one else will ever know. You may not approve of this, but the House of Lords in R v Wang (para 16) seemed quite sympathetic to the possibility of this happening. In this case, if the jury has discerned the "stitch-up", this possibility may be less unlikely than usual.
Does the possibility in Scotland of a Not Proven verdict affect this, ie does it imply that a Not Guilty verdict indicates a positive finding in favour of the accused? Well, firstly, according to this Scottish Government publication,
There is no statutory, case law or generally accepted definition of the not proven verdict ...
Jurors ... receive no instruction from a judge on the meaning of the [not proven] verdict and how it differs from not guilty.
So one has no idea what any jury might think it means.
Secondly, the not proven verdict is used in such a small proportion of acquittals (I've seen various figures, most commonly 17%) that it seems unlikely that cases where the jury is not confident of the facts generally result in a not proven verdict.
In short, the jury didn't decide that the complainers, or any of them, were liars, or that none of the events described in their evidence happened, etc.
For example, it is irrelevant that a piece of the jigsaw may have already been published, para 64 of the Dorrian judgment. So therefore, when the jigsaw pieces already in the public domain are sufficient to identify a complainer, this implies that to republish any of them would be in contempt. Thus, for example, publishing any relevant detail might be forbidden. Even publishing the sex of the complainers might be a crucial detail helping some readers to figure out some identities.
In fact there were some details which the prosecution alleged to be identifying but the court found them to be not so. But since the appeal court referred to "identification of a complainer within the community in which she either lives or works" (para 67), who can tell what detail might not help identification to someone with whom he/she lives or works?
Craig's affidavit (para 55) talks about post-dated cheque information. It's not made clear whether that would have contravened the order, had it been in place at the time of the Fan Fiction article. The prosecutor's submissions recounted in the Dorrian judgment (para , 3.2, 3.4), and paras 55-56 of the judgment, seem to focus on the piece of the jigsaw which completes the picture. And in his description of the appeal Craig's QC asserts "the proper test should be whether, in combination with material that was already fully in the public domain, somebody had wilfully published the last piece of the jigsaw in order to enable identification".
This raises interesting questions. Suppose, for example, that a marmalade salesman subsequently is nominated as SNP candidate for a "nice safe seat in the capital" (see the Fan Fiction article). This could easily be the final piece of a jigsaw puzzle, enabling him to be identified. So is he expected to keep secret the fact that he is standing for election in that seat? If he did so, the seat might turn out to be not so safe after all. Then, if he fails to be elected and goes back to selling marmalade, that fact could help identify him. Is he required to refrain from going back to selling marmalade, after not winning the seat? Of course, a crucial piece of that jigsaw is knowing which city is "the capital". Is it now illegal to mention that? (Remember, it is irrelevant that a piece of the jigsaw may have already been published, para 64 of the judgment).
Using the jigsaw analogy, is it illegal to tell others how to fit together pieces of the jigsaw which they already possess? Is it illegal to tell them which of their jigsaw pieces belong to this puzzle and which ones belong to some other puzzle?
These questions are intended to show how difficult it is to come up with any sensible criteria for when information offends against a prohibition against jigsaw identification (at least if you accept that previous publication of the same material is irrelevant), how uncertain the whole subject is, and therefore how unreasonable it is to send someone to prison on the basis of jigsaw identification.
Does this uncertainty make it unsuitable as a court order? Well, a court order should be clear and unambiguous, para 31 of the Dorrian judgment expresses this well enough. But with the court's approach, what matters is what may be already known about a complainer by a small community of people close to her, and then it is a matter of fine judgment as to what risks identification of her within that "section of the public". Thus one can be certain to not fall foul of the order only by not reporting the proceedings at all. And a restriction which has this effect may well go beyond what is permitted by Article 10 of the European Convention on Human Rights.
This argument is referred to in para 7 of the court's denial of permission to the UK Supreme Court. The court's view was that the test "involves no imprecision". But even if the expression "real risk" is as well understood as the expression "reasonable doubt", that doesn't mean its application isn't nonetheless uncertain. In this case we need only look at the variety of what people have found might identify complainers. For example
And then the appeal judgment makes the identity of that complainer absolutely clear - it's an easy two-piece jigsaw puzzle!
It seems extraordinary that the court can sentence someone to eight months in prison for a level of carelessness which is (arguably) less than the carelessness shown by the courts in preparing their judgments.
In something of an own goal by the COPFS, apparently they requested more redactions from Craig's affidavits (beyond the numerous ones he had already made). As can be seen by comparing the current version with the earlier version available on web archive sites, most of these further redactions were names of people, located in a context which gave no indication (to me) that they were, or helped identify, complainers. But the fact that the COPFS insisted on deletion of their names gave the game away. So that is how I identified a second complainer.
 The term "strict liability" is used inconsistently. Where guilt requires intent to publish words, but not knowledge or intent as to the circumstances that makes this publication illegal, even different judges in the same case have described this variously as "strict liability", or not.In R v Lemon  AC 617
4. ... the common law offence of blasphemous libel was one of strict liability requiring no mens rea beyond the intention to publish
At the trial the judge in a carefully considered ruling given after lengthy argument held that the offence was one of strict liability.where the point of law for the House of Lords was
... Was the learned trial judge correct [that ...] (2) it was not necessary for the Crown to establish any further intention on the part of the appellants beyond an intention to publish that which in the jury's view was a blasphemous libel?
"... an offence is regarded - and properly regarded - as one of strict liability if no mens rea need be proved as to a single element in the actus reus" (Smith and Hogan, Criminal Law, 4th ed. (1978), p. 79).
I do not ... consider that the question is whether this is an offence of strict liability. It is necessary that the editor or publisher should be aware of that which he publishes.
No one has suggested that blasphemy is a crime of strict liability. The issue is as to the nature of the intention which has to be proved. As Eveleigh L.J. is reported to have put it in argument in this case  Q.B. 10, 16: "must the defendants have had an intention to offend in the manner complained of, or is it enough that he or they intended to publish that which offends?"
the principle of strict liability (i.e. the necessity to prove only the intent to publish but not the intent to blaspheme)Back