My appeal against imprisonment for contempt of court is to be held in Edinburgh High Court at 10.30am today. The gallery will be closed and the public excluded. Here however is the full text of the written arguments we have submitted as the basis for today’s hearing.
I promise you that they are less dull than that sounds. It is to me astonishing that these arguments have to be made. It is also significant that the appeal hearing is expected to take a full day, whereas my original trial was rushed through in under an hour. How and why it was rushed through becomes obvious if you read the arguments below.
Here is the full text of the submission for my appeal, lodged with the court:
IN THE HIGH COURT OF JUSTICIARY, EDINBURGH
UNTO THE RIGHT HONOURABLE LORD JUSTICE GENERAL, THE LORD
JUSTICE CLERK, AND LORDS COMMISSIONERS OF JUSTICIARY
HCA/2021/000014/XM
WRITTEN SUBMISSIONS
IN RESPECT OF THE
PETITION TO THE NOBILE OFFICIUM
BY
CRAIG MURRAY
PETITIONER
INTRODUCTION
1. The petitioner invites the court:
(i) To find and declare that the decision of the High Court of Justiciary of
25 March 2021 to find the petitioner in contempt of court was wrong,
unjust and contrary to law; and
(ii) To find and declare that the sentence of eight months’ imprisonment
imposed on 11 May 2021 was, in all circumstances, excessive and
contrary to law.
2. These submissions will firstly address the five grounds on which the petitioner
appeals against the finding of contempt. They will then consider the two
grounds on which the petitioner appeals against sentence.
PROCEDURAL BACKGROUND
3. The facts are set out in §4-12 of the petition and the petitioner does not seek to
rehearse them again in these submissions. The focus of this petition is: (i) the
court’s decision on 25 March 2021 to find the petitioner in contempt of court;
and (ii) its decision 11 May 2021 to impose a sentence of eight months’
imprisonment.
4. The court’s decision of 25 March 2021 was limited in its findings of contempt,
as compared to the terms of the petition which was presented by the Crown. In
particular:
a. The court did not find that the petitioner had breached the order made
in terms of s. 4 (2) of the Contempt of Court Act 1981 on 23 March 2020
(§28-31 of the court’s Opinion); and
b. The court did not find that the petitioner had breached ss. 1 and 2 of the
Contempt of Court Act 1981 (§32-42 of the court’s Opinion).
5. Accordingly, the court’s finding was limited to a finding that certain articles
published by the petitioner amounted to a contempt of court, in that they
breached the terms of the order made in terms of s. 11 of the Contempt of Court
Act 1981 on 10 March 2020. That order was in the following terms:
“The court, on the motion of the advocate depute, there being no objection, made
an order at common law and in terms of Section 11 of the Contempt of Court
Act 1981, 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.”
6. The court found that articles published on the following dates breached the
terms of the s. 11 order: (i) 18 January 2020, (ii) 11 March 2020, (iii) 18 March
2020, (iv) 19 March 2020 and (v) 3 April 2020. It accepted that other articles
referred to in the Crown’s petition did not breach the order. In doing so, the
court applied the following test (set out at §59 of its Opinion):
“whether the material is such that, judged objectively, it was likely to lead to
identification of the individuals concerned as complainers in the case.”
THE PETITIONER’S ROLE AS A JOURNALIST
7. At the outset, is important to understand the role being exercised by the
petitioner. The petitioner is a journalist. He has published work in The Guardian,
The Independent, The Daily Mail, The Mail on Sunday and other outlets. He also
operates his own website, which hosts the majority of his most recent
publications. In that sense, he is not a journalist for the mainstream press but a
journalist in “new media”. He has authored a number of non-fiction books. His
journalistic work includes reporting on matters relating to Scottish and UK
politics, providing analysis which is informed by his former work as a
diplomat. He reports on matters which are undeniably in the public interest,
such as the trial of former First Minister Alex Salmond and the extradition
proceedings in relation to Julian Assange.
8. The petitioner made significant attempts to be accredited as a member of the
press for the purposes of reporting on the Salmond trial but was unable to gain
accreditation, for reasons that are unclear, notwithstanding his compliance
with various requests from the SCTS press office.
9. The contempt of court proceedings raised against the petitioner relate to a
number of articles which he published in relation to the prosecution of Alex
Salmond. The petitioner’s view was that Mr Salmond had been the subject of a
conspiracy which had colluded to see him prosecuted for charges he did not
commit. That was the petitioner’s genuinely held belief. Not only was it
genuinely held, but it was reasonably held; the petitioner having seen a number
of written communications which he concluded demonstrated the involvement
of various parties in such a conspiracy. Reference is made to §31-33 of the
petitioner’s affidavit of 26 January 2021. Of note, copies of those
communications are understood to be in the hands of the Crown and an
application for disclosure of those documents was made but refused by the
court on 19 January 2019. The petitioner has accordingly been denied the
possibility of vouching the reasonableness of his belief before the court.
10. Notwithstanding the petitioner’s credentials and the importance of his subject
matter, the court appears to have drawn a distinction between the petitioner
and those in the mainstream press. At §4 of its Statement of Reasons refusing
permission to appeal to the Supreme Court, the court said:
“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.”
11. Such a distinction cannot be justified. As a preliminary point, it is not an issue
which was put to the petitioner or on which any substantive submissions were
made. It was not a distinction drawn by the Crown. Had the court considered
it to be a material issue, the petitioner ought to have been afforded an
opportunity to lead evidence with regards to his journalistic credentials and
make submissions with regards to the alleged distinction.
12. More fundamentally, the distinction is wrong in principle. It is an outdated
one which fails to take account of the current media landscape. It is also entirely
inconsistent with the approach taken by the Strasbourg court in relation to the
protections afforded to journalists by Art. 10 ECHR. That assessment is a
functional one. It does not depend upon accreditation or registration with
specific media platforms. It is a protection to all those who exercise the function
of a “public watchdog”. That much is clear from the Strasbourg court’s decision
in Magywa Helsinki Bizottság v Hungary [GC], no. 18030/11, 8 November 2016, at
§168:
“Thus, the Court considers that an important consideration is whether the
person seeking access to the information in question does so with a view to
informing the public in the capacity of a public “watchdog”. This does not
mean, however, that a right of access to information ought to apply
exclusively to NGOs and the press. It reiterates that a high level of
protection also extends to academic researchers (see Başkaya and Okçuoğlu v.
Turkey [GC], nos. 23536/94 and 24408/94, §§ 61-67, ECHR 1999-IV; Kenedi,
cited above, § 42; and Gillberg, cited above, § 93) and authors of literature on
matters of public concern (see Chauvy and Others v. France, no. 64915/01, §
68, ECHR 2004-VI, and Lindon, Otchakovsky-Laurens and July v. France
[GC], nos. 21279/02 and 36448/02, § 48, ECHR 2007-IV). The Court would
also note that given the important role played by the Internet in enhancing the
public’s access to news and facilitating the dissemination of information (see
Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015), 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.”
13. It is respectfully submitted that the petitioner’s role and intentions are a key to
the context in which the present appeal must be considered. There is no
evidence that the petitioner sought deliberately to identify complainers for any
vindictive purpose. He was not publishing gossip. The complainers were not
the focus of his articles. The central purpose of his articles cannot fairly be
described as the identification of any complainers. The petitioner was
publishing information in relation to a genuinely held belief that there had been
very serious misconduct at high levels of public and political office. He sought
to use his platform to act as a public watchdog and report on those concerns.
The fact that his views do not accord with the analysis shared by much of the
mainstream press does not mean that he is not entitled to the full protection of
Art. 10 afforded to any other journalist. The petitioner does not challenge the
fact that the complainers’ Art. 8 rights warrant respect but to the extent that
there is any conflict between those rights and the petitioner’s Art. 10 rights, it
is important to bear in mind the purpose of the petitioner’s journalistic work.
14. Having set out that context, these submissions now consider each of the
grounds of appeal.
APPEAL AGAINST FINDING
Ground 1: the court erred in applying a rule of strict liability
15. That the court applied a rule of strict liability with regards to contempt arising
from breach of the s. 11 order is clear from the terms of §59 of its Opinion:
“Amongst submissions made for the respondent was a submission that any
breach of the order was unintentional, and as a result he should not be found in
contempt. We reject the suggestion implicit in that submission that
intent to breach the order is a requisite of a finding of contempt for
having done so. The respondent’s intent in publishing is beside the point.
The question is whether the material is such that, judged objectively, it was
likely to lead to identification of the individuals concerned as complainers in the
case.”
16. In doing so, the court erred in law. Certain breaches of the Contempt of Court
Act 1981 are subject to the strict liability rule, as defined in s. 1 of the Act.
However, the Act provides a closed list of conditions which must be satisfied
in order for the strict liability rule to apply. Of relevance to the present
proceedings, s. 2 (2) provides:
(2) The strict liability rule applies only to a publication which creates a
substantial risk that the course of justice in the proceedings in question will be
seriously impeded or prejudiced.
17. The court did not consider that the articles which were found to breach the s.
11 order created a substantial risk that the course of justice in the proceedings
would be seriously impeded or prejudiced. The court considered and rejected
the Crown’s submissions on this very issue from §32-42 of its Opinion.
Accordingly, the test in s. 2 (2) of the 1981 Act was not met; strict liability did
not attach to any publication.
18. There is no basis to import a test of strict liability into parts of the Act in which
no such test is imposed by the text. To do so offends against the intention of
Parliament; had it sought to apply a test of strict liability in relation to s. 11, it
would have done so. It also offends against the common law presumption of a
mental element in relation to statutory offences, recently reaffirmed in Pwr v
Director of Public Prosecutions [2022] UKSC 2. Given the penal consequences of
a breach of s. 11, the same presumption ought to apply as to those that create
criminal offences. The terms of s. 2 are clear: strict liability only attaches if the
conditions in s. 2 are met. The natural consequence of that language is that it
does not attach in any other situation. Of note, Gordon on Criminal Law Volume
2 (4th edn) (2017) does not refer to s. 11 in its discussion of the strict liability test
under the 1981 Act: §58.16-58.20. For all these reasons, the court erred in
applying a strict liability test, which is not justified by the terms of the statute.
19. In the absence of a strict liability test, this court must consider what the
appropriate mens rea is in order to justify a finding of contempt of court in
relation to breach of a s. 11 order. The mens rea is clearly understood in relation
to contempts arising from breach of interdict. The court ought to find beyond
reasonable doubt that the contemnor’s actions were in wilful disobedience of
the court order: McMillan v Carmichael 1994 SLT 510. A party may therefore be
in breach of the terms of a court order but nonetheless not in contempt of court:
Sapphire 16 S.A.R.L v Marks and Spencer plc [2021] CSOH 103. Breach of the order
is only the first of a two-stage test.
20. The same test ought to apply to alleged breaches of a s. 11 order. A s. 11 order
is, in effect, a statutory form of interdict. It is a court order which prevents a
party from doing something, in this case publishing certain information.
Breach of a s. 11 order is accordingly very closely analogous to a breach of a
common law interdict. The mens rea of wilful disobedience protects the same
interests as in breach of interdict proceedings: to preserve the dignity of the
court and to punish those who disrespect the court’s authority. Without wilful
disobedience, it is hard to see how disrespect has been shown to the court. The
approach set out above is all the more necessary in an era of online news and
social media, where the risk of inadvertently causing a jigsaw identification is
higher than in the past.
21. The court’s error in applying a test of strict liability is a material one in
circumstances such as these, where significant, unchallenged evidence was
placed before the court that the petitioner did not intend to breach the s. 11
order: on the contrary, he was striving not to do so.
Ground 2: the court erred in making findings contrary to the petitioner’s
affidavit when he had not been cross-examined
22. The petitioner’s position before the court was that he had never intended to
breach the terms of the s. 11 order and had, on the contrary, taken particular
care to avoid doing so. In support of this evidence, the petitioner produced two
affidavits. The petitioner’s stated intention is clear on the face of the affidavit
dated 25 August 2020:
I. §44 – “There was a period of several months when I was fully aware of
the names of the accusers and also fully aware that there was no general
law or court order in place preventing me simply from publishing. That,
however, would not have been responsible journalism.”
II. §54 – “It was, however, a challenge to work out how to tell them without
being in contempt of court given the charges against Alex Salmond. I
therefore very carefully used a number of strategies not to be in contempt
of court. Not to evade contempt of court charges; actually not to be in
contempt of court.”
III. §58 – “At the time I wrote this article there was no order in force against
publication of names. I nevertheless decided not to do that.”
IV. §64 – “I did not consider it to be in contempt of court – I had written it
carefully not to be – so I did not take it down.”
V. §70 – “I had clearly at the forefront of my mind the desire to avoid
identification of [Woman H]”
VI. §72 – “On 18 and 19 March, when I finally gained access to the court,
I continued this policy of taking great care. In writing up that evening,
I google searched on two particular pieces of evidence to check I was not
giving away identities… I was satisfied it could not, and published my
account with good conscience.”
VII. §73 – “I therefore amended my draft to delete reference to her presence
at that meeting.”
VIII. §79 – “In publishing all of my accounts of the trial, I was extremely
mindful of both the law of contempt of court and of my desire not to
identify witnesses.”
IX. §103 – “I actually drafted all that, but then did not publish it as it would
have been in contempt of court. I decided again to give no details.”
23. The Crown did not cross-examine the petitioner in relation to the contents of
his affidavit. Neither did it lead any of its own evidence; choosing simply to
rely upon the agreed facts. Neither did the court put any questions to the
petitioner, notwithstanding his senior counsel having made clear that the
petitioner would be willing to answer any questions arising. The court was
accordingly faced with a detailed account by the petitioner, sworn on oath, that
he had: (i) not intended to breach the s. 11 order; and (ii) taken various steps to
avoid breaching the order.
24. Notwithstanding this, the court rejected the petitioner’s account. At §67 of its
Opinion, the court rejected the petitioner’s explanation of his intention.
Quantum valeat, it is notable that the court chose to do so in circumstances
where it had already held that a test of strict liability applied. Such an approach
continued in the court’s Sentencing Remarks, in which it is noted that it
appeared that the petitioner was “relishing the task he set himself which was
essentially to allow the identities of complainers to be discerned…” This is, again,
contrary to the unchallenged evidence of the petitioner. The petitioner makes
three points regarding the course of action adopted by the court:
25. Firstly, in circumstances where the petitioner faced significant penal
consequences, the court ought not to have disbelieved the petitioner’s account
of his subjective intention without having given him an opportunity to explain
any matters causing doubt, either by way of cross-examination or questioning
by the court. Where a decision-maker has doubts about the honesty of a party,
as a matter of fairness, those doubts ought to be put to the party in question: R
(Balajigari) v Home Secretary [2019] 1 WLR 4647 at §55. Such a principle of
natural justice ought to apply consistently across administrative and judicial
decision-making processes. If anything, the onus is greater when a party faces
potential imprisonment. The comments of the Lord Justice-Clerk (Cooper) in
McKenzie v McKenzie 1943 SC 108 at 109 bear repetition:
“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.”
Such a role would ordinarily be fulfilled by the Crown but, in sui generis
proceedings such as this, if the court intends to criticise a contemnor’s account,
it ought to put the questions itself. Accordingly, it was unfair not to give the
petitioner an opportunity to answer any questions in relation to his subjective
intention.
26. Secondly, the court heard no submissions as to whether it could disbelieve the
petitioner’s affidavit, absent any contradiction. That is a matter on which it
should have allowed submissions to be made: Robertson v Gough 2008 JC 146 at
§94.
27. Thirdly, the court’s reasoning with regards to the petitioner’s intention draws
too broad an inference from conclusions it drew about specific articles. At §67
of its Opinion, the court rejects the suggestion that the petitioner had “never at
any time had the intention of publishing the names of complainers in the Salmond
trial”. In contradiction, the court points to three matters (at §70 of its Opinion):
(i) the petitioner’s supposed intention in writing the Yes Minister article; (ii) a
tweet of 19 January 2020 in relation to the Yes Minister article; and (iii) a
comment made by the petitioner in his 12 March article. It is respectfully
submitted that these three adminicles are not sufficient to justify an inference
(to the criminal standard of proof) that the petitioner intended to identify the
complainers in the other articles to which the court’s finding of contempt
relates. Intention in relation to one incident does not imply intention on any
other occasion. Of note, the Yes Minister article predated the s. 11 order. The
court did not direct its mind as to whether the existence of the s. 11 order might
have affected his intention with regards to the March articles.
28. Accordingly, the court erred in law in the way it handled the petitioner’s
unchallenged affidavit evidence.
Ground 3: the court erred in applying a test of a “particular section of the
public”
29. The court considered the issue of whether potential identification by a
particular section of the public was sufficient to make a finding that the s. 11
order had been breached at §54-58 of its Opinion. The court concluded:
“The question which must be asked is whether in its context the material was
such as was likely, objectively speaking, to lead to identification of the
complainers. If the material would be likely to enable a particular section of the
public to do so that would be sufficient.”
30. In doing so, it erred in law. The error is material. The court has, in effect,
imposed a significantly lower threshold to satisfy it that a s. 11 order has been
breached than is created by the terms of the Act. It is much more
straightforward to demonstrate that a piece of information may assist a
particular section of the public in identifying a complainer than the public as a
whole. The court has not found that, if the higher threshold of the public as a
whole was applied, the articles would still have been in breach of s. 11.
31. The court appears to have subsequently disavowed the test it set out in its
Opinion, in its Statement of Reasons refusing permission to appeal to the
Supreme Court. At §8 it notes that it did not limit any findings to the extent
that the complainers were in fact only identifiable by a particular section of the
public. This disavowal is unusual. The court devotes five paragraphs of its
Opinion to this issue. It concludes that the test is whether “a particular section
of the public” could identify the complainers. There is nothing to suggest that
a broader factual conclusion was reached, such as that any member of the
public could have identified the complainers from the articles. Accordingly, the
court’s comments at §8 of the Statement of Reasons are entirely inconsistent
with the scheme of its previous Opinion. There is no objective basis for
concluding that, having identified a specific test in §57 of its Opinion, the court
then applied a different one.
32. The terms of s. 11 are clear:
In any case where a court (having power to do so) allows a name or other matter
to be withheld from the public in proceedings before the court, the court may
give such directions prohibiting the publication of that name or matter in
connection with the proceedings as appear to the court to be necessary for the
purpose for which it was so withheld.
33. A s. 11 order is accordingly only competent in circumstances where the court
has made an order to withhold a name or other matter from “the public”. A
s.11 order is ancillary to the court’s primary power to withhold the name or
other matter from the public during proceedings: A v Procurator Fiscal, Dundee
2018 JC 93 at §27. The s.11 order accordingly cannot be stricter in its terms than
the common law order which is to exclude matters “from the public”. The s.11
order must be made “for the purpose for which” the common law order is
made. That purpose was to prevent identification by the public at large. Any
s.11 order must therefore be read as preventing the publication of information
which may give rise to the identification of complainers to the public at large.
There is no basis within s.11 of the Act (limited as it is in its terms) to suggest
that a s.11 order may restrict the publication of any matter which may identify
a complainer to a particular, potentially very small, section of the public.
34. The approach of the court also renders the reporting of any proceedings in
relation to sexual offences entirely unworkable. A journalist or editor cannot
know what information is already available to particular subsets of the public.
In almost all cases it is likely that some members of the public (particularly
those who are close to the complainers) will already hold a nearly complete set
of jigsaw pieces. For those members of the public, any further piece of
information may form the final piece of the jigsaw, which reveals the full
picture to that member of the public. Publishing any information in relation to
the trial accordingly puts a journalist at risk of a finding for contempt, simply
because some members of the public have been able to join the dots. The court’s
interpretation of the breadth of a s.11 order is accordingly likely to have a
stifling effect on the public-interest reporting of court proceedings. Only by
rendering the account unintelligible to any person who may hold relevant
background information from another source, can the media be safe that it has
not committed a contempt. Such an approach is of particular concern when its
effect is to prevent the reporting of matters of very significant interest relating
to the trial, as the petitioner sought to do.
35. The reference to O’Riordan v Director of Public Prosecutions [2005] EWHC 1240
(Admin), at §58 of the court’s Opinion, takes the point no further. That simply
assists in understanding how one should interpret the phrase “likely to lead to
identification”. It does not inform the issue as to the scope of the group the
information must be likely to inform.
36. Accordingly, the court erred in formulating too low a threshold for conduct
amounting to a breach of the s.11 order.
Ground 4: the test applied was incompatible with Art. 10 ECHR
37. The finding of contempt of court is an interference with the petitioner’s Art. 10
right to freedom of expression. That is not understood to be in dispute. Given
the importance of the matters reported on by the petitioner and the plain public
interest in reporting those matters, it is a very significant interference with that
right. It is a more serious interference than if the petitioner had intentionally
sought to identify the complainers for vindictive purposes. Such an
interference may only be justified if the interference is in accordance with Art.
10 (2); that is, if it is prescribed by law and necessary in a democratic society.
The test applied by the court is not one which is prescribed by law because it is
vague and unforeseeable.
38. In order to meet the test to be prescribed by law, a provision must be both: (i)
accessible; and (ii) expressed with sufficient precision to enable the petitioner
to regulate his conduct. The accessibility of the terms of s.11 is not challenged.
However, the test applied by the court fails the second arm of the test for two
reasons: (i) it is imprecise; and (ii) its application is unforeseeable.
39. In relation to precision, the terms of the test set out by the court bear close
consideration:
“The question which must be asked is whether in its context the material was
such as was likely, objectively speaking, to lead to identification of the
complainers. If the material would be likely to enable a particular section
of the public to do so that would be sufficient.”
40. What is “a particular section of the public”? Is it based on the number of people
who may be able to identify the complainers? If, so how many people need to
be able to identify the complainers, in order to satisfy the test? Can one person
constitute a particular section of the public? Does it matter that the section of
the public in question already holds additional information which is not
available to the public at large? Do those members of the public who are
actively trying to piece together disparate information from across the internet
constitute a particular section of the public? Do close colleagues or family
members of the complainers constitute a particular section of the public? The
court provides the potential journalist or editor with no assistance on any of
these matters.
41. The court’s imprecision feeds into the issue of foreseeability. Without clear
guidance as to what amounts to a “particular section of the public” the
potential journalist or editor is unable to anticipate the consequences of its
reporting of matters which are legitimately in the public interest, as the
Salmond trial undoubtedly was. Almost any piece of information could be the
final piece of the jigsaw for members of the public who are already aware of
various other facts in relation to the case. Accordingly, publication of any issues
in relation to the charge, the locus, the dates or any aspect of a complainer’s
evidence could result in the author or publisher being the subject of a petition
for contempt of court. A journalist or media outlet cannot adequately predict
whether the court will consider that their individual piece of the jigsaw is the
final one or not. It also gives rise to the fear of arbitrary enforcement.
42. It would be surprising if that was the court’s intention. At §44 of its Opinion,
the court makes reference to the Independent Press Standard Organisation
Editors Code of Conduct and in particular Cl. 11:
“Victims of sexual assault
The press must not identify or publish material likely to lead to the
identification of a victim of sexual assault unless there is adequate justification
and they are legally free to do so. Journalists are entitled to make enquiries but
must take care and exercise discretion to avoid the unjustified disclosure of the
identity of a victim of sexual assault.”
43. The court is clear at §47 that it would expect responsible journalists to follow
the Code of Conduct. It is respectfully submitted that the test applied by the court
goes beyond the terms of the Code of Conduct and accordingly beyond the
realms of what responsible journalists would understand their duty to be. The
Code of Conduct prohibits the identification of complainers or publication of
material likely to lead to the identification of complainers. No reference is made
to the sphere of potential individuals who might be able to identify a
complainer but, in such an absence, it is reasonable to interpret the Code as
prohibiting identification to the public at large. That is consistent with the
terms of s. 11 of the 1981 Act. It is consistent with the fact that the media
frequently does report information relating to trials which may assist small
sections of the public, who already hold additional information, in identifying
complainers. It is the only application of the Code which allows journalists and
editors any confidence that the information they intend to publish does not
breach a s. 11 order. Given the prominent role the court attributes to the Code of
Conduct, the expectations afforded by its terms ought to be given significant
weight when considering the issue of foreseeability. The problem is
compounded, given the strict liability test imposed by the court; no defence is
open to journalists on the basis that they had not anticipated that this specific
section of the public may hold more jigsaw pieces than an ordinary member of
the public.
44. The likely consequence of the court’s approach to the test is a chilling effect on
journalistic reporting of criminal proceedings. Faced with an unforeseeable
test, where identification to any ill-defined section of the public could give rise
to proceedings for contempt, it is respectfully submitted that many journalists
will err on the safe side and opt not to publish information which is otherwise
in the public interest. That may be even more so for those working as
freelancers in the new media, without the protection afforded by media
organisations with the resources to obtain formal advice and defend any
contempt proceedings. Given the emphasis which Strasbourg has placed on
freedom of expression and of the reporting and discussion of matters in the
public interest, such a chilling effect would be intolerable.
45. Accordingly, the court’s test is not consistent with Art. 10 of the ECHR.
Ground 5: the court’s finding of contempt in respect of the 18 March 2020
article was unfair at common law and incompatible with Art. 6 ECHR
46. Fair notice is a cornerstone of both the common law and the protections
provided by Art. 6. This is clear in both civil and criminal proceedings: (i) in
civil proceedings, a party may not seek to prove matters for which there are no
averments on Record; (ii) a conviction must be consistent with the terms of the
indictment; (iii) a note of argument may not raise issues not set out in the
Grounds of Appeal. Art. 6 (3) (a) of the ECHR, similarly, provides that those
facing criminal charges must be informed promptly of the nature and cause of
the accusation against him.
47. The issue of fair notice in contempt proceedings has been repeatedly
emphasised. In re Yaxley-Lennon [2018] 1 WLR 5400, Lord Burnett CJ noted at
§29:
“Procedural fairness has always been a requirement in contempt proceedings,
including the need to particularise the alleged contempt at the outset. An alleged
contemnor must know what it is he has done which is said to amount to a
contempt of court so that he can decide whether to accept responsibility or
contest the allegation. Whilst that is a common law requirement, it chimes with
article 6.3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms which requires, amongst much else, that anyone
charged with a criminal offence must (a) . . . be informed promptly, in a
language which he understands and in detail, of the nature and cause of the
accusation against him; and (b) . . . have adequate time and the facilities for the
preparation of his defence”
At §66, he continued:
In contempt proceedings, touching as they do on the liberty of the subject, there
is a need for the contempt in question to be identified with precision and the
conduct of the alleged contemnor identified with sufficient particularity to
enable him, with the assistance of legal advice, to respond to what is a criminal
charge, in all but name.
48. The requirement for fair notice ought not to be in dispute. The court itself
recognised the importance of this principle at §62 of its Opinion. The court
rejected additional submissions which were not made by the Crown within the
body of its petition. However, the court went on to fall into the same error
against which it warned the Crown.
49. The court’s decision in relation to the petitioner’s article of 18 March 2020 is
contained at §80-84. The Crown’s position in its petition was that this article
may, read with other information, identify the complainer known as Ms D:
Petition for Contempt at §33-39. It did not aver that the article would identify, or
contribute to the identification of: Ms A, B, F/J or H. The court nonetheless went
beyond the terms of the petition and made findings that the article breached
the s. 11 order in relation to those women as well. The principle of fair notice
applies equally to the submissions made by the Crown and the findings which
are open to the court. In the words of Lord Hope in Byrne v Ross 1992 SC 498 at
506:
“It is necessary in the interests of fairness that the alleged contempt should be
clearly and distinctly averred and that the proceedings for contempt be
confined to the averments.”
50. The proceedings were not confined to the averments. The court made findings
which went beyond the terms of the Crown’s averments. It was not open to it
to do so (notwithstanding its assertion at §6 of its Statement of Reasons refusing
permission to appeal) and, in doing so, it erred in law and acted unfairly et
separatim incompatibly with Art. 6 (3) (a) of the ECHR.
APPEAL AGAINST SENTENCE
Ground 1: the sentence of eight months’ imprisonment was excessive
51. The principles in relation to sentencing those who have been found to have
breached the Contempt of Court Act 1981 are helpfully summarised in Lord
Burnett CJ’s decision in Re Yaxley-Lennon [2018] 1 WLR 5400 at §80:
“the factors material to punishment can readily be adapted and applied to cases
involving breach of reporting restrictions. They would usually include: (a) the
effect or potential consequences of the breach upon the trial or trials and upon
those participating in them; (b) the scale of the breach, with particular reference
to the numbers of people to whom the report was made, over what period and
the medium or media through which it was made; (c) the gravity of the offences
being tried in the trial or trials to which the reporting restrictions applied; (d)
the contemnor’s level of culpability and his or her reasons for acting in breach
of the reporting restrictions; (e) whether or not the contempt was aggravated by
subsequent defiance or lack of remorse; (f) the scale of sentences in similar cases,
albeit each case must turn on its own facts; (g) the antecedents, personal
circumstances and characteristics of the contemnor; (h) whether or not a special
deterrent was needed in the particular circumstances of the case.”
52. Taking the above factors, and the general principles of sentencing, into account,
the sentence imposed on the petitioner was excessive. In particular, the
petitioner would highlight the following factors which were given insufficient
weight:
I. The petitioner was otherwise of good character. He had never
previously been convicted of any offence.
II. The petitioner had a long history of public service and public interest journalism.
III. The court was presented with unchallenged affidavit evidence
that the petitioner had not intended to breach the s. 11 order or to
commit a contempt of court. If the Crown, or the court, had
reason to disbelieve the evidence in mitigation, it ought to have
heard evidence in mitigation: Anthony Stewart v HM Advocate
[2017] HCJAC 86 at §9. The practice adopted by the court was
simply to reject the evidence given by the petitioner and find, on
the contrary, that he “relished” his task.
IV. It was accepted that the petitioner had a number of serious health
issues.
V. The Criminal Justice Social Work Report had identified that the
petitioner was unlikely to reoffend in the same manner: Criminal
Justice Social Work Report p. 6.
VI. The petitioner was willing, and financially able, to pay a fine.
53. The sentence imposed was also inconsistent with comparative sentences for
breaches of reporting restrictions:
I. HM Advocate v Clive Thomson (25 February 2021) also concerned a
breach of the s. 11 order put in place in relation to the Salmond
trial. The contemnor in that case was found to have deliberately
named five of the complainers on Twitter and associated them
with the initials being used by the media. The contemnor’s
actions were described as a “blatant and deliberate breach of the
order”. The same cannot be said of the petitioner’s actions, both
in light of his affidavit and the steps taken by him to try to avoid
identification.
II. HM Solicitor General v Mayfield [2021] EWHC 1051 (QB)
concerned the breach of a reporting restriction order by posting
the names of prosecution witnesses on Facebook and posting
videos and photos taken from inside the courtroom along with
text identifying the witnesses. A twelve-week custodial sentence,
suspended for two years was imposed. Again, this is in the
context of a deliberate and specific identification of those
protected by the reporting restriction.
54. In light of all the above, a custodial sentence of eight months was excessive.
Ground 2: the sentence of eight months’ imprisonment was incompatible
with Art. 10 of the ECHR
55. This ground of appeal proceeds on the basis of two propositions: (i) the
petitioner is a journalist; and (ii) it will be disproportionate to sentence a
journalist to a custodial sentence as a result of what they publish, except in
exceptional circumstances.
56. Strasbourg has repeatedly emphasised the important role that journalists play
in civil society: Delfi AS v Estonia (2016) 62 EHRR 6 §133-134; Magyar
Tartalomszolgaltaok Egyesülete and Index.hu Zrt v Hungary, no. 22947/13, 2
February 2016 at §56. Their freedom of expression is accordingly worthy of
particular protection.
57. In seeking to limit the protections afforded to the petitioner by reason of the
form his publishing takes, the court erred. In substance, his work is journalism
and is worthy of the same protections. The petitioner is a “public watchdog”.
That role must include those, such as the petitioner, whose work criticises the
mainstream account. The petitioner accepts that his activities must be held to
the same standards as mainstream journalists (a submission which was noted
by the court at §47 of the court’s Opinion), but the corollary is that he is subject
to the same protections as the mainstream press. The fact that he publishes
through new media is irrelevant and the court erred in drawing such a
distinction.
58. If the same standards are applied to the petitioner as the mainstream press,
then a custodial sentence of eight months cannot be seen as a proportionate
disposal in relation to the finding of contempt.
59. The principle that press offences ought not ordinarily to be punished with
custodial sentences has been clear since at least the Strasbourg court’s decision
in Cumpana and Mazare v Romania (2005) 41 EHRR 14. At §115 the court notes:
“Although sentencing is in principle a matter for the national courts, the Court
considers that the imposition of a prison sentence for a press offence will be
compatible with journalists’ freedom of expression as guaranteed by Art.10 of
the Convention only in exceptional circumstances, notably where other
fundamental rights have been seriously impaired, as, for example, in the case of
hate speech or incitement to violence.“
60. Exceptional circumstances do not exist in this case. The petitioner has not
published hate speech, nor has he incited violence. There are no features of this
case which are analogous to these extreme examples. The importance of
complainer anonymity is, of course, important but it cannot be said that the
publication of information which may, inadvertently, lead to the identification
of the complainers by a discrete and undefined section of the public, is
sufficiently serious as to justify the imposition of an eight-month custodial
sentence on a journalist who was exercising his role as a public watchdog. The
Strasbourg court has made no suggestion that circumstances analogous to
those in this case amount to the exceptional circumstances required by
Cumpana and Mazare. In such circumstances, it is not for the domestic courts to
dilute the protection afforded by Strasbourg: R (AB) v Secretary of State for Justice
[2021] UKSC 28 at §54.
61. It has already been submitted that the imprecision of the test set out by the
court is likely to have a chilling effect of press reporting on criminal
proceedings. That is a fortiori the case in circumstances where an inadvertent
breach of a s. 11 order may have the effect of subjecting a journalist or publisher
to a lengthy custodial sentence. Such a chilling effect is to be discouraged and
the approach taken by the court in the petitioner’s case is accordingly
inconsistent with Strasbourg’s jurisprudence in relation to Art. 10.
62. Again, considerations of comparative justice are instructive. The petitioner has
been subject to a longer custodial sentence than was imposed in Clive Thomson
which concerned a non-journalist deliberately identifying the complainers by
name. There is no principled basis to argue that the activities of the petitioner
were more prejudicial to the rights of the complainers than in that case and
certainly no basis to support a finding that his activities constituted exceptional
circumstances in the sense referred to in Cumpana and Mazare. The imposition
of a fine could have marked the court’s disapproval of the petitioner’s conduct
and, accordingly, the more restrictive disposal of a custodial sentence was
disproportionate and not in accordance with Art. 10 ECHR.
CONCLUSIONS
63. There is no evidence that the petitioner intended to identify any complainer.
Indeed, there is no evidence that any member of the public has identified a
complainer from the petitioner’s articles. There was unchallenged evidence
before the court that the petitioner had sought at all times to remain on the right
side of the s. 11 order. In such circumstances, both the finding of contempt and
the sentence imposed cannot be supported.
64. The court erred in law in finding the petitioner in contempt of court. There is
no basis for: (i) applying a test of strict liability; (ii) criticising the petitioner’s
unchallenged evidence; (iii) applying a test of identification of “identification
to a particular section of the public”; nor (iv) making findings that went beyond
the notice given in the Crown’s petition. Accordingly, declarator ought to be
granted that the finding was wrong, unjust and contrary to law.
65. The court also erred in imposing an eight-month custodial sentence. This was:
(i) excessive at common law; and (ii) a disproportionate interference with his
Art. 10 rights. Accordingly, declarator ought to be granted that the sentence
was excessive and contrary to law.
Roddy Dunlop QC, Dean of Faculty
David Blair, Advocate
2 February 2022
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