LETTER FROM LONDON: A Troubling Decision

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by Alexander Mercouris, Consortium News:

Alexander Mercouris says the conviction of former British diplomat Craig Murray undermines the right of the media to report cases, which is vital to protect the right to a fair trial.

In the last Letter from London, I discussed the background to the contempt of court case against the historian, journalist and former diplomat Craig Murray for his reporting of the criminal and civil proceedings against Scotland’s former first minister, Alex Salmond, on allegations of sexual assault, for which he was acquitted on all charges at trial.

I also discussed in that letter the political situation in Scotland: the rise of sentiment favoring independence from Britain, the power struggle within the Scottish Nationalist Party (SNP) and the alarm that the growth of pro-independence sentiment in Scotland is causing in London. 

The case against Murray has resulted in a judgment convicting him of contempt of court.  He is now at serious risk of up to two years in prison with sentencing set for May 7.

Before discussing the judgment itself there is a point to be made about one aspect of the Court’s conduct that is seriously worrying.

There was an eight-week gap between Murray’s trial and the announcement of his conviction. 

The trial lasted only one day, the evidence was limited in its extent and it was largely agreed by the prosecution and defence lawyers.  It is not clear why the Court needed two months to deliver its judgment.  Normally after such a trial, judgment would be delivered in a few days or a week at most. The delay seemed both cruel and unnecessary to Murray and his family.

It is useless to speculate about the reason why, but  Article 6(1) of the European Convention on Human Rights requires that determination of a criminal charge should take place at a “fair and public hearing within a reasonable time.”  For the record, eight weeks in a case like this does not seem like a “reasonable time.”

Case in Three Parts

Craig Murray.

The case against Murray was in three parts: (1) that his reporting of the case against Salmond might have influenced its outcome; (2) that he had improperly reported facts about the dismissal of one of the jurors; and (3) that his reporting had made possible the “jigsaw” identification of some of the witnesses who gave evidence against Salmond at his trial.

No evidence was produced at Murray’s trial that his reporting influenced the outcome of the case against Salmond.  Nor was any evidence produced that anyone identified any of the witnesses because of anything that Murray wrote.

The previous Letter from London pointed out that this made the case against Murray look abstract and made me wonder what was the point in bringing it?

The Court in its judgment rejected the prosecution’s case that Murray’s reporting might have influenced the outcome of Salmond’s trial.  It also rejected the prosecution’s case that Murray’s reporting about the juror was a contempt of court. 

The part of the case that  involves the juror always looked exceptionally weak and the Court had no difficulty dismissing it.

The Court’s rejection of the prosecution’s case that Murray’s reporting might have influenced the outcome of Salmond’s trial, is an indisputably correct decision.

Though the prosecution, the defence and the judge had all appeared to agree at Murray’s trial that Salmond’s trial had been fairly and properly conducted, it was worrying that if the Court had decided that Murray was in contempt of court because his reporting might have influenced the outcome of Salmond’s trial, then some people would have claimed that Murray’s reporting did affect the outcome of Salmond’s trial, which would have, in the absence of that reporting, had a different outcome.

That might have led to claims that Salmond’s trial was a mistrial, with Murray being blamed. It might even have led to demands that Salmond be retried on the same charges all over again on the grounds that Murray’s reporting had rendered his acquittal unsafe.

Scottish Cabinet in 2007, with Nicola Sturgeon and Alex Salmond in foreground. (Scottish government)

That would have been wholly wrong, but given the fraught political atmosphere in Scotland, and the extraordinarily bitter feelings which Salmond’s trial has provoked, I can easily see how in that  situation the Scottish prosecuting authorities and the Courts might have buckled under pressure, and been swept along.

With the Court’s decision to reject this part of the prosecution’s case, that disastrous outcome has been avoided.

The part of the judgment which finds Murray in contempt of court nonetheless provokes serious concern. 

The ‘Objective Test’

The Court acknowledged that there is no evidence that anyone did in fact identify any of the witnesses as a result of anything which Murray wrote.  It also said that Murray’s intentions were irrelevant.  Even if Murray had had no intention of writing anything which might have led to the identification of any one of the witnesses, and even if there were no evidence that anything he wrote did in fact result in anyone identifying any one of the witnesses, Murray would still be guilty of contempt of court if he failed what the Court called an “objective test” which decides whether something written might notionally identify a witness.

It is upon this reasoning that Murray has been convicted.

That may be a correct summary of the current law.  However it seems that it sets the bar for court reporting extraordinarily high.  I wonder whether the test is indeed as the Court supposes it to be, and if it is, whether the Court has applied it properly.

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