by Alexander Mercouris, Consortium News:
The defence counsel has reasonably criticized the decision to impose a prison sentence, writes Alexander Mercouris.
The troubling conviction of former British diplomat Craig Murray for contempt of court in connection with his coverage of the prosecution of the prominent Scottish nationalist politician Alex Salmond on sexual assault charges has now produced an equally troubling sentence by a tribunal of the Scottish High Court of eight months in prison for Murray.
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In my two previous letters on the Murray case, I discussed the political background and legal issues, in particular the way in which the so-called objective test, which the Court was purporting to apply when assessing Murray’s reporting, threatened to make media reporting of a case such as Salmond’s in any meaningful sense.
The Court said that according to the “objective test,” it did not actually matter whether reporting of a case did in fact result in the public identification of a witness or complainant who had made sexual assault allegations against a defendant. Nor did it matter if the reporter who wrote about the Salmond trial had any intention that his or her report would lead to the public identification of a witness or complainant. It sufficed for the reporter to be in contempt of court, according to the Court, if a witness or complainant might conceivably be identified, including by persons who know them intimately.
Given such a test I do not see how balanced reporting of a case like the one brought against Salmond (which ended in acquittal) would be possible in practical terms. It does not seem possible to provide an article that reported the case fully and properly but which also did not report at least some facts which some people might say, rightly or wrongly, could conceivably cause the identification by someone of a witness or complainant.
Given that the defendant does not enjoy similar protections, that seems to me to contradict the overriding legal and human rights obligation for equal and balanced justice, which requires that trials, save in exceptional circumstances, be conducted openly, and be reported in a full and balanced way.
In saying this it is essential to stress that the protection of witnesses and complainants in sexual assault cases is a paramount priority, and that the need to take steps to provide them with protection by securing their anonymity is not at issue. However, to use this obligation to prevent balanced reporting of a case, especially one like Salmond’s, which had important public and political implications, seems to me to go too far and looks oppressive. It appears to extinguish the right to a fair and open trial, which can only be secured by fair and balanced reporting. Inevitably that begs the question of whether the true intention of the Court’s order of anonymity was less to protect witnesses and complainants and more to prevent the balanced reporting of the case.
Here it is important to say that proportionality is a fundamental principle of human rights law. It seems to me that the Court’s “objective test” risks offending against the principle of proportionality, to the point where the right to fair and equal justice is extinguished.
In sentencing Murray, it is possible that the Court was alive to these concerns because in its sentencing comments it appeared to have moved away from a strict application of the “objective test.” Instead, it spoke as if Murray by his reporting had actually intended that the identities of the complainers in Salmond’s case should be revealed. Murray’s breach of orders conferring anonymity on the complainants was according to the Court’s sentencing comments not inadvertent. On the contrary, the Court said it was brazenly willful. Indeed, Judge Lady Dorrian spoke of Murray actually “relishing” the possibility that the identities of the complainants might be revealed as a result of his reporting.
This has introduced an element of malice into Murray’s reporting which to my knowledge had not been mentioned before.
Up to a Higher Court
It will be for the Supreme Court to decide whether the evidence that was presented to the Court does indeed prove such an element of malice on Murray’s part. In my opinion the evidence does not show it. Of course, Murray, in his affidavit evidence, denies that he had any intention or desire to reveal the identities of the complainants. Instead, he goes to great length to explain the painstaking steps he took to avoid the “jigsaw” identification of the complainants. If true, that would mean that the malice the Court claims as the reason for his actions never existed.