Strasbourg Cul de Sac 110

Here is the detailed argument we submitted to the European Court of Human Rights in Strasbourg:


Respondent Government


1. This supplementary statement sets out the relevant domestic law and practice, and then makes supplementary submissions on why there have been violations of Articles 6 and 10 in this case.

2. The following abbreviations are used: (i) the Crown’s petition and complaint regarding the applicant (Additional Document No. 3) is referred to as “the contempt petition”; (ii) the High Court of Justiciary’s Opinion of 25 March 2021 (Additional Document No. 13) is referred to as “the High Court’s Opinion”; (iii) the applicant’s petition to the nobile officium (Additional Document No. 20) is referred to as “the nobile officium petition”; the High Court of Justiciary, Appeal Court’s Opinion dated 25 March 2022 (Additional Document No. 25) is referred to as “the Appeal Court’s Opinion”.

a. The Contempt of Court Act 1981

3. The Contempt of Court Act 1981 is a UK-wide statute. Section 11 gives the courts the power to prohibit the publication of information that has been withheld from the public in court proceedings. It provides:
“Publication of matters exempted from disclosure in court
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.”

4. Section 11 is an ancillary power. The ordinary rule is that court proceedings and documents are public. The courts, however, have various powers, particularly at common law, to withhold names or other matters from the public. When a court orders that a name or other matter should be withheld from the public, it may make a section 11 order so that its order withholding the information is effective (that is, would not be circumvented by the press reporting the information that has been withheld): A v BBC [2014] UKSC 25 per Lord Reed at paragraph 59. Section 15 provides that, in Scotland, the maximum penalties that may be imposed for contempt of court shall be 2 years’ imprisonment or a fine or both.

b. The nobile officium

5. The nobile officium is an extraordinary, equitable power vested in, inter alia, the High Court of Justiciary. It gives the High Court of Justiciary the power to provide a remedy in circumstances where no other remedy or procedure is provided by the law: see Beggs v. the United Kingdom, no. 25133/06, § 178, 6 November 2012; and Mackay and BBC Scotland v the United Kingdom, no. 10734/05, § 15, 7 December 2010. A petition to the nobile officium is, in practice, the standard route of appeal for a person who seeks to challenge a finding of contempt made by a High Court bench of 3 judges: Express Newspapers, Petitioners 1999 JC 176 at 180; Murray v HM Advocate [2022] HCJAC 5. In that sense, while the jurisdiction is described generally as an equitable one, it is, in the context of contempt proceedings in the High Court of Justiciary, a standard domestic remedy. The nobile officium procedure is invoked by presenting a petition for its exercise to the High Court of Justiciary.

c. The Prisoners and Criminal Proceedings (Scotland) Act 1993

6. The Prisoners and Criminal Proceedings (Scotland) Act 1993 regulates the early release of prisoners in Scotland. Section 1(1) provides that a short-term prisoner (defined in section 27 as a person serving a sentence of imprisonment of less than 4 years) must be released as soon as he has served one-half of his sentence. Section 3AA(1) and (2) further provides that the Scottish Ministers may release on licence, among others, any short-term prisoner who is serving a sentence of imprisonment for a term of 3 months or more, after that prisoner has served a quarter of his sentence. Generally, when prisoners are released under section 3AA they are made subject to home detention curfew (or ‘tag’), requiring them to remain at their home address for a specific period each day. However, section 5 of the Act provides that section 3AA does not apply to, among others, those serving a sentence of imprisonment for contempt of court. Thus, while a prisoner serving an 8 month sentence of imprisonment, in relation to a criminal conviction, will generally be released on licence after 2 months’ imprisonment (and will be released unconditionally after 4 months), the earliest a prisoner serving the same sentence for contempt of court can be released is after 4 months.

a. The applicability of the criminal limb of Article 6

7. It is settled in domestic law that the criminal limb of Article 6 applies to contempt of court and thus that the respondent in a contempt case enjoys the protections of Article 6 § 3: In re Yaxley-Lennon [2018] EWCA Crim 1856, [2018] 1 WLR 5400 per Lord Burnett CJ at § 66; Robertson and Gough v HM Advocate 2008 JC 146 per the Lord Justice Clerk (Gill) at §§ 41, 64 and 65; Re K (Children) (Contact: Committal Order) [2003] 1 FLR 277, [2002] EWCA Civ 1559 per Hale LJ (as she then was) at § 21.
8. This is compatible with the Court’s own approach that the criminal limb of Article 6 applies to contempt of court when, applying the third of the Engel criteria, there is a risk of a custodial sentence: Gestur Jónsson And Ragnar Halldór Hall v Iceland [GC], § 83, nos. 68273/14 68271/14, 22 December 2020. That applies a fortiori to cases where, as here, a custodial sentence is in fact imposed: Kyprianou v. Cyprus, no. 73797/01, § 31, 27 January 2004, where the criminal limb of Article 6 was found to apply, when the applicant was sentenced to 5 days’ imprisonment. For these reasons, it is submitted that it is uncontroversial that the criminal limb of Article 6 applied in the present case and the Court is respectfully invited to find that it does.

b. The applicable standards in relation to the applicant’s Art. 6 claim

9. The nub of the applicant’s Article 6 complaint is stated in the application form: in finding him in contempt of court for his article of 18 March 2020, the High Court of Justiciary went beyond the terms of the Crown’s petition and, in effect, convicted him of something that he was not charged with.

10. The general principles that apply in such a situation are clear:
(i) The particulars of the offence or the indictment against an accused play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him: Pélissier and Sassi v France [GC], no. 25444/94, § 51, 25 March 1999; Kamasinski v. Austria, no. 9783/82, § 79, 19 December 1989.
(ii) Information concerning the charges made, including the legal characterisation that the court might adopt in the matter, must either be given before the trial in the bill of indictment or at least in the course of the trial by other means such as formal or implicit extension of the charges. Mere reference to the abstract possibility that a court might arrive at a different conclusion from the prosecution as regards the qualification of an offence is clearly not sufficient (I.H. and Others v. Austria, no. 42780/98, § 34, 20 April 2006).
(iii) Sub-paragraphs (a) and (b) of Article 6 § 3 are connected in that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (Pélissier and Sassi, cited above, § 54; Dallos v. Hungary, no. 29082/95, § 47, 1 March 2001).

11. These are principles that the United Kingdom courts have recognised must apply in contempt of court proceedings. In Yaxley-Lennon, cited above, the Lord Chief Justice (Lord Burnett) observed (at paragraph 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…”
His Lordship went on to observe at §66:
“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.”

12. The same principle applies in Scottish contempt of court proceedings. As Lord Hope observed in Byrne v Ross 1992 SC 498, at 506:
“[I]t 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.”

13. The High Court of Justiciary recognised this, in terms, at § 62 of the High Court Opinion, where it rejected the Crown’s submission that articles published by the applicant before the section 11 order could amount to contempt, even though the Crown had not made that assertion in its contempt petition. The High Court of Justiciary quoted Lord Hope’s dictum in Byrne v Ross with approval and itself observed that:
“The petition is the basis upon which the Crown makes its assertions that the respondent has been guilty of contempt, and by which it provides notice to him of the way in which that contempt has been effected. The court, and more pertinently the respondent, is entitled to expect that the basis for the allegations of contempt will be set out clearly and specifically in the petition …”

14. It is submitted that these principles are correct and, as the Lord Chief Justice observed in Yaxley-Lennon, they chime with the requirements of Article 6 § 3. In Scottish contempt of court proceedings, the petition functions as the indictment does in a normal criminal process. Its averments set out what are, in effect, the “charges” against the alleged contemnor. As such, the petition has the same crucial role that an indictment does in that, at moment of its service, the alleged contemnor is formally put on written notice of the factual and legal basis of the charges against him or her (see Kamasinki,supra), and the court deciding on the question of contempt is limited to the allegations set out in the petition.

c. The Appeal Court’s approach to this issue

15. If the High Court of Justiciary had applied those principles, there could be no complaint under Article 6. However, what happened was that the High Court of Justiciary simply did not apply those principles to its examination of the 18 March 2020 article. Instead, it erred in finding that this article amounted to contempt of court by identifying Women A, B, F/J and H: High Court’s Opinion §80-84. That is so notwithstanding that the Crown in its contempt petition made no such allegations and only alleged that the article identified Woman D: contempt petition at §38. The consequence of that error is that the applicant has been convicted of something he was not charged with and, applying the clear and well-established principles set out at paragraph The general principles that apply in such a situation are clear: above, there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (a) and (b) of the Convention.

16. The Appeal Court deals with this aspect of the applicant’s case in §§71-73 of the Appeal Court Opinion. While superficially acknowledging the importance of fair notice at §71, the tenor of the Appeal Court’s decision is that the summary nature of the proceedings against the applicant justified an abridged approach to the issue of fair notice:
[71] The process of petition and complaint is intended to be a summary one, requiring a swift determination of the court. It is not one in which extensive written pleadings are desirable, since the process is not an adversarial one between the Crown and the alleged contemnor but a method by which the Crown can bring to the court’s attention instances of possible contempt.

[73] In the context of a summary process, in which the article was not found to be a contempt per se and, as the court explained in its opinion on permission to appeal, the court was not confined to the specific averment involving Ms D, it could look at the article as a whole and determine, as it did, that it did constitute a breach of the order when read along with the other articles.

17. The approach of the Appeal Court is misconceived. There is nothing within this Court’s jurisprudence to suggest that the requirement for charges to be carefully and clearly set out to an accused is curtailed by the fact that the proceedings take place in the context of a summary procedure. In the domestic criminal context, it is necessary for the charge to fully set out with sufficient notice the allegations that the accused requires to meet: Renton & Brown’s Criminal Procedure (6th ed) §8.01-8.02.1. It is an essential of any criminal verdict that its terms must be consistent with the charge as set out in the indictment or complaint: Renton & Brown’s Criminal Procedure (6th ed) §8-85. Indeed, as noted above, the case of Byrne v Ross 1992 SC 498 (which was referred to in favourable terms by the Appeal Court), is clear that in contempt proceedings “the proceedings for contempt must be confined to the averments”. To the extent that the Appeal Court relies upon the summary nature of the proceedings before it, such a reliance is entirely novel, unsupported by authority and inconsistent with the applicant’s right to fair notice in terms of Art. 6. (3) of the Convention.

18. The only other justification relied upon by the Appeal Court is a general averment in § 39 of the contempt petition, which states:
It is respectfully submitted that the details included in the Articles of 12, 16 and 18 March about the complainers could lead to their identification as witnesses in the criminal proceedings, contrary to the section 11 order imposed by the Court.

19. Such an averment is plainly insufficient to give notice to the applicant of his alleged contempt. At its best, the averment amounts to a warning of “the abstract possibility that a court might arrive at a different conclusion than the prosecution” as was described as insufficient in I.H. and Others v. Austria, no. 42780/98, 20 April 2006 at §34. More reasonably, it can be interpreted as a peroration in relation to the preceding paragraphs which ought to be seen as summing up the position already set out in §§ 33-38 of the contempt petition. In such circumstances, it is plainly devoid of any independent meaning and cannot amount to fair notice that the applicant could be found in contempt in relation to the 18 March 2020 article on a basis other than as set out in §38 of the contempt petition. The Appeal Court Opinion notes at §72 that “it is odd that the respondent did not make specific reference in the petition and complaint to A, B and F but the article as a whole was before the court”. It may or may not be odd but it is the approach which the Crown had taken in its pleadings. It is not the role of the court to fill in any perceived blanks in the contempt petition by, in effect, alleging (and then finding proved) further charges against the applicant. To do so would blur the necessary distinction between prosecutor and adjudicator.

20. By, in effect, convicting the applicant for something which he had not been charged with, the High Court of Justiciary’s finding is plainly contrary to Article 6 § 1 read in conjunction with Article 6 § 3 (a) and (b). The applicant invites the court to make such a finding.


21. The applicant makes 2 complaints under Article 10: (i) that the finding of contempt was not prescribed by law because the test used by the High Court of Justiciary in deciding whether there would be a breach of s. 11 of the Contempt of Court Act 1981 was imprecise and unforeseeable and gave rise to arbitrariness; and (ii) that the restriction on the applicant’s freedom was not necessary and proportionate in a democratic society, for a number of reasons.

a. Interference with Art. 10 ECHR

22. As a preliminary issue, it should be uncontroversial that the applicant’s actions fell within the scope of Art. 10 of the Convention. This is implicitly acknowledged both in the High Court’s Opinion at §§ 48-53 and the Appeal Court’s Opinion at §70 and §76. Similarly, it ought not to be controversial that there has been an interference with the applicant’s Art. 10 rights; he was found in contempt of court as a result of articles he had published and was sentenced to an 8 month sentence of imprisonment. Such conduct plainly amounts to an interference with his right to freedom of expression.

b. Prescribed by law

23. The High Court Opinion at §58 found that, to breach a s. 11 order, it was not necessary that the material published would be likely to identify a complainer to the public at large; rather, it would be sufficient for a breach of a s. 11 order if the material published were likely to enable a “particular section of the public” to identify a complainer. This test was expressly upheld in §67 of the Appeal Court’s Opinion.

24. It is well established in this Court’s jurisprudence that for an interference to be “prescribed by law” it must be adequately accessible, sufficiently precise, and foreseeable (see, in the context of contempt proceedings, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and, as more recent, general authority, Satakunnan Markkinapörssi Oy And Satamedia Oy v. Finland [GC], no. 931/13, §§ 142-145, 27 June 2017). A norm must be formulated with sufficient precision to allow a citizen to regulate his own conduct. The purpose of the lawfulness test is to avoid all risk of arbitrariness: Medvedyev and others v France [GC]. No. 3394/03, 29 March 2010 at §80. The test of “a particular section of the public” is too imprecise and unforeseeable to meet the prescribed by law requirements of Article 10 § 2.
i. Lack of precision and lack of foreseeability

25. The phrase “a particular section of the public” is imprecise. A “particular section of the public” can be of any size or complexion. It need not be fixed or stable in membership. It need not be confined to any defined geographical area, nor to any defined social group, nor to any defined category, community or class of persons. It is thus impossible for any publisher to know what “particular section of the public” the court will have in mind when assessing whether published information will identify someone and thus place the publisher in contempt of court, with all the penal consequences that may have. The Appeal Court Opinion notes, with some irony, at §69 that “there is nothing difficult to understand in this”, without providing any assistance in interpretating what is plainly an imprecise test. Although it is not for this Court to interpret domestic law, it is noteworthy that none of the authorities discussed by the High Court of Justiciary at §56 of the High Court’s Opinion support the test being a “particular section of the public”. In each of those cases, the terms used were the “community” or “the local community”, not a particular section of the public: A Woman v Airdrie & Coatbridge Advertiser, IPSO Ruling, 9 May 2019 at §9.

26. The phrase “particular section of the public” is also unforeseeable. Without any further definition, a “particular section” of the public could be so small that it is no longer “the public” in any meaningful sense. There will always be someone who knows a complainer. For instance, when an accused is convicted of sexual offences against a series of ex-partners, particularly over a long period of time, the reporting of the case will often name the accused and report that he has been convicted of offences against his ex-partners. Many people may know the accused and his ex-partners, through social networks, work, and so on. On the High Court of Justiciary’s test, that information would be sufficient to allow people who know the accused to know, with a high degree of likelihood, who the complainers are. In those circumstances, no media organisation could report the barest details of the case without risking identifying a complainer to someone who might know her or the accused. That is too slender a basis to find a breach of a s. 11 order and thus to interfere with the freedom of expression that the media enjoys. It is also too broad a test to meet the foreseeability requirements of Article 10(2). Finally, this is a step too far from the necessary link that a s. 11 order must have to making effective any order to withhold information from “the public”.

27. Such an imprecise and unforeseeable test gives rise to 2 key concerns: (i) arbitrariness; and (ii) a chilling effect on reporting of matters in the public interest. The test promotes arbitrariness because its parameters are unclear. Contempt proceedings may be taken against some individuals and not others in relation to reporting on the same matters. That is because those who take the decision to initiate proceedings may have different understandings as to the scope of the test. It appears to the applicant that this arbitrariness has arisen in practice: Affidavit dated 25 August 2020, Additional Document No. 10, at §117-119.

28. The approach of the High Court is also conducive to create a chilling effect on the reporting of matters which are plainly in the public interest which relate to trials regarding sexual offences. Faced with an imprecise, ambiguous test in relation to contempt proceedings (and the prospect of a prison sentence if one falls on the wrong side of that test), it is natural for journalists to adopt a low-risk approach to reporting matters such as this and to, in effect, “under-report” to protect their own interests. In doing so, the approach of the High Court deprives the public of fearless reporting, which is necessary for the press to play its role as a public watchdog. This Court has previously warned against such a chilling effect: Cumpana and Mazare v. Romania [GC], no. 33348/95, § 114, ECHR 2004-XI. That chilling effect is likely to be all the greater on journalists in new media who: (i) might be thought to have a greater level of independence in their reporting, without the vested interests of large media companies; but (ii) do not have access to the same level of legal protection or advice as those in the traditional media.

ii. Jigsaw identification

29. The imprecision and lack of foreseeability of the High Court of Justiciary’s test become particularly acute in cases, like the present case, of “jigsaw identification” (that is, cases where someone is not directly named, but where the information published, when pieced together with other “pieces” of information, could lead to their identification). If the test is a “particular section of the public” rather than the public in general, it will be impossible for a publisher to know what the other pieces of the “jigsaw” might be and whether a particular section of the public has those pieces..

30. That is all the more so when the particular section of the public in question is a small one such as a complainer’s immediate personal or professional circle. The consequences of the test established by the High Court of Justiciary is that a publisher will breach a section 11 order if he or she publishes information that would not allow a member of the general public to identify the person, but would nevertheless suggest the person’s identity to people in her immediate circle or confirm that person’s identity to those who already know it. On that test, the publication of any new information allows a section of the public to identify a complainer —however small that section of the public is and however much other information that section of the public already holds — would be sufficient to establish a breach of a s. 11 order. That does not meet the foreseeability requirement of Article 10(2). The journalist in question also cannot be expected to know all of the other pieces of the jigsaw which may have been published in disparate articles across a variety of publications. To punish the journalist who inadvertently publishes the final piece of the puzzle is, again, to promote arbitrariness in the law.

31. For all these reasons, it is respectfully submitted that the test that the High Court of Justiciary applied in the applicant’s case does not meet the prescribed by law test in Article 10(2).

c. Necessity and proportionality

32. It is further submitted that the High Court’s approach is contrary to Art. 10, for the following additional reasons with regards to necessity and proportionality:

i. The failure of the domestic courts to balance competing interests in the application of the s. 11 order

34. The Alex Salmond trial and the alleged conspiracy on which the applicant reported were undoubtedly of great public significance and interest. It attracted unprecedented levels of domestic and international publicity. The trial, the Scottish Government’s handling of the allegations that came to be at the centre of it, and the manner in which the prosecution was brought and conducted were all matters of legitimate and considerable public concern. They have been the subject of an inquiry by the Scottish Parliament in which Mr Salmond, his successor as First Minister, Nicola Sturgeon, and the then Lord Advocate (the head of public prosecutions in Scotland), the Crown Agent (the executive head of the Crown Office and Procurator Fiscal Service) had to give evidence. The trial and its wider political context featured prominently as issues in the most recent Scottish Parliament elections, held in May 2021, for which Mr Salmond formed a new political party. The trial has had, and continues to have, ramifications for the Scottish National Party and for the Scottish independence movement. That remains so, thirty months after the end of the trial. Reporting on the trial, and on the details of Mr Salmond’s defence, was undoubtedly in the legitimate public interest.

33. The applicant does not dispute that protecting the privacy of individuals who claim to have been the victim of sexual assault also serves important legitimate interests. The High Court’s opinion at §50 quoted a passage from this Court’s inadmissibility decision in Brown v United Kingdom, No. 44223/98, of 2 July 2002, in which the Court “recognises that the relevant provisions of the [UK Sexual Offences (Amendment) Act 1976] are designed to protect alleged rape victims from being openly identified”; that “[t]his in turn encourages victims to report incidents of rape to the authorities, and to give evidence at trial without fear of undue publicity”; and that “[t]he Court considers that it must pay special regard to these factors when examining the proportionality of the restrictions at issue in the present case.” However, the High Court’s approach to this issue was incomplete. It failed to have regard to the passage in Brown immediately following, where the Court noted that “the prohibition under the Act against the identification of alleged rape victims is not absolute. In particular, section 4(3) requires trial judges to lift the prohibition in certain cases where the public interest so requires”; that a defence of unintentional disclosure was in place; and that the applicant had only been given a small fine.

34. By contrast, the High Court at §§51-53 accepted the submission of the Crown that “anonymity may be viewed as necessary in a democratic society” without apparent qualification, and apparently took the view that therefore any order imposing anonymity was always compatible with the Convention, as was enforcement of the order in all circumstances. Consequently, “[i]f the material in question is found by the court to breach the order, any specific circumstances, including the assertion that a breach was unintentional, may found [i.e., be raised] in respect of a decision as to any potential sanction, but not in our view otherwise”: High Court Opinion at § 53. Implicit is the suggestion that the public interest in reporting can never be relevant in relation to whether the s. 11 order has or has not been breached, or the test which ought to be applied in determining whether there has been a breach. The Appeal Court Opinion falls into the same error at §§ 27 and 28.

35. This refusal of the High Court to balance the competing legitimate interests in its application of the s. 11 order is incompatible with the Convention. The need to balance competing legitimate interests in freedom of expression cases is firmly established, especially in defamation cases and/or when the issue that is reported on is a matter of legitimate public interest: cf., e.g., Thorgeir Thorgeirson v Iceland, no. 13778/88, 25 June 1992, which concerned alleged police brutality. In such a context, it is not required that the reporter proves that the alleged public interest facts are true; it is sufficient that there are credible underlying facts to the story, and that the reporter acted with integrity and due diligence.

36. The answer to this issue does not lie in the fact that the court had already balanced the competing interests in making the s. 11 order, as suggested in the contempt petition and in the High Court’s Opinion at §17. The Appeal Court Opinion also relies on the applicant’s failure to attack the s. 11 order itself, to suggest that there was an acceptance that the order reached the correct balance in relation to the various interests: Appeal Court Opinion at §67. However, this court’s jurisprudence is clear that an interference with the right to freedom of expression that takes the form of a criminal conviction requires detailed judicial assessment of the relevant conduct and of whether sanction is necessary in the circumstances. It is not sufficient that the interference is imposed because its subject-matter falls within a particular category or is caught by a legal rule formulated in general terms; what is required is that it is necessary in the specific circumstances: Perinçek v Switzerland, no. 27510/08, 15 October 2015, at §275.

37. The High Court and Appeal Court fell into the same error as warned against in Perinçek. The s. 11 order was a rule formulated in general terms, addressed to the world at large. The domestic courts ought still to have considered whether a finding of contempt was justified in these specific circumstances, where: (i) there was no specific identification; (ii) jigsaw identification was only likely to identify to an imprecise, hazily defined, section of the public; (iii) and where there was a significant public interest in the reporting of the Salmond trial. Had it done so, it could not have failed to conclude that a finding of contempt was not necessary when balancing the various interests. That conclusion is further vouched for in the submissions below. The approach taken by the domestic courts is incompatible with the applicant’s Art. 10 rights.

ii. The test of “jigsaw identification” as applied in the applicant’s case breaches the substance of Article 10

38. The way in which the “jigsaw identification” was applied in the applicant’s case was not only unforeseeable, it also breached the substance of Article 10, in that it substantially curtailed the applicant’s ability to report on the salient details of Mr Salmond’s defence.

39. A review of the High Court Opinion is sufficient to indicate that even reporting of Mr Salmond’s defence at a relatively abstract level was sufficient, in the High Court’s Opinion to fall foul of the s. 11 order. In particular, the applicant was held to have breached the order by suggesting: (i) that a complainer CENSORED (that position not having actually been identified), §74; (ii) that a complainer was closely involved in CENSORED, §74; (iii) a complainer was CENSORED, §75; (iv) that a complainer had CENSORED, §77; (v) that a complainer CENSORED.

40. Of very significant relevance, the substance of Alex Salmond’s defence during his trial (and of the applicant’s reporting in relation to that trial) was not simply that the complainers had coordinated their accusations against Mr Salmond. It was relevant – and a matter of great public interest – that those individuals included high-ranking members of the Scottish Government and the SNP. In preventing the applicant from reporting even the relatively oblique details referred to above, the High Court rendered it effectively impossible to report on this matter in a manner which would be intelligible to the general public.

41. This was obliquely acknowledged by the High Court at §62 of the Appeal Court Opinion:
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.

42. The Appeal Court’s paraphrasing is not an accurate representation of the applicant’s statement at §54 of his first affidavit: Additional Document No. 10. No reference is made to an intention to tell the public of the identities. Read in context, it is plain that the applicant was seeking to be careful to avoid being in contempt while revealing the alleged conspiracy. As apparently accepted by the Appeal Court, it was indeed impossible to report details of the alleged conspiracy and of the involvement of high-ranking members of the Scottish Government and the SNP without falling foul of the excessive application of the “jigsaw identification” doctrine by the domestic courts.

43. Accordingly, the s. 11 order, as excessively broadly applied in this case, violated the substance of Article 10.

iii. The granting of less protection to the applicant as a new media reporter than the courts granted to what they deemed to be “bona fide” mainstream journalists

44. The applicant accepts at the outset that journalists and others who exercise their freedom of expression have duties and responsibilities, and that they cannot be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them a cast-iron defence (Pentikäinen v. Finland [GC], no. 11882/10, § 91, 20 October 2015). Those duties and responsibilities apply equally to those using the internet to disseminate news and ideas, and the potential impact of the medium of the internet will be an important factor in considering those duties and responsibilities (see, for instance, Delfi AS v. Estonia [GC], no. 64569/09, §§ 133-134, 16 June 2015; Magyar Tartalomszolgáltatók Egyesülete and Zrt v. Hungary, no. 22947/13, § 56, 2 February 2016).

45. But the corollary of that principle is that if journalists using the internet have the same responsibilities as those in the print or broadcast media, then they also have the same rights. That is now the clear and established case-law of this Court: see Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Zrt, both cited above; Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 168, 8 November 2016; Ahmet Yildirum v. Turkey, no. 3111/10, §§ 49 and 50, 18 December 2012; Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, §§ 51-52, 1 December 2015). That case-law makes clear that just as internet bloggers and other popular users of social media have the same duties that the established press has, they also enjoy the same protections under Article 10. The protections afforded to the freedom of expression of journalists apply even in circumstances where the publication expresses “hard-hitting criticism”: Sürek v Turkey, nos 23927/94 and 24277/94, 8 July 1999, §61. Equally, expression is protected if it is made in a “polemical and even aggressive tone”: De Haes And Gijsels v Belgium, no. 19983/92, 24 February 1997, §48.

46. Notwithstanding this clear jurisprudence, the High Court of Justiciary held that the applicant was not entitled to the same protections as “mainstream” journalists (whatever that may mean in the contemporary media landscape): Statement of Reasons for Refusing Permission to Appeal to the Supreme Court, Additional Document No. 17 at §4. The Appeal Court Opinion adopts the same approach, noting at § 77:
The petitioner attempts to portray himself as a journalist “in new media”, thereby securing what may be thought to be the added protections afforded to the press where a contempt of court has occurred. This is unconvincing. A journalist is a person who writes for or edits a newspaper or periodical; whether in hard copy or on-line. The petitioner is not such a person, nor is he an NGO or campaign group. An individual does not become a journalist merely by publishing his or her thoughts on-line, whether by operating a website, running a blog or tweeting. If it were otherwise almost everyone would be a journalist. That is not the case.

47. The distinction drawn by the court between “bona fide journalists” and those such as the applicant who are “purporting to be journalists” is entirely inconsistent with international human rights standards. As the UN Special Rapporteur on Freedom of Expression and Opinion noted in their Report on Promotion and Protection of the Right to Freedom of Opinion and Expression (11 August 2010) at §65, those in new media, who lack the formal protections afforded to those in the mainstream press by their employers, require greater not lesser protection by the law:
As citizen journalists are by nature more isolated, they are more vulnerable to attack than professional journalists. However, citizen journalists enjoy less protection than their counterparts in traditional media, as they do not have the support of media organizations and networks, in particular the organizational resources, including lawyers and financial resources, which can help shield them from harassment.

48. The granting, by the domestic courts, of less protection under Article 10 than is accorded to mainstream journalists, is a further violation of Article 10.

iv. The diligence of the applicant’s research and his acting in good faith

49. Having taken a descriptive, rather than functional approach to the question of the applicant’s status as a journalist, the High Court did not consider it necessary to assess the nature or extent of the applicant’s journalistic work. Had it done so, it should have concluded that the works in question amounted to responsible journalism, carried out in good faith and on the basis of diligent research, which is subject to the protections afforded by the Convention. In particular:
(i) The applicant has in fact published a substantial body of so-called “traditional journalism” in the mainstream press (a representative sample of his journalistic work is produced as Additional Documents Nos 26 – 31);
(ii) The applicant gave unchallenged evidence in his affidavits (Additional Documents Nos 10 & 11) of the information which he had obtained relating to the circumstances leading to the Salmond trial and the reasons why he considered it to be in the public interest to publish that information. His research was clearly detailed. He sought to verify matters as between different witnesses and assessed their reliability in accordance with UK Foreign Office criteria. The court ought to give weight to the diligence with which the journalistic work was carried out, whether or not the court agrees with the conclusions reached by the applicant: Braun v Poland, no. 30162/10,4 November 2014 at § 40. On the basis of this research, the applicant’s articles cannot be said to be completely without foundation: Timpul Info-Magazin And Anghel v Moldova, no. 42864, 27 November 2007, §36;
(iii) The applicant had made attempts to verify much of his research during the contempt proceedings by seeking an order for the Crown to disclose copies of messages between various high-ranking officials in the SNP which spoke to the coordination of witnesses in relation to the Salmond trial and which he had seen or the content of which he had been told from reliable witnesses: Additional Document No. 6. That application for disclosure was refused by the High Court: Additional Document No. 8;
(iv) The applicant also gave unchallenged affidavit evidence that his intention was to make this information available in a manner which did not fall foul of the s. 11 order by identifying any complainers.

50. The applicant’s reporting of the trial was motivated by his genuinely held belief that the prosecution of Mr Salmond was unwarranted and by his awareness of the wider political context in which the trial took place. As this Court stated in Cumpana and Mazare, at paragraphs 113-114:
Investigative journalists are liable to be inhibited from reporting on matters of general public interest … if they run the risk… of being sentenced to imprisonment or to a prohibition on the exercise of their profession.
The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression is evident…”

51. Had the Appeal Court considered the functional test in relation to the applicant’s status as a journalist, it ought to have concluded that the applicant had carefully and in good faith obtained and presented information from a number of sources with regards to a matter of significant public interest. The applicant was, in other words, carrying out responsible journalism. Whether the court considered his conclusions to be true or not, such expression is worthy of protection. The applicant was denied that protection, in violation of Article 10.

v. The sentence of imprisonment was excessive

52. The protection that should have been accorded to the applicant includes the Court’s consistent protection against the imprisonment of journalists for press offences. The sentence imposed by the High Court of Justiciary – believed to be the first imprisonment of a British journalist for a press offence in modern history- is plainly wrong, as it appears to have been based on a distinction which finds no support in this Court’s case-law and is in fact contrary to it, as set out above.

53. There are additional reasons why the sentence is disproportionate. Where freedom of the press is at stake, the national authorities have only a limited margin of appreciation to decide whether there is a pressing social need to take measures against the media: Stoll v. Switzerland [GC], no. 69698/01, § 105, 10 December 2007. For that reason, such measures against the media call for particularly close scrutiny, and a measure imposed by the national courts will not be proportionate if there are other means of achieving the same end that would interfere less seriously with Article 10. That principle applies where the press or others publish confidential information in the course of reporting on criminal proceedings or other matters of public interest. In such cases, any decision to impose a fine instead of custodial sentence (and particularly a fine at a relatively modest level) is always a weighty factor in this Court’s finding that the sanction is proportionate: Bédat v. Switzerland [GC], no. 56925/08, 29 March 2016 at § 81; and Stoll, cited above, §§ 153-161. The Court’s case-law in fact goes further. It is now clear in that case-law that the imposition of a prison sentence for a press offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the cases of hate speech or incitement to violence: Cumpana and Mazare v. Romania [GC], no. 33348/95, § 115, ECHR 2004-XI.

54. A finding of contempt of court against a journalist – including a journalist working in the new media – is clearly a “press offence”, as the Court has used that term in Cumpana and Mazare et al. The High Court of Justiciary should therefore have only imposed a custodial sentence on the applicant in exceptional circumstances, notably if other fundamental rights had been seriously impaired. “Seriously impaired” is a high standard and the examples given in Cumpana and Mazare, of hate speech and incitement to violence, reinforce that. That high standard was not met in this case, notwithstanding the comments at §79 of the Appeal Court Opinion. Whatever its effect on the fundamental rights of the complainers in the Salmond trial, the applicant’s conduct does not reach the exceptionally high level contemplated by this Court before a sentence of imprisonment will be justified, still less the 8 months’ sentence imposed in his case. Responsible journalism, such as that carried out by the applicant (in which there was an avowed intention not to identify the complainers), cannot amount to conduct comparable to hate speech or incitement to violence. To the extent that the Appeal Court implies that it does, it has fallen into error.

55. There are 2 further markers of the disproportionality of the applicant’s sentence: (i) The first is that, as a consequence of the Scottish legislation on release of prisoners, the applicant had to serve more of his sentence than if he were an ordinary prisoner. Reference is made to the application of the Prisoners and Criminal Proceedings (Scotland) Act 1993 at §6 of this Supplementary Statement. In effect, he served a longer sentence as a journalist than a prisoner given the same sentence for an ordinary criminal offence. (ii) The second additional marker of the disproportionality of the sentence is that the applicant is in poor physical health. The medical report obtained in the course of the domestic proceedings from Professor Kopelman is included with this application. It sets out the applicant’s various medical conditions and that the applicant suffers from recurrent pulmonary hypertension, an ultimately fatal condition which gives rise to sudden losses of consciousness. He also suffers from bipolar disorder and depression. The effect of imprisonment on this particular applicant was thus greater than it would have been for another journalist in sound physical health.


56. For these reasons the applicant respectfully invites the Court: (i) To declare the application admissible; (ii) To find that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (a) and (b) of the Convention; and (iii) To find that there has been a violation of Article 10 of the Convention.

We are shocked that the case has suddenly been dismissed by the Armenian judge at the European Court of Human Rights, sitting alone, essentially in a single sentence.2211101700 JUDGMENT from ECHR Registry (2) (1)

And that is the end of that. To say my legal team were stunned would be to put it mildly. Having perhaps seen more of the workings of international institutions from the inside, I was possibly a little less surprised. We had not been expecting anything to happen for probably a year, and had understood the Court had accepted the eligibility of the application. Those on the legal team with expertise in the ECHR wonder how this case came to be given to the Armenian judge – the court’s general practice is to hand cases to judges from a broadly similar legal milieu.

It appears the case never reached the stage of the Scottish authorities being required to respond. What is particularly worrying is the dismissal of the arguments at para 44 to 54 of our argument. It is now set in law that “journalists” are only those who work for the state and corporate media (there are resonances to the Assange case here), and that those in new media cannot expect the protection from long jail sentences.

The extremely wide definition of jigsaw identification as addressed in our argument at paras 38 to 43 is also now set in law.

While this road is now closed, the ramifications are so important that others are now taking up these issues, independently of me, and it is not the end of the affair. I shall let you know more when I can.

In the meantime, the unexpectedly sudden closure of the case has left me holding unexpectedly sudden legal bills. The difference between what we raised from the defence fund and the final total is about £47,000 (which may vary slightly as the last bill to come in is an estimate at present).

I shall forever be grateful to all those who contributed to the fight, and now that the fight is lost I realise it is much harder to expect people to help meet the costs of a failed cause. I also realise these are difficult times. But if anyone does feel able to help meet the final bills that would be hugely appreciated.

My work continues. I shall be heading down to London to cover the Supreme Court ruling on Scotland’s right to hold an Independence referendum, and then be off on a three week speaking tour of Germany, Austria and Slovenia, talking on the Assange case. If you subscribe to the blog you support both the articles and my activism.


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110 thoughts on “Strasbourg Cul de Sac

1 2
  • Isstatue

    Really sad to read this, I understood that the ECHR was independent. That may be the case, but a panel of judges are better than one judge for obvious reasons.

  • yesindyref2

    To all SNP MSPs and SNP Councillors:

    Be at one of the 11 or more rallies on Wednesday or totally lose my respect (previous important appointments acceptable – but make your excuses public in advance).

    To all SNP MPs:

    Organise your own rally outside the UKSC on Wednesday or totally lose my respect.

    To the First Minister of Scotland:

    Be at the Holyrood rally on Wednesday and talk, not about how great the SNP are blah blah blah, nor “We’ve never been nearer to Independence”, but thanking all those that come to that and other rallies (I’ll be in Glasgow) and with further plans whatever the decision is. Or totally lose my respect.

    Wha daur meddle wi’ me

    Posted this elsewhere and apparently the SNP have emailed all members urging them to support the rallies. (I’ve never voted Green or Alba so it’s up to their voters to tell them what to do)

  • Jimmeh


    The Appeal Court Opinion as reported above contains a number of statements that all end with CENSORED. Were these censorships present in the Court’s published opinion, or were they added in Craig’s report (above) of the opinion?

  • AndrewN

    It seems to me that the characters in the shadows who wield the real power in the world have their place men and women in every institution, organisation, political party, publication and company which has any power or influence over almost anything. I’m afraid I’m beginning to feel that it is now impossible for anyone to pursue anything which goes against the, so called, powers-that-be, or the narrative which they deem should be followed. I don’t see how any justice system or, so called, main-stream-media anywhere in the world and particularly in the West, can lay any credible claim to be independent. I’m afraid I think it has come that far and we’re virtually living in a dictatorship that is desperately trying not to look like one. Freedom to say and do approved things; anything else is ruthlessly stamped out. Craig’s cause is, unfortunately, not approved. I’m not saying we should give in, but it has become very difficult.

    I realise that this makes me seem like a crazed conspiracy nut, but I’m having difficulty reaching any other conclusions. If anyone can help me there, I’d be grateful.


    Craig, if you could indicate where I could find information on your coming speaking tour in Germany, I’d be grateful. I live in Germany and would try to attend one of the dates in Germany, if I can.

      • Goose

        Think Gore Vidal put it best :

        ‘I’m not a conspiracy theorist – I’m a conspiracy analyst.’

        The US/UK leaderships spied on all levels of the UN in an attempt to win a vote on second resolution authorising the use of force against Iraq, even digging dirt on the then UN Secretary-General and senior officials. The place supposed to be sacred in terms of respecting diplomats and officials, is it not?

        They saw nothing wrong in having the mobile number of a solid ally like Germany’s Merkel listed alongside Assad’s and other ‘enemy’ regimes’ leaders. Then there’s the OPCW whistleblowers and threats to their families. The fact is, brutes have risen to the top and there is no good vs evil in their minds, only results, outcomes. The system perversely favours the most ruthless people because they’re the ones willing to do anything to achieve a desired outcome. It’s the political checks and balances that have failed.

    • Clark

      AndrewN, I put a lot of time and effort into busting crazed conspiracy theory at this site, but your opinion does not look like crazed conspiracy theory to me. There’s a big difference between suspecting that a small number of key people in very specific positions have been covertly placed there or influenced, and loudly insisting that hundreds of thousands of ordinary workers, usually scientists, medical staff and other technicians, are all merely saying what they’re told to say by some shadowy elite, and that all data in the public domain is fake, and that anyone challenging such assertions must be either a sheeple or an agent of the conspiracy. Conspiracy theory ain’t what it used to be!

      • Ginger Ninja

        “big difference between suspecting that a small number of key people in very specific positions have been covertly placed there or influenced” – That’s EXACTLY what the people (myself included) have been trying to get through to you. You swatted people aside with FALSE accusations and insults!

        Remember me mentioning Owen Smith, the Pfizer/New Labour candidate? It turns out Pfizer ARE the new cat vets on the block. It turns out the US were doing Ukraine for the sake of their gas pipeline. It turns out Vanguard DO own Serco and that they’re involved in Private prisons, IMMIGRATION centres, 35B COVID apps, marine supplies (boats etc.)…

    • OG

      Agree. But it is not deliberate. It is a results of 2 – 3 generations of successful brain washing. Since mid-80s methinks. From the day you are born and your parents switch on the TV. And being generational, it will last at least another generation, or two. Or three. But multipolar world is being born, unless it is stillborn. The American Empire and the EU are still strong, they are trying to strangle it. How much more condescending can one be than Borrel, garden versus jungle. Or the rest of EU/USA political class/goons (representing the EU/USA people, let’s not forget!) telling the rest of world what to do and how to live. Proselytising one model to fit 8 billion people. Not going to change soon.

  • Ingwe

    Mr Murray, as a retired solicitor, I am absolutely gobsmacked that your application was so summarily dismissed by a judge sitting alone.

    Whilst never for a minute having the naïve belief that the justice system, including the European Court of Human Rights, dispenses anything about justice or fairness, the sheer brazenness of the single judge’s finding that the application is inadmissible, as the means of dealing with the matter, is nothing short of scandalous. Lawyers and fair minded members of the public should feel outraged and make their feelings known to all.

    I have further contributed to your legal costs and really hope that your reference to this matter not being at an end bears fruit and at some point we will hear about it.

    • Goose

      Not really all that surprising when your reputation precedes you and given the current EU zeitgeist.

      What do you think these judges will have heard about Craig Murray, anything good? Former UK diplomat with a grudge? Conspiracy theorist? Russia apologist (Syria)? Disinformation via this blog?

      This is the caricature Mr. Murray’s opponents have sought to create for him, is it not?

      As we all know, Mr Murray pokes holes in official narratives on this blog, holes that the press are deliberately refusing to raise. There’s been a major concerted attempt by alarmed officialdom to lump anyone questioning official narratives together as ‘conspiracy theorists,’ or disinformation dissemblers. Sadly, when people hear that term they think of the likes of David Icke, he of lizard people fame, Alex Jones and QAnon or Russian mischief. Unfairly lumped in with that wacky lot and Europe’s current enemy no.1, how could anyone possibly hope for a fair hearing?

      • Goose

        Of course an alternative explanation is that the UK govt’s constant threats to remove the ECHR from our law, “rip up Labour’s hated human rights Act’ in Tory speak, and “withdraw from the Strasbourg’s court’s jurisdiction altogether,” has spooked the judges from touching contentious cases. In a perfect world judges would assess each case with dispassion and objectivity, but as we’ve seen with the UN and OPCW, sometimes professionalism isn’t enough of a shield.

        Raab has in the last few days pulled back on those plans btw, saying he sees no upside to leaving the European Court of Human Rights and major, near instantaneous downsides; the ECHR is part of the fabric of the Good Friday Agreement for one, and woven into the devolution settlements. Our continued participation is also part of Johnson’s Brexit deal. Though the biggest problem was probably writing a new British bill of Rights – as if it confers the exact same rights as the convention, what would be the point, and if it doesn’t, why not?

        The British elite also probably feared a British bill of rights could be the first step towards a written, codified constitution, which could impose strict limitations on their current arrangements and freedom to act etc.

  • nevermind

    Can one be convicted for the same contempt twice after this ‘Inadmissability’?
    could one now quote the exact quotes that journalists used when they clearly gave far more obvious hints? including getting the actual coverage from the BBC and Sky and re publishing it?
    Kirsty Wark said this on such a such date and Sky News ensured that two women were mentioned, even shown one even shown on Tv.
    What of Ms Gaavellis inuendo and exposure?
    Not to speak of the Cctv pictures outside the court entrances?
    Anybody who appeared on a Cctv camera has the right to apply for a timed copy and all those walki ng past as these women went inside could apply to the courts for a copy, as could the wrongly accused.
    Im sure ET can slab me down on most points but double jeopardy should be passee for these purjurors are well known now.
    Can one access the finances of ECHR judges showing d9nations and free ‘educational’ journeys?

  • pete

    It is very sad that the appeal to the Court of Human Right has failed, I had expected a better outcome, it is particularly disappointing that the case was dismissed so curtly. It seems no other legal remedy is available and the only ones I can think of are reprehensible*. You have hinted at other actions, I cannot guess what they might be, but I hope that the matter will not rest as it is. I will shortly be making another relatively small donation to the appeal for funds and I hope others will be able to give also.

    I de feel that the curt dismissal of your case by Ahmen Harutyunyan ( Armen_Harutyunyandoes) rings alarm bells, he was the adviser to Robert Kocharyan, ( who does not enjoy a particularly good reputation, though if he has been influenced by any outside agency in his present judgement I do not know.

    In a not entirely unrelated matter I was just listening to Kirsty Wark on the BBC talking about freedom of expression, the dangers of social media and the need for internet regulation because of the disproportionate power of vested interests. As you know she presented a programme on the BBC sympathetic to the alleged victims of Alex Salmond, with no hint that there might be a political motive for the sexual allegations they made in their attempt to rubbish the career of Mr Salmond. The idea that this case was in any way related to attempts to sabotage any further advance in the fight for Scottish independence was not examined . You would think that if Kirsty believed in the principle of due diligence she would have examined the defence case, clearly she had no sense of balance, yet she still presents herself as a reporter.

    *You have previously asked us not to be vindictive in this matter, so be it.

  • C avery

    I dread to think of the cost you have gone to. They will fudge their decision no doubt but good luck. It would be nice if you could now move on from articles about yourself and Assange and start to write the refreshing articles you did before.

    • Peter Mo

      With so much stuff on the internet readers prefer authentic articles from reliable, knowledgeable and trustworthy sources preferably based on personal experience. Craig and Julian deserve the fullest possible support in these dark times.

    • T

      As you know that is but a small part of Craig Murray’s output. It would be very convenient tho if he could be encouraged to just shut up altogether about journalists being imprisoned for reporting state crimes/ conspiracies.

    • Roger

      move on from articles about yourself and Assange

      Craig Murray’s reporting of the Assange case is the main reason I (and I suspect others) started to support this blog with money.

      There was only one reporter present at the Assange extradition hearings, and that was Craig Murray. If there is a distinction to be made between “real journalists” and “pretend journalists”, then Craig Murray is the real journalist and the so-called “journalists” whose work appears in the Guardian, the Telegraph, the Times, the BBC etc are the fakes.

      The established media have changed since 2014. Where there used to be real news and critical analysis, there are now government press releases, NATO propaganda, and celebrity trivia. Those of us who want to be able to form our own evaluation of what the politicians are doing need to read bloggers like Craig Murray. He isn’t always right (of course) and he has a regrettable tendency to smear people he doesn’t like, but he tries to tell us truth that TPTB want buried: we desperately need that, and nobody in the standard media is doing it.

  • Roger

    The complaint cites Article 10.1 of the Convention (Freedom of expression).
    However, Art. 10.1 must be understood as modified by Art. 10.2, which reads in part “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law…”

    This is a pretty wide-ranging exception. It actually removes all effect from Art.10.1.
    Paraphrasing, “You have freedom of speech, unless your government passes a law restricting it.”
    I’m not a lawyer, but the way I understand it, Art.10.2 perfectly nullifies 10.1.

    • Walter Cairns

      Obviously it depends on the manner in which the escape clause is interpreted – this could be avoided by a practice direction that it should be interpreted narrowly in favour of freedom of expression The Human Rights Act in fact contains a clause to that effect in Section 12.

    • Roger

      There are two issues here.
      The more serious one, which is also relevant to Craig’s case, is that a person can be sent to prison for a substantial amount of time (more than 6 months) without being charged with a criminal offence and without a criminal trial. The trick is that violating an injunction made by a civil court is a matter which is dealt with by a civil court, not a criminal court. The usual protections – conviction requiring proof beyond reasonable doubt, and availability of a jury trial – do not apply. They apply only to proceedings in a criminal case. The standard of proof is much lower in a civil trial.

      This legal wheeze was invented in the USA, and has been used to confiscate anything, but usually cash, (Google for “civil forfeiture”) from anyone, without any trial at all.

      In my opinion it is fair to say that in a country where a person can be imprisoned for a significant amount of time (more than 6 months), or a person’s property taken, without any criminal charge and without a trial meeting the “beyond reasonable doubt” standard, that country no longer can claim the “rule of law”.

      One has to be careful with the limits here, because it can sometimes be reasonable to detain a person without trial during a criminal investigation. But most politicians are in politics for power; they will always try to expand the power of the State, and diminish our rights and freedoms, unless the citizens push back.

      Unfortunately, most people aren’t aware of this or don’t care – and the mass media no longer do their job of telling them.

  • Dodds

    That is both shocking, deeply worrying and sad.
    Very sorry to hear that for you personally, Craig, after these last two plus years. The ruling has sinister potential for more journalists and defenders of truth and right to express opinions informed, researched or intuited.
    Most real journalists don’t work for the bought press.
    Power to your pen, Craig! Good writing lasts longer than stupid politicians and their cronies.

  • Giyane

    Craig’s argument is that it was impossible to know the criteria for being in contempt of the anonymity order. But that is now made clear by Strasbourg. In cases of rape which are politically motivated, the political motivation is the Law, not the consideration of justice.

    He didn’t get locked up for breaking the Law, he got locked up for questioning the arbitrary decisions of political power. Post Blair, democracy.means that whoever wins an election can do whatever they like.
    Elective fascism. The quintessence of Thatcher’s genius.

    Move fast and break everything. Who are journalists to.pick over the arbitrary decisions of mandated power?

  • John Cleary

    Your blog, censor me again if you want.

    But you should have listened to me back at the beginning of March.

    I’m going to quote myself again:

    If you actually read the Human Rights Act you will find that the European Convention on Human Rights has been adopted into UK law article by article. You will also find that Article 13, the right to an effective remedy, is missing. And it’s no mistake. The very antithesis of the Treason Felony Act of 1848,The Human Rights Act of 1998 had to be strangled at birth. Under British law we human beings are entitled to a theatrical performance of great skill that resembles due process. But we cannot have “law and justice in mercy”, the essence of the Coronation Oath.
    When it comes to British law, that’s up to the Brits themselves of course. If the House of Lords and the House of Commons want to carry on fucking over their people, that’s up to them. Fine. I’m Irish.
    But of course it’s not just the Brits, is it? Those poor Iraqis murdered, tortured and abused by the Brits have also been deceived into putting their hopes into the Human Rights Act. They don’t know that Blair quietly murdered it back in 1998, do they?

    That was a part of something I sent to Kofi Annan in 2004.
    Two months later he went on record to declare the Iraq invasion as an illegal breach of the UN Charter.

    Like those Iraqis you have no right to an effective remedy in the UK.

  • Stevie Boy

    Shame that good people are still labouring under the illusion of democracy, freedom of Speech and Justice in the UK. Fighting the regime using the rules of the regime is never going to work out. We have been sold out and are being stripped of our assets by those who supposedly govern our country. The enemy is in Westminster, Brussels and Washington. The only justice in the current environment will come from the people using pitchforks and gallows.

    • Spiritus Giorgio Rosa

      How is yet more violence the answer? Surely if it was, then human beings wouldn’t have any problems anymore? No, we need to present an improvement as the alternative to the status quo and you don’t improve upon violence with more violence.

      When all other democratic avenues have been exhausted, a better alternative is something more like Giorgio Rosa’s idea.
      At this point, the only other democratic avenue I can think of that remains to be explored is petitioning the OHCHR.

  • Mac

    Nicola does not have anywhere near ‘the reach’ for this.
    It is the people behind her, the ones behind the Salmond stitch-up.
    You and Alex got the Assange ‘justice’ system. Much more than I thought would ever happen… it is wild.
    Who else would have the sheer effrontery to attempt such an outrageous and stitch-up of a former FM?
    Who can pull strings like this ‘judgement’ above?
    Our democracy, our chosen future is nothing to them. ‘Fairness’ (or truth) as a concept is something they seemingly despise.
    I feel like you are fighting Marquess of Queensberry rules while they are throwing clouds of agent orange in your face while booting you in the happy sack.

    • Lysias

      William Barr, who recently had a second term as Attorney General of the United State, was in a government meeting during the presidency of George H.W. Bush that a friend of mine happened to attend. He said in the meeting, “Fuck international law!”. Barr’s first term as Attorney General was during that earlier presidency. I don’t know whether, when he made that remark, he was already Attorney General, or whether at that time he held some other position in the so-called Department of Justice.

      These are the people who rule us. Even the lawyers. Or perhaps I should say, especially the lawyers.

  • Clark

    The purpose of judge Armen Harutyunyan’s – it can’t be called a judgement. The purpose of this summary dismissal is not to victimise Craig. That could have been done with a more convincing appearance of justice by hearing the case, and then finding against Craig, in whole or in part.

    No. The purpose is twofold.

    The first is to prevent any further publicity and hence scrutiny of the stitch-up of Alex Salmond.

    The pre-2014 Scottish Independence campaign was very much an anti-military dominance campaign. Nearly all the Independence supporters wanted rid of Westminster’s nuclear weapons on the Clyde, and wanted to detach from Westminster’s incessant warmongering and aggressive foreign policy. “Bairns not Bombs” signs were everywhere, and Craig’s speeches were very warmly received. Alex Salmond led from this position and it was extremely popular; Westminster’s nukes had to go.

    SNP policy changed after Sturgeon became leader; the nukes could stay so long as Westminster paid Scotland to keep them there, and the Scottish Government would echo Westminster policy regarding NATO and its perpetual wars, hot and cold. This is why Salmond had to be smeared and made unpopular; he was a threat to NATO’s global military domination which NATO’s nukes underwrite.

    The second purpose was to intimidate the independent media, which is also pro-peace and pro-diplomacy.

    Note the consistent convergence between military dominance and control over hydrocarbons. Liquid fuel is a critical war-fighting resource – whichever side runs out first loses, plain and simple. It’s down to energy density; there is simply no replacement for liquid fuel.

    • J

      “there is simply no replacement for liquid fuel.”

      Hydrogen. Solar powered hydrolysis of seawater. Equatorial coastlines have abundant seawater and sunshine. Whoever controls those coastlines probably controls the future.

      • Clark

        You can just suck hydrocarbons out of the ground, whereas hydrogen production is much heavier on surface infrastructure, which the belligerent would have to defend.

        Although the energy per unit mass of hydrogen is somewhat higher than those of the hydrocarbons, hydrogen won’t liquefy above minus 240 centigrade, making its practical energy per unit volume orders of magnitude lower – you need to store it (safely) at hundreds of atmospheres to make it comparable. Hydrogen’s also a pain; highly explosive, too mobile, and diffuses into and embrittles steel. Like they say, “the best way to make hydrogen into a practical fuel is to bond it to carbon”, but hopefully by now we all acknowledge the problem with that. Magnesium hydrides? Ammonia, maybe? There were some ammonia powered trams in the 1800s.

  • stuart mctavish

    Remember when it took 27 judges from ECJ to rule that UK could revoke its resignation from EU?

    i’d have been all for said revocation at time if Holyrood had flexed it muscles and put a decent effort into reinforcing Ian Blackford’s promises ie by invoking the sovereign prerogative of Scots in the matter, point being that enough judges can clearly be mobilised when there is no obvious conflict of interest in doing so (although what the implication is for the contemporary value attributed to human rights and Canadian emergency act inquiries, etc might be anyones guess)

  • kashmiri

    Sorry and shocked to read this. As they say, it’s not what you know but who you know. You might have had a legal team with excellent knowledge of the law; yet they obviously did not have the needed connections in Rome. You know very well how such institutions work….

  • uwontbegrinningsoon

    I understand that the Supreme Court would not hear an appeal in your case. I did wonder what the view of the ECHR would be to the domestic court’s decision not to intervene. I am sure that you, personally, are stunned by the outcome. It does not feel like a fair and just outcome.

  • John

    Might help you think twice before acting in a reckless manner and making loads of money for lawyers – and I am a retired lawyer. The ECHR is not a court of retrying cases and does not act as a court of appeal in relation to national courts; it does not rehear cases, it cannot quash, vary or revise their decisions.

    • Sean_Lamb

      It is true that it is not a court of appeal, but when a judge imprisons someone for something they wrote they need the consider the ECHR protections at the time including the following tests?

      1. Was the interference in accordance with a “law” that was sufficiently accessible and foreseeable?

      2. If so, did it pursue at least one of the “legitimate aims” which are exhaustively enumerated (the list of which varies slightly depending on the Article)?

      3. If that is the case, was the interference “necessary in a democratic society” in order to achieve that aim? In other words, was there a relationship of proportionality between the aim and the restrictions in issue?

      As far as it goes (1) the law was definitely accessible. Was it foreseeable? I would have thought that given it was almost impossible for the general public to determine identities then clause 5 would have applied:

      “5 Discussion of public affairs.
      A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

      But of course you would need to look at case law as well which I am not familiar with.

      As far as (2) – yes it was included in the legitimate aims.

      That leaves (3) – was the imprisonment of Craig Murray “necessary in a democratic society”? I have to say I don’t see it. The claim he was making that the accusations against Mr Salmond were a stitch-up by politically appointed staff to kneecap a nascent competing political party were a matter in the public interest and outweighed the risk that a small number of people might be able to identify the complainants, which is after all probably true of all reporting on a case. And the fact that the person who makes the prosecuting decision actually sits in the Cabinet is also problematic.

      It would have been interesting to see the case discussed and a decision on its merits delivered even if it ended up being rejected. Having it rejected as manifestly unfounded is surprising.

      • Jon Cofy

        Sean Lamb

        I read the lawyers application to the ECHR & it left me stone cold

        In this short post you appear to have nailed it

        “5 Discussion of public affairs.
        A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

        The publication of the names of the names of the complainants in no way prejudiced the proceedings against Alex Salmond
        All it could do was undermine the complainants confidence in the prosecutor
        Complainants were drawn into the scheme by promises of anonymity
        After that they were witnesses & were obliged to give evidence regardless
        The risk the prosecutor faced was that witnesses might break ranks & reveal the truth that he was obliged to present anyway

        The reason for these suppression orders is that anonymity is supposed to encourage future complaints but these are future events

        This raises the question of whether a judge can jail a person for prejudice to a future unspecified event or even make an order that does not relate to the matter before her
        Of course there’s the statute but it would appear to face the same issue
        Suppression of name orders may only be valid if the publication of the name directly prevents testimony from being given
        That circumstance is hard to imagine

        Simply put Mr Murray did not prejudice the trial of Alex Salmond

        Mr Murray also fits perfectly into the convention in the other ways you describe which would apparently require a reasoned response

        The Armenian judge didn’t answer any questions but I don’t see that they were asked ie
        Was the suppression order legal & if so
        did Murray prejudice the trial & if so was the prejudice merely incidental & if not
        was Murray justified by law

        If Armen Harutyunyan had been directly asked to answer questions he may have tried
        The problem is this is an attempt to prosecute the UK for a minor breech of a convention
        When the UK is holding thousands of Scottish Nationalist in concentration camps & torturing them to death the ECHR will likely react although they didn’t seem concerned about what happened in Ireland

        One person who survived 4 months of illegal imprisonment didn’t even warrant consideration

  • Bill Craig

    As others have observed, this raises questions about the extent of “establishment” control of society. I have personal experience of being seen as disrespectful to people in what they might have described as the “higher echelons”, particularly certain members of the judiciary. A panel of judges would, I think, always be preferable.

    Perhaps we can take consolation from the fact that courts interpret the law, whereas the law is made by parliaments and governments. One need arising from this case, is for a carefully worded law which defines “journalist”, although any optimism that our parliament could do that has to be conditioned by the current gender-recognition bourach in Holyrood.

    Happily, and sadly, I’ve made a small donation to your defence fund.

  • Jon Cofy

    The Dorian Jigsaw or
    Without scrutiny English Law simply doesn’t work

    Mr Murray’s lawyers are consistent in two regards
    a) Losing
    b) Charging heavenly fees

    Leeona Dorian made an order prohibiting naming complainants in a politically motivated prosecution
    Dorian’s order clearly violates the “Principle of Open Justice”

    A Scotsman bared his arse at Leeona’s unlawful order published the names, was prosecuted, did time & went home (Victim 1)

    Dorian & her prosecutor also set about using the same unlawful order to silence another
    The second victim sought to expose the crazed sexist witch hunt being conducted in her court under the guise of a criminal prosecution

    Dorian had imprisoned victim 1 without her unlawful order being challenged but she still faced significant obstacles to silencing victim 2
    For one thing Victim 2 didn’t publish any name. Even Dorian admits that
    Further other journalists had already identified complainants

    However in this witch hunt Dorian delved into the dark arts and created a magical jigsaw puzzle able to identify unknown persons to other unknown persons entirely within Dorian’s own mind

    The Dorian Jigsaw is played by publishing any fact before or after a suppression order is made
    If the Dorian type judge opines someone could be identified then off to jail we go

    Note that no-one may have been indentified
    Or if the person has already been identified we are guilty anyway

    The Dorian Jigsaw can provide many benefits to the legal industry
    It provides
    a) the judge with extensive power to avoid scrutiny & arbitrarily jail critics
    b) prosecutors with cover to pursue secret agendas & persecute innocent people
    c) clients for defence lawyers due to the inclination of innocent people to deny guilt
    d) the prison industry with a stream of naive docile inmates

    The Council of Europe

    Armen Harutyunyan is an erudite Armenian who has studied English Law
    He almost certainly would know of the Principle of Open Justice
    As an Armenian he would be familiar with the courts of the USSR which also purported to be Open
    The difference is that English courts are (were) subject to criticism & Soviet courts were not

    In the Soviet mindset protecting the reputation of the court by arbitrary means was Dorian’s duty
    To help Dorian to silence comment the prosecutor alleged contempt of court

    The contempt was manifest
    In Soviet Courts the accused is supposed to confess to guilt on all counts & beg for leniency or even harsh punishment
    Any journalist critical of the farce being played out in such a court was therefore also manifestly in contempt
    From an Armenian Soviet era perspective Dorian conducted a legitimate legal proceeding including her duty to suppress adverse information

    So to assert to Armen Harutyunyan that Dorian erred by applying her unlimited power to imprison people to suppress criticism is absurd
    It could be argued that the Dorian Jigsaw meets the legal standards of the former USSR but even there it has a problem
    The contempt was established when the accused failed to confess & reporting that failure was contempt on the part of victim 2
    Surely the accused should also have been jailed for contempt without need to create Dorian’s Jigsaw

    The Council of Europe?

    Armenia’s membership in the Council of Europe is almost inexplicable
    Armenia is a landlocked country blockaded by Turkey & Azabaijan
    Its main trading partner is Iran

    Armenia is not in Europe, not in the EEC & not in NATO but joined the Council in 2001 opening the way for Armen Harutyunyan to become a judge of the European Court of Human Rights

    The Council of Europe had 47 member states until Russia was expelled. There are war zones, insurrections, refugees & general chaotic dystopia

    Just what reaction did Mr Murray’s lawyers expect?

    Their application is premised on Dorian’s suppression order that contravenes a fundamental principle of English law

    Armen may have seen the illegality & realised that whatever followed was necessarily ill founded

    Armen’s response amounts to a suggestion that the lawyers go study law or do what the soldiers on Snake Island suggested the Russian Warship do

    The lawyers & others have made lots of money from the Dorian Jigsaw demonstrating it’s value to the legal industry

    It appears that ultimately Mr Murray’s supporters will foot the bill for Dorian’s Jigsaw

    Is Dorian’s Jigsaw similar in function to the Mirror of Erised at Hogwarts?
    The mirror that showed Harry Potter’s deepest desires?

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