On 14 August 2008 the Independent newspaper published together three comments on the Russian invasion of South Ossetia. They were by John McCain, Mikhail Gorbachev and (checks notes) Craig Murray.

I am proud of my comments all these years later, both by their prescience and by my consistency of view until today. This is what I said:

Craig Murray

Russia’s actions are illegal but the US and UK, who launched an equally illegal and much more devastating invasion of Iraq, are ill-placed to be outraged. A de facto Russia annexatioin of South Ossetia must not be permitted, unless we eventually want a war of Eastern Ukraine.
NATO is part of the cause of the problem, not the solution. By encircling and humiliating Russia, NATO has created the climate in Russia so favourable to Putin.

If you wonder what the two other gentlemen said:

John McCain

I’m not saying we are reigniting the Cold War but this is an act of aggression which we didn’t think we would see in the 21st Century. Of course we have to deal with Russia and deal with Putin. But it has to be on a realistic basis.
I think that it’s very clear that Russian ambitions are to restore the old Russian Empire. Not the Soviet Union, but the Russian Empire. Russia no longer share any of the values and principles of the G8, so they should be excluded.

Mikhail Gorbachev

By declaring the Caucasus – a region that is thousands of miles from the American continent – a sphere of its “national interest”, the United States made a serious blunder.
Of course, peace in the Caucasus is in the interest of everyone. But it is simply common sense to recognise that Russia is rooted in the region by common geography and centuries of history.
Russia is not seeking territorial expansion, but it has legitimate interests in the region.

I have spent the last two weeks writing a lengthy and very considered piece about Ukraine. I hope I might finally publish it today.

You be the judge.

At my appeal last week against imprisonment for journalism, judges opined that my sworn evidence at my trial had been “so self-evidently untrue as not to require cross-examination”, and even that my evidence had never been accepted by the court as existing. They also stated that contempt of court being “summary proceedings”, there was no need to hear my evidence before sending me to jail.

Yet, as I swore on oath, I quite assure you every single word is true. Here it is, as censored by the Crown Office to protect the identities of those who made false accusations against Alex Salmond.

No contrary evidence was produced by the Crown at trial from anybody to refute my evidence. I ask you to answer two questions:

1) Do you think this is “so self-evidently untrue as not to require cross-examination?
2) Why do you think the legal Establishment are so anxious that this evidence does not exist at all?

AFFIDAVIT
of
CRAIG MURRAY, redaction Edinburgh, EH10 redaction

At Edinburgh on the TWENTY FIFTH day of AUGUST 2020, in the presence of David James Finlay Halliday, solicitor and notary public, Halliday Campbell WS, solicitors, redaction, Edinburgh, EH16 redaction, COMPEARED CRAIG MURRAY, redaction, Edinburgh, EH10 redaction who being solemnly sworn hereby DEPONES as follows:-

1. My name is Craig Murray, I reside at redaction, Edinburgh, EH10 redaction. I am 61 years old, a retired diplomat, now a historian and journalist.

2. I was Rector of the University of Dundee (2007-2010) and an Honorary Research Fellow at the University of Lancaster School of Law (2005-9). I am the author of books including Sikunder Burnes, Master of the Great Game (2017), The Catholic Orangemen of Togo (2010) and Murder in Samarkand (2007). The website academia.edu lists over 130 academic peer reviewed articles referencing my work.

3. I was British Ambassador to Uzbekistan 2002-4. Other roles included Deputy High Commissioner to Ghana (1999 – 2002), Deputy Head (Equatorial), Africa Department FCO (1997-9), First Secretary, British Embassy, Warsaw (1993 – 1937), Head of Maritime Section, FCO (1991-3) and Head of Cyprus Section, FCO (1989 -91).

4. Special responsibilities included Head of FCO Section, Embargo Surveillance Centre (1990-1), Alternate Head of UK Delegation to UN Convention on the Law of the Sea (1991-3) and Head of UK Delegation to the Sierra Leone Peace Talks (1998-2000).

5. I have been awarded the Sam Adams Award for Integrity (USA) 2005 and the Primo Alto Qualita Della Citta di Bologna (Italy) 2006 and am an Officer of the Order of Mono (Togo). I have turned down three honours from the British state, OBE, LVO and CVO on grounds of Scottish nationalism, the last two being in the personal gift of Her Majesty the Queen.

6. As a journalist in new media, my output has been focused on my own website, which is nowadays my primary source of income. My articles have however been published in newspapers including the Guardian, Independent, Daily Mail, Mail on Sunday, and very many others both nationally and internationally.

7. I have been shown paragraph 11 of the Lord Advocate’s written submissions, which suggest that I published material not in the public domain because the stated purpose of my blog is to use insider knowledge of government to interpret contemporary events.  What I said is not a reference to acquiring material from inside the Scottish Government and publishing it.  It is a reference to using my experience at the Foreign and Commonwealth Office to provide authoritative commentary on, and interpretation of, contemporary events, whether in Scotland, the United Kingdom or the wider world.

8. In August of 2018 I read the salacious account published by the Daily Record of an alleged sexual assault by Alex Salmond on a civil servant in Bute House. Aspects of the story appeared to me highly unlikely, in particular the willingness of the civil servant to simply obey his instruction of going to the bedroom and lying on the bed. On August 26 2018, I therefore published an article on my blog expressing this opinion.
https://www.craigmurray.org.uk/archives/2018/08/a-short-article-not-mentioning-alex-salmond/

9. I made no attempt to discover the identity of the civil servant involved, but I did make strenuous efforts to discover who had leaked the story to the media, calling and meeting a wide range of contacts in Edinburgh and Glasgow. To my surprise, I discovered with a high degree of certainty that the leaker was Liz Lloyd, Chief of Staff to Nicola Sturgeon. I also discovered that she had a personal history with the journalist concerned and did not link it in my mind to anything wider than that.

10. In January 2019, I published an article following Mr Salmond’s resounding victory in his judicial review case against the Scottish government. My article focused on the abuses of civil service procedure in the pursuit of Alex Salmond by Leslie Evans and Judith Mackinnon, and called for them both to be sacked.
https://www.craigmurray.org.uk/archives/2019/01/the-salmond-stitch-up-the-incredible-facts-and-why-mackinnon-and-evans-must-be-sacked/
11. The article concluded that if Nicola Sturgeon failed to act against them, it might indicate that she was herself involved in the campaign of false allegation against Alex Salmond.

12. As a result of this article, Alex Salmond, with whom I had only very slight prior acquaintance, invited me to meet him in the George Hotel in Edinburgh. Here, for the first time, he told me that Nicola Sturgeon had been behind the process designed to generate false accusations against him. He said as well as Mackinnon and Evans, Liz Lloyd was responsible for the actual orchestration.

13. Mr Salmond further said that the Scottish Government had made every effort to withhold vital evidence from Lord Pentland, who had ordered a process of commission and evidence on the available documentation. It was on the day that witnesses from Nicola Sturgeon’s private office were due to give evidence as to her own knowledge and involvement, that the Scottish Government suddenly conceded the case rather than have this evidence heard.

14. Mr Salmond further told me that there was a massive police operation underway to try to get accusers to come forward against him. This was going to ludicrous lengths. He showed me an email from one woman to him, in which she stated that she had been called in and interviewed by the police because many years ago Alex Salmond had been said by another person to have been seen kissing her on the cheeks in a theatre foyer. The woman stated she had told them it was a perfectly normal greeting. She wished to warn Alex of the police fishing expedition against him. He understood that over 400 people had been interviewed by the police.

15. He said those interviewed by the police had included all the personal protection officers he had as First Minister. They had all said they had seen him do nothing wrong, and they were watching him very closely, as was their job. At least one of these policemen, now retired, had been given a rundown of the evidence by the policeman sent to interview him. The retired officer challenged the interviewer as to how he could be involved in such a corrupt stitch up. He stated that the fact it was a stitch-up was evidenced by the fact all the accusations emanated from the same small coterie, there was not a single accusation from an outside or independent source.

16. That observation stayed with me as I followed and investigated the case over the next year and it remains a key fact. I was strongly inclined to believe Alex Salmond. I am of much the same generation of the Scottish political class and it is a small country. We tend to know each other or of each other. I had never in forty years heard a hint of gossip surrounding Alex Salmond and sexual behaviour, with the single exception of a rumoured redacted attachment with redacted. But that had not involved any rumour of unwanted advances by Mr Salmond, quite the opposite ; it was rather widely believed in nationalist circles that she had set her cap at him. The common joke was that redacted was a booby prize.

17. It had been impossible to follow the judicial review case without concluding that a very unfair process had been undertaken against Alex Salmond, and that it was impossible this could have happened without the knowledge and approval of Nicola Sturgeon. That was a shocking realisation to an Independence supporter like myself. But what Alex Salmond was now telling me went further, which was that Nicola Sturgeon was involved in the orchestration of fake complaints against him. This was fairly astonishing on first hearing.

18. I asked what the motive could be. Alex replied that he did not know ; perhaps it lay in King Lear. He said that he had genuinely intended to quit politics and had lined up a position as Chairman of Johnstone Press, which had fallen because of these allegations. But he had retired from the party leadership before, and then come back, and perhaps Nicola had concluded he needed a stake through the heart. He had made plain to her that he was not happy with her lack of progress towards an Independence referendum following the Brexit vote.

19. Alex Salmond was plainly very unhappy. He said that he believed that Nicola was banking on his loyalty to the SNP and to the Independence movement, thinking that he would not split the party by revealing what or who was behind the allegations against him. At this crucial time, a Salmond/Sturgeon split could derail the chance for Independence and have a truly historic effect. I asked him directly whether this meant he did not want me to publish this information at the moment. He confirmed I should not publish. This conversation was in confidence but, as my blog was highly influential within the Independence movement, he thought it vital that I know the truth as matters develop.

20. I told him that Sturgeon’s hostility towards him seemed to be longstanding. I recounted a story I had been told by Robin McAlpine, of an occasion shortly after his resignation when Alex Salmond had arrived at the Scottish Parliament for a function and the First Minister’s Office had refused to sign him in. Alex replied that this was true ; it was particularly embarrassing as the occasion had been to hand over a large cheque for funds raised for charity following a campaign he had initiated as First Minister. They had been forced to do the photoshoot in the rain outside instead.

21. I advised Alex Salmond that he should continue to fight any allegations vigorously and should not worry in the least about any consequential damage to the SNP or the Yes movement, which were both very robust. If the SNP leadership were behind the attacks on him, it was much better that people know.

22. I also told him I knew exactly how he felt, having been myself subject to false accusation when as British Ambassador I blew the whistle on UK Government collusion with torture in the War on Terror. To be subject to a fit-up, particularly by those you knew and considered friends, was extremely disorienting. I was probably one of the few people in the UK who knew precisely how he felt.

23. The meeting concluded with Alex making the observation that he blamed himself for having established far too centralised a system of power in Scottish Government and the SNP, and not taking account of how far that was open to abuse by a person of ill-will.

24. In June 2019 (I do know the precise date, time and venue but to give it might aid identification of my source with deleterious consequences for them) I met with a person well known in the Independence movement who informed me that they had been present at a meeting with Nicola Sturgeon and key members of her inner circle, including ministers, which had gamed the possible outcome of the Salmond affair. My source was trusted as a Sturgeon loyalist,

25. The view of the meeting was that if Alex Salmond could be convicted on just a single count, he would be destroyed politically forever, which was explicitly the objective. He would be on the register of sex offenders and branded a rapist in the public mind, even if the actual offence convicted was knee touching. I was also told that the Law Officers were confident of a conviction for something, which is why the multiplicity of charges. They apparently advised that, faced with a whole raft of charges, juries tended to compromise in the jury room to reach agreement and convict on a lower charge.

26. What struck me, both at the time and still, was that it was impossible to understand the account as given without it involving of necessity corrupt collusion between Nicola Sturgeon’s ministers and aides and the Crown Office over the handling of the Salmond case and the charges being brought.

27. I directly asked my source why they had been regarded as so trustworthy as to be included in such a meeting. They replied that they were generally highly supportive of « Nicola » and her leadership and had been on the fringes of her inner circle for a while. But they were not happy with the « fitting-up » of Alex Salmond, which they described as « unnecessary ».

28. I was aware that in telling me this my source was playing a double game. I was a British diplomat for over twenty years and a member of the Senior Management Structure of the FCO for over six. Obtaining confidential information from inside government circles, and assessing the credibility of the source and the information, is a core skill set for a diplomat, and I was a highly successful diplomat, becoming the UK’s youngest Ambassador.

29. I considered, using the FCO learnt criteria, the access and motivation of my source and my background knowledge of them, all of which I researched further. My conclusion was that this was a highly credible source with good access. This also squared with my impression ; they had seemed straightforward and no inconsistencies had appeared under question. I had known them for some years. I believed their account, and I still do.

30. At a later date, but substantially in advance of his trial, I informed Alex Salmond in broad terms of this conversation.

31. Equally crucially, this proved not just entirely consistent with all the further information I received, but a good explanation of it. In March 2020 I had explained and briefly shown to me by a source with good access the content of evidence related to the Salmond trial, much of which was to be excluded from the trial itself by the judge as collateral.

32. This material included the message from Peter Murrell, Chief Executive Officer of the SNP, to Sue Ruddick, Chief Operating Officer, to the effect that it was now the right time to put pressure on Police Scotland to move forward against Alex Salmond. It included the message from Ms Ruddick (I do not recall the recipient) to the effect that the problem was with Police Scotland refusing to detail precisely what evidence they required. If they would specify, then she could get that evidence for them. It included the message from Leslie Evans, Permanent Secretary to the Scottish Government, after the Scottish Government had abandoned its judicial review case, to the effect that they had lost a battle but won the war.

33. It included the message from redacted to another complainer to the effect that she had a plan that would enable them to have a strongly detrimental effect on Alex Salmond but have anonymity. It included the message from redacted to the effect that she did not want to attend any further meetings regarding a possible complaint if redacted were going to be present as redacted made her feel pressured rather than supported. It included the message from Ian McCann to the effect that he would sit on redacted‘s complaint until it became necessary to deploy it. It included a number of messages from redacted which gave the impression she was playing a central role in orchestrating and organising complainers, but I do not recall any specific details of those particular individual messages.

34. Even more crucially, this account was consistent with what actually happened at the trial. In common with many observers, I was unimpressed by the performance of Alex Prentice for the prosecution and the truly pathetic and hopeless nature of a number of allegations. The inclusion of daft allegations like the « hair pinging » incident or the easily disproved hand on the knee in the car, are universally agreed to have weakened rather than strengthened the prosecution’s case when there were much more serious incidents admitted to have some basis in truth. Nor did these minor incidents contribute to « Moorov », being of a much lesser order than the main charges. The only way I could make sense of the Crown’s approach was in the light of what had been explained to me months earlier, the idea that the jury might settle on a lesser charge as a form of compromise. So here again, as in other ways, subsequent events are entirely consistent with what I was told in June 2019, and I am confirmed in my belief of corrupt collusion between the Crown Office and Nicola Sturgeon’s office.

35. I should state that I did not take notes at any stage in this investigation, in any meetings, and I am speaking entirely from memory here. That is why I am not giving verbatim messages but my memory of them. I have no doubt my memory is correct in essence. All of these messages are in the Crown’s possession and I trust will be produced to support this statement.

36. Again, my not taking notes reflects FCO training not to write down sensitive information outside of a fully secure environment but rather to remember. In a case involving sexual abuse, I was particularly concerned not to take notes that, if lost or overseen, might identify individuals.

37. In August of 2019, I learnt that my friend the veteran investigative journalist Laurie Flynn had been digging into the events which led to the Court of Session judicial review, and had an article written. I offered to host it on my blog. It was extremely interesting and highlighted the role of redacted, a name that was coming up again and again.

38. I therefore published Laurie’s article on 23 August 2019, and added further comments particularly on the role of redacted, whom I was beginning to consider a rather sinister figure. At this time I had no idea redacted. Indeed, it is very strange indeed, and quite out of order, that redacted was such an active member of the Scottish Government judicial review committee which had decided to contest the civil case, at great expense, and was to decide to concede it, at great expense.

39. In November 2019, I was told by a senior contact within the SNP whom I have known for many years (not the same source from June) that a deal had been struck between Peter Murrell, redacted and redacted whereby redacted would make an allegation of attempted rape against Alex Salmond, and Murrell would redacted return to front line politics redacted. The cold-bloodedness of this infuriated me. By around this time I had learnt the identities of, I believe, all of the complainers, not from a single source but by asking around my contacts. It was not difficult.

40. I realised that something extraordinary and morally disgusting was happening. If the public knew the identities of those being put up to make allegations, and just how close to Nicola Sturgeon they were, they would immediately understand what was happening. But the convention protecting the identities of those making allegations of sexual assault, made such allegations the perfect vehicle for a positive campaign to frame on false charges, while the perpetrators of this conspiracy to pervert the course of justice had the protection of the courts against exposure.

41. That accusers included :

redacted Nicola Sturgeon. First Minister of Scotland Leader of the SNP ;
redacted Ian Blackford, UK Parliamentary Leader for the SNP ;
redacted Angus Robertson, Former UK Parliamentary Leader of the SNP ;
redacted

It would cause a massive political storm were it known to the public, and raise major and in fact fully justified suspicions about motive. The combination of the anonymity of these accusers, and the exclusion from the trial on the grounds of « collateral evidence » – and continued intention of the Crown Office to suppress – of the messages implicating Peter Murrell and Sue Ruddick in the conspiracy, has resulted in the denial to the Scottish public of information which there is the strongest possible public interest in knowing, in order for them to judge the actions of those in power over them.

42. The weight of all this knowledge, and of not being allowed to tell it, was a heavy burden upon me. In general, I strongly support the principle of anonymity for people alleging they are victims of sexual assault. But this was an absolutely unique case. Where the « victims » are actually those wielding very considerable power in the state, and conspiring to frame an innocent man, is the principle of protection for sexual abuse victims of greater public interest than the public interest in being able to form an informed opinion on the massive abuse of state power which was in train ?

43. It was at this stage that I formed the opinion that there were questions here that urgently needed to be addressed, but it was not for me to decide. I therefore formed the view that, after the trial of Alex Salmond was concluded, this question would have to be put before a court, and, when the time came, I acted upon that conviction.

44. There was a period of several months when I was fully aware of the names of the accusers, and also fully aware that there was no general law or court order in place preventing me simply from publishing. That, however, would not have been responsible journalism and I determined to wait until I could put the matter before the court. The fact I did not publish the names when I could, over months, makes ludicrous the accusation of the Lord Advocate that I intentionally leaked out little bits of information as jigsaw identification.

45. I should explain that I was not enjoying this investigation at all. In fact, I hated it and was becoming quite seriously depressed by the shock of what I was uncovering. I had moved back to Scotland in 2014 specifically in order to campaign for Scottish Independence. I have been a member of the Scottish National Party since 2011. It was horribly disillusioning to discover the corruption at the heart of the Scottish Government.

46. I was also in a deep dilemma as to what to do about it ; the same dilemma Alex Salmond was, and is, in. To expose that it was Nicola Sturgeon who masterminded the conspiracy against him would be a real blow to the Independence movement. But to watch a plot to imprison an innocent man potentially for the rest of his life unfold before my eyes was also horrifying. Particularly as the most cynical part of the plot, to use the court anonymity granted to accusers of sexual abuse, to disguise who was actually behind the allegations, appeared to be working.

47. I should add that in May 2019 I met Alex Salmond in London to record a 50 minute interview for his TV company about my life and career, and that I met him again in approximately November 2019 in London for dinner with my good friend, the journalist Peter Oborne. On neither occasion was there substantive discussion of the charges against him.

48. On 21 November 2019, the Crown released substantial details of the charges against Alex Salmond. On 22 November, I looked through the newspapers and every Scottish newspaper had massive front page coverage of the accusations against him, in detail. The front page headline of the Herald read « 10 women ; 14 sexual offences ; Alex Salmond accused ». The details of all charges were printed on the front page, which had no other content. There were two other full pages on it inside.

49. The front page of the Scottish Daily Mail had the headline « Salmond in the dock » and the sub-heading « Former SNP Chief appears at High Court to deny 14 sex offences, including attempted rape, while First Minister ». There was no other story on the front page. There were eight full pages of further coverage inside.

The Daily Record front page had « Salmond on Trial the Charges : 1 attempted rape, 1 intent to rape, 2 indecent assaults, 10 sexual assaults, In the Dock ; 10 women accuse former First Minister of attacks. » There were two further full pages inside.

The Scottish Sun had « Salmond Rape Bid at Bute House  Ex-First Minister sex rap ; 10 women, 14 charges ; « pinned a victim down » and no other story on the front page.

The Daily Express had « Salmond Made Naked Rape Bid – Full details of 14 sex charges revealed ; Claims involve 10 women over 6 years ; I am innocent says ex-First Minister » and no other story on the front page, with four more pages inside.

The Scotsman had « Salmond, the charges ; Former First Minister accused of lying naked on top of woman and trying to rape her in Bute House » and no other story on the front page.

50. Broadcast media took the same tone. I was deeply concerned by the entire tenor of the press coverage, which appeared to be highly hostile to Salmond and present matters in a way that would be bound to influence potential jurors against him. I was also surprised by the sheer detail in the charges which the Crown Office had presented to the media.

51. This worried me because it creates a huge imbalance in media coverage and thus in public opinion. The Crown can release salacious detail about attempted rape while lying naked on top of somebody in bed, and the media can echo this to the heavens. But from that moment, nobody can publish anything to contradict the Crown without being in contempt of court. It seemed to me that, in these circumstances, the Crown ought to have been a great deal more restrained in the amount of salacious detail it was making available. Certainly, there was nothing in what was happening which would contradict the information I had been given of the Crown Office being party to a political plot to destroy Salmond.

52. In mid January 2020 I took part in an AUOB march through Glasgow which took place in a major storm. It was followed by a press conference at which I spoke and then by a joint strategy meeting with Plaid Cymru, all in soaked clothes. I have heart and lung conditions of longstanding and the over-exertion and hypothermia resulted in an ambulance being called later that evening. I refused hospitalisation because I was too busy.

53. However, the scare led me to write my « Yes Minister Fan Fiction » article of 18 January 2020 because, as the article plainly states, there were things I would not wish to die without having told.

54. It was, however ,a challenge to work out how to tell them without being in contempt of court given the charges against Alex Salmond. I therefore very carefully used a number of strategies not to be in contempt of court. Not to evade contempt of court charges ; actually not to be in contempt of court.

55. Perhaps the most vital strategy was what I would call post-dated cheque information. By which I meant, to leave information that people would not understand the ramifications of now, but would after the trial or once further evidence emerged. This applies most clearly to the redacted deal of redacted.

56. In January 2020, it was not widely known at all that redacted. Therefore, when I wrote : « I was thinking more of his wife, Permanent Secretary. redacted » my readership had no idea what I was talking about.

57. As with other information recounted above, it is remarkable how precisely events as they have unfolded have proven my sources were right. It is now notorious in Scottish political circles that the National Executive of the SNP last week adopted measures which effectively redacted, and did so in order to redacted. Many articles have appeared in the media to that effect. I regret that, redacted identity still being protected, I am not able to republish my article to show that I knew in advance and show what lies behind it. Nobody reads old articles on the blog ; very few people read articles below the first two on the homepage, and it is rare for articles to be read at all once they fall off the homepage (about two weeks). This is particularly true as Google de-ranks alternative or independent news sites.

58. At the time I wrote this article there was no order in force against publication of names. I nevertheless decided not to do that. I did not name redacted, instead using the alias « marmalade ». This was a private joke to myself referencing redacted. I was not in fact particularly thinking of redacted, or I would have called him « Keiller ».

59. I also did not give the names of either Sturgeon, Evans redacted Ms Sturgeon’s private secretary was, of course, male.

60. I further wrote the article as a satirical piece to disguise the nuggets of truth, in the manner of a Yes Minister script. As Jack Point put it :
« Oh winnow of my folly and you’ll find
A grain or two of truth among the chaff »
Satire has been for centuries a licensed vehicle for literary, social and political commentators, from Martial through Chaucer, Pope and Swift to Peter Cook. I find it hard to believe the Lord Advocate is seeking to prosecute satire – or I would have found it hard to believe, had I not been on this extraordinary journey of revelation of the corruption of the Scottish state.

61. I was particularly keen to satirise the Moorov doctrine. A lot of mince is still just mince – it does not turn into sirloin steak just because you have a lot of it. But, in doing so, I was also referencing the account I had been given in June 2019 of the tactics being employed by the prosecution, and seeking to make it plain to the Sturgeon circle that I knew precisely how their scheme was supposed to operate. That would have been entirely obscure to the general reader.

62. I was engaged in booking acts for the Doune the Rabbit Hole music festival, of which I am a director. I came up with the pseudonym « Orpheus » for Alex Salmond because I had just finished booking the Morriston Orpheus Male Voice Choir. I came up with the pseudonym Barclay simply because I was making bank payments.

63. The notion that this cryptic, satirical article, described as fiction, on a personal blog, would influence a jury is fanciful. When compared to the absolute torrent of hostile mainstream media material fed by the Crown Office, as detailed above, and vicious social media comment, aimed at Alex Salmond, the fact that the Crown Office are prosecuting only an extremely rare news source sympathetic to Salmond is, in my view, deeply sinister in the light of everything I have stated so far about the Crown Office – and more is to come.

64. On 21 January 2019, I received an email from the Crown Office requesting me to take down my Yes Minister Fan Fiction article as they considered it to be in contempt of court. I did not consider it to be in contempt of court- I had written it carefully not to be – so I did not take it down.

65. I was concerned about the constitutional implications of the Crown’s letter, and I still am. The Crown gave no indication of why they believed the article to be in contempt of court. When , many weeks later, I received the Lord Advocate’s Petition and Complaint, it appeared to indicate that they considered it was in contempt for jigsaw identification – but that made no sense, as when the Crown wrote to me on 21 January 2019 there was no order in place to protect the identities. The Petition gives no indication that the Crown was alleging that article might prejudice the jury. That argument only arrives months later again, in the Lord Advocate’s written submission.

66. I considered the matter very carefully. The rule of law is not arbitrary. If the Crown, without the intervention of a judge, has the power to censor publication, we are putting liberty in Scotland back several hundred years. The Crown Office cannot just order censorship on entirely spurious grounds thought up several months later.

67. I made a very conscious decision to content myself with the idea that, if they really thought I was in contempt of court, they would bring it to court and a judge could decide whether I was right or they were right. If they genuinely thought my article might influence a jury, given they were well aware of the article and wrote to me about it, the Crown Office had an obvious public duty to act before a trial to prevent that evil. I would have happily turned up in court and argued my case. To wait until long after the trial, after it is far too late to avert the evil they purport to be concerned about, and then make that allegation against me, is plainly pointless and vindictive and, again, sinister.

68. I visited the High Court before the trial to find out how to attend and report. I attempted to register as a journalist, but was given the absolute runaround between the Scottish Courts and Tribunal Service and Judicial Communications. I suspect this is simply because their systems are geared to the outdated days of traditional media. I was unable to obtain accreditation, and thus could not be present for the prosecution evidence.

69. I therefore wrote up my commentary on Day 1 of the court case in an article entitled « The Alex Salmond Trial : Your Man Excluded from the Gallery » with some wider commentary about the context of the trial and the laws of evidence in Scotland, but with reporting of events in the trial itself entirely based upon what was published by other journalists inside the court. I was particularly following James Doleman, Philip Sim and Radio Forth and also the Grouse Beater blog which itself was purely drawing on published sources. I stated this explicitly in the article « If you look through the twitter lines, you will see that journalists between them have missed at least three quarters of what is said in court. Because I am not there I am dependent on their selection of material. » I published nothing of the evidence – literally nothing – that had not been published by other journalists.

70. I had clearly at the forefront of my mind the desire to avoid identification of redacted, even though there was at that time no order in place to protect her identity. I am satisfied that I succeeded in this.

71. By my next report on 12 March, I was a little more organised and had sources inside the court giving me additional information. I thus knew fairly well in real time of the order protecting identities, and was still more careful. It was necessary, for the public to have an understanding of the basics of the case, to explain that several of the accusers held senior positions in SNP structures, but I was very careful to ensure I gave no details of actual positions or who worked in Edinburgh, who worked in London etc. This continued throughout the trial.

72. On 18 and 19 March, when I finally gained access to the court, I continued this policy of taking great care. In writing up that evening, I google searched on two particular pieces of evidence to check I was not giving away identities. For example, I searched many combinations of terms for Salmond, Alexander Anderson, helicopter, Stirling Castle and Gleneagles to ensure that my article could not lead to identification of redacted. I was satisfied it could not, and published my account with good conscience.

73. On the other hand, I found that google searches around the meeting of Geoff Aberdein with Nicola Sturgeon on 29 March very readily brought up the fact that redacted. I therefore amended my draft to delete reference to her presence at that meeting, even though that meeting is, from a political point of view, perhaps the most significant fact to have emerged from the trial, as it shows Nicola Sturgeon to have misled Parliament about when she first knew of allegations.

74. By contrast, the entire mainstream media published details of that meeting including redacted. Stuart Campbell has been pursuing this fact in correspondence with the Crown office. Kirsty Wark repeated this very simple jigsaw identification of redacted in the recent BBC documentary The Trial of Alex Salmond.

75. There is a very good list of articles which included this jigsaw information which I rigorously excluded to be found in the letter from the Crown Office to the Reverend Stuart Campbell of 19 August which you can see here :
https://wingsoverscotland.com/wp-content/uploads/2020/08/copfs19aug2020-1.jpg

76. I was much more careful to avoid jigsaw identification here than the mainstream media. After I was astonished to be charged with contempt by the Crown Office, I sought objective proof of this by commissioning an opinion poll from Panelbase.

77. This poll, conducted according to industry leading survey techniques, cannot establish whether anybody is correct in their presumed identification of witnesses. But it shows that, of those who believe they have identified witnesses, 66% believe they learnt the identities from TV or newspapers. One person named my blog as a source – in among many more names of mainstream media journalists. The individual who was most named as giving away identities, most named by a margin, was journalist Dani Garavelli. It is of course possible that the individual who named my blog was referring to the re-publication for comment of one of Garavelli’s articles on my blog.

78. I am not a lawyer. But, to a layman, it is remarkable to me that the Crown Office is prosecuting me citing my commentary on Garavelli’s article as contempt of court, whereas Garavelli’s article itself has not led to Garavelli being prosecuted, even though opinion poll evidence shows she was named far more than I as a source of identification. Given that Garavelli’s work is vehemently anti-Salmond while the Crown Office is prosecuting the most prominent pro-Salmond journalist, I would say this is, in the context of all else I have testified, sinister.

79. In publishing all of my accounts of the trial, I was extremely mindful of both the law of contempt of court and of my desire not to identify witnesses. The constraints were not just at the back of my mind, but right at the front of my mind, to the extent that there is highly considered discussion of these issues included in my articles throughout my reporting of the case.

80. But I was also strongly aware of a public duty to inform the public of the defence evidence. As already noted, the Crown had given the media, and the media had extravagantly published, salacious detail of the prosecution’s charges from long before the trial. When the prosecution evidence was led, there was again for the first few days an absolute frenzy of front page, news bulletin leading reporting, again focused exclusively on the most salacious and sensational extracts from what the accusers said in court.

81. Then, when the defence witnesses stood up one after another, without the benefit of anonymity, and gave their evidence under oath, there was virtually nothing. I witnessed the ranks of media in front of the public gallery literally shut their notebooks. Virtually no media reporting appeared of the fact that redacted could not have had her alleged morning exchange with Tasmina Ahmed Sheikh because the latter’s father had died that morning. Nor of the two separate eye witnesses, feet away, who testified that redacted was not groped at the Stirling Castle photocall. No account was given of Janet Watt, line manager, denying she had been told of incidents as claimed. Nor of Alex Bell, who detests Alex Salmond, nevertheless testifying that he did not see the claimed scene by the Jack Vettriano painting. I could go on and on with all the defence evidence which the media did not mention.

82. The general media situation is perfectly exampled in the subsequent BBC documentary, « The Trial of Alex Salmond », broadcast by the BBC on 17 and 18 October and fronted by Kirsty Wark. While purporting to be a day to day account of the trial and adopting a « Day 1 », « Day 2 » etc format, incredibly the documentary simply skipped from Day 7 to Day 10 and missed out the defence witnesses. That is just what the overwhelming majority of the media did – quite deliberately, of course. There can be no serious argument against the proposition that the Scottish mainstream media is overwhelmingly hostile to Alex Salmond.

83. It is a simple statement of fact that the only reason any measurable section of the Scottish population has the slightest idea of what the defence evidence was, is that it was published on my blog. Otherwise they would only have the false mainstream media presentation of highly selective quotes from Gordon Jackson to the effect that Salmond could have been a better man, but inappropriate does not mean criminal, and the deliberately created false impression that the jury was faced with only « he said, she said » decisions. The third party eye witnesses who challenged key aspects of accusers’ evidence went mostly unreported, except by me.

84. In a case with such massive political ramifications, in giving a fair account of the defence evidence I fulfilled a democratic duty I felt a strong obligation to fulfil. I am very proud of my role. And I did it while all the time keeping a very careful eye indeed on the line of jigsaw identification and contempt of court. That I was up to the line I readily admit ; a fast bowler does not deliver from behind the stumps lest he overshoot the crease and bowl a no ball. But I was very careful indeed not to cross the line.

85. It was put to me during the trial (I believe by the court reporter James Doleman, who I know from our both covering the Julian Assange hearing) that the law of contempt of court dictates in sexual abuse cases that the prosecution case can be widely reported but the defence case cannot be reported. The reason is jigsaw identification. He told me as a warning to be very careful.

86. His reasoning went like this. The Crown at the time of charge releases to the media details of all the charges. So they have released, for example, that a hypothetical woman X was assaulted in Bute House on 1 January. So when woman X gives evidence, you can publish it in detail because the Crown had already released it. However, if, in recounting the defence evidence, it were a relevant fact that she had a blue car, you could not mention it, because of jigsaw identification. The fact that her being in Bute House on 1 January would quite literally be a million times more identifying than possession of a blue car was irrelevant. So you could report the accusation but not the defence.

87. I considered this very carefully with regard to my reporting of the case, and it relates directly to the charges against me. It is highly identifying to say that a woman was with Alex Salmond in an official capacity on a visit to China, close enough to him to travel in his car and be with him in the lift. That is all extremely identifying ; everybody reported it because it was part of the prosecution case. Yet there is only one person that can be. But for me to report as part of the defence that she had curly hair – as do over 15% of the population – is jigsaw identification. I considered the argument the Lord Advocate now puts forward, before I published the piece, and considered it patently absurd.

88. I also considered that, if that were truly a statement of Scots Law, then the effect is obviously perverse. That only the prosecution case may be published and not the defence, would mean that even an innocent man found innocent, would forever be damaged in the eyes of the public who would know the detailed accusations against him but not why he was found innocent. That cannot be the intention of the law.

89. Nor can it be the intention of the law, as in the Alex Salmond verdict, that the accusers should even after the not guilty and not proven verdicts, continue a massive media campaign from behind the veil of anonymity against the acquitted man. This appears to me a massive abuse of the court order granting anonymity and I cannot believe that this was the intention of Lady Dorrian when she granted the order. I shall return to this subject shortly.

90. On the morning of 20 March, I was as usual waiting with my ticket to enter the public gallery, when Alex Prentice emerged from a door to the left of a court room entrance, paused and appeared to stare at me before continuing on into the courtroom. The supposed start time for the court came and went with the queue still outside, and then I was approached by two police officers, in front of everyone, and marched from the court. This was very humiliating, particularly as some pleasure was evident among the queue of mainstream media journalists who had come to demonise Alex Salmond.

91. The police were very pleasant but, in reply to my direct question, stated that they had no idea why I was being removed. The court staff at the front door stated the same. I therefore went home.

92. I now know that the court had heard a motion for my exclusion from the prosecution on the grounds of alleged contempt of court. I believe strongly that it was contrary to natural justice that the judge and prosecution should have been discussing me while I stood directly outside the court door, and I was not given any hearing or even accorded the common decency and respect of being informed what was happening. This is in stark contrast to events on the morning of the 10th March when an accredited member of the media, said to have tweeted out an identity – much more than I had done – was permitted to be present while the matter was discussed in closed court and was asked if he had anything to say.

93. My only complaint of the court refers to my own treatment, and, while I believe my treatment was wrong, I accept that the judge had infinitely weightier matters to deal with and was perhaps irritated by this minor distraction. As I stated directly in my article, my impression of both judge and jury in the two days I was permitted in to the Salmond trial is that they were doing their jobs in a highly impressive manner. On 18 March I published :

94. « The Court itself was impressive ; Lady Dorrian presided with exemplary fairness, dealing quickly and sensibly with points that arose on admissibility of evidence. The jury of 15 citizens looked engaged and earnest throughout. The impression of my first day is that it is a process that deserves respect and trust, something I never felt at an Assange hearing ».

95. On 19 March I published :
« There I will bow to the judge – who I continue to find very fair ».

96. After exclusion from the court on 20 March, I wrote an article complaining about the arbitrary manner of my treatment. I also phoned the court for more information, and was eventually called back by the clerk of the court, who could not tell me exactly why I had been excluded, but did tell me that the exclusion was for the duration of the trial, not just for the day. Neither he nor the other court staff of whom I had inquired as to what was happening told me that an order had been made banning the publication of the fact I had been excluded from the court. That seems a quite extraordinarily arbitrary proceeding – not only to ban a journalist from a public trial without allowing him any representations, but to also make it illegal to state he was banned. It sounds like something from a dictatorship, not from Scotland.

97. I have a strong basis in knowledge of human rights from my diplomatic career and have a sound knowledge of the Council of Europe (to whose Parliamentary Assembly I have indeed given evidence on human rights, as I have to the Westminster Parliament Joint Committee on Human Rights and to the European Parliament Committee on Human Rights). I had no doubt that the entire circumstance surrounding my arbitrary banning from court without representation and the banning of any mention of that fact raises serious concerns.

98. I note the Crown Office claim to have written to me at this stage. I received nothing from them, either by email or post. Their letter of 21 January I had received both by email and by post, and had to sign for the postal letter. I do not know what happened about their subsequent purported communication, if anything.

99. Following the verdict, Alex Salmond stood on the steps of the High Court, referred to the evidence he had not been permitted to lead, and stated that a day of reckoning would come when the full truth would be set out, but explained that this would have to be deferred until after the Covid crisis has passed.

100. This came as a massive disappointment to me. Having known all about the conspiracy that lay behind his trial, I had hugely been looking forward to the day when it would be possible to publish the truth about the conspiracy behind these charges. I had assumed that Alex Salmond would himself immediately point the finger at Nicola Sturgeon, Peter Murrell, Sue Ruddick and the other conspirators who could be named because they did not have the court granted anonymity of redacted and others. But I deferred to Alex Salmond’s wishes in not publishing the full truth. As I published in my article of 30 March 2020, « I have, absolutely against my own instincts, deferred to Alex Salmond’s noble but in my view over-generous wish to wait until the Covid-19 virus has passed before giving all the names of those involved and presenting the supporting documents ».

101. The documents to which I referred were those mentioned above ; they proved the culpability of people including Murrell, Ruddick and McCann, whose anonymity is not protected. I was not aware when I wrote that the effort to suppress these documents – which frankly will be key documents in the course of Scottish history – was going to extend beyond the trial, that they would be kept even from the Holyrood inquiry, and that the Crown would seek to deny their use for my own trial.

102. I had been struck by the facts surrounding the exclusion of juror RR. He had been loud in asserting that he believed Salmond to be innocent. I found the circumstances surrounding juror RR’s reporting to the police very suspicious, just as I find the circumstances surrounding the taping of Gordon Jackson on the train very suspicious. If a juror said too much in conversation, a minority of people might know enough to tell him he really should not be talking that way. To walk away and clipe him up to the police seems to me an extreme and entirely unnatural reaction. It seems to me a great deal more likely that juror RR was set up ; particularly as the lady who engaged him in the conversation worked for a Scottish Government agency.

103. I actually drafted all that, but then did not publish it as it would have been in contempt of court. I decided instead to give no details at all. I am genuinely puzzled as to what the Lord Advocate thinks is actionable on that.

104. Unfortunately, Alex Salmond’s declaration of a « covid truce » on proceedings was not matched by the conspirators. They immediately began a concerted campaign to undermine the verdict in public opinion and to attack the reputation of the court and the jury. The campaign was fronted by Rape Crisis Scotland, an almost entirely Scottish Government funded organisation whose funding is under the control of officials whose management line redacted whose story of a knee grab on the very short ride from Pizza Express Holyrood to Waverley Station had been comprehensively debunked at trial.

105. The nine complainers in the case signed a joint letter maintaining their accusations against Alex Salmond, which was carried at saturation levels by the entire Scottish media, and was curious given that the complainers were purported by the Crown to be unconnected to one another. In a whole series of interviews across all Scottish media, Rape Crisis Scotland argued, in effect, that the verdict had been perverse, an example of the justice system failing abused women, and even was used by Rape Crisis Scotland to argue directly for the abolition of jury trials in sexual assault cases.

106. The campaign culminated at that time in an article written by Dani Garavelli for Tortoise Media and repeated in Scotland on Sunday, the Sunday edition of the Scotsman, which it is impossible to read other than as a sustained attack upon the court and the verdict. It was a particularly tendentious piece of work because it again repeated all the major accusations, with sympathetic personal interviews with five of the complainers, while omitting to mention a single one of the defence witnesses or any of the defence evidence that had shown them to be wrong and, in several cases, actually lying.

107. What is more, the Garavelli article again made very plain the identity of redacted by jigsaw identification and potentially of others, including redacted who redacted. It is of definite significance that, in the opinion poll I commissioned to get objective evidence of jigsaw identification, Dani Garavelli was by a significant margin the most named source by the public for complainer identification. The decision by the Lord Advocate to prosecute me, a very rare Salmond supporter with an audience, and not prosecute Garavelli, the media cheerleader for the anti-Salmond cause, appears not just selective prosecution, it is political persecution.

108. The great irony of this is that I am the one upholding the dignity of the court and explaining to the public why a diligent jury reached the sound verdict it did, while Garavelli is attacking the verdict of the court and doing so by omitting the crucial defence evidence that the jury heard. She also characterises individual jury members in her article. Yet it is I, the supporter of the court, who is allegedly in contempt, while the attackers of the court are not. The truth is, of course, that the failed prosecutors are favouring those who support the prosecution ; that these failed prosecutors get to decide who is tried for contempt is an abuse of process.

109. I decided that the best way to deal with the Garavelli article and with the entire avalanche of anti-court propaganda was to write my article « I have a plan so we can remain anonymous but have maximum effect » in which I reproduced Garavelli’s article in its entirety, with paragraphs of my commentary under her paragraphs where appropriate. The Crown production of this article in the bundle given to me has not printed out the contrasting colours, so the court will find it extremely difficult to follow what is me and what is Garavelli. This however is Garavelli :

« When the time came, the foreman stood up and said Not Guilty to 12 of the 13 charges. The verdict of the charge involving woman F – sexual assault with intent to rape – was found Not Proven, which is also an acquittal. None of the verdicts were unanimous. The foreman seemed content with decisions he was conveying, but others were not. One young-ish juror with glasses sat with his head bowed »

Followed by me commenting on Garavelli

« Garavelli has no idea how that youngish juror voted. Here again is a blatant attempt to convey that this was a perverse verdict… Garavelli is incidentally in very grave contempt of court in clearly identifying an individual juror and how she thinks he voted. Garavelli will of course be protected by the Establishment from any consequences of this ».

110. I was absolutely correct on all counts. It is a further example of the extreme consciousness of the law of contempt of court with which I wrote throughout. I had a great deal more respect for the rules of contempt than the Lord Advocate, who plainly only applies them to opponents of his prosecution of Alex Salmond.

111. As the accusers continued their public campaign against the verdict of the court, and continued their conspiracy after the verdict to destroy Alex Salmond politically from behind the screen of court enforced anonymity, I decided the time had now come to put before a court the question of whether that anonymity should be upheld even in these extreme and unique circumstances. The public interest in knowing that it was those in positions of great power in the Scottish Government who had colluded against Alex Salmond might well outweigh the general public interest in anonymity for complainers of sexual abuse.

112. On 31 March 2020, I therefore contacted my solicitor to find a QC to draw up a petition to court for the court to decide. We received a draft application from Craig Sandison QC on 15 April 2020, funded at my own expense. I was considering how to proceed, particularly in the light of Covid lockdown, when I was astonished to find myself charged with contempt of court a week or so later.

113. On 23 April 2020, two policemen came to my door and left on the doorstep a letter which, when I opened it a day later (early Covid precaution!), was from the Crown Office telling me I was charged with contempt of court.

114. Remarkably, within minutes of the police arriving, I received an email from Kieran Andrews of the Times newspaper, stating that

« The Crown Office has confirmed that it has started contempt of court proceedings against you in relation to the Alex Salmond trial. Would you like to comment? « 

We are not children. This is plainly a polite lie. Mr Andrews had not telephoned the Crown office that day and asked « I say, did you happen to charge Craig Murray with anything today ? ». What had happened was that the Crown Office, in keeping with its highly politicised and corrupt behaviour through all of the events which I have here recounted, had phoned a reliably anti-Salmond journalist and tipped him off about the charges against me. I believe that the Crown Office is deeply corrupt.

115. In reading the Lord Advocate’s petition and learning of the charge of jigsaw identification, it seemed to me that his charge was entirely subjective. The Lord Advocate appeared to appreciate the need for some kind of proof, as he prayed in aid a number of tweets as evidence that people had identified. But his understanding of Twitter appeared extremely naive. With a single exception, not one of these tweets showed they had correctly identified anyone (and that single one did not prove I was the reason). On the contrary, many of them were from bad faith actors or Twitter « trolls » with fake identities – « Tamara Patel » is a good example of a long term troll on my account with multiple other identities, including « Harry Johnson » and « James », whose claim to identify from my posts the Lord Advocate foolishly takes at face value. Others show in their Twitter handles that they are dedicated political opponents, i.e. some show union flags and one profile describes a « unionist » and « Rangers supporter ».

116. Nevertheless, in quoting these evidentially valueless tweets the Lord Advocate did seem to be acknowledging the desirability of some objective measure of likelihood to identify, so I set myself to think about whether I could help supply the Lord Advocate’s deficit of reason.

117. I came up the idea that whether or not I had been likely to identify would be objectively demonstrable by obtaining a sufficiently large sample of the population, and that the way to do this was through a professional survey company. I therefore commissioned an opinion poll from Panelbase, the results of which I append and which I believe will assist the court.

118. The survey could not check whether people really know the identities of failed complainers, but it does show that a remarkable 8% of the population believe that they do – that equates to about 350,000 adults in Scotland who think they know one or more identities. The number will have risen since, particularly after the Kirsty Wark BBC documentary which pretty plainly identified redacted.

119. Asked how they know identities, 66% said they knew from newspaper, TV or radio reporting. Given a free field to identify individual sources, seventeen different news sources were named, several multiple times, with a single mention of my website. Eight different journalists were named, some multiple times, and not including me. The most mentioned source as Scotland on Sunday/The Scotsman, where Dani Garavelli’s article appeared, and the most mentioned journalist was Dani Garavelli, who is the prosecution’s biggest cheerleader, and is not being charged.

All of which is the truth as the deponent shall answer to God.

Signed

Affidavit 2

SUPPLEMENTARY AFFIDAVIT
of
CRAIG MURRAY, redacted, Edinburgh, EH10 redacted

At Edinburgh on the TWENTY FIFTH day of JANUARY 2021, in the presence of David James Finlay Halliday, solicitor and notary public, Halliday Campbell WS, solicitors, redacted, Edinburgh, EH16 redacted, COMPEARED CRAIG MURRAY, redacted, Edinburgh, EH10 redacted who being solemnly sworn hereby DEPONES as follows:-

1. My name is Craig Murray, I reside at redacted, Edinburgh, EH10 redacted. I give this affidavit in supplement to the one I have previously given in connection with the contempt of court proceedings brought against me. My intention in doing so is to provide more information for the Court on the context in which I published my articles and tweets, and my reasons for doing so.

2. I was Rector of the University of Dundee (2007-2010) and an Honorary Research Fellow at the University of Lancaster School of Law (2005-9). I am the author of books including Sikunder Burnes, Master of the Great Game (2017), The Catholic Orangemen of Togo (2010) and Murder in Samarkand (2007). The website academia.edu lists over 140 academic peer reviewed articles referencing my work.

3. I was British Ambassador to Uzbekistan 2002-4. Other roles included Deputy High Commissioner to Ghana (1999 – 2002), Deputy Head (Equatorial), Africa Department FCO (1997-9), First Secretary, British Embassy, Warsaw (1993 – 1997), Head of Maritime Section, FCO (1991-3) and Head of Cyprus Section, FCO (1989 -91).

4. Special responsibilities included Head of FCO Section, Embargo Surveillance Centre (1990-1), Alternate Head of UK Delegation to UN Convention on the Law of the Sea (1991-3) and Head of UK Delegation to the Sierra Leone Peace Talks (1998-2000).

5. I have been awarded the Sam Adams Award for Integrity (USA) 2005 and the Primo Alto Qualita Della Citta di Bologna (Italy) 2006 and am an Officier of the Order of Mono (Togo). I have turned down three honours from the British state, OBE, LVO and CVO on grounds of Scottish nationalism, the last two being in the personal gift of Her Majesty the Queen.

6. As a journalist in new media, my output has been focused on my own website, which is nowadays my primary source of income. My articles have however been published in newspapers including The Guardian, Independent, Daily Mail, Mail on Sunday, and very many others both nationally and internationally.

7. In or around March 2019, and from time to time over several months thereafter, I became aware of information tending to show that senior members of the SNP had sought improperly to involve themselves in the Salmond case. This included meeting with women to urge them to make or persevere with complaints to the police, coordination of complainers and their stories, liaison with the police over charges and attempts to persuade individuals other than the complainers to come forward as witnesses to allegations, which attempts were unsuccessful. I formed the view that these were genuine accounts, as they came from complementary sources who had access to the material under discussion.
I believed this to constitute prima facie evidence of, at the very least, politically motivated efforts to recruit and encourage complainers, and of illegitimate attempts to persuade “witnesses” to give evidence that, taken together, could amount to conspiracy to pervert the course of justice. As this involved some of the most politically powerful individuals and forces in Scotland, I believed there to be the strongest possible public interest in these facts and in publication of them.

8. Before I published many of the articles and tweets that are the subject of these proceedings, I saw the information listed in this paragraph. I was not given copies of any of these documents and have never possessed any, other than Ann Harvey’s email, which was given to my solicitors at Ms Harvey’s request on 19 January 2021 to assist in my defence and is now produced as production 41 and which I can confirm was the version I saw. I wish to make plain the documents were each shown to me briefly on a screen and my recollection of them is from memory. Doubtless there will be minor errors in my recollection but I have no doubt of the purport, gist and individuals involved. The information was:

(a) A series of written communications involving Peter Murrell, Chief Executive Officer of the SNP, and Sue Ruddick, Chief Operating Officer of the SNP. They discussed inter alia a pub lunch or similar occasion between Ian McCann, a SNP staff member working for them, and redacted, one of the complainers in the HM Advocate v Salmond trial. At the lunch, Mr Murrell and Ms Ruddick expected redacted to firm up her commitment to giving evidence against Alex Salmond, and to discuss progress on bringing in others to make complaints. They expressed dissatisfaction at Mr McCann for his performance in achieving these objectives and expressed doubt as to his commitment to the cause.

(b) A communication from Ms Ruddick to Mr Murrell in which she explained to Mr Murrell that progress on the case was being delayed by Police Scotland and/or the COPFS saying there was insufficient evidence, and in which communication she expressed the sentiment that, if the police/Crown would specify the precise evidence needed, she would get it for them.

(c) Text messages from Mr Murrell to Ms Ruddick stating that it was a good time to pressure the police, and that the more fronts Alex Salmond had to fight on the better.

(d) Communications from Ms Ruddick about her visits to a number of locations, including the Glenrothes area, and including in conjunction or discussion with redacted. These communications detail their unsuccessful attempts to find witnesses who would corroborate allegations of inappropriate behaviour against Alex Salmond. They include a report of a meeting with young people who were small children at the time of the incident they were seeking to allege, who did not provide the corroboration sought.

(e) A message from redacted stating that she would not attend a meeting if redacted were also present as she felt pressured to make a complaint rather than supported.

(f) Messages in the WhatsApp group of SNP Special Advisers, particularly one saying that they would “destroy” Alex Salmond and one referring to Scotland’s ‘Harvey Weinstein moment’, employing the #MeToo hashtag.

9. That information formed some of the basis for the articles and tweets I published before and during the trial. I supplemented that information from my own attendance at the trial as a journalist and from other media reports of the trial. In my articles, I sought to provided reporting of, and commentary on, the HM Advocate v Salmond trial, and also to provide wider commentary on the trial and the political context in which it took place.

10. It was in the course of that wider commentary on the trial that I stated my reasonable belief, based on the information I had seen, that the criminal charges against Alex Salmond were the result of orchestrated work by senior members of the Scottish Government and the Scottish National Party.

11. Before publishing my articles and tweets on the wider context of the trial, I saw the information set out at paragraph 8(a)-(f) above. As I have stated at paragraph 3 above, I considered that this information was genuine. I also considered that it showed that: (i) that senior members of the Scottish Government/SNP had sought improperly to involve themselves in the inquiry into Alex Salmond; (ii) they had discussed the possibility of pressuring the police; and (iii) certain of the complainers had felt pressured by the involvement of senior members of the Scottish Government or SNP.

12. I considered that, as a journalist, I acted responsibly and in the public interest in publishing my articles and tweets, and that I did so because of the information I had seen. It was, and remains, a matter of considerable public interest and importance that high-ranking members of the SNP would improperly involve themselves in an investigation into a political rival, and express sentiments such as a desire to obtain whatever evidence the police needed and a desire to pressure the police.

13. I emphasise that my reason for publishing the articles and tweets was what I understood from the information I saw before I published. My intention was not to publish the names of the complainers, but rather the names other members of the Scottish Government/SNP who had engaged in the actions set out above.
All of which is truth as the deponent shall answer to God.

Signed:

—————————————————–

 
 
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UPDATE The Cabinet Minister who the judges met, delaying the start of my appeal, may have been Dominic Raab, Lord Chancellor and Justice Minister of England and Wales. Raab was in Edinburgh that day discussing with the Scottish Government the Tory plans to ditch the European Convention on Human Rights. What Lord Justice General Carloway said was that the hearing was delayed because the Scottish Government had called to set up an unscheduled meeting with a cabinet minister. We had all presumed he meant a member of the Scottish cabinet; perhaps not.

Secondly, my former QC John Scott has been in touch to say that he had no doubt that my sworn affidavits were accepted as evidence in the case, and that was the outcome of his discussions on the matter with the Crown. As I said below, I had found the Crown’s assertion to the contrary baffling.

Both these points highlight the extraordinary fact that there is no official recording or transcript of the court proceeding and the public were excluded. Our offer to have a transcript taken and produced at our own expense (as is done by the Assange legal team at his hearings) was also refused.

I should stress that this is not unusual; we were told it is the rule that there are no recordings or transcripts of such proceedings in Scotland. So what happened is whatever the judges say happened, and there is nothing that can be produced to prove otherwise. The more I go down the dark hole of Scotland’s legal system, the more it stinks.

26 February 07.13 END OF UPDATE

Today I was the “petitioner” as my appeal was heard in Court No. 1 of the Court of Session by the nobile officium. This sounds like something from Harry Potter, perhaps an annex of the Ministry of Magic, but is actually the Scottish legal system’s appeal court of last resort.

Here I sat very much as a last resort, getting through the last required hurdle before I can appeal to some judges at Strasbourg with no part in the Scottish Establishment.

Five judges presided, headed by Lord Carloway, the bulldog-jowled Lord Justice General. To his left sat the tall figure of the kindly looking and bespectacled Lord Woolman, and further left Lord Matthews, who looked so strikingly like an old drinking friend of mine from Dundee, that I kept being disconcerted it wasn’t him. To Lord Carloway’s immediate right was Lady Paton, a bright-looking lady, who had an air of intense concentration and took copious notes. On the far right, the bench was completed by Lord Pentland, very engaged, constantly leaning forward, moustache bristling, as though itching to do all the talking himself. Which from time to time happened.

All wore Gilbert and Sullivan costumes and long wigs that looked frightfully uncomfortable. I felt for them.

Proceedings started one hour late. Lord Carloway opened by apologising to the court. The case had been delayed, Lord Carloway stated, because the bench had received unexpected intimation from the Scottish Government that a cabinet minister was coming to see them on an important matter. They had therefore had to delay and meet the minister before starting the hearing.

That is what Lord Carloway said. I faithfully report it. He did not say the cabinet minister’s visit had any connection to my case. He did not say it had no connection to my case. It might have been about judicial appointments, refurbishing courts or covid restrictions, for all I know. Urgent enough to cause an unscheduled cabinet minister to dash, and justify a delay to the hearing.

Roddy Dunlop QC, Dean of Faculty (which is a big deal among Scottish lawyers, head of the profession) then arose to present my case. Dunlop has a delivery of relentless logic, driven home by piercing blue eyes, but disconcertingly has a haircut which must entail going into the barber and saying “Cliff Richard circa 1963, please”. Dunlop’s horsehair wig has to perch behind the quiff.

Dunlop had been planning to speak for two hours, but interruptions from the bench were in the event so constant that he spoke for well over three. I published the written submission he had put in, and do urge you to read it – it is more entertaining than you might imagine. I shall not repeat here points he made from the written argument, except where necessary to explain a judicial intervention.

He opened by saying that this was a unique case. We knew of no precedent in Scotland for a journalist ever having been jailed for contempt of court. He then went on to say nice things about me, detailing my diplomatic career and positions I had held of great responsibility. He said that I had become a whistleblower, revealing terrible abuses of torture and extraordinary rendition, and in that respect had given evidence in person before committees of the Westminster Parliament, European Parliament and Council of Europe.

The bench looked to me particularly unimpressed by this; I am not sure they like whistleblowers.

Roddy Dunlop went on to say that I was a journalist, who had published articles in many mainstream media newspapers, but whose output was mostly published on my blog. That did not however make me any less of a journalist. I was fulfilling the role of a “public watchdog” on matters of public interest, as defined in judgments by the European Court of Human Rights.

I had a genuine belief, which I still held, that Alex Salmond had been the subject of a plot to prosecute him on false charges, and I had an article 10 right under the European Convention on Human Rights to publish that, as a matter of the highest public interest. That had to be the starting point for considering this case.

Both Lord Carloway and Lord Pentland queried whether I could be considered a journalist. Dunlop said that the ECHR case he quoted specifically included bloggers as enjoying the same protection as “public watchdog”.

Dunlop then argued that the test of strict liability in the Contempt of Court Act applies exclusively to publication of information which could interfere with a trial; it specifically does not apply to breaching an order on identification, where on the contrary there has to be an element of wilful disobedience of the court. He cited the Act itself and several cases.

Lord Carloway interjected that the act of publication was itself a deliberate act. That was the intent. Dunlop replied that there was no dispute that the articles were deliberately published; but that was not the same as that they contained intent to identify.

Lord Carloway queried whether this could be true even when the articles were obviously identifying.

Dunlop said yes, intent was crucial. Otherwise, if for example a protected complainer stated that they had been assaulted in a taxi on a certain date, and subsequently someone posted the taxi receipt online as routine public accounting for expenses, that person would be liable for jigsaw identification despite having no intent.

Lord Matthews asked how the court could know if the receipt had been posted maliciously.

Dunlop then moved on to the second ground of appeal, that the court should not have disbelieved the evidence given in my affidavit without cross-examining me and giving me a chance to answer questions on which they had any doubt. He described this as necessary to a fair hearing and natural justice.

Dunlop referred to Lady Dorrian’s judgment, which stated that evidence in my affidavit cast doubt on my claim to have no intent to reveal names. Dunlop stated that was far from a finding beyond reasonable doubt that I had intent to reveal names. The judgement had therefore not found intent to the criminal standard required in law.

Lord Carloway said the Court had no evidence before it that my affidavit had ever been accepted by the court as evidence at all. There was no joint minute to that effect, and there should have been. Dunlop said that indeed it would have been better if there were a joint minute, but that could hardly be held to be the petitioner’s fault. Lord Carloway asserted twice more that there was nothing before him to indicate my affidavits formed evidence in the case, and Dunlop repeatedly asserted that plainly they were evidence. Not to cross-examine was the Crown’s choice.

Dunlop said I had given this evidence by affidavit, as was frequently the case nowadays. My senior counsel had then informed the court that I had nothing to add but was available to answer any questions from Crown or Court. Lord Carloway said that offering to answer questions was not the same as submitting to cross-examination. Dunlop said it was the same. Lord Carloway said no it was not; I had not entered the witness box. Dunlop said that there had been no witness box: it was one of the early virtual hearings, I was not in a courtroom, and that may be some of the cause of procedural confusion.

There was then a slight break while I confirmed to Dunlop that counsel had said I was present (virtually) to be questioned by Crown or Court, and both Prentice and Dorrian had stated they did not wish to ask questions. Dunlop confirmed with Crown senior counsel Alex Prentice QC that this was indeed what had happened.

Carloway then said that witnesses were often not cross-examined in civil cases; it did not mean their evidence was accepted. He added that evidence “may be so manifestly untrue as not to require cross-examination”.

I recall Lord Pentland as saying this, but my notes say Lord Carloway. Either way, I had the distinct impression they intended this to convey their opinion of my own affidavit as “manifestly untrue”, and viewed it as closing the question.

Dunlop seemed somewhat thrown by the relentless negativity from the bench and the suggestion that my affidavit was so manifestly untrue as not to require cross-examination. He concluded that it remained his submission that, where the defendant faced imprisonment, they had a right to have doubts put to them, for them to give an answer that may change the view of the court.

Lord Carloway replied that the Crown’s scepticism of the defendant’s affidavit had been fairly put in the Crown’s written submissions.

Dunlop then moved on to the third ground of appeal, that the court had adopted too narrow a test in finding that identification had taken place to a section of the general public, such as work colleagues, whereas the correct test in the Act was to the general public, the public at large.

Lord Carloway said that it was obvious that the complainants were all close to the former First Minister; therefore very little extra information could identify them and great care should be taken. What if, for example, the parliamentary committee had been able to identify them? Would that in Dunlop’s opinion be a sufficient test?

Dunlop replied it would not. The parliamentary committee were not the general public, and had a great deal of other information available. Dunlop stated that my difficulty had lain in explaining what had actually happened in the Salmond trial, and what Salmond’s defence was, while still protecting the identities, as I had explained in my affidavits.

Carloway replied that the mainstream media appeared to have no difficulty in covering the trial without publishing identifying information. Dunlop said that he would question that. The mainstream media published similar information to the petitioner. Dani Garavelli in particular had published a great deal of identifying information. Yet none of these were prosecuted.

Dunlop had said the unsayable. The judges had all displayed simultaneous physical reactions to this, which in the nearly empty courtroom was particularly noticeable.

Lord Carloway said that Dunlop had said this case was unique. That was because the mainstream media knew how to avoid committing contempt. That is why there were no instances of the mainstream media being prosecuted for jigsaw identification. Lord Pentland reiterated that the reason no mainstream media were prosecuted was because they understood the law.

And at this point we broke for lunch.

After lunch, we reverted to the question of whether I ought to have been cross-examined before being disbelieved, on which Dunlop had found another precedent, which plainly said so, during the lunch break. Lord Pentland stated that it was common practice for a witness not to be cross-examined and then for their account to be dismissed as incredible. Lord Carloway said that it was frequently the case in criminal cases that complainers were not cross-examined by the defence on the grounds their evidence had no weight.

We then went back to the question of what was the proper test for identification. Lord Woolman observed it was “a tricky one”. He asked Dunlop what then the proper test should be? This struck me as the first open question asked of Dunlop, not phrased in terms of overt hostility.

Dunlop replied that the proper test should be whether, in combination with material that was already fully in the public domain, somebody had wilfully published the last piece of the jigsaw in order to enable identification.

Dunlop went on to give two examples. In the first, he stated that in their open and public opinion on whether my petition to the nobile officium was eligible, the court had stated that I published that a complainer had been nominated to a named parliamentary constituency. This was inaccurate. Had I published that, and had the complainer in fact been nominated, we accepted it would indeed have run a grave risk of identification to the general public. What I had in fact published was that she had been – unsuccessfully – seeking nomination. That fact was not available to the general public and only known to a small number of people within her own party.

I cannot explain the second example Roddy gave without repeating information Lady Dorrian found to be identifying. It was of a similar nature in relating to information only a very small number of people would know and which the public could not find. Lord Woolman asked how this was squared with google. Dunlop replied that information of the class he was describing was not available to a google search. Dorrian was therefore in error in finding it to be identifying.

Dunlop then moved on to his fourth ground, that of the article 10 right to freedom of speech. Dunlop said that this case represented the biggest single interference with freedom of speech in the modern history of Scotland. There was simply no precedent for jailing a journalist like this. Somebody with no criminal record and a history of public service, fulfilling a public watchdog role, had been jailed for eight months. Despite having a heart condition and a weeks old baby.

Lord Pentland intervened to say that this could be because there was no precedent for the committing of such a large contempt. It was also in the unique context of the Salmond case, in which there was unprecedented public interest and therefore unprecedented need to protect the complainers. That would explain the unique consequences.

Dunlop said that to jail a journalist must be necessary in law and consistent with democracy. The law must also be foreseeable. It was impossible for a journalist to know what pieces of the jigsaw might be known to a small group of people, and therefore to know if he was providing the last piece. Lord Pentland replied that was why extreme care must be taken. Dunlop said the care could become so extreme as to have a chilling effect which made any effective reporting of sexual assault cases impossible.

Dunlop then moved on to his fifth ground of appeal, that many of the identifications found by Lady Dorrian had never been alleged by the Crown or mentioned in proceedings; so the defence had no chance to rebut them. This was heard in comparative silence.

The Crown then opened, and Alex Prentice QC, a dry and inoffensive man, spoke very briefly. He said that the Crown had already set out its position in its written submissions (I am told I am not allowed to publish these). The Crown had alleged intent against me and the court had plainly found intent, so the question of strict liability did not in fact arise.

Lord Pentland came in to help Prentice by suggesting a precedent case to him, not in the bundle of authorities, which indiicated intent was not required. Pentland asked if that case might be useful to support his assertion that there was no need to prove intent. Prentice agreed, and said “we” had been discussing that very case over lunch. It was not plain to me who “we” were.

On the question of my not having been cross examined, Prentice stated that he had personally held a number of meetings with my then QC, John Scott, to discuss evidence. These meetings were covered by confidentiality, but the crown had “certain concerns” about my giving evidence. It had therefore been agreed between the counsel that my affidavits would be entered, and I would not be cross-examined: but this did not mean that my evidence was accepted.

I was much startled to hear that.

Prentice stated that on what was the correct test for identification, the Crown had alleged that I had embarked on a publication of a course of articles designed, when taken together, to reveal identities to the general public. This was accepted by the court and no question therefore arose. Furthermore the Crown had alleged that, taken together, all of the complainers were identified by all of the articles combined. It was therefore not necessary for the Crown to have cited each individual example of identification.

Lord Pentland said that contempt of court was a summary procedure anyway so there was no need to consider these questions.

Theoretically what happened next was that Dunlop had a chance to rebut. However he was so interrupted and overwhelmed by the bench, that my notes at this point seem to consist almost entirely of what the judges said.

Lord Pentland said that Dunlop had claimed it was unique for a journalist to be jailed, but the circumstances of the Salmond case are unique, and it was essential that the identities of complainers in sexual assault cases be protected, for fear of deterring other victims from coming forward.

Dunlop said we had always accepted that, and the Salmond case was also of unique public interest.

Lord Pentland said that we were looking at a course of conduct by a person who Dunlop had stated was a highly educated man who had held responsible positions. But these were aggravating factors not mitigating factors. He said that the need to protect identities had been stressed to the public and reiterated “Mr Murray’s previous positions of responsibility are an aggravating factor in his conduct”.

Dunlop cited an ECHR ruling which stated that journalists should not be imprisoned, except in extreme circumstances such as hate speech or incitement to violence. In this case, the appropriate punishment would have been a fine.

Lord Pentland said that this case was analogous to hate speech and incitement to violence; and my sustained campaign to reveal the identities of these women could indeed have incited violence or social media hate against them. Dunlop said no such thing had happened and there was certainly no such intent.

Lord Matthews said that the protection quoted in the ECHR case extended to investigative journalism and this was not investigative journalism. It said this applied to press offences, but was this a press offence? Was I a journalist?

Lord Woolman asked whether, if I could be called a journalist, did that mean just anybody could be a journalist who published on social media?

Dunlop replied, anybody who was fulfilling the role of a public watchdog, according to the European Court of Human Rights. Lord Pentland said that particular judgement appeared to refer to NGO’s rather than individuals. Dunlop said it specifically included bloggers. Pentland said he thought it mainly meant NGO’s but they would look at it.

Lord Carloway said that it was not plain this was a press offence. In mainstream media cases, the contempt was always acknowledged and an apology proffered. However in this case, a key factor in the sentence had been my “total and utter lack of remorse”, which continued.

Dunlop said it was my position that I had not intended to identify anybody. Lord Pentland said that it was common practice for sentences to be increased for lack of remorse from those who insisted on protesting their innocence after conviction.

Dunlop said my position was that I never intended to identify anybody; I had attempted to protect identities and I believed I had succeeded in that. Nobody had in fact been identified. But I would indeed be very remorseful if identification had occurred. Carloway asked, in a tone of incredulity, if we were saying that nobody had been identified as a result of my articles. Roddy Dunlop said that was indeed what we were saying. There had never been any credible evidence that identification had occurred. Carloway said he would find that most unlikely.

And that was it.

———————————————-

That is my best shot at a fair description of today in court, leaving out anything said that could identify a witness in the Salmond case. It is of course my perception, and a distillation of a full day, and in the circumstances I can hardly be unbiased. It is not my fault the court excluded the public from attending and so limited your access to other perceptions.

We will get a written judgement in probably around a couple of months. Of course judges can be testing an argument or playing Devil’s advocate. But my honest perception was of real hostility from the court. I think you will find the above is a fair guide to what the judgement will say. My perception is that judges’ hearts were worn on sleeves today.

The attempt to claim that my affidavits have never been accepted as evidence in the case is chilling.

My affidavits, of course, state the grounds of my belief that not only was there a plot against Alex Salmond, but that the politically corrupt Scottish prosecutorial system was a part of the plot. They list the documents I had seen, in the possession of the Crown and which the court refused to disclose, that led me to understand the plot. They name Salmond’s accusers and explain their roles (which part I have never published), and outline the roles of Peter Murrell and Sue Ruddick. The links to Nicola Sturgeon are outlined.

It is therefore unsurprising that the Crown had “serious concerns” about my evidence and did not want to cross-examine me in public and give me the chance to justify it.

It is more surprising that there is now an effort to claim my affidavits do not form part of the case at all. Carloway stoutly maintained they were not evidence. When we go to the European Court of Human Rights, those affidavits will be seen by judges who are not a part of the Scottish establishment. But if the affidavits were never evidence in the case, then they cannot be presented at Strasbourg.

How the judges can maintain my affidavits, given under oath, were not evidence I do not know, especially as they are repeatedly referred to in Lady Dorrian’s judgement. How could the court judge evidence which did not exist? I have never had any expectations from this court, but this is a key point I shall be looking for in this judgement.

I am afraid that I am going to have to renew my appeal for funds to help with the legal costs. Fighting these kinds of actions is simply crippling. Your dedication to freedom and support have so far saved me from personal bankruptcy, but we now need to raise a further £80,000 immediately – of which we readers have very kindly donated over half since I made the renewed appeal two days ago.

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My appeal against imprisonment for contempt of court is to be held in Edinburgh High Court at 10.30am today. The gallery will be closed and the public excluded. Here however is the full text of the written arguments we have submitted as the basis for today’s hearing.

I promise you that they are less dull than that sounds. It is to me astonishing that these arguments have to be made. It is also significant that the appeal hearing is expected to take a full day, whereas my original trial was rushed through in under an hour. How and why it was rushed through becomes obvious if you read the arguments below.

Here is the full text of the submission for my appeal, lodged with the court:

IN THE HIGH COURT OF JUSTICIARY, EDINBURGH
UNTO THE RIGHT HONOURABLE LORD JUSTICE GENERAL, THE LORD
JUSTICE CLERK, AND LORDS COMMISSIONERS OF JUSTICIARY
HCA/2021/000014/XM
WRITTEN SUBMISSIONS
IN RESPECT OF THE
PETITION TO THE NOBILE OFFICIUM
BY
CRAIG MURRAY
PETITIONER

INTRODUCTION

1. The petitioner invites the court:
(i) To find and declare that the decision of the High Court of Justiciary of
25 March 2021 to find the petitioner in contempt of court was wrong,
unjust and contrary to law; and
(ii) To find and declare that the sentence of eight months’ imprisonment
imposed on 11 May 2021 was, in all circumstances, excessive and
contrary to law.

2. These submissions will firstly address the five grounds on which the petitioner
appeals against the finding of contempt. They will then consider the two
grounds on which the petitioner appeals against sentence.

PROCEDURAL BACKGROUND

3. The facts are set out in §4-12 of the petition and the petitioner does not seek to
rehearse them again in these submissions. The focus of this petition is: (i) the
court’s decision on 25 March 2021 to find the petitioner in contempt of court;
and (ii) its decision 11 May 2021 to impose a sentence of eight months’
imprisonment.

4. The court’s decision of 25 March 2021 was limited in its findings of contempt,
as compared to the terms of the petition which was presented by the Crown. In
particular:
a. The court did not find that the petitioner had breached the order made
in terms of s. 4 (2) of the Contempt of Court Act 1981 on 23 March 2020
(§28-31 of the court’s Opinion); and
b. The court did not find that the petitioner had breached ss. 1 and 2 of the
Contempt of Court Act 1981 (§32-42 of the court’s Opinion).

5. Accordingly, the court’s finding was limited to a finding that certain articles
published by the petitioner amounted to a contempt of court, in that they
breached the terms of the order made in terms of s. 11 of the Contempt of Court
Act 1981 on 10 March 2020. That order was in the following terms:
“The court, on the motion of the advocate depute, there being no objection, made
an order at common law and in terms of Section 11 of the Contempt of Court
Act 1981, preventing the publication of the names and identity and any
information likely to disclose the identity of the complainers in the case of HMA
v Alexander Elliot Anderson Salmond.”

6. The court found that articles published on the following dates breached the
terms of the s. 11 order: (i) 18 January 2020, (ii) 11 March 2020, (iii) 18 March
2020, (iv) 19 March 2020 and (v) 3 April 2020. It accepted that other articles
referred to in the Crown’s petition did not breach the order. In doing so, the
court applied the following test (set out at §59 of its Opinion):
“whether the material is such that, judged objectively, it was likely to lead to
identification of the individuals concerned as complainers in the case.”

THE PETITIONER’S ROLE AS A JOURNALIST
7. At the outset, is important to understand the role being exercised by the
petitioner. The petitioner is a journalist. He has published work in The Guardian,
The Independent, The Daily Mail, The Mail on Sunday and other outlets. He also
operates his own website, which hosts the majority of his most recent
publications. In that sense, he is not a journalist for the mainstream press but a
journalist in “new media”. He has authored a number of non-fiction books. His
journalistic work includes reporting on matters relating to Scottish and UK
politics, providing analysis which is informed by his former work as a
diplomat. He reports on matters which are undeniably in the public interest,
such as the trial of former First Minister Alex Salmond and the extradition
proceedings in relation to Julian Assange.

8. The petitioner made significant attempts to be accredited as a member of the
press for the purposes of reporting on the Salmond trial but was unable to gain
accreditation, for reasons that are unclear, notwithstanding his compliance
with various requests from the SCTS press office.

9. The contempt of court proceedings raised against the petitioner relate to a
number of articles which he published in relation to the prosecution of Alex
Salmond. The petitioner’s view was that Mr Salmond had been the subject of a
conspiracy which had colluded to see him prosecuted for charges he did not
commit. That was the petitioner’s genuinely held belief. Not only was it
genuinely held, but it was reasonably held; the petitioner having seen a number
of written communications which he concluded demonstrated the involvement
of various parties in such a conspiracy. Reference is made to §31-33 of the
petitioner’s affidavit of 26 January 2021. Of note, copies of those
communications are understood to be in the hands of the Crown and an
application for disclosure of those documents was made but refused by the
court on 19 January 2019. The petitioner has accordingly been denied the
possibility of vouching the reasonableness of his belief before the court.

10. Notwithstanding the petitioner’s credentials and the importance of his subject
matter, the court appears to have drawn a distinction between the petitioner
and those in the mainstream press. At §4 of its Statement of Reasons refusing
permission to appeal to the Supreme Court, the court said:
“The applicant describes himself as a “journalist in new media”. Whatever that
may involve, it is relevant to distinguish his position from that of the
mainstream press, which is regulated, and subject to codes of practice and ethics
in a way in which those writing as the applicant does are not. To the extent that
the submissions for the applicant make comparisons with other press contempts,
and the role of mainstream journalists, this is a factor which should be
recognised.”

11. Such a distinction cannot be justified. As a preliminary point, it is not an issue
which was put to the petitioner or on which any substantive submissions were
made. It was not a distinction drawn by the Crown. Had the court considered
it to be a material issue, the petitioner ought to have been afforded an
opportunity to lead evidence with regards to his journalistic credentials and
make submissions with regards to the alleged distinction.

12. More fundamentally, the distinction is wrong in principle. It is an outdated
one which fails to take account of the current media landscape. It is also entirely
inconsistent with the approach taken by the Strasbourg court in relation to the
protections afforded to journalists by Art. 10 ECHR. That assessment is a
functional one. It does not depend upon accreditation or registration with
specific media platforms. It is a protection to all those who exercise the function
of a “public watchdog”. That much is clear from the Strasbourg court’s decision
in Magywa Helsinki Bizottság v Hungary [GC], no. 18030/11, 8 November 2016, at
§168:
“Thus, the Court considers that an important consideration is whether the
person seeking access to the information in question does so with a view to
informing the public in the capacity of a public “watchdog”. This does not
mean, however, that a right of access to information ought to apply
exclusively to NGOs and the press. It reiterates that a high level of
protection also extends to academic researchers (see Başkaya and Okçuoğlu v.
Turkey [GC], nos. 23536/94 and 24408/94, §§ 61-67, ECHR 1999-IV; Kenedi,
cited above, § 42; and Gillberg, cited above, § 93) and authors of literature on
matters of public concern (see Chauvy and Others v. France, no. 64915/01, §
68, ECHR 2004-VI, and Lindon, Otchakovsky-Laurens and July v. France
[GC], nos. 21279/02 and 36448/02, § 48, ECHR 2007-IV). The Court would
also note that given the important role played by the Internet in enhancing the
public’s access to news and facilitating the dissemination of information (see
Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015), the function of
bloggers and popular users of the social media may be also assimilated
to that of “public watchdogs” in so far as the protection afforded by
Article 10 is concerned.”

13. It is respectfully submitted that the petitioner’s role and intentions are a key to
the context in which the present appeal must be considered. There is no
evidence that the petitioner sought deliberately to identify complainers for any
vindictive purpose. He was not publishing gossip. The complainers were not
the focus of his articles. The central purpose of his articles cannot fairly be
described as the identification of any complainers. The petitioner was
publishing information in relation to a genuinely held belief that there had been
very serious misconduct at high levels of public and political office. He sought
to use his platform to act as a public watchdog and report on those concerns.
The fact that his views do not accord with the analysis shared by much of the
mainstream press does not mean that he is not entitled to the full protection of
Art. 10 afforded to any other journalist. The petitioner does not challenge the
fact that the complainers’ Art. 8 rights warrant respect but to the extent that
there is any conflict between those rights and the petitioner’s Art. 10 rights, it
is important to bear in mind the purpose of the petitioner’s journalistic work.

14. Having set out that context, these submissions now consider each of the
grounds of appeal.

APPEAL AGAINST FINDING

Ground 1: the court erred in applying a rule of strict liability

15. That the court applied a rule of strict liability with regards to contempt arising
from breach of the s. 11 order is clear from the terms of §59 of its Opinion:
“Amongst submissions made for the respondent was a submission that any
breach of the order was unintentional, and as a result he should not be found in
contempt. We reject the suggestion implicit in that submission that
intent to breach the order is a requisite of a finding of contempt for
having done so. The respondent’s intent in publishing is beside the point.
The question is whether the material is such that, judged objectively, it was
likely to lead to identification of the individuals concerned as complainers in the
case.”

16. In doing so, the court erred in law. Certain breaches of the Contempt of Court
Act 1981 are subject to the strict liability rule, as defined in s. 1 of the Act.
However, the Act provides a closed list of conditions which must be satisfied
in order for the strict liability rule to apply. Of relevance to the present
proceedings, s. 2 (2) provides:
(2) The strict liability rule applies only to a publication which creates a
substantial risk that the course of justice in the proceedings in question will be
seriously impeded or prejudiced.

17. The court did not consider that the articles which were found to breach the s.
11 order created a substantial risk that the course of justice in the proceedings
would be seriously impeded or prejudiced. The court considered and rejected
the Crown’s submissions on this very issue from §32-42 of its Opinion.
Accordingly, the test in s. 2 (2) of the 1981 Act was not met; strict liability did
not attach to any publication.

18. There is no basis to import a test of strict liability into parts of the Act in which
no such test is imposed by the text. To do so offends against the intention of
Parliament; had it sought to apply a test of strict liability in relation to s. 11, it
would have done so. It also offends against the common law presumption of a
mental element in relation to statutory offences, recently reaffirmed in Pwr v
Director of Public Prosecutions [2022] UKSC 2. Given the penal consequences of
a breach of s. 11, the same presumption ought to apply as to those that create
criminal offences. The terms of s. 2 are clear: strict liability only attaches if the
conditions in s. 2 are met. The natural consequence of that language is that it
does not attach in any other situation. Of note, Gordon on Criminal Law Volume
2 (4th edn) (2017) does not refer to s. 11 in its discussion of the strict liability test
under the 1981 Act: §58.16-58.20. For all these reasons, the court erred in
applying a strict liability test, which is not justified by the terms of the statute.

19. In the absence of a strict liability test, this court must consider what the
appropriate mens rea is in order to justify a finding of contempt of court in
relation to breach of a s. 11 order. The mens rea is clearly understood in relation
to contempts arising from breach of interdict. The court ought to find beyond
reasonable doubt that the contemnor’s actions were in wilful disobedience of
the court order: McMillan v Carmichael 1994 SLT 510. A party may therefore be
in breach of the terms of a court order but nonetheless not in contempt of court:
Sapphire 16 S.A.R.L v Marks and Spencer plc [2021] CSOH 103. Breach of the order
is only the first of a two-stage test.

20. The same test ought to apply to alleged breaches of a s. 11 order. A s. 11 order
is, in effect, a statutory form of interdict. It is a court order which prevents a
party from doing something, in this case publishing certain information.
Breach of a s. 11 order is accordingly very closely analogous to a breach of a
common law interdict. The mens rea of wilful disobedience protects the same
interests as in breach of interdict proceedings: to preserve the dignity of the
court and to punish those who disrespect the court’s authority. Without wilful
disobedience, it is hard to see how disrespect has been shown to the court. The
approach set out above is all the more necessary in an era of online news and
social media, where the risk of inadvertently causing a jigsaw identification is
higher than in the past.

21. The court’s error in applying a test of strict liability is a material one in
circumstances such as these, where significant, unchallenged evidence was
placed before the court that the petitioner did not intend to breach the s. 11
order: on the contrary, he was striving not to do so.

Ground 2: the court erred in making findings contrary to the petitioner’s
affidavit when he had not been cross-examined

22. The petitioner’s position before the court was that he had never intended to
breach the terms of the s. 11 order and had, on the contrary, taken particular
care to avoid doing so. In support of this evidence, the petitioner produced two
affidavits. The petitioner’s stated intention is clear on the face of the affidavit
dated 25 August 2020:

I. §44 – “There was a period of several months when I was fully aware of
the names of the accusers and also fully aware that there was no general
law or court order in place preventing me simply from publishing. That,
however, would not have been responsible journalism.”
II. §54 – “It was, however, a challenge to work out how to tell them without
being in contempt of court given the charges against Alex Salmond. I
therefore very carefully used a number of strategies not to be in contempt
of court. Not to evade contempt of court charges; actually not to be in
contempt of court.”
III. §58 – “At the time I wrote this article there was no order in force against
publication of names. I nevertheless decided not to do that.”
IV. §64 – “I did not consider it to be in contempt of court – I had written it
carefully not to be – so I did not take it down.”
V. §70 – “I had clearly at the forefront of my mind the desire to avoid
identification of [Woman H]”
VI. §72 – “On 18 and 19 March, when I finally gained access to the court,
I continued this policy of taking great care. In writing up that evening,
I google searched on two particular pieces of evidence to check I was not
giving away identities… I was satisfied it could not, and published my
account with good conscience.”
VII. §73 – “I therefore amended my draft to delete reference to her presence
at that meeting.”
VIII. §79 – “In publishing all of my accounts of the trial, I was extremely
mindful of both the law of contempt of court and of my desire not to
identify witnesses.”
IX. §103 – “I actually drafted all that, but then did not publish it as it would
have been in contempt of court. I decided again to give no details.”

23. The Crown did not cross-examine the petitioner in relation to the contents of
his affidavit. Neither did it lead any of its own evidence; choosing simply to
rely upon the agreed facts. Neither did the court put any questions to the
petitioner, notwithstanding his senior counsel having made clear that the
petitioner would be willing to answer any questions arising. The court was
accordingly faced with a detailed account by the petitioner, sworn on oath, that
he had: (i) not intended to breach the s. 11 order; and (ii) taken various steps to
avoid breaching the order.

24. Notwithstanding this, the court rejected the petitioner’s account. At §67 of its
Opinion, the court rejected the petitioner’s explanation of his intention.
Quantum valeat, it is notable that the court chose to do so in circumstances
where it had already held that a test of strict liability applied. Such an approach
continued in the court’s Sentencing Remarks, in which it is noted that it
appeared that the petitioner was “relishing the task he set himself which was
essentially to allow the identities of complainers to be discerned…” This is, again,
contrary to the unchallenged evidence of the petitioner. The petitioner makes
three points regarding the course of action adopted by the court:

25. Firstly, in circumstances where the petitioner faced significant penal
consequences, the court ought not to have disbelieved the petitioner’s account
of his subjective intention without having given him an opportunity to explain
any matters causing doubt, either by way of cross-examination or questioning
by the court. Where a decision-maker has doubts about the honesty of a party,
as a matter of fairness, those doubts ought to be put to the party in question: R
(Balajigari) v Home Secretary [2019] 1 WLR 4647 at §55. Such a principle of
natural justice ought to apply consistently across administrative and judicial
decision-making processes. If anything, the onus is greater when a party faces
potential imprisonment. The comments of the Lord Justice-Clerk (Cooper) in
McKenzie v McKenzie 1943 SC 108 at 109 bear repetition:
“On the other hand, the most obvious principles of fairplay dictate that, if it is
intended later to contradict a witness upon a specific and important issue to
which that witness has deponed, or to prove some critical fact to which that
witness ought to have a chance of tendering an explanation or denial, the point
ought normally to be put to the witness in cross-examination.”
Such a role would ordinarily be fulfilled by the Crown but, in sui generis
proceedings such as this, if the court intends to criticise a contemnor’s account,
it ought to put the questions itself. Accordingly, it was unfair not to give the
petitioner an opportunity to answer any questions in relation to his subjective
intention.

26. Secondly, the court heard no submissions as to whether it could disbelieve the
petitioner’s affidavit, absent any contradiction. That is a matter on which it
should have allowed submissions to be made: Robertson v Gough 2008 JC 146 at
§94.

27. Thirdly, the court’s reasoning with regards to the petitioner’s intention draws
too broad an inference from conclusions it drew about specific articles. At §67
of its Opinion, the court rejects the suggestion that the petitioner had “never at
any time had the intention of publishing the names of complainers in the Salmond
trial”. In contradiction, the court points to three matters (at §70 of its Opinion):
(i) the petitioner’s supposed intention in writing the Yes Minister article; (ii) a
tweet of 19 January 2020 in relation to the Yes Minister article; and (iii) a
comment made by the petitioner in his 12 March article. It is respectfully
submitted that these three adminicles are not sufficient to justify an inference
(to the criminal standard of proof) that the petitioner intended to identify the
complainers in the other articles to which the court’s finding of contempt
relates. Intention in relation to one incident does not imply intention on any
other occasion. Of note, the Yes Minister article predated the s. 11 order. The
court did not direct its mind as to whether the existence of the s. 11 order might
have affected his intention with regards to the March articles.

28. Accordingly, the court erred in law in the way it handled the petitioner’s
unchallenged affidavit evidence.

Ground 3: the court erred in applying a test of a “particular section of the
public”

29. The court considered the issue of whether potential identification by a
particular section of the public was sufficient to make a finding that the s. 11
order had been breached at §54-58 of its Opinion. The court concluded:
“The question which must be asked is whether in its context the material was
such as was likely, objectively speaking, to lead to identification of the
complainers. If the material would be likely to enable a particular section of the
public to do so that would be sufficient.”

30. In doing so, it erred in law. The error is material. The court has, in effect,
imposed a significantly lower threshold to satisfy it that a s. 11 order has been
breached than is created by the terms of the Act. It is much more
straightforward to demonstrate that a piece of information may assist a
particular section of the public in identifying a complainer than the public as a
whole. The court has not found that, if the higher threshold of the public as a
whole was applied, the articles would still have been in breach of s. 11.

31. The court appears to have subsequently disavowed the test it set out in its
Opinion, in its Statement of Reasons refusing permission to appeal to the
Supreme Court. At §8 it notes that it did not limit any findings to the extent
that the complainers were in fact only identifiable by a particular section of the
public. This disavowal is unusual. The court devotes five paragraphs of its
Opinion to this issue. It concludes that the test is whether “a particular section
of the public” could identify the complainers. There is nothing to suggest that
a broader factual conclusion was reached, such as that any member of the
public could have identified the complainers from the articles. Accordingly, the
court’s comments at §8 of the Statement of Reasons are entirely inconsistent
with the scheme of its previous Opinion. There is no objective basis for
concluding that, having identified a specific test in §57 of its Opinion, the court
then applied a different one.

32. The terms of s. 11 are clear:
In any case where a court (having power to do so) allows a name or other matter
to be withheld from the public in proceedings before the court, the court may
give such directions prohibiting the publication of that name or matter in
connection with the proceedings as appear to the court to be necessary for the
purpose for which it was so withheld.

33. A s. 11 order is accordingly only competent in circumstances where the court
has made an order to withhold a name or other matter from “the public”. A
s.11 order is ancillary to the court’s primary power to withhold the name or
other matter from the public during proceedings: A v Procurator Fiscal, Dundee
2018 JC 93 at §27. The s.11 order accordingly cannot be stricter in its terms than
the common law order which is to exclude matters “from the public”. The s.11
order must be made “for the purpose for which” the common law order is
made. That purpose was to prevent identification by the public at large. Any
s.11 order must therefore be read as preventing the publication of information
which may give rise to the identification of complainers to the public at large.
There is no basis within s.11 of the Act (limited as it is in its terms) to suggest
that a s.11 order may restrict the publication of any matter which may identify
a complainer to a particular, potentially very small, section of the public.

34. The approach of the court also renders the reporting of any proceedings in
relation to sexual offences entirely unworkable. A journalist or editor cannot
know what information is already available to particular subsets of the public.
In almost all cases it is likely that some members of the public (particularly
those who are close to the complainers) will already hold a nearly complete set
of jigsaw pieces. For those members of the public, any further piece of
information may form the final piece of the jigsaw, which reveals the full
picture to that member of the public. Publishing any information in relation to
the trial accordingly puts a journalist at risk of a finding for contempt, simply
because some members of the public have been able to join the dots. The court’s
interpretation of the breadth of a s.11 order is accordingly likely to have a
stifling effect on the public-interest reporting of court proceedings. Only by
rendering the account unintelligible to any person who may hold relevant
background information from another source, can the media be safe that it has
not committed a contempt. Such an approach is of particular concern when its
effect is to prevent the reporting of matters of very significant interest relating
to the trial, as the petitioner sought to do.

35. The reference to O’Riordan v Director of Public Prosecutions [2005] EWHC 1240
(Admin), at §58 of the court’s Opinion, takes the point no further. That simply
assists in understanding how one should interpret the phrase “likely to lead to
identification”. It does not inform the issue as to the scope of the group the
information must be likely to inform.

36. Accordingly, the court erred in formulating too low a threshold for conduct
amounting to a breach of the s.11 order.

Ground 4: the test applied was incompatible with Art. 10 ECHR

37. The finding of contempt of court is an interference with the petitioner’s Art. 10
right to freedom of expression. That is not understood to be in dispute. Given
the importance of the matters reported on by the petitioner and the plain public
interest in reporting those matters, it is a very significant interference with that
right. It is a more serious interference than if the petitioner had intentionally
sought to identify the complainers for vindictive purposes. Such an
interference may only be justified if the interference is in accordance with Art.
10 (2); that is, if it is prescribed by law and necessary in a democratic society.
The test applied by the court is not one which is prescribed by law because it is
vague and unforeseeable.

38. In order to meet the test to be prescribed by law, a provision must be both: (i)
accessible; and (ii) expressed with sufficient precision to enable the petitioner
to regulate his conduct. The accessibility of the terms of s.11 is not challenged.
However, the test applied by the court fails the second arm of the test for two
reasons: (i) it is imprecise; and (ii) its application is unforeseeable.

39. In relation to precision, the terms of the test set out by the court bear close
consideration:
“The question which must be asked is whether in its context the material was
such as was likely, objectively speaking, to lead to identification of the
complainers. If the material would be likely to enable a particular section
of the public to do so that would be sufficient.”

40. What is “a particular section of the public”? Is it based on the number of people
who may be able to identify the complainers? If, so how many people need to
be able to identify the complainers, in order to satisfy the test? Can one person
constitute a particular section of the public? Does it matter that the section of
the public in question already holds additional information which is not
available to the public at large? Do those members of the public who are
actively trying to piece together disparate information from across the internet
constitute a particular section of the public? Do close colleagues or family
members of the complainers constitute a particular section of the public? The
court provides the potential journalist or editor with no assistance on any of
these matters.

41. The court’s imprecision feeds into the issue of foreseeability. Without clear
guidance as to what amounts to a “particular section of the public” the
potential journalist or editor is unable to anticipate the consequences of its
reporting of matters which are legitimately in the public interest, as the
Salmond trial undoubtedly was. Almost any piece of information could be the
final piece of the jigsaw for members of the public who are already aware of
various other facts in relation to the case. Accordingly, publication of any issues
in relation to the charge, the locus, the dates or any aspect of a complainer’s
evidence could result in the author or publisher being the subject of a petition
for contempt of court. A journalist or media outlet cannot adequately predict
whether the court will consider that their individual piece of the jigsaw is the
final one or not. It also gives rise to the fear of arbitrary enforcement.

42. It would be surprising if that was the court’s intention. At §44 of its Opinion,
the court makes reference to the Independent Press Standard Organisation
Editors Code of Conduct and in particular Cl. 11:
“Victims of sexual assault
The press must not identify or publish material likely to lead to the
identification of a victim of sexual assault unless there is adequate justification
and they are legally free to do so. Journalists are entitled to make enquiries but
must take care and exercise discretion to avoid the unjustified disclosure of the
identity of a victim of sexual assault.”

43. The court is clear at §47 that it would expect responsible journalists to follow
the Code of Conduct. It is respectfully submitted that the test applied by the court
goes beyond the terms of the Code of Conduct and accordingly beyond the
realms of what responsible journalists would understand their duty to be. The
Code of Conduct prohibits the identification of complainers or publication of
material likely to lead to the identification of complainers. No reference is made
to the sphere of potential individuals who might be able to identify a
complainer but, in such an absence, it is reasonable to interpret the Code as
prohibiting identification to the public at large. That is consistent with the
terms of s. 11 of the 1981 Act. It is consistent with the fact that the media
frequently does report information relating to trials which may assist small
sections of the public, who already hold additional information, in identifying
complainers. It is the only application of the Code which allows journalists and
editors any confidence that the information they intend to publish does not
breach a s. 11 order. Given the prominent role the court attributes to the Code of
Conduct, the expectations afforded by its terms ought to be given significant
weight when considering the issue of foreseeability. The problem is
compounded, given the strict liability test imposed by the court; no defence is
open to journalists on the basis that they had not anticipated that this specific
section of the public may hold more jigsaw pieces than an ordinary member of
the public.

44. The likely consequence of the court’s approach to the test is a chilling effect on
journalistic reporting of criminal proceedings. Faced with an unforeseeable
test, where identification to any ill-defined section of the public could give rise
to proceedings for contempt, it is respectfully submitted that many journalists
will err on the safe side and opt not to publish information which is otherwise
in the public interest. That may be even more so for those working as
freelancers in the new media, without the protection afforded by media
organisations with the resources to obtain formal advice and defend any
contempt proceedings. Given the emphasis which Strasbourg has placed on
freedom of expression and of the reporting and discussion of matters in the
public interest, such a chilling effect would be intolerable.

45. Accordingly, the court’s test is not consistent with Art. 10 of the ECHR.

Ground 5: the court’s finding of contempt in respect of the 18 March 2020
article was unfair at common law and incompatible with Art. 6 ECHR

46. Fair notice is a cornerstone of both the common law and the protections
provided by Art. 6. This is clear in both civil and criminal proceedings: (i) in
civil proceedings, a party may not seek to prove matters for which there are no
averments on Record; (ii) a conviction must be consistent with the terms of the
indictment; (iii) a note of argument may not raise issues not set out in the
Grounds of Appeal. Art. 6 (3) (a) of the ECHR, similarly, provides that those
facing criminal charges must be informed promptly of the nature and cause of
the accusation against him.

47. The issue of fair notice in contempt proceedings has been repeatedly
emphasised. In re Yaxley-Lennon [2018] 1 WLR 5400, Lord Burnett CJ noted at
§29:
“Procedural fairness has always been a requirement in contempt proceedings,
including the need to particularise the alleged contempt at the outset. An alleged
contemnor must know what it is he has done which is said to amount to a
contempt of court so that he can decide whether to accept responsibility or
contest the allegation. Whilst that is a common law requirement, it chimes with
article 6.3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms which requires, amongst much else, that anyone
charged with a criminal offence must (a) . . . be informed promptly, in a
language which he understands and in detail, of the nature and cause of the
accusation against him; and (b) . . . have adequate time and the facilities for the
preparation of his defence”
At §66, he continued:
In contempt proceedings, touching as they do on the liberty of the subject, there
is a need for the contempt in question to be identified with precision and the
conduct of the alleged contemnor identified with sufficient particularity to
enable him, with the assistance of legal advice, to respond to what is a criminal
charge, in all but name.

48. The requirement for fair notice ought not to be in dispute. The court itself
recognised the importance of this principle at §62 of its Opinion. The court
rejected additional submissions which were not made by the Crown within the
body of its petition. However, the court went on to fall into the same error
against which it warned the Crown.

49. The court’s decision in relation to the petitioner’s article of 18 March 2020 is
contained at §80-84. The Crown’s position in its petition was that this article
may, read with other information, identify the complainer known as Ms D:
Petition for Contempt at §33-39. It did not aver that the article would identify, or
contribute to the identification of: Ms A, B, F/J or H. The court nonetheless went
beyond the terms of the petition and made findings that the article breached
the s. 11 order in relation to those women as well. The principle of fair notice
applies equally to the submissions made by the Crown and the findings which
are open to the court. In the words of Lord Hope in Byrne v Ross 1992 SC 498 at
506:
“It is necessary in the interests of fairness that the alleged contempt should be
clearly and distinctly averred and that the proceedings for contempt be
confined to the averments.”

50. The proceedings were not confined to the averments. The court made findings
which went beyond the terms of the Crown’s averments. It was not open to it
to do so (notwithstanding its assertion at §6 of its Statement of Reasons refusing
permission to appeal) and, in doing so, it erred in law and acted unfairly et
separatim incompatibly with Art. 6 (3) (a) of the ECHR.

APPEAL AGAINST SENTENCE

Ground 1: the sentence of eight months’ imprisonment was excessive

51. The principles in relation to sentencing those who have been found to have
breached the Contempt of Court Act 1981 are helpfully summarised in Lord
Burnett CJ’s decision in Re Yaxley-Lennon [2018] 1 WLR 5400 at §80:
“the factors material to punishment can readily be adapted and applied to cases
involving breach of reporting restrictions. They would usually include: (a) the
effect or potential consequences of the breach upon the trial or trials and upon
those participating in them; (b) the scale of the breach, with particular reference
to the numbers of people to whom the report was made, over what period and
the medium or media through which it was made; (c) the gravity of the offences
being tried in the trial or trials to which the reporting restrictions applied; (d)
the contemnor’s level of culpability and his or her reasons for acting in breach
of the reporting restrictions; (e) whether or not the contempt was aggravated by
subsequent defiance or lack of remorse; (f) the scale of sentences in similar cases,
albeit each case must turn on its own facts; (g) the antecedents, personal
circumstances and characteristics of the contemnor; (h) whether or not a special
deterrent was needed in the particular circumstances of the case.”

52. Taking the above factors, and the general principles of sentencing, into account,
the sentence imposed on the petitioner was excessive. In particular, the
petitioner would highlight the following factors which were given insufficient
weight:
I. The petitioner was otherwise of good character. He had never
previously been convicted of any offence.
II. The petitioner had a long history of public service and public interest journalism.
III. The court was presented with unchallenged affidavit evidence
that the petitioner had not intended to breach the s. 11 order or to
commit a contempt of court. If the Crown, or the court, had
reason to disbelieve the evidence in mitigation, it ought to have
heard evidence in mitigation: Anthony Stewart v HM Advocate
[2017] HCJAC 86 at §9. The practice adopted by the court was
simply to reject the evidence given by the petitioner and find, on
the contrary, that he “relished” his task.
IV. It was accepted that the petitioner had a number of serious health
issues.
V. The Criminal Justice Social Work Report had identified that the
petitioner was unlikely to reoffend in the same manner: Criminal
Justice Social Work Report p. 6.
VI. The petitioner was willing, and financially able, to pay a fine.

53. The sentence imposed was also inconsistent with comparative sentences for
breaches of reporting restrictions:
I. HM Advocate v Clive Thomson (25 February 2021) also concerned a
breach of the s. 11 order put in place in relation to the Salmond
trial. The contemnor in that case was found to have deliberately
named five of the complainers on Twitter and associated them
with the initials being used by the media. The contemnor’s
actions were described as a “blatant and deliberate breach of the
order”. The same cannot be said of the petitioner’s actions, both
in light of his affidavit and the steps taken by him to try to avoid
identification.
II. HM Solicitor General v Mayfield [2021] EWHC 1051 (QB)
concerned the breach of a reporting restriction order by posting
the names of prosecution witnesses on Facebook and posting
videos and photos taken from inside the courtroom along with
text identifying the witnesses. A twelve-week custodial sentence,
suspended for two years was imposed. Again, this is in the
context of a deliberate and specific identification of those
protected by the reporting restriction.

54. In light of all the above, a custodial sentence of eight months was excessive.

Ground 2: the sentence of eight months’ imprisonment was incompatible
with Art. 10 of the ECHR

55. This ground of appeal proceeds on the basis of two propositions: (i) the
petitioner is a journalist; and (ii) it will be disproportionate to sentence a
journalist to a custodial sentence as a result of what they publish, except in
exceptional circumstances.

56. Strasbourg has repeatedly emphasised the important role that journalists play
in civil society: Delfi AS v Estonia (2016) 62 EHRR 6 §133-134; Magyar
Tartalomszolgaltaok Egyesülete and Index.hu Zrt v Hungary, no. 22947/13, 2
February 2016 at §56. Their freedom of expression is accordingly worthy of
particular protection.

57. In seeking to limit the protections afforded to the petitioner by reason of the
form his publishing takes, the court erred. In substance, his work is journalism
and is worthy of the same protections. The petitioner is a “public watchdog”.
That role must include those, such as the petitioner, whose work criticises the
mainstream account. The petitioner accepts that his activities must be held to
the same standards as mainstream journalists (a submission which was noted
by the court at §47 of the court’s Opinion), but the corollary is that he is subject
to the same protections as the mainstream press. The fact that he publishes
through new media is irrelevant and the court erred in drawing such a
distinction.

58. If the same standards are applied to the petitioner as the mainstream press,
then a custodial sentence of eight months cannot be seen as a proportionate
disposal in relation to the finding of contempt.

59. The principle that press offences ought not ordinarily to be punished with
custodial sentences has been clear since at least the Strasbourg court’s decision
in Cumpana and Mazare v Romania (2005) 41 EHRR 14. At §115 the court notes:
“Although sentencing is in principle a matter for the national courts, the Court
considers that the imposition of a prison sentence for a press offence will be
compatible with journalists’ freedom of expression as guaranteed by Art.10 of
the Convention only in exceptional circumstances, notably where other
fundamental rights have been seriously impaired, as, for example, in the case of
hate speech or incitement to violence.“

60. Exceptional circumstances do not exist in this case. The petitioner has not
published hate speech, nor has he incited violence. There are no features of this
case which are analogous to these extreme examples. The importance of
complainer anonymity is, of course, important but it cannot be said that the
publication of information which may, inadvertently, lead to the identification
of the complainers by a discrete and undefined section of the public, is
sufficiently serious as to justify the imposition of an eight-month custodial
sentence on a journalist who was exercising his role as a public watchdog. The
Strasbourg court has made no suggestion that circumstances analogous to
those in this case amount to the exceptional circumstances required by
Cumpana and Mazare. In such circumstances, it is not for the domestic courts to
dilute the protection afforded by Strasbourg: R (AB) v Secretary of State for Justice
[2021] UKSC 28 at §54.

61. It has already been submitted that the imprecision of the test set out by the
court is likely to have a chilling effect of press reporting on criminal
proceedings. That is a fortiori the case in circumstances where an inadvertent
breach of a s. 11 order may have the effect of subjecting a journalist or publisher
to a lengthy custodial sentence. Such a chilling effect is to be discouraged and
the approach taken by the court in the petitioner’s case is accordingly
inconsistent with Strasbourg’s jurisprudence in relation to Art. 10.
62. Again, considerations of comparative justice are instructive. The petitioner has
been subject to a longer custodial sentence than was imposed in Clive Thomson
which concerned a non-journalist deliberately identifying the complainers by
name. There is no principled basis to argue that the activities of the petitioner
were more prejudicial to the rights of the complainers than in that case and
certainly no basis to support a finding that his activities constituted exceptional
circumstances in the sense referred to in Cumpana and Mazare. The imposition
of a fine could have marked the court’s disapproval of the petitioner’s conduct
and, accordingly, the more restrictive disposal of a custodial sentence was
disproportionate and not in accordance with Art. 10 ECHR.

CONCLUSIONS
63. There is no evidence that the petitioner intended to identify any complainer.
Indeed, there is no evidence that any member of the public has identified a
complainer from the petitioner’s articles. There was unchallenged evidence
before the court that the petitioner had sought at all times to remain on the right
side of the s. 11 order. In such circumstances, both the finding of contempt and
the sentence imposed cannot be supported.

64. The court erred in law in finding the petitioner in contempt of court. There is
no basis for: (i) applying a test of strict liability; (ii) criticising the petitioner’s
unchallenged evidence; (iii) applying a test of identification of “identification
to a particular section of the public”; nor (iv) making findings that went beyond
the notice given in the Crown’s petition. Accordingly, declarator ought to be
granted that the finding was wrong, unjust and contrary to law.
65. The court also erred in imposing an eight-month custodial sentence. This was:
(i) excessive at common law; and (ii) a disproportionate interference with his
Art. 10 rights. Accordingly, declarator ought to be granted that the sentence
was excessive and contrary to law.

Roddy Dunlop QC, Dean of Faculty
David Blair, Advocate
2 February 2022

I am afraid that I am going to have to renew my appeal for funds to help with the legal costs. Fighting these kinds of actions is simply crippling. Your dedication to freedom and support have so far saved me from personal bankruptcy, but we now need to raise a further £80,000 immediately – of which we readers have very kindly donated over half since I made the renewed appeal two days ago.

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I will never get back the four months of my life I spent locked at least 22.5 hours a day in a 12 foot by 8 foot cell. I have nothing personally to gain from carrying on the legal fight – I was a civil prisoner and do not have a criminal record.

But the legal distinction made by Lady Dorrian’s judgement between “new media” and “mainstream media”, in terms of their liability to prosecution and to imprisonment, has to be fought, because coming from a three judge bench of the High Court in Edinburgh it is a citable precedent throughout many English speaking jurisdictions (and is directly contrary to ECHR rulings).

On Wednesday we appeal to the nobile officium, the Scottish appeal court of five High Court judges, where Lord President Carloway will hear the appeal. In pursuit of my commitment to Open Justice and to giving readers original sources so they can make up their own mind, I had intended to publish our Submissions to the Court here, but the legal team informs me I cannot in law do this until the court starts its hearing. So watch this website on Wednesday.

However what I can tell you is that a common theme emerges from the various points of appeal – the arbitrariness of Lady Dorrian’s proceedings. Consider these points, all part of my appeal:

1) Neither the Crown nor the Court ever suggested in the proceedings or papers, a distinction between “mainstream media” or “new media”. It was never put to us, so we could never argue against it. Lady Dorrian simply formed it in her head and then set it in stone. Had the distinction been put to us at the trial, we would have wished to bring forward expert witnesses to refute Lady Dorrian’s dicta that “mainstream media” is more ethical than “new media”. To introduce the distinction into law is deeply worrying. To do so without hearing arguments is extraordinary.

2) The majority of the jigsaw clues to identification found in Lady Dorrian’s judgement, were never in the accusation against me, so we had no opportunity to refute them in court. The Crown identified in its petition a number of phrases they claimed could be identifying, and we argued in submissions and in my affidavits that this was not so. But Lady Dorrian in her judgement came up with a number of new phrases she stated were identifying, but which proposition had never been put to me in proceedings, and I had no idea were claimed to be identifying, until the judgement.

3) Lady Dorrian entirely discounted my affidavits as untruthful without ever putting that to me to give me a chance to respond. I submitted two detailed affidavits on oath setting out that it had never been my intention to disclose identities. I stated the steps I had taken to ensure I did not do so, and how my precaution was greater than that of the mainstream media. My counsel informed the court that I was prepared to answer any questions on my affidavits, either from the Crown or from the Court. Both Crown and Court declined to question me. The normal presumption is that if evidence is not challenged in court, it is accepted. To dismiss my affidavits with no cross-examination is extraordinary.

4) Lady Dorrian had based her substantial prison sentence on her judgement that I had “relished” giving clues to identity. This had not been alleged by the Crown, the court had heard no evidence from anybody to this effect, and it was directly contrary to my own unchallenged evidence on oath.

5) It is impossible for the journalist to know exactly where the line lies for “jigsaw identification”. My article of 11 March, for example, consisted entirely of material gleaned from mainstream media as I was not in court nor yet had my own sources in court on that day, yet I was found in contempt for publishing nothing but what the mainstream media had already published.

This is all remarkably arbitrary, in the most literal sense.

These are points of process. The more fundamental point is that I, as a journalist, had access to both written and eye witness evidence that led me to believe that the current First Minister of Scotland was orchestrating a plot to frame the former First Minister of Scotland on entirely false charges: a belief of which I am now quite certain. This was a matter of the highest possible public interest leading to an overwhelming Article 10 ECHR right to publish. I realised that right was in conflict with the Article 8 right of the accusers to the privacy ordered by the Court, and I did my best to balance the two (even when I was publishing articles on the plot for eight months before there was a court order in place protecting identities).

However, Lady Dorrian gave no weight whatsoever to the Article 10 Freedom of Speech side of this equation. This was worsened by the fact that the Crown held the documents which I had seen which convinced me of the plot against Salmond, many of which are still not public, and the Court refused my application for their disclosure, so I could assert the reasonable grounds for my belief in the plot against Salmond.

The current situation is that Wednesday’s appeal will be held with no public gallery and no streaming or dial-in access. I have asked my legal team to object to this, and will keep you posted. I am frankly furious that the public will be kept away from the hearing.

I am afraid that I am going to have to renew my appeal for funds to help with the legal costs. Fighting these kinds of actions is simply crippling. Your dedication to freedom and your support have so far saved me from personal bankruptcy, but we now need to raise a further £80,000 immediately.

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Last week the mainstream media was full of stories of “top aides” quitting Downing Street. But typically the real scandal was entirely missed – the fact that ever-increasing numbers of unqualified and unelected political hacks are given positions of real power, and large salaries, at public expense.

The question is not why Munira Mirza resigned, the question is why the taxpayer was paying £143,762 a year in salary to this very dubious failed politician. Similarly, can anybody find anything about Elena Narozanski that remotely suggests she was worth a public salary of over £80,000 to provide policy advice on equalities to Boris Johnson? What precisely were her qualifications and experience for that kind of income and influence?

There are currently 113 Special Advisers in Whitehall. That has increased steadily over the last thirty years. Liz Truss as Foreign Secretary, for example, has five where Robin Cook had two. Since 2011 there has been a requirement to publish an annual report giving numbers and cost.

The first annual report in 2012 showed, under David Cameron, 78 Special Advisers with a total paybill of £6.2 million. The most recent report shows this has leapt to 111 special advisers with a paybill of £11.9 million. That is £11.9 million to pay Tory Party hacks (because that is all they are) over £100,000 a year each on average.

Did you ever wonder where Dominic Cummings came from? He went from somebody very few had ever heard of, to the man running the country, in an extraordinarily brief period of time. Which did not involve anybody ever having voted for him.

Well, in the 2012 report, there he is, already ensconced behind the scenes on £69,266 a year of public money, as Special Adviser to Gove as Minister of Education. There Cummings epitomised the Special Adviser by bullying and harassing long-serving civil servants who actually did know something about education. The taxpayer had to pay compensation to one female victim.

Special Advisers are supposed to fulfil the role of Stalin’s political commissars, ensuring the ideological views of the party are adhered to by the government machine.

There is in fact little evidence the civil service is unable to put into effect the ideological views of governments. The Attlee government introduced the largest revolution in the British state of modern times, nationalising the major industries and utilities and creating the National Health Service, with no Special Advisers at all. Ministers told the civil service what to do, and the civil service did it. Margaret Thatcher ran a counter-revolution with a government that had about two dozen Special Advisers in an average year.

John Major had at most 38; but like tuition fees, academy schools, illegal wars and many other terrible things in public life, it was Tony Blair who first initiated the great expansion of Special Advisers, to 84. Gordon Brown, David Cameron and Theresa May maintained this or a slightly lower level, until the Johnson boom.

Special Advisers are an actively dangerous tumour on the body politic. Neither elected, expert nor accountable, they are the most entitled and irresponsible set of people, suddenly handed very real and entirely unmerited power. I recognise precisely that arrogance, that sense of entitlement, in the culture of elite privilege that, in their minds alone, justified the culture of partying through lockdown in government buildings, hidden by the multiple screens of official security.

Four of the five “aides” who resigned from Downing Street last week were Special Advisers. I strongly suspect Special Advisers were the main instigators and participants in the parties being investigated by Sue Gray.

It is a factor which the mainstream media has been peculiarly reluctant to explore, and indeed so has Sue Gray. While her “update” at para 20 refers to “officials and special advisers”, there is no indication within it that she is considering the Hooray Henry culture of Tory Special Advisers as central to what has gone wrong. She is ignoring the actual cause, deliberately.

Gray’s conclusion at 23 (vii) that the problem is that the Prime Minister needs even more staff, can only be a prelude to a ridiculous “pressure of work” exoneration cooked up for her final report. Johnson has in consequence announced that he will create an “Office of the Prime Minister” – all of which misdirection is going to lead to the public purse shelling out money to an even greater number of Special Advisers for the new Office.

One of the five aides who resigned last week was Martin Reynolds, the Principal Private Secretary, who is indeed a career civil servant, not a SPAD. In his case “resigned” should be qualified as I understand he is just returning to the Foreign Office. Reynolds is, like David Frost, an example of a civil servant Johnson came across who shared Johnson’s political enthusiasms, and consequently got promoted far beyond his talents.

There has been insufficient scrutiny on Reynolds. As he is both an experienced career civil servant and a lawyer, there is no excuse whatsoever for his sending out invitations to parties in the garden during lockdown, as nobody denies he did on at least one occasion. As a life member of the senior civil servants’ trade union, the First Division Association, it does not really behove me to say that Reynolds should be sacked, but…

Scotland too suffers from infection by Special Advisers. In 2018 it had 14 Special Advisers – SNP party hacks paid from the public purse – costing the Scottish taxpayer over £1 million a year. The Scottish Government is extraordinarily defensive about them. Unlike Westminster, the Scottish government does not provide an annual report on Special Advisers, although it is supposed to do so under the same legislation covering Westminster. Instead, it gives the information out in reply to a well buried written parliamentary question.

This reply from the Scottish Government to a freedom of information request is deliberately obstructive and unhelpful:

Under the terms of the Constitutional Reform and Governance Act 2010, the First Minister is responsible for all Special Adviser appointments and is required to prepare an annual report setting out the number and cost of Special Advisers and to lay it before the Scottish Parliament. Therefore, some of the information that you have requested about Special Advisers has been provided previously in response to Written Scottish Parliamentary Questions (PQs). Under section 25(1) of FOISA, we do not have to provide you with information if it is already reasonably accessible to you. All Scottish PQs and their replies are published on the Scottish Parliament website. The search facility is available at:

http://www.scottish.parliament.uk/parliamentarybusiness/28877.aspx

The reply goes on to give the serial numbers for the relevant questions, but if you enter each serial number in to the search facility you get every government initiated parliamentary question for that session, and you have to search manually through a great many to find the answer you want. It all seems a less than open way of putting out information the Scottish government has a legal obligation to publish.

Sturgeon’s special advisers are particularly pernicious. They are used as a conduit to leak to the media, and famously were involved in orchestrating the attempt to have Alex Salmond falsely convicted. The mainstream media unanimously presented the SPADs involved in the orchestration as “civil servants”, to give a misleading impression of reliability and impartiality.

You may ask, why do the opposition not campaign against this Spad disease affecting our politics? Well, the problem is that they are in on the act. The opposition parties receive “Short money” and “Cranborne money” from the taxpayer to finance their own cadre of political hacks. The more Special Advisers there are, the more cash the opposition parties get. Thus in 2021 the Tories got £11.9 million of your and my money for Special Advisers, but the opposition parties split £10.2 million of public money from Short and Cranborne plus a further £1.1 million in “policy development grant”.

In fact the nomenklatura of unelected opposition hacks supported by the taxpayer is a slightly larger number of people than government special advisers, though on average paid a bit less.

This public financing of political parties – for that is what it is – has been brought in by stealth and foisted on the people. Opinion polling has always found strong opposition to the public purse funding political parties. When you add to these SPADs and Short staff, the ever expanding allowance for personal staff for each MP, again funded by the taxpayer, the problem is serious.

It is not that they constitute any even slightly significant percentage of overall public spending. It is that we have bred an entire political class, unelected, entitled and deeply unpleasant, who enter politics as a profession. Labour Special Advisers and Short money staff, with no interest whatsoever in socialism, played a key role in the destruction of Jeremy Corbyn.

I believe strongly that those engaged in politics, and in putting ideas to the people for democratic choice, should do so at their own expense. Voluntary associations of any kind may choose to back parties. But political activity, as opposed to the business of the government, should not be state funded. It gives established parties a huge advantage over fresh ones, and of course encourages the narrowing of political thought to fall within the doctrine of the state.

Special Advisers, Short money and all public payments to political parties should be abolished. They have a disastrous effect on politics, of which the partygate scandal has given us a little glimpse, though the issues run much deeper.

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It feels like a recurring nightmare. On the sadly misnamed sleeper train once again, down to London and a dash to the Royal Courts of Justice to hear yet another judgement intoned. Julian not in court again and not in good health; Stella battling on but fighting to keep her health as well; Gareth Peirce her calm and unstoppable self; my friends from Wikileaks marshaling legal and media resources and remaining determinedly resolute and cheerful.

The Lord Chief Justice of England and Wales, Ian Duncan Burnett, is just the sort of chap you would want to play the role in a comic opera production. Burly, with a broad open face crowned with full white hair, he exudes solidity, bonhommie and natural command. You expect him to deliver his judgement and then stroll over the Strand to Simpson’s for a few thick slices of roast sirloin and a bumper of claret. I don’t mean that as a criticism; I like nothing better myself.

The Lord Chief Justice doesn’t just get his own office; he does not just get the best scarlet silly costume you can imagine; he gets his very own court. What a court it is; acres of polished wood, larger than some theatres; galleried and storeyed, walls at every level lined all round with thousands upon thousands of exquisitely bound law books, locked behind glass doors which I strongly suspect are only ever opened to add another book destined to spend its natural life in there unvisited, with no possibility of parole.

The Lord Chief Justice gets a very high bench, so you all have to look right up to him; a construction made of several tons of mahogany, which looks like it should be draped with potted palms, have moustachioed waiters in tight white jackets popping in and out of its various stairways and entrances carrying silver trays, and house a string quartet in the corner. Rumour has it that there is in fact a string quartet in a corner, which has been trying to leave since 1852.

The Lord Chief Justice suddenly materialises from his own entrance behind his bench, already high above us, so he doesn’t have to mount the mahogany and risk tripping over his scarlet velvet drapery. I like to imagine he was raised up to the requisite level behind the scenes by a contraption of ropes and pulleys operated by hairy matelots. Next to him, but discreetly a little lower, was Lord Justice Holroyde, who delivered the judgement now appealed against, and today looked even more smug and oleaginous in the reflected glow of his big mate.

The appearance lasted two minutes. Burnett told us that the Court certified, as being a matter of general public interest, the question of whether “Diplomatic Assurances” not submitted in the substantive hearing, could be submitted at the appeal stage. It did not so certify the other points raised; it refused leave to appeal to the Supreme Court.

You can ignore the last phrase; it is customary that the High Court refuses leave to appeal; with the certification of public interest, Julian can now appeal direct to the Supreme Court which will decide whether or not to take the case. The refusal of leave by the High Court is purely a show of deference to the Supreme Court, which decides itself what it will take. The lawyers put this as “the Supreme Court dines a la carte”.

Now some of the appeal points which the High Court refused to certify as arguable and of general public interest, were important. One point was that the diplomatic assurances by the United States promised not to engage in certain illegal practices amounting to torture, but made that assurance conditional on Assange’s future behaviour.

Now, legally prohibited treatment of prisoners does not become lawful if the prisoner does something wrong. That ought to have been a slam-dunk argument, even without the fact that the decision on Assange’s future behaviour would be made by precisely the same authorities who plotted to kidnap or murder him.

All of which was not certified as an arguable point of law of general public interest.

What is certified and going forward is the simple question of whether the diplomatic assurances were received too late. Rather peculiarly, the High Court judgement of Burnett and Holroyde, against which Julian was seeking leave to appeal, blamed extradition magistrate Vanessa Baraitser for not having asked the United States for diplomatic assurances at the earlier stage.

The doctrine that a judge should suggest to counsel for one party, helpful points to strengthen their case against the other party, is an entirely new one in English law. The United States could have submitted their diplomatic note at any stage, but chose not to do so, in order to see if they could get away with making no commitment as to Assange’s treatment. They only submitted a diplomatic note after they lost the original case. It was not for Baraitser to ask them to do it earlier and the suggestion is a ludicrous bit of special pleading by Burnett.

This is more than just a procedural point. If the assurances had been submitted to the magistrate’s court, their value could have been objected to by Assange’s defence. The self-canceling conditionalities within the assurances themselves could have been explored, and the United States’ long record of breaking such assurances could have been discussed.

By introducing them only at the appeal stage, the United States had evaded all scrutiny of their validity.

That was confirmed by today’s judgement. Questions of the viability of assurances that, inter alia, make torture a future option, were ruled not to be arguable appeal points.

So the certified point, whether assurances can be submitted at the appeals stage, is not really just about timing and deadlines, it is about whether there should be scrutiny of the assurances or not.

However it does not look like a substantial point. It looks like just a technical point on timing and deadlines. This is very important, because it may be the screen behind which the British Establishment is sidling slowly towards the exit. Was Lord Burnett looking to get out of this case by one of the curtained doors at his back?

If any of the other points had been certified, there would have been detailed discussion in court of the United States’ penchant for torture, its dreadful prison conditions, and its long record of bad faith (it is an accepted point of law in the United States that domestic authorities are not bound by any assurance, commitment or even treaty given to foreign governments). For the Supreme Court to refuse Assange’s extradition on any of those grounds would be an official accusation against the United States’ integrity, and thus diplomatically difficult.

But the Supreme Court can refuse extradition on the one point now certified by the High Court, and it can be presented as nothing to do with anything bad about the USA and its governance, purely a technical matter of a missed deadline. Apologies all round, never mind old chap, and let’s get to the claret at Simpson’s.

Can there really be an end in sight for Julian? Is the British Establishment quietly sidling to the exit?

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Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

Subscriptions to keep this blog going are gratefully received.

Choose subscription amount from dropdown box:

Paypal address for one-off donations: [email protected]

Alternatively by bank transfer or standing order:

Account name
MURRAY CJ
Account number 3 2 1 5 0 9 6 2
Sort code 6 0 – 4 0 – 0 5
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Bank address Natwest, PO Box 414, 38 Strand, London, WC2H 5JB

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Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.