Introduction

The case of HER MAJESTY'S ADVOCATE against Craig Murray ([2021] HCJ 2) was adjudicated by the Scottish High Court of Justiciary on March 25, 2021. The proceedings centered on allegations of contempt of court against Craig Murray, a journalist, for publishing articles and social media posts that allegedly breached court orders aimed at protecting the anonymity of complainers in a sexual offense case.

The key issues revolved around whether Murray's publications disclosed information likely to identify the complainers, thereby prejudicing the trial of Alexander Elliot Anderson Salmond, the former First Minister of Scotland, who was acquitted of all charges. The parties involved included HER MAJESTY'S ADVOCATE as the petitioner and Craig Murray as the respondent.

Summary of the Judgment

The court meticulously examined twelve articles and two tweets authored by Murray, assessing their compliance with existing court orders under the Contempt of Court Act 1981. The primary contention was whether these publications contained information that could lead to the identification of complainers involved in the trial, despite conventions and guidelines that traditionally protect such anonymity in Scotland.

The High Court ultimately found Murray in contempt of court for several of his publications. Specifically, certain articles contained details that, when read either individually or collectively, were deemed likely to disclose the identities of four different complainers. This breach was particularly significant given the lack of statutory provisions in Scotland guaranteeing complainer anonymity, relying instead on media conventions supported by entities like the Independent Press Standards Organisation (IPSO).

However, the court did not find merit in Murray's argument that his breaches were unintentional and thus incompatible with his rights under Article 10 of the European Convention on Human Rights.

Analysis

Precedents Cited

The judgment extensively referenced several key cases, including:

• Robb v Caledonian Newspapers Ltd (1995): Highlighted the necessity for prompt contempt proceedings to prevent interference with justice.
• Muirhead v Douglas (1979): Established that intent is not required for contempt; negligence or disregard suffices.
• Attorney General v English (1983): Emphasized that the risk to justice must be assessed at the time of publication, irrespective of trial outcomes.

These precedents shaped the court’s understanding of contempt in the context of media publications, especially regarding the protection of sensitive information.

Legal Reasoning

The court employed an objective test to determine whether the published material was likely to lead to the identification of the complainers. This involved assessing the content of Murray's articles and tweets against the scope of the court's orders under the Contempt of Court Act 1981, specifically sections 11 and 4(2).

The absence of statutory anonymity in Scotland meant that protection relied heavily on media conventions and court orders. The court underscored that even without explicit statutory provisions, the anonymity of complainers in sexual offense cases is a critical aspect of ensuring justice and encouraging victims to come forward.

Impact

This judgment reinforces the boundaries within which media entities must operate when reporting on sexual offense cases in Scotland. It clarifies that:

• Conventions and codes, like those from IPSO, hold substantial weight in protecting complainers' identities.
• Courts will actively enforce orders preventing the disclosure of sensitive information, even in the absence of statutory anonymity provisions.
• Journalists and media outlets must exercise heightened caution to avoid prejudicing ongoing or concluded legal proceedings.

Future cases involving similar allegations will likely reference this judgment to balance freedom of expression with the imperative of protecting individuals' identities in sensitive legal contexts.

Complex Concepts Simplified

Jigsaw Identification

Jigsaw identification refers to the process where disparate pieces of information are combined to identify an individual. In legal terms, even if no single fact directly reveals a complainer's identity, the aggregation of multiple innocuous details can lead to identification, thereby breaching anonymity protections.

Section 11 of the Contempt of Court Act 1981

Section 11 empowers courts to prohibit the publication of specific information in connection with legal proceedings. In this case, it was used to prevent the dissemination of details that could expose the identities of complainers in a sexual offense trial.

Article 10 of the European Convention on Human Rights

Article 10 safeguards the right to freedom of expression. However, this right can be lawfully restricted to protect other significant interests, such as the integrity of the judicial process and individuals' rights to privacy and protection from harm.

Conclusion

The High Court's judgment in HER MAJESTY'S ADVOCATE against Craig Murray serves as a pivotal reference point for the enforcement of contempt of court in the context of media publications. By upholding the sanctity of court orders designed to protect complainers' anonymity, the court reaffirmed the delicate balance between freedom of expression and the imperative to safeguard individuals involved in sensitive legal proceedings.

This decision underscores the responsibility of journalists and media outlets to adhere to established conventions and legal orders, ensuring that their reporting does not inadvertently compromise the fairness of trials or the privacy of those involved.

Moving forward, the judgment will influence how media entities navigate the reporting of sexual offenses in Scotland, emphasizing the need for diligent adherence to anonymity protections and the consequences of failing to do so.