Craig Murray v Her Majesty’s Advocate: Strengthening Court Orders on Complainant Anonymity in Sexual Offence Trials

Introduction

The case of Craig Murray v Her Majesty’s Advocate ([2022] ScotHC HCJAC_14) presents a significant development in the enforcement of court orders designed to protect the anonymity of complainers in sexual offence trials. The Scottish High Court of Justiciary examined whether the petitioner, Craig Murray, had breached a court order by publishing materials that led to the identification of complainers in the high-profile trial of former First Minister Alex Salmond on sexual offences charges.

Craig Murray, a retired diplomat, historian, and self-described journalist, challenged a finding of contempt of court that alleged he had disobeyed an order prohibiting the publication of any information likely to disclose the identity of the complainers. His actions included publishing multiple articles and a tweet that, according to the court, contained information leading to the potential identification of several complainers. The key issues revolved around the interpretation of "strict liability" in contempt cases, the adequacy of the court's findings against the affidavit evidence presented by Murray, and the proportionality of his sentencing.

Summary of the Judgment

The High Court upheld the initial finding that Craig Murray had indeed committed contempt of court by violating the order protecting the identities of the complainers in Alex Salmond’s trial. The court determined that Murray's publications, including articles dated between August 2019 and April 2020 and a related tweet, contained sufficient detail to lead a "particular section of the public" to identify the complainers, thereby breaching the court order.

Consequently, Murray was sentenced to eight months of imprisonment, a decision that was deemed proportionate given the severity and repeated nature of the breaches, the high-profile nature of the trial, and the significant risks posed to the complainers' privacy and safety. The court rejected Murray's appeals, reinforcing the application of strict liability in such cases and the importance of maintaining the integrity of judicial processes.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that underpin the legal framework surrounding contempt of court and the protection of complainant anonymity:

• Brown v. United Kingdom (2002): This case highlighted the European Court of Human Rights' stance on protecting the anonymity of complainers to encourage reporting and fair trial participation.
• SN v. Sweden (2004): Reinforced the proportionality of measures taken to protect complainers' rights, emphasizing the personal ordeal faced during sexual offence trials.
• Muirhead v. Douglas (1979): Established that deliberate breaches of court orders, especially those related to contempt, do not require proving intent to defy the court.
• Byrne v. Ross (1992): Emphasized the necessity for clear and specific averments in contempt proceedings.

These precedents collectively influenced the court's approach, affirming that strict liability applies in contempt cases where the publication violates clear court orders, regardless of intent.

Legal Reasoning

The court's legal reasoning centered on the principle of strict liability in contempt of court cases. It affirmed that intention to defy the court was irrelevant in establishing contempt; rather, the focus was on whether the published material objectively posed a real risk of identifying the complainers.

The judgment underscored that the protection of complainant anonymity is paramount to ensure the integrity of the judicial process and the safety of those involved. Even though Murray argued that his actions were in the public interest, the court held that the repeated and calculated breaches of the court order outweighed his assertions.

Additionally, the court dismissed Murray's arguments regarding the vagueness of the contempt law, maintaining that the order was clear and specific in prohibiting information that could lead to the identification of complainers. The aggregation of seemingly innocuous details across multiple publications was sufficient to establish a breach.

Impact

This judgment has profound implications for future cases involving contempt of court, particularly concerning the protection of complainant anonymity in sexual offence trials. It reaffirms the judiciary's stringent stance on upholding court orders and underscores the limits of journalistic freedom when it intersects with judicial directives.

Furthermore, the ruling delineates the boundaries between responsible journalism and actions that may compromise judicial processes. It serves as a deterrent against attempts to undermine court orders through indirect means, such as the publication of coded or partial information.

The case also highlights the necessity for clear legislative frameworks governing contempt of court, ensuring that legal professionals can enforce orders effectively without ambiguity. This clarity is essential to balance the right to free expression with the imperative to protect the rights and safety of individuals involved in legal proceedings.

Complex Concepts Simplified

Contempt of Court

Contempt of court refers to actions that disrespect or disobey the authority and rules of the court. In this case, publishing information that could disclose the identities of complainers in a sexual offence trial was deemed contemptuous because it violated a specific court order.

Strict Liability

Strict liability means that a person can be held liable for an action regardless of intent or negligence. In the context of contempt, it implies that if a court order is clear, any breach of that order can result in contempt charges, even if the person did not intend to defy the court.

Nobile Officium

The term nobile officium refers to the noble duty of upholding the law and maintaining the integrity of legal proceedings. Petitioning the nobile officium allows individuals to challenge findings of contempt, as Murray attempted in this case.

Editors' Code of Practice

The Editors' Code of Practice is a set of guidelines that mainstream media outlets follow to ensure responsible journalism. It includes provisions to protect the anonymity of complainers in sexual offence cases, aligning with legal requirements and ethical standards.

Conclusion