Judicial Clarification on the Competency of Petitions to the Nobile Officium in Contempt of Court Cases: [2022] HCJAC 5

Introduction

In the landmark case Craig Murray v. Her Majesty's Advocate ([2022] HCJAC 5), the Scottish High Court of Justiciary addressed the procedural intricacies surrounding the use of petitions to the nobile officium in challenging contempt of court findings. Craig Murray, the petitioner, was convicted of contempt for breaching a court order during the trial of former First Minister Alex Salmond. Having been denied permission to appeal to both the High Court and the UK Supreme Court, Murray sought to overturn the contempt conviction through a petition to the nobile officium. This commentary delves into the court's ruling, the legal principles established, and its implications for future contempt proceedings in Scotland.

Summary of the Judgment

Murray was sentenced to eight months imprisonment for contempt of court after publishing articles that allegedly violated a court order concerning the Salmond trial. His initial attempts to appeal the finding to higher courts were unsuccessful, prompting him to file a petition to the nobile officium—an extraordinary legal remedy—to challenge both the contempt finding and the sentence. The High Court examined whether the petition was a competent avenue for such challenges, especially given that it encompassed both Convention (European Convention on Human Rights) and non-Convention grounds. The court ultimately ruled that the petition was not a competent means to challenge the contempt finding under the circumstances, primarily due to the existence of parallel appeal mechanisms that supersede the nobile officium in certain contexts.

Analysis

Precedents Cited

The judgment referenced several key precedents that guided the court's decision:

Robertson and Gough v HM Advocate (2008 JC 146): Affirmed the competency of petitions to the nobile officium for challenging contempt findings.
Mayer v HM Advocate (2005 JC 121): Supported the use of the nobile officium in seeking judicial review of contempt decisions.
Express Newspapers, Petitioners (1999 JC 176): Highlighted the competency of such petitions when a three-judge bench acts as a court of first instance.
HM Attorney General v Crosland [2021] UKSC 58: Emphasized the right of a person found in contempt to appeal.
Anderson v HM Advocate (1974 SLT 239): Established that petitions to the nobile officium are available only when no other legal remedy exists.

These precedents were instrumental in shaping the court's understanding of when the nobile officium is an appropriate forum for appeals, particularly in cases intertwining statutory provisions and human rights considerations.

Legal Reasoning

The court's legal reasoning centered on the compatibility and exclusivity of appeal avenues. With the introduction of section 288AA of the Criminal Procedure (Scotland) Act 1995, there exists a statutory pathway for appeals concerning compatibility issues with the European Convention on Human Rights. Murray's petition incorporated both Convention and non-Convention grounds, which posed a conflict in utilizing the nobile officium—a remedy traditionally reserved for cases lacking alternative legal avenues.

The High Court identified an anomaly wherein the presence of parallel appeal routes could potentially negate the necessity or appropriateness of using the nobile officium. Specifically, since section 288AA provided a mechanism for addressing Convention-related grievances, petitions to the nobile officium could not encompass these same grounds without overstepping procedural boundaries. This duality meant that a petitioner could not simultaneously rely on the nobile officium for Convention and non-Convention issues, thereby rendering Murray's petition incompetent under the established legal framework.

Furthermore, the court noted that the UK Supreme Court's refusal to grant permission for appeal was based on the argument that Murray's grounds lacked general public importance—a criterion not explicitly limiting but effectively narrowing the scope of permissible appeals through that channel.

Impact

This judgment has significant implications for future cases involving contempt of court in Scotland:

Clarification of Appeal Routes: The decision delineates the boundaries between different appellate processes, emphasizing that when specific statutory pathways exist (e.g., section 288AA), they take precedence over more generalized remedies like the nobile officium.
Limitations on Nobile Officium: It restricts the use of the nobile officium in cases where other appeal mechanisms are available, especially when mixed grounds of appeal are presented.
Procedural Efficiency: By preventing the overlap of appeal grounds across different procedures, the judgment promotes a more streamlined and orderly appellate process.
Human Rights Considerations: The ruling underscores the necessity of addressing Convention-related issues through designated legal channels, ensuring that human rights grievances receive focused and appropriate judicial scrutiny.

Legal practitioners must now navigate these delineated pathways more cautiously, ensuring that petitions to the nobile officium are reserved for scenarios where no other legal remedies suffice.

Complex Concepts Simplified

The judgment involves several legal concepts that may be complex to those unfamiliar with Scottish legal procedures. Below is a clarification of these terms:

Nobile Officium: An extraordinary writ or petition submitted to a higher court, requesting judicial review or intervention in matters where no other legal remedy is available. It serves as a last resort for challenging judicial decisions.
Contempt of Court: An offense that involves actions or communications that disrespect the court or undermine its authority, potentially leading to penalties such as fines or imprisonment.
Section 288AA of the Criminal Procedure (Scotland) Act 1995: A statutory provision that allows for appeals to the UK Supreme Court on grounds of compatibility with the European Convention on Human Rights.
Compatibility Issues: Legal questions regarding whether a law, policy, or judicial decision aligns with the rights and freedoms guaranteed under the European Convention on Human Rights.
Article 10 of the European Convention on Human Rights: Protects the right to freedom of expression, subject to certain restrictions necessary in a democratic society.
Article 6 of the European Convention on Human Rights: Ensures the right to a fair trial.

Understanding these concepts is crucial for comprehending the court's rationale and the broader legal context of the judgment.

Conclusion

The High Court of Justiciary's decision in [2022] HCJAC 5 serves as a pivotal clarification on the use and limitations of petitions to the nobile officium within the Scottish legal system. By delineating the conditions under which such petitions are deemed competent—particularly in the presence of alternative statutory appeal avenues—the court has reinforced the structured hierarchy of legal remedies available to individuals facing contempt of court charges. This judgment not only streamlines the appellate process but also ensures that human rights considerations are addressed through appropriate legal channels. Legal practitioners and future petitioners must now be more discerning in selecting the correct procedural pathways, aligning their appeals with the established legal frameworks to effectively challenge judicial decisions.