Craig Murray v. Her Majesty’s Advocate [2021] HCJ 3


Petition and complaint for a decision in an application for permission to appeal to the UK Supreme Court:- The applicant was found to be in contempt of court in relation to publication by him of material which was likely to lead to the identification of complainers in the trial of HMA v Salmond. The court imposed an order for imprisonment for 8 months due to the seriousness of the contempt. Section 288AA of the Criminal Procedure (Scotland) Act 1995 provides that “for the purpose of determining any compatibility issue and appeal lies to the Supreme Court against a determination in criminal proceedings by a court of two or more judges of the High Court” and here the applicant sought permission to appeal to the UK Supreme Court. The court considered a preliminary issue as to whether the contempt proceedings could properly be regarded as “criminal proceedings” for the purpose of section 288AA. The Lord Advocate considered that they were and the High Court was satisfied that it could proceed on the assumption that the proceedings could be categorised as criminal and that the application was competent. There were two aspects to the submissions made on behalf of the applicant at the original hearing:- (1) that in the absence of intention on the part of the applicant, and in the “unprecedented” circumstances of the original trial, should the publications be found to breach the order, a finding of contempt would not be compatible with Article 10; and (2) the material published did not have the effect asserted by the Crown. The court noted that no compatibility minute or devolution minute was lodged until the making of the present application. The compatibility issue lodged raised three compatibility issues:- (1) it was submitted that the court’s finding of contempt was incompatible with Article 6 ECHR because in its conclusions about the article of 18 March 2020 it went beyond the contempt alleged in the petition; (2) it was submitted that the court’s finding of contempt was incompatible with Article 10 ECHR because the test it applied was not prescribed by law for the purposes of Article 10(2), being insufficiently precise and foreseeable, particularly given the terms of section 57 of the court’s opinion; and (3) it was submitted that the sanction of eight months imprisonment was disproportionate and thus incompatible with Article 10. An esto position was adopted that the bringing of a petition and complaint for contempt amounted to a function of the Lord Advocate, and that a question arose as to whether the exercise of that function was compatible with the applicant’s article 6 and 10 rights, which constituted a devolution issue within the meaning of paragraph 1(d) of schedule 6 to the 1998 Act and that if the application under section 288AA failed, an appeal lay under para 13 of schedule 6 to the Scotland Act. The court noted that Part 1 of Schedule 6 to the Scotland Act 2012 significantly narrowed the scope of devolution issues in criminal proceedings and that challenges against the Lord Advocate in his prosecutorial role or against the court relative to convention rights constitute compatibility issues rather than devolution issues and the argument presented by the applicant did not amount to a devolution issue and no arguable point of law could be identified. Here the court refused the application. In relation to the first issue raised the court did not consider that any arguable point of law arose. In relation to the second issue the court did not consider that an arguable point of law arose. In relation to the third issue the court did not consider that an arguable point of law arose.