SENTENCING STATEMENTS

Lady Dorrian made the following statement in Court: 

Murray sanctions determination

The basis upon which the Court has found the respondent to be in contempt of court is set out in detail in the Court’s opinion of 25 March. The Court rejected arguments based on prejudice to the trial to which the respondent’s posts related, given the delay in bringing proceedings, and the fact that the trial had already been concluded. It also rejected the argument that the material published by him breached the  order pronounced under section 4(2) of the Contempt of Court Act on 23 March 2020. The Court did find the respondent in contempt of court, however, in that he published material likely to lead to identification of complainers in the trial of HMA v Alexander Elliot Anderson Salmond, contrary to the section 11 order imposed by the Court on 10 March 2020.

The Dean of Faculty, on behalf of the respondent addressed four issues in mitigation: the nature of the finding of contempt; comparative justice; circumstances; proportionality.

The nature of the finding of contempt

The Dean drew attention to the fact that two aspects of the alleged contempt had been rejected by the Court. He submitted that the publications had been a genuine but misguided attempt to stay on the right side of the law. A poll commissioned by the respondent prior to the substantive hearing was referred to for a submission that no complainers were identified from the posts, although it was accepted that there were tweets or comments following the respondent’s posts which indicated that readers claimed to have been able to identify individual complainers.

Comparative justice

Reference was made to the case of In re Yaxley-Lennon [2018] EWCA Crim 1856, para 80, and to the case of Mayfield  [2021] EWHC 1051 (QB), which involved direct rather than jigsaw identification and in which a suspended sentence was imposed. Reference was also made to the case of Clive Thomson in which a sentence of six months was imposed for a contempt of the same order with which this application is concerned. It was submitted that the circumstances were very different. It was submitted that the majority of contempts committed by the press were dealt with by fines which would be an appropriate consequence in the present case.

Personal circumstances

The respondent is 62, has no prior convictions, and has been a useful member of society, having formerly served as a British Ambassador. He is married with a young family. He suffers from a number of health issues, including pulmonary hypertension. We do not repeat the details of the respondent’s health here, but we recognise that the respondent has a number of serious health issues, and have taken them into account in our determination. It was submitted that there were grave concerns over his capacity to deal with a period of imprisonment.

Proportionality

Under reference to Article 10 ECHR it was submitted that measures which impinged upon freedom of speech, particularly in the context of the expression of strong political views, required to be proportionate. A measure would be disproportionate if other measures could achieve the desired end. Imprisonment would be disproportionate where the respondent could pay a substantial fine, in line with other media contempts, and where, as was submitted, there was no likelihood of repetition.   

In re Yaxley-Lennon [2018] EWCA Crim 1856, was a case which related to breach of section 4(2) of the Act, but we recognise that the issues described as relevant to such a breach are also largely relevant to a contempt of the kind with which we are dealing. The factors listed were as follows:

• the potential consequences of the breach for the actual trial, or participants therein
• the scale of the breach: the numbers to whom the reports were made; the medium/media utilised; and the period over which the publications operated
• the gravity of the trial to which the reporting restrictions related
• the level of culpability of the offender
• aggravations or lack of remorse
• sentencing levels in other cases
• personal circumstances of the offender
• whether a particular deterrent sentence was required.

In respect of those factors which relate to the gravity of the offences, it will be seen that the present case is at the more serious end of the scale. The potential consequences for the complainers who might be identified as a result of the respondent’s actions were significant. The justification for the anonymity extended to complainers in sexual offence cases was discussed in the Court’s opinion of 25 March, paras 45 and 46. It is designed to ensure that complainers in such cases are not exposed to unwanted publicity, to enable the witness to speak freely, to limit the embarrassment and awkwardness which may be felt, and to encourage complainers in other cases to feel able to come forward without concern that they may be exposed to the distress and indignity publication of their identities might entail. The complainers in the case to which these proceedings relate gave evidence in the expectation that their anonymity would be protected. The risk that their identification might be apparent from the respondent’s publications must be abhorrent and worrying to them. That would be so in any case; it is particularly so given the enormous publicity which the case in question attracted, and continues to attract. Moreover, a further factor to take into account is not simply the effect on the individual complainers, serious as that may be: the  reason protection is given extends beyond the complainers in the present case, since it is well understood that the risk of public knowledge of their identities can operate as a severe deterrent to others against making complaints to the authorities in sexual cases. Were breaches of anonymity not taken seriously it would adversely affect the willingness of complainers in other cases to come forward.

As to the scale of the breach, this involved a number of publications, posts or tweets over a period of about a month, and which remained on the site unredacted, until service of the petition in late March 2020. There is a dispute as to the extent to which the material remained accessible thereafter, which we cannot resolve. However, the Advocate Depute advised that  the respondent published  a copy of the petition in this application, which of course contained assertions of the way in which complainers were said to be identifiable. Whilst this was replaced with a redacted copy that was only done on representation being made to his then senior counsel, although it was apparently done within 24 hours. A further factor of relevance is that some members of the public posted responses to the respondent indicating that they felt able to identify individual complainers from his posts, but it appears that he took no action in response to these. 

The risk of identification created by the publications related to four individual complainers, and in each case the risk was compounded by further publication. Some complainers were the subject of three separate posts. The scale of the dissemination cannot be precisely known. However, the respondent asserts himself to be “arguably the most read journalist in Scotland” and as at 31 March 2020 his twitter profile had 77,000 followers, and a linked Facebook page had 2,600 “likes”. He maintains that his coverage of another case “reached millions”. The scale of dissemination may therefore be taken to be substantial.

As to the gravity of the trial to which the reporting restrictions related, the indictment related to a series of sexual offences over a period of time, two of which were particularly serious. The nature of the trial is of course related to the reasons for giving anonymity to complainers, a point we will return to in a moment.

The level of culpability may be examined by reference to the conclusions reached by the Court in its decision of 25 March at paragraphs 67-75, in particular paras 69, 70, 73 and 75. The respondent knew that complainers had been given the specific protection of a court order. The Court concluded that the respondent understood the risk inherent in the action he was taking, deliberately decided to run that risk, knowing that jigsaw identification of complainers might result, and did so repeatedly. It appears from the posts and articles that he was relishing the task he set himself which was essentially to allow the identities of complainers to be discerned, which he thought was in the public interest, in a way which did not attract sanction. In that he failed. This is a serious contempt of court, relating to four complainers, albeit in relation to jigsaw rather than positive identification. As in Thomson the posts continued despite the respondent being alerted to the problem, in this case  by means of numerous posts, and a letter from the Crown Office in respect of the post of 19 March 2020. As already noted, some complainers were the subject of three separate posts.

Underlying this case there is a serious issue of principle which did not arise in the two English cases to which we were referred, namely the importance to the administration of justice of granting anonymity to complainers in sexual cases. In considering the importance of doing so, the European Court of Human Rights noted (SN v Sweden No 34209/96) that criminal proceedings concerning sexual offences are often conceived of as an ordeal by the victim. The historical reluctance of complainers to come forward with their complaints, as a result of concern about how they will be treated is at the heart of the basis upon which anonymity is given. The Heilbron Report (1975), which led to legislation on the matter in England and Wales, noted that:

“153.   …public knowledge of the indignity which [a complainer] has suffered in being raped may be extremely distressing and even positively harmful, and the risk of such public knowledge can operate as a severe deterrent to bring proceedings.…….

154.     We are fully satisfied that if some procedure for keeping the name of the complainant out of the newspapers could be devised, we could rely on more rape cases being reported to the police, as [complainers] would be less unwilling to come forward if they knew that there was hardly any risk that the judge would allow their name to be disclosed.”

Anonymity provides the security which complainers ought to have of the certainty that their identity will be protected. Actions such as those of the respondent, which are likely to erode that security, and are designed to provide the prohibited information to the public, even in a “coded” way, taken in the face of a clear order of the court designed to enhance the protection  of complainers, require to be treated as contempts of considerable gravity. These actions create a real risk that complainers may be reluctant to come forward in future cases, particularly where the case may be high profile or likely to attract significant publicity. The actions strike at the heart of the fair administration of justice. Notwithstanding the previous good character of the respondent, and his health issues, we do not think we can dispose of this case other than by way of a sentence of imprisonment. The respondent’s health issues, whilst serious, are not such as to suggest that a sentence of imprisonment might not reasonably be imposed. Having regard to these, and his personal circumstances as a whole, we are able to limit the sentence to one of eight months.