Blogger found in contempt of court over Alex Salmond trial granted permission for nobile officium appeal

Lord Carloway

About this case:

• Citation:
  [2022] HCJAC 5
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Craig Murray was sentenced to eight months’ imprisonment by a bench of three judges in May 2021. An attempt to appeal the decision to the UK Supreme Court was refused, which led the petitioner to challenge the original finding of contempt via other means.

The petition was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. Dean of Faculty, Roddy Dunlop QC, appeared for the petitioner and Alex Prentice QC for the Crown.

Arguments of a broader nature

During the course of criminal proceedings concerning Mr Salmond, the petitioner published a number of articles in which he suggested that the trial was a “fit-up” arranged by members of the Scottish government. In one of these articles, he made specific reference to persons involved in the trial, and it was held by the High Court that some of this material could lead to the identification of one of the complainers.

On 25 March 2021, the High Court found the petitioner to be in contempt of court. Following his sentencing, he sought permission to appeal to the UK Supreme Court in terms of section 288A of the Criminal Procedure (Scotland) Act 1995, alleging breaches of Articles 6 and 10 of the ECHR. On 8 June 2021, the High Court refused permission on the basis that no arguable point of law arose.

The following month, the UK Supreme Court also refused permission to appeal as the application did not raise “an arguable point of law of general public importance”. The petitioner thereafter lodged a petition to the nobile officium challenging the court’s finding of contempt. He averred that the court had erred in applying a test of strict liability to the offence and had acted unbelievably in disbelieving the content of his affidavits.

On the issue of competence, counsel for the petitioner submitted that the use of nobile officium was a competent means of challenging a finding of contempt, as the three-judge court had been sitting as a court of first instance. The petition raised arguments of a broader nature than those advanced in the attempted appeal to the UK Supreme Court, which concerned compatibility issues only.

Open prospect

Delivering the opinion of the court, Lord Carloway began by noting: “It is not disputed that a petition to the nobile officium of the High Court is, as a generality, open to a person who seeks to challenge a finding of contempt made by a High Court bench of three judges sitting as a court of first instance. The anomaly which arises is that, where a bench of three is involved, there is a parallel right of appeal, where a compatibility issue arises, under section 288AA of the Criminal Procedure (Scotland) Act 1995.”

He explained further: “The existence of that parallel right has the potential to eliminate the use of a petition to the nobile officium to raise a compatibility ground because such a petition is only available where ‘no other remedy or procedure is provided by law’. In strict theory, a person found in contempt, who wished to raise some grounds which invoked the Convention and some which did not, would face the prospect of having to use two modes of appeal. The court would not be prepared to sanction such a situation.”

Addressing the nature of the appeal, Lord Carloway said: “In these circumstances, for the petitioner to have a remedy provided for by law, it is essential that the petitioner is able to present his appeal on all grounds to the High Court by using the petition procedure. Had he done this, rather than seeking permission to appeal to the UK Supreme Court, no problem would have arisen. His appeal would have been progressed, with the prospect of an onward appeal to the Supreme Court in due course. The problem now is what is to be made of the UK Supreme Court’s refusal of permission.”

He continued: “Had the Supreme Court refused permission to appeal because of a lack of arguable grounds simpliciter, the court would have been bound to take cognisance of this by declining to hear any argument based on non-compliance with the Convention. However, the Supreme Court has not done this. Rather, the refusal is based upon the lack of arguable grounds of general public importance. That leaves open the prospect of there being arguable grounds, but not ones of public importance.”

Lord Carloway concluded: “The court is bound to hear those in the petition procedure along with any purely common law contentions. On this basis, the petition is competent and will proceed to a hearing on all grounds.”