Quis custodiet ipsos custodes – Who will watch the watchmen?

Contempt of court orders protecting the identity of witnesses and victims of crime were once a relatively unusual feature of our legal landscape. No more. At last count there were more than 400 such orders currently in force in Scotland alone.

It is understandable these days that orders protecting rape victims and children should be commonplace but events in the recent Salmond/Sturgeon spat which was played out before a Holyrood parliamentary committee of inquiry have given rise to some disturbing concerns.

Somebody decided that a written submission of evidence to the committee was a potential breach of such an order pronounced in the High Court trial where Salmond was acquitted of 13 sexual offences charges.

An obscure parliamentary body, the Scottish Parliament Corporate Body (SPCB), had earlier decided after taking legal advice, that the whole submission could be published – and it was. Crown Office “experienced lawyers” appear to have disagreed and the end result was that either Parliament, the SPCB, the committee, or Crown Office lawyers edited the submission removing matters which “concerned” the Crown Office lawyers.

The Lord Advocate told Parliament that he was not consulted about the matter but that it was done by “experienced Crown Office lawyers”.

Let’s just look at that for a moment. The opinion of Crown Office lawyers was enough to result in a parliamentary committee of inquiry excluding evidence from the statement of a witness due to appear before them. That’s what happened. It was regarded as serious enough for the Lord Advocate being called before Parliament to answer an emergency question as to how this had all come about. “Experienced lawyers” looks like the only explanation we, the public who pay those lawyers, are going to get.

But what happened in front of that parliamentary committee was far from the whole picture. We also learned that the parliamentary body which took the decision was also asked to keep the terms of the request by “experienced Crown Office lawyers” confidential, and they did. So we can’t know the reasons for or the basis on which they did removed content from the submission.

But it gets worse; The Spectator had published the entirety of that particular written submission which was already in the public domain. The Spectator was not only “requested” to remove what we assume was the same material by the same Crown Office lawyers – it was also instructed by them not to publicise the fact that they had been “requested” to remove material.

When did Crown Office, our state prosecutors, become our state censors?

When did Crown Office get the power to tell anybody to keep their correspondence secret?

Some might reasonably ask if what has been going on has remarkable similarities to English ‘super injunctions’, where you can’t even publicise the fact that the injunction exists, and some might also reasonably ask if this is quite simply ‘bullying’ tactics in order to achieve the Crown Office objective of removal of material which Crown Office asserts is necessary for protecting identities.

That would be a perfectly legitimate objective – if it was right. It will be borne in mind, however, that in a recent high-profile prosecution for such a breach, 50 per cent of the material alleged by the Crown to amount to contempt was found by the court not to be a breach of the court order.

The Crown’s view is accordingly not necessarily a correct statement of the applicable law. It follows that the Crown’s warning letters to newspapers and even to the Scottish Parliament, may well have been unjustified.

Contempt of court in the publishing sense, as opposed to contempt by misbehaviour in a court setting, is a matter for the court itself to determine. It is not for Crown Office.

Publishers, however, are only too well aware of the enormous legal costs which can be involved if they fail to follow the opinions expressed by Crown Office. Few publishers these days, particularly in Scotland, have the resources to resist “requests” by Crown Office for removal of disputed material.

The Scottish Courts and Tribunals Service website discloses that there are more than 400 such court orders currently in place by Scottish Courts with every likelihood of that number increasing monthly, and these interventions by Crown Office leave Crown Office itself exposed to allegations that it is being selective in the situations in which it intervenes to express its “concerns”. For example, if a publisher or member of the public sends an article to Crown Office in advance of publication asking for advice on contempt, they will be told that Crown Office does not provide advice.

Crown Office will, of course, assert that it is doing no more than protecting the identities of complainers in sexual cases, that is to say that Crown Office is exercising a ‘policing role’ in enforcing these orders. It might be an interesting exercise to find out how many of these alleged breaches result from a complaint being made by the ‘protected person’ and how many are brought on the initiative of Crown Office itself.

The number of such orders and the manner in which Crown Office exercises this policing role must now be brought under some form of oversight. It should not simply be a matter for somebody in Crown Office to fire off their “concerns” , to remind the recipient of the enormous penalties and to suggest that the publication in question should be edited to reflect the Crown Office view. It might be instructive to know how many such letters CO has sent out in relation to the 400+ orders currently in place. That is not tolerable in a free society with a free press.

Responsible press in the UK take considerable care in having their content scrutinised by experienced lawyers before publication. It is not possible to take account of lunatic “social media” publishers. Crown Office’s own website recommends that people take appropriate private advice before publishing. Publishers are well aware of the risks inherent in publishing material which potentially crosses that line into contempt.

In addition, responsible publishers are well aware of the enormous costs associated with publishing risky or borderline material and no responsible legal adviser would allow them to publish such material.

Why then, if a responsible publisher, normally a mainstream newspaper, has taken its own expensive legal advice, should Crown Office have any right to step in and tell that publisher to remove what Crown Office considers to be offending material? Crown Office is our state prosecutor: it is not our state censor. If the published material is a breach of a court order the responsibility of Crown Office is to draw the matter to the attention of the court and to prosecute.

We make a bald statement inviting rebuttal: it is no part of the function of Crown Office to police a free press in a free country.

In an effort to be constructive, we suggest an appropriate solution which is not far removed from our present structures, which does not require legislation and which is entirely consistent with our system.

We propose that when a section 11 Order is made by any court, that order should be made public on the Scottish Courts website: that is the website operated by the clerks to every court in the land. The clerks should intimate the order to the Scottish Media Lawyers Association.

That should present no problem whatsoever because it is what is already done. It would also be desirable for the full content of the order to be available by a link on the website.

Here comes the difference.

When anyone, whether it be a party involved in a case, a rival newspaper, a procurator fiscal, a member of Crown Office or anyone else, reports an alleged breach of an order, they should report the matter to the court itself at the number given on the Scottish Courts website.

This should be the first port of call for anyone claiming that a court order has been breached. The clerk should communicate with the party publishing the offending material and report the allegation. The clerk should make them aware of the penalties for breach of the order and invite them to take appropriate action if so advised.

The clerk should at the same time report the alleged breach to Crown Office or to the relevant procurator fiscal. Depending upon the nature of the alleged breach and any action taken by the alleged offender, Crown Office should consider whether or not to prosecute or whether or not to offer the alleged offender an opportunity to remove the offending material.

The difference between what we have suggested and what happens now is that the clerk of the court is the ‘lead player’ in the complaint. Crown Office would have no part to play in persuading the alleged offender to edit his material to comply with any views of Crown Office – an unacceptable situation in a free country.