The absence of evidence that harm was done makes the case against Craig Murray look frankly rather abstract. It is not obvious what the point of the case is, writes Alexander Mercouris.
By Alexander Mercouris
Special to Consortium News
Despite its importance – for the future of Scotland and of the United Kingdom, as well as for the administration of justice in the British Isles, the trial of a former British diplomat on Jan. 27 has attracted surprisingly little attention, in Britain and abroad.
At issue are fundamental human rights issues concerning freedom of speech, of publication, and of the right to a fair trial.
First, a declaration of interest: the defendant in the case – Craig Murray – is someone I know personally, and whose friend I am.
I make no pretence to impartiality about this case. I very much want my friend to be acquitted. I want him free so that he can remain with his family and continue his important work on his blog.
Before discussing the case, and the trial to which it has given rise, something should be said about the defendant in order to achieve a proper understanding of the case.
Murray was previously one of Britain’s top diplomats. However, after Britain’s Blair government joined the U.S.’s post 9/11 “War on Terror”, he became a whistleblower.
Appointed Britain’s ambassador to Uzbekistan, he exposed the Blair government’s cynical alliance with the brutal dictatorship of that country, reporting on the British government’s active collusion in that dictatorship’s violent methods and in its egregious human rights violations.
Murray also exposed the Blair government’s deep involvement in “extraordinary rendition”(ie. state conducted kidnappings), secret prisons, and “enhanced interrogation techniques” (i.e. torture).
He became a trenchant critic of the “War on Terror,” questioning its entire premise that the West was being threatened by a secret, sinister, worldwide, Islamist terrorist network.
As a result Murray became a target of a sustained campaign of abuse and vilification, organised by the Blair government and certain of its officials, some of whom Murray had imagined were his friends. The British media, as I well remember, actively joined in.
Murray was also subjected by the Blair government to a traumatic disciplinary process based on groundless and obviously concocted allegations of sexual misconduct, of which however he was eventually entirely cleared.
Despite official acknowledgement that the charges brought against him were entirely untrue, and despite general public acknowledgement of the truth and importance of the information he had disclosed, Murray’s career as a diplomat and public servant was brought to an end. He remains persona non grata in British government and media circles to this day.
Since leaving public service Murray has evolved into an eloquent commentator on British and international affairs, and as a human rights activist. His blog is one of the most widely read alternative media sites in Britain, and is essential reading for anyone interested in British affairs. He is also a well regarded historian and writer.
Readers of Consortium News will know Murray as a stalwart supporter of Julian Assange, of whom he is a personal friend, and whose recent extradition hearing in London he has thoroughly covered.
Murray is also an active figure in British politics, especially as a supporter of Scottish independence, and it is this issue which is at the root of his present predicament.
Scotland’s Drive Towards Independence
Scotland, a country with a territory not much smaller than England’s, but with only a fraction of England’s population, was for most of its history a proudly independent state and nation, which successfully resisted all attempts by England, its far more wealthy and powerful neighbour, to conquer it.
The English and Scottish Crowns were however united in 1603 when King James VI of Scotland ascended to the throne of England following the death of Elizabeth I and became King James I. England and Scotland were eventually united into a single entity, the United Kingdom of Great Britain, by the Acts of Union passed by the English and Scottish parliaments in 1708.
Though these created what was theoretically a single nation made up of two co-equal kingdoms, England and Scotland, in practice England has always been overwhelmingly dominant, running the entire country from its capital, London.
This situation, which has persisted for centuries, has in recent years begun to change.
In 1999, following a referendum, the Blair government agreed to the establishment of a Scottish parliament with devolved powers in Edinburgh, Scotland’s historic capital. This parliament, however, currently exercises only limited powers, granted to it by the British parliament in London, and exercises those powers within a legal framework created by London.
In the Scottish parliamentary elections of 2007, the Scottish National Party (SNP), which is committed to full independence for Scotland, under the leadership of the charismatic Alex Salmond, won the largest number of seats. It made Salmond Scotland’s first minister. It also ended the British Labour Party’s long dominance of Scottish politics.
At the following Scottish parliamentary elections in 2011 the SNP, still under Salmond’s leadership, consolidated its position, winning the elections by a landslide. It has retained continuous power in Scotland ever since.
An independence referendum followed in 2014. This was lost by a margin of 55 percent supporting continued union with England against 45 percent supporting independence. It nonetheless represented a strong swing in favour of independence on the part of the Scottish public.
At the subsequent British general election of 2015 the SNP, still led by Salmond, won a landslide in Scotland, winning the great majority of Scottish seats, and in effect establishing itself as the representative of Scotland in Westminster.
Since the 2014 referendum support for independence in Scotland has steadily grown, despite the inevitable odd shifts up and down in the opinion polls.
Over the last few months the point has finally been reached where the opinion polls have started to show a steady and stable lead in Scotland in favour of independence. Many people in Britain now believe that Scottish independence is now all but inevitable.
This swing in favour of independence in the opinion polls has inevitably led to renewed demands in Scotland for another independence referendum; demands which Boris Johnson’s Conservative government in London is resisting.
Scotland, the Conservatives, the Labour Party and Brexit
Though it would be a mistake to underestimate the historical depth of pro-independence sentiment in Scotland, there is no doubt that a major driver has been the steady rightward shift of politics in London since Margaret Thatcher’s election victory in 1979.
As British governments – both Conservative and Labour – have worked steadily since 1979 to dismantle the postwar social democratic Attlee-Bevan settlement, political attitudes in London and in England generally have steadily diverged from those in Scotland, where political sentiment remains firmly anchored on the left.
The previous strength of the Labour Party in both England and Scotland for a time successfully papered over the cracks. However the long, centrist Blairite ascendancy within the Labour Party proved ultimately fatal to the party’s prospects in Scotland. Starting with the Scottish parliamentary election in 2003, Labour’s previously dominant electoral position in Scotland began to erode. In the British general election of 2015 it finally and totally collapsed, with Labour losing all but one of its seats in Scotland.
Pro-independence sentiment in Scotland has since 2015 also received a further significant boost as a result of Britain’s long Brexit war.
Whereas in the 2016 Brexit referendum England outside London voted strongly in favour of Brexit, Scotland voted overwhelmingly against it. The much greater electoral weight of England within the United Kingdom however meant that it was English insistence on Brexit rather than Scotland’s opposition to it which in the end prevailed.
This again made clear Scotland’s junior position to England within the United Kingdom, hardening pro-independence sentiment in Scotland. Suffice to say that the pro-Brexit Conservative Party, though winning a sweeping victory in the December 2019 general election in England, lost ground to the SNP in that election in Scotland. It is since that election, and since Brexit finally took place, that the opinion polls have begun to show a decisive and stable shift in favour of independence in Scotland.
London Remains Opposed
Just as it would be a serious mistake to underestimate the depth of pro-independence sentiment in Scotland, so it would be a serious mistake to underestimate the strength of opposition to Scottish independence on the part of the British establishment in London.
At one level this opposition is sentimental and personal. Many members of the British elite, including the Queen herself, own large estates in Scotland, where they enjoy the ample opportunities Scotland’s astonishing landscape gives them for hunting and for other forms of recreation.
It is not entirely exaggerated to say that for some members of the British elite, and specifically for those who are most entrenched within the British establishment, time tends to be spent moving between houses and clubs in London, English country houses, and Scottish estates, with little interest being shown in the rest of the country and its people.
For these sort of members of the British elite the idea that Scotland might soon break away, so that their prized Scottish estates might one day fall under the control of an independent Scottish government, over which they have no sway, is a deeply unsettling prospect.
However these sentimental feelings take second place to fears of the major diminution in London’s power and prestige which the loss of Scotland would cause.
Scotland accounts for roughly a third of British territory, as well as all its oil wealth. Many important British military bases, including bases where much of Britain’s nuclear deterrent is based, are located there. Scotland is an important traditional recruiting ground for the British Army. It is also the home of some of Britain’s most prestigious universities.
It was the union with Scotland which made England and Britain first a European Great Power, and then, over the course of the eighteenth century, a World Power.
Loss of Scotland would not only reverse this. It would mean that for the first time since King James I of Scotland ascended to the English throne in 1603 the government in London would have to share control of the island of Britain with a wholly independent government in Edinburgh.
The psychological blow to the elite in London were this to happen would be immense. There are even whispered concerns that the rump England which would be left would no longer have the geopolitical weight needed to hold on to Britain’s permanent seat on the UN Security Council.
For a British elite, still accustomed to thinking of itself as a leading, if not a Great Power, at least an internationally important one, such a turn of events would be traumatic.
Though the option of using force to hold on to Scotland is no longer available, London can be relied upon to do all else it can to prevent Scottish independence from taking place.
Crisis Within the SNP: The Alex Salmond Case
Meanwhile the SNP, despite its electoral success, has been experiencing problems of its own.
In 2014, shortly after the Scottish independence referendum, Alex Salmond, the SNP’s charismatic leader, who had led the SNP to its electoral breakthrough, and who had served as first minister of Scotland, resigned, handing over the leadership of the SNP to his protegé, Nicola Sturgeon.
Salmond for a time remained an important figure in Scottish politics, and he is still Scotland’s most charismatic politician. In 2015 he was elected as a Scottish MP to the British parliament in the general election which was held in that year. However he lost his seat to a Conservative challenger in the subsequent general election of 2017. At that point his political career appeared to be over, and he seemed to be pursuing a career in journalism instead.
However, in August 2018 Scotland was rocked by news that Salmond had resigned from the SNP following allegations of sexual misconduct, which had supposedly taken place in 2013, when he was Scotland’s first minister. In a public statement Salmond denied the allegations and said he would rejoin the SNP once he had proved the allegations false and had cleared his name.
Shortly after Salmond applied to the High Court for a Judicial Review of the Scottish government’s investigation of the allegations of sexual misconduct which had been made against him. On Jan. 8, 2019 the High Court found that the investigation had indeed been severely flawed, being blighted by conflicts of interest, departures from due process and other serious procedural flaws.
Notwithstanding the High Court’s decision, which might have argued for caution before any further action was taken, on Jan. 24, 2019 – just two weeks after the High Court’s decision – the Scottish police arrested Salmond, and he was shortly after charged with 14 offences, including two of attempted rape, nine of sexual assault, two of indecent assault, and one of breach of the peace.
Salmond protested his innocence and denied all the charges.
Salmond’s trial began on March 9, 2020. One charge was dropped by the prosecution. On March 23, the jury acquitted Salmond of 12 of the remaining 13 charges. In the case of one charge the jury returned a verdict of “not proven,” a finding unique to the Scottish legal system, which does not detract from the failure of the case against him.
The conduct of the trial is universally agreed to have been fair. So far as the law is concerned, Salmond has been cleared of all charges and is an innocent man.
Scotland’s legacy media, in the main strongly unionist, covered the Salmond case in a way that was and continues to be strongly hostile to him. Social media in Scotland is a different matter.
From the time of the Judicial Review rumours began to circulate that Salmond had been the victim of a plot, and that the allegations of sexual misconduct, which had been made against him had been fabricated in order to destroy him.
Supposedly the plot was the work of a group of conspirators close to the leadership of the SNP and loyal to Nicola Sturgeon, Salmond’s successor as first minister and SNP leader. Initially there was uncertainty about whether Sturgeon herself was involved in the plot.
Murray is Scottish, an Edinburgh resident, and a member of the SNP. He is an outspoken supporter of Scottish independence, and has aired criticisms of the more emollient approach towards achieving independence taken by Sturgeon.
By Murray’s account – which no one has contradicted and which is unquestionably true – Salmond contacted him and over the course of a lengthy conversation appeared to confirm the rumours of the plot, and provided details. Moreover it began to seem as if Sturgeon herself might have been involved.
Salmond had led the SNP between 1990 and 2000, but had then resigned, only to stand again for the leadership of the SNP in 2004, when he returned as leader after winning 75 percent of the vote. Notwithstanding Salmond’s resignation from the leadership in 2014, Sturgeon was supposedly worried that he would make a bid to return as SNP leader for a third time.
Worried that she might not be able to hold on to the SNP leadership if challenged by the more charismatic Salmond, Sturgeon and her allies, according to Murray, supposedly hatched a plot to discredit and destroy Salmond by fabricating false allegations of sexual misconduct against him.
Sturgeon herself denies the existence of this plot and her alleged role in it.
Murray’s account of his meeting with Salmond and of the alleged plot, and of how it was orchestrated, is set out in his affidavit, which he submitted to the Court at his trial, and which can be found here.
As a member of the SNP, and as a strong supporter of Scotland’s independence, and as a former whistleblower, Murray was, not surprisingly, deeply shocked and alarmed by the information Salmond had given him. This appears to have decided him to provide thorough coverage of Salmond’s trial.
Murray Reports Salmond’s Trial
Regular readers of Consortium News will be familiar with Murray’s detailed reports of Julian Assange’s recent extradition hearing. The vivid detail of these reports, bringing the hearing to life, has been extraordinarily impressive. Murray’s reports of Salmond’s trial were of the same quality.
It is these reports that have led to the case against Murray which was tried by the High Court in Edinburgh on Jan. 27.
Murray Charged With Contempt of Court
The case against Murray is based on the Contempt of Court Act 1981, a piece of British legislation which applies to court proceedings in both England and Scotland. The Act, amongst other things, covers the way trials are reported.
It is important to say that historically, as was the case with the old common law principle of sub judice, which the Act has replaced, the primary purpose of provisions such as those in the Act was to protect the right of the accused to a fair trial by ensuring the integrity of the court process during the trial.
Ensuring the integrity of the court process requires respect for court orders, including orders for the protection of witnesses, as well as proper respect for the court itself, including for the judge who is presiding over the trial, and for the jurors.
Shortly before Salmond’s trial was due to end, Murray was informed by the Court’s security staff that he was no longer permitted to attend because there was an order that he might be in contempt of court.
Shortly after, but some time after the trial had ended with Salmond’s acquittal, Murray was formally charged with contempt of court, and was tried on Jan. 27 in the High Court in Edinburgh.
The case against Murray is in three parts.
Firstly, he is accused of writing reports which might have influenced the conduct of the trial.
Secondly, he is alleged to have reported information concerning a juror who was removed from the jury during the trial.
Thirdly, and perhaps most seriously, he is accused of publishing information about the witnesses who gave evidence against Salmond, which might make their identification possible in breach of a Court order that says the identities of these witnesses should not be disclosed.
Murray denies all the charges.
The Prosecution Case: No Actual Harm Alleged
The prosecution does not appear to argue that anything Murray wrote about the Salmond trial did in fact influence its course or change its outcome. Nor, to the best of my knowledge, has the prosecution provided any evidence that what Murray wrote about Salmond’s case did, as a matter of fact, result in any particular person identifying any of the witnesses who gave evidence during Salmond’s trial.
Specifically, Murray’s trial was conducted without the prosecution calling any witnesses, so the High Court heard from no witness who claimed that they had worked out the identities of the witnesses in the Salmond case from reading what Murray had written about them.
The prosecution does not need to provide the Court with proof that the trial was in fact influenced by things Murray wrote or that witnesses were identified as a result of what he wrote. As the judge who presided both over Murray’s case and Salmond’s case, correctly said, the test is objective.
However the absence of any evidence that any harm was actually done, whether through the trial being influenced or through the witnesses being identified, does make the case against Murray, at least in my opinion, look frankly rather abstract. In the absence of any evidence of harm it is not obvious to me what the point of bringing this case is.
Then there is the strange matter of timing.
The Scottish authorities did at one point write to Murray warning him that his reporting of Salmond’s case might potentially be a contempt of court and asking him to stop. Murray thought otherwise, and in the absence of a Court order requiring him to stop, continued with his reporting of what seemed to him a very important case.
The Scottish authorities then took no further action until Salmond’s trial had almost ended.
Specifically, they did not apply to a judge for an order that Murray stop his reporting. They did not tell Murray that if he continued with his reporting they would apply for such an order. As the trial was about to end, they did finally apply to a judge and they did not tell Murray. Nor did they invite Murray to make his own representations to the judge saying why he thought that his reporting was not in contempt of court and should be allowed to continue.
By waiting until the trial was almost over before applying to the judge, the prosecution in effect ensured that any harm which might be done by Murray’s reporting had by then already been done.
By delaying going to the judge until almost the end of the trial, the prosecution has, assuming that a contempt of court has been committed, made Murray’s position much worse than it would otherwise have been.
Murray has made clear that he would have obeyed a Court order to stop reporting if one had been made made. He has in fact always shown respect for the Court. Had an order been sought in a timely way, and had that order been granted, Murray would have complied with it, and would have stopped reporting, in which case it is difficult to see how he could now be prosecuted.
I heard no clear explanation from the prosecution for this delay at Murray’s trial. I personally find this delay very strange. It seemed to me that the judge was puzzled by it also. Certainly I don’t think the prosecution should delay taking action when doing so might cause someone acting in good faith to commit an inadvertent crime. One might almost be forgiven for thinking that the prosecution did it deliberately, holding off until the last moment so that Murray might commit a contempt of court which would justify his prosecution.
Of course there may be any number of other reasons for the delay. Perhaps the prosecution delayed taking action because it did not believe that any harm was in fact being done. As I have pointed out, there is in fact no evidence that any harm was in fact done. If so, then I wonder what it was that made it change its mind?
Or perhaps, as Murray’s counsel appeared to hint at his trial, the application to the judge when it was finally made, and Murray’s subsequent prosecution, are nothing more than petulant reactions to the fact that Salmond’s prosecution was going wrong.
Whatever the reason I would be interested to know.
Identifying the Witnesses from Reports by Others
If the strange timing begs questions, so does the fact that there is apparently a large body of evidence which suggests that other journalists published information before and during the trial about the witnesses which was far more likely to lead to disclosure of their identities than anything Murray published.
Murray has provided details of his painstaking efforts to ensure that what he wrote would not lead to the identification of the witnesses. Why, given that that is so, and it is not apparently disputed (and if Murray if provided less information about the witnesses than other journalists) is he being prosecuted and they not?
Personal View of Murray’s Reports
I read all of Craig Murray’s reports during Salmond’s trial including the satirical pieces which the prosecution has made such an issue of. It never occurred to me when I did so that they broke the law.
For what it’s worth, I personally would not have been able to identify the witnesses from the information which appeared in the reports. I would not have known, based on the information in the reports, how to carry out an internet search which would have provided me with the identities of the witnesses.
The reports were clearly strongly sympathetic to Salmond. However they were highly respectful of the judge, and I saw nothing in them which caused me to think when I read them that Salmond was not receiving a fair way.
The reports, to the extent that they were sympathetic to Salmond, seemed to me to be making the same points which were being made during the trial by the defence to the jury. I cannot see how they could therefore be said to have influenced the jury more than the defence itself did. As it is, the prosecution does not seem to be disputing the outcome of the trial, which appears to make this whole issue of influence academic.
Obviously these were my own impressions of Murray’s reports. Others, who were perhaps more knowledgeable than I am of the underlying facts of Salmond’s case, might perhaps have gleaned more from them than I did. However, that does not seem to be the prosecution’s case.
As discussed, the prosecution has produced no evidence that any actual harm was done, and there is no evidence I know of that anybody who read the reports used the information in them to identify the witnesses.
Human Rights Issues
It will be for the Court to decide what view it takes of the reports and whether there was a contempt of court or not. My impression was that Murray’s trial was conducted in a very fair way. The presiding judge questioned the prosecution closely about their arguments, and never gave me the impression that she was simply accepting whatever case the prosecution made. She also appeared to me to be listening closely and attentively to the points which Murray’s counsel was making.
If the Court does decide against Murray, then this may however have very serious long term consequences.
Murray, in his defence, has very correctly pointed out that he has a right of free speech which includes a right to impart information (See Article 10 of the European Convention of Human Rights).
It is however also the case that persons who are being tried on a criminal charge are entitled to have their case take place in public. Article 6(1) of the European Convention of Human Rights says this clearly:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly….
Recent disclosures of systematic abuse in proceedings in the Foreign Intelligence Surveillance Court of the United States, as well as U.S. grand juries which conduct their proceedings in secret, highlight the dangers for the accused if proceedings are conducted behind closed doors. For the same reasons, there have been numerous and justified concerns about the restrictions on public access imposed during the recent hearing of the extradition case brought by the United States against Julian Assange.
A “public hearing” cannot happen where no reporting of the sort that Murray carries out is allowed. Article 6(1) does make provisions for situations where reporting may be restricted:
“… the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
However this is obviously intended to be very much the exception.
Some of the claims made by the prosecution in Murray’s case were however so sweeping that, as Murray’s counsel pointed out, they would, if applied rigorously, make proper reporting of trials all but impossible.
That would be a calamitous development and one fundamentally contrary to the original purpose of provisions like sub judice and contempt of court.
As I’ve pointed out, their original purpose was to protect the integrity of court processes so as to guarantee the right of the accused to a fair trial. They should not be construed in such a sweeping and restrictive way as to do the opposite, by abolishing the right to a public trial, which in effect means a fair trial. One only has to consider what might have happened in Assange’s recent extradition case if it had been conducted entirely in secret.
In his trial Murray in effect made this very point, when through his counsel and in his written evidence he made clear his commitment to open justice. Obviously this does not provide a licence to break rules or ignore court orders. However Murray has never done anything like that.
Was There a Plot Against Salmond?
Over and beyond the very serious human rights concerns arising from the case, there is the further question whether, given that there is no evidence of any actual harm being done by anything which Murray did, all the time and energy being devoted to prosecuting him is time and energy well spent.
It seems to me that a better use of all this time and energy might have been, in the public interest, to carry out a proper, independent investigation to find out whether the very serious allegations of a plot against Salmond are true.
I have no direct information about the alleged plot. I do not know any of the people who are alleged to have been involved. I note that they all strenuously deny that there was a plot and insist that they have done nothing wrong. I do not know whether there was a plot or not.
However there is now a substantial body of what looks like credible evidence that appears to corroborate at least some of Salmond’s claims. This has led to the Scottish parliament to set up a committee to look at them.
It is also a fact that the Court in the Judicial Review criticised the Scottish government’s conduct of its investigation of Salmond in a way that might point to bias in the conduct of the investigation. A jury has of course also acquitted Salmond of all the sexual misconduct charges which have been made against him, and which he told Murray were fabricated.
There is now also a body of evidence which points to Salmond being the target of a truly massive police investigation, involving hundreds of officers and a massive commitment of police resources, despite the evidence against him appearing shaky.
Last but not least, there is also the decision to prosecute Murray for his reporting of Salmond’s case, a decision which, as I hope I have made clear, I personally find strange at many levels, and also disturbing.
All of this, taken together, begs many questions, and seems to me to cry out for a proper, independent investigation carried out by a team of professional investigators and not, as is presently the case, by a group of politicians brought together in a Scottish parliamentary committee.
If the allegations of the plot are untrue, then such an investigation is even more needed so as to clear the names of those who have been wrongly accused of being involved in the plot.
However, instead of this kind of investigation taking place, there is a prosecution instead of Murray, despite no evidence being produced that his actions have done anyone any harm.
It seems to me that someone is not getting their priorities right.
What, of course, adds a particular dimension to this case is the overarching crisis which is brewing in the United Kingdom as Scotland edges closer towards independence.
The British government in London, implacably opposed to Scottish independence, has no wish to have the SNP under any leader in power in Edinburgh. However, if they were forced to make a choice between SNP leaders, they would undoubtedly prefer to deal with the emollient and conciliatory Sturgeon as opposed to the charismatic and abrasive Salmond.
I have seen no evidence of London’s involvement in these events, though it is important to remember that both Salmond and Murray are personae non grata in London, and the authorities there would be far from unhappy if either or both of them got unstuck. However, regardless of London’s actual role, there is no doubt that the British authorities are watching events in Scotland closely.
Of one thing there is no doubt. How the conflict between Sturgeon and Salmond plays out will have a decisive impact on the future of Scotland and of the United Kingdom.
If Sturgeon wins through there is a real possibility, judging from her past actions, that London will be able to retain some degree of control over Scotland. If Salmond and his supporters win then the prospect of outright independence in the shortest possible time becomes much more likely.
For his part Murray, through no choice of his own, has become centrally involved in this conflict, in a way that may have important implications, not just for him, but for the rights of defendants, and for free reporting and free speech, in the future.
The stakes could no be higher.
Alexander Mercouris is a legal analyst, political commentator and editor of The Duran.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.