The other SNP scandal
Why are we not free to discuss the arrest of the ruling party’s former chief?
There are two big legal scandals surrounding the Scottish National Party right now. One involves the police investigation into allegations about the party’s finances, which led to the high-profile arrest of Peter Murrell, the recently resigned chief executive of the SNP and husband of recently resigned first minister Nicola Sturgeon. The second, inevitably less-discussed scandal involves the fact that we are hardly allowed to report or talk about the first one, for fear of being prosecuted and potentially jailed.
The Contempt of Court Act 1981 outlaws the publication of anything that the authorities deem could pose a ‘substantial risk of serious prejudice’ to the outcome of a legal case. That law imposes tight restrictions on what can be said about a criminal inquiry or trial across the UK. And in Scotland, those restrictions are considerably tighter. As the pro-SNP newspaper, the National, reminded its readers while reporting on Murrell’s arrest: ‘While the 1981 Act is UK-wide, contempt of court is taken much more seriously in Scotland than south of the border.’
In England, the law of contempt has traditionally kicked in only once a suspect is charged with an offence. In Scotland, however, contempt-of-court law is considered ‘active’ as soon as a suspect is arrested. Thus, although Murrell was released without charge ‘pending further enquiries’, Police Scotland immediately issued an official warning that, ‘The matter remains active for the purposes of the Contempt of Court Act 1981 and the public are therefore advised to exercise caution if discussing it on social media’. The dean of Scotland’s Faculty of Advocates, Roddy Dunlop KC, also reminded lawyers and the public that, ‘contempt-of-court protections are triggered, in Scotland, once an arrest is made. Please take care.’
As recently as February, Scotland’s public prosecutors from the Crown Office and Procurator Fiscal Service (COPFS) spelled out the meaning and consequences of the Contempt of Court Act in Scotland. ‘Published items about active cases’, said COPFS, ‘must not be commentary or analysis of evidence, witnesses or accused’. As soon as an arrest has been made, if anybody dares to comment on the case in the media or on social media, then ‘contempt is punishable by up to two years in prison and / or an unlimited fine, in serious cases’.
Nor are these idle threats. A former British ambassador to Uzbekistan was jailed for eight months for contempt of court in Scotland in 2021, for his blog posts about the trial of former SNP leader and first minister Alex Salmond. Judges ruled that Craig Murray’s posts might have enabled readers to identify the women who anonymously accused Salmond of sexual offences in court. (The jury cleared Salmond of all 13 charges in 2020, despite the best efforts of some in high places to stitch him up.)
The consequences of all this are clear. Despite the melodramatic, media-enticing, mob-handed police raid on the home Murrell shares with Sturgeon – complete with screens and a plastic gazebo in the garden, and a helicopter hovering overhead – and despite the fact that nobody has yet been charged with anything, there are now strict limits on what can be reported or discussed about the case of the SNP’s ‘missing’ £600,000 and related matters.
Defenders of the Contempt of Court Act will insist that it is only there to deal with ‘extreme’ cases, such as that of right-wing activist Tommy Robinson – given a nine-month prison sentence for contempt in 2019, after he livestreamed video of defendants arriving in court for a major sexual-exploitation trial. In fact, this law is based on a deep-seated elitist contempt for the entire British public, for the system of jury trial and for freedom of the press. The assumption is that juries comprised of ‘ordinary’ men and women are not to be trusted to make up their own minds on the basis of the evidence.
If jurors were to spot one media comment or social-media post about the case, the authorities fear that these simple folk would be brainwashed and deliver their verdict accordingly. Far safer, then, to keep the jury cocooned in the comment-free atmosphere of the courtroom, where they can be better controlled by the judge and lawyers. (The flipside is that judges rarely appear to worry about contempt of court in cases when they preside without a jury, since m’luds consider the bench to be a higher moral plane, where they sit far beyond the influence of any vulgar outside voices.)
There is nothing inevitable about such a restrictive system. In other societies, notably the US, there is considerably more freedom in reporting and commenting on major legal cases. This might lead to accusations of a criminal trial being turned into a ‘media circus’. But it is surely better by far for open justice and democracy to trust members of the public in the jury box, than to allow the police, courts and state officials to control what we can say.
The threat posed by the Contempt of Court Act 1981 is clear. It empowers the police and courts to restrict democratic debate, all supposedly in the name of justice. Fortunately, we are still able to say that the law is guilty of a scandalous contempt for the public, and for freedom of speech and the press.
Mick Hume is a spiked columnist. The concise and abridged edition of his book, Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?, is published by William Collins.
Picture by: Flickr / Scottish Government.