Scandalising Scottish Criminal Justice

Against the First Minister and the Crown, he rebelled. They cut him down! Now his wife Nadira must raise their two young sons with dignity. That is how many people in Scotland, and elsewhere in the world, are viewing the eight month prison sentence passed down on rebel blogger Craig Murray for Contempt of Court (even if they don’t sing it to the strains of The Fields of Athenry). Globally respected liberal opinion-formers have expressed their solidarity with the former British ambassador-turned-whistleblower. Professor Noam Chomsky commented:

Craig Murray has compiled a remarkable record of courage and integrity in exposing crimes of state and working to bring them to an end. He fully merits our deep respect and support for his achievements.

The prominent scribe and documentary filmmaker John Pilger said: 

In these dark times, Craig Murray’s truth-telling is a beacon. He is owed our debt of gratitude, not the travesty of a prison sentence which, like the prosecution of Julian Assange, is a universal warning.

Along with many others, they clearly believe Mr Murray has been muzzled for political crimes. He himself has said he could become a political prisoner. No wonder the Lord Justice Clerk and her two fellow High Court judges have agonised for so long over this case. And their agonising isn’t over: after a challenge by his advocate Roddy Dunlop QC, Mr Murray was given three weeks of continued liberty to appeal his sentence.

In her sentencing statement Lady Dorrian said the former diplomat’s online articles about the Alex Salmond trial had “struck at the heart of the fair administration of justice”. But there are an unprecedented number of people who believe fairness doesn’t exist in the administration of criminal justice in Scotland; that Mr Murray is the victim of selective prosecution; and that what we therefore now have in this country is the very opposite of impartial justice. Why were a number of legacy media hacks not also in the dock for aiding the “jigsaw identification” of some of Mr Salmond’s female accusers? That is the question being asked by many members of the Scottish public  – and it deserves a public response.

If they log on to some the most followed Scottish political websites, our mightiest court judges might be more than a wee bit startled. Some of them – and the justice system of which they are primary upholders – are being roundly savaged around the clock.  Castigated along with the now widely loathed Lord Advocate as agents of the Crown, our judges are no longer being just murmured, their reputations are being mutilated. Personally, I don’t believe they deserve that, for the judiciary can only adjudicate on the cases brought before them. This shouldn’t just be about murmuring a few judges or the muzzling of one journalist/activist – who, quite frankly, could have done with attending a few of the media law lectures I delivered at journalism schools, north and south of the Border. This is about Scotland’s criminal justice system becoming a global scandal. And that is down to the Crown!

This isn’t just about muzzling a journalist or murmuring judges

Something has to be done – and done rapidly – to restore confidence in the Scottish prosecution system. Something that can only be done by the Scottish Parliament when it reconvenes – if our hitherto spineless parliamentarians can finally summon the courage to rein in the current First Minister. I’ll explain why they need to.

Firstly, that phrase ‘murmuring the judges’ probably needs a bit of explanation, even for some Scots lawyers. That was the ancient term for what the English would later call ‘scandalising the court’. Pouring scorn or ridicule upon the judiciary in ways likely to bring the administration of justice into disrepute was never a crime committed with any frequency down through the ages of deference. It was formally abolished after a review in 2013 in England and Wales. But my understanding is that murmuring judges remains an offence in Scotland, Northern Ireland and some Commonwealth jurisdictions – something about which many mouthy Scots seem blissfully ignorant. Indeed, were this ancient statute to be invoked in response to social media coverage of the Craig Murray case, our courts might be 20 times more clogged than they already are due to Covid!

Much of this online savagery is down to the unprecedentedly febrile political atmosphere created by what was inevitably dubbed Salmondgate. Perhaps because of his general state of mind – see my earlier blog headlined The Maladjusted Craig Murray – this nationalist blogger felt he had to do something to save Mr Salmond from a dark plot to destroy him in any way deemed necessary. Messrs Murray and Salmond seem to have formed something of a mutual admiration club long before the current FM and former FM drew their claymores on each other. But it is striking how Mr Salmond has never protested the innocence of Mr Murray. 

Perhaps that’s because the former FM still has some unfinished legal business of his own to settle (or simply because he didn’t need any distraction when he was about to launch his new breakaway Alba party). Possibly. But a far more influential factor, I suspect, is that Mr Salmond does not believe in dragging Scotland’s legal and governmental system into grave disrepute. Remember what he told the Holyrood inquiry into the Scottish Government’s handling of the sexual harassment allegations against him:

Some say the failures of those institutions and the blurring of the boundaries between party, government and prosecution service mean that Scotland is in danger of becoming a failed state. I disagree. The Scottish civil service hasn’t failed; its leadership has failed. The Crown Office hasn’t failed; its leadership has failed. Scotland hasn’t failed; its leadership has failed.

And then came the two most crucial sentences he uttered in the carefully crafted statement he read out that day:

The Scottish courts emerge from this with their reputation enhanced. Can those leading the Crown Office say the same?

This is what is striking at the heart of faith and trust in the administration of justice in Scotland right now, the widespread suspicion that prosecutions are in some cases partial and political. Gordon Dangerfield, a Solicitor Advocate who does not represent Murray, commented:

The way in which Craig Murray has been singled out by the prosecuting authorities in this case is a national scandal which should concern anyone who cares about the rule of law in Scotland.

Scotland’s criminal justice system will continue to be scandalised so long as the person heading up COPFS (the Crown Office and Procurator Fiscal Service) is also the chief legal adviser to the Scottish Government and a member of Nicola Sturgeon’s Cabinet. James Wolffe QC possesses the most extraordinary set of powers granted to anyone in a supposedly free society. Or rather Nicola Sturgeon does. For, as the First Minister, she conferred all these powers upon him.

Ultimately the First Minister is responsible for this state of affairs

No member of the aforementioned Holyrood committee was willing (or able) to tackle the FM properly about this throughout the eight hours she gave evidence to it. But several members of that committee did suggest that Scotland’s top law officer could face conflicts of interest unless and until the unprecedented powers he possesses are split. Mr Wolffe disagreed, naturally, and said he wanted to continue in his dual role. Ms Sturgeon has allowed him to carry on and will, doubtless, allow him to carry on until she sees some personal reason for him not to keep carrying on.

The Scottish Parliament must give her that reason as soon as it reconvenes. Newly elected and re-elected MSPs need to tell Nicola Sturgeon that Scotland’s ancient and distinctive legal system – one of the great pillars of our post-Union nationhood – is in serious danger of being scandalised around the globe. She has to address that appalling state of affairs by loosening the reins of power she, to an unprecedented extent, wields over it. 

I know she wasn’t a particularly distinguished lawyer but Nicola should not need it explained to her that separation of powers between politicians, police and prosecutors is vital in any jurisdiction worthy of any respect anywhere in the world. She should have learnt that in one of her first public law lectures at Glasgow University. In fact, she didn’t need to go to Gilmorehill to learn that. Any of her constituents in Govanhill could tell her justice needs to be not only done but seen to be done. That is clearly not the case today in Sturgeon’s Scotland.

If you haven’t already done so, you may care to read an earlier article I posted a few days ago about why Craig Murray is the way he is. I wasn’t sure how Craig would take it, but he did thank me for it via email.

15 thoughts on “Scandalising Scottish Criminal Justice

  1. Thanks for that informative post.

    I suspect, however, that the chances of the FM ensuring “separation of powers between politicians, police and prosecutors is vital in any jurisdiction worthy of any respect” are about as high as getting her husband to stand down as CEO of the SNP whilst she is leader of the same organisation.

    Liked by 1 person

  2. “Why were a number of legacy media hacks not also in the dock for aiding the “jigsaw identification” of some of Mr Salmond’s female accusers?”

    Craig Murray gave us a peek down the rabbit hole with regards to his reporting on what can only be described in hindsight, as a fit up, and for doing so he now faces the wrath of those he tried to expose.

    Why move Murray’s sentencing twice the second time to after the election? would some folk still have voted SNP1 as Alex Salmond asked them to do? doubtful I say.

    With the Lord Advocate sitting in on Sturgeon’s cabinet meetings (he should not be allowed anywhere near Holyrood) Sturgeon has the full force of the law at her back and he’s fully onboard with the Scottish government’s agenda.

    I’m also under the impression that Lady Dorrian was appointed by Sturgeon.

    Liked by 1 person

    1. It is a fact that Lady Dorrian was appointed Lord Justice Clerk on the recommendation of the First Minister, Nicola Sturgeon. But a few other points you made might not be so easily defensible. I’m sure you won’t mind me deleting them given how careful we all need to be in the current politico-legal climate.

      Liked by 3 people

      1. Yes that’s fine I shall try to be a bit more reserved, as I understand your position thanks for replying.

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  3. A dictatorship is not going to voluntarily give any up power they find useful in maintaining their position.

    There was much outrage in the media and legal circles and indeed Holyrood at COPFS handling of the Rangers case and the enquiry into the government mishandling of the harrassment procedure against Salmond. There is now a queue lining up with malicious prosecution cases against COPFS. It’s reputation is tarnished but a useful tool cannot be held accountable. Hence the forthcoming case against the Scottish government and Lesley Evans has to be taken to court by civil society to seek the accountability recommended by the parliament. Which is an outrageous state of affairs in any functioning democracy.

    Maybe an MSP from the opposition could raise a motion for separation of powers?

    Liked by 2 people

  4. Principiis obsta and Finem respice—‘Resist the beginnings’ and ‘Consider the end.’

    The slow steady incremental changes in the Scottish Court process and the structure and process of what passes for a justice system which is described here provides a timely reminder of a passage from a short extract (link below) of what is now an historical document from almost a century ago (They thought they were free).

    https://press.uchicago.edu/Misc/Chicago/511928.html

    “Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don’t want to act, or even talk, alone; you don’t want to ‘go out of your way to make trouble.’ Why not?—Well, you are not in the habit of doing it. And it is not just fear, fear of standing alone, that restrains you; it is also genuine uncertainty.”

    Taken together with the public trashing by too many self declared and self identified “progressive” politicians from various political parties…on the present trajectory it would be somewhat risky to discard the possibility of a rerun of the Alex Salmond trial without a jury in the not too distant future.

    It remains deeply ironic that the right wing post modernist cultural Zeitgeist from which this phenomenon originates has over the recent weekend been defended by its latest victim, Craig Murray, on his blog.

    It is perhaps also worth noting, in the context of the Scottish Hate Crimes Act and Gender Reform Act, that those convicted and sentenced for “criminal” acts do not get the vote.

    Liked by 2 people

  5. The Scotland Act itself needs changed –
    (1)There shall be a [F1Scottish Government], whose members shall be—

    (a)the First Minister,

    (b)such Ministers as the First Minister may appoint under section 47, and

    (c)the Lord Advocate and the Solicitor General for Scotland.

    The career of Colin Boyd, The SCRO scandal. In England there was the Is it legal or Is it no legal panto before the Iraq war. Political interference and corruption in the Crown office has been a embarrassment and a frustration for decades. It is now a humiliation for those Scots who give a shite.

    It obviously suits some establishment agenda for it to be this way – see the Scotland Act.

    I have it in my head that Scots Law should be our protection. I am obviously just a common fool, a clown. It really is seriously depressing being Scottish. I suspect its just a game for those who have power over us. We can’t even point to colonialism because there is not single person born in Scotland today who knows the status of our own country.

    The establishment of that principle would be a step in the right direction for us.

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  6. Its a complete and utter sham and more people are now looking very critically at the whole sorry state of ‘play’ in Scotland.

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  7. The sentence had nothing to do with the so called jigsaw ID. It was that Craig was an ambassador, part of the system. One of their own in their eyes, he betrayed them with his pro indy views so they found him guilty. By they I mean the government and their willing civil servants. He had no chance.

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  8. Craig is due back in court a week on Tuesday when he should get some response to the appeal he was given 3 weeks to lodge. I plan to write about the case again then.

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  9. [Other than this sentence, please excuse the lack of emollient embellishments almost de rigeur as a first-time commenter to your excellent and much-needed Новичо́к blogsite, which, like Fry’s Turkish Delight is full of Eastern promise; may it prove to be to be a “breath of fresh air”, cf much of the blogroll currently available in these political arénas of discussion.]

    I am surprised in this article you make no mention of David Davis’s adjournment debate¹ just a couple of months ago. The high relevance of his (admittedly privileged) remarks to everything you discuss on this page makes its omission remarkable.

    I assume you are aware of Davis’s words; why no mention of this?

    ¹ in case you, or others are perhaps unaware: briefly, per Davis, this matter can be “traced back” to the legislation passed by Westminster to set up a devolved administration in Scotland, by MPs who “decided to devolve power to the Scottish parliament but failed to do it properly”.

    This “failed to guarantee separation of powers”; the Lord Advocate “both leads [sic] the prosecution service and serves in the Scottish cabinet” – resultant that the arrangement as it stands is inevitably “compromised” and their independence “undermined”.

    Politicians in Edinburgh do not enjoy the same “powers and privileges” as those in Westminster, leading to the anomaly that “evidence relevant to the Holyrood inquiry can be freely discussed” in the UK parliament but not the Scottish one.

    Just a flavour: it’s available in full in Hansard. I repeat, why no mention? Davis’s comments were important to highlighting this to a wider audience but two months ago.

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    1. Thank you for your kind wishes. The only reason I omitted David Davis’s comments were because they’ve been so well reported. Also, I think the views of any politician can be too lightly dismissed as partisan. Not so easy it do that with a pair of emeritus professors.

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