In Relation To The Contempt of Court Finding Against Craig Murray

The behaviour of society is controlled and tempered by a mixture of laws and customs and practice. We understand as members of a democratic society that there are some restrictions on the way we conduct ourselves and behave due to the impact our actions have on others. None of us exist in isolation.

by Rob McDowall

The behaviour of society is controlled and tempered by a mixture of laws and customs and practice. We understand as members of a democratic society that there are some restrictions on the way we conduct ourselves and behave due to the impact our actions have on others. None of us exist in isolation. The law is made by Parliament and applied and developed by judges under the principle of Stare decisis.

Certain cases require the judge to issue special instructions and agree special measures to protect the identities of the complainer and/or the witnesses. Family law cases involving children and sexual assault and rape cases all normally attract reporting restrictions for the reasons above.

When a court makes an order and instructs the media and those observing the trial that reporting restrictions exist, these restrictions limit the sharing of information which identifies or which could lead to the identification of the complainers and/or witnesses. Any person acting contrary to these restrictions is liable to being brought before the court for examination for contempt of court. Contempt of court is a serious offence and is heard from the bench by the Sheriff or High Court judge(s) who issued the order in question.

In Scotland there is no formal trial for contempt, the contemnor will be brought before the court to explain their actions and will be invited to place before the court, reasons or an explanation as to why they should not be found to be in contempt of court. These reasons or explanations will be considered by the court and the judge(s) will announce their determination immediately or will take the consideration to avizandum.

The Presumption Against Short Periods of Imprisonment (Scotland) Order 2019 does not apply to contempt of court as it amends the minimum term in s204(3A) of the Criminal Procedure (Scotland) Act 1995 which in s307 confirms contempt of court actions are excluded. Findings of contempt of court do not result from a trial and the punishment handed down by the court is not a sentence. It is purely concerned with purging the contempt.

Courts will consider contempt as interfering with its ability to carry out its work and having the potential to damage confidence in the due and impartial administration of justice. If someone acts in a manner contrary to a court order and the individual does not show remorse and a respect for the court, they are likely to attract a more severe punishment. Craig Murray's case is a case in point.

I have seen a number of comments online which incorrectly state that an accused person in Scotland has a right to a trial by a panel of their peers - they don't. In Scotland there is no right to choose a jury trial, nor is there a right to choose the venue for ones hearing.

In Scots criminal cases, save for a few of the most serious cases, the Crown Office and Procurator Fiscal Service (the fiscal) conduct a confidential marking exercise by which they choose which criminal procedure should apply to the case being considered. Summary procedure refers to a hearing before a Justice of the Peace, a Stipendiary Magistrate (in Glasgow only) or a Sheriff, where they sit in judgement without a jury. The Solemn procedure involves a Sheriff in the Sheriff Court or a Judge at the High Court of Justicary sitting with a 15 person jury.

However, as above, a consideration for contempt of court does not result in a trial and would take place from the bench before the judge which issued the initial order.