Seeing justice through a fog of anger

by | 1 Dec 2021

It seems no-one is capable of separating the Craig Murray case from their pre-existing views of him and Scottish politics. It means people are missing the big issues.

Yesterday was an uplifting day for me, at the centre of which was seeing Craig Murray released from prison. This is personal in that Craig is a friend and he asked me if I’d join the Craig Murray Justice Committee. The Zoom call we did with Craig the night before he was jailed was one of the most emotional experiences I’ve been through in politics.

But that all lies at the heart of the problem with this case – no-one seems able to separate it from their emotions or their ideological positions. In fact in Scotland this whole affair sometimes feels more like another proxy in the protracted Loyalists Versus Dissidents civil war in the independence movement.

What this does is obscures the really important issues which lie at the heart of the case. We may very well live to regret it if these issues are not addressed.

There are two primary issues tied up in this case – what is the threshold for jailing someone for what they write and is everyone equal in the eyes of the law? A third question is the extent to which we are supposed to behave as if the state is an honest and impartial player in issues of this sort, but that is harder to untangle.

Let’s begin with the first question – what threshold do we as a society set for jailing someone for what they write? Most of us would accept it has to be a pretty high threshold if we want to continue to behave as if we live in a society where the principle of free speech is taken to be important. But we’d equally accept that there really must be a threshold – not everything is legitimate comment.

That’s where the concern starts in the Murray case – there isn’t really a threshold at all, with his jailing based wholly on an arbitrary and unsubstantiated opinion.

For those who think this is sloganeering rather than analysis, it is important to be clear of why I write these words. Craig was found guilty in a hearing in which no evidence was presented against him. It was not shown at all (never mind ‘to beyond a reasonable doubt’) that anything he wrote was capable of leading to the identification of anyone in this case. No evidence of this sort was led.

Rather the jailing is based entirely on the opinion of Lady Dorian that she believed what he wrote could lead to identification. Such is the low threshold in this case that she was not required to outline what information she believed might have led to identification never mind prove her case. How do you defend yourself against a ruling that ‘something you wrote is bad but I’m not telling you what or how, just go to jail’?

How do you defend yourself against a ruling that ‘something you wrote is bad but I’m not telling you what or how, just go to jail’?

Likewise in Dorian’s high-handed dismissal of evidence Craig’s lawyers submitted to the judges which was deemed not to be credible without any evidence of any sort being led to demonstrate that it wasn’t credible. Again, there was no legal ruling on why this was dismissed, it just was.

Try and talk to someone from outside the UK about this case and see what happens when you say ‘jigsaw identification’. You’ll be asked ‘what is jigsaw identification?’. Explain it to them and the questions will keep multiplying. ‘How do you prove it?’ ‘How can you only prosecute one piece of the jigsaw?’ ‘How can someone know in advance what the other jigsaw pieces will be?’

This is not coherent law as we are led to believe it exists in the UK. When you place this side by side with the incidence from three years ago of the Daily Record not ‘jigsaw identifying’ people protected in a court case but outright naming them and putting their pictures on the front page you’ll get the picture. In that instance there was a fine and no-one was jailed. Why the different threshold here?

There is a reason that no-one anywhere in the world has ever been jailed for jigsaw identification until now. It seems to me almost impossible to set a reliable, measurable threshold of guilt in this ‘crime’, and totally impossible if you cannot lead evidence of malicious intention.

But this is absolutely not arbitrary, this is clearly political. Touching briefly on my third point, the UK state is not a neutral, rules-based body. The UK state suppresses information all the time where the right to have the information clashes with possible embarrassment or raises checks and balances on its power.

You don’t need to agree with what Craig writes (you could even believe him a conspiracy theorist if you insist) to be aware that nothing about this case is coincidental. Even if you’re an arch critic of Craig’s, do you really believe there is anyone else who would have been prosecuted in this instance? Everything about this has been politicised from the beginning.

The second question raised by this case is about whether everyone is equal in front of a Scottish court. To put it simply, if you are accused of a crime, should who employs you be a factor in your judgement and sentencing? The principles of Scottish justice suggest the clear answer to this question is no.

This has enshrined in Scots law the concept that two people can write precisely the same words but only one has committed a crime if they are not suitably well connected

But Lady Dorian has changed that. She (on her own) has in effect changed Scottish law. Her ruling stated that this case must be judged (and sentenced) differently because what was written was not written in a newspaper owned by a corporation. There is nothing blind about that justice, it is institutionalised bias.

If a crime is committed there may be mitigation in the sentencing but not in the arrival at a verdict of guilt or innocence. Surely you must be judged on the merits of the case alone, not on your employment status. This has enshrined in Scots law the concept that two people can write precisely the same words but only one has committed a crime if they are not suitably well connected.

Little needs to be said about why this is patently and dangerously wrong. ‘Yes, your client was drunk when he hit and killed the child but he is employed by a world-leading bank so that must be taken into account in arriving at a verdict’ is very obviously against justice.

Dorian’s argument is that newspapers have protections against making mistakes like accidental contempt of court. She is right in saying that – which is why there is a case to say that professional journalists who make that mistake have less to mitigate their guilt, not more.

This is the prime reason why Craig and his lawyer are so confident of eventual vindication at the European Court of Human Rights. Dorian’s judgement isn’t just against the spirit of Scottish justice but of the founding principles of the European Union. If that case goes as Craig’s team expect, Scotland will be embarrassed on the world stage – and deserve to be.

These are the issues, but it seems impossible to discuss them in Scotland’s juvenile political culture where ‘decide first, think about it later or not at all’ seems to be the mantra. A process of intentional ignorance (the number of people I have encountered who thinks Craig revealed people’s names is unsettling) used to support pre-existing hatreds dominates.

You don’t have to like Craig, agree with him or even think his contribution to debate has any value at all. You can consider him dangerous and a source of misinformation if you absolutely must. But if you are to demonstrate any intellectual consistency and credibility at all you must surely recognise these two questions deserve a proper answer:

Is the threshold of guilt in Scotland arbitrary and should everyone be equal in front of the eyes of the law? If you believe the former is wrong and the latter is right, the Murray case should make you deeply uncomfortable.

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