On 7 January 2021 my friend Mark Hirst was acquitted of the charge brought against him by the Crown Office and Procurator Fiscal Service (COPFS). His alleged crime had been the practice of journalism.
The court made clear in upholding the defence submission of no case to answer that comments Mark had made on a video blog about the Salmond case were political speech protected by Article 10 of the European Convention on Human Rights, that they represented the free expression of opinion, and that as a matter of objective fact a reasonable person would not be threatened or alarmed by them.
This raises obvious questions about why Mark was prosecuted.
Are there no reasonable persons at COPFS who can properly assess objective facts?
Has no-one there read Article 10?
Or, like Humza Yousaf, are they just at war with freedom of expression?
Let me do what I can to answer those questions.
No case to answer
In an open letter to the Lord Advocate of 31 May 2020, distinguished signatories such as Noam Chomsky, Yanis Varoufakis, Professor Robert Black QC and – ahem – myself wrote of our “growing concern over the actions of both the Crown Office and Police Scotland”.
“In recent weeks vocal independence supporters and backers of the former First Minister Alex Salmond, specifically the former UK diplomat, human rights campaigner and journalist Craig Murray along with fellow journalist Mark Hirst, have been arrested and charged in relation to comments they made publicly during and following the trial of Mr Salmond.
“We are particularly concerned to note that the investigating police officers are the same detectives who led the investigation against Mr Salmond over a period of two years and at considerable cost to the public purse.”
This, we pointed out, “leaves the distinct impression that Police Scotland, at the direction of the Crown Office, is acting in a manner that is both biased and disproportionate”.
Accordingly, we wrote:
“The actions taken so far risk establishing a public perception that both Police Scotland and the Crown Office are conducting themselves in a manner which is biased and is indeed political in nature.
“Such perceptions risk seriously damaging confidence in the Scottish legal system.”
We concluded by asking the Lord Advocate for “any meaningful public assurances you can offer that both Police Scotland and the Crown Office are complying with their obligations to act with complete impartiality and to apply the law fairly”.
In his response, published in the Sunday National on 7 June 2020, the Lord Advocate chose to focus on the trial of Alex Salmond, on which he commented as follows:
“Following a trial, Alex Salmond was acquitted by the jury and he stands innocent of the charges brought against him. That does not mean that it was inappropriate to investigate the allegations, or that the prosecution was not properly brought.
“Mr Salmond’s counsel did not argue, nor did the court hold, that there was no case to answer.”
It’s very important to note that, in defending the actions of Police Scotland and Crown Office in the Salmond case, the Lord Advocate laid great stress on the fact that a submission of no case to answer was not made by Salmond’s defence, and that the case went straight to the jury for them to assess the credibility of the complainers.
The clear implication of these comments is that a successful submission of no case to answer in that case would have suggested something inappropriate in the proceedings and would have caused him concern that the prosecution was not properly brought.
Well, as we know, in Mark’s case exactly such a submission was made, and was duly upheld by the court.
Further, unlike in the case of Alex Salmond, where much of the evidence of Crown witnesses was disputed, the facts in Mark’s case were never in dispute.
Indeed, the Crown evidence consisted entirely of the video in which Mark made his political comments, the contents of which were agreed by joint minute between prosecution and defence, and whose provenance had never for a moment been disputed by Mark.
The submission of no case to answer was therefore upheld on the basis of exactly the evidence which had been available to Police Scotland and Crown Office from the outset, and on which COPFS authorised and defended the decision to prosecute Mark.
So this was not a case where a submission of no case to answer succeeded because witnesses failed to speak up or because there were difficult questions of admissibility of evidence which were ultimately resolved in favour of the defence and where the Crown could therefore say that the issues needed to be tested in court before it could become evident that their case had failed.
No, this was a case where COPFS brought a prosecution which was quite obviously doomed to fail the moment it came to be assessed by a competent judge. Indeed, it’s hardly even a boast of my legal prowess to tell you that I was just one of many experienced lawyers, including Mark’s own legal team, who told him from the very outset that this is what was bound to happen.
So why was it allowed to happen?
The bias of COPFS
The two complainers against Mark were also two of the complainers against Alex Salmond, whose accusations against Salmond were dismissed by a jury but who, for good reasons of public policy, still enjoy the anonymity granted by the court in those proceedings.
Through their unofficial spokesperson, Sandy Brindley of Rape Crisis Scotland, and taking advantage of that anonymity – an anonymity which was surely never designed for such a purpose – they told the Daily Record that Mark’s comments were “sinister” and “threatening” towards them.
Then they reported him to the police.
Anyone who has ever reported an actual crime to the police will know how slowly the wheels of justice then tend to grind.
Not so for this utterly fictional crime.
Mark was arrested immediately and his eight month ordeal at the hands of Police Scotland and COPFS began. He doesn’t know who his accusers were and, precisely because their allegations were not allegations that a reasonable person would make, their presence in the proceedings was never required in order for the sheriff to throw out their whole fictional complaint.
Any reader of this blog who thinks that’s a fair and proper use of the anonymity granted to these two complainers should apply forthwith to COPFS for employment. They can use someone like you, believe me.
The obvious answer to the obvious questions
Here then is my answer to the obvious questions about why Mark’s prosecution, based on allegations by two anonymous, unreasonable complainers, was authorised and vigorously pursued by equally unreasonable persons in the employment of COPFS.
It’s the answer that the Lord Advocate would have given to our open letter of 31 May 2020 if there was even an ounce of honesty left at COPFS.
Police Scotland and COPFS have indeed acted in a manner that is both biased and disproportionate.
What is more, there is every indication that they will continue so to act whenever anyone under the protection of the Scottish Government, of which the Lord Advocate is a key member, makes accusations against anyone perceived to be an ally of Alex Salmond.
In so acting, both Police Scotland and COPFS are conducting themselves in a manner which is patently biased and political in nature.
All that any reasonable person has to do to reach that obvious conclusion is look at what happened to Mark Hirst.
If you haven’t already seen it, check out also this excellent interview with Mark by Stuart Campbell on the Wings Over Scotland blog today.