The Court of Session in Parliament Square and advocates taking part in an event there (below).
By Kapil Summan
Prosecutors have no licence to “police a free press in a free country”, a group of former lawyers who have held high office claim.
Writing exclusively in Scottish Legal News, the group, which calls itself Quis? – Latin for ‘who’ – argues that the Crown Office abused the contempt of court mechanism and acted as a state censor during the Salmond inquiry.
The lawyers say that the actions of the Crown Office during the Holyrood inquiry “have given rise to some disturbing concerns” and have recommended that it be prevented from playing such a role again.
The Crown Office intervened in the inquiry over a potential breach of a contempt order made in the High Court trial in which former first minister Alex Salmond was acquitted of 13 sexual offence charges.
As a result, a submission was edited to remove matters that concerned Crown Office lawyers. This was done, however, not at the behest of the Lord Advocate but by “experienced lawyers”. The same lawyers asked that the terms of the request be kept confidential.
The Spectator, however, had published the entirety of the submission.
The group writes: “The Spectator was not only ‘requested’ to remove what we assume was the same material by the same Crown Office lawyers: it was also instructed by them not to publicise the fact that they had been ‘requested’ to remove material.
“When did Crown Office, our state prosecutors become our state censors?
“When did Crown Office get the power to tell anybody to keep their correspondence secret?”
Quis also suggests the warning letters sent to newspapers and the Parliament may have been unjustified. It notes that in a recent high-profile contempt of court prosecution, “50 per cent of the material alleged by the Crown to amount to contempt was found by the court not to be a breach of the court order”.
“The Crown’s view is accordingly not necessarily a correct statement of the applicable law: it follows that the Crown’s warning letters to newspapers and even to the Scottish Parliament, may well have been unjustified.”
The lawyers say that while contempt of court in the publishing sense is a matter for a court to determine, publishers “are only too well aware of the enormous legal costs which can be involved if they fail to follow the opinions expressed by Crown Office”.
They add: “Few publishers these days, particularly in Scotland, have the resources to resist ‘requests’ by Crown Office for removal of disputed material.”
Finally, the lawyers call for the Crown Office’s policing role to be “brought under some form of oversight”.
“It should not simply be a matter for somebody in Crown Office to fire off their ‘concerns’, to remind the recipient of the enormous penalties and to suggest that the publication in question should be edited to reflect the Crown Office view.”
Quis also asks why the Crown Office has any right to step in when publishers have taken their own legal advice.
It suggests that the process should be changed so that the Crown Office has “no part to play in persuading the alleged offender to edit his material to comply with any views of Crown Office”.
“We make a bald statement inviting rebuttal: it is no part of the function of Crown Office to police a free press in a free country,” the lawyers warn.
The Crown Office was contacted for comment.