The former UK diplomat sentenced to prison for contempt of court arising from the trial of former First Minister Alex Salmond, has had his application for permission to appeal to the UK Supreme Court refused.
Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Turnbull ruled that Craig Murray had raised no arguable points of law raising a compatibility issue in terms of s 288AA of the Criminal Procedure (Scotland) Act 1995.
Mr Murray was sentenced to eight months in prison for publishing material during the trial that was judged likely to lead to identification of a number of the complainers, in breach of an order under s 11 of the Contempt of Court Act 1981.
At the outset the court raised the question whether the contempt proceedings, which are treated as a special category of case ("sui generis"), were "criminal proceedings" for the purpose of s 288AA, but accepted that this was "at least arguable", as "their true nature may reflect the nature of the proceedings to which they relate, in this case criminal proceedings".
However it also observed that it was relevant to distinguish Mr Murray, who described himself as a "journalist in new media", from the mainstream press, which was regulated and subject to codes of practice and ethics in a way in which he was not.
On the merits, the court considered (1) that it was permissible for the finding of contempt to refer to articles by Mr Murray which did not form part of the petition for contempt, in the same way as any other material in the public domain which might form part of the potential for "jigsaw identification" that was alleged; (2) that the court had proceeded on a test that was sufficiently precise and foreseeable, being whether, objectively speaking, Mr Murray had published material which was likely to disclose the identity of complainers in the trial, and on the basis of identification by members of the public rather than on the narrower basis of colleagues at work or other restricted group; (3) that the sentence could not be said to be disproportionate where the maximum permitted was two years and the order made had not prevented the reporting of the trial or other matter of public interest, such as whether the prosecution was objectively justified.
Nor could the arguments raised be properly categorised as a devolution issue under the restricted scope of sched 6, para 1(d) to the Scotland Act 1998.
The warrant for Mr Murray's imprisonment was suspended for a further four weeks as he intended to apply for permission directly to the UK Supreme Court.
Click here to view the opinion of the court, delivered by Lady Dorrian.