Why can’t we talk about the Nicola Sturgeon scandal?

The arrest of Nicola Sturgeon has sent shockwaves through Scottish politics. Yesterday, the former first minister was questioned by police for seven hours before being released without charge. She becomes the third senior SNP official to be arrested under Police Scotland’s investigation into the party’s finances, following the arrests of treasurer Colin Beattie and chief executive Peter Murrell, who is also her husband. (Both men were also questioned and then released without charge.)

It’s an extraordinary story. Yet you may have noticed that the commentary around it has been decidedly muted. Scour the British or Scottish papers and you won’t find a single article defending or damning Sturgeon or the other SNP bigwigs. Turn on the TV or radio and there are no major rows or bust-ups about this unprecedented event. The commentariat has been cowed.

This eerie silence is largely thanks to the chilling effect of Britain’s contempt-of-court laws. The Contempt of Court Act 1981 criminalises the publication of anything that might pose a ‘substantial risk of serious prejudice’ to a legal case. Although it is a UK-wide law, it is applied much more stringently in Scotland. And while in England contempt laws only kick in after a suspect is charged, in Scotland a person only needs to be arrested for a case to be considered ‘active’ under the act.

As Roddy Dunlop KC, dean of the Faculty of Advocates, warned on social media yesterday following Sturgeon’s arrest: ‘The Contempt of Court Act 1981 kicks in after arrest. Thereafter, espousing your strongly held views as to guilt or innocence on social media is spectacularly unwise, dangerous and to be avoided.’

The law goes beyond expressing opinions about a suspect’s guilt or innocence, however. As a recent Twitter thread by Scotland’s Crown Office and Procurator Fiscal Service (COPFS) spelt out, contempt laws mean you cannot publish ‘commentary or analysis of evidence, witnesses or accused’ – on any platform, whether in the print or broadcast media, or on social media or online. That covers pretty much everything you might want to say about the SNP’s financing scandal.

More alarming still, as the COPFS warns, the punishment for such commentary or analysis can be ‘up to two years in prison and / or an unlimited fine, in serious cases’. Recently, a former diplomat was jailed for eight months for contempt of court because of his blog posts during the trial of former Scottish first minister Alex Salmond.

This ever-present threat of imprisonment – even for mere commentary and analysis – casts an icy chill over public discussion. It limits the press to restating the facts about Sturgeon’s arrest and about the progress of the investigation. It leads to stilted articles and bland broadcast packages, legalled to within an inch of their lives, shorn of anything that might resemble an opinion. It means that the press, politicians and the public are essentially banned from speaking well or ill about important public figures – and even about the most momentous of political events.

The law as it stands is incoherent. As Calum Steele, former general secretary of the Scottish Police Federation, has pointed out, ‘nobody knows what it is they are meant to be careful about discussing’. Writing in The Times last month, he also accused the SNP of exploiting the ambiguity of the law and hiding behind it to avoid answering legitimate questions. ‘There is no legal prohibition on the former first minister answering questions on what she knew and when’, he wrote. But the way the law is currently being interpreted in Scotland, he said, is giving ‘the powerful an overt shield of protection’.

There is no justification for these restrictions on discussion. Other countries, like the US, allow for far more reporting and commentary on active legal cases (just look at how much more lively the debate is over the charges against Donald Trump, for instance).

Defenders of the Contempt of Court Act say that jurors need to be shielded from biased media commentary. The implication is that ordinary people are too easily swayed by the odd tweet or newspaper article. It suggests that they cannot be trusted to put their prejudices aside and weigh up the evidence that is presented in court. In other words, what these contempt-of-court laws really express is a contempt for the public – as well as for those all-important values of free speech and press freedom.

The British people must have the right to talk about the Nicola Sturgeon scandal. This state-enforced silence is an outrageous affront to democracy.

Fraser Myers is deputy editor at spiked and host of the spiked podcast. Follow him on Twitter: @FraserMyers