Currently in Scotland, unlike elsewhere in the UK, complainers who make complaints of sexual offences have no statutory right to anonymity. Legislation has been passed by the Scottish Parliament to change that position, but it is not yet in force. Anonymity is currently obtained through the Editors’ Code and also sometimes through orders made by the courts at common law and under the Contempt of Court Act 1981.
The late Alex Salmond, a former First Minister of Scotland, was accused by a number of women of sexual misconduct. In 2020, right before the pandemic lockdown, he was acquitted of a number of serious charges in a trial in the High Court of Justiciary. Mr Salmond had also brought judicial proceedings in the Court of Session against the Scottish Ministers, which were settled.
During the course of the judicial review proceedings, Lord Woolman made an order under the Contempt of Court Act 1981 preventing publication by any means, including on social media, of the names and designations (both past and present) of the complainers referred to in the report which was the subject of those judicial review proceedings. When the proceedings were conceded by the Scottish Ministers an undertaking was given to the court whereby the Scottish Ministers undertook, save insofar as necessary to requirement with any lawful requirement, to c-operate with any criminal investigation or where otherwise approved by the Court, not to cause or permit the publication or dissemination to any other person the report by the Investigating Officer or any of the statements or other material taken or prepared in the course of preparing that report.
During the trial of Mr Salmond, the presiding judge (the then Lord Justice Clerk, Lady Dorrian) made an order at common law and under the Contempt of Court Act 1981 prohibiting the disclosure of the names and identity and any information likely to disclose the identity of the complainers. That order was later varied, following an application by the Spectator, to make it clear that the order prohibited only the publication of information identifying, or likely to identify, them as the complainers in that case.
The orders of Lord Woolman and the Lord Justice Clerk remain in force, and it is against that background that the latest in a series of proceedings between the Scottish Information Commissioner (“SIC”) and the Scottish Ministers unfolded. On Friday last week the Court of Session (First Division; Lord President (Pentland), Lord Malcolm and Lady Wise) published its opinion in Scottish Ministers v Scottish Information Commissioner. This was an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 (“FOISA”) in relation to two decisions of the SIC. The decisions in question were 279/2025 and 315/2025.
Decision 279/2025
In April 2021, a request for information was made to the Scottish Ministers seeking all written evidence submitted to James Hamilton (not to be confused with David Hamilton, the SIC) as part of his investigation into whether Nicola Sturgeon, herself also a former First Minister of Scotland, had breached the Scottish Ministerial Code. Initially, the Scottish Ministers argued that they did not hold the information and that was itself subject of an appeal to the Court of Session under section 56 of FOISA.
The Scottish Ministers, having lost that appeal, issued a fresh decision which provided links to certain publicly available documents which had been published by the Scottish Parliament but in relation to everything else argued that it was exempt by virtue of sections 26(c), 30(c) and 38(1)(b).
The requester made a further application to the SIC, who found in his favour. In the SIC’s decision, he identified the question for him as being “whether all of the information redacted by the Authority under section 26(c) of FOISA would identify the complainers or otherwise breach the undertaking.” He concluded that it did not, stating in his decision the following:
“In view of the information already in the public domain, the Commissioner agrees that disclosure of this information (which he considers would not directly identify individuals) would permit assumptions to be made regarding the identity of one or more complainers. However, he is not satisfied that disclosure of this information, would – even when the above context (including what information is, or may be, known by others) is taken into account – allow for the confirmation or refutation of such assumptions (i.e. lead to their identification).”
Decision 315/2025
In 2023 a different requester sought all evidence submitted to the inquiry by James Hamilton. This was slightly wider in scope as it sought all evidence rather than just all written evidence. This request ended up before the SIC who decided in favour of that applicant for reasons which were identical to those in decision 279/2025.
The Scottish Ministers appealed to the Court of Session in respect of both decisions. There were, in essence, two grounds of appeal which were the same in both cases. The first ground of appeal argued that the SIC “misdirected himself by considering whether it was for him alone (and not the Ministers or the court) to determine whether disclosing the information would constitute, or be punishable as, contempt of court.” [27] The Ministers argued that the SIC’s position, that it was for him to determine whether disclosure would amount to a contempt, was misconceived and that only the court could make that decision. [27] The approach adopted by the SIC placed the Scottish Ministers in jeopardy by being ordered to disclose information where that disclosure might result in them being found in contempt of court. [27]
The Ministers argued that the SIC’s argument that compliance with a decision by him requiring disclosure would be a complete defence to an allegation of contempt of court was misconceived. [31] The Ministers argued that the court was the final arbiter of whether disclosure of information amounted to a contempt of court. [31]
The second ground of appeal was that even if the SIC had asked himself the correct question, the answer which he had reached was incorrect. The SIC had “had considered whether the information would allow for the definitive confirmation or refutation of existing assumptions as to the complainers’ identities.” [28] This placed the threshold too high. [28] The purpose of the orders was to prevent what is commonly referred to as “jigsaw identification” and therefore there was no need for the Information to be definitive. [28] The SIC had considered an irrelevant factor and failed to consider the correct legal test. [28] The Ministers argued that “[a] disclosure which permitted, or created a real risk, danger or chance of, their identification to a section of the public would breach the orders.” [32]
In response, the SIC argued that he had considered the materials carefully and while he had held that some information should be disclosed, he had also held that some should not. In doing so, he had done what FOISA required him to do. [33]
The SIC argued that FOISA would be “internally incoherent if both compliance and non-compliance with orders of the Commissioner could be contempt of court.” [36] Section 26(c) served to exclude that possibility and that there was no risk to the Scottish Ministers being forced into contempt. [36] The SIC argued that the approach advanced by the Scottish Ministers “would effectively make them the primary decision-maker under section 26(c) and relegate the Commissioner to a supervisory role capable of intervening only where the Ministers lacked any reasonable basis for their position.” [37] The SIC argued that this would subvert the statutory scheme; the SIC was the independent decisionmaker charged with determining whether exemptions had been applied properly by a Scottish public authority. [37]
The Scottish Ministers had relied, before the Court (but not before SIC), on the decision of the High Court of Justiciary in the case of Murray v HM Advocate (a case in which someone was found in contempt of court for breaching the order made by the Lord Justice Clerk). The SIC argued that it was not for him “to go off on a frolic of his own by tracking down case law not cited to him.” [40]
Decision of the Court of Session
The opinion of the court was delivered by the Lord President. The Court’s decision and analysis begins at [41] of the Lord President’s opinion which states:
“While it is undoubtedly surprising and unfortunate that the Ministers did not rely, in their submissions to the Commissioner, on the decision in Murray v HM Advocate [2022] HCJAC 14; 2022 JC 181, it would be unconscionable for this court to ignore what was authoritatively stated in that case about the meaning and purpose of the various orders pronounced in the civil and criminal proceedings arising out of the investigation into allegations of sexual misconduct by Mr Salmond. We acknowledge that in some circumstances a decision maker cannot be faulted for having failed to address points not made to him by the parties.”
In the court’s opinion it is the SIC’s responsibility “to reach his own independent view on the question of whether a public authority has dealt with an information request in accordance with the provisions” of FOISA. [47] The SIC “must reach his decision based on his own independent consideration of the issues, applying the scheme and rules set out in” FOISA. [47] The court ultimately determined that the SIC had correctly understood his role and had not misdirected himself by misunderstanding the statutory function conferred upon him and his responsibilities. [48]
However, the court determined that in order for the SIC to carry out his functions, “it was essential for the Commissioner correctly to understand the purpose, meaning and effect of the court orders and the nature of disclosures which would constitute a breach of them.” [49] The meaning of the orders had been authoritatively explained by the High Court of Justiciary in Murry. [49] The SIC’s analysis failed “to reflect a sound appreciation of the correct approach to what may amount to breach of the orders.” [50] If there would be a risk of assumptions being made about the complainers’ identifies as a result of the release of the information, this would heighten the danger of the complainers being identified then that would breach the contempt orders. [50] It was essential, when addressing the question of whether releasing the information would amount to a contempt of court, to bear in mind that the purpose of the contempt orders, fundamentally, was to protect the dignity and privacy of the complainers and to protect their safety. [51] It would be inconsistent with the objective of the orders to permit assumptions to be made about their identities. [51] The Court concluded, therefore, that the SIC had erred in law by order disclosure of the withheld information.
The appeals were allowed in relation to each decision notice, the decision notices were quashed insofar as they ordered disclosure of information which had been withheld on the basis of section 26(c) of FOISA and both matters were remitted back to the SIC to reconsider his decisions in light of the opinion of the court in this appeal and the terms of the court’s opinion in Murray. [52] The court held that, in the context of this appeal, it was unnecessary to resolve the dispute between the parties of the meaning of the words “(otherwise than under this Act)” within section 26 of FOISA as nothing turned on their meaning in relation to this appeal. [53]
Comment
This is yet another interesting decision from the Court of Session in relation to FOISA. There have historically been very few appeals to the Court of Session under FOISA, but the investigation by James Hamiton into whether Nicola Sturgeon breached the Scottish Ministerial Code has resulted in a number of appeals under section 56.
This decision, briefly, assists with the proper function of the SIC in relation to applications under section 47(1) of FOISA. It is for the SIC to make an independent view, based upon his own independent consideration of the issues, as to whether a Scottish public authority was entitled to withhold information. Subject to a demonstrable error of law, it is for the SIC to determine whether the information falls within one of the provisions within Part 2 of FOISA and, where the public interest test is applicable, it is for him to determine where the balance lies.
When dealing with contempt orders made by the court it is for the SIC to decide whether the disclosure of withheld information would amount to a contempt; however, in doing so it is essential for the SIC to correctly understand the purpose, meaning and effect of those orders and the nature of disclosure which would lead to a breach of them. The issue of what the words “(otherwise than under this Act)” in section 26 mean remains to be determined in a future case where the decision turns on their meaning.
Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.
