The freelance journalist, broadcaster and former SNP staffer Mark Hirst was last week acquitted at Jedburgh Sheriff Court, after a very short trial, of a charge of threatening behaviour against the anonymous complainers who made false allegations of sexual misconduct against the former First Minister, Alex Salmond.
Hundreds of years ago a very different type of law used to operate in Jedburgh, or Jethart as it’s known locally. “Jethart Justice” was once meted out to the Reivers – the lawless cattle stealers and highwaymen that used to control that part of the Borders – which was that the local prosecutors would hang suspects first, then try the dead men afterwards. Some believe it’s where the concept of lynching originated.
Anyone who thinks those days are over doesn’t know the Scottish media.
Just as with Salmond himself, Hirst was subjected to a trial in the press long before he saw an actual court. Rape Crisis Scotland, a Scottish Government-funded mouthpiece which still refuses to accept the jury’s verdicts in the Salmond case, dubbed comments made by Hirst in the video for which he was arrested “sinister” and “threatening”, in a seemingly transparent attempt to prejudice the trial in which the question of whether they were threatening or not was in fact to be determined.
For good measure they then comprehensively set the presumption of innocence on fire by adding “This behaviour should be condemned in the strongest possible terms by all parties” in a statement reported widely in Scottish newspapers, who also emphasised Hirst’s links to Sputnik, a Russian state-owned broadcaster.
But the truth of events hasn’t been aired until now – there was remarkably little media coverage of the acquittal compared to the amount there had been of his arrest and charging – so Wings spoke to Mark Hirst to find out what really happened.
WINGS: When did you first know something was amiss?
MARK HIRST: The first I knew of any prospect of police involvement was when Paul Hutcheon of the Daily Record contacted me on 31 March to tell me that certain unnamed individuals had made a complaint about a video I’d posted on YouTube the day before.
He’d been tipped off by a freelance hack called Russell Findlay, who’s now Director of Communications for the Scottish Conservatives.
I’d heard nothing from the police, directly or indirectly. I assumed it was the kind of thing certain Scottish-Government-funded organisations say when they want to splash a story but have no real intention of actually doing so.
I spoke with a local police officer I know and he said they’d heard nothing. Days went by and still I heard nothing, so I decided to phone the police in Edinburgh and asked specifically if there was an outstanding complaint against me. They had no record of it.
And so, as the weeks went by, I went on with my lockdown life until one sunny morning in April when five plain-clothes detectives appeared at my door.
[The image below is from Mark’s front-door security camera. The faces of the officers have been blurred.]
WINGS: What happened then?
MH: I was informed that my computers, and phone, holding the details of my entire life, were to be seized and examined. It was a surreal experience, like the final scene of a bad Cold War thriller. I was asked to slowly step outside and then three of the five detectives entered my home and began searching under the bed, the wardrobe, shelves, everywhere.
I began to wonder if I’d unconsciously committed a murder in my sleep and they were actually looking for a body. But as the Senior Investigating Officer (SIO) spoke to me outside, he confirmed the reason for the raid – the 2m 39s video I’d recorded the previous month while walking in a field miles from anywhere.
The video had only been published as an unlisted link on YouTube, with a link published via my Twitter profile. It wasn’t possible for a casual user to locate it via either a Google or YouTube search, so it had only had about 100 views.
As the search continued I offered to set the video to private or to delete it – as a gesture of goodwill and to avoid any further alleged offence – whilst their investigations continued. This offer was turned down and I was told if I did change the settings this would amount to “tampering with evidence”.
WINGS: But they didn’t arrest you at the time, did they?
MH: No. They just left with all my stuff. After they were gone I felt shocked and suddenly realised I had no practical way of communicating what had just happened to me to anyone. My laptop, my iPad, my mobile phone and external hard drive had been taken. I got in the car and drove to get a replacement mobile and talk to those I needed to, most obviously a lawyer.
WINGS: It sounds very like the time I was arrested on ridiculous trumped-up charges of “harassing” a mad newspaper hack by fact-checking her stories. Even though all the supposedly offending comments were made on Twitter, and the evidence was therefore on Twitter’s computers and not mine, the police took all my desktop PCs, all my laptops, all my tablets and all my phones.
You think, “Hang on, what do you actually need those for? What do you think you’re going to find, a Word document called ‘ALL MY EVIL PLANS’?” It’s like they’re just using it as an excuse to have a general snoop around in the hope of finding something incriminating totally unrelated to the ostensible offence.
MH: Yep. In light of what subsequently transpired there’s no doubt at all in my mind now that the raid was nothing but a fishing expedition. The police – who confirmed they’d all worked on the Alex Salmond inquiry – had already seen the video in question online and secured a copy. They had no reason to come round in person if they weren’t going to arrest me there and then and take me for questioning.
Instead, they spent the next four weeks trawling through my computers and phone, my browsing history, my photographs, my financial records and my media contacts before finally confirming to my lawyer that they’d found nothing of a criminal nature.
WINGS: But of course, that wasn’t the end of it.
MH: Indeed. At that point they informed me I was being “invited” for interview in Edinburgh with detectives. It’s not a good idea to reject this “invitation”! As I have no previous criminal record and had never been interviewed under caution by police I had no idea what to expect.
On the 12th of May I attended St Leonard’s police station in Edinburgh along with my lawyer. Once through reception I was taken into a side room by the two senior detectives who had supervised the search of my home.
I was formally arrested and then taken downstairs, past the dozen or so cells they have there [St Leonard’s exterior and custody suite pictured below], and formally booked in and my clothes searched. I was then taken into an interview room and my solicitor brought in to observe the interrogation.
I read a prewritten statement outlining the reasons I had for making the video. I was then questioned for around 45 minutes during which, on my lawyer’s advice, I gave “no comment” responses to everything.
WINGS: Yeah, I got the same. The arresting officers refused to let my lawyer see any of the “evidence” beforehand, so she instructed me to flatly “no comment” everything, at which point they’d let her see it and consult with me, and then they’d ask me all the same questions again.
We told them this would be a pointless waste of two hours of everyone’s time since I’d be no-commenting everything until she’d advised me, and that it would save everyone a lot of bother if they just showed her the evidence there and then, but they insisted on going through the whole charade.
MH: Aye. People might think that saying “no comment” for 45 minutes is an easy thing to do. But it’s surprising how difficult it is when you’re being asked, “How long have you lived at your current address?” or “Did you previously work for STV News?” or “Is your middle name John?”. It’s like being on some weird gameshow where they’re trying to trick you into saying something.
But my solicitor had strongly advised me to do it, because once you answer one question you’re obliged to answer them all, in case a court might think you’re being selective about the more ‘probing’ questions.
The most difficult one was when I was shown one of the productions they were going to present as evidence. It was a screenshot of my Twitter account from a month before the video was made, in which my bio read “Spending lockdown sharpening my pitchfork.”
“What did you mean by that reference to a pitchfork?” the female SIO had asked, sternly.
I wanted to respond, “Are you serious? I don’t even own a pitchfork. I’ve never owned a pitchfork, and besides how many people in Scotland over the past 50 years have threatened anyone with a pitchfork?” But you can’t.
WINGS: But in the end you weren’t charged with pitchfork menaces?
MH: Well, sort of. It ended up being cited as an aggravating factor. When the questioning ended I was formally charged, initially under Section 127 (a) of the Communications Act – sending threatening or menacing communications. This was later amended by the Crown Office to a Section 38 (1) charge under the Criminal Justice (Scotland) Act – basically a breach of the peace charge for “threatening” behaviour.
The reason for that became apparent at the trial, when it was established that to be guilty of a Section 127 offence you have to have actually sent the alleged offending communication directly to the individual you intended to threaten.
I hadn’t intended to threaten anyone, let alone actually send the video to any of the individuals I referred to in it. That was ultimately accepted by the Crown Fiscal during my trial. The amended charge was a tacit confirmation that they were desperately hunting around trying to find something they could pin on me.
Section 38 also has one of the lowest thresholds when it comes to determining criminality, meaning it’s normally relatively easy to secure a conviction under that section of the law.
My lawyer advised he would meet my outside the police station once I was booked out. I was taken back into the custody area, photographed, swabbed for DNA and had my fingerprints taken. Just like the search of my home, there were no COVID-19 social distancing measures being observed by any of the officers, and nobody was wearing a facemask, even though this was at the height of the first lockdown.
A month later I received the indictment and confirmation that the Crown Office were proceeding with a trial.
WINGS: At which point you have all the grim months of waiting, and being officially out on bail with the constant threat that they could pull you in again. I think it was about 11 weeks before the Met finally told me I wasn’t getting charged because the case against me was so obviously deranged, and it’s a real drag. It’s like they want to wear you down before – in your case – they get you into the dock.
MH: Yeah. In the seven months waiting for my trial to take place it was clear the Crown Office was following an established pattern of delay and obfuscation related to my case. In particular, we made several offers to the Crown Office to have the video set to private so that nobody else could feel “threatened” by it.
But both Police Scotland and the Crown ignored them. It was only after my senior counsel once again offered again to have the video set to private, six months after it was first published, that the Procurator Fiscal agreed.
By that time it had gone from around 100 views immediately before the story first broke to over 5,200 views. The Sheriff at my trial expressed some astonishment that neither the Crown nor the police had taken up our earlier offers to restrict the potential audience.
It was also interesting that none of those 5,200 people had bothered to report it for any violation of terms and conditions on either YouTube or Twitter.
WINGS: How long did the trial actually take in the end?
MH: It was over in 90 minutes. The Crown agreed to drop the allegedly aggravating factor of the ‘pitchfork’ comments and accepted our long list of writers and journalists using phrases like “reap the whirlwind” and “day of reckoning”.
After both counsels had made their arguments the Sheriff ruled straight away that the video was protected under Article 10 of the Human Rights Act as free political expression and acquitted me, saying the video was clearly just commentary on the state of the SNP and that “I do not accept it would cause a reasonable person fear and alarm”.
WINGS: That must have been quite a weight off.
As many readers will know, myself and Craig Murray had undertaken a joint campaign to highlight the abuse of power that was taking place, and we secured a lot of international backing and support, prompting the Lord Advocate himself to respond to a joint open letter signed by thousands of people including a host of prominent international freedom of speech advocates.
Additional focus on our plight was maintained through articles and comments by Tommy Sheridan, Kenny MacAskill MP, Gordon Dangerfield and of course Wings among other well-known bloggers, although there was a very notable silence from some other independence “voices”.
Nonetheless I have so many people to thank, literally thousands of people who have contacted me and offered support before and after the trial. It would take an eternity to detail my individual thanks to them all, so I’d like to offer them here now. Thank you all so much.
WINGS: So why do you think this happened to you? How did such an obviously dodgy prosecution get so far?
MH: There is no question in my mind that this is corruption, and I know it’s a view shared by some elected politicians and senior legal people.
There’s been quite a lot of focus on the amount of taxpayers’ money spent paying Alex’s costs after the atrocious way the Scottish Government proceeded with their unlawful persecution of him.
But there’s been much less interest from the corporate media and political class to explore how much money Police Scotland and the Crown Office have spent on a case which has brought, and is still bringing, the entire Scottish legal system into utter disrepute.
We’re constantly told finances in our criminal justice system are under huge pressure. Yet we know that 22 detectives were tasked with conducting over 700 witness interviews with the aim of dredging up something against Alex Salmond that would bear scrutiny in the High Court, without success. The pathetic return they got for all that effort in terms of charges was embarrassing.
But even Police Scotland and the Crown Office know that however craven our media and political class is, eventually someone is bound to start adding up how much public money they’ve blown on the failed and crooked prosecution of an innocent man. It’ll undoubtedly be millions and millions of pounds.
So to counter this they’ve sent out a posse of their very best to try to hunt down and secure a scalp from anyone who backed him, to at least have something to show for the obscene costs of that massive operation.
My legal team are in no doubt that I would not have faced this prosecution if I hadn’t been a known ally and supporter of Alex Salmond. At least 12 detectives have been engaged on my case – officers that are normally deployed on murder investigations and other serious crime.
Alex has been treated in the most outrageous and grievous manner both by the current ruling political class and certainly at the hands of a malign and utterly corrupt Crown Office.
But his trial and mine also show that despite the best efforts of this corrupt prosecution service in Scotland we still have judges and sheriffs who are simply not going to roll over and take part in this politically-driven action by police and prosecutors. I very much hope that’ll continue to be the case for Craig Murray too.
But much more effort will be needed to shine a light on what’s taking place at the Crown Office and to end these malicious political prosecutions. It’s an ongoing fiasco that doesn’t reflect well on our country, and it’ll have to be addressed directly before we can build the independent and genuinely progressive Scotland that I’m sure most readers will want to see.
Wings Over Scotland agrees with Mark Hirst. If an independent Scotland is to be a thing worth having, Jethart Justice just won’t do.