Scots lawyers rubbish Alba's Rishi Sunak contempt of court claim

Two leading silks have rubbished claims from Alex Salmond’s Alba Party that Prime Minister Rishi Sunak broke the law by joking about Nicola Sturgeon going to jail.

Referring to the ongoing police investigation into the SNP’s finances, Sunak used his speech to the Conservative Party conference to mock the former first minister, saying she had “wanted to go down in the history books as the woman who broke up our country” but may now “go down for very different reasons”.

As part of the investigation Sturgeon, her husband Peter Murrell, who was formerly SNP chief executive, and former party treasurer Colin Beattie have been arrested and released without charge.

Alba general secretary Chris McEleny reported Sunak to Police Scotland, alleging the prime minister was in contempt of court and saying the investigation is “a serious matter and it must be allowed to report the facts without interference”.

However, Roddy Dunlop KC, dean of the Faculty of Advocates, said that while Sunak’s comment was “unwise” he said it does not “create a substantial risk of serious prejudice”.

Defence advocate Thomas Ross KC said he was “puzzled” by McEleny’s stance, noting that “as matters stand there is no prosecution” meaning it would be impossible to argue the position that the prime minister had prejudiced any trial.

“If there ever was one the trial would be years away,” he said. “In these circumstances how could it possibly be seriously argued that the, admittedly limp, joke has created a severe [or] material risk of prejudice?”

Though contempt of court applies from the point an arrest has been made, Dunlop said “it still needs to create substantial risk of serious prejudice”.

“I agree with [Ross] that it’s difficult to see how that test is met here,” he said.

McEleny stood by his position when he appeared on Sky News show Kay Burley at Breakfast this morning.

When Burley asked whether Sunak’s comment should be seen as “just a quip”, he said the prime minister was “interfering in a police investigation”.

“This is an ongoing police investigation, it’s very important, it goes to some of the most important issues that you could possibly have at the heart of our democracy in Scotland,” he said.

“People deserve to know the facts. People who are accused, or under investigation, or under arrest, deserve to have the full protections in terms of presumption to innocence until proven guilty and I just don’t think it helps that the prime minister of Great Britain and Northern Ireland is being on our television screens effectively interfering with an ongoing police investigation.”