Craig Murray is facing trial for publishing information “likely to disclose the identity” of persons involved in the Alex Salmond trial (they have statutory anonymity for life). What a can of worms that word “likely” is! Longman’s dictionary defines it as “can reasonably be expected [to happen]”. Reasonably, that’s the word.
Craig wants to bring in two pieces of evidence: first, evidence from people who read the mainstream-media accounts of the trial, and were able to tell from those accounts who the anonymised persons were; and second, parallel evidence from people who read Craig’s blog and were not able to tell who the anonymised persons were. The prosecutor has asked the Court to disallow these two sets of evidence, but the reasons he gives don’t meet the point. Moreover it seems clear that he’s intentionally missed the point, so that he can muddy the waters. He can’t be so thick as to have merely got it wrong.
Likelihood – as Longman’s dictionary tells us – depends on ‘reasonable expectations’, and that depends on knowledge. I believe that I’ll get lung cancer if I smoke like a chimney, because the data says so. I can express a hunch that I won’t get lung cancer – “I think I’ll be OK. I’ve got good lungs” – but the data says that that belief is mince. Likelihood is like that: it’s the same as probability, and probability is based on evidence. Craig’s two sets of evidence show that mainstream media leaked the identities, and that his blog didn’t. That means that his blog was not likely to have leaked the identities.
The prosecutor fudges the issue here. He pretends that Craig is bringing this evidence to show that other media have committed the same offence as he’s charged with, and that he’s therefore innocent, and that won’t do: “The question of whether other commentators have breached the order cannot be a defence to the Respondent,” he rightly says. But Craig isn’t bringing this evidence to show that others have committed the same offence. He’s bringing it to show that, since the identities had already been leaked, his blog couldn’t have aided identification. The prosecutor is intentionally misrepresenting Craig’s point here, in order to muddy the waters and get Craig’s evidence ruled inadmissible.
On Craig’s second set of evidence – that people who had read his blog had not been able to identify the anonymised persons – the prosecutor says that there aren’t enough of them to be useful: “Evidence based on the state of knowledge of a limited number of individuals cannot assist in the central issue [of ‘likelihood’],” he says. No, prosecutor, you’re categorically wrong there: “likelihood” is measurable, and an assessment of likelihood that doesn’t take account of available measurements can’t be said to be “reasonable”. Since Craig’s witnesses constitute the only measurable evidence that has surfaced so far in this affair, they matter. Let’s run a thought-experiment:
You contract a rare disease, and are “likely” to die unless they cut your arm off. “How likely?” you ask.
• “We don’t know. We believe that many people have had this disease, but we only have records of five cases.”
• “Ok,” you say. “What happened to them?”
• “Oh, don’t worry about them,” they say. “There are too few of them to be relevant.”
• “There may not be many of them, but they’re the only evidence we have. What happened to them?”
• “No, really. That information isn’t useful. Evidence based on the outcome for a limited number of individuals cannot assist in the central issue of whether to cut your arm off or not.”
• “But they’re the only thing we can base a decision on! Without these five cases we’re just waving our fingers in the air! Tell me what happened to them!”
• “Oh, they all died.”
You probably want them to cut your arm off now.
I do hope the judges give proper weight to the fact that “likelihood” is measurable, and that without that dimension any judgement is mere prejudice. If they go for muddle-headed intuitions like “His blog must have probably enabled a lot of people to work it out,” or “If it happened even once, then it must have been likely“, that will be perverse.