WHEN BLACK MEANS WHITE: THE ZANY WORLD OF THE SCOTTISH GOVERNMENT

Yesterday, John Somers told the inquiry that he had no involvement in the development of the procedure which was used against Alex Salmond.

This is not true.

Somers, in his capacity as Nicola Sturgeon’s Principal Private Secretary, had a key role in developing the policy at a critical time.

On Wednesday 6 December 2017, after a day and night of frantic activity which evidently resulted in very little sleep for her or other key participants, Leslie Evans emailed Nicola Richards, James Hynd and a third redacted recipient at 5.28 in the morning:

“Spoke with John S last night. We agreed you would send up tweaked codes in draft without any letters just now.

“And as discussed, info on the steps and touch points involved in the process also useful. Keep me posted – back in office tomorrow but happy to talk. John also I’m sure.”

As readers of previous posts on this blog may remember, the “tweaked codes” which Somers and Evans had agreed to “send up” to Nicola Sturgeon constituted the recast procedure which changed at a stroke everything which had been developed by Hynd and others to that point, by removing the First Minister completely from the process.

The “letters” which were now not to be sent to Sturgeon were letters which Hynd had been instructed by Evans to draft, in line with the procedure as it had existed prior to this discussion with Somers, and for the purpose of intimating the new procedure to former Ministers and former First Ministers when it was approved by the First Minister in due course.

Following the discussion between Evans and Somers on the night of Tuesday 5 December 2017, these letters simply disappeared from the development process, and the Scottish Government has never disclosed them to this day, at least not in the papers which have been made available to the public by the inquiry.

Exactly what comprised the “steps and touch points involved in the process” which were evidently also discussed by Evans and Somers remains a matter of guesswork since, of course, no-one at the inquiry asked Somers yesterday, or has ever asked Evans, what was meant by these terms.

What is clear is that both Evans herself and Somers were “happy to talk” to Richards, Hynd and the third, redacted, person about these “steps and touch points” in the procedure as now radically recast.

I want to say a lot more about the hugely significant context of this very obvious involvement of Somers, acting on behalf of Sturgeon, in the development – actually, in the complete recast – of the procedure but before doing so I want to wait for the transcripts of the evidence yesterday of Somers, Richards, Russell and Mackinnon at the inquiry since all were involved as key players in creating that context.

For now, it is worth noting that Somers’s evidence on affirmation yesterday was given, as Somers himself pointed out, with the specific endorsement in advance of the Scottish Government.

On 6 November 2020, Deputy First Minister John Swinney wrote to the inquiry:

“Mr Somers was not involved in the development of the procedure…”

Poor John Swinney. He gets all the dirty jobs.

THE INSTITUTIONAL BIAS OF COPFS

In an encouraging display of backbone, the Convenor of the Salmond inquiry has written to the Lord Advocate pointing out that if Barbara Allison and the Scottish Government can use COPFS as their own private data store, then maybe it’s time the Lord Advocate provided the same service for the inquiry.

As the Convenor points out — with commendable understatement — in her letter, the provision to Allison of copies of the text messages she had requested “demonstrates that there may be material held by the Crown Office and Procurator Fiscal Service which is relevant to the Committee’s remit”.

The inquiry is therefore seeking from COPFS “any information, for example communications between officials, related to the conduct of the judicial review and the Scottish Government’s decision to concede”.

The Convenor has made it clear in her letter that the inquiry “will treat all information in accordance with the relevant court orders and data protection law” so there is not the slightest excuse for COPFS to substitute their own definition of what is “related” to the inquiry’s remit for the view of the inquiry. They should simply turn over all of the material they hold in which officials and politicians discuss the complaints made against Salmond before, during and after the judicial review, and leave it for the inquiry to decide what parts of it are “related” to the inquiry’s remit.

No other witness gets to decide what is and isn’t relevant to the inquiry’s remit and nor should COPFS. It is outrageous that Salmond’s lawyers have been threatened with criminal prosecution simply for trying to provide the inquiry with vital evidence that COPFS are withholding. It becomes almost laughable when that same institution provides exactly that information to a witness who has, on behalf of the Scottish Government, given false information on oath to the inquiry and is trying desperately to dig herself out of the hole she has dug for herself and for the Government.

If that is not bias that would be apparent to any reasonable observer then the concept of “apparent bias” ceases to have any useful meaning. It is apparent bias that must be redressed immediately by full cooperation with the inquiry’s request, which means full disclosure to the inquiry of all of the material which Salmond’s lawyers have identified as relevant and which COPFS have continued to withhold (with the exception of the Allison texts, of course, which were a central part of that withheld material but magically became disclosable the moment a Scottish Government witness asked for them).

We have had endless evidence before the inquiry to date which has been “relevant” to the inquiry’s remit only by the widest and most generous possible interpretation of that remit. That goes with the territory in proceedings of this kind. If some of what must now be disclosed by COPFS falls into that category then it can be disregarded or distinguished by the inquiry, along with the mountains of other irrelevant evidence already heard, when the inquiry comes to make its findings and publish its report.

But it is not for COPFS to make that decision. It is for COPFS now to stop obstructing justice and start facilitating it.

Here, then, is a brief reminder of what is already in the public domain, and of why that is likely to be the merest tip of the iceberg of what is relevant to the conduct of the Scottish Government, its First Minister, its politicians and its officials in relation to the Salmond investigation and judicial review.

The tip of the iceberg

The defence submissions at the preliminary hearings prior to Alex Salmond’s criminal trial were widely reported in the mainstream Scottish press in March this year after Salmond was acquitted of all of the charges against him. The Scottish Government’s unlawful conduct and subsequent humiliation at judicial review were central to almost all of those submissions. Further revelations since then have only confirmed that the judicial review proceedings, and the reaction of the Scottish Government to the loss of that “battle”, lie at the heart of the war that followed.

At preliminary hearings prior to his trial, Salmond’s defence team argued that the charges, which came just over a fortnight after he won the judicial review, were the result of concerted efforts by the First Minister’s inner circle to deflect public attention away from the disastrous outcome of the court case. They argued that the claims against him were whipped up as a form of reprisal, and to distract from the debacle of the judicial review.

Salmond’s lead counsel Gordon Jackson QC submitted that senior Scottish Government figures were furious when Salmond won the judicial review. They wanted to ensure that he was “totally discredited”. The criminal investigation had been encouraged “because of what happened in the other process”.

It was in this context that Jackson quoted the text from Leslie Evans to an “unnamed person” which read:

“We may lose the battle but we will win the war.”

Unless Evans sent more than one such message, it now appears that the actual message was the slightly different one which Barbara Allison has now revealed as having been sent to her on the day the judicial review was conceded in court:

“… [B]attle maybe lost but not the war….”

Jackson then went on to outline how the “war” to recover from the “disaster” was fought. He submitted that the judicial review defeat had been a “pretty serious scandal” and that “people were extremely nervous” about the outcome. He advised the court that a “huge amount of material” had been obtained from a phone which had been in the possession of Sue Ruddick, the chief operating officer of the SNP, which contained “many hundreds of texts”.

One of those texts had come from an SNP politician who became one of Salmond’s accusers in the criminal trial. The politician had texted Ruddick to say they were “currently convening [their] SPADs [Special Advisors] for a council of war”.

Jackson submitted further that a senior Scottish Government employee was a “prime mover” in the campaign to divert public attention away from the disaster of the judicial review. She herself became another of Salmond’s accusers in the criminal trial and she “encouraged others to make false complaints” to the police.

Jackson read out a text in which the SNP politician who spoke of convening the “council of war” had said of this senior Scottish Government employee: “Jeez, think [she] is in trouble. S isn’t going to stop until he gets her and he’s bringing down Nicola on the way.”

Jackson submitted that the text showed “real personal motivation” on the part of this “prime mover” to target Salmond because of the failure of the judicial review process, which had made her own employment “shaky”. More generally, he submitted that, fearing for the future of the Government, and for their own personal positions, those closest to Nicola Sturgeon perceived themselves to be at war with Salmond.

Jackson sought to produce these texts in the trial as part of a series which, he submitted, showed that the Scottish Government had orchestrated the criminal prosecution to discredit Salmond and that the “prime mover” was “very much at the centre of driving this”. This request was denied by the court.

Salmond himself then developed this theme in his own evidence when he said of the “prime mover” that she had “exaggerated” her own claims, “just as she encouraged at least five people to exaggerate or make up claims against me.”

In his closing speech to the jury, Jackson told them that the “prime mover” had contacted at least four of the criminal trial accusers, all of them serving or former officials, before Salmond was charged. A WhatsApp group was used for this. A fifth accuser, a senior politician, had refused to take part in those conversations because she felt it was inappropriate.

A further message was also read out during the trial from one of Salmond’s accusers to another. She wrote that she had been “mulling” the “AS stuff”, adding “I have a plan and means we can be anonymous but see strong repercussions.”

The accuser who sent that message had earlier contacted the SNP compliance officer Ian McCann on the subject of making an anonymous complaint about Salmond, having decided to do so in “the October/November 2017 period”. She got a reply from McCann which said: “We’ll sit on that and hope we never need to deploy it.”

In her evidence at the trial, this accuser said of her complaint to the SNP: “I wanted it to be known in the party so it could become a vetting issue and they could deal with it at whatever stage they saw fit.”

In other words, the accuser said that the complaint was made for the purpose of trying to prevent Salmond from getting through vetting for any future political comeback. McCann’s reply confirms that the complaint was being held by SNP officials for precisely that purpose.

More recently, former Justice Minister Kenny MacAskill made public further copies of texts which he said were sent to him anonymously, which bore to be texts from SNP chief executive officer Peter Murrell to Sue Ruddick.

After some delay Peter Murrell, who also happens to be Nicola Sturgeon’s husband, admitted that he did indeed send the texts to Sue Ruddick.

It seems that the texts were sent the day after Salmond was charged, and that they formed part of the series that Jackson had tried, and failed, to have put before the jury at Salmond’s trial.

The first message stated:

“Totally agree folk should be asking the police questions … report now with the PF on charges which leaves police twiddling their thumbs. So good time to be pressurising them. Would be good to know Met looking at events in London.”

The Metropolitan Police had indeed been passed information in January 2019 linked to the investigation in Scotland and it is clear that this is what Murrell was referring to.

The second message stated:

“TBH the more fronts he is having to firefight on the better for all complainers, so CPS action would be a good thing.”

The reference here is to the English Crown Prosecution Service which, in the event, took no action on the information which had been passed to the English police.

Perhaps it’s just my own background in literary analysis but I detect a recurring theme here: “battle”, “war”, “council of war”, “firefight” …

All of the documents referred to above, and the “hundreds of texts” of which a good number of them seem to be a part, must now be disclosed to the inquiry, along with all other relevant material held by the Crown.

The conflicted role of the Lord Advocate

How, then, will this happen?

In what seasoned watchers of the Salmond inquiry will recognise as a familiar move, the Lord Advocate “recused” himself from an active part in the criminal proceedings against Salmond.

Just what that actually means, and what possible reassurance we are supposed to draw from it, I truly don’t know.

The fact is that the constitutional position of the Lord Advocate in Scotland is utterly untenable. He is a Minister in the Scottish Government who attends and participates in Cabinet meetings and gives the Government secret and confidential legal advice and he is the head prosecutor of crimes, including, whenever necessary, the crimes of Scottish Government officials and politicians.

As such he is, so we are told, entirely independent and free of any Scottish Government influence when he acts as the head of the prosecution service .

If you can do the doublethink required to balance out that contradiction as acceptable in your head you can probably believe that the “Chinese walls” in the City of London really do keep us safe from any insider trading by the barrow-boys who work there.

The very fact that the present incumbent should think it necessary to make the utterly empty gesture of “recusing” himself in the Salmond prosecution points up how obviously conflicted his institutional roles are.

Because the problem is not, of course, personal. It is institutional.

But what we need now from the Lord Advocate (or whoever is in charge at COPFS if the boss is still “recused”) is some demonstration that he can somehow rise above this institutional conflict and, in the oft-repeated words of his boss, “do the right thing”.

FUHGEDDABOUDIT

Last Tuesday, Judith Mackinnon told the Salmond inquiry that:

“I have experience in HR procedures and investigations. What I did not have was experience of a judicial review process. I did not understand the separate and distinct legal tests that take place in the judicial review process and would have found it beneficial to have understood that in a lot more detail prior to the process beginning.”

Previous Scottish Government witnesses Leslie Evans and Nicola Richards have said essentially the same thing in their evidence.

We should be thankful, then, that these witnesses didn’t decide to hire a hit-man to take Salmond down. I mean, the script would write itself:

“I have experience in the procedures of taking goodfellas for one-way rides. What I did not have was experience of High Court murder trials. I did not understand the separate and distinct legal tests that take place in the criminal process and would have found it beneficial to have understood that in a lot more detail prior to the whacking.”

But back in what we like to think is the real world…

Can it truly be possible that these highly qualified and very highly paid professionals still don’t understand that what was being applied at the Salmond judicial review was nothing more nor less than the ordinary law of Scotland as it relates to their supposed areas of expertise?

Will anyone at the Salmond inquiry ever point out that they acted in breach of that law because they are all unfit for their jobs?

WHAT DID THE FIRST MINISTER KNOW AND WHEN DID SHE KNOW IT?

A redacted version of the Open Record which sets out the pleadings of the parties as adjusted to the time when Leslie Evans and the Scottish Government finally conceded defeat was published by the Salmond inquiry on Friday.

It contains page after page of shocking detail which should put to rest once and for all the lie that the case was conceded on some technicality. The unlawfulness of both the procedure itself and the way in which it was applied by Investigating Officer Judith Mackinnon and ultimate decision-maker Leslie Evans is laid bare again and again.

For anyone looking for a convenient summary, I suggest points a) to o) of the petitioner’s Statement of Facts XXII, beginning on page 82.

Mackinnon is due to answer for her key role in this debacle at the inquiry on Tuesday and surely Hynd, Richards and, above all, Evans must be recalled by the inquiry to answer – properly this time – for their key roles in it too.

Nicola Sturgeon again

However, my focus in the Salmond inquiry posts on this blog has been consistently on the First Minister and on her claims that none of this was anything to do with her. As the facts begin to creep painfully out, these claims that she removed herself from a process in which she should have been front and centre look ever more bizarre.

Specifically, the First Minister’s claim that she knew nothing about the complaints of Ms A and Ms B against Alex Salmond until well after he was informed of them himself on 7 March 2018 looks ever more like a brazen lie.

Consider this passage in the adjusted Answers lodged on behalf of Evans and the Scottish Government in the judicial review:

“Ms Russell, with the consent of Complainer A, shared the fact of the approach by Complainer A and the nature of the information provided by her with the first respondent’s Director of People, Nicola Richards, and Deputy Director of People Advice, Judith Mackinnon….

“Ms Allison, with the consent of Complainer B, shared the fact of the latter’s approach and the nature of the information provided by Complainer B with Ms Richards. Ms Richards advised Ms Russell and Ms Allison to ask complainers A and B respectively whether they wished to speak to the HR team. They did so [i.e. asked them to speak to the HR team] on 29 November 2017.

“On the same day Ms Richards met with the first respondent and, separately, the first respondent met with the interested party to discuss development of the proposed procedure.”

As seasoned Salmond inquiry watchers will know, the “Ms Russell” referred to here is Gillian Russell, the Scottish Government Director of Safer Communities, who had been appointed by Evans as a “confidential sounding board” for complaints on 10 November 2017.

“Ms Allison” is Barbara Allison, who is due to give evidence again to the inquiry on Tuesday. She is the Scottish Government Director of Communications, Ministerial Support and Facilities and was contacted by Ms B on 8 November 2017, when she discussed with her events involving Alex Salmond.

Now for the new bit.

The “first respondent” referred to here is Leslie Evans. The “interested party” is Nicola Sturgeon.

Leslie Evans again

The meeting on 29 November 2017 between Leslie Evans and Nicola Sturgeon “to discuss development of the proposed procedure” appears nowhere in the Scottish Government’s Written Statement to the inquiry nor in its accompanying Timeline.

This is a somewhat startling omission from documents which were supposed to have been prepared for the specific purpose of setting out for the inquiry the role of the First Minister and her officials in the development of the procedure.

The Timeline jumps from 24 November to 12 December 2017 with no events apparently thought worthy of mention in between, and the Written Statement does the same:

“A version of the draft procedure was sent to the First Minister on 24 November 2017. The First Minister and Permanent Secretary discussed a hard copy of the procedure at a meeting on 12 December 2017. The Permanent Secretary wrote to the First Minister on 20 December 2017 formally seeking her agreement to adopt the procedure. The First Minister approved the procedure on the same day.”

So what else happened on 29 November 2017, and why might it be in the interests of the Scottish Government to add this meeting to the long list of things they have conveniently overlooked or “forgotten”?

As readers of earlier posts in this blog may remember, there was a lot going on that day.

The events of 29 November 2017

Firstly, as the Answers acknowledge, Russell contacted Ms A as instructed on that day, and Allison likewise contacted Ms B.

In the cosy, intimate manner which had already developed between complainers and the supposedly impartial senior officials who would be processing their complaints, Russell emailed Ms A: “As agreed I sent your narrative on in confidence to Nicky and Judith. I have now been asked by Nicky and Judith if you would be prepared to speak to them…”

In the same informal manner, Ms A replied: “I’d be happy to speak to Nicky and Judith and will text Nicky as suggested….”

The “narrative” referred to is the same document which, with just a few tweaks, became Ms A’s formal complaint on 16 January 2018. It is the document for which, on the very same date, Judith Mackinnon was appointed as Investigating Officer, believing herself apparently to have had “no prior involvement” in the complaint, as required by the procedure.

Allison’s similar contact with Ms B, as again acknowledged in the Answers, was then noted in a text from Richards to Mackinnon: “[Redacted] the woman who spoke to Barbara – has been in touch to speak…. She hasn’t made a statement but is still in close touch with the one who did. [Redacted] ”

Quite what this meant, and what has been redacted from it, is perhaps one of the many things the inquiry could take up with Mackinnon on Tuesday.

Nicola Richards then had a one-to-one meeting with Leslie Evans, which can only have been for the purpose of discussing with Evans the “narrative” of Ms A – that is to say, her complaint about Salmond – and whatever had been learned from Ms B about her complaint.

That then is the context in which, as we now learn for the first time, Leslie Evans met with Nicola Sturgeon that very same day “separately… to discuss development of the proposed procedure.”

What the First Minister knew, and when

In that context, is there anyone in the country still gullible enough to believe that what was discussed at this newly-disclosed meeting was some abstract development of a procedure which was being developed — at breakneck speed — to be targeted at no-one in particular?

Is there anyone out there who still thinks the Salmond complaints were not discussed at all?

Just in case there is, let me remind readers of one further piece of context.

The procedure for complaints against former Ministers was still in draft at this point, so even if there had been an absolute prohibition – for some unfathomable reason – on the First Minister being told of them, it would have had no application.

Indeed, if the complaints had been about a current Minister – the closest analogy for which actual binding rules were in place on that date – the First Minister would have had a positive right under the Ministerial Code to be told of them and a positive duty as “ultimate judge” of them to put in train immediately a course of action to deal with them.

The notion that these “concerns” about her closest friend and mentor, not to mention her direct predecessor as First Minister, should or could have been withheld from the head of the Scottish Government by an unelected civil servant at this meeting is not just fanciful, it is laughable.

But matters go further still.

As readers of previous posts in this blog may again remember, the latest version of the new procedure which was being furiously drafted at this point provided in terms for the First Minister to be told of complaints against former Ministers as soon as they were made, to remain the “ultimate judge” of them, and indeed to intervene as necessary to secure the co-operation of former Ministers in the investigation of them.

So even if the procedure as drafted to that point had any binding force at all at the time of this meeting – which it did not – it would still have been entirely right and proper for Evans to give Sturgeon a full briefing on the Salmond complaints at that meeting.

So I ask again: Is there anyone out there who still believes that Nicola Sturgeon was not told of these complaints, at the very latest, by the time of this meeting?

If so, I’d genuinely love to know why.

STURGEON: “JE RECUSE”

One aspect of the First Minister’s abdication of her responsibilities which seems to have passed unnoticed in the Salmond inquiry is her decision to “recuse” herself from providing the Scottish Government’s evidence to it.

It’s difficult to ascertain exactly when this decision was made or when it was first communicated, so I have submitted a Freedom of Information request to the Scottish Government seeking the full details, and I’ll provide them here when I get them.

What we do know is that, having corresponded with the Convenor at various times up to that point on the subject of the evidence and documentation to be provided to the inquiry, and having never so much as hinted that she was precluded in any way from doing so, the First Minister stood up in Parliament on 20 August 2020 and announced:

“Given that part of the Committee remit is to look at my conduct, I have recused myself from any decision making in terms of the Government’s interaction with the Committee, so I am not going to instruct the Government, because it would not be appropriate for me to do so. The Government will, I am sure, continue to co-operate fully and within the legal obligations that it operates under, and to make available the maximum amount of information that it can to the Committee.”

Swinney to the rescue

From around this time, responsibility for writing to the inquiry to explain (repeatedly) why, much as it would like to, the Scottish Government cannot actually provide the evidence the inquiry is seeking for this, that and the other reason has fallen on the Deputy First Minister, John Swinney, who continues to fulfil the role with his usual diligence.

Readers with reasonably long powers of recall might remember that Swinney also played a similar role at the very start of this saga.

When the Scottish Cabinet met on 31 October 2017 to discuss the announcement to be made in Parliament that day of the Government’s new actions on sexual harassment in response to the Me Too movement, the minutes record his heroic decision to step forward at that moment too:

“Answering that day’s topical question on sexual harassment in the Parliament would provide an opportunity to highlight men’s responsibility to change their conduct and behaviour, and to help bring to an end the sexual harassment and abuse of women – whether in the workplace, in their social life, or at home. To emphasise this point, Mr Swinney proposed that, as the most senior man in the Government, he should answer the question and be explicit in his answer about his reason for doing so.”

Anyone who thinks that this really was John Swinney’s own idea must also think that Dominic Cummings just offers the odd suggestion to Boris Johnson.

According to the First Minister, in her interview last Sunday with Sophy Ridge, it is “age old” that when men are accused of misconduct against women, “often it’s a woman that ends up sitting answering for them”.

What is undoubtedly the case is that when a woman, Nicola Sturgeon, wants to abdicate her responsibilities, it’s often a man, John Swinney, who is wheeled in to help her out with that.

Evans again

But of course there’s a much more serious point at the heart of this. The Salmond inquiry webpages provide a list of its key correspondence with the Scottish Government over the provision of evidence, and one correspondent features there far more than any other.

As usual in this whole affair, the person making all the key decisions about what evidence is to be provided and what withheld is that correspondent, the Permanent Secretary Leslie Evans.

Now let me remind readers of the terms of the remit of the inquiry:

“To consider and report on the actions of the First Minister, Scottish Government officials … ”

We can stop there.

If there is any one Scottish Government official whose conduct is more under the microscope than any other person in this whole inquiry it is the Permanent Secretary Leslie Evans.

It was Evans who ran the whole unlawful investigation into the complaints against Salmond and Evans who made the unlawful decision on those complaints after Sturgeon had “recused” herself completely from that process too, as detailed earlier in this blog.

And it was Evans who was again a key player in the decision to contest Salmond’s judicial review action and to keep contesting it until finally, more than half a million pounds of public money later, even she had to concede that defeat was inevitable.

A plea for rationality

So I ask these questions in all sincerity, and above all as a person who prizes logical and rational thought:

If, because the inquiry is partly into her “actions”, Nicola Sturgeon has to recuse herself from all decisions about providing documents and evidence to the inquiry, why doesn’t Leslie Evans have to do the same?

Why is Leslie Evans still running the Scottish Government’s show?

SALMOND INQUIRY: AN ESSENTIAL QUESTION

In August 2018, in a story breaking the news of the formal complaints against Alex Salmond and the Leslie Evans investigation of them, journalist David Clegg wrote in the Daily Record:

“Acting on a tip-off, we submitted questions to the Scottish Government on October 31 last year, in a bid to ascertain if any complaints had been made about Alex Salmond during his tenure as first minister.”

In January 2019, after the Scottish Government had conceded at judicial review that Evans’s investigation of the Salmond complaints had been biased and unlawful, the Daily Record quoted Salmond’s message to his supporters:

“The Daily Record boasted of a ‘tip-off ‘ about me in October 2017. The question is from who? Perhaps we are now getting very close to finding out.”

It is now more vital than ever that we should find out, and that the inquiry should know, who provided this “tip-off” to the Daily Record.

We must find out, and the inquiry must know, how it could be that David Clegg and the Daily Record knew something about these complaints on 31 October 2017 when, so we are told, no-one in the Scottish Government, up to and including Nicola Sturgeon, had any idea about them.

There is a measure of protection for journalists and their sources in such circumstances under section 10 of the Contempt of Court Act 1981:

“No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”

The inquiry is not a court but it’s still a vexed question whether it’s worthwhile for the inquiry to call David Clegg and thereby bring down on itself all of the usual howls of outrage from Scotland’s selectively indignant mainstream media.

There is, however, nothing to stop the Committee asking witnesses to eliminate themselves as the source of the tip-off, which is the kind of thing the police do as a matter of routine to enable them to focus their enquiries properly on genuine suspects.

Nicola Sturgeon, Leslie Evans (again), Sturgeon’s Chief of Staff Liz Lloyd, and of course Alex Salmond himself are all still due to appear before the inquiry, which has announced it will resume taking evidence on 27 October.

They, and all other remotely relevant witnesses, should be asked, on oath or affirmation, if they were the source of the tip-off to Clegg.

SALMOND INQUIRY: THE BLUNDER THAT GIVES THE GAME AWAY

In my first post on this blog, I detailed how the Scottish Government procedure for handling complaints against former Ministers was radically “recast” in early December 2017 so that, bizarrely, it now excluded the First Minister completely from any role in it.

The “recast” turned over the entire responsibility for investigating complaints and deciding whether they were “well-founded” to the Permanent Secretary, an unelected civil servant.

It is unprecedented for a First Minister or Prime Minister to be so excluded from such a procedure and, needless to say, no other government anywhere in the world has copied it since Scotland did it.

Indeed, the Ministerial Code which regulates the Scottish Government, and the equivalent UK Government Code, on which the Scottish version is closely based, both make clear in terms that this politicisation of civil servants is forbidden where current Ministers are concerned.

In the UK Government version:

“It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, he may ask the Cabinet Office to investigate the facts of the case…”

And in the (predictably woollier) Scottish Government version:

“The Permanent Secretary may provide Ministers with advice on matters which the Code covers and will ensure procedures are in place to support compliance with the Code. It is not, however, the role of the Permanent Secretary or other officials to enforce the Code.

There is not the slightest reason why that prohibition should not apply equally to matters concerning former Ministers. Indeed, there are many obvious reasons why it should apply with extra rigour where former Ministers are concerned.

Given all of that, I asked why Nicola Sturgeon would have ordered her own exclusion from the procedure or, at the very least, gone along with that exclusion.

The answer is now pretty clear, and another blunder by Sturgeon’s bungling civil servants helps make it clearer than ever.

The route map

The Scottish Government statement to the inquiry says of work done on the procedure up to 7 November 2017:

“This work … included an assessment of the available mechanisms for individuals to raise concerns about sexual harassment. This resulted in the production of a “route map” which described how complaints of sexual harassment might be raised. The route map sought to identify the various routes that complaints at that time could come through, and which policies and procedures were in place to deal with them.”

The emails referred to by the statement do indeed include a very rudimentary route map. However, the route map to which we are then directed by the Scottish Government is not this early, rudimentary version at all, but rather a much later, much more developed version.

Eagle-eyed readers of this blog who care to look will be able to spot how we know this:

The route map produced by the Scottish Government as evidencing work done by 7 November 2017 is dated 31 January 2018.

In fairness, that’s just the minor, irritating incompetence we’ve come to expect from them by now. But what gives rise to this small error is actually a larger and much more significant blunder.

The route map produced to the inquiry does indeed form part of events taking place on 31 January 2018. Documents referred to in other footnotes to the Government’s statement give its proper context.

On that date, an email from a redacted “Head of Branch” of the “People Directorate” to a redacted list of recipients explains that the route map is being attached so that it can be uploaded to the internal Scottish Government system for providing information to employees.

The various complaints procedures summarised in the route map, including the procedure for harassment complaints against former Ministers, are then also to be attached so they can be clicked on as links.

And here’s where the blunder comes in.

The procedure attached is the “recast” procedure approved by Nicola Sturgeon on 20 December 2017, and in which she excluded herself completely from any role, but the route map still shows the old policy, exactly as it existed before she did that.

Employees are thus to be treated to one link to the actual approved policy of 20 December 2017, and another link to this route map which sets out what the policy was before Sturgeon was excluded from it.

I recommend reading the route map’s admirably concise summary of what the procedure was before the December recast as a handy reminder of just how bizarre it was for that procedure to be have been ripped up and thrown away in favour of the unlawful shambles which ultimately resulted in the Scottish Government’s humiliation at judicial review.

As you’ll see, the route map has three sets of boxes which show the progression of complaints under the appropriate headings for each box:

“Subject of complaint” leads to “Roles / responsibilities”, and finally to “Potential Outcomes if founded”.

When the “Subject of complaint” is a “complaint is about a former Minister”, then “Roles /responsibilities” are as follows:

“Permanent Secretary will notify FM.

“Director of People will designate Senior Civil Servant to investigate and prepare report for Perm Sec.

“Perm Sec will consider report and make recommendations.”

Clearly, then, under the pre-recast policy set out in the route map, the “recommendations” of the “Perm Sec” were just that.

They were not decisions.

In particular, they were not decisions about whether a complaint was “well-founded”.

The route map then takes us to the third and final box: “Potential Outcomes if founded”.

Again, it couldn’t be clearer under the route map what it takes for a complaint to become “founded”. The entry in the box is this:

“FM to take action if former minister within party”

In other words, under the policy set out here — the policy as it existed prior to the recast (and still, so it seems, in some people’s minds even after it) — the First Minister was firstly to consider the report from the Senior Civil Servant and the recommendations from the Permanent Secretary arising out of that report.

The First Minister, and the First Minister alone, was then to decide if the complaint was “founded “ and, if so, what action was to be taken on it.

One further striking thing that might be noted about this is that – making the huge allowance for present purposes that the procedure for complaints against former Ministers set out in the route map was otherwise lawful – this procedure does actually comply with the Ministerial Code.

We can only guess at what employees considering a complaint must have made of the two contradictory sets of advice sent to them simultaneously by way of the route map and the recast policy itself.

But the blunder of sending out the pre-recast route map provides the clearest possible reminder of what the policy should have been.

And now Nicola Sturgeon herself has as good as told us why it became something very different.

What Sturgeon has (so far) told the inquiry

According to her written statement provided to the inquiry and finally published last week, by the time drafting of the complaints procedure began in early November 2017, Nicola Sturgeon knew that allegations against Salmond were coming.

She was, she says, told then about “allegations of sexual misconduct on the part of Alex Salmond”.

She continues: “I spoke to Mr Salmond about this allegation at the time. He denied it…”

She was therefore well aware that the new complaints procedure being drafted then by her civil servants was likely to be dealing in due course with complaints against Salmond.

Again, she says so in terms: “[A]ll of the circumstances surrounding this episode left me with a lingering concern that allegations about Mr Salmond could materialise at some stage.”

As a result, according to Sturgeon’s own account: “I sought to ensure that the Scottish Government developed a process that allowed allegations of sexual harassment – including allegations of a historic nature – to be fully and fairly considered.”

She concludes: “I did not do this because I had a concern … that allegations about my predecessor could materialise. But nor did I, in any way, allow such concern to lead me to limit the scope of the procedure.”

As is now obvious, both of these claims are simply untrue.

Sturgeon did instruct that the procedure was to be developed in the way it was so that it could deal with her “concern” about Salmond.

She did “limit the scope of the procedure” because of that concern.

She ensured that her Government “developed a process” such that Alex Salmond’s fate would be decided, to all appearances at least, by unelected civil servants. She “limited the scope” of the procedure by removing herself completely from it.

There is simply no other reasonable explanation for why the procedure changed so dramatically in December 2017.

So, although it seems unaccountable to many, there’s really no mystery to why Sturgeon continues to stand by her hapless civil servants as more and more shocking detail comes to light about their unlawful work on her behalf.

Every unlawful thing those civil servants did was done by them so that Sturgeon would not have to do it herself.

It was done so that she could plausibly deny, as she does to this day, that she had anything to do with it.

These servants of hers have already, quite rightly, taken a great deal of criticism for their bad faith and incompetence, and as the inquiry continues, they can surely expect a great deal more.

The unswerving loyalty of the person who set them up for this fall is, we should grant, the very least they can expect from her.

SALMOND INQUIRY : LIES, LIES, LIES

While the many lies told by the Scottish Government about its treatment of Alex Salmond are now being exposed daily, it’s important to remember that they’re all ultimately in service of one central lie: that Nicola Sturgeon “tried to do the right thing”.

One way in which that lie was exposed by the revelations on Wednesday was the publication of the text in which, on 3 June 2018, Alex Salmond set out for Sturgeon his offer of binding arbitration on the legality of the complaints procedure. As he rightly pointed out, this offer, if accepted, would have conclusively and privately settled that question without the need for the judicial review that eventually followed and without the need for any involvement of the complainers or risk of exposure of their identities.

The offer was rejected out of hand by the unelected civil servant to whom Sturgeon had turned over the whole business, a rejection fully supported by Sturgeon, despite the fact that she is, as Salmond pointed out, herself a lawyer who must surely have been able to see that this was entirely the “right thing” to do for the Government, for the complainers, for Salmond and, as it turns out, for the Scottish taxpayer.

I’ll say more about the detail of this in a future post.

Sturgeon’s “forgetfulness” on when exactly she became aware of the allegations against Salmond is of course the tip of the iceberg of another lie. This has been extensively commented on with varying degrees of insight since Wednesday but again its significance for the central lie remains to be fully exposed.

Sturgeon’s determination to give herself plausible deniability over her Government’s treatment of Salmond from at least November 2017 onwards is at the core of the whole scandal.

I’ll say more about that too in a future post.

Today, I just want to complete the line of thought developed in my last post, on the Scottish Government’s ludicrous claim, maintained to this day, that they conceded the judicial review without ever having done anything wrong.

The reasonable observers

The fault, they say, lies not with them but with this pesky “reasonable observer” who has misconstrued the terms of their procedure and misinterpreted their implementation of that procedure such that the procedure – totally fine in itself – and the actions of their officials – exemplary in their professionalism and impartiality – became somehow biased and unlawful.

This is one lie that can be exposed without the need for any further investigation or evidence.

It can be exposed by the simple means of rational thought.

Let’s think about who a “reasonable observer” might be in the context of a procedure for handling harassment complaints against former Ministers. Clearly, it is not the complainer, because the complainer is a party in the procedure, not an observer of it, and there is no requirement on the complainer to be reasonable, only to make the complaint and have it handled by the procedure. Equally, it is not the former Minister, who is again a party in the procedure with no duty of reasonableness or detachment either.

Now think about who does have the qualities of reasonableness and detachment which the parties in the procedure lack. Those are surely the qualities to be expected – in fact, demanded – of the Government lawyers and senior civil servants who draft, approve and then implement the procedure. Indeed, if I’m not mistaken, these duties of detachment, impartiality and reasonableness are written into their contracts of employment as civil servants and Government employees. They’re contractually obliged to be “reasonable observers”.

Now look at what Leslie Evans and the Scottish Government conceded when they conceded the judicial review. It’s right there in their own Statement for the inquiry:

“[I]t became apparent to the Scottish Government, based on a review of the case which was informed by legal advice, that the combination of two issues could now impact on the case. Firstly, that whilst the meaning of paragraph 10 of the procedure was clear to those involved in its development and operation (i.e. not being involved in the matter being investigated), the paragraph was open to a different interpretation – to mean no prior contact with the complainers in addition to any involvement in the subject matter of the complaint. Secondly, having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure.”

Leave aside the many other grounds on which senior counsel for Salmond apparently advised that the procedure was unlawful, some of which a first year legal trainee could spot. Those too will no doubt be exposed at some point when the inquiry publishes all of the pleadings and notes of argument in the case as it is now free to do.

Consider only this ground of partiality that tainted the whole procedure, and that Evans and the Scottish Government have admitted. Consider the court’s ruling, again in the words of the Scottish Government themselves, that “the Permanent Secretary’s decision report and letter [were] unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect of which they were tainted by apparent bias.”

The responsibility for this unlawfulness of both the procedure and its implementation does not lie with some Johnny-come-lately “reasonable observer” who came on the scene during the judicial review process to find fault with what up until then had been a great job all round.

It lies with the senior civil servants and lawyers – the “reasonable observers” – whose whole job it was to stand back in detached fashion and draft a procedure which, when implemented according to their intentions, would be fair and unbiased.

In their haste to get Alex Salmond, they got that wrong, wrong, wrong, and it’s way past high time they owned up to it.

What the expenses tell us

Wings Over Scotland, in that site’s usual lucid and incisive fashion, picked up on some of these points from this blog in a recent post and had some kind words for it, which are much appreciated. It should hardly need saying that the information and analysis provided day after day, year after year by the Wings site remains by a distance the most important resource that the grassroots Scottish independence movement has.

So let me add this to the excellent analysis in that post of the expenses incurred in the Scottish Government’s unlawful attempt to ruin Alex Salmond.

When they conceded the judicial review, Evans and the Scottish Government also conceded that their whole conduct of the case was such that Salmond was entitled to expenses on the “solicitor and client, client paying” scale. Unfortunately, that dry-as-dust legal terminology obscures what this actually means, and how significant it is.

In the overwhelming majority of cases, court expenses are awarded or conceded on the “party and party” scale, which means that if you win your case, you get the expenses that the other side can reasonably be expected to pay as necessary for your conduct of the action. These are always less than your solicitors and counsel actually charge you – sometimes as little as 60% of your actual costs – and you just have to live with the shortfall.

Only in the most exceptional of cases – I’ve never been involved in one, on either side – does a court award the winning party expenses on the scale which the Scottish Government conceded in the Salmond case.

In McKie v Scottish Ministers [2006] CSOH 54, Lord Hodge reviewed the “well-settled” authority on this, and explained why such an award is so rare. (By way of illustration, this was the case of Shirley McKie, the police officer whose life was ruined when she was falsely accused of leaving fingerprints at a crime scene, whose entirely justified court action was disgracefully opposed and obstructed by her police employers at every turn and who still didn’t get “solicitor and client” scale expenses from Lord Hodge.)

Lord Hodge said this:

“[W]here one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. … [I]n its consideration of the reasonableness of a party’s conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party’s behaviour before the action commenced, the adequacy of a party’s preparation for the action, the strengths or otherwise of a party’s position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or delay the resolution of the dispute.”

This, then, is what the Scottish Government conceded about its conduct of the Salmond judicial review and, by extension, of the unlawful procedure which gave rise to it.

Incompetent. Unreasonable. Lacking substantive merit. Improper purpose. Delay.

The oft-repeated claim of Sturgeon, Evans and the Scottish Government that they just got unlucky in some late-discovered technicality in the Salmond case is just one more shameful lie.

SALMOND INQUIRY: THE SCOTTISH GOVERNMENT’S CASE MAKES NO SENSE

The Scottish Government have submitted a Statement to the Salmond inquiry in which they seek to explain why they waved the white flag in the judicial review without ever having done anything wrong.

As you might imagine, that’s not an easy task, so we probably shouldn’t be too surprised that the Statement makes no sense at all. Nonetheless, it’s a pretty bizarre document even in the context of the somewhat alternative world of senior civil servants who have titles like “Deputy Director for People Advice” and speak to each other about “granular levels” and “lived experience” and “our learning”.

I can’t think of any better way to demonstrate this than to take you through some key paragraphs of the Statement with my own commentary added, so here goes.

Initial procedure

Three straightforward paragraphs to begin with. I have no quarrel with these:

“9. … On 22 August 2018, following the conclusion of the investigation, the Permanent Secretary notified the former First Minister of her decision. This took the form of a decision report and covering letter…

“10. Also on 23 August 2018, [Salmond’s lawyers] notified the Scottish Government that the former First Minister would raise a petition for judicial review of the decision, and on 31 August 2018 legal proceedings were raised by him.”

“23. On 27 September 2018 the Court issued a timetable order.… A substantive hearing was fixed for 4 days to start on 15 January 2019.”

The commission and diligence procedure

We know from a Freedom of Information request answered on 13 September 2019 that there were at least 12 meetings and/or conference calls between counsel and Scottish Government officials, Ministers and/or Special Advisers in the period up to 19 December 2018 when the commission and diligence procedure to recover evidence in the judicial review began. If there were perceived difficulties in the Government’s case to this point, the Statement gives no indication of them:

“26. As part of the process for the recovery of evidence, a Commission (a formal hearing) was held between 19 and 21 December 2018 before a Commissioner appointed by the court after the Petitioner [Salmond] had lodged a description of further evidence that he wanted to obtain from the Scottish Government (a specification of documents). The specification detailed specific source material that needed to be included in the search such as calendar entries and text messages.”

And then suddenly, without warning so it seems, everything just fell apart for the Scottish Government. Paragraph 26 continues:

“During the Commission it became apparent to the Scottish Government that the decision under review had been taken in circumstances in which an impression of partiality would have been created for a reasonable observer by the totality of the prior contact between the individual who was later appointed as the Scottish Government’s Investigating Officer [Judith Mackinnon] and the two members of staff who made formal complaints.”

Clearly, something dramatic must have happened during this three day procedure. After all, it’s no small matter when a “reasonable observer” would gain the impression that a procedure created and run by a brains trust of senior civil servants and lawyers, and approved by the First Minister herself, was biased and unfair. Indeed, all of the members of that brains trust, including the Investigating Officer herself, would surely have regarded themselves as “reasonable observers” who could stand back and spot apparent bias if it had been there to be reasonably observed prior to the Commission proceedings.

Well, let’s see.

Something dramatic?

“27. The Petitioner [Salmond] and Respondents [Scottish Government] agreed to settle the case on the basis of that acceptance. On 8 January 2019 they lodged a joint minute with the Court setting out the terms on which settlement of the case had been agreed, including that the decision under review was unlawful in that it was taken in circumstances which were ‘procedurally unfair and tainted by apparent bias’. The judge in the Court of Session accepted the joint minute and issued a final order bringing the case formally to an end.”

No, we’re no further forward. Yes, this is more confirmation of how dramatic events in the Commission must have been to bring about such a humiliating surrender but we still don’t know what those dramatic events were.

Maybe this will give us what we’re looking for:

“36. Paragraph 10 of the Procedure under which the complaints [against Salmond] were investigated states that the Investigating Officer ‘will have had no prior involvement with any aspect of the matter being raised.’ This reflects provision typically found in employment policies and refers to personal involvement in the matter being investigated. Reference to ‘prior involvement’ was intended to refer to involvement in the incident under investigation itself or its immediate handling. Later involvement, especially many years later, was not intended to compromise an Investigating Officer’s ability to be an impartial collector of facts unless there is some other factor which debars them. In this case, the Investigating Officer (the Deputy Director for People Advice) [Mackinnon] had had no involvement in any aspect of the events being investigated. She had not been part of the Scottish Government at the time of the events in question, which – along with her experience as an HR professional – had informed her appointment as Investigating Officer.”

Again, as far as the Scottish Government are concerned, neither those involved in drafting and approving paragraph 10 of the Procedure nor the Investigating Officer nor the “Head of People” who appointed her put a foot wrong here. Paragraph 10 is fine and dandy, Judith Mackinnon behaved like the consummate “HR Professional” that she is, and Nicola Richards clearly made a great choice in selecting her for the job.

The mystery of why the “reasonable observer” would see bias in any of this only deepens.

The mystery solved?

The next paragraph at least begins promisingly for our quest:

“37. The Deputy Director for People Advice, had contact, before her appointment as Investigating Officer, with the two members of staff who lodged concerns in advance of their decisions to make formal complaints.”

This surely must be it at last. Somehow in the course of the Commission, Mackinnon and others must have remembered events and documents about which they had completely forgotten up to that point and which they now realised would seem to “reasonable observers” (including themselves) to show bias.

Well, no. Paragraph 37 continues:

“This took the form of ensuring they could have access to support from other sources if required and that the process and choices available were understood by the two members of staff. This was in keeping with the role for the Investigating Officer set out in more detail in earlier drafts of the procedure, and in line with her professional HR role. The individuals also shared reflections about what they thought might prevent harassment occurring in the future.”

This can’t possibly be what caused the towel to be thrown in. Not only was Mackinnon acting “in keeping with the role for the Investigating Officer” but she was “in line with her professional HR role” too. What “reasonable observer” could possibly find fault with that?

On then to the next paragraph:

“38. As noted in paragraph 26 above, previously undisclosed documents were provided as part of the Commission for Evidence held between 19 and 21 December in relation to the prior contact between the individual who was subsequently appointed as the Investigating Officer and the two complainers. These documents indicated the nature of this contact was in line with that described in paragraph 37.”

Again, it could hardly be clearer that these “previously undisclosed documents” weren’t the problem for the Scottish Government. Far from undermining anything asserted in the previous paragraph, these documents were themselves “in line” with it; that is to say, they showed that Mackinnon acted entirely “in keeping” with her role as Investigating Officer and “in line” with her role as an “HR professional”.

On again then:

“39. Nevertheless, it became apparent to the Scottish Government, based on a review of the case which was informed by legal advice, that …, having regard to the totality of the Investigating Officer’s dealings with the complainers before her appointment as Investigating Officer, the reasonable observer would conclude that there was a real possibility that she could not act impartially as she was required to do by the procedure.”

Has any word of the English language ever done more work than that “Nevertheless”?

I have searched for anything in the Statement besides the paragraphs set out above which might add anything at all to the “totality of the Investigating Officer’s dealings with the complainers” as described by the Scottish Government. I invite readers of this blog to do the same.

It just isn’t there.

The “totality of the Investigating Officer’s dealings with the complainers”, according to the Scottish Government, was a totality of exemplary HR professionalism and investigatory rectitude. Nevertheless, it had to be conceded that this surely most unreasonable of “reasonable observers” would, for reasons that remain utterly mysterious, see bias.

And then this:

“40. The Permanent Secretary therefore concluded on 2 January 2019 that the Scottish Government should concede the judicial review proceedings because of the apparent bias issue (described in paragraph 39 above).”

Everyone in here is innocent

I don’t know what else to tell you.

Clearly the Scottish Government have done nothing wrong whatsoever and yet “based on a review of the case which was informed by legal advice” they’ve been prevailed upon to cop a plea and hand over a half million pounds of our money.

The words of Morgan Freeman’s character in Shawshank come to mind.

SALMOND INQUIRY: MORE DIVERSIONARY TACTICS BY COPFS

The Scottish Crown Office and Procurator Fiscal Service (COPFS) appear now to be claiming that material disclosed by them to Alex Salmond’s lawyers cannot be further disclosed by Salmond’s lawyers to the inquiry without a criminal offence being committed.

I know from personal experience that any such claim is false. It is entirely within the discretion of COPFS to authorise Salmond’s lawyers to provide the material to the inquiry or to provide it to the inquiry themselves.

Here’s how I know.

The COPFS material

It is clear that material has been disclosed by COPFS to Alex Salmond’s lawyers which is relevant to the claim of a conspiracy against him and relevant also to the claim that this conspiracy underlies, among other things, the unlawful action taken against Salmond by the Scottish Government.

WhatsApp messages leaked anonymously to Kenny MacAskill MP — sent originally, it seems, by SNP Chief Executive Peter Murrell, and saying that “the more fronts [Salmond] is having to firefight on the better for all complainers” — are said to form part of this material. It has also been reported that messages about Salmond were exchanged among the members of an SNP WhatsApp group which was co-ordinated by a senior SNP official, and that these messages were referred to during a preliminary hearing in Salmond’s criminal trial. These messages too are said to form part of the COPFS material.

There can be little doubt that this material is relevant to the remit of the Salmond inquiry and requires to be disclosed to it before Salmond, Murrell, Sturgeon or anyone else can meaningfully give their evidence and be examined on that evidence.

It remains puzzling that such obvious facts are not self-evident to everyone.

The COPFS claim to secrecy

It is worth setting out what Salmond’s lawyers said about the COPFS material in their letter to the inquiry of 21 September 2020:

“The Crown have reminded us in the strongest terms of the legal restrictions which we have referred to in our correspondence to date. The crown identify that it would constitute a criminal offence for us to release certain material obtained as part of the disclosure in the trial. Both our client and we absolutely have no alternative but to respect that obligation. That is precisely why we have previously suggested that the Committee raise the recovery of that documentation with … Crown Office, whom we do not believe are subject to the same restrictions. They may, of course, take a different view, but it will be for them to explain that to the committee.”

The provisions on which COPFS have evidently relied in their letter to Salmond’s lawyers are sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010 (the Act) which provide that material disclosed to an accused by COPFS for a criminal trial must not be used or further disclosed for any other purpose, and that to do so is a criminal offence.

Apparently, COPFS are taking the view that there is no way round these provisions. That view is simply wrong, and Salmond’s lawyers are entirely justified in urging the inquiry to pursue disclosure directly with COPFS.

COPFS disclosure in Sheridan v NGN

In late 2015, after years of unremitting slog in the face of the bureaucracy, incompetence, bad faith and utter lack of accountability which defence lawyers know to be the hallmark of COPFS practice generally, and COPFS disclosure in particular, I finally had disclosed to me a good deal of material which was helpful in pursuing Tommy Sheridan’s application to the Scottish Criminal Cases Review Commission.

I was also at that time preparing Tommy’s defence of the appeal by News Group Newspapers Ltd, in which NGN sought a new civil trial for Tommy’s defamation action, which he had won in 2006 and for which he had been awarded record damages.

The disclosure I had prised eventually from the iron grip of COPFS had been given on the usual basis that it was information which would “materially weaken or undermine” the prosecution case or would “materially strengthen” the defence case. Just as Alex Salmond’s lawyers are, I was bound by the terms of sections 162 and 163 of the Act when it came to using that information.

So, knowing that the COPFS material was highly relevant not just to the criminal appeal but to the NGN civil appeal, I wrote to COPFS on 19 November 2015 to ask them for authorisation to use the material in the civil proceedings.

I should say that, as looks likely to be the case with the COPFS material in the Salmond case, this material was dynamite. The documents wrested from COPFS showed, among many other things, that News of the World Editor Andy Coulson and Scottish Editor Bob Bird had conspired with various others to pervert the course of justice in Tommy’s 2006 civil trial by sending their star witness abroad to prevent her being recalled, for fear that she might now tell the truth, and that NGN had hacked Tommy’s phone.

On 16 December 2015, COPFS replied to my request to be allowed to use the material in the civil case and again it is, I think, worth setting out their reply:

“Crown Counsel has now considered your request in detail and has instructed that your client be asked to obtain a court order for the material requested. As civil litigation is ongoing it would be possible for your client to make a motion for specification of documents as part of the commission and diligence process, which motion will not be opposed by the Crown.

“On presentation of this order, the Crown will not re-disclose the material already in your possession however this will permit you to simply re-use the material you already have.”

This letter was put before three judges in the Inner House of the Court of Session at the next hearing of the civil case. Their reaction to the COPFS proposal gave strong encouragement to the belief that the proposal comprised a lot of faffing around to achieve something that for all practical purposes had already been achieved. The material – many hundreds of pages of it – was then simply lodged with the court in eight lever arch files.

No objection was made to this by COPFS, and the court’s eventual judgment in the case, delivered by Lady Paton on 19 August 2016, made clear that the court had no problem with it either:

“The pursuer made an application to the Scottish Criminal Cases Review Commission seeking to have his perjury conviction re-investigated and referred to the High Court of Justiciary with a view to having the conviction quashed. The application was supported by documents concerning the activities of the News of the World.  Many of the documents had been disclosed to the pursuer by the Crown Office after being recovered by police operations. The pursuer lodged many of those documents in the present civil proceedings, in his Appendix A to H.” 

A good few of those many documents concerned NGN’s star witness, and her News of the World story for which Tommy sued, a story nicely summarised by the court as “a totally fabricated account involving, inter alia, bondage, spiked heels, orgies, and whipping.” The provenance of the documents concerning that witness as part of COPFS disclosure could hardly have been clearer, as when Lady Paton narrated how, in Tommy’s arguments,

“[r]eference was made to what appeared to be a witness statement given by [the witness] dated 9 August 2011 taken by DC Cath Murphy … in which [the witness] was noted as stating …

“’Basically the evidence I gave at Tommy Sheridan’s defamation case in 2006 was untrue. I can’t tell you how sorry I am about it, it has completely screwed up my life. I got sucked into it & couldn’t get out of it, it didn’t matter what I said, it didn’t matter to the News of the World that while I was ‘in their care’ I’d tried to commit suicide three times. I felt like I was owned by the News of the World & they’d taken over my life. I’m not proud of what I’ve done, I felt like I had my back against the wall & had to do what they said … I now want to tell the truth …’”

Further, Lady Paton continued, a “persuasive argument” had been presented to the court, “based on material in the defenders’ own records” and such that it was “difficult to see what answer there might be to some of the allegations made”. These included the sending of the star witness to Dubai to prevent her being recalled to give further evidence and material “apparently showing a pattern of phone-tapping, which was said to have allowed the defenders to identify and trace people with whom the pursuer had private contact, with a view to compelling them to give evidence against him”. It was, the judge repeated, “far from clear what answer, if any, there could be” to these allegations.

NGN’s appeal was refused and Tommy kept his damages.

A wee coda

I can’t resist adding that, having endured many years of indignant denials by NGN’s lawyers that their clients were criminals, I finally had the rare and pleasant experience of having Roddy Dunlop QC (who acted for the Scottish Government in the Salmond judicial review, and is now Dean of the Faculty of Advocates, and who was then acting for NGN) interrupt me during a court hearing to make make just that admission.

The interruption came at a subsequent hearing in the Sheridan case before the original trial judge, Lord Turnbull, on 3 November 2017 as I was once again laying out for the court how NGN and its employees had hacked Tommy’s phone and conspired to pervert the course of justice in the civil trial.

“My Lord,” sighed Mr Dunlop, rising from his seat with all the veteran weariness he could muster, “I say this to assist my learned friend and to help this case progress — it can be taken as read that [the star witness] was spirited away and that Mr Sheridan’s phone was the subject of phone hacking. You are free to make of that as you will.”

It was truly a moment to be savoured.

Just another fig-leaf

But back to the Salmond inquiry.

Notwithstanding anything the Act says about the strictly limited use to which COPFS disclosure to an accused can be put, or the criminal consequences that can follow if it is used for other purposes, COPFS clearly believe that they have discretion to allow disclosed material to be used for other purposes by an accused or former accused.

That belief has been sanctioned by the highest court in Scotland in Sheridan v News Group Newspapers Ltd [2016] CSIH 67.

It is therefore false to claim or imply that COPFS are precluded by statute from authorising Alex Salmond’s lawyers to release to the inquiry the material which was disclosed to them for the criminal case. That is precisely what COPFS authorised, and what the court sanctioned, in the Sheridan case.

If there are other reasons why such authorisation should not be given, and why both the inquiry and the public should not be told what was said and done by Peter Murrell and others in these WhatsApp messages, COPFS should state, fully and clearly, what those reasons are.

As things stand, the threatening letter they have sent to Alex Salmond’s lawyers looks like just another fig-leaf in an ongoing cover-up.

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