I’m very pleased to be able to update you all at last on developments in Mark’s action for malicious prosecution.

Since my post of 26 July last year when I shared my firm’s letter before action to the Lord Advocate, we’ve been engaged in what is called “pre-action correspondence” with the defenders. I’ll say more about that below.

However, the upshot is that we have now lodged at Jedburgh Sheriff Court the document which initiates court proceedings – called, appropriately enough, an “initial writ” – and on 11 February the court granted a warrant for the action to be served on both defenders – the Chief Constable of Police Scotland and the Lord Advocate.

The action was served on 17 February and each of the defenders now has until 10 March to confirm to the court that they intend to defend it.

They will then be allowed further time to lodge their detailed defences and the court will issue a timetable setting out how things are to proceed from there.

We are suing for damages of £200,000.

The pre-action correspondence

I’m also pleased to say that the considerable delay in getting to court while we have pursued pre-action correspondence with the defenders has been worth it for one important and substantial reason.

I explained in my last post how section 170 of the Criminal Procedure (Scotland) Act 1995 bears to provide immunity from liability for prosecutors in “summary proceedings” when no imprisonment of the accused is imposed.

I argued that there was no reason in law or in common sense why the Crown should be liable in damages for maliciously prosecuting someone who goes to jail as a result but not someone who is, rightly, acquitted of the charges against them.

Nor, I argued, was there any reason why people tried before a jury (in “solemn proceedings”) should be treated differently from those tried by a judge alone (in “summary proceedings”).

I pointed out that this provision seems incompatible with Article 6 of the European Convention in that it fails to provide a remedy when a wrong is committed, and that we therefore intended to challenge the compatibility of section 170 with the Convention had the Lord Advocate contested the action on this ground

I can’t disclose the details of our pre-action correspondence with the Lord Advocate, which was conducted on a “without prejudice” basis, but I can say that we are now confident that section 170 is not going to be a factor in this litigation.

The malicious prosecution of Mark Hirst

Our action then proceeds on the following basis.

Mark was prosecuted for an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 – supposedly behaving in a “threatening and abusive” manner towards the Salmond complainers – following comments which he made after Alex Salmond’s acquittal on all charges at the High Court in Edinburgh.

On 07 January 2021 a submission of no case to answer by Mark’s defence team was upheld by the sheriff at Jedburgh.

The sheriff made quite clear in dismissing the case that all of the facts brought before the court by the prosecution – facts which were evident from the outset and had never been disputed by Mark – did not constitute any crime known to the law of Scotland.

Any such crime existed only in the minds of Mark’s powerful accusers, and of their mouthpiece Rape Crisis Scotland, and had no business at all in entering into the minds of the police or Crown.

We submit in our court documents that there never was any basis for Mark being prosecuted, and that the prosecution against him lacked reasonable and probable cause, both objectively and subjectively.

We also maintain that the prosecution was brought maliciously, not least because a warrant was obtained against Mark when the primary evidence was plainly available. The warrant application, among other things, made false allegations about threats being made by Mark.

The police obtained the warrant to search Mark’s home on the basis that it appeared that he had committed an offence. He had not. The police did not produce any information to the sheriff which would have permitted scrutiny of the application as, had that been done, it would have been obvious that no offence had been committed.

In any event, we argue there was no need for a warrant to have been obtained at all. The police had already obtained a full copy of all of the relevant material posted by Mark. The material obtained by the gang of officers from the “Salmond team” during their raid on Mark’s home produced precisely nothing to add to the relevant evidence in the case.

We’ll seek to establish that the obtaining of the warrant in such circumstances was “oppressive, an abuse of power, unnecessary and indicative of malice”.

The political dimension

We’ll also seek to establish that the prosecution of Mark was politically motivated.

As most of you will know, Mark was an active and outspoken supporter of Alex Salmond.

Rape Crisis Scotland, who played an active part in the charges against Alex Salmond, also played an active part in having Mark investigated and charged.

We intend to explore in the course of this litigation whether Rape Crisis Scotland were encouraged to make a complaint about Mark for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.

Rape Crisis Scotland are of course funded by the Scottish Government.


The decision of the Inner House of the Court of Session – Scotland’s highest civil court – in the judicial review brought by Fair Play For Women constitutes a disappointing defeat in the battle for a common sense interpretation of “sex” as meaning “biological sex” to apply in all legal contexts.

It is, however – and much more importantly – a decisive confirmation that the war for “sex” to mean “biological sex” whenever the protected characteristics of the Equality Act are in issue has now been conclusively won.

In the For Women Scotland case, decided just a week ago, also in the Inner House, the court made crystal clear that whenever the protected characteristic of “sex” is being considered for the purposes of the Equality Act, the relevant definition of a “woman” is a person who is “biologically female”.

Now the court has gone further by stating that “biological sex” (the concept that the overwhelming majority of us think of simply as “sex”) is likely to be the appropriate definition in all legal contexts where “status, proof of identity or other important rights” are in issue.

So where did the court say this?

I’m glad you asked.

In finding that the definition of “sex” should not be restricted to “biological sex” for the purpose of the relevant question in the Scottish Census, the court said this:

“It is to be expected that the language used, and the meaning to be attributed to the words used, are to be interpreted according to their popular and common meaning, not according to a specialist, restricted definition which may be adopted where matters of status and rights may be in issue.”

I’ll save for another day my analysis of the legal sophistry by which the court deduced from the uncontroversial fact that for many people “gender” and “sex” are still synonymous that we are all now much more sophisticated than our “simplistic” ancestors and have become veritable Judith Butlers in our interplay of the two terms.

I’ll simply restate a very obvious fact.

The reason “gender” and “sex” are still synonymous for millions of ordinary sensible people is that they’ve never heard of Judith Butler or “gender theory” and, just like their “simplistic” and sensible ancestors, they still use the terms interchangeably to mean biological sex.

But back to the point.

However out of touch with reality the court’s finding about the “popular and common” meaning of these terms may be, its crucial finding is its contrast of such a meaning with the “specialist, restricted definition” which “may be adopted where matters of status and rights may be in issue”.

We already know from the For Women Scotland decision that one of the contexts where the “specialist, restricted definition” of sex not only may be but must be applied is the context in which the protected characteristic of “sex” under the Equality Act is in issue.

In Fair Play for Women, the court now specifically acknowledges that there are others:

“There are some contexts in which a rigid definition based on biological sex must be adopted.” [my emphasis]

It then gives some examples:

“… marriage is a legal status which affects rights in other fields such as immigration, social security, pensions, and housing. There are other circumstances in which matters affecting status, or important rights, in particular the rights of others, may demand a rigid definition to be applied to the term “sex” of the kind proposed by [Fair Play for Women]. Examples include [a case] where being a male was an essential pre-requisite for the commission of a particular criminal offence.”

Indeed, the court points out:

“Some of these limitations have been carried over to apply even where a person has successfully
obtained a GRC under the GRA…. The point which these examples all have in common is that they concern status or important rights.” [my emphasis]

And, summarising precisely why Fair Play for Women have lost the battle but conclusively won the war, the court goes on:

“We see no reason to think that the fact that it may be necessary to apply a biological definition of sex in prescribed circumstances involving status, proof of identity or other important rights mandates that a similar approach must be adopted when the issue does not involve these matters.” [my emphasis again]

So sure, it’s disappointing to say the least that the court has found it unnecessary to apply the biological definition of sex to the Census in Scotland and has decided to let people answer on the basis of their “gender” (whatever that may be).

But there can now be no doubt that the Scottish courts can, and most likely will, find it necessary to apply a biological definition of sex not just in Equality Act cases but in any case where any important rights are being decided and the definition of sex is in issue.


Let me start by offering my hearty congratulations and heartfelt thanks to Marion, Trina, Susan and all at For Women Scotland for their sensational victory in the Court of Session this week. They have done a mighty service to every person in Scotland who still has a grip on reality.

For all non-legal folks, be in no doubt about the importance of this decision. It comes from the Inner House of the Court of Session, which is Scotland’s highest civil court. It is therefore, as of now, the definitive and authoritative statement of Scots law on the matters it covers.

What the decision covers

One very important matter that the decision covers is the definition of “sex”, and of “woman” and “man”, for the purposes of the Equality Act 2010.

This is what the court said about that:

“[A] reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age…. [W]hen one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female.… Provisions in favour of women, in this context, by definition exclude those who are biologically male.”

This is unequivocal.

It means that whenever the protections provided by the Equality Act are being considered in Scotland and the question arises of what a “man” or a “woman” is in the context of those protections, a man is a person of any age who is “biologically male” and a woman is a person of any age who is “biologically female”.

Legal definitions

At this point we should perhaps remind ourselves of this:

Contrary to what those in thrall to poststructuralist “thought” believe (or purport to believe), there will not be the slightest problem for lawyers in defining further, if need be, what “biological sex” means, or what being “biologically female” or “biologically male” entails.

If lawyers can come up with legally workable definitions to differentiate between a “cake” and a “biscuit” (as they famously can), they can certainly – if called upon – come up with workable definitions to differentiate a biological man from a biological woman.

They could perhaps start with anyone of any age who has ever given birth (“biologically female”) and work from there.

Even the statistically tiny instances of so-called “intersex” conditions will be a comparative dawdle.

It’s perfectly clear, then.

In Scotland, whenever the protected characteristic of “sex” and the protections against discrimination for the “women” and “men” who comprise that characteristic under the Equality Act are being considered:

A woman is someone who is biologically female.

A man is someone who is biologically male.

The Gender Recognition Act 2004

There may be one important wrinkle to this. Although the court cited section 9 of the Gender Recognition Act in its decision, it didn’t spell out in any detail how the provision interacts with the unequivocal guidance given above.

Section 9(1) says this:

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

Now, one thing that most people on all sides of the “gender” argument seem to agree on is that “gender” and “sex” do not nowadays mean the same thing. The days are long gone when “gender” was just a polite or posher way of saying “sex”.

So the conflation here of “sex” and “gender” (so that by changing “gender” you legally change sex) is either a trick that was pulled in 2004 by very savvy “gender” activists, rightly seeing it as the thin end of the future wedge (my own view) or it’s a legal fiction that was granted on compassionate grounds to ease the suffering of people with the medical condition of “gender dysphoria” (the view of people kinder than I am on this one).

Either way, the result is that a person with a gender recognition certificate obtained under the Act changes sex legally by changing their “gender”, and does so “for all purposes”.

I honestly don’t know where this fits exactly with the court’s authoritative definition of “woman” in the For Women Scotland case and I wish the court had specifically addressed it.

At its very highest, though, it simply adds those biological males who have acquired the legal fiction of being women to the protected characteristic of “woman” and those biological females who have acquired the legal fiction of being men to the protected characteristic of “man”.

It does nothing to alter or dilute the fundamental and authoritative distinction now made by the court.

In fact, it may even provide a glimpse of what an “acquired gender/sex” amounts to in the eyes of the law; namely, the legal fiction granted to you by legislation that you’re biologically female when you’re actually biologically male – and vice versa.

The Scottish Government and its enforced policies of “trans inclusion”

The court’s decision in the For Women Scotland case is in my view a defeat of catastrophic proportions for the Scottish Government.

Just how catastrophic will only emerge as the dominoes start to tumble but the most immediate casualty must surely be the Government’s enforced “trans inclusive” funding policies, under which service organisations which are, in terms, exclusively for women must nonetheless make provision for serving biological males in order to qualify for Government funding.

If they refuse to admit biological males, as a few brave and principled organisations continue to do, they must do so without any funding from the Scottish Government and its “feminist to my fingertips” First Minister.

Well, I won’t keep you in suspense.

In my opinion, the court’s decision now confirms what some of us have suspected for a long time.

That policy is unlawful, and should be struck down if challenged.

Why the Scottish Government is acting unlawfully (again)

The court in its decision discussed not only the protected characteristic of “sex” under the Equality Act but also the equally protected characteristic of “gender reassignment”. This is the characteristic on which the Scottish Government relies in imposing its “trans inclusive” funding policies.

In terms of the Act, a person has that protected characteristic “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

You’ll note immediately that once again we have the conflation of “sex” and “gender” that bedevils all legal discussion of these matters and that, frankly, should cause every lawyer involved in the drafting of these provisions to hang their heads in shame.

To take just one example, what on earth are non-physiological “attributes of sex”? Getting drunk and wanting to fight everyone for males, maybe? Or being rubbish at reversing a car for females? Or could it really mean just calling yourself Kylie and applying some lippy?

But I digress…

I know of no legal authority that tells us when the process of gender/sex reassignment stops being a process and becomes a done deal. As discussed above, one possibility is that the obtaining of a gender recognition certificate concludes the process.

However, the court in For Women Scotland was quite clear in stating that just because some biologically male people might have legally changed sex to female, that by no means entails that all biologically male people undergoing the process of gender reassignment can be treated as female.

The court specifically noted that the Equality Act of 2010

“… maintained the distinct categories of protected characteristics [of sex and gender reassignment], and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 [Gender Recognition] Act were limited.”

In other words, the court was quite clear in saying that, although a transgender person undoubtedly qualifies for the protected characteristic of gender reassignment, there is no legal authority

“… for the proposition that a transgender person possesses the protected characteristic of the sex in which they present.”

Accordingly, the cases put before the court

“… do not vouch the proposition that sex and gender reassignment are to be conflated or combined.”

Rather, the protected categories of “sex” on the one hand and “gender reassignment” on the other are separate and distinct. You don’t automatically (or arguably ever) become a “woman” for the purposes of the protected characteristic of “sex” by means of belonging to the separate protected characteristic of “gender reassignment” while being a biological man.

Maybe you can do it by completing the reassignment process (whatever that may involve) and maybe you can do it by obtaining a gender recognition certificate under the 2004 Act but you absolutely can’t do it just by undergoing gender reassignment under the 2010 Act.

Where this leaves the Scottish Government and women’s services

As I’ve said, it’s a pity that the court didn’t go on and say more about where the “limited” number of biological males who have obtained gender recognition certificates fit into this picture.

But what is beyond any doubt now is that in Scotland biological males who have not obtained a gender recognition certificate, and who are in the process of gender reassignment, do not possess the protected characteristic of “woman” for the purposes of the Equality Act.

In other words, in the law of Scotland as it stands today, and with the possible exception only of those with a gender recognition certificate, “transwomen” are not women.

The law, then, is directly contrary to the “trans inclusionary” funding policies of the Scottish Government, which have for years now forced women’s organisations to include biological males on the grounds that any biological male at any stage of the gender reassignment process has the protected characteristic of “woman” under the Equality Act and is thus entitled to use women’s single sex services.

(I should say for completeness that I have seen it argued that the entitlement of biological males to use women’s single-sex services arises because to exclude them would be to discriminate against their “gender reassignment” characteristic itself. This is obvious gibberish, as the court’s decision confirms. No-one is arguing that biological males should be excluded from women’s services because they’re undergoing gender reassignment. Self-evidently, it’s because they’re biological males.)

Among many other potential consequences of the law of Scotland being now clear at last is the distinct possibility that women’s single-sex services could lose their exemption to provide those services under the Act if they continue to bow down to the Government edict and include biological males among their service users and, in one infamous case, even among their employees.

Because to be exempt from discriminating against those with a protected characteristic under the Act – in this case, discriminating by excluding the protected characteristic of biological men from your services – you have to show good reasons for what would otherwise be unlawful discrimination against those who belong to that characteristic, and then you have to exclude them all.

What the Scottish Government’s “trans inclusionary” funding edict says to women’s service organisations is: you must include some biological men – all of the ones who call themselves “transgender women” – but it’s still fine to exclude the rest.


That’s exactly what the court has just ruled against in For Women Scotland.

Every one of these organisations should be consulting their lawyers right now.


The Scottish Government believes that transwomen are women and that this statement is so self-evidently true that it is not even up for debate.

I believe that transwomen are not women, and that this statement should not require debate in any rational society.         

Which of these two opposite beliefs you hold is important because which one you hold logically determines what you think should follow from that belief.

If, like the Scottish Government, you truly believe that transwomen are women, then the question of what follows largely resolves itself. You’ll believe that, by definition, transwomen should have all the rights that women have and that anyone denying these rights is denying the rights of women. 

If, like me, you believe that transwomen are not women, then the questions of what should follow from that belief are much more complicated, especially if, like me, you regard yourself as a decent and compassionate person. One thing that does clearly follow, though, is that transwomen are not entitled to the rights of women, such as women-only spaces and services. 

This post, then, is aimed at helping you determine which of these two foundational beliefs you hold.

Maybe, like me, you’re a long-time proven leftie, reluctant to accept finding yourself on the same side as Piers Morgan and Toby Young on any issue, and worried that you might be on the wrong side of history.

Maybe you’re at school or university and are being told by those in authority over you that people much smarter than you (who are also, so you are told, very “progressive”) have proved, in ways you don’t need to trouble yourself with, that transwomen just are women, and that if you ask for any argument or evidence, you’re a reactionary and a troublemaker.

Maybe you have children or grandchildren who are at school or university and who have passed that “knowledge” on to you with the same air of authority with which it was imposed on them. Maybe you think of how you used to correct your own parents or grandparents if they said “coloured” or “negro”, and you wonder if this is just your generation’s version of not moving with the times.

Maybe you’re in a Scottish Government or otherwise Stonewall-captured workplace where you’re given “training” in these issues and where no-one dares oppose the ludicrous dogma which comprises this “training” for fear of abuse, humiliation, dismissal and worse.


Well, you get the point, and if you are in any of those positions, I’ve got good news for you.

I have come up with three simple tests that you can take to establish for yourself exactly where you stand on the transwomen are women statement.        

These three tests are all derived from the experiences of lesbian women as reported by journalist Caroline Lowbridge in her recent article published on the BBC website.

I hope you will find taking them to be as decisive as I did.

Before we begin…

A couple of preliminary points:

Firstly, for all the storm of outrage that has greeted Lowbridge’s article over the last few days, I have not seen anyone on any side claim that anything set out there disqualifies the transwomen featured from being transwomen.

Accordingly, for the purposes of the three tests which follow, we don’t need to worry about defining what is or is not a “transwoman”. We can safely say that the transwomen featured in the article and included in my three tests below are, as they are represented to be, genuine examples of transwomen.

Secondly, let me say quite clearly that I believe in the truthfulness of the women featured in the article and I believe in the integrity of the female journalist who wrote about them. I think the attempts being made by numerous authority figures to discredit the women and the female journalist who wrote about them are shameful. 

But for the purposes of this post, that doesn’t even matter. If these women and their experiences had been conjured out of thin air by some isometric testing company purely for this purpose, they could hardly have provided us with better tests of where we stand on the statement trans women are women.

So let’s proceed to the tests:

Test 1

Lowbridge reports how 24-year-old Amy, a lesbian, was asked to have sex with a transwoman. The circumstances as narrated in the article are then as follows:

[T]he transwoman in question had not undergone genital surgery, so still had a penis.

“I know there is zero possibility for me to be attracted to this person,” said Amy, who lives in the south west of England and works in a small print and design studio.

“I can hear their male vocal chords. I can see their male jawline. I know, under their clothes, there is male genitalia. These are physical realities that, as a woman who likes women, you just can’t ignore.”

Amy refused to have sex with the transwoman.


Do you believe that this transwoman with male vocal chords, a male jawline and male genitalia is a woman?

If, like me, your answer is a firm no, then I’d say it’s clear that, like me, you believe transwomen are not women.

If, on the other hand, you believe that what happened here is that Amy, a same-sex attracted woman, rejected another woman, with a woman’s male vocal chords, a woman’s male jawline, and a woman’s male genitalia, then your belief is right in line with that of the Scottish Government.

I can well understand why you wouldn’t want to debate that belief.  

Test 2

Lowbridge narrates another experience as follows:

Another lesbian woman, 26-year-old Chloe, said she felt so pressured she ended up having penetrative sex with a transwoman at university after repeatedly explaining she was not interested.

They lived near each other in halls of residence. Chloe had been drinking alcohol and does not think she could have given proper consent.

“I felt very bad for hating every moment, because the idea is we are attracted to gender rather than sex, and I felt bad for feeling like that,” she said.

Ashamed and embarrassed, she decided not to tell anyone.

What do you think?

If, like me, you think the transwoman who had penetrative sex with Chloe wasn’t a woman then, like me, you don’t believe transwomen are women.

You may well believe that Chloe was raped by a man. I certainly do.

If, on the other hand, you believe that the transwoman who penetrated Chloe did so with a woman’s penis, then welcome again to the Orwellian world of the Scottish Government.

I can well understand why you’ll have no interest in debating that belief. 

Test 3

Lowbridge cites a report published here in which:

One woman reported being targeted in an online group. “I was told that homosexuality doesn’t exist and I owed it to my trans sisters to unlearn my ‘genital confusion’ so I can enjoy letting them penetrate me,” she wrote.   

Again, what do you think?

If, like me, you think that these “trans sisters” who wanted to penetrate a lesbian woman with their male genitalia are not women, then you believe, as I do, that transwomen are not women.

If on the other hand, you believe that these “trans sisters” wanted to penetrate this lesbian woman with their women’s male genitalia, then … well, you know the rest by now.

It’s pretty obvious to me why you’d do anything to avoid debating that belief.

How did you do?

If, like me, you concluded that transwomen are not women, then we can talk about ways in which our society can be kinder to transwomen and the difficulties they face, always though with the very clear proviso that the rights of women must be in no way compromised by any such kindness.     

If you concluded that transwomen are women, and that women’s rights are their rights by definition, then it’s probably just as well that you don’t want to debate the subject.

I really don’t see what we could possibly have to talk about.


As part of their coalition with the Green Party, the Scottish Government have pledged to introduce gender self-identification within the first year of the present Parliament.

For the reasons I have previously given, this means that men will legally become women just by saying they are, and women will become men just by saying they are.

This will not be regarded by the Scottish Government – or by the police or Crown or Scottish courts – as a legal fiction, but as the simple expression of reality.

We as a society will be expected to believe that people can literally change sex, and there will be sanctions if we don’t.

If the Scottish people do not rise up against this and stop it, we will all have surrendered to collective insanity.

I have been able to tell a girl from a boy and a man from a woman for the entire period of my living memory, a period now extending to well over fifty years.

The evidence of my own eyes and ears over that same period tells me that everyone else who is not in some way physically or mentally impaired has the ability to do it too.

I am confident that the ability that I know I have is one shared by the entire human species.

I am confident that this is so because being a girl or a boy, a woman or a man, must be one of the most overdetermined realities that there can possibly be for human beings.

It would make no sense if we could not recognise that reality in one another, instinctively, as a trait of being human, and without the need for active thought or any training or education of any kind.

It is as fundamental, and as little requiring of justification or explanation, as the ability to recognise the face of your own mother or father or sister or brother out of every other human being on the whole planet.

I say that the ability is overdetermined because if I search my mind, I can think of myriad factors that must enter into it, and I’ve listed some of the obvious ones previously, but if you ask me for some “theory” of how I am able to do it, I can only shrug my shoulders.

It doesn’t matter at all to me how I am able to do it, just that I can, and that it is one of the most fundamental realities on which I base my life.

If the Scottish Government, or anyone else, have a “theory”, or offer to produce an “expert” to tell me I can’t do this, then I am as sure as I am of anything in my life that I am right and they are wrong.

So when they tell me that what I know is a man is in fact a woman or that what I know is a woman is in fact a man, I know that they will be lying to me, trying to get me to accept as a fact something I know to be a fiction.

If the proposed legislation is allowed to pass and Nicola Sturgeon self-identifies as a man, gets a gender recognition certificate to that effect and uses that to get a birth certificate that says she is of the male sex, I know as surely as I know anything that this will be a lie.

If John Swinney self-identifies as a woman and goes through the same process to legally change to the female sex, I know as surely as I know anything that this too will be a lie.

No more nor less than The Party in Orwell’s Nineteen Eighty-Four, the Scottish Government will be imposing on me a version of “reality” that I – and they – know to be an utter fiction.

No more nor less than The Party in Nineteen Eighty-Four, they will be seeking to punish me, and everyone else who knows what reality is, by charging us with “hate crimes”.

It is completely irrelevant to me what their motives are for doing this.

There is no motive in the world worth surrendering reality for, and this is for a simple reason, one that Orwell and his protagonist Winston Smith understood all too well.

If even just once you are prepared to surrender reality and choose to believe in something you know to be false – for any reason, and with any motive – you have lost yourself, and you’ll never find yourself again.

I desperately hope that my fellow Scottish citizens, men and women both, will rise up in defence of reality and kill this insanity stone dead.

But if they don’t, let me use the privilege I have of putting something on the public record, here and now, for the many thousands of readers of this blog.

Boys are not girls, and girls are not boys, no matter how much they think or say they are.

Men are not women, and women are not men, no matter how much they think or say they are.

Males are not females and females are not males, no matter how much they think or say they are.

“Gender identity” is not real.

Sex is not a choice.

I’ll defend reality till the day I die, and they can lock me up if they want to.


I’ve been asked if I can make still clearer why it’s a big deal that the Fabiani Report has shown such utter contempt for the truth, as detailed in my last post.

The court order

The following is part of the court order, called an “interlocutor”, made by Lord Pentland at the Court of Session on 8 January 2019, when the court granted Alex Salmond’s application for judicial review against Leslie Evans and the Scottish Government:

“The Lord Ordinary … finds and declares that the decisions of the first named respondent, viz. Leslie Evans … are unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect that they were tainted by apparent bias by reason of the extent and effects of the Investigating Officer’s involvement with aspects of the matters raised in the formal complaints against the petitioner prior to her appointment as Investigating Officer in respect of each of those complaints…” [my emphasis]

In other words, the one specific reason given by the court for finding the actions of Leslie Evans and the Scottish Government unlawful was that the Investigating Officer in the formal complaints of Ms A and Ms B involved herself in matters raised by the formal complaints before she was appointed to investigate them.

That is to say, the one specific reason the Fabiani inquiry was given when it was set up to investigate the unlawful behaviour of Evans and the Scottish Government was the prior involvement of the Investigating Officer, Judith Mackinnon, in the formal complaints of Ms A and Ms B.

But, instead of investigating that prior involvement in the case of Ms B, the Fabiani inquiry has decided that one vital part of the prior involvement just didn’t happen.

The facts, again

It is an established fact that Ms B made her formal complaint directly to Judith Mackinnon by email at 1.56 pm on 24 January 2018.

The Fabiani Report acknowledges this fact:

24 January 2018: … Ms B’s formal complaint is … received by email.”

It is also an established fact that Judith Mackinnon, who later acted as Investigating Officer, had prior involvement with Ms B on 23 and 24 January 2018.

Again, the Fabiani Report acknowledges this fact:

23 January 2018: … A call is arranged between [Mackinnon] and Ms B for the following day.

24 January 2018: The Head of People Advice [Mackinnon] … and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.”

So this is a prime example of exactly the prior involvement set out in Lord Pentland’s interlocutor – you know, the one that the whole Fabiani inquiry is based on.

It’s a prime example of the unlawful conduct that the whole Fabiani inquiry is supposed to be investigating.

But instead of investigating it, they find, as a fact, that it just didn’t happen.

They find that there was no prior involvement on 23 and 24 January 2018 because Judith Mackinnon was somehow, magically, appointed as Investigating Officer before Ms B’s formal complaint was ever received:

“The Director of People [Nicola Richards] appointed the Head of People Advice [Judith Mackinnon] as the Investigating Officer under the procedure. This appointment was made on 23 January 2018 in relation to the complaint made by Ms B.”

By finding an obvious falsehood as a fact, they avoid any engagement whatsoever with the very unlawfulness they’re supposed to be investigating.

This is in blatant contradiction of Lord Pentland’s order.

By a Committee of the Scottish Parliament.

In a democracy governed by the rule of law, that should have some kind of consequence.


If you want to know how utterly bereft of truth the whole political process now is in Scotland you need look no further than the Fabiani Whitewash – aka the “Report of the Committee on the Scottish Government Handling of Harassment Complaints”.

One of the many reasons why the Sturgeon clique had to concede Alex Salmond’s judicial review was that Investigating Officer Judith Mackinnon had effectively appointed herself to that role in the complaint of the individual known as Ms B.

This was in the clearest possible breach of the Scottish Government’s own procedure.

It’s just one of the many scandals in the process that ended up costing the Scottish taxpayer well over a million pounds and counting but it’s self-evidently an important one.

It’s one that should have been investigated with great rigour by the Fabiani inquiry so that clear findings could have been made and responsibility apportioned.

Instead, they’ve found the most contemptible way of avoiding any contact with the truth.

Counsel’s opinion

The Scottish Government retained two QCs and and at least one junior counsel for external legal advice and representation throughout the process of the Salmond judicial review. In the lead was Roddy Dunlop, QC.

Dunlop is now Dean of the Faculty of Advocates and has for a long time been one of the most sought-after and respected advocates in Scotland.

In an increasingly horrified series of legal opinions leading up to the final concession of the judicial review, Dunlop charted the ongoing failure of the Sturgeon clique, most prominently Permanent Secretary Leslie Evans, to disclose to their legal team anything close to the full horrors of what they had done.

One such opinion came on 19 December 2018 when it had at last come to light that Investigating Officer (IO) Judith Mackinnon had not only had multiple inappropriate prior contacts with complainers Ms A and B but had effectively appointed herself IO as soon as Ms B’s complaint was received.

I’ll let you read the opinion for yourself. It’s admirably clear and no reader of it can be left in any doubt as to what their own senior counsel thought of the Scottish Government’s “alarming” conduct:

An “unstatable” defence; the deepening “dismay” of counsel; “unexplained” and “frankly inexplicable” failures to disclose vital and obviously relevant documents; the “extreme professional embarrassment” suffered by counsel “as a result of assurances which we have given, both to our opponents and to the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further documents, highly relevant yet undisclosed.”

And I’ll just remind you here that not a single person in the Scottish Government has resigned, nor has the Fabiani Whitewash even remotely suggested that anyone should resign, over this state of affairs.

But let’s go to the facts themselves:

One of the “alarming” disclosures that had finally been made to Dunlop, the concealment of which to that point was “unexplained” and “frankly inexplicable”, was that less than half an hour after receiving Ms B’s formal complaint by email on 24 January 2018, Judith Mackinnon was writing to Ms B, and arranging to meet her as Investigating Officer without ever having been appointed to that position as required by the procedure.

For the avoidance of doubt, Ms B submitted her formal complaint by email to Mackinnon at 1.56 pm on 24 January 2018.

Less than half an hour later, at 2.23 pm on 24 January 2018, Mackinnon emailed Ms B, acknowledging the complaint and discussing arrangements for meeting her as Investigating Officer.

This is what paragraph 10 of the procedure says about the appointment and status of the IO:

“In the event that a formal complaint of harassment is received against a former Minister, the Director of People will designate a senior civil servant as the Investigating Officer to deal with the complaint. That person will have had no prior involvement with any aspect of the matter being raised.”

The Scottish Government’s Director of People in January 2018 was Nicola Richards. Only she had the authority to appoint an Investigating Officer.

And of course that authority could only be exercised after a formal complaint was received.

No such appointment was made by Nicola Richards on 24 January 2018 – or ever.

Thus, as Dunlop points out in his opinion (having only just discovered these facts):

“The complaint had only just been made. No one had appointed an IO for this complaint. The IO has effectively appointed herself in that regard.”

This was just one of the bombshell disclosures finally made at this point that would very soon make counsel realise that the Scottish Government’s case had been “unstatable” from the outset.

It was, however, a self-evidently important one.

The Leslie Evans version

Reproduced exactly below (with my own gloss in square brackets) is how the Scottish Government – which means, in effect, Leslie Evans – tried to recast what you’ve just read above in their Statement to the Fabiani Whitewash.

Note that they can’t even get their own terminology right. The procedure provides for an “Investigating” — not “Investigation” — Officer:

“Ms B notified the Director for People [Richards] on 23 January 2018 of her decision to make a formal complaint. The Director for People [Richards] then contacted the Head of People Advice [Mackinnon] to inform her and to agree that the Director for People [Richards] would notify Ms B that the Head of People Advice [Mackinnon] was conducting the investigation and that she would be in contact. The Investigation [sic] Officer [Mackinnon] contacted Ms B to let her know that the Director for People [Richards] had informed her of Ms B’s intention to make a formal complaint. The Head of Branch People Directorate 3 [I have no idea who, or what, this is] then set up a telephone call for Ms B to speak to the Investigation Officer [Mackinnon]. Ms B followed this call up by submitting her complaint by email.”

There’s the trademark Evans obfuscation and use of ludicrous job titles to try to disguise the facts but if you struggle your way through it, you’ll see that the key trick is pulled here:

“The Investigation Officer contacted Ms B …”

When Mackinnon contacted Ms B, prior to the making of her formal complaint, “to let her know that [Richards] had informed her of Ms B’s intention to make a formal complaint”, she was not the Investigating Officer.

That is a brazen and quite deliberate Scottish Government lie.

It is simply impossible, as a matter of the most obvious fact, for Mackinnon to have been the Investigating Officer of Ms B’s formal complaint until that formal complaint was submitted, and at the time of this contact no such complaint had been submitted.

What Mackinnon was in fact doing was having “prior involvement” with Ms B which, along with many other breaches of paragraph 10, rendered her purported appointment later as Investigating Officer unlawful and the Scottish Government’s case at judicial review “unstatable”.

That is made as clear as can be in Roddy Dunlop’s opinion of 19 December 2018. It was one of the factors that forced Evans and the rest of the Sturgeon clique into finally accepting defeat, and therefore one of the factors which gave rise to Fabiani’s Committee in the first place.

So the attempt by the Scottish Government here to deceive Fabiani’s Committee should be obvious.

Anyone who looks at it with any degree of care can see through it immediately, let alone a representative group of Members of the Scottish Parliament who have been closely scrutinising the relevant issues for months, and have highly competent and professional specialist staff to assist them in the task.

Well, let’s see.

The standard of competence and integrity of the Fabiani Whitewash

These are the findings of the Fabiani Whitewash on Mackinnon’s unlawful “prior involvement” with Ms B and her effective appointment of herself as Investigating Officer, in the clearest possible breaches of paragraph 10 of the procedure:

“Ms A made a formal complaint on 16 January 2018 and Ms B on 23 January 2018. These were made to the Director of People” [my emphasis].

“The Director of People appointed the Head of People Advice as the Investigating Officer under the procedure. This appointment was made … on 23 January 2018 in relation to the complaint made by Ms B” [my emphasis].

Er, what?

How could Ms B’s complaint be made to Richards on 23 January 2018 when it was not made (to Mackinnon) until 1.56 pm on 24 January 2018?

How could Mackinnon be appointed Investigating Officer of Ms B’s complaint on 23 January 2018 when that complaint was not made until 1.56 pm on 24 January 2018?

From a Committee of the Scottish Parliament charged with the careful and diligent conduct of one of the most important investigations in the whole history of the Parliament, answer comes there none.

All we get is this timeline in an Appendix to the Report:

23 January 2018: Ms B notifies the Director of People of her intention to make a formal complaint.

The Head of People Advice is appointed Investigating Officer under the procedure for the complaint of Ms B. A call is arranged between her and Ms B for the following day.

24 January 2018: The Head of People Advice, acting as Investigating Officer, and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.

26 January 2018: A meeting between Ms B and the Head of People Advice, acting as Investigating Officer, is held for the formal interview on Ms B’s complaint.

This is Orwellian doublethink hiding in plain sight.

I’m sure I don’t need to point it out by now but I will anyway, just in case any Fabiani Whitewash MSPs or staff are reading this (though even then, frankly, I’m not confident they’ll grasp it).

The Head of People Advice can’t have been appointed as Investigating Officer of Ms B’s complaint on 23 January 2018 because Ms B didn’t make her complaint until 24 January 2018.

The Head of People Advice can’t have been acting as Investigating Officer when she spoke to Ms B on the phone because it was only subsequently that Ms B made her complaint.

When a Committee of the Scottish Parliament specifically convened for the purpose can’t even get its most basic and important facts right, it’s clear that the Scottish people need to look elsewhere for some person or body that can get to the truth.

We need a judicial inquiry

The writer and academic David Lodge once described Jacques Derrida’s ludicrous poststructuralist “theories” of “deconstruction” as offering to impressionable young college students “the thrill of sawing through the branch you’re sitting on”.

We know of course that Sturgeon and her clique are in thrall to such post-truth “theories” because they lie behind the reality-denying “gender identity” nonsense, and much else, that they are about to try to impose yet more deeply on the Scottish people.

It’s disappointing to say the least that the whole Scottish Parliament are apparently ready and willing to saw through the branch they’re sitting on too.

The Fabiani Whitewash is a bad joke, and all that is said above is but one of myriad examples, some of which I’ll say more about in future posts.

We desperately need a judicial inquiry into what was done to Alex Salmond and why.


Text messages now published in full by the Scottish Parliament show conclusively that Liz Lloyd, Special Adviser and Chief of Staff to Nicola Sturgeon, did interfere in the Salmond complaints process, contrary to vehement denials made on Lloyd’s behalf in March this year.

Lloyd has previously claimed that she only suspected there may be a formal complaint against Salmond some time in March 2018, that she did not know the full details of any complaint, and that she did not tell Sturgeon of her suspicions.

But the messages strongly suggest that Lloyd knew about the Salmond complaints in early February 2018 and that she was acting on behalf of her boss, the First Minister, when she interfered in the complaints investigation at that time.

Sturgeon herself told the Scottish Parliament that she knew nothing of the complaints until 2 April 2018 but later had to admit in her evidence on affirmation to the Fabiani Committee that she had in fact discussed them at a meeting on 29 March 2018, a meeting that she claimed had slipped her mind when she gave false information to the Parliament.

The messages also contradict the evidence to the Fabiani inquiry of top civil servant Barbara Allison, who swore on oath that she had no involvement in the Salmond investigation beyond “early contact” with the complainers in November 2017.

As the messages make quite clear, Allison was still playing an active and important role in the Salmond investigation in February 2018.

The background to the February text messages

In January 2018, Judith Mackinnon was appointed as Investigating Officer for the Salmond complaints. Mackinnon was then Head of People Advice, a very senior position in the Human Resources (HR) department of the Scottish Government. She was personally selected for the role of Investigating Officer by Permanent Secretary Leslie Evans, a selection that has, among many other things, cost the Scottish taxpayer well over a million pounds to date, and will probably cost a good deal more in the future.

The complaints being investigated were those of civil servants Ms A and Ms B, both of whom later became complainers (under different letters of the alphabet) in Alex Salmond’s criminal trial. The anonymity of Ms A and Ms B is protected by two separate court orders and to disclose the identities of either would be a serious contempt of court.

On 5 February 2018, a Ms X was interviewed by Mackinnon’s investigation on the basis that she might be able to corroborate aspects of the complaints of Ms A and Ms B. Although she ultimately refused to provide information to the Scottish Government investigation, Ms X later became a complainer herself in the criminal trial (again, under a different letter of the alphabet). Her anonymity too is thus protected by a court order.

In common with other Salmond complainers, and on the basis of information which she herself has chosen to make public, Ms X was self-evidently someone who was close to Liz Lloyd and by extension to Nicola Sturgeon.

Liz Lloyd’s first text message

On 6 February 2018, Liz Lloyd texted Barbara Allison as follows:

“[Ms X] will ask to see you today. Best outcome RE her is that as HR told her yesterday they didn’t need her to corroborate anything and as she told them she doesn’t want to tell her story…that by the end of today HR decide they don’t need to speak to her and cancel it. She won’t say no because she doesn’t want it to look like [she] wouldn’t testify.”

I’ll unpack that message in much greater detail below, but you won’t need me to tell you what it means in essence:

The First Minister’s Chief of Staff who, like her boss, was supposed to know nothing about the Salmond investigation, was directing a senior civil servant in the outcome she – and by clear implication, her boss – wanted to achieve regarding the evidence of a potential witness.

And the outcome she wanted for Ms X was one where Mackinnon’s investigation of her evidence was shut down forthwith – “cancel it,” Lloyd says, “by the end of today”.

On 18 March last year, after fragments of the now published messages were made public, Ms X chose to issue a statement through Scottish Government mouthpiece Rape Crisis Scotland. In that statement, she and Liz Lloyd sought to explain this extraordinary intervention by the First Minister’s Chief of Staff in the Salmond investigation process.

(In a twist appreciated by fans of irony, Rape Crisis Scotland sent out an initial version of the statement which unwittingly disclosed Ms X’s identity to all its press recipients, then issued a second, identity-free version and asked all recipients of the first version to destroy it.)

Ms X began by stating that claims of “interference” by Liz Lloyd in the Salmond process were “fundamentally untrue” and that such claims “deliberately misrepresented” the content of the messages.

Well, we’ll go on to the other messages shortly. But let’s just pause here and consider Liz Lloyd’s message all on its own.

She tells Allison in terms what the “best outcome” of this part of Mackinnon’s investigation process should be.

She tells Allison in terms that she wants this part of the investigation cancelled that very day.

And she is the First Minister’s Chief of Staff, with all the power to influence and direct events that the title carries with it.

If that’s not interference in the Salmond investigation, even in the post-truth world of the Scottish Government and Rape Crisis Scotland, then I truly don’t know what is.

The world according to Ms X

Ms X’s public statement continued:

“In January 2018 I was approached by Scottish Government HR regarding an investigation they were undertaking into a complaint about Alex Salmond’s behaviour during his time as First Minister.

“I had been named as someone who experienced such behaviour in statements obtained during the course of HR’s investigation.

“After discussion with HR, I decided I did not in any way wish to share with them my own personal experiences, however I also did not want to obstruct an investigation. I did not know if I was obliged to cooperate after being asked to.

“I decided to raise the matter with a trusted senior person in government, Liz Lloyd, to gain advice and an understanding of my obligations.

“I was extremely conscious of the sensitivity of the investigation and I, therefore, did not tell Liz who the complaint was from, who it was about or the nature of the complaint.”

Let’s pause again there. I’ve expressed my incredulity at this last claim in some detail in a previous post, and if it’s possible, I’m even more incredulous now that we have Lloyd’s full message.

We’re asked to believe that Liz Lloyd, a “trusted” colleague of Ms X, who is self-evidently herself a senior figure in the Scottish Government, was both willing and able to send the message above – with all its particular details of the investigation and its specific mention of corroboration of ongoing complaints – without finding out from Ms X any details at all of what she was getting herself into or checking in any way whether her intervention in this mystery investigation was even remotely appropriate.

If that is true, it would be bad enough and, in any organisation other than the Scottish Government, probably enough in itself to get Liz Lloyd disciplined or sacked, but the merest common sense, and everything that now follows, tells us surely that it just can’t be true.

Ms X’s statement continued:

“I informed her I had been approached by HR in relation to a current investigation. I said I had been asked if I wanted to make a complaint and made it clear to her I did not want to, but I was concerned that if I didn’t I may be impeding an investigation.

“She offered to convey my concerns and what I wanted to happen to an appropriate senior civil servant, who was the most appropriate person to discuss the issue with. I agreed to this course of action. This was not ‘interfering’ but acting in line with my wishes.”

This, then, is the standard of logic and rationality at the uppermost echelons of the Scottish Government. The clearest possible interference by Lloyd in Mackinnon’s investigation – interference specifically labelled as such by Mackinnon herself, as we’ll come to shortly – is not in fact interference, according to Ms X, because it was carried out “in line with my wishes”.

Next time I have a client charged with theft, remind me to tell the court that it can’t be theft because he was only acting in line with his pal’s wishes.

Enter Barbara Allison

Barbara Allison is the senior civil servant to whom Ms X refers in her statement as “the most appropriate person to discuss the issue with”.

Regular readers of this blog will be all too familiar with Allison and her doings but for new readers she’s probably best known in the present context as the former director of HR who was appointed in secret by Leslie Evans in November 2017 to provide “pastoral care” for potential complainers, and as the person to whom Evans sent her infamous text on the day the Salmond judicial review was conceded:

“Thanks Barbara—battle maybe lost but not the war.”

On receiving Lloyd’s message about Ms X on 6 February 2018, Allison forwarded it on to Mackinnon, along with her own message:

“[Ms X] is coming to see me at [time redacted]. What would you want me to tell her? To corroborate info but agree it can not be used in info sent to him? Or should we ‘stand her down’? B x”

Let’s start with the last sentence of the message, and that highly significant use of “we”.

There is simply no ambiguity here. “We” in this context must comprise Allison and Mackinnon at the very least, and I’d say it extends pretty clearly in the context to the whole of Mackinnon’s investigative team, however large or small that may have been.

When Allison asks whether “we” should “stand her down”, she is not – and cannot be – asking the question as a disinterested third party offering pastoral support to Ms X in a process in which she is playing no other part.

Plainly, unambiguously, Allison is positioning herself as part of Mackinnon’s investigative process, and is asking Mackinnon, as a player in that investigative process, what “we” should do.

It is in that unambiguous context that Allison asks Mackinnon her two earlier questions, and makes her own very specific suggestion of what “we” should tell Ms X about how her evidence will be used:

“To corroborate info but agree it can not be used in info sent to him?”

The “him” referred to here is Alex Salmond, the subject of the complaints being investigated, as Ms X was by her own admission well aware.

Given then that the message being discussed – the one directing Allison as to the “best outcome” – had come not from Ms X herself but from Liz Lloyd, and given that, according to Ms X, Lloyd had no idea of the context in which she was seeking that outcome, might we not expect some intimation of that in this message from Allison to Mackinnon?

Might we not expect Allison to try to to ensure that Lloyd continued to be shielded from this highly confidential knowledge in any further action Mackinnon might take or any reply she might make to Lloyd?

At the very least, might we not expect some kind of warning from Allison to Mackinnon of the need to keep from Lloyd and her boss at all costs the identity of “him”, of the nature of the complaints for which Ms X was being asked to “corroborate info”, and of the proposed agreement with Ms X that such “info”, once used, would not be “sent to him”?

Of course, there is no such intimation or warning, because the idea that Lloyd was not already aware of every salient detail of what this process was, and against whom it was being directed, would have been as ludicrous then to Allison and Mackinnon as it is to the rest of us now.

Apart from anything else, they would both surely have assumed, as any rational person would assume, that the First Minister’s Chief of Staff would not be getting involved in such a momentous and sensitive investigation unless both she and her boss were fully aware of what they were asking of Allison and Mackinnon, and the full context in which they were asking it.

That they were aware of this is yet further evidenced by Mackinnon’s response.

What Allison said on oath

Before coming to that, however, let’s pause again to remember what Allison told the Fabiani inquiry, on oath, on 15 September 2020 about her role in the Salmond investigation:

“I had some early contact with the two individuals who ultimately became complainants under the policy for the handling of harassment complaints. Other than that early initial contact, I had no involvement in the investigation.”

And again on 27 October 2020:

“To the extent that it might be relevant to today’s session, although I had early and limited contact with the complainers, I was not involved in the investigation process.”

I’m sure you don’t need me to tell you that this evidence, given on oath, is directly contradicted by the terms of Allison’s own message above.

Contrary to her evidence to the inquiry, Allison was involved in the investigative process long after her “early contact” with the complainers Ms A and Ms B.

What is more, her involvement was not in some trivial matter of procedure or “pastoral care” of a complainer.

As is set out in black and white above, Allison was involved on 6 February 2018 in deciding, along with the Investigating Officer, what “we” should do about a potentially important witness whose evidence the First Minister’s Chief of Staff was overtly seeking to shut down and “cancel”.

In her October session of evidence – a session convened in part so that she could now be allowed to “remember” the “battle maybe lost but not the war” text which she had unaccountably denied ever receiving in her first session of evidence to the inquiry – Allison had the following exchange with MSP Jackie Baillie:

Jackie Baillie:… Have you ever expressed concern, or had concerns expressed to you, about interference by special advisers in the civil service complaints process?

Barbara Allison: Could you ask me that again?

Jackie Baillie: Have you ever expressed concern, or had concerns expressed to you, about interference by special advisers in the civil service complaints process?

Barbara Allison: During the investigation, there was some correspondence between me and some other people about somebody who was perhaps going to give evidence or be a witness. In my pastoral care role, I was asked whether I could offer support at that time. That is probably what you are referring to.

Jackie Baillie: I will leave it there for now. Thank you.

I don’t know what Jackie Baillie was referring to, but I do know it can’t have been Allison’s actions on 6 February 2018, at least if her answer to Baillie was truthful.

Because to describe Allison’s actions on that day as no more nor less than giving “pastoral care” and “support” to “somebody who was perhaps going to give evidence or be a witness” is to give up all belief that the English language actually means anything.

It is, in short, to enter the wacky, black-means-white world of the present Scottish Government.

Mackinnon’s response to Allison

Mackinnon responded to Allison that same day, 6 February 2018, as follows:

“[Ms X] did not tell us she didn’t want to tell her story or participate. She told us she was concerned and needed to consider. Liz interference v bad – promoting a climate that doesn’t encourage people to be supported to speak out. This contradicts the FMs own public statements about sexual harassment and doesn’t allow Perm sec to fulfil her duty of care. Bottom line is we can’t make her talk to us – but at least we needs reason why she won’t. Not for us to stand her down – she needs to decide she’d rather not and tell us. Think we need her to give us on writing that she doesn’t want to take part. Grrr. Jx”

If we were in any doubt about how Mackinnon viewed Lloyd’s extraordinary intervention, that last “sentence” is pretty unmissable:


So let’s unpack the rest.

Mackinnon begins by flatly contradicting Lloyd’s version of Ms X’s meeting with “us” – presumably Mackinnon herself, and one or more other members of her investigative team.

According to Mackinnon, and quite contrary to Lloyd’s message, Ms X did not tell the investigation that she did not want to participate but only that she needed to consider. For this reason, and others to follow:

“Liz interference v bad.”

I don’t often agree with Judith Mackinnon but she’s bang on the money here. It’s outrageous for the First Minister’s Chief of Staff to be interfering in this way with any ongoing HR investigation, let alone the uniquely significant and sensitive Salmond investigation.

Nor is Mackinnon in any doubt that by seeking overtly to shut down this area of Mackinnon’s inquiry, Lloyd is “promoting a climate that doesn’t encourage people to be supported or speak out”.

This is of course the very opposite of what Lloyd and her boss have always proclaimed and continue to proclaim about their motives and actions throughout the whole Salmond business, a point that Mackinnon does not miss either:

“This contradicts the FMs own public statements about sexual harassment and doesn’t allow Perm sec to fulfil her duty of care.”

For me at least, the subtext of this is also quite clear. Mackinnon assumes, as she has every right to assume, that Lloyd would not be taking this extraordinary course if she did not have her boss’s approval for doing so. Hence, it is not just a matter of Lloyd herself behaving improperly but of the “FM” having her own statements contradicted and the “Perm sec” having her duty of care thwarted by the very person charged with acting on the First Minister’s behalf.

So for readers who keep in mind the broader context of this remarkable saga, and who have read some of the other posts on this blog where I go on at length about the determination of the First Minister, her Chief of Staff and her Permanent Secretary to get Alex Salmond, this attempt by two of the three major players to shut down evidence potentially damaging to Salmond will – and should – require to be explained before we continue.

The broader context

In my view, the war fought against Alex Salmond by Nicola Sturgeon and her powerful clique of insiders has to be seen in distinct chapters to be properly understood.

The first relevant chapter for present purposes covers the period of the Mackinnon investigation from January 2018, when Ms A and Ms B made their formal complaints, to August 2018, when Evans issued her report.

For most of that period, the Sturgeon clique had two equally important and mutually compatible goals: (1) to get Salmond via the complaints of Ms A and Ms B; and (2) to keep Sturgeon herself entirely off the record as playing any part whatsoever in what was being done to Salmond with her full knowledge and wholehearted approval.

(Veteran readers might remember that my very first post on this blog detailed the process by which the whole complaints procedure was “recast” on Sturgeon’s behalf in early December 2017, precisely to remove Sturgeon from the central role she had played in previous drafts of that process and thus to insulate her as completely as possible from responsibility on the record for what was being set up for use against Salmond.)

Throughout most of this first chapter, and certainly during February 2018 when the events detailed in this post were taking place, the last thing Sturgeon or Lloyd wanted was for anything to take place on the record in the Mackinnon investigation that would connect the complaints being made in any way to them. Just as important was to make sure that Alex Salmond never got to hear of any such connection, on or off the record.

I’m very limited in what I can say about this for obvious reasons but self-evidently, the involvement of Ms X on the record in the investigation process presented such a danger.

Self-evidently, it was not, and is not, open to the average Scottish Government employee to approach the First Minister’s Chief of Staff for help as Ms X was able to do, nor to secure the kind of extraordinary intervention on her behalf that Ms X was able to command. It’s a mere statement of the obvious that Ms X was not an average Scottish Government employee.

The second relevant chapter begins in August 2018, when Salmond launched his judicial review and extends at least until Salmond was charged by the police in January 2019, within a couple of weeks of winning his judicial review and humiliating the Scottish Government.

During that period, for reasons which I’ve detailed at length elsewhere, getting Salmond at all costs became the only goal, previous concerns about connections of complainers to Sturgeon herself were all but abandoned, the plan to secure anonymity was hatched, and some of the most powerful people in Scotland became Salmond’s accusers.

Ms X was one of the accusers added during that chapter.

Mackinnon’s response to Allison (continued)

Mackinnon’s response to Allison continues:

“Bottom line is we can’t make her talk to us – but at least we needs reason why she won’t. Not for us to stand her down – she needs to decide she’d rather not and tell us. Think we need her to give us on writing that she doesn’t want to take part.”

And then, as we’ve seen, Mackinnon ends with probably the most eloquent comment she ever made on the whole sorry process:


The “bottom line”, as Mackinnon makes clear, is that her investigation is not going to do Lloyd’s bidding and let Ms X off the hook of being responsible for her own decision not to participate.

Further, Mackinnon will not allow Lloyd’s false version of Ms X’s interview on the previous day to stand and will insist on Ms X giving her own reasons in writing for now refusing to co-operate.

Allison’s meeting with Ms X

According to Ms X’s public statement issued in March last year, her meeting with Allison – which, remember was scheduled for 6 February 2018, the same day these messages were exchanged – then took place as follows:

“I then met with the senior civil servant and relayed my extreme apprehension about being involved in the investigation.

“They offered me reassurance that should I decline to cooperate that I would not be impeding the investigation.”

This surely can’t be right. Mackinnon had left Allison in no doubt whatsoever that she disapproved strongly of the behaviour of both Ms X and Liz Lloyd and regarded what they were now seeking to achieve as a contradiction of the First Minister’s own position and even a thwarting of the Permanent Secretary’s duty of care.

The idea that Allison would, that very same day, agree with, and offer “reassurance” about, the very thing that had driven Mackinnon to the point of growling in print, is surely preposterous.

How it ended

There is then a break in the published messages before they resume two days later, on 8 February 2018, with Mackinnon to Allison:

“Still not heard from [Ms X] – so proposing to send her this – As I have not heard further from you in relation to the investigation, I will take that as an indication that you do not wish to engage further with the process. – ok B?”

If there is any truth in Ms X’s version of events above, this would surely then have been the time for Allison to admit to Mackinnon that she had in fact already reassured Ms X that her refusal to cooperate would not impede the investigation and that this was why Mackinnon had not heard further from Ms X.

Allison’s reply was, however, very different: “Can you hold off a bit? Liz is getting me you a number to call her.”

“Will do,” Mackinnon replied.

“Ta. B,” texted Allison. Then, a bit later: “Hi. [redacted] is texting me now with her number apparently. Bx”

And, finally, Mackinnon to Allison: “Standing by. X”

And that’s as much as we know. It’s clear that Lloyd’s extraordinary interference on behalf of Ms X was continuing, and that the conduit for that interference continued to be Allison, who for her part continued to be thoroughly involved in this aspect of the investigation.

But it’s very far from clear why this was happening or what happened next or how the whole matter came to be resolved. Surely, though, this final sentence from Ms X’s statement can’t be all there was to it:

“I conveyed my decision to HR and had no further part in the process.”

And of course this evidence, on oath, from Barbara Allison continues to be as contrary as ever to the facts:

“I had some early contact with the two individuals who ultimately became complainants under the policy for the handling of harassment complaints. Other than that early initial contact, I had no involvement in the investigation.”

What it means

There is much of importance to be drawn from this episode and I hope I’ve made most of it clear in what I’ve written above.

But, at least for me, the overarching meaning of it is the meaning which looms over almost everything I’ve written about the Salmond complaints on this blog.

The episode is just one more piece in the 1,000 piece puzzle that, when fitted together, provides the most compelling evidence that Nicola Sturgeon knew about, wanted, and directed, the campaign to get Alex Salmond, and that she did so from the very start.


I’ve copied the press release below from the Wings Over Scotland website. The selective prosecution of Craig Murray by the Crown Office and Procurator Fiscal Service (COPFS) is another shameful chapter in their history of incompetence and bad faith.

Legal precedent will be set tomorrow as Craig Murray will be the first person to be imprisoned on the charge of jigsaw identification in the UK, and indeed in the entire world. Scotland’s second most senior judge, Lady Dorrian, sentenced Murray to 8 months of incarceration following a contempt of court charge for ‘jigsaw identification’ relating to the trial against Alex Salmond.

In May Lady Dorrian said that in her view Murray had intended to release identities of Salmond’s accusers. Mr Murray has always denied any intent to identify and that anybody was actually identified. Murray had not directly identified any of the accusers in the Salmond trial, but Dorrian argued identification may be possible if his reporting of the case was read in connection with other materials in the public domain.

No one aside from Murray was charged with jigsaw identification in connection with the Salmond case, despite the fact that 81% of respondents in a Panelbase survey who believed that had learned identities, gave mainstream media as the source of their knowledge. Lady Dorrian specifically stated that bloggers and mainstream media should be treated differently, as mainstream media are self-regulated.

Murray is the first person to be imprisoned in the UK for a media contempt for over 50 years, and in Scotland for over 70 years.

Murray’s imprisonment comes after an announcement from the UK Supreme Court that it will not hear his appeal. Former UK Ambassador to Uzbekistan Craig Murray will surrender himself to Police shortly and begin to serve the custodial sentence handed to him. A public protest against Murray’s incarceration is planned. Murray’s wife and mother of their 5 month and 12 year old sons Nadira has written an open letter asking for “active and outspoken solidarity from anyone concerned about the loss of freedom of speech and equality before the law”.

Murray had recently been called as a witness in a case brought by Spanish state prosecutors against UC Global for allegedly acting on behalf of the CIA in covertly spying on Julian Assange in the Ecuadorian Embassy.  Material before the Spanish court includes several hours of covert surveillance video of Murray in private conversation with Assange on the future of Assange and Wikileaks. The Scottish court removed Murray’s passport expressly to prevent him traveling to Spain to testify.

Craig Murray commented:

“I go to jail with a clean conscience after a Kafkaesque trial. I genuinely do not know who I am supposed to have identified or which phrases I published are said to have identified them, in combination with what other information in the public domain. This judgement will have a chilling effect on reporting of the defence case at trials, to the detriment of justice, and the different treatment of bloggers and approved media is sinister.

I carefully protect the identities of the accusers in my reports.

I believe this is actually the state’s long sought revenge for my whistleblowing on security service collusion with torture and my long term collaboration with Wikileaks and other whistleblowers. Unfortunately important free speech issues are collateral damage.”

Murray and the Craig Murray Justice committee have both signalled their intention to continue to resist the penalty handed to him by continuing to appeal to the European Court of Human Rights via all routes required. They are particularly concerned that in her opinion Lady Dorrian implied that bloggers and public commentators like Murray ought to be punished more severely than mainstream journalists for the same offense.

Ellen Joelle Dalzell, coordinator of the Craig Murray Justice campaign group stated:

“The sentence handed to Craig Murray not only sets legal precedent in terms of a custodial sentence for the charge of jigsaw identification, it represents an attack on free speech in general, and a tangible threat to the free reporting of legal trials in particular.

The judgement is excessively punitive, is likely to have severe implications for Murray’s poor health and represents a dangerous precedent for journalists and other writers who seek to fairly report or comment on matters of public law.


Last week my firm sent the following letter to the Lord Advocate, Dorothy Bain, QC:

“We act for Mr Mark Hirst. Please treat this letter as intimation of a claim by him against your staff.

“Mr Hirst was prosecuted for an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 following comments which he made upon the acquittal of former First Minister Mr Alex Salmond. On 07 January 2021 the charges against Mr Hirst were found to be irrelevant, and a no case to answer submission was upheld.

“It is clear that there never was any basis for him being prosecuted, and the prosecution against him lacked reasonable and probable cause both objectively and subjectively. We also maintain that the prosecution was brought maliciously for the following reasons.

“First, it is clear and obvious that there was no reasonable or probable cause. This of itself is instructive in proving malice.

“Second, a warrant was obtained against our client when the primary evidence was plainly available. The warrant application failed to specify the threats that were being made, and was fundamentally misleading to the court. It was disproportionate to obtain a warrant and the application was not framed in a proper manner. It made false allegations about threats being made, which were established to be untrue.

“We are of course aware of the terms of section 170 of the Criminal Procedure (Scotland) Act 1995 which bears to provide immunity from suit for prosecutors when no imprisonment of the accused was imposed. However, having consulted with Senior Counsel, we consider that that provision is incompatible with Article 6 of the European Convention in that it fails to provide a remedy when a wrong is committed.

“Accordingly, our client’s instructions are that we are to place you on notice that we intend challenging the compatibility of section 170 should you fail to admit liability and offer fair compensation.

“Finally, we wish to make clear that this prosecution appears to have been politically motivated. Mr Hirst was, plainly, a supporter of Mr Salmond. We shall of course investigate whether Rape Crisis Scotland were encouraged to make a complaint for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.

“We enclose a copy of a writ that we shall be sending to the Chief Constable which is self explanatory. But prior to service, we would reiterate our demand that you admit liability, and confirm that compensation will be paid to our client, failing which we intend altering the writ to include the Lord Advocate as a second defender.

“Please respond to this letter within 21 days.”

I know that many readers of this blog are interested in Mark’s case and I hope it will be a useful service to you — particularly those of you who are prospective victims of the Crown Office and Procurator Fiscal Service (COPFS), and who are contemplating similar action – for me to unpack the contents of this letter a little.

No reasonable or probable cause

Until very recently, it was thought that the Scottish Lord Advocate and COPFS were immune from being sued for malicious prosecution. This was contrary to the position in England, where it was well established that such action was competent.

Partly because of this belief in absolute immunity, and partly because of the extraordinary degree of political protection which they enjoy, COPFS have, for many years now, been a law wholly unto themselves in Scotland, accountable for all practical purposes to no-one.

And so it may have continued had not COPFS made a major miscalculation. They picked for once on victims who had both the resources and the resolve to fight back, namely the liquidators of the former Rangers FC. When the cases against them ended in utter humiliation for the police and Crown, these men sued for malicious prosecution, and a bench of five judges ruled that COPFS, like everyone else in the land, should at last be held accountable for their wrongdoing.

Subsequent decisions in related proceedings have clarified what will be required for such actions to succeed. The first requirement is that COPFS must have proceeded without “reasonable or probable cause”.

There is both a subjective and an objective element to this.

In a very recent case involving one of the Rangers liquidators, the judge said this of the objective element:

“Where, as here, the charges were dismissed as irrelevant, it seems to me that it will normally be difficult to argue that reasonable and probable cause existed from an objective standpoint. A decision that a charge is irrelevant is a decision that even if the Crown were to prove all of the facts narrated in the indictment, the essentials of the criminal charge are not present. As a general rule, it can hardly be said, on an objective assessment, that there is reasonable and probable cause for initiating and continuing proceedings if a conviction cannot result because the circumstances averred do not, as a matter of law, amount to commission of the offence charged.”

As our letter to the Lord Advocate sets out, these were exactly the circumstances of Mark’s case. The sheriff made quite clear in dismissing the case that all of the facts brought before the court by COPFS did not constitute any crime known to the law of Scotland.

Any such crime existed only in the minds of Mark’s powerful accusers, and of their mouthpiece Rape Crisis Scotland, and had no business at all in entering the minds of the police or COPFS.

So much for the objective element.

The subjective element can be boiled down to this:

Did the then Lord Advocate and his COPFS staff have a reasonable basis for belief that they had reasonable and probable cause to proceed against Mark even although, objectively, they didn’t? (And yes, I know it sounds ridiculous, but welcome to the world of the law and lawyers.)

I can think of only one argument the Crown can make here, namely that the then Lord Advocate and his staff at COPFS had an understanding of the criminal law of Scotland so far below the level of the average first year law student that they genuinely believed that Mark’s political comments on a matter of public interest were a crime.

I wish them good luck in making that argument.

So much, then, for the subjective element.


As our letter suggests, “malice” in this context has a specific legal meaning which bears some relation to its meaning in ordinary usage but is quite far from being the same. In practice, what it means is that some further evidence of bad faith beyond the complete lack of justification for a prosecution should usually be present for “malice” in the legal sense to be established.

In a case like Mark’s, as in the Rangers cases, it’s likely that only a very little more need be shown and, as our letter again indicates, there is in fact a ton more to be had. Here is a paragraph from the writ we’ll be serving on the Chief Constable of Police Scotland, as set out in our letter:

“Further, the bringing of the proceedings by the police amounted to malicious prosecution of the pursuer without that reasonable or probable cause. The police obtained the warrant to search the pursuer’s home on the basis that it appeared that the pursuer had committed an offence. He had not. The police did not produce any information to the Sheriff which would have permitted scrutiny of the application as, had that been done, it would have been obvious that no offence had been committed. It was in any event unnecessary for a warrant to be obtained and it was disproportionate to seek one. As averred above, the police had obtained a copy of the postings in any event. The obtaining of the warrant in such circumstances was oppressive, an abuse of power and unnecessary and indicative of malice.”

In short, we’ll seek to establish that the warrant to search Mark’s home, itself unnecessary in any case, was obtained by the police and COPFS on fictitious grounds. On the basis of that warrant, the police and COPFS, knowing full well what they were doing, seized items which were part of the tools of Mark’s trade as a journalist, thereby depriving him of tools by which he might make his living.

This is far from the only ground on which we’ll seek to demonstrate “malice” – see, for example, my comments below about Rape Crisis Scotland – so suffice it to say that in our submission there will be more than enough COPFS “malice” in what was done to Mark to meet the legal requirement many times over.

Section 170 of the Criminal Procedure (Scotland) Act 1995

The relevant part of this provision is in these terms:

“No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages for or in respect of any proceedings taken, act done, or judgment, decree or sentence pronounced in any summary proceedings under this Act, unless … the person suing has suffered imprisonment in consequence thereof …”

This was a rather extraordinary provision even before the Rangers cases, when it was still thought that the Lord Advocate and COPFS had absolute immunity across the board from civil actions for malicious prosecution. In light of the law as it now stands, the provision is, in my opinion, completely untenable and will inevitably be struck down by Article 6.

There is no reason in law or in common sense why COPFS should be liable in damages for maliciously prosecuting someone who goes to jail as a result but not someone who is, rightly, acquitted of the charges against them. Nor is there any reason why people tried before a jury (in “solemn proceedings”) should be treated differently from those tried by a judge alone (in “summary proceedings”).

On the grounds summarised in our letter, this is a provision which must be challenged, and will be challenged, in Mark’s action. It is a challenge which, if successful, will have obvious and far-reaching consequences.

Senior Counsel

I’ll admit that it goes against the grain for me to instruct senior counsel in any case as I take great pride in arguing all of my cases myself. I’ve been delighted, though, to make an exception for Andrew Smith QC, whose services we’re privileged to have secured for Mark’s case.

Along with a couple of other top QCs, Andrew has been, and continues to be, in the forefront of the successful challenge on COPFS immunity that has made possible the action we’re now taking for Mark. He knows this novel and developing area of Scots law with a thoroughness and grasp of detail that is unrivalled at the Bar.

That in itself is a fact that will in no way be lost on our opponents.

I know that Andrew is relishing what lies ahead and in particular is relishing our challenge to section 170, which will be of obvious significance to all of the activists who have been and are being prosecuted on political grounds by COPFS at the behest of the Scottish Government.

Frankly, there’s no-one I’d rather have on board.

Political Motives: Rape Crisis Scotland

The following paragraph is taken from the writ prepared by Andrew and which we’ll be serving on the Chief Constable of Police Scotland in due course, as set out in our letter above.

“On 31 March 2020, STV News posted an article online quoting Sandy Brindley of Rape Crisis Scotland (a Scottish Government funded pressure group) stating that ‘the comments [of the pursuer] are sinister, threatening and to identify the women would be illegal.’ On 02 April 2020, the Daily Record, a tabloid newspaper distributed mostly in central Scotland, alleged that the complainers in the case against Alex Salmond had made a complaint to the police about the pursuer’s post. On 02 April 2020, the pursuer contacted the police to advise that he had heard that the police had received a complaint and he offered to cooperate.”

Remember when reading this that Mark’s accusers – which is to say, Alex Salmond’s accusers – include in their number some of the most powerful people in Scotland.

Remember that Alex Salmond was nonetheless acquitted of all of the charges brought by these powerful accusers by a jury of his peers and on the clearest possible evidence that he was innocent.

And remember what some of the charges brought by these powerful accusers in the High Court of Justiciary – the highest criminal court in the land, where only the most serious crimes are supposed to be prosecuted – actually were:

Touching someone’s leg over her clothing in a car (witnessed by none of the other persons present in the car, including the person’s spouse);

Touching someone’s arms and hips over her clothing and congratulating her that she had lost weight while in a nightclub and in the presence of numerous other people (but again, it seems, witnessed by no-one else present);

Touching someone’s buttock over her clothing during a public photo-shoot (again, witnessed by none of the numerous other people present at the event).

Think of any ordinary person – or Rape Crisis Scotland itself, for that matter – trying to persuade the police even to investigate such allegations, let alone persuading COPFS to prosecute them in the highest court in the land, and you’ll get an idea of just how powerful these accusers are, and just how much of a mouthpiece for them Rape Crisis Scotland, the police and COPFS have become.

Hopefully, you’ll get an idea too of why this is an area which we intend to pursue in detail with the court by way of establishing yet more of the extra elements of bad faith which constitute the clearest possible “malice”.

The Scottish Government’s patronage and control of organisations like Rape Crisis Scotland – and the prominent presence in such organisations of Sturgeon’s personal clique of zealots – goes way wider than Mark’s case, as everyone who has been following their disgraceful attacks on the rights of Scottish women will be all too well aware.

21 days

The period of 21 days for the Lord Advocate to respond to our letter runs out on 12 August 2021.

I’ll let you know what happens next.

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