The Scottish Crown Office and Procurator Fiscal Service (COPFS) appear now to be claiming that material disclosed by them to Alex Salmond’s lawyers cannot be further disclosed by Salmond’s lawyers to the inquiry without a criminal offence being committed.
I know from personal experience that any such claim is false. It is entirely within the discretion of COPFS to authorise Salmond’s lawyers to provide the material to the inquiry or to provide it to the inquiry themselves.
Here’s how I know.
The COPFS material
It is clear that material has been disclosed by COPFS to Alex Salmond’s lawyers which is relevant to the claim of a conspiracy against him and relevant also to the claim that this conspiracy underlies, among other things, the unlawful action taken against Salmond by the Scottish Government.
WhatsApp messages leaked anonymously to Kenny MacAskill MP — sent originally, it seems, by SNP Chief Executive Peter Murrell, and saying that “the more fronts [Salmond] is having to firefight on the better for all complainers” — are said to form part of this material. It has also been reported that messages about Salmond were exchanged among the members of an SNP WhatsApp group which was co-ordinated by a senior SNP official, and that these messages were referred to during a preliminary hearing in Salmond’s criminal trial. These messages too are said to form part of the COPFS material.
There can be little doubt that this material is relevant to the remit of the Salmond inquiry and requires to be disclosed to it before Salmond, Murrell, Sturgeon or anyone else can meaningfully give their evidence and be examined on that evidence.
It remains puzzling that such obvious facts are not self-evident to everyone.
The COPFS claim to secrecy
It is worth setting out what Salmond’s lawyers said about the COPFS material in their letter to the inquiry of 21 September 2020:
“The Crown have reminded us in the strongest terms of the legal restrictions which we have referred to in our correspondence to date. The crown identify that it would constitute a criminal offence for us to release certain material obtained as part of the disclosure in the trial. Both our client and we absolutely have no alternative but to respect that obligation. That is precisely why we have previously suggested that the Committee raise the recovery of that documentation with … Crown Office, whom we do not believe are subject to the same restrictions. They may, of course, take a different view, but it will be for them to explain that to the committee.”
The provisions on which COPFS have evidently relied in their letter to Salmond’s lawyers are sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010 (the Act) which provide that material disclosed to an accused by COPFS for a criminal trial must not be used or further disclosed for any other purpose, and that to do so is a criminal offence.
Apparently, COPFS are taking the view that there is no way round these provisions. That view is simply wrong, and Salmond’s lawyers are entirely justified in urging the inquiry to pursue disclosure directly with COPFS.
COPFS disclosure in Sheridan v NGN
In late 2015, after years of unremitting slog in the face of the bureaucracy, incompetence, bad faith and utter lack of accountability which defence lawyers know to be the hallmark of COPFS practice generally, and COPFS disclosure in particular, I finally had disclosed to me a good deal of material which was helpful in pursuing Tommy Sheridan’s application to the Scottish Criminal Cases Review Commission.
I was also at that time preparing Tommy’s defence of the appeal by News Group Newspapers Ltd, in which NGN sought a new civil trial for Tommy’s defamation action, which he had won in 2006 and for which he had been awarded record damages.
The disclosure I had prised eventually from the iron grip of COPFS had been given on the usual basis that it was information which would “materially weaken or undermine” the prosecution case or would “materially strengthen” the defence case. Just as Alex Salmond’s lawyers are, I was bound by the terms of sections 162 and 163 of the Act when it came to using that information.
So, knowing that the COPFS material was highly relevant not just to the criminal appeal but to the NGN civil appeal, I wrote to COPFS on 19 November 2015 to ask them for authorisation to use the material in the civil proceedings.
I should say that, as looks likely to be the case with the COPFS material in the Salmond case, this material was dynamite. The documents wrested from COPFS showed, among many other things, that News of the World Editor Andy Coulson and Scottish Editor Bob Bird had conspired with various others to pervert the course of justice in Tommy’s 2006 civil trial by sending their star witness abroad to prevent her being recalled, for fear that she might now tell the truth, and that NGN had hacked Tommy’s phone.
On 16 December 2015, COPFS replied to my request to be allowed to use the material in the civil case and again it is, I think, worth setting out their reply:
“Crown Counsel has now considered your request in detail and has instructed that your client be asked to obtain a court order for the material requested. As civil litigation is ongoing it would be possible for your client to make a motion for specification of documents as part of the commission and diligence process, which motion will not be opposed by the Crown.
“On presentation of this order, the Crown will not re-disclose the material already in your possession however this will permit you to simply re-use the material you already have.”
This letter was put before three judges in the Inner House of the Court of Session at the next hearing of the civil case. Their reaction to the COPFS proposal gave strong encouragement to the belief that the proposal comprised a lot of faffing around to achieve something that for all practical purposes had already been achieved. The material – many hundreds of pages of it – was then simply lodged with the court in eight lever arch files.
No objection was made to this by COPFS, and the court’s eventual judgment in the case, delivered by Lady Paton on 19 August 2016, made clear that the court had no problem with it either:
“The pursuer made an application to the Scottish Criminal Cases Review Commission seeking to have his perjury conviction re-investigated and referred to the High Court of Justiciary with a view to having the conviction quashed. The application was supported by documents concerning the activities of the News of the World. Many of the documents had been disclosed to the pursuer by the Crown Office after being recovered by police operations. The pursuer lodged many of those documents in the present civil proceedings, in his Appendix A to H.”
A good few of those many documents concerned NGN’s star witness, and her News of the World story for which Tommy sued, a story nicely summarised by the court as “a totally fabricated account involving, inter alia, bondage, spiked heels, orgies, and whipping.” The provenance of the documents concerning that witness as part of COPFS disclosure could hardly have been clearer, as when Lady Paton narrated how, in Tommy’s arguments,
“[r]eference was made to what appeared to be a witness statement given by [the witness] dated 9 August 2011 taken by DC Cath Murphy … in which [the witness] was noted as stating …
“’Basically the evidence I gave at Tommy Sheridan’s defamation case in 2006 was untrue. I can’t tell you how sorry I am about it, it has completely screwed up my life. I got sucked into it & couldn’t get out of it, it didn’t matter what I said, it didn’t matter to the News of the World that while I was ‘in their care’ I’d tried to commit suicide three times. I felt like I was owned by the News of the World & they’d taken over my life. I’m not proud of what I’ve done, I felt like I had my back against the wall & had to do what they said … I now want to tell the truth …’”
Further, Lady Paton continued, a “persuasive argument” had been presented to the court, “based on material in the defenders’ own records” and such that it was “difficult to see what answer there might be to some of the allegations made”. These included the sending of the star witness to Dubai to prevent her being recalled to give further evidence and material “apparently showing a pattern of phone-tapping, which was said to have allowed the defenders to identify and trace people with whom the pursuer had private contact, with a view to compelling them to give evidence against him”. It was, the judge repeated, “far from clear what answer, if any, there could be” to these allegations.
NGN’s appeal was refused and Tommy kept his damages.
A wee coda
I can’t resist adding that, having endured many years of indignant denials by NGN’s lawyers that their clients were criminals, I finally had the rare and pleasant experience of having Roddy Dunlop QC (who acted for the Scottish Government in the Salmond judicial review, and is now Dean of the Faculty of Advocates, and who was then acting for NGN) interrupt me during a court hearing to make make just that admission.
The interruption came at a subsequent hearing in the Sheridan case before the original trial judge, Lord Turnbull, on 3 November 2017 as I was once again laying out for the court how NGN and its employees had hacked Tommy’s phone and conspired to pervert the course of justice in the civil trial.
“My Lord,” sighed Mr Dunlop, rising from his seat with all the veteran weariness he could muster, “I say this to assist my learned friend and to help this case progress — it can be taken as read that [the star witness] was spirited away and that Mr Sheridan’s phone was the subject of phone hacking. You are free to make of that as you will.”
It was truly a moment to be savoured.
Just another fig-leaf
But back to the Salmond inquiry.
Notwithstanding anything the Act says about the strictly limited use to which COPFS disclosure to an accused can be put, or the criminal consequences that can follow if it is used for other purposes, COPFS clearly believe that they have discretion to allow disclosed material to be used for other purposes by an accused or former accused.
That belief has been sanctioned by the highest court in Scotland in Sheridan v News Group Newspapers Ltd  CSIH 67.
It is therefore false to claim or imply that COPFS are precluded by statute from authorising Alex Salmond’s lawyers to release to the inquiry the material which was disclosed to them for the criminal case. That is precisely what COPFS authorised, and what the court sanctioned, in the Sheridan case.
If there are other reasons why such authorisation should not be given, and why both the inquiry and the public should not be told what was said and done by Peter Murrell and others in these WhatsApp messages, COPFS should state, fully and clearly, what those reasons are.
As things stand, the threatening letter they have sent to Alex Salmond’s lawyers looks like just another fig-leaf in an ongoing cover-up.