In an encouraging display of backbone, the Convenor of the Salmond inquiry has written to the Lord Advocate pointing out that if Barbara Allison and the Scottish Government can use COPFS as their own private data store, then maybe it’s time the Lord Advocate provided the same service for the inquiry.
As the Convenor points out — with commendable understatement — in her letter, the provision to Allison of copies of the text messages she had requested “demonstrates that there may be material held by the Crown Office and Procurator Fiscal Service which is relevant to the Committee’s remit”.
The inquiry is therefore seeking from COPFS “any information, for example communications between officials, related to the conduct of the judicial review and the Scottish Government’s decision to concede”.
The Convenor has made it clear in her letter that the inquiry “will treat all information in accordance with the relevant court orders and data protection law” so there is not the slightest excuse for COPFS to substitute their own definition of what is “related” to the inquiry’s remit for the view of the inquiry. They should simply turn over all of the material they hold in which officials and politicians discuss the complaints made against Salmond before, during and after the judicial review, and leave it for the inquiry to decide what parts of it are “related” to the inquiry’s remit.
No other witness gets to decide what is and isn’t relevant to the inquiry’s remit and nor should COPFS. It is outrageous that Salmond’s lawyers have been threatened with criminal prosecution simply for trying to provide the inquiry with vital evidence that COPFS are withholding. It becomes almost laughable when that same institution provides exactly that information to a witness who has, on behalf of the Scottish Government, given false information on oath to the inquiry and is trying desperately to dig herself out of the hole she has dug for herself and for the Government.
If that is not bias that would be apparent to any reasonable observer then the concept of “apparent bias” ceases to have any useful meaning. It is apparent bias that must be redressed immediately by full cooperation with the inquiry’s request, which means full disclosure to the inquiry of all of the material which Salmond’s lawyers have identified as relevant and which COPFS have continued to withhold (with the exception of the Allison texts, of course, which were a central part of that withheld material but magically became disclosable the moment a Scottish Government witness asked for them).
We have had endless evidence before the inquiry to date which has been “relevant” to the inquiry’s remit only by the widest and most generous possible interpretation of that remit. That goes with the territory in proceedings of this kind. If some of what must now be disclosed by COPFS falls into that category then it can be disregarded or distinguished by the inquiry, along with the mountains of other irrelevant evidence already heard, when the inquiry comes to make its findings and publish its report.
But it is not for COPFS to make that decision. It is for COPFS now to stop obstructing justice and start facilitating it.
Here, then, is a brief reminder of what is already in the public domain, and of why that is likely to be the merest tip of the iceberg of what is relevant to the conduct of the Scottish Government, its First Minister, its politicians and its officials in relation to the Salmond investigation and judicial review.
The tip of the iceberg
The defence submissions at the preliminary hearings prior to Alex Salmond’s criminal trial were widely reported in the mainstream Scottish press in March this year after Salmond was acquitted of all of the charges against him. The Scottish Government’s unlawful conduct and subsequent humiliation at judicial review were central to almost all of those submissions. Further revelations since then have only confirmed that the judicial review proceedings, and the reaction of the Scottish Government to the loss of that “battle”, lie at the heart of the war that followed.
At preliminary hearings prior to his trial, Salmond’s defence team argued that the charges, which came just over a fortnight after he won the judicial review, were the result of concerted efforts by the First Minister’s inner circle to deflect public attention away from the disastrous outcome of the court case. They argued that the claims against him were whipped up as a form of reprisal, and to distract from the debacle of the judicial review.
Salmond’s lead counsel Gordon Jackson QC submitted that senior Scottish Government figures were furious when Salmond won the judicial review. They wanted to ensure that he was “totally discredited”. The criminal investigation had been encouraged “because of what happened in the other process”.
It was in this context that Jackson quoted the text from Leslie Evans to an “unnamed person” which read:
“We may lose the battle but we will win the war.”
Unless Evans sent more than one such message, it now appears that the actual message was the slightly different one which Barbara Allison has now revealed as having been sent to her on the day the judicial review was conceded in court:
“… [B]attle maybe lost but not the war….”
Jackson then went on to outline how the “war” to recover from the “disaster” was fought. He submitted that the judicial review defeat had been a “pretty serious scandal” and that “people were extremely nervous” about the outcome. He advised the court that a “huge amount of material” had been obtained from a phone which had been in the possession of Sue Ruddick, the chief operating officer of the SNP, which contained “many hundreds of texts”.
One of those texts had come from an SNP politician who became one of Salmond’s accusers in the criminal trial. The politician had texted Ruddick to say they were “currently convening [their] SPADs [Special Advisors] for a council of war”.
Jackson submitted further that a senior Scottish Government employee was a “prime mover” in the campaign to divert public attention away from the disaster of the judicial review. She herself became another of Salmond’s accusers in the criminal trial and she “encouraged others to make false complaints” to the police.
Jackson read out a text in which the SNP politician who spoke of convening the “council of war” had said of this senior Scottish Government employee: “Jeez, think [she] is in trouble. S isn’t going to stop until he gets her and he’s bringing down Nicola on the way.”
Jackson submitted that the text showed “real personal motivation” on the part of this “prime mover” to target Salmond because of the failure of the judicial review process, which had made her own employment “shaky”. More generally, he submitted that, fearing for the future of the Government, and for their own personal positions, those closest to Nicola Sturgeon perceived themselves to be at war with Salmond.
Jackson sought to produce these texts in the trial as part of a series which, he submitted, showed that the Scottish Government had orchestrated the criminal prosecution to discredit Salmond and that the “prime mover” was “very much at the centre of driving this”. This request was denied by the court.
Salmond himself then developed this theme in his own evidence when he said of the “prime mover” that she had “exaggerated” her own claims, “just as she encouraged at least five people to exaggerate or make up claims against me.”
In his closing speech to the jury, Jackson told them that the “prime mover” had contacted at least four of the criminal trial accusers, all of them serving or former officials, before Salmond was charged. A WhatsApp group was used for this. A fifth accuser, a senior politician, had refused to take part in those conversations because she felt it was inappropriate.
A further message was also read out during the trial from one of Salmond’s accusers to another. She wrote that she had been “mulling” the “AS stuff”, adding “I have a plan and means we can be anonymous but see strong repercussions.”
The accuser who sent that message had earlier contacted the SNP compliance officer Ian McCann on the subject of making an anonymous complaint about Salmond, having decided to do so in “the October/November 2017 period”. She got a reply from McCann which said: “We’ll sit on that and hope we never need to deploy it.”
In her evidence at the trial, this accuser said of her complaint to the SNP: “I wanted it to be known in the party so it could become a vetting issue and they could deal with it at whatever stage they saw fit.”
In other words, the accuser said that the complaint was made for the purpose of trying to prevent Salmond from getting through vetting for any future political comeback. McCann’s reply confirms that the complaint was being held by SNP officials for precisely that purpose.
More recently, former Justice Minister Kenny MacAskill made public further copies of texts which he said were sent to him anonymously, which bore to be texts from SNP chief executive officer Peter Murrell to Sue Ruddick.
After some delay Peter Murrell, who also happens to be Nicola Sturgeon’s husband, admitted that he did indeed send the texts to Sue Ruddick.
It seems that the texts were sent the day after Salmond was charged, and that they formed part of the series that Jackson had tried, and failed, to have put before the jury at Salmond’s trial.
The first message stated:
“Totally agree folk should be asking the police questions … report now with the PF on charges which leaves police twiddling their thumbs. So good time to be pressurising them. Would be good to know Met looking at events in London.”
The Metropolitan Police had indeed been passed information in January 2019 linked to the investigation in Scotland and it is clear that this is what Murrell was referring to.
The second message stated:
“TBH the more fronts he is having to firefight on the better for all complainers, so CPS action would be a good thing.”
The reference here is to the English Crown Prosecution Service which, in the event, took no action on the information which had been passed to the English police.
Perhaps it’s just my own background in literary analysis but I detect a recurring theme here: “battle”, “war”, “council of war”, “firefight” …
All of the documents referred to above, and the “hundreds of texts” of which a good number of them seem to be a part, must now be disclosed to the inquiry, along with all other relevant material held by the Crown.
The conflicted role of the Lord Advocate
How, then, will this happen?
In what seasoned watchers of the Salmond inquiry will recognise as a familiar move, the Lord Advocate “recused” himself from an active part in the criminal proceedings against Salmond.
Just what that actually means, and what possible reassurance we are supposed to draw from it, I truly don’t know.
The fact is that the constitutional position of the Lord Advocate in Scotland is utterly untenable. He is a Minister in the Scottish Government who attends and participates in Cabinet meetings and gives the Government secret and confidential legal advice and he is the head prosecutor of crimes, including, whenever necessary, the crimes of Scottish Government officials and politicians.
As such he is, so we are told, entirely independent and free of any Scottish Government influence when he acts as the head of the prosecution service .
If you can do the doublethink required to balance out that contradiction as acceptable in your head you can probably believe that the “Chinese walls” in the City of London really do keep us safe from any insider trading by the barrow-boys who work there.
The very fact that the present incumbent should think it necessary to make the utterly empty gesture of “recusing” himself in the Salmond prosecution points up how obviously conflicted his institutional roles are.
Because the problem is not, of course, personal. It is institutional.
But what we need now from the Lord Advocate (or whoever is in charge at COPFS if the boss is still “recused”) is some demonstration that he can somehow rise above this institutional conflict and, in the oft-repeated words of his boss, “do the right thing”.