NOTE: I’ve edited this post after reviewing the legal advice published by the Scottish Government, as it contained some inaccuracies, for which my apologies. I’m afraid this will also delay the next post a little longer. Apologies for that too.
GD 12/03/21
Part Three of A Very Scottish Coup is nearly done and I’ll post it soon. In the meantime, here are a couple of things I’ve discovered while writing it.
The first thing is this:
The Scottish Government have always claimed that the requirement in their procedure for an Investigating Officer to have “no prior involvement with any aspect of the matter being raised” was interpreted by them throughout the development of the procedure to mean “no prior involvement in the subject matter of the complaint”.
They have always denied having the slightest inkling that the phrase could, and would, be interpreted by the courts to mean “no prior knowledge of the details of the case”.
The Scottish Government’s unique interpretation of the phrase is of course what enabled Judith Mackinnon – who had prior knowledge of the complaints against Alex Salmond coming out of her ears – to be appointed as Investigating Officer for those complaints on 16 and 24 January 2018.
I can tell you now that, as at 12 December 2017, the Scottish Government were in fact well aware of the proper interpretation of this crucial phrase in the procedure being developed by them.
Their claims that they didn’t know what their own policy actually meant are just more lies, and in what follows, I’ll tell you why.
The second thing is this:
The Scottish Government officials instructing the defence of the judicial review were well aware from the outset that Judith Mackinnon had prior knowledge of the Salmond complaints such as to make the whole procedure unlawful from the moment she was appointed.
They were well aware that her prior knowledge of the details of the complaints extended not only to receiving Ms A’s full statement on 22 November 2017, and to meeting personally with Ms A on 5 December 2017 to discuss her complaint, but also to taking Ms B’s complaint directly from Ms B prior to being appointed Investigating Officer of that complaint.
Mackinnon’s unlawful meeting with Ms A
On a date redacted by the Scottish Government, Judith Mackinnon sent Ms A a letter which she signed as “Investigating Officer” and which began:
“We met on [Redacted] to discuss your experience about the alleged misconduct of a former minister. Following this meeting you submitted a formal written complaint to Nicola Richards, Head of People Directorate. … I have been designated as the investigating officer” (my emphasis).
I have no idea what legitimate reason there could possibly be for redacting the date on this letter. It seems likely, however, that the letter was sent immediately after Mackinnon was appointed Investigating Officer on 16 January 2018, the same day that Ms A lodged her formal complaint.
It also seems likely that the redacted date of her meeting with Ms A prior to the lodging of her formal complaint was also 16 January 2018, since it was the eventual discovery of a meeting between Mackinnon and Ms A on that date that so horrified external counsel.
When Judith Mackinnon then gave evidence on oath at the Court of Session in December 2018 that she could not remember this meeting, counsel’s horror turned to barely concealed anger.
If I’m right that the meeting referred to in Mackinnon’s redacted letter is the meeting of 16 January 2018 that she cannot now remember, this is a truly remarkable failure of memory, even by Scottish Government standards.
Imagine if you can writing in a formal letter about a clearly important meeting that has just taken place in January 2018 and then being unable to remember even having that meeting, far less the details of it, later that same year. Imagine further that the other person at the meeting cannot remember it either or, for some reason that we can only again imagine, cannot be asked about it.
If you can’t imagine how any of this could be possible then join the club, because I can’t either.
What is clear is that all of Mackinnon’s prior contact and meetings with Ms A rendered her subsequent appointment as Investigating Officer wholly unlawful on that ground alone.
Mackinnon’s unlawful meeting with Ms B
The text messages between Mackinnon and Ms B which have been disclosed by the Scottish Government to the inquiry are, as usual, redacted and again for no legitimate reason that I can think of, even the dates of them have been redacted.
However, the contents of the messages make clear that they were exchanged prior to the lodging of Ms B’s formal complaint on 24 January 2018. The context makes it similarly likely that the exchanges occurred after Mackinnon and Richards met with Ms A on 5 December 2017.
On a redacted date, then, Mackinnon texts Ms B:
“[Ms B] – just checking if you got my email on Friday? Judith”
Ms B replies:
“Hi Judith, yes sorry i did. [Redacted] I’m still having a think about it if that’s ok, but will come back to you later today. Thanks for all your help with this, [Ms B]”
Mackinnon texts back:
“No problem [Ms B]. And no rush either – was thinking that maybe you take time over Christmas and come back to me in January? Judith”
In the format released by the Scottish Government, that same exchange then appears to continue, but again the content of the messages indicates that we are now at a later time period, and very likely one close to the date of the lodging of Ms B’s formal complaint on 24 January 2018.
Mackinnon now texts to Ms B:
“[Ms B] Nicky Richards has let me know that you have decided to make a formal complaint. In order to discuss the logistics it would be good to talk. Can you advise when you would be free for a telephone conversation? Best wishes in the meantime, Judith Mackinnon, SG”
There follows some to-ing and fro-ing about times to call, which ends with Ms B texting:
“Thanks Judith, speak to you tomorrow. [Ms B]”
And then, with the usual redaction of the date:
“[Ms B] – we are [Redacted] currently at [Redacted] See you soon. Judith”
Who “we” might be can only be guessed at, but it’s clear that Mackinnon and Ms B were about to meet on the day that text was sent.
And so, unless there was a yet further meeting between the two that has not been disclosed, these texts must have been exchanged on 24 January 2018, and the meeting must have been for the express purpose of Mackinnon herself taking Ms B’s complaint.
We know this because of this one-sentence email, sent by Mackinnon herself to Nicola Richards on 19 October 2018:
“[Ms B] raised her complaint directly with me.”
As with Ms A, it’s quite clear that all of Mackinnon’s prior contact and meetings with Ms B rendered her subsequent appointment as Investigating Officer wholly unlawful on that ground alone.
What those instructing the judicial review defence knew and when
As I’ve detailed in previous posts, Leslie Evans knew from the very start that Mackinnon had been provided with a copy of the full statement taken from Ms A on 22 November 2017 – the statement which, with only minor revisions, later became Ms A’s formal complaint – because Richards and Mackinnon advised her of that fact, in writing, on 23 November 2017.
Evans knew from the very start that Mackinnon had then met with Ms A on 5 December 2017 because Evans personally directed Mackinnon to have that meeting.
And Evans must also have known from the very start that Mackinnon had met Ms A again prior to lodging her formal complaint on 16 January 2018 because, as is detailed above, Mackinnon had referred to that meeting in her formal letter to Ms A immediately after she was appointed Investigating Officer of Ms A’s complaint, and that letter must have formed part of Mackinnon’s report to Evans.
What is also now clear is that Evans must have known by October 2018 at latest that Mackinnon herself had taken Ms B’s complaint directly.
And matters go further, because forwarded with Mackinnon’s email of 19 October 2018 is an email exchange which shows still further the nature and extent of her involvement with Ms B before any formal complaint was lodged.
On a date which has been redacted, Mackinnon emails Ms B to thank her for “talking to me”. She then sets out various options to progress a formal complaint, and, by way of encouragement, advises that “there may be other individuals who are also prepared to submit a complaint” (my emphasis).
Ms B replies, on a date also redacted:
“Dear Judith,
“As discussed, I have decided to make a formal complaint but would not like my name to be attached to this.
“Sorry this is a bit of a ramble.
“Happy to discuss anything in more detail but will wait to hear back from you about [Redacted].
“Many Thanks
[Ms B]”
The information in this exchange and the later confirmation from Mackinnon that Ms B had “raised her complaint directly with me” could hardly be more significant as evidence of Mackinnon’s improper interactions with Ms B.
But of course it’s inconceivable that this was the only such email sent at this stage, and sent what’s more on the very clear understanding that it would be passed on to external counsel.
So where is Richards’s email forwarding on in turn, and in full, this important information from Mackinnon to whomever had asked her for it?
And where are all the other emails in September and October and November and December 2018 from all the other participants who, like Mackinnon, must have been forwarding on relevant information as it was requested of them by Evans and her accomplices?
They’re buried of course – shredded for all we know, since nothing can be put past this lot – and, if it’s left up to the hopeless Fabiani inquiry and the incompetent Scottish media, buried is where they’ll stay.
How the Scottish Government knew in December 2017 that Mackinnon could not lawfully serve as Investigating Officer
Which brings me back finally to where I started: what the Scottish Government knew about their unlawful procedure, and when they knew it.
In their Statement to the Fabiani inquiry, the Scottish Government were keen to emphasise the significance of guidance produced by the UK Government Civil Service Employee Policy team (CSEP), a high-powered unit located in the UK Cabinet Office whose specific job it is to provide authoritative HR advice to the whole of the UK civil service.
As the Scottish Government are at pains to note in their Statement, their civil service officials:
“… received a draft copy of guidance on handling of historic allegations of harassment developed by the UK Government Civil Service Policy team on 17 November and a later copy with Frequently Asked Questions (FAQ) on 12 December during the development of the procedure.”
It seems that their reason for focusing on these documents is the highly dubious – in fact, laughable – claim that the documents illustrate some superiority of the Scottish Government over the UK Government because we ended up with an unlawful procedure that has by now cost us well into the millions and the UK Government didn’t:
“The lack of a published process for handling complaints about current or former Ministers in the UK Government confirmed to the Scottish Government that it had been the correct course of action to have started to develop its own procedure.”
However, on the way to making this hilarious claim, the Statement does – probably by accident – manage to say some true and important stuff about the CSEP documents, namely the guidance they contain that:
“… in complex and sensitive cases of historical allegations, it is advisable to appoint either an experienced investigator or refer the case to the HR Director, who may handle the investigation within HR.”
Of course, the Scottish Government neglect to point out that this advice is intended to cover historical allegations made by one serving civil servant against another, and says nothing at all about such allegations against a former Minister, but let that pass. The important point for present purposes is that, out of all of the guidance on which they might have chosen to hang their hats, the Scottish Government chose to quote specifically from these CSEP documents, and in particular, from Answer 23 of the CSEP “Frequently Asked Questions”:
“In complex and sensitive cases of historical allegations, it is advisable to appoint either an experienced investigator or refer the case to the HR Director, who may handle the investigation within HR. If such cases involve a senior member of staff…, departments may want to go outside their own department to ensure somebody appropriately senior and independent is appointed” (my emphasis).
Question 23, which the above paragraph partly answers, is in the following terms:
“Who should handle investigations and what training is available for investigators?”
I wouldn’t dispute for a moment that an authoritative civil service “FAQ” document which asked and answered that question should be given this level of prominence by the Scottish Government, especially since it’s clear that the “FAQ” was received and read by Nicola Richards and Judith Mackinnon, exactly as the Scottish Government Statement are at pains to aver.
The “FAQ” was received by Richards as an email attachment on 12 December 2017 and sent on by her to Mackinnon and others that same day under subject heading “Guidance on handling allegation of harassment FAQ”. We know that Richards, Mackinnon, Evans and others read it thoroughly because it is given such significance in the Scottish Government’s own Statement to the inquiry.
So in the context of the procedure for handling harassment complaints which Richards and Mackinnon were at the very heart of developing at exactly the time the guidance was received it is simply inconceivable that they did not read and understand the most important sentence in Answer 23:
“In every case, the investigator will need to be impartial, and have no prior knowledge of the details of the case.”
Let me repeat that: no prior knowledge of the details of the case.
I’ve written before on this blog about how basic this principle is and how utterly untenable it is for anyone, let alone an experienced HR professional or lawyer, to try to argue, as the Scottish Government still try to argue, that the phrase “no prior involvement” was thought by them to mean no prior involvement as a participant in, or witness to, the actual events comprising the complaint.
As Jerry Seinfeld once said, dry-cleaners should hardly need the Dry-Cleaner’s Code to tell them not to wear your clothes, and Evans, Richards and Mackinnon shouldn’t have needed Answer 23 to tell them that “no prior involvement” means – and only means – no prior knowledge of the details of the case.
But as it happens, we now have Answer 23 too.
And it is therefore beyond a shadow of a doubt that Evans, Richards, Mackinnon and the whole Scottish Government were made aware on 12 December 2017 at the very latest that appointing Mackinnon to the role of Investigating Officer would be unlawful.
As we know, and as external counsel found out many months too late, they went ahead and did it anyway.
In some other Scotland, one where laws and rules actually meant something, someone would have had to resign for that by now.
Gordon Dangerfield 
Can someone tell me who these A & B are in the betties of the criminal trial.
I have read tat they aren’t allocated the same lettering system.
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I’ve been fighting shy of doing it, anandprasad, not because I can see any danger of jigsaw identification in it myself but because the mainstream media (with the exception of Dani Garavelli) have not done it, and I’m a suspicious type.
I’m now going to trust my own judgment, however, and tell you — as Dani Garavelli has already told all of her readers — that Ms A became Woman F and Ms B became Woman K in the criminal trial.
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Thanks Gordon. You really are an inspiration.
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Gordon, what your forensic tour de force shows is that, even with its clear and obvious flaws, the Scots judiciary needs to be conducting an enquiry into this whole fiasco.To have the Fabiani inquiry and its unqualified, limp committee members, constrained by its narrow and limited scope trying to shine light into the dark recesses has been a waste of time.
Dressing up the enquiry with the trappings of due legal process, for example, by requiring the witnesses to give their evidence under oath or requiring disclosure of all relevant documentation and correspondence gives it a legitimacy to which it is not entitled. That witnesses, who have access to their written statements, are incapable of remembering crucial and important dates and events and who have to submit corrective written evidence, often weeks after their oral evidence, without any sanction, is truly appalling. As is the repeated conduct of the SG in failing to disclose and then redacting, quite unnecessarily, evidence.
The coaching of SG and CO witnesses by paid advisors is not even raised by the Committee as a possible issue. That the committee is designed to fail to find any actionable wrongdoing by anyone in the SG, is clear. I suspect that lawyers and journalists who seek to expose the truth here will soon face their own Salmond-like travesties of justice.
But we must continue to try and let sunlight into this darkness. So long as there remain skilled, articulate, principled lawyers, journalists and bloggers of your ilk, there remains some hope. We owe you all huge debt of gratitude. Of all the graces, in my view, courage is the noblest.
I await your further disclosures with not a little trepidation. These are bleak times ahead.
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Ingwe, your comments are as usual right on the money — especially the generous praise, for which many thanks as always!
I know you’re very familiar with the English system, which I’ve become a bit better acquainted with myself since doing a number of phone hacking and privacy cases under English rules of procedure — and hooray for conditional fee agreements!
After years of defending the Scottish system where we don’t as a rule have written witness statements (although that is changing ad hoc in the commercial court) I’m now a complete convert to the English system where witnesses are obliged to cover in pre-submitted statements all of the stuff the SG witnesses have gotten away with in the inquiry’s oral hearings, and oral evidence can then be used much more productively for filling gaps, clearing up ambiguities (deliberate or otherwise), testing credibility etc.
If we get the judicial inquiry that is so badly needed, I’d hope the judge would adopt basically the English system as per Leveson, and then there really would be no hiding place for these people.
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I suspect that the English and Scots legal systems both have plus and minus points. The most fruitful area of cross- examination of a witness at trial is inconsistencies between evidence in a witness statement and oral evidence given in court. Had Fabiani been in an English court hearing, a lot of the witnesses would have been shown to be liars or, at best, mistaken when their evidence was compared to the contemporaneous documents.
Further, if you disclose a document in English legal proceedings, the entire document must be produced with no redactions (there are some exceptions such as commercially sensitive information not relevant to the facts in issue and it requires the party seeking the redactions to apply to the judge). Also, if a disclosed document refers to another document, that latter document should also be disclosed.
As for conditional fee agreements (CFAs) these are a mixed blessing. The almost total removal of legal aid in England meant that almost everyone is denied legal redress unless of course they can pay. As Lord Denning said “justice is available to all; just like the Ritz!” So CFAs do provide some access to justice so long as (a) there is a strong case and (b) that the other party is worth something (usually an insurer). Absent these, a lot of lawyers won’t take a matter on as they are unlikely to recover the success fee available on a ‘win’.
Under either the English or Scots system, one would like to see some sanction for not telling the truth, under oath or not, whether by direct lies or omission. To simply ignore ‘orders’ of the committee or the Parliament should be a very serious matter and the penalties should be sufficient so as to deter people from even contemplating not telling the truth or complying with directions of an inquiry, court or Parliament.
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I’ve been shaking my head with incredulity over this for quite some time. Prior to retirement seven and a half years ago, I worked in local government and for many of those years our own HR policy stipulated that the investigating officer should have no prior knowledge or involvement with any case s/he was to investigate. This way of working isn’t new – it has been around for a long time. I am sure that other local councils must have had similar policies. Lesley Evans worked in local government herself at a high level before going over to the dark side. I cannot believe for one minute the importance of this way of working wasn’t known to her.
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It is reprehensible and incomprehensible that Sturgeon and Swinney have been permitted by the courts to DRIBBLE out information and documentation which was subject to a forced disclosure order made by the courts , this witholding of information which allowed Sturgeon to to obfuscate and claim ignorance of any wrongdoing is surely a contempt of the disclosure order and should be addressed by the courts by insisting the LA and COPFS address the matter
My disgust for the machinations carried out by these amoral disgusting characters in order to destroy one individual knows no limits and I sincerely hope Alex can get adequate revenge
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I agree, TH, but of course — as I know you know too — Sturgeon and Swinney can only get away with it even then because of the various establishment agendas that this serves and — sad to say — the naivety and misplaced loyalty of so many on our own side.
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So they quoted selectively from the U.K. Government guidance for the purposes of bolstering their case and the procedure itself, and now it turns out that the U.K. government guidance expressly prohibits what they did.
And that’s a bit of a pickle since by quoting it (selectively) they give emphasis and acknowledgment to the credence and importance of the U.K. guidance.
You always deliver, Dangerfield.
Well done that chap.
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Spot-on summary Hatuey, and thanks too for the much appreciated praise.
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Hatuey,
They’ve quoted so selectively, they’ve bypassed entirely the CSEP team’s guidance on what to do in the case of former ministers – as Gordon says above, they’ve quoted the parts regarding former civil service staff (and even ignored that).
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Thanks for this post, I refresh every day and it’s a rare treat to see a new post! Looking forward to Part 3.
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Ah Graham, thanks so much for bearing with me. I’ve been embarrassed to see so many people doing just that but shucks, it IS great for the viewing figures. I’m determined to do better though…
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Me too!
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‘to meeting personally with Ms A and Ms B on 5 December 2017 to discuss their complaints,’
Separately or together ?
Have found your work on this very helpful, thanks
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Thanks iki, much appreciated. The meetings were separate but Ms A and Ms B were in regular touch with each other from early November 2017 as will be further explored in part 3 of AVSC so I have little doubt that a lot was shared between them.
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Thanks for that!
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Incidentally, just searched for that Oct 19th email using McKinnon’s words. Got this – “something went wrong.”
Click to access Phase2FN15(3).pdf
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Thanks, Chris, you raise a very interesting point here which is worthy of further exploration.
I too found that the links to footnotes 15 and 16 of the SG’s Statement are now inaccessible on the inquiry website. Fortunately, I’d already downloaded them a good while ago.
Matters go still further, though, because the Mackinnon email of 19 October 2018 that I’ve set out in the post comes from a paper version that I’d printed out from the website whereas the electronic version that I’ve later downloaded has the date redacted.
As a complete Luddite, I hesitate to make any sweeping deductions from this about SG malfeasance but if some budding technophile wanted to explore what might lie behind it, I’d be very interested and happy to email over the Phase 2 FN15 and FN16 I have downloaded and a scanned copy of my printed page.
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Gordon, can you email me those docs – the scanned paper copy, and the two pdf’s? Can you also send the government statement doc that references them, if there is one, if you have it?
I’m no technophile and can’t query them electronically, but I’ll examine their content and naming – and if any part has been changed without telling us, you can then send an FOI specifically asking them when and what has been changed (see my comment way below about publishing – they can’t just withdraw and change stuff willy nilly, and how can the committee hope to hold the government to certain standards, when they don’t hold any themselves?!). A FOI could of course, just say, ‘can you send me the change register (the history of each change made for each document) for all the published documents on the committee’s webpages.’
Phase2 documents originally had ‘phase2’ written at the top – I remember because I thought that was a handy thing to do (and it wasn’t done for phase 1). I don’t think I saved any though.
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At last!
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Reblogged this on Ramblings of a now 60+ Female.
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I confess I need an animation to follow what is going on. It is just too intricate and with all the letters and the redaction no need for further obfuscation.
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I’m sure Dan Vevers will help you out soon, Andrea.
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It is all very odd.
None of this unlawful behaviour would have been necessary had AS actually been genuinely guilty of anything. Breaking the law was the only way they could get the stitch-up it to proceed. Had they been ‘fair’ Salmond would have been cleared very early on.
But to break the law as badly as they did does suggest they believed (early on) that none of it would see the light of day. As GD points out they were blatantly bullshitting their own lawyers right up to the last minute. Who was advising them to do that?
They must have thought they would be successful in getting the JR killed off before it could reach its conclusion. The judge(s) (I assume) who stopped that happening are to be praised as much as the jury.
I love reading your stuff Gordon, it is like time slows down when I am reading it and you see all these clues in the detail that you never noticed before.
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What a nice compliment Mac, I really appreciate that.
I agree that it’s hard for a rational person to make sense of their behaviour. Here’s my best guess:
Part of it, I think, is that they’re so used to getting away with it even when they’re caught — see Sturgeon’s tearfully “triumphant” performance at the inquiry for a recent example — that they really don’t worry about getting caught.
Part of it is that these are utterly irrational people who believe in truly outlandish things and in their divine right to impose them on less enlightened souls like ourselves — see GRA, Hate Crimes Bill etc.
And part of it is of course that they are just bloody incompetent and can’t carry off an undetectable stitch-up no matter how hard they might try.
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Thanks Gordon, another clear, forensic exposé, neatly presented.
I didn’t realise the full import of all those email exchanges & contact by Judith Mackinnon.
What I really don’t get, though, is that it was this one small group of people writing the procedure then using it – so why didn’t they just write the thing so at least they really were following the procedure (whether or not that was flawed)(which it was anyway)?
I know the answer I think – they didn’t think they’d get caught…. Rank amateurs, really.
Interesting what you say about Ms A and Ms B, in a comment above, being in contact with each other early Nov 2017 – part of the emails from Mackinnon in Jan/Feb (?) 2018 were asking about their willingness to share complaints with the other as though they were unknown to each other. Was Mackinnon unaware of the contact, or was this a charade?
On your mystery printed version of the document – maybe you found and printed it from an earlier set of docs? As I’ve moaned about before – lots of repeats of docs in different ‘tranches’ of evidence, and some amount of mystery changing dates/recipients. While forwarding on emails to give as evidence, I believe some updates to the forwarded emails may have been made.
Duty of candour? What is the opposite of candour? You may know what with being a literary type,,,
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Thanks, Contrary. Barbara Allison knew about the contact between A and B — see her letter to the inquiry of 9 December 2020 — and Mackinnon and Richards exchanged texts where they talked of them being in touch with each other, so I’d say Mackinnon’s emails were part of the (badly executed) charade.
I’m actually mystified as to the provenance of my paper copy of Mackinnon’s email of 19 October 2018. It has “Phase2FN15” printed in the right hand corner so there’s no doubt I printed it out as part of the docs which formed footnote 15 to the SG Statement for the judicial review phase — which was then Phase 2, before the handling phase was added as Phase 2 and the JR phase became Phase 3. But, as I said to Chris above, none of the 50 pages on my downloaded version of footnote 15 now seems to have that reference on it.
I guess duty of confidentiality would be the legitimate opposite of duty of candour, but I suspect you have in mind something illegitimate…
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I’d forgotten/missed the point of the Barbara Allison submission – it’s pretty clear that she knew Ms A and Ms B were in contact, or even that Ms B already knew Ms A, and had told Ms Allison about her as a potential complainer? No wonder each were so casual about handing over the VERY PERSONAL details of their complaints to the other. Not so casual about standing up and being seen to back their own allegations, though. Why would anyone want gory details to be known and shared, but not be willing to stand by what they say? I would think anyone with a duty of candour and with integrity would do the opposite – want no details revealed, but make it known who you are.
Yes, I’m not happy with your antonym of candour! I thought I make recourse to my ancient dictionary (pre-1900 probably, it doesn’t have words like ‘aeroplane’), it can sometimes have antonyms and throw up some interesting historical meanings of words. Unfortunately not in this case:
“Candour: n. [L. candor] A disposition to treat subjects with fairness ; freedom from prejudices or disguise – SYN. Fairness, ingenuousness, frankness, openness, sincerity, impartiality.”
So your ‘confidentiality’ only really relates to openness and, just nah. Prejudicial, unfair, biased, secretive, etc, would be better. I think we can be sure, without any results from the committee report, that the involved civil servants failed in their Duty of Candour in every sense of the word. That no heads have rolled already is beyond belief, in any rational world.
I was going to have a rant about how the document controllers for the committee should be hung drawn and quartered – and if that’s no longer a punishment it should be brought back in – but it’s a more serious issue than that, so I’m going to explain why in a separate comment.
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I forgot to relate candour to the behaviour of the civil servants there:
Merely the PRETENSE that Ms A and Ms B did not know each other, shows the lack of candour. They knew they knew each other, and the people handling the complaints knew they knew each other – some did at least, and those most intimitely involved with them, e.g. J Mackinnon, must have known – yet the entirety of the exchanges were written as though they didn’t.
Why would an Investigating Officer think it was a good idea to share the details of the complaints? What good does that do – who would want to know any of the gory details? I can’t see how it would in any way help potential victims – I can understand letting someone know they are ‘not alone’ – but not the details. It’s a wee bit sick, to be honest.
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I’d suggest our political masters (and their henchpersons) are less inclined towards a duty of candour and more in favour of a duty of sophistry. Or a duty of deceit. Skulduggery comes to mind as well. Unfortunately, it can’t be a duty of dirty deeds done dirt cheap because these backstabbing bawbags have burnt through a seven figure sum of public money in their quest for glory.
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Excellent analysis Gordon
The attempt to smear Mr Salmond,and I’m no fan,is incompetent in the extreme
Among the questions that remain unanswered for me is to what end did they embark on such strategy and what actions did they think they could have taken against him if the had a lawful process and found the complaints justified?
Looking forward to the next instalment from you
Thank you for your work
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Thanks, killiebill, that’s much appreciated.
I think the goals changed as they went along.
First, it was MeToo virtue-signalling, a desire to be ahead of the UK Government, resulting in a commitment to bend over backwards to satisfy the demands of Ms A and Ms B, who quickly recognised the strength of their position and exploited it to get what they wanted, and as a bonus for Nicola Sturgeon, taking out a political enemy with whom she was now in open conflict over the RT show, Murrell’s role etc.
Then it was the realisation that in their haste to do all of this they’d made fatal procedural mistakes and that getting Salmond charged and convicted was the only way to fix this.
Then, as Salmond fought back, it was simple no-holds-barred war.
As always, it was messier and much less focused than this suggests, with overlaps between phases, backtracks, second thoughts etc but I think that’s a basically sound overview of the progression, and of course the war continues…
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I know all this has been given the “Downfall” bunker scene treatment but you are exposing something closer to “The Conference”.
The banality of bureaucratic hubris.
Bravissimo.
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Great post Gordon. A tantalising taster for next instalment of AVSC. Don’t be hard on yourself about the quantity of posts here, the quality shines out. As a working lawyer you also need to earn a living, defend clients, and make your contribution to Scotland’s due process.That’s especially important while it’s appointed custodians connive with power.
You are spot on re JMCK and her prior involvement but this gang have ran rings round the parliamentary enquiry. Today the hateful, anti democratic Hate Crime Bill went trough. This ornament of a Parliament did nothing with a few honourable exceptions. Adam Thompson the part time dilettante member is proud of some sophistry in drafting which removed nothing of the threat this bill poses to free speech and association. The fact that this was passed during a pandemic when we cannot protest is surely reason to campaign for its repeal. We can bring people of goodwill from all parties together , shaming and exposing their official representatives..I know you and others on here will play a huge part in that.
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Thanks Davy, that’s much appreciated, and I agree totally about the Hate Crime Bill. I was just listening in the car to a radio report that said there were “concerns” that this could curtail free speech.
Duh-uh! The whole POINT of the thing is to curtail free speech. You can think that’s a good thing or — as I do — a FUCKING TERRIBLE AND OUTRAGEOUS thing but don’t try to pretend it’s anything other than the most blatant possible attack on freedom of speech. She might as well have reported concerns that the Abolition of Free Speech Bill (to give it its much more accurate name) might be curtailing free speech.
I can’t believe that we still need to say it in left-leaning Scotland in 2021 but freedom of speech MEANS the freedom to speak things that we HATE. If it doesn’t mean that then it has no meaning because, self-evidently, no-one needs protection for speech that we LIKE.
If speech that we hate turns into ACTION then we have more than sufficient laws to deal with that, and we always have had.
I’m ashamed to be Scottish today.
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Going back to a phrase you emphasised:
“there may be other individuals who are also prepared to submit a complaint”,
That reads to me as though JMcK was telling Ms B that the there were other allegations against AS in order to bolster Ms B’s mettle, get her to make a formal complaint and so add to the weight of argument against AS. That seems well out of order for an independent investigator.
While that might be the actions of a friend, and we would all want a friend’s support in this situation, if the friend was in fact the investigator then it suggests to me procedural unfairness. It gives the appearance of coaching and encouragement which in procedural terms is not fair to the person who is being complained about. The no prior knowledge is there for the interests of fairness of both the complainer and person being complained against. If there are more emails with phrases similar to this, then I can start to see why AS considers there to be a conspiracy against him.
Looking at the idea of a conspiracy, prior to Friday’s release of the legal counsel letters Ithoght that AS was suggesting the conspiracy came about later in the process when the judicial review looked like succeeding (after Octber2018). However the counsel’s letters to SG made it clear that from early on the AS camp had made allegations of a plot against him. I found this surprising as to me the idea conspiracy only made sense after the SG officials knew that they had made an arse of it.
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See killiebill’s comment and my reply, Brian. This was a developing conspiracy where the goals shifted and the conspirators got in deeper as things got more and more serious. That’s the usual pattern, actually. Many thanks too for the insightful comments and for the generous praise, which is much appreciated.
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Why is it acceptable to the Committee conducting the Inquiry that the SG is redacting documents to the point that it is rendering them unintelligible? If I was the Inquiry Chair I’d be demanding the documents in full and I’d decide what requires to be redacted before publication. This Inquiry is into the SG’s conduct so why are they deciding what the Committee can see? (Like the external and internal counsel’s advice) That’s like the defence in a criminal trial having a veto over what evidence is available to the prosecution. For that matter, why was the SG’s external counsel censoring documents prior to them being handed over to Salmond’s counsel for the JR?
MacKinnon’s evidence at the JR that she had no memory of a meeting with a complainant is simply not believable. If you were required to give evidence in court you would surely review your diary and all correspondence to refresh your memory. (The same applies to Sturgeon’s claims of “no recollection” in her evidence to the Parliamentary Inquiry) Given that Evans must have known that it was inappropriate to appoint JMcK as Investigating Officer after her prior involvement, then why did she do so? Was it that JMcK was a “safe pair of hands” that could be relied on to produce the desired result?
Then there’s the absurd claim that no notes were taken at the daily meetings with external counsel during the JR. Career civil servants ALWAYS take notes at meetings. So do solicitors and there was surely a representative of the Solicitor General present, not to mention the external counsel who would definitely have kept notes. One option would be to summon the external counsel to testify, although I’d imagine that would require the SG to waive confidentiality.
Sturgeon, Swinney & Evans’ obstruction of the Inquiry has now descended to outright lying. That the Inquiry is only now 2 years after they were appointed getting around to looking at the legal advice with time running out is an indictment of Fabiani’s chairmanship. Since there remit is how the SG’s conduct was condemned by the JR as unlawful, the obvious first place to start was with the legal advice to both sides and the transcript of the JR as that would have provided a roadmap of how to proceed. That could have been obtained 2 years ago without any prejudice to the criminal trial. It is obvious that Fabiani was instructed to drag out the Inquiry and run down the clock so no censure could apply to Sturgeon before the election.
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I agree with most of what you say here, Stuart, and particularly about the scandal of redactions and non-production of evidence.
At some point I must do a whole post about “evidence” since I keep hearing that the strongest possible circumstantial evidence in this affair is actually “no evidence” despite the fact that there are numerous people doing life for murder in Scottish prisons, having been convicted on the basis of MUCH weaker circumstantial evidence than is available against Sturgeon and her mob for what they did. I’m sure that these prisoners and their lawyers will be delighted to know that the evidence on which they were convicted has now been reclassified and that they are not now in fact guilty of anything.
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Thanks Gordon, another excellent part (3) to this saga. Gripping stuff.
However, I find it difficult to believe that you consider yourself a Ludditte – your extremely detailed research is forensic whilst your deductions and conclusions follow logically.
Ever tried your hand at computer programming?
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Oh duncanio, I can hear my wife and everyone who knows me hooting at that thought! I am a huge admirer of people who can write code, though. If I ever do one of these Learning in Later Life courses, I’m definitely picking that.
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Jings Mr. Dangerfield. That’s a help. Having watched Ms. Davidson’s effort’s at FMQ’s yesterday can you send her this to ask proper questions next week?
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Thanks, Katherine, that’s much appreciated. However, I fear that Davidson is no more interested in our getting to the truth of this than is Sturgeon. Sadly, the old left-right divisions mean less and less, especially in the Scottish Parliament, and if you hear any of these identity warriors even mention class, it’s probably a slip of the tongue.
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Was there anything in the edit that warrants re reading?
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Graham, Rhadamanthus, and everyone else, sorry for the messing around here. I got two things wrong in the original post and the easiest course was just to remove them, so this is what is now missing from the original:
First, Roddy Dunlop’s Urgent Note of 31 October 2018 as now disclosed by the SG shows that as of that date he had been made aware of Ms B giving her complaint directly to Mackinnon, so I was wrong to say this was not passed on.
Second, counsel did not take the unequivocal view of that revelation that I would have taken so I was wrong to say it would have caused the collapse of the case in October as, er, clearly the case was not collapsed then.
One of the reasons I’m now delaying the next post is so that I can make sure that any further revelations of factual matters in the legal advice now published are included. What Roddy Dunlop says about Ms B, for example, is new information to me:
“Complainer B, as I now understand the position, first made her complaint to Judith Mackinnon … in December 2017.”
Huh?
And of course, counsel’s view of this, although not as unequivocal as I anticipated, is still pretty damning: “..this present a very real problem indeed… the Procedure was not followed… an express embargo was ignored in a way which may well vitiate the entire proceedings… it would be wrong for me to suggest that this revelation is anything other than an extremely concerning one…”
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No apology needed, thanks for the info!
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Great analysis, Gordon. Looking forward to more.
SG told us they took advice from Acas. This is what Acas says about the reporting of complaints to the police.
https://www.acas.org.uk/handling-a-bullying-harassment-discrimination-complaint/when-harassment-crime
“As an employer or manager, there may be situations where you think harassment at work could be a crime.
For example, if an employee tells you they’ve been:
physically attacked
sexually assaulted
the victim of a hate crime, for example racist or homophobic abuse
threatened with violence
You should talk to them about whether they want to report it to the police, and support them if they choose to report it.
Before doing this, you should:
get specialist advice, for example from a relevant charity or helpline
consider getting legal advice
You should not put any pressure on them to make any particular decision. If they do not want to tell the police, they do not have to.
In most cases, you should go along with their decision. But you might decide you have to tell the police yourself in some circumstances. This might include if you or they think there’s likely to be:
an ongoing risk to their safety or the safety of others
an increased risk to their safety because they’re a vulnerable person, for example they have a mental health condition
Before telling the police, you should talk with the person who’s made the complaint. You should also let them know once you’ve told the police.
If you’re not sure what to do, you should make sure you get specialist and legal advice. ”
Is it right that the legal advice given to AS from the beginning was that it was likely that his defence of the criminal charges would succeed? If so, what was the legal advice to SG?
Here is how an investigation of this kind should be done.
https://www.legal-island.ie/articles/ire/features/how-to/2019/nov/how-to-investigate-workplace-bullying-and-harassment-complaints/
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Thanks, Sam, that’s very helpful and conforms exactly with what the police themselves advised, not to mention ordinary common sense!
I don’t think anything ever has been — or will be — revealed about the advice Salmond received on the criminal charges but, unlike the judicial review case, where a first year trainee could have told Salmond he was going to win, it would be a brave and foolhardy lawyer who would have made any predictions in the criminal case.
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Thank you Gordon, fascinating analysis as always. First Minister CoS is an interesting player. Her written evidence is thin and subsequent piece defensive yet is named by Alex Salmond and identified in other blogs as central to the strategy.
The person has been shielded from the inquiry which is clearly a matter of concern for the inquiry and the evidence open to it to consider. Just wondering how you might discuss this in the forthcoming coup blog posts?
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Yes, she’s central, Macl, and no, I won’t be saying anything about her. Further comment on this by anyone is inadvisable.
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I think everyone will know by now that I’m somewhat irritated by the lack or order and sense in the way the evidence has been presented in this case.
What we have is the SG dumping a disordered mess of different kinds of documents onto the committee – and I have to say, some are probably ‘altered’ from the originals – and these are documents they’ve already had to (or supposed to have done) produce for two court cases, primarily the commission on diligence for the Judicial Review.
A side note here: a Sky News written news report said “the so-called Judicial Review” ,,, what do they mean so-called? Can anyone guess? It WAS a judicial Review, and that’s what it was, and is, called: that’s it’s proper name. Can’t remember the article but it was recent, and it’s still bothering me. (There were no other ‘so-called’s in the article).
Back to document control: we have, I presume, some parliamentary clerks taking the evidence, putting it in order and adding references, then ,,,
PUBLISHING
It’s this that I want to address – the publishing, and how documents should be handled.
Once a document has been published with a referencing number, it can ONLY be CHANGED under a certain set of circumstances.
1. There must be a revision, or version number, added to indicate there has been a change
2. If it is withdrawn, it must be stated as withdrawn
3. All stakeholders must be informed of the change
4. All documents referencing the changed document must reflect that change, if applicable.
No. 3 there is actually the most important point, because WE are stakeholders. Parliament is a publicly accountable body, and we are the public. Anything they publish, they are publishing to us.
If they change any part of any published document, they MUST inform us they have done so, and inform us of where and when.
I am firmly of the belief that there are an infinite set of numbers, and that, under no circumstances, should a reference number ever need to be re-used. If the committee has decided they don’t like some of the last set of evidence – then produce a NEW set with DIFFERENT numbers, and ensure all the referencing documents have UPDATED links (and they are, themselves produced as a new revision).
This is BASIC document control. Every part of any published information must be able to have its history traced – when and where and who to.
Leaving aside the SGs messy & incomplete evidence – the committee itself is trolling us. Evidence is being changed willy nilly, reference numbers randomly being applied, evidence being withdrawn without notice. They cannot, should not, do that once something is published. We now have a confusing mess of any earlier evidence that anyone has downloaded being out of date or withdrawn, but no one knows if or when it has. Do I have proof? Not exactly – but we can see that the evidence pages have changed drastically since the start, and there hasn’t been notification about when and in what way.
I notice that the second government submission in Phase 2 – the 18th Dec 2020 doc – is no longer available. Why not, and when did this happen? If they publish – they publish to us, we are stakeholders, and they must inform us. They have not produced header sheets to each referenced Footnote, so the referencing doc – the government explanatory submission – is essential to the reading of the evidence. They can’t just withdraw it entirely.
Those are the basics.
On Gordon’s mystery appearing and disappearing parts of a document where he has a printed sheet showing forwarded date, but no saved digital document showing this: the most likely explanation is that it was printed before they decided to start redacting all forwarded information (note that many of the Phase 2 Batch 2 docs of emails have [redacted] at the top of the page, ABOVE the email evidence itself: this must be the ‘FW’ info). They have renamed many of the original set of Footnotes, the actual name of the pdf’s, and they have likely revised their redactions on those – or changed the content for all I know. We don’t know, because they haven’t told us.
The committee is going to need investigated after this, what shoddy practices, and certainly not practices I’d expect from a publicly accountable body.
We have a GOVERNMENT that is withholding evidence, and effectively lying about what evidence it has and what it means. And we have a PARLIAMENTARY committee that is withholding evidence – although we have to trust to a certain degree (do we?) that what they are withholding should be kept private – and not being open and transparent about what they are changing and when.
It’s not just that it’s a complex set of circumstances shrouded in secrecy from what the government won’t tell us – it is also that each time we try to examine the evidence, there is a good chance it has changed from the last time! An ever-moving target. The evidence SHOULD BE static, not silently morphing before our eyes.
I know this is boring to most people, but it’s a fundamental and important aspect of how we can function as a complex and advanced society – it needs administrators to keep proper records. A ‘change register’ should be kept of all that evidence, so where is it?
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Gordon, thankyou for this. I have only just discovered your writing. It is forensics at its finest as you have poured over documents and matched them to timelines and exposed faults and other possibilities. I am not a political animal. I have very low expectations of any politicians to deliver a good society. But I am interested in the integrity of a community and despair at what you are exposing here. Thankyou for the time you have put into this. And thankyou for the honesty of altering your writing when you realise you may have got something wrong. That gives confidence on your commitment to veracity.
Can anyone explain why when John Swinney was asked to reveal government legal advice and he did so eventually it was not revealed chronologically? Is there any logical, legal or procedural reason that can justify the way it was released?
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Afternoon Contrary .. you are spot on with your observations. Several weeks ago I made direct contact with LF office to request an explanation regarding Levy & McRae missing correspondence. … still missing ! the admin clerk rang me back and told me I needed to write to the SPCB .. have you considered putting your points to them ?
Best Wishes
Claire
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Thanks Claire – after I read your comment I noticed that the clerking team gives their email address in the committee’s webpage – so I may indeed write them a little note!
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I completely agree with this complaint, Contrary – messing around with the documentation in this way is a painful example of gaslighting on a corporate scale. Makes it difficult to believe in the integrity, or at least the competence, of the clerking service and the “management” (a word I use advisedly) of the committee process as a whole. And it’s such a clownish yet arrogant approach when one considers that the powers that be ought realise many people will have saved a copy of published evidence when it first came out, making it possible to notice and compare any later shadowy alterations.
A similar thing annoyed me when looking over published e-mails that have had senders/recipients redacted. If labels like [Redacted Name 1], [Redacted Name 2], [Redacted Name 3] etc were allocated to individuals and used consistently, it would be far easier to understand the flow of information and when an individual said or read something. The generic label [Redacted] obliterates all that framework around the information… probably not by accident.
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Oh I know – they give the Lawyers numbers, why not give the witnesses numbers as well? Or when it’s just a random person just Person 1, 2,,,
It’s definitely the opposite of an easy read!
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I had thought the first contact with Police Scotland was on the 5th Dec?
What I have is an email trail in the doc Phase2FN11 of the ‘latest version’ getting passed around, from James Hynd to HR1 (redacted HR person no. 1) to Judith Mackinnon, and to Gillian Russell. It’s a bit of a confusing trail of ‘FW’s and RE:’s on the email subject and big section of [Redacted]s. But on page 8 of the document, we get:
“From: Mackinnon J (Judith)
Sent: 23 November 2017 12:57
To: Russell GE (Gillian); [Redacted] ([Redacted] @scotland.pnn.police.uk)
Subject: FW: Complaints Involving Current or Former Ministers; ACTION
For info this is the latest agreed version for reference.
Judith”
There is no attachment reference, but HR! has just sent Ms Mackinnon the ‘Latest version’ in the previous email, and the one before that was James Hynd sending HR1 the ‘Latest draft here’.
I’ve just read Police Scotland’s submission again and they categorically state that the first contact was on the 5th December 2017, and they never received a copy of the procedure or were asked for advice about it.
Thing is – in the above email, Judith Mackinnon appears to be sending a version of the procedure to a Police Scotland email address on the 23rd Nov 2017 ‘for reference’.
It just caught my eye. Gillian Russell doesn’t pass on any contacts in Police Scotland to JM until 29th Nov (@scotland.pnn.police.uk address too,,, they also have the name [Redacted], but there are a lot of folk with that name it seems, so I won’t read too much into it)..
So – why is a police scotland email address getting a version of the procedure on 23rd Nov? Any ideas anyone?
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Is there any point in this anymore? This government is thoroughly corrupt and so clearly is the crown office. They get away with it because they know they can and the Scottish electorate are too apathetic to care.
Those who do care have seen the SNP and Sturgeon in a new light but she’s too well protected and COVID has given her cover.
It will all come out in the end but unfortunately not soon enough i fear. Well done anyway Gordon.
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Your cynicism is understandable, Scot Smith, but it’s easier to analyse the wrongdoing while the trail is fresh (though God knows, the main wrongdoers have done their best to delay information and muddy the waters). The full picture, or the closest we can get, may indeed not come out soon enough but I and I think many others would rather see what can be discovered and analysed sooner rather than later. On that basis, I look forward very keenly to our host’s next instalment!
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Seen this Gordon?
https://wingsoverscotland.com/the-stories-that-are-true/
Assuming Fabiani Inquiry will look even more of a whitewash if they don’t get Salmonds evidence via the Scotland Act?
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I was just about to post that link JWT, it is a MUST WATCH for anyone interested in the case.
It is David Davis presenting a summary of the facts in parliament – and pointing out that Westminster has powers of parliamentary privilege while Holyrood doesn’t. That is, none of our MSPs could have done this without risking prosecution.
And by reading all this out in parliament, Mr Davis is putting it all on public record, and lends the accusations credibility. And it damning the to the current Scottish government.
I believe Mr Salmond is a very good friend of David Davis.
JWT – I have been utterly bemused by the Harassment Committee’s failure to ask for the evidence from Levy & McRae – they were given exact instructions on how to do it legally (I’m annoyed that this wasn’t done well before now though) – and surely now, like you say, they’ll have to do it, or face an inquiry themselves!
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Aye Contrary, I agree with you on the “Harassment Committee’s failure to ask for the evidence from Levy & McRae” It appears they are using the SGs Legal advice (Wolfe) as the excuse not to (despite the obvious conflict of interest and dubious interpretation of the law) and am unsure if this is Fabiani as the Comittee Chairs decision or has been dictated from SG (Wolfe again).
I would like to think that there is now no way Wolfe, Harvie, Evans, Mackinnon, Lloyd, Murrel, McCann, Roddick, Richards, Allison (and quite possibly Sturgeon herself) aren’t looking forward to an interview under caution in the very near future (unless the Crown Agent still has a valid ‘licence to commit crimes with impunity’ from his previous employment).
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