Here is the further interview I did with Tommy Sheridan for his podcast Tommy Talks on the Sputnik website in which we address the questions of what lay behind the Scottish Government conspiracy against Alex Salmond and how the present inquiry has been designed to fail.
My sincere apologies to readers waiting for A Very Scottish Coup. It is coming, I promise.
I did this interview with Tommy Sheridan for his podcast on the Sputnik website, in which Tommy and I attempt an overview of some main aspects of the Salmond stitch-up. I hope you’ll give it a listen.
I’m working on a post which I hope to publish later today or early tomorrow. It’s titled A Very Scottish Coup because if the evidence given to the Salmond inquiry by civil servants is true then a coup by unelected mandarins behind the backs of the democratically elected First Minister and democratically elected Government of our country is precisely what has taken place.
POSTSCRIPT: My apologies to readers coming here for the post promised — over-optimistically — above. I am working on it whenever I have a spare minute and will put it up as soon as it’s done.
It won’t surprise readers of this blog to learn that two of the Scottish Government’s most senior officials – Head of “People Advice” Judith Mackinnon and Permanent Secretary Leslie Evans – have once again given evidence to the Salmond inquiry which is contrary to the facts.
In this and the next couple of posts I’ll detail some of the relevant facts and evidence, and I’ll try to explain where this quite extraordinary behaviour by the Scottish Government fits into their ongoing war on Alex Salmond, and on the truth.
The Facts
In January 2018, Mackinnon was engaged in an email correspondence with the person designated in the heavily redacted Scottish Government documents produced for the Salmond inquiry as “Head of Branch, People Directorate 2”.
The subject of the correspondence had the catchy title “Complaints against Ministers Tracked version which shows union comments and final version which went to FM”.
The context of the correspondence was that the First Minister and her Permanent Secretary, in their panic to have Sturgeon removed from any role in the procedure at the earliest possible date, had put everyone under extreme pressure in the previous month to have the process finalised and approved. This had resulted, among other things, in a rushed and derisory “consultation” with the unions in which their last-minute comments had been tracked by HR onto a draft of the procedure. A few cosmetic changes had then been made in response before the procedure was hastily approved on the very same morning that the final union comments were received.
A further result of this was that the unions had not even been informed by the time of the January correspondence what the approved procedure was, and so the delicate task of pretending that their voices had somehow been heard and that this had been any kind of normal negotiation with management on a subject of considerable import for their members now fell to Mackinnon and her HR colleagues.
In carrying out this task, Mackinnon, who by this stage had already had extensive interaction with complainers Ms A and Ms B, and who would shortly become the Investigating Officer of their complaints, was also pursuing what was by now a well-established HR view, one that had been clearly set out in an email of 23 November 2017 from her boss Nicola Richards to Permanent Secretary Evans, and copied to Mackinnon:
“We would need to consult with the individual before disclosing to another party or the police because of the risk of the matter getting into the press and the individuals being identified.
“We have a duty of care for our staff which means we shouldn’t do something that puts them at risk – so if they don’t want us to share information or go to the police, it would be very difficult to justifying [sic] doing so (without putting them at risk of being identified and wider impacts).”
Despite the usual management-speak, that seems pretty clear. If a complainer doesn’t want to go to the police, it would be very difficult for the Scottish Government to justify doing so.
This is not just for the reason which is obvious to any lawyer, and indeed to any person endowed with an ounce of common sense, namely that people should be free to decide for themselves what they want to do about such important matters which will inevitably have the most profound effect on their lives.
It is also because going against a complainer’s expressed wishes in such a matter would patently breach the Scottish Government’s much-trumpeted “duty of care” – the Holy Grail of duties if the constant citing of it by Evans and her crew to justify their every action is anything to go by.
Nonetheless, it’s only fair to point out that this same email indicates that all of the key players in the process – Evans, Richards, Russell, Allison and Mackinnon herself – were due to have a further discussion of this and other important topics:
“Perm Sec may want to discuss with Gillian, Barbara, Judith and I next week so that we can reach a view on the best way ahead.”
It can hardly be doubted that such a discussion took place nor that a final and very clear view was reached on it because it is that clear and final view that Mackinnon then set out in her January correspondence with “Head of Branch, People Directorate 2”.
On 8 January 2018, Mackinnon wrote:
“… have added one comment in the last paragraph (nothing to do with the unions comments) – [Redacted]. We will have to draw James Hynds attention to this as it is a change.”
Mackinnon is referring to paragraph 19 of the approved procedure, one of two paragraphs covering “engagement with the police”. (It may be noted in passing that this reference to changing the procedure long after it was supposedly set in stone on 20 December 2017 is far from unusual in the emails of those involved, a subject considered briefly again below.)
The paragraph is as follows:
“19. Throughout the process, all available steps will be taken to support the staff member and ensure they are protected from any harmful behaviour. However, if at any point it becomes apparent to the SG that criminal behaviour might have occurred the SG may bring the matter directly to the attention of the Police. Also, if it becomes apparent that the matter being raised is part of a wider pattern of behaviour it may be necessary for the SG to consider involving the Police in light of the information provided. Should either of these steps be necessary the staff member will be advised and supported throughout.”
In their tracked comments to that paragraph (and probably on the basis that they thought they were entering a dialogue with responsible employers as opposed to taking their one and only shot at being heard by zealots), the unions had written:
“What is HR’s role?”
Mackinnon now added her own comment right underneath that one:
“Actually, we cannot notify the police if the victim/staff member doesn’t want us to.”
So could that be any clearer? We do not have to guess what the outcome was of the discussions between all of the key players as mooted back in the email of 23 November.
Here is their unequivocal commitment to complainers in black and white.
The Scottish Government cannot – and therefore, of course, will not – notify the police of a specific complaint if the complainer does not want them to.
On 9 January 2018, “Head of Branch, People Directorate 2” replied to Mackinnon:
“Thanks Judith. We’ll need to pick it up with them [the unions]. I guess the drafting may be wide enough to allow for the situation you envisage. Maybe we should put an extra sentence in to note that we don’t inform the police without the employee’s consent?”
Note what is being agreed here. An “extra sentence” will clarify the decided view of the Scottish Government that it cannot refer specific complaints to the police without the consent of the complainer but, even without such a clarifying sentence, “the drafting may be wide enough” that this view can be taken as forming part of the existing wording anyway.
As a lawyer of some experience in such matters, I am happy to confirm that the view of “Head of Branch, People Directorate 2” is correct. Paragraph 19 says only that “the SG may bring the matter directly to the attention of the Police”. As long as everyone involved in the process understands that the specific complaint may only be referred directly by the SG to the police with the consent of the complainer, there is no need for any revision.
Nonetheless, Mackinnon persisted. An hour later on 9 January 2018, she responded to the question about adding the extra sentence:
“That would do it I think.”
Four hours later, on the same date, “Head of Branch, People Directorate 2” came back to Mackinnon:
“See attached. We will need to pick up with James H on Thursday.”
This is the second reference in the correspondence to James Hynd, the Cabinet Secretary, who drafted all of the versions of the procedure before the dramatic Evans “recast” described elsewhere on this blog rendered him largely redundant, but who was still consulted, for form’s sake as much as anything it would seem, on such matters.
Of much greater significance is the attachment, the same tracked version of the procedure that had been going back and forth between them, but which now featured a revised paragraph 19 with this “extra sentence” duly added in accordance with Mackinnon’s wishes:
“SG as employer will not refer specific cases to the police without the knowledge/consent of the employee.”
So then paragraph 19, as revised at the specific request of Mackinnon, now read as follows:
“19. Throughout the process, all available steps will be taken to support the staff member and ensure they are protected from any harmful behaviour. However, if at any point it becomes apparent to the SG that criminal behaviour might have occurred the SG may bring the matter directly to the attention of the Police. Also, if it becomes apparent that the matter being raised is part of a wider pattern of behaviour it may be necessary for the SG to consider involving the Police in light of the information provided. SG as employer will not refer specific cases to the police without the knowledge/consent of the employee. Should either of these steps be necessary the staff member will be advised and supported throughout.”
As usual in the inquiry proceedings, we do not have the paperwork for the meeting with James Hynd or other follow-up on this chapter, notwithstanding that it is central to the inquiry’s remit and would no doubt be very easy to locate and provide. (I’m the world’s biggest Luddite but even I fancy my chances with a simple document search for the subject heading “Complaints against Ministers Tracked version which shows union comments and final version which went to FM”.)
However, we know that Mackinnon’s proposed revision did not make it into the finally published procedure, and the reasons for that are hardly difficult to divine.
From mid-November onwards, it had become more and more critical to Evans and Sturgeon to have a decided procedure which gave Sturgeon plausible deniability of her knowledge of the complaints against Salmond just as soon as anything remotely coherent could be cobbled together.
After 20 December 2017, when this was, at least in their eyes, accomplished, it was seen as risking the whole project to change so much as a comma in the 20 December version. That’s why, for example, something as central as the description of what became Mackinnon’s role has her wrongly described in the crucial paragraph 11 of the published procedure as the “senior officer” despite the fact that, as a sop to one of the union suggestions, “senior officer” was changed elsewhere in the procedure to “Investigating Officer.”
Evidently, even to rectify such an obvious inconsistency in a key term was deemed too risky.
(As noted above, though, it’s clear that not everyone got the memo about this, as a rather extraordinary chain of correspondence involving “Head of Branch, People Directorate 1” demonstrates. His or her drafts of the procedure, produced in late January, well after the procedure was supposedly set in stone, cheerfully sought to re-write the whole procedure to cover all complaints against Ministers, was sent to the various key players, and appears to have been left to die quietly on the vine.)
The evidence: Judith Mackinnon
This is part of Judith Mackinnon’s evidence on oath before a Parliamentary Committee on 1 December 2020:
“Margaret Mitchell: Right. The referral [of the Salmond complainers’ specific complaints to the police] was not considered until a little later, then. Should it have been considered at the point at which the concern was raised?
Judith Mackinnon: Do you mean at the stage at which the initial formal complaint came in?
Margaret Mitchell: Yes
Judith Mackinnon: I am not aware that it was considered. I think that we were very much in the fact-finding stage. I do not remember an actual conversation, when the complaints came in, about reporting at that stage to the police.
Margaret Mitchell: Okay—but an option to report to the police was part of the route map, was it not?
Judith Mackinnon: Yes, I believe so.
Margaret Mitchell: So, that must have formed part of the thinking and discussions as the process was developed—and certainly when the complaints were received and the investigation took place.
Judith Mackinnon: I think that once the facts had been gathered, and the full picture was known, that was the stage at which the permanent secretary, as the deciding officer, might have considered the appropriateness of referring the matter to the police.”
That evidence is contrary to the facts.
Ms A lodged her formal complaint on 16 January 2018. Mackinnon was appointed Investigating Officer on the same day.
Ms B lodged her formal complaint, written for her by Mackinnon, on 23 January 2018.
These complaints “came in” just eight and fifteen days respectively after Mackinnon specifically asserted in writing that:
“… we cannot notify the police if the victim/staff member doesn’t want us to.”
It is inconceivable that she could have forgotten, then or now, that this was her clear and decided view.
The complaints “came in” just seven and fourteen days respectively after Mackinnon’s own request for an “extra sentence” in paragraph 19 was answered with the following:
“SG as employer will not refer specific cases to the police without the … consent of the employee.”
It is inconceivable that Mackinnon could have forgotten, then or now, that this was her clear and decided view of how paragraph 19 was to be interpreted and applied.
Mackinnon’s evidence that she was not aware of the issue of referral to the police being considered at the time when the complaints were lodged is contrary to the facts.
As the process was being developed, Mackinnon received and endorsed her boss’s email of 23 November 2017:
“We would need to consult with the individual before disclosing to … the police because of the risk of the matter getting into the press and the individuals being identified.
“… if they don’t want us to share information or go to the police, it would be very difficult to justifying [sic] doing so …”
It is inconceivable that Mackinnon could have forgotten, then or now, that this was the clear view being taken by herself and her Scottish Government colleagues on this matter as the policy was being developed in November 2017.
Mackinnon’s evidence that referral of complaints to the police did not form part of the thinking and discussions as the process was developed, and certainly when the complaints were received and the investigation took place, is contrary to the facts.
Mackinnon’s evidence that the appropriateness of referring the matter to the police was not considered until the stage when the facts had been gathered, and the full picture was known, is also contrary to the facts.
The evidence: Leslie Evans
This is part of Leslie Evans’s evidence on affirmation before a Parliamentary Committee on 12 January 2021:
“Ms Mitchell’s main point, if I picked it up correctly, is about the referral of the case to Police Scotland and the Crown Office and whether that was against the wishes of the complainers. It was against the wishes of the complainers—I understand that. The decision to refer the matter to the Crown Office was consistent with the procedure. You will have seen that in paragraph 19 of the procedure.”
The fact is that as at 9 January 2018, the Scottish Government’s clear and decided interpretation of paragraph 19 of the procedure was that they could not, and should not, refer specific complaints to the police without the express consent of the complainer.
The Scottish Government have produced no evidence to suggest that this interpretation was ever challenged or amended.
Evans’s evidence is contrary to the facts.
This is a further part of Evans’s evidence:
“… it says in the procedure that the Scottish Government may decide to refer a complaint to the police even if the complainer does not want it.”
Neither paragraph 19 nor any other part of the procedure says anything of the kind. The Scottish Government’s own interpretation of their own procedure in January 2018 was exactly the opposite of what Evans claims in her evidence on affirmation.
Evans’s evidence is contrary to the facts.
The war on Alex Salmond, and on the truth
Regular readers of this blog will have worked out by now what lies behind all that is set out above. It’s purely and simply part of the self-described “war” being waged on Alex Salmond by Nicola Sturgeon, Leslie Evans and all of their hirelings.
In November and December 2017 and in January 2018, it was never anticipated by any of them that a report to the police and consequent criminal investigation would be necessary for them to achieve their principal aims of establishing beyond all doubt their Me Too credentials while insulating the First Minister entirely from any criticism that might come from ruining beyond repair the man whom she herself called her mentor and person closest to her of anyone outside her family.
As I’ve detailed in earlier posts, and will return to again soon, this was achieved in the truly remarkable “recast” of the complaints procedure, tailored entirely and solely to get Alex Salmond, which was completed at nearly midnight on 5 December 2017, removing the First Minister of Scotland completely from the procedures of her own Government and doing away also with every last trace of procedural fairness for Alex Salmond.
It is hardly surprising then that the procedure at that stage still recognised the very obvious fact that whether to report things to the police is, and should be, entirely a matter for the responsible adult concerned. That fair and reasonable component of it was of no moment to them at the time.
By now we all know what changed in the months that followed.
Between January and August 2018, it became increasingly obvious to the whole sorry gang that they were in the most serious trouble. This was not least because Alex Salmond was sharing with them the advice of his senior counsel, which spelled out exactly why this was so, even on the very limited information Salmond’s defence then had.
Given that they themselves must have at least suspected that this was just the tip of the iceberg of what they’d perpetrated, and that things were exponentially worse for them than even Salmond knew – a suspicion which would soon be confirmed for them by their own senior counsel, when competent external legal advice was finally taken – it was obvious that an exit strategy was needed, and needed urgently.
And that of course is where the clear and decided Scottish Government policy on referral to the police, and of course the wishes of the complainers, were unceremoniously set aside.
If Salmond could be charged with criminal offences, the civil court proceedings which were inevitably coming could be sidelined – “sisted”, or suspended, to use the legal term – while criminal proceedings took their course. The gleeful and hysterical press coverage that would then be forthcoming from the ever-reliable Scottish media would ensure that the war was already all but won.
If Salmond could then be convicted of even one of those offences, then the war would be won in a rout.
Who, after all, would care what wee corners the Scottish Government might have cut in their righteous crusade to get justice for these brave complainers against a powerful sex offender?
The playbook could not be more obvious, nor is it the first time it has been run, by any means. It was only unfortunate for them that the integrity of their own counsel forced them to concede the judicial review just days short of the Salmond charges, and a decisive victory in the first battle of the war.
How they must have cursed.
There’s a lot more to follow, so please stay tuned.
On 7 January 2021 my friend Mark Hirst was acquitted of the charge brought against him by the Crown Office and Procurator Fiscal Service (COPFS). His alleged crime had been the practice of journalism.
The court made clear in upholding the defence submission of no case to answer that comments Mark had made on a video blog about the Salmond case were political speech protected by Article 10 of the European Convention on Human Rights, that they represented the free expression of opinion, and that as a matter of objective fact a reasonable person would not be threatened or alarmed by them.
This raises obvious questions about why Mark was prosecuted.
Are there no reasonable persons at COPFS who can properly assess objective facts?
Has no-one there read Article 10?
Or, like Humza Yousaf, are they just at war with freedom of expression?
Let me do what I can to answer those questions.
No case to answer
In an open letter to the Lord Advocate of 31 May 2020, distinguished signatories such as Noam Chomsky, Yanis Varoufakis, Professor Robert Black QC and – ahem – myself wrote of our “growing concern over the actions of both the Crown Office and Police Scotland”.
We continued:
“In recent weeks vocal independence supporters and backers of the former First Minister Alex Salmond, specifically the former UK diplomat, human rights campaigner and journalist Craig Murray along with fellow journalist Mark Hirst, have been arrested and charged in relation to comments they made publicly during and following the trial of Mr Salmond.
“We are particularly concerned to note that the investigating police officers are the same detectives who led the investigation against Mr Salmond over a period of two years and at considerable cost to the public purse.”
This, we pointed out, “leaves the distinct impression that Police Scotland, at the direction of the Crown Office, is acting in a manner that is both biased and disproportionate”.
Accordingly, we wrote:
“The actions taken so far risk establishing a public perception that both Police Scotland and the Crown Office are conducting themselves in a manner which is biased and is indeed political in nature.
“Such perceptions risk seriously damaging confidence in the Scottish legal system.”
We concluded by asking the Lord Advocate for “any meaningful public assurances you can offer that both Police Scotland and the Crown Office are complying with their obligations to act with complete impartiality and to apply the law fairly”.
In his response, published in the Sunday National on 7 June 2020, the Lord Advocate chose to focus on the trial of Alex Salmond, on which he commented as follows:
“Following a trial, Alex Salmond was acquitted by the jury and he stands innocent of the charges brought against him. That does not mean that it was inappropriate to investigate the allegations, or that the prosecution was not properly brought.
“Mr Salmond’s counsel did not argue, nor did the court hold, that there was no case to answer.”
It’s very important to note that, in defending the actions of Police Scotland and Crown Office in the Salmond case, the Lord Advocate laid great stress on the fact that a submission of no case to answer was not made by Salmond’s defence, and that the case went straight to the jury for them to assess the credibility of the complainers.
The clear implication of these comments is that a successful submission of no case to answer in that case would have suggested something inappropriate in the proceedings and would have caused him concern that the prosecution was not properly brought.
Well, as we know, in Mark’s case exactly such a submission was made, and was duly upheld by the court.
Further, unlike in the case of Alex Salmond, where much of the evidence of Crown witnesses was disputed, the facts in Mark’s case were never in dispute.
Indeed, the Crown evidence consisted entirely of the video in which Mark made his political comments, the contents of which were agreed by joint minute between prosecution and defence, and whose provenance had never for a moment been disputed by Mark.
The submission of no case to answer was therefore upheld on the basis of exactly the evidence which had been available to Police Scotland and Crown Office from the outset, and on which COPFS authorised and defended the decision to prosecute Mark.
So this was not a case where a submission of no case to answer succeeded because witnesses failed to speak up or because there were difficult questions of admissibility of evidence which were ultimately resolved in favour of the defence and where the Crown could therefore say that the issues needed to be tested in court before it could become evident that their case had failed.
No, this was a case where COPFS brought a prosecution which was quite obviously doomed to fail the moment it came to be assessed by a competent judge. Indeed, it’s hardly even a boast of my legal prowess to tell you that I was just one of many experienced lawyers, including Mark’s own legal team, who told him from the very outset that this is what was bound to happen.
So why was it allowed to happen?
The bias of COPFS
The two complainers against Mark were also two of the complainers against Alex Salmond, whose accusations against Salmond were dismissed by a jury but who, for good reasons of public policy, still enjoy the anonymity granted by the court in those proceedings.
Through their unofficial spokesperson, Sandy Brindley of Rape Crisis Scotland, and taking advantage of that anonymity – an anonymity which was surely never designed for such a purpose – they told the Daily Record that Mark’s comments were “sinister” and “threatening” towards them.
Then they reported him to the police.
Anyone who has ever reported an actual crime to the police will know how slowly the wheels of justice then tend to grind.
Not so for this utterly fictional crime.
Mark was arrested immediately and his eight month ordeal at the hands of Police Scotland and COPFS began. He doesn’t know who his accusers were and, precisely because their allegations were not allegations that a reasonable person would make, their presence in the proceedings was never required in order for the sheriff to throw out their whole fictional complaint.
Any reader of this blog who thinks that’s a fair and proper use of the anonymity granted to these two complainers should apply forthwith to COPFS for employment. They can use someone like you, believe me.
The obvious answer to the obvious questions
Here then is my answer to the obvious questions about why Mark’s prosecution, based on allegations by two anonymous, unreasonable complainers, was authorised and vigorously pursued by equally unreasonable persons in the employment of COPFS.
It’s the answer that the Lord Advocate would have given to our open letter of 31 May 2020 if there was even an ounce of honesty left at COPFS.
Police Scotland and COPFS have indeed acted in a manner that is both biased and disproportionate.
What is more, there is every indication that they will continue so to act whenever anyone under the protection of the Scottish Government, of which the Lord Advocate is a key member, makes accusations against anyone perceived to be an ally of Alex Salmond.
In so acting, both Police Scotland and COPFS are conducting themselves in a manner which is patently biased and political in nature.
All that any reasonable person has to do to reach that obvious conclusion is look at what happened to Mark Hirst.
POSTSCRIPT:
If you haven’t already seen it, check out also this excellent interview with Mark by Stuart Campbell on the Wings Over Scotland blog today.
I’ve just sent the following letter by email to SNP Councillor Mhairi Hunter who is, I understand, a close confidante of the First Minister. I’ll let readers of this blog know if I get a response, which I promise to publish here in full.
Dear Ms Hunter
I have been reading with interest your tweets about the terms “sex” and “gender” being interchangeable in Scots law. I have also been interested in your view that people with no qualifications in a subject should defer to those who have such qualifications.
I am a Scottish solicitor advocate and you, as far as I know, have no legal qualifications. However, I dislike the kind of “ex cathedra” arguments you have been making and so I won’t advance your own argument that you should defer to me on this subject.
Rather, I am genuinely curious to understand how you arrive at your conclusion about “sex” and “gender” being interchangeable in the laws currently being enacted or proposed by the Scottish Government. I am more than happy to have my legal education furthered by you on the subject.
For example, here is a very short passage from the Scottish Government’s own account of the legal issues arising in its proposed reforms of the Gender Reform Act 2004 (GRA):
“Trans people
“What does transgender or trans mean?
“These are terms used to describe people who find that their gender identity does not correspond with the sex they were assigned at birth.
“A trans person feels, very strongly, that their day to day identity does not match what it says on their birth certificate. Since the Gender Recognition Act 2004 came into force, trans people have been able to obtain a gender recognition certificate by applying to the Gender Recognition Panel.
“These are terms used to describe people who find that their gender identity does not correspond with the sex they were assigned at birth.
“A non-binary person does not identify as a man or a woman but has a gender identity.”
As I understand your proposition, and that of the Scottish Government, this passage would have identical meaning if the wording of both the legislative provisions and the commentary on them had substituted “sex” for “gender” throughout as follows:
“Trans people
“What does transsexual or trans mean?
“These are terms used to describe people who find that their sex identity does not correspond with the sex they were assigned at birth.
“A trans person feels, very strongly, that their day to day identity does not match what it says on their birth certificate. Since the Sex Recognition Act 2004 came into force, trans people have been able to obtain a sex recognition certificate by applying to the Sex Recognition Panel.
“These are terms used to describe people who find that their sex identity does not correspond with the sex they were assigned at birth.
“A non-binary person does not identify as a man or a woman but has a sex identity.”
It seems to me that there are numerous ways in which these passages are not identical in meaning, either as a matter of law or as a matter of common sense. To take just the most obvious example, I am struggling to understand which of the two sexes — male or female — the “sex identity” of a “non-binary person” would be.
I’d be very grateful if you could enlighten me.
Kind regards
Gordon Dangerfield
UPDATE:
I’ve received the following reply pretty much straight away from Mhairi Hunter. I guess I’ll have to answer my own question — see the Further Update below. (Spoiler alert: the Cabinet Secretary is quite wrong in her advice to Ms Hunter.)
Dear Gordon
My point was that changing the word gender to sex in the amendment that was being discussed does not change the law and that was confirmed by the Cabinet Secretary.
Regards
Mhairi
Councillor Mhairi Hunter
FURTHER UPDATE:
The present law which is the subject of the Lamont amendment is set out in section 9(2) of the Victims and Witnesses (Scotland) Act 2014, which is in these terms:
“Before a medical examination of the person in relation to the complaint is carried out by a registered medical practitioner in pursuance of section 31 of the Police and Fire Reform (Scotland) Act 2012, the constable must give the person an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by the person” (my emphasis).
Two amendments in the Bill prior to the Lamont amendment change section 9(2) to this:
“Before a medical examination of the person is carried out by a registered medical practitioner the person must be given an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by the person” (my emphasis).
If anyone reading this can’t see how that is a change in the present law, then I really can’t help them.
The Lamont amendment then changes the already amended section 9(2) to this:
“Before a medical examination of the person is carried out by a registered medical practitioner the person must be given an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a sex specified by the person” (my emphasis).
If anyone reading this can’t see how that is a change in the present law, then I really, really can’t help them.
My apologies to readers who have been waiting for the promised expansion of my last post. I’m afraid that is turning into a very long post which I expect to publish this week.
Meantime, Peter Murrell this morning must surely be the least impressive witness yet at the inquiry, and that is saying something. He did, however, manage to make one valid and important point during his last responses to the questioning of Jackie Baillie.
It seems that some of the women who made complaints to the police contacted the SNP too in September 2018, and that those complaints made their way to the National Secretary.
As Murrell pointed out, however, there was nothing the SNP could do about them as the Party’s ultimate sanction is expulsion and Salmond had already resigned from the Party.
Well, precisely.
That is one of the many reasons why the procedure taken by the Scottish Government against Alex Salmond was unlawful.
The ultimate sanction the First Minister can apply to any Minister for any misconduct is to require their resignation. There is no sanction that can be applied to a Minister who has already left office as Salmond had, years previously.
Hence, there is no procedure that can be adopted against a former Minister that is properly within — that is, not ultra vires of — the Scottish Government’s powers.
That is why the UK Government, among others, warned the Scottish Government against adopting their retrospective procedure. That is why the court would have found the procedure unlawful on that ground alone if the Scottish Government had proceeded to a hearing.
If only Mr Murrell could talk to his spouse about such matters…
Yesterday, John Somers told the inquiry that he had no involvement in the development of the procedure which was used against Alex Salmond.
This is not true.
Somers, in his capacity as Nicola Sturgeon’s Principal Private Secretary, had a key role in developing the policy at a critical time.
On Wednesday 6 December 2017, after a day and night of frantic activity which evidently resulted in very little sleep for her or other key participants, Leslie Evans emailed Nicola Richards, James Hynd and a third redacted recipient at 5.28 in the morning:
“Spoke with John S last night. We agreed you would send up tweaked codes in draft without any letters just now.
“And as discussed, info on the steps and touch points involved in the process also useful. Keep me posted – back in office tomorrow but happy to talk. John also I’m sure.”
As readers of previous posts on this blog may remember, the “tweaked codes” which Somers and Evans had agreed to “send up” to Nicola Sturgeon constituted the recast procedure which changed at a stroke everything which had been developed by Hynd and others to that point, by removing the First Minister completely from the process.
The “letters” which were now not to be sent to Sturgeon were letters which Hynd had been instructed by Evans to draft, in line with the procedure as it had existed prior to this discussion with Somers, and for the purpose of intimating the new procedure to former Ministers and former First Ministers when it was approved by the First Minister in due course.
Following the discussion between Evans and Somers on the night of Tuesday 5 December 2017, these letters simply disappeared from the development process, and the Scottish Government has never disclosed them to this day, at least not in the papers which have been made available to the public by the inquiry.
Exactly what comprised the “steps and touch points involved in the process” which were evidently also discussed by Evans and Somers remains a matter of guesswork since, of course, no-one at the inquiry asked Somers yesterday, or has ever asked Evans, what was meant by these terms.
What is clear is that both Evans herself and Somers were “happy to talk” to Richards, Hynd and the third, redacted, person about these “steps and touch points” in the procedure as now radically recast.
I want to say a lot more about the hugely significant context of this very obvious involvement of Somers, acting on behalf of Sturgeon, in the development – actually, in the complete recast – of the procedure but before doing so I want to wait for the transcripts of the evidence yesterday of Somers, Richards, Russell and Mackinnon at the inquiry since all were involved as key players in creating that context.
For now, it is worth noting that Somers’s evidence on affirmation yesterday was given, as Somers himself pointed out, with the specific endorsement in advance of the Scottish Government.
On 6 November 2020, Deputy First Minister John Swinney wrote to the inquiry:
“Mr Somers was not involved in the development of the procedure…”
Poor John Swinney. He gets all the dirty jobs.
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”.
Last Tuesday, Judith Mackinnon told the Salmond inquiry that:
“I have experience in HR procedures and investigations. What I did not have was experience of a judicial review process. I did not understand the separate and distinct legal tests that take place in the judicial review process and would have found it beneficial to have understood that in a lot more detail prior to the process beginning.”
Previous Scottish Government witnesses Leslie Evans and Nicola Richards have said essentially the same thing in their evidence.
We should be thankful, then, that these witnesses didn’t decide to hire a hit-man to take Salmond down. I mean, the script would write itself:
“I have experience in the procedures of taking goodfellas for one-way rides. What I did not have was experience of High Court murder trials. I did not understand the separate and distinct legal tests that take place in the criminal process and would have found it beneficial to have understood that in a lot more detail prior to the whacking.”
But back in what we like to think is the real world…
Can it truly be possible that these highly qualified and very highly paid professionals still don’t understand that what was being applied at the Salmond judicial review was nothing more nor less than the ordinary law of Scotland as it relates to their supposed areas of expertise?
Will anyone at the Salmond inquiry ever point out that they acted in breach of that law because they are all unfit for their jobs?
A redacted version of the Open Record which sets out the pleadings of the parties as adjusted to the time when Leslie Evans and the Scottish Government finally conceded defeat was published by the Salmond inquiry on Friday.
It contains page after page of shocking detail which should put to rest once and for all the lie that the case was conceded on some technicality. The unlawfulness of both the procedure itself and the way in which it was applied by Investigating Officer Judith Mackinnon and ultimate decision-maker Leslie Evans is laid bare again and again.
For anyone looking for a convenient summary, I suggest points a) to o) of the petitioner’s Statement of Facts XXII, beginning on page 82.
Mackinnon is due to answer for her key role in this debacle at the inquiry on Tuesday and surely Hynd, Richards and, above all, Evans must be recalled by the inquiry to answer – properly this time – for their key roles in it too.
Nicola Sturgeon again
However, my focus in the Salmond inquiry posts on this blog has been consistently on the First Minister and on her claims that none of this was anything to do with her. As the facts begin to creep painfully out, these claims that she removed herself from a process in which she should have been front and centre look ever more bizarre.
Specifically, the First Minister’s claim that she knew nothing about the complaints of Ms A and Ms B against Alex Salmond until well after he was informed of them himself on 7 March 2018 looks ever more like a brazen lie.
Consider this passage in the adjusted Answers lodged on behalf of Evans and the Scottish Government in the judicial review:
“Ms Russell, with the consent of Complainer A, shared the fact of the approach by Complainer A and the nature of the information provided by her with the first respondent’s Director of People, Nicola Richards, and Deputy Director of People Advice, Judith Mackinnon….
“Ms Allison, with the consent of Complainer B, shared the fact of the latter’s approach and the nature of the information provided by Complainer B with Ms Richards. Ms Richards advised Ms Russell and Ms Allison to ask complainers A and B respectively whether they wished to speak to the HR team. They did so [i.e. asked them to speak to the HR team] on 29 November 2017.
“On the same day Ms Richards met with the first respondent and, separately, the first respondent met with the interested party to discuss development of the proposed procedure.”
As seasoned Salmond inquiry watchers will know, the “Ms Russell” referred to here is Gillian Russell, the Scottish Government Director of Safer Communities, who had been appointed by Evans as a “confidential sounding board” for complaints on 10 November 2017.
“Ms Allison” is Barbara Allison, who is due to give evidence again to the inquiry on Tuesday. She is the Scottish Government Director of Communications, Ministerial Support and Facilities and was contacted by Ms B on 8 November 2017, when she discussed with her events involving Alex Salmond.
Now for the new bit.
The “first respondent” referred to here is Leslie Evans. The “interested party” is Nicola Sturgeon.
Leslie Evans again
The meeting on 29 November 2017 between Leslie Evans and Nicola Sturgeon “to discuss development of the proposed procedure” appears nowhere in the Scottish Government’s Written Statement to the inquiry nor in its accompanying Timeline.
This is a somewhat startling omission from documents which were supposed to have been prepared for the specific purpose of setting out for the inquiry the role of the First Minister and her officials in the development of the procedure.
The Timeline jumps from 24 November to 12 December 2017 with no events apparently thought worthy of mention in between, and the Written Statement does the same:
“A version of the draft procedure was sent to the First Minister on 24 November 2017. The First Minister and Permanent Secretary discussed a hard copy of the procedure at a meeting on 12 December 2017. The Permanent Secretary wrote to the First Minister on 20 December 2017 formally seeking her agreement to adopt the procedure. The First Minister approved the procedure on the same day.”
So what else happened on 29 November 2017, and why might it be in the interests of the Scottish Government to add this meeting to the long list of things they have conveniently overlooked or “forgotten”?
As readers of earlier posts in this blog may remember, there was a lot going on that day.
The events of 29 November 2017
Firstly, as the Answers acknowledge, Russell contacted Ms A as instructed on that day, and Allison likewise contacted Ms B.
In the cosy, intimate manner which had already developed between complainers and the supposedly impartial senior officials who would be processing their complaints, Russell emailed Ms A: “As agreed I sent your narrative on in confidence to Nicky and Judith. I have now been asked by Nicky and Judith if you would be prepared to speak to them…”
In the same informal manner, Ms A replied: “I’d be happy to speak to Nicky and Judith and will text Nicky as suggested….”
The “narrative” referred to is the same document which, with just a few tweaks, became Ms A’s formal complaint on 16 January 2018. It is the document for which, on the very same date, Judith Mackinnon was appointed as Investigating Officer, believing herself apparently to have had “no prior involvement” in the complaint, as required by the procedure.
Allison’s similar contact with Ms B, as again acknowledged in the Answers, was then noted in a text from Richards to Mackinnon: “[Redacted] the woman who spoke to Barbara – has been in touch to speak…. She hasn’t made a statement but is still in close touch with the one who did. [Redacted] ”
Quite what this meant, and what has been redacted from it, is perhaps one of the many things the inquiry could take up with Mackinnon on Tuesday.
Nicola Richards then had a one-to-one meeting with Leslie Evans, which can only have been for the purpose of discussing with Evans the “narrative” of Ms A – that is to say, her complaint about Salmond – and whatever had been learned from Ms B about her complaint.
That then is the context in which, as we now learn for the first time, Leslie Evans met with Nicola Sturgeon that very same day “separately… to discuss development of the proposed procedure.”
What the First Minister knew, and when
In that context, is there anyone in the country still gullible enough to believe that what was discussed at this newly-disclosed meeting was some abstract development of a procedure which was being developed — at breakneck speed — to be targeted at no-one in particular?
Is there anyone out there who still thinks the Salmond complaints were not discussed at all?
Just in case there is, let me remind readers of one further piece of context.
The procedure for complaints against former Ministers was still in draft at this point, so even if there had been an absolute prohibition – for some unfathomable reason – on the First Minister being told of them, it would have had no application.
Indeed, if the complaints had been about a current Minister – the closest analogy for which actual binding rules were in place on that date – the First Minister would have had a positive right under the Ministerial Code to be told of them and a positive duty as “ultimate judge” of them to put in train immediately a course of action to deal with them.
The notion that these “concerns” about her closest friend and mentor, not to mention her direct predecessor as First Minister, should or could have been withheld from the head of the Scottish Government by an unelected civil servant at this meeting is not just fanciful, it is laughable.
But matters go further still.
As readers of previous posts in this blog may again remember, the latest version of the new procedure which was being furiously drafted at this point provided in terms for the First Minister to be told of complaints against former Ministers as soon as they were made, to remain the “ultimate judge” of them, and indeed to intervene as necessary to secure the co-operation of former Ministers in the investigation of them.
So even if the procedure as drafted to that point had any binding force at all at the time of this meeting – which it did not – it would still have been entirely right and proper for Evans to give Sturgeon a full briefing on the Salmond complaints at that meeting.
So I ask again: Is there anyone out there who still believes that Nicola Sturgeon was not told of these complaints, at the very latest, by the time of this meeting?
If so, I’d genuinely love to know why.
Gordon Dangerfield 