Today, Alex Salmond’s submission to the Holyrood inquiry was released in unredacted form (link). In it, he says that his legal team has identified 46 documents out of nearly 400 that were released by The Scottish Government that neither he, nor his legal team, had previously seen. He says that many of these would have been ‘crucial’ to both the Judicial Review and his criminal trial.
Salmond says the documents, which the Scottish Government not only have a duty to disclose, but also failed to disclose, despite a search warrant, would have reinforced the Judicial Review’s review of bias, not just of the Investigating Officer, Judith Mackinnon, but of the Permanent Secretary, Linda Evans.
Salmond also says that these new documents may have allowed him to establish the relevance of the proceedings of the Judicial Review to his criminal case. However, they were judged to be excluded from the criminal case as irrelevant.
He claims that the withholding of these documents amounts to contempt of court or perversion of justice by the Permanent Secretary.
Salmond details three revelations in the withheld material:
- The Permanent Secretary met with the complainers
- The Investigating Officer relayed his legal advice to complainers and witnesses
- Material about whether the matter was referred to the police against the wishes of the complainers
The Permanent Secretary met with the complainers
In the Judicial Review, Salmond says the new documents suggest that both the Permanent Secretary and the Investigating Officer met the complainers before he was informed of the complaint. This is despite Evans saying in evidence before the Committee that it would have been ‘inappropriate‘ for her to know the identities of the complainers before the complaints procedure was approved.
He notes that in the Judicial Review the person who is subject to the complaint does not get to offer their own defence. Instead, the Investigating Officer gathers evidence and facts that the Permanent Secretary uses to make their decision. He says impartiality of both the Investigating Officer and the Permanent Secretary should be paramount.
He says, “The Permanent Secretary knew of this meeting (and the associated notes) and chose not to disclose it, until now, which I find staggering…If this material had been disclosed, then the apparent bias of the Permanent Secretary as decision maker would have been introduced in our pleadings at the Judicial Review as an additional ground of review.”
He then says that not providing the relevant documents in the criminal case, in the face of a search warrant, is ‘a prima facie, a contempt of court’ and may be argued as an attempt to pervert the course of justice.
The Investigating Officer relayed his legal advice to complainers and witnesses
Salmond says that the Investigating Officer’s role as an impartial collector of the facts was not compatible with regular contact with the complainers, noting that the Investigating Officer described her view of his legal position — which he supplied to the Permanent Secretary and was subject to legal professional privilege — to the complainers and to witnesses.
He says the issue is not that the Government was not allowed to meet the complainers, but the Investigating Officer should not have done so, and should not have shared his legal advice. He claims the documents show that the Investigating Officer speculated with one of the complainers on his legal ‘thinking’ and that the Officer also shared that advice with witnesses. Salmond says, “these are not the actions of an impartial Investigating Officer”.
He notes the irony of civil servants freely dispensing his privileged legal advice, while the Government they serve refuses to release its own legal advice.
Material about whether the matter was referred to the police against the wishes of the complainers
The Permanent Secretary told the Committee that the interests of the complainers were always at the forefront of her consideration and the view of civil servants when embarking on the investigation was that any police referral had to respect the wishes of the complainers.
However, in August 2018, it appears that the Permanent Secretary ignored the view of the complainers when referring to the police, instead claiming it was referred to ‘on legal advice’.
Salmond says that “the degree of persuasion applied to the complainers would have been highly relevant to the criminal case”.
Finally, Salmond talks about articles that remain undisclosed.
“Despite the general admonition from Lord Pentland in the civil case, on the general requirement of disclosure by the Scottish Government, a Commission and Diligence in December 2018, a search warrant in the criminal case, and the repeated calls for documents made by this Committee, it is still far from clear that all relevant documents have been provided. My legal team, the Committee and indeed the Crown Office have all experienced similar frustration, obstruction and delays in securing documentation”.
He says the lack of disclosure led to his win in the Judicial Review, and the awarding of £500,000 of taxpayers’ money in costs. For the criminal case he says, “the blatant disregard of the provisions of a search warrant secured by the Crown would appear to be a prima facie contempt of court” and he is pursuing the matter with the Lord Advocate.
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