Sunday, 11 October 2020

Unintended Consequence

I remain far from convinced that there was a conspiracy to get Alex Salmond prosecuted but I am increasingly of the view that there was, for whatever reason, a conspiracy to get him into bother.

The reason I do not believe there was a conspiracy to get him prosecuted is that, had there been, that conspiracy would have had to involve not just the SNP and the Scottish Government but both the Police and the Crown Office and that would start to get you into territory more commonly encountered in paper back thrillers than in real life. Anyway, when he was prosecuted, never forget that all of the charges, excepting one where the complainer was unavailable to come to court, got to the jury. Despite Salmond having the very cream of defence representation, there was no submission of "no case to answer" on even one charge and, beyond that, on all charges, a minority of the jury thought him guilty. Were they part of the conspiracy as well? And the fact that Mr Salmond himself has never claimed malicious, as opposed to misconceived, prosecution (as opposed to evidence given, some of which he certainly says was maliciously given) is also a factor.

No, the conspiracy to prosecute won't wash but the conspiracy to get Salmond into bother? 

You see, when in October 2017, the Scottish Government decided that their process for making and potentially upholding complaints of sexual harassment by Ministers would be retrospective, knowing what we know now but the SNP knew then about Salmond's general albeit not criminal conduct, it beggars belief that it did not occur to anybody in the SNP Leadership at that time that Salmond might get caught up in that process. After all, as Sturgeon says in her written evidence (referring to the 2008 Edinburgh Airport allegations) :-

"However, even though he assured me to the contrary, all of the circumstances surrounding this episode left me with a lingering concern that allegations about Mr Salmond could materialise at some stage"

The SNP Government had no need to make the complaints process retrospective. Such a decision would have passed without much comment at the time and, even if challenged, could have been justified on natural justice grounds, at least in relation to former members of the Government. At the start of the Holyrood Inquiry there was a half hearted attempt to suggest retrospectivity was a civil service initiative/suggestion but that has not stood the test of further evidence. It was a political decision. The exact process was left to the Civil Service to design. But that was all.

But that there were political machinations going on is also borne out by something I think has been largely missed in Nicola Sturgeon's written evidence this week. I myself am not too wound up about exactly when Sturgeon learned that Salmond was under investigation, assuming the only issue is whether it was at a meeting with Salmond on 2nd April 2018 or at a meeting with Geoff Aberdein a few days before. And to date that is the limit of the controversy on this point. Why Sturgeon didn't just say at the start "I first knew something was going on when I met Geoff Aberdein in late March but I only got the detail when I saw Alex Salmond personally on 2nd April" is a complete mystery? It might even have the advantage of being true. 

But here is where things get interesting. It is not entirely clear exactly what Mr Salmond wanted at that first meeting. To be fair, he had only just heard of the making of allegations against him, so perhaps at that point he didn't entirely know himself. I don't think it has ever been suggested, by anyone, that he just wanted the whole thing called off because of "who he was". Having been First Minister himself, he probably knew that this was almost impossible even if desired. Even if possible legally or administratively, the political risk would have been too great. Suppose the press had got hold of a story saying that, having trumpeted their intention to do something about historical sexual harassment, Sturgeon  had acted either to change the rules or to allow for one special exemption once Salmond had become the focus for complaints?   Not only would Salmond have been finished, so would have been Sturgeon. So possibly would have been the SNP as a Party of Government.

But by June, Salmond had a more specific proposal, revealed in Sturgeon's evidence to the Holyrood Inquiry published last week and one which was in no way improper. He suggested that fairness of the process be referred to secret but binding arbitration on both sides. Now, I simply cannot see the downside to this. Salmond was threatening Judicial Review. He was armed with senior counsel's opinion that this would succeed. If (as indeed it proved to be) he succeeded in that Judicial Review then there would be considerable embarrassment to the Scottish Government at both a political and institutional level. On the other hand, it is difficult to see how a Judicial Review could have been brought without the existence of such an action becoming common, if not technically public, knowledge. So both sides had an interest in opting for arbitration. On the one hand, the Scottish Government could have got binding reassurance that their process was sound or, on the other, Mr Salmond could have got a binding decision that he was being subject to a unfair process without his name being dragged through the mud. Indeed, on the Scottish Government side that might not even have been the end of the road. For, if it was only the process that was overruled (as opposed to the whole principle of allowing retrospective complaints, particularly on matters previously raised and supposedly resolved at the time) then there was technically no reason they could not have started again with a "fair" process. That latter outcome was what actually happened in the Judicial Review albeit it was conceded not on retrospectivity but on apparent bias. Whether to try starting again was simply removed as a consideration by the commencement of the criminal investigation. At its conclusion, the question of whether a different, fair, process might also have led to a referral to the Police was, legally, an academic one. The important thing to note however is that Mr Salmond was not suggesting the factual basis of the complaints would or could be disposed of behind closed doors. He was only concerned about the fairness of  the process, albeit, if the process was fundamentally flawed, the truth or otherwise of the allegations became academic.

But of course, the Scottish Government declined the offer of arbitration. And, so far at least, their reasons for that have been unconvincing. It is difficult to avoid the conclusion that somebody or some people wanted the complaints at best to be upheld and at worst at least to become public. And these people were at the heart of the Scottish Government's decision making.

And then you have to consider what happened next. The process continued as did Mr Salmond's threats of Judicial Review. Possibly his legal advice was to the effect that he could not judicially review a process, only the (unfair) outcome of such a process once reached, or possibly he retained some hope that, unfair though the process in his opinion was, it might yet come to the "right" conclusion without anything ever being publicly known about it. He might usefully be asked that when he comes to give evidence. 

But of course what did happen was not that. On 22nd August 2018, Leslie Evans informed Mr Salmond that the process was concluded and the intention was to refer matters to the Police. The following day the Daily Record published the reaching of that private conclusion. Now, it is inconceivable that this leak came from Mr Salmond's side and it is equally inconceivable that it did not come from someone, within a very small group in the know, who, for whatever reason, wished Mr Salmond harm. There was no reason that any police investigation needed to be public, indeed many police investigations patently are not. Salmond then raises Judicial Review proceedings but, of course, any hope of these being kept confidential is now academic. We all knew the outcome of the (as it turns out flawed) investigation. It had been in the Daily Record.

Pretty much everything I say above has been in the public domain but here is where I move slightly in to the field of speculation. 

It appears, until August, that the Lord Advocate, James Wolfe, knew nothing about any of this. And I suspect that it was only when he was consulted that anybody was sure what they were supposedly finding out through the investigation could engage the criminal law. The Lord Advocate was indeed possibly consulted because it finally occurred to somebody that this was a possibility. His reaction would have been instant. At least the  most serious allegation arising out of the Scottish Government investigation (Assault with intent to Rape) was potentially a very serious charge indeed, certainly bringing, on conviction, a period of imprisonment, albeit not, as some of the more hysterical Salmondistas are suggesting, for life. 

So it was right for the Police to be brought in and what happened thereafter happened in good faith. But I doubt that was the original intention when this all started out. Then, somebody or some people, for whatever reason, simply wanted to get Salmond into a bit of bother. It just then all got a bit out of hand. Nonetheless, the use of Government resources in the hope they might ensnare a specific individual for political purpose is still a pretty serious matter and if the balance of probabilities says that this was within the knowledge or expectation of Nicola Sturgeon, then I suspect it won't just be the opposition Parties she will need to worry about.