Ian Smart

I have tried to avoid commenting on the Salmond matter for the very good reason that I have no idea if there is a substantive matter at all. Nobody does.

Certainly, I am aware that there is an ongoing police inquiry (a matter to which I will return) and that it appears that it relates to allegations of some sort of past sexual misconduct. But that is all I know.

I do not know if the allegations are true and/or, even if taken pro veritate, they would constitute criminal offending.

Nobody does.

That is what the police are still trying to find out.

I defend people for a living. Many are guilty. Even some of them found not guilty were probably guilty. But it is a far from unknown phenomenon for someone to be investigated in good faith by the police only for them to be entirely cleared and/or for it subsequently to be called into question whether there was ever any crime at all. Don’t just take my word for it, consider the couple who spent two nights in the jail before Christmas accused of flying drones around Gatwick Airport.

Now, it is no secret that I have no time for Mr Salmond but that is not the point! He is as entitled to the presumption of innocence as much as the next man and it seems to me that some of his political enemies have completely lost sight of this. An internal SNP source is quoted in the papers as attributing the difficulties the party is in to Mr Salmond having found himself complained about.

But, with respect, that would only be the case if the complaints were well-founded. And, unless there has been an outrageous breach of confidentiality, that is something the source cannot possibly know. Similarly, Richard Leonard took it upon himself in the Scottish Parliament to describe the complainers (a word I use in the technical legal sense) as “courageous”.

How does he know this? Has he met them? Does he even know who they are? If not how can he possibly pre-judge their credibility and reliability in this manner? If (and it is a big if) this matter should ever proceed criminally these are remarks upon which any competent defence team will undoubtedly seize. Mr Leonard should shut up. As indeed should any other politician tempted to comment on the substantive background here.

And that leads me on to my second point. No matter what a mess the Scottish government (both political and permanent) made of the original investigatory process here, the idea that there could be a public inquiry of some sort at this time is absurd. If (again I emphasise a big if) there ever are criminal proceedings then inevitably the matters to be covered by such an inquiry would involve testimony that would also be potential testimony at any trial. What was the nature of the complaints? 

Were they the same complaints as had been made in 2013? Why were they referred to the police in 2018 but not in 2013? What has Mr Salmond previously said to third parties, not least Nicola Sturgeon, about his response to the complaints? What has Mr Salmond himself got to say about it? Actually, I’ll answer that final question, because, like any person under criminal investigation, he would be entitled to say nothing at all.

Indeed, that would almost certainly be the legal advice that he would be given. But, never mind that, in the aftermath of such an inquiry, how could Mr Salmond conceivably receive a fair trial when much of the “evidence” had already featured in every newspaper in Scotland? Enough of the amateur Perry Masons at Holyrood. Let due process take its course. There might well be cause for an inquiry when other matters are concluded but, on any view, we are still some way from that.

And thirdly, there is another criminal inquiry, albeit not by the police but by the Information Commissioner, now underway in which, at least on the known facts, Mr Salmond has legitimate cause for complaint. How the fact a referral was being made to the police ended up on the front page of the Daily Record? Consider what happened here. In mid-August, Leslie Evans told Mr Salmond that the outcome of the (until then internal Scottish government) inquiry was to refer matters to the police and that the intention was to make that referral public. Mr Salmond then indicated that he would intend to take legal action to prevent the public element of this as he believed the investigatory process to be flawed. A matter on which he was vindicated last week, albeit not, as I read it, on quite the same basis as the challenge was commenced.

Now, that originally proposed challenge might have been a hopeless battle, in that the referral itself was not something that could be prevented in the civil courts and once a police inquiry commenced matters would inevitably, at some point, have reached the public domain. But again – that’s not really the point! For, to head off any possibility, of the matter remaining confidential, somebody decided to tell David Clegg. I make no criticism of Mr Clegg. It was a great scoop and if it was reprehensible for journalists to publish leaked government information then the political pages of the newspapers would become pretty dull places.

Nonetheless, whoever leaked this, assuming they did so deliberately, almost certainly broke the criminal law. And did so for the precise purpose of damaging Mr Salmond. It will almost certainly prove impossible to establish an individual’s guilt for Mr Clegg will, quite properly, protect his source. Thereafter, while only a small circle of people could have done the leaking, it is still quite a big small circle, albeit clustered around one, or possibly two, particular people. It is an open secret that Mr Salmond’s team have a principal suspect and that that suspect is not part of the permanent government. Nonetheless, even if individual guilt is not established, it is important to acknowledge what happened. And to deplore it.

But my final point is this. Everybody should calm down. The police inquiry is not concluded and, even when it is, in a matter of this nature, any final decision is highly unlikely to be taken by the police but rather by the Crown Office.

All of that will take time, most likely several months. And (as I have made clear above nothing should be read into this “and”) if there is a prosecution it is highly unlikely matters will be concluded in this calendar year. So let’s respect the presumption of innocence and the right to a fair trial. These are both fundamental to all of our civil liberties. Not just Alex Salmond’s.