Understanding the legalities behind the Holyrood Committee

Sunday National, 28th February 2021.

The law can be tricky to get your head around at the best of times, but for anyone trying to follow the work of Holyrood’s Committee on the Scottish Government Handling of Harassment Complaints over the last two weeks – understanding the legal context governing what witnesses can and cannot say, what evidence can and cannot be disclosed, and what MSPs can and cannot publish – has been dizzying.

It doesn’t help that the legal storyline itself is complex. The Committee follows on from a judicial review in the Court of Session where Alex Salmond was the pursuer, and a criminal case in the High Court of Justiciary where he was the accused. Both are, to some extent, entangled in Holyrood’s inquiry. I don’t blame anyone for feeling a bit lost with the legal whys and whyfors this weekend.

Much of the reporting hasn’t helped – muddying and confusing the issues, sometimes deliberately, sometimes accidentally. The phrase “for legal reasons” covers a multitude of sins. This column is an attempt to introduce a little light into the discussion about the legal context for the evidence we heard and did not hear this week. I don’t have scope to deal with every issue, but hopefully will give you a clearer understanding of some of the legal context and how it has shaped the Committee’s work.

I understand there’s a contempt of court order in place in this case. What does this mean in practice?

In England, Wales and Northern Ireland, complainants in sexual offence cases have an automatic right to anonymity from the moment they disclose their allegations to the police. In Scotland by contrast, complainers have no such right to anonymity. However, the Contempt of Court Act gives courts the power to impose reporting restrictions if they are persuaded it is in the interests of justice to do so. These can be made in both civil and criminal cases. Here, an order was made prohibiting the identification of the complainers in the judicial review action, and on the second day of Alex Salmond’s sexual offences trial. After this point, it became an offence for anyone to publish the “names and identity, and any information likely to disclose the identity, of the complainers in the case.”

We saw the force of that order this week, when a 52-year-old defence industry worker Clive Thomson was jailed for 6 months for naming five of the complainers on Twitter. But notice the second part of it: the order also prohibits what is generally described as the “jigsaw identification” of complainers, by publishing information “likely to disclose their identities.” It is the interpretation of this second part of the order which has given Holyrood such grief over the last fortnight.

Why has jigsaw identification proven particularly problematic in Scotland?

Orders prohibiting the identification of complainers are only rarely made in Scotland. Breaches of those orders are even rarer. This is because of media conventions that complainers are not named, and the comparatively low level of public interest in most sexual offence prosecutions. Despite what folk sometimes believe, laws aren’t always a big book of categorical rules. Sometimes they are unclear. In the context of contempt, we have vanishingly little case law in this country on what constitutes “jigsaw identification.”

While we might look to English precedents on this as a guide, Scottish courts generally have the reputation of enforcing the Contempt of Court Act more robustly than their counterparts in the rest of the UK. Faced with this legal uncertainty, more conservative and more radical interpretations of the order are possible. This was reflected in the independent legal advice MSPs received.

But I don’t understand why this applies to Holyrood? What about parliamentary privilege?

Holyrood enjoys a much more fragile privilege compared to Westminster. While things said during Holyrood proceedings enjoy an absolute immunity from defamation actions – MSPs and their witnesses are still constrained to follow contempt of court orders. In the House of Commons, a more robust form of parliamentary privilege applies – though in practice, MPs who attempt to breach court orders during proceedings are shut down by the Speaker. But a decision by a Westminster committee to publish a document couldn’t be questioned in the courts in the way Holyrood
proceedings could be.

On Friday, Alex Salmond told MSPs he has evidence which he is prohibited by law from disclosing to Holyrood? How can this be? Is this also down to the contempt order?

Most of the focus has, understandably, has been on the impact of the contempt of court order on a parliamentary process, but perhaps the most significant legal restriction in play here isn’t the order – but section 162 of the Criminal Justice and Licensing (Scotland) Act 2010. Despite its unpromisingly bland-sounding title, it is this provision which most restricted Alex Salmond’s evidence to the Committee this week.

Why? What is its significance? Section 162 says that if material is disclosed to an accused person by the Crown in the course of a criminal trial, and that material wasn’t in the public domain at the time of the disclosure – they can only use or disclose that evidence for the purposes of their criminal defence and any appeals. It is an offence under s.163 to breach this. The legislation makes it clear that this restriction on use or disclosure binds them as tightly as it binds their client. It is this rule of law – passed when Alex Salmond was First Minister, without any exceptions or qualifications in it – which means he cannot “use or disclose” material turned over to him in the course of his criminal defence for anything else. It can’t form part of a submission of Holyrood. It cannot be used in a chapter of a book. That much is clear.

But if there was evidence which disclosed a wide-ranging conspiracy by some complainers to make false allegations against him, why wasn’t this brought out in the criminal trial?

That’s a very good question, and one which continues to puzzle me. Here we need to look at another Act. Under the Criminal Procedure (Scotland) Act 1995, there are restrictions in place about the evidence which can be led in sexual offence cases. These are in sections 274 and 275 of the 1995 Act. These applied in principle in HM Advocate v Alexander Salmond.

These rules were introduced to try to prevent accused people instructing their lawyers to explore – amongst other things – the sexual history of people alleging they were victims of sexual offences. The way these provisions work is that if an accused person wishes to lead evidence of a restricted topic, they must apply to the court in advance for a determination on whether it can be admitted in evidence during the trial.

On my understanding, Alex Salmond’s lawyers made an application to introduce the contested evidence at a preliminary hearing in the spring of 2020, and Lady Dorrian refused to admit it on the basis it was “collateral”. This is the material the former First Minister regretted he was unable to turn over to MSPs on Friday.

If this evidence disclosed clear evidence of a conspiracy on the part of one or more of the complainers, this is a difficult decision to understand. Scottish judges are not in the habit of preventing people on trial for serious offences from leading evidence which proves the allegations against them were confected or falsified.

But even stranger, in this context, is the failure to appeal against the decision to exclude this evidence from the criminal trial. Under section 74 of the 1995 Act, Alex Salmond had every right to instruct his lawyers to challenge Lady Dorrian’s decision. He did not do so.

If you had evidence in your possession which clearly established a conspiracy to make false allegations against you, why would you accept the judge’s exclusion of this evidence? If this evidence is compelling, I cannot understand why Lady Dorrian’s exclusion wasn’t vigorously challenged – but it was not challenged, despite the high stakes involved, despite the fact that Mr Salmond’s liberty depended on the outcome of the criminal case. But because no appeal was taken, this evidence wasn’t explored at trial, and because it wasn’t explored at trial, the ordinary application of section 162 means this evidence cannot now be used for any other purpose.

Whatever you made of the evidence we heard – and did not hear this week – that’s the legal context. Judge for yourselves.

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