Hirst Vs Crown/Police UPDATE
Tools of injustice?
The prolific American sci-fi writer L. E. Modesitt once said, “Never mistake law for justice. Justice is an ideal, and law is a tool.”
And the powers of tools lie in the hands of those who wield them.
This is a long overdue update on my ongoing court action against Police Scotland and the Crown Office and Procurator Fiscal Office (COPFS) both of whom I am suing for malicious prosecution.
First published: Wings Over Scotland
The prolific American sci-fi writer L. E. Modesitt once said, “Never mistake law for justice. Justice is an ideal, and law is a tool.”
And the powers of tools lie in the hands of those who wield them.
This is a long overdue update on my ongoing court action against Police Scotland and the Crown Office and Procurator Fiscal Office (COPFS) both of whom I am suing for malicious prosecution.
In 2020 Scottish prosecuting authorities had decided to prosecute a case against me following comments I made in a short, online video in the wake of the Alex Salmond trial.
On 7th January 2021 Jedburgh Sheriff Court upheld a “no case to answer” submission made by my then defence team and I was fully acquitted. The Court ruled that “no reasonable person could have been offended,” by what I said. The Sheriff added that the views I expressed were my “own personal views and nothing more.”
I was supported throughout my defence by a range of high profile legal figures including the former Cabinet Secretary for Justice in Scotland, Kenny MacAskill and Professor Robert Black KC, Professor Emeritus in Scots Law, as well as Professor Tim Crook, President of the Chartered Institute of Journalists. A host of well-kent faces from the political, legal, media and activist community across Scotland and internationally also expressed concern over my prosecution and the apparent abuse of power being directed towards me.
As my case is still ongoing I remain restricted in what information and detail I can relay to those who very kindly donated to my Crowdfunder over the past three years.
Although I knew at the start of this process it was not going to be quick, it has taken much longer than even I initially envisaged. The reasons for this are multi-layered but in essence we had a significant delay waiting on the outcome of an unrelated, but potentially still relevant case that was under consideration by the Court of Session, again related to malicious prosecution by COPFS.
The outcome of that case, regardless of the decision, would dictate the strategic approach of my legal team as they took my case forward. So with agreement my case was “sisted”, temporarily suspended, awaiting the outcome of this.
Following the decision in this other case my case was once again able to proceed.
At the start of this process we, myself and my legal team, led by the tenacious and determined Solicitor Advocate Gordon Dangerfield, were very confident that my case had a very high degree of success as it worked its way through the Courts.
It was our intention to bring the case back to Jedburgh Sheriff Court where my criminal trial was held and where we were optimistic we would secure a favourable outcome. We anticipated that Police Scotland and COPFS would appeal if they lost at this stage although we remained confident we would still have a positive outcome at the Sheriff Appeal Court. Only at that point did we consider that Crown Office and Police Scotland would try and overturn those rulings by remitting the case to the Court of Session.
At that point the financial costs rise considerably and so too the potential financial exposure on me if I were to ultimately have my case rejected by Court of Session judges.
However, shortly after the sisting of my case was recalled, Gordon was informed by solicitors acting for the Scottish Government that the Lord Advocate had signed a certificate under the Crown Proceedings Act remitting the case directly to the Court of Session, by-passing the lower courts. There is no legal method for opposing and preventing such a move by the Lord Advocate to enable the case to be heard through the lower courts first because it has always been assumed that the Lord Advocate would only take such a step for good reasons of public policy, but the aim in my case was clear.
The strategy of the Crown Office appears two-fold; firstly, to avoid our side securing favourable outcomes at an early stage through the lower courts and secondly to make us, me specifically, think twice about continuing given the very significant costs that I may be liable for if I am ultimately unsuccessful. In short, it is a further effort to intimidate and close me down.
What is perhaps even more remarkable is that the Lord Advocate herself has authorised this decision to remit directly to the Court of Session, a bold move given the widespread concerns already expressed about the separation of powers between Scottish Government and Scotland’s prosecuting authority.
Without going into the specific details, all that will be conducted in the court, but at its heart this case is one of a politically inspired effort to close down critical voices, in this case me, by individuals at the very heart of Government. In doing so prosecuting authorities, Police Scotland and the Crown Office, have acted as agents of that politically driven effort by certain individuals.
Notwithstanding the ongoing efforts to intimidate me and cover up the extent of political interference and malice that we intend to prove in court, I am determined to fight on despite the very high personal financial cost this may have for myself despite the generous donations given to date.
As things proceed we hope to reveal in court a lot more detail that is not only relevant in my own case but also the wider public interest. In doing so we hope to shine a powerful light on some of the practices and decision making taking place amongst those charged with prosecuting cases, supposedly without fear or favour.
Questions naturally arise about the allocation of resources against me by Police Scotland at a time when we are being constantly told budgets are overstretched. Why were as many as a dozen specialist detectives and officers working my case when they are normally assigned to serious crime investigations including rape and murder?
Why were multiple Procurator Fiscal Deputes and other Crown Office staff, up to and including very senior Crown Counsel, scrutinising my case in such detail? Initially I was charged with a Communications offence, later amended to a straightforward statutory breach of the peace. How many other statutory breach of the peace suspects have had that level of resources and scrutiny at the very highest level directed towards them?
How much does it all cost? Hundreds of thousands of pounds spent - public resources - but the high ranking officials directing that spending will not risk a penny of their own. Instead it is the victim of such malice and abuse of power who is faced with risking everything. What kind of justice system is that?
As a prominent legal figure told me in the wake of my acquittal a guilty verdict would have been a bonus for the Crown Office and Police. The process I have been put through and continue to endure, is the real punishment.
We will fight on for justice but we are not blind to the tools of law being deployed to prevent us reaching that objective.
JOURNALIST PROFESSIONAL BODY WELCOMES HIRST ACQUITTAL
The Institute has supported Mr Hirst throughout his ordeal and criticises the Scottish prosecuting authorities for wrongly perceiving something as criminal or threatening in his political commentary. Institute President Professor Tim Crook said “Mark Hirst is a respected professional journalist and a member of our Institute. Freedom of expression in the UK means that he has the right to exercise his skills with political activism in the media.”
(Published 10th January 2021)
The Chartered Institute of Journalists welcomes the decision to formally acquit Scottish professional journalist Mark Hirst of criminal charges over the content of a video blog he made when commenting on the end of the trial of former SNP Leader Alex Salmond.
The Jedburgh sheriff court said he had no case to answer.
The Institute has supported Mr Hirst throughout his ordeal and criticises the Scottish prosecuting authorities for wrongly perceiving something as criminal or threatening in his political commentary.
Institute President Professor Tim Crook said “Mark Hirst is a respected professional journalist and a member of our Institute. Freedom of expression in the UK means that he has the right to exercise his skills with political activism in the media.”
Professor Crook added: “Prosecuting authorities must be very careful to avoid over-deploying their powers of arrest, charge and prosecution in respect of journalistic and political communications.
“A sledgehammer has been picked up here when it should have been left in the toolbox.”
He said: “The implications for Mark Hirst have been devastating.”
He added: “We are very conscious that poor decisions by investigating and prosecuting authorities have a chilling effect on the vital public interest of protecting freedom of expression.
“This is particularly the case with political debate, argument and campaigning.”
Mr Hirst’s acquittal was welcomed by Scottish National Party MP for East Lothian, Kenny MacAskill, who is a former Scottish Government Justice Minister. He said on his Twitter feed: “The Crown once again tarnished but justice prevails. This is a pattern and an abuse of privilege.”
CIOJ link: https://cioj.org/member-acquitted-in-salmond-trial/
DEFEND FREEDOM OF EXPRESSION – by Tommy Sheridan
On Tuesday afternoon an incident occurred which concerns me greatly and should concern everyone else in Scotland who believes in the fundamental right of freedom of expression. A good man was criminally charged under the UK Communications Act 2003. That man is a lifelong advocate of an independent Scotland and a tireless campaigner against poverty, social injustice and discrimination in all its ugly forms.
(First published 15th May 2020, 3 days after Mark Hirst’s arrest)
On Tuesday afternoon an incident occurred which concerns me greatly and should concern everyone else in Scotland who believes in the fundamental right of freedom of expression. A good man was criminally charged under the UK Communications Act 2003. That man is a lifelong advocate of an independent Scotland and a tireless campaigner against poverty, social injustice and discrimination in all its ugly forms. His name is Mark Hirst and his ‘crime’ is to express reasonably, articulately and intelligently the anger and justified frustration that many hundreds of thousands across Scotland feel at the continued besmirching of former Scottish First Minister Alex Salmond despite his not guilty verdict in Scotland’s High Court in Edinburgh on March 23rd.
Alex Salmond faced serious charges of sexual assault and attempted rape and if found guilty he would rightly have been imprisoned for many years. His defence was that he was a victim of a conspiracy concocted by political and personal opponents to destroy him as a man and a political figure. He protested his innocence from day one and was confident the case against him was based on falsehoods and lies.
The Majority Women Jury Did Not Believe the Anonymous Women Accusers
The fifteen strong jury during the eleven-day trial consisted of nine women and six men. They listened to various allegations of sexual assault and attempted rape from a group of nine women who had their anonymity guaranteed. The press and media were under strict orders not to reveal the identities of Alex Salmond’s accusers, but their accusations were widely reported. His character was traduced, his actions condemned, and the lurid details were published and broadcast daily.
Prior to the verdict on March 23rd a male and female juror had been dismissed on health grounds leaving an 8-5 female majority jury to deliver the verdicts of not guilty on 12 of the 13 charges and not proven on another (a fourteenth charge had earlier been dropped completely by the prosecution). Despite the biased and deeply damaging reporting Alex Salmond was found innocent of the charges.
A female judge presided over the trial of Alex Salmond. Most of Alex Salmond’s defence witnesses were female. And most of the jury presented with the evidence against him were female. Yet despite the not guilty verdict much of the media and the group of female accusers collectively have continued to cast aspersions against Salmond and suggested that somehow the verdict was not definitive and that it had actually left them “devastated”.
They were “devastated”? I wonder how Alex Salmond and his loved ones feel? He has been plastered over every newspaper and media outlet in Scotland as a serial sex pest and potential rapist. He was found not guilty by a majority of women based on the evidence of other women but the group who made the accusations under the cloak of anonymity get to keep that anonymity and throw more stones at the reputation of Alex Salmond? That simply is not fair.
Alex Salmond Accusers Were Neither Credible nor Reliable Witnesses
The jury in the Alex Salmond trial clearly found the evidence of his nine anonymous accusers unreliable, not credible or both. It is conceivable that some or all the accusers were simply not telling the truth. Perhaps a perjury enquiry into the evidence they gave will now be launched and that matter can be more fully explored? Do not hold your breath though as it would appear the Crown Office and Procurator Fiscal Service (COPFS) in Scotland are only interested in hunting down Salmond and those who supported him not those who have been shown to be purveyors of not credible and/or unreliable evidence.
Mark Hirst was a defence witness for Alex Salmond. He was not called to give evidence. He knows Alex Salmond well. He knows the SNP inside out. He has supported Scottish independence all his adult life and worked for several SNP MSPs during a period of nine years at the Scottish Parliament. Mark is also a very talented broadcaster, writer, journalist and documentary maker. He is an ardent trade unionist who stood up against the tech firm VIASYSTEMS away back in 1998 when they closed their Borders factory and threw 1,000 workers on the dole. Mark was the elected trade union organiser who fought the owners all the way before being sacked alongside his colleagues. Mark is a fighter with a proven track record of standing up to the powerful for the powerless no matter the odds. I wonder how many of his detractors have such a track record?
Mark worked as a reporter for Scottish Television (STV) and has several award-winning documentaries to his name. He also worked at Radio Sputnik / Sputnik News UK where he was appointed Editor-in-Chief. During his nine years as a researcher for several SNP MSPs he organised the research staff into the National Union of Journalists to secure better pay and conditions for the staff from all political parties. He has worked in Public Relations at both local and national government and always promoted equality and social justice. His support for civil liberties is peerless. Mark is someone you want in your corner when fighting to break free from the exploitative and ruthless British state.
Mark Hirst is a Man of Substance – He Is No Criminal
In the face of the continued witch-hunt against his friend and political ally Alex Salmond Mark Hirst felt compelled to speak out in his defence. On 29th March, the day the nine women who had denied being co-conspirators managed to conspire to produce a joint statement about their ‘devastation’ at the not guilty verdict, Mark made a short video. He expressed his opinion that the continued attempts to undermine Alex Salmond were unfair, unjustified and politically motivated from quarters within the SNP who were comfortable to be on the payroll but were “soft” on independence, the primary reason for the formation and existence of that political party.
He made the point that given the political motivation of the accusations against Alex Salmond there would inevitably be repercussions that would involve further enquiries and investigations making the continued anonymity of the accusers difficult to maintain. His comments were entirely political in nature concerning the lack of urgency and action in taking Scotland further along the road to independence. He stated clearly that he knew the identities of all the accusers but gave absolutely no hints as to the identity of any of them.
The video was made available to his own Followers on Twitter and YouTube via a closed link. Mark did not Re-Tweet the video or send it to any SNP officials or any of the Salmond accusers. It has had little more than 2,300 views.
Mark was subject to a police raid on his home on April 20th. Five detectives swooped unannounced with a search warrant and removed his mobile phone and computers. During the biggest health crisis in a century it was a matter considered important enough to despatch five police officers to Mark’s home to pursue. Strange priorities indeed. When informed the issue of concern was the short video Mark had made on 29th March, he offered to remove it or change the setting to ‘private’ to severely restrict access to it. The police declined that offer and even suggested such a move could be construed as ‘tampering with evidence’…
The video is allegedly criminal. Despite Mark’s computer and phone being in the possession of the police since April 20th when he appeared voluntarily at the Edinburgh police station on Tuesday, 12th May, the only charge he faced was in connection with the video he had posted on 29th March and which he offered to remove while the five officers occupied and searched his house. It is bizarre indeed that the police have prevented the removal of a video online which they allege is criminal.
After a short interview Mark was criminally charged under Section 127, subsection (1a) of the Communication Act which reads [Note, the Crown Office later amended the charge to an alleged Section 30, otherwise known as a breach of the peace – a charge that was completely rejected by the Court on 7th January 2021 who ruled “there was no case to answer”]:
127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character
The video Mark made is available to view. Mark’s offer to remove it was declined by the police. They have not chosen to remove it either. You can view that video here. I invite you to view it and assess for yourself if it is “grossly offensive or of an indecent, obscene or menacing character”?
To be fair there is probably a case to be made that Mark’s beard is ‘offensive’ to some, ‘indecent’ to others and perhaps ‘obscene or menacing’ in character! If this matter were not so serious it would deserve ridicule.
Defenders of Freedom of Expression Must Defend Mark Hirst
If what Mark Hirst said in this video constitutes a crime in Scotland 2020 then we are in deep shit folks. Free speech, freedom of expression, basic human rights are empty and meaningless words. In the midst of the most serious health threat in the last 100 years we have police officers despatched to Mark Hirst’s home to confiscate his phone and computer under a court warrant and the formal charging of a man for making and issuing a video which contains his honest and politely expressed opinions with no threats, no names, no personal details. This is the stuff of police states. This is what happens in authoritarian regimes where freedom of expression is prohibited.
If Mark Hirst is a criminal today in Scotland then I fear for each and every one of us who holds political opinions, particularly opinions in support of Scottish independence and against the neo-liberal economic Establishment. We had better be prepared for the police knock on our door in the weeks ahead.
I am enraged that a good, decent, honest and compassionate man is now an alleged criminal. The pattern recently is extremely worrying.
Worrying Pattern of Censorship and Intimidation
One of the most popular and effective pro-independence websites on Twitter, Wings Over Scotland, was removed, then the personal account of the promoter of that site, Stu Campbell, was also recently closed. Although not sharing all Campbell’s views or the way he often expresses them I defend his right to advocate for independence and deal with critics as robustly as they deal with him. His Wings site used to have over 250,000 unique visitors a month. The closure of his sites is sinister and should be opposed.
We already have the enigmatic and outspoken champion of human rights Craig Murray, former UK Ambassador to Uzbekistan, being subjected to a criminal contempt of court charge for his coverage of the Alex Salmond trial when all objective analysis shows his coverage was less likely to constitute a contempt of court than the coverage of the mainstream newspaper detractors of Alex Salmond. It is clear the charge is more about trying to clip the wings of a powerful social media voice and silence a dissident voice than pursuing genuine contempt of court charges .
Is it just a coincidence that in the space of only a few weeks prominent Alex Salmond supporters find themselves subject to criminal charges by the COPFS in Scotland and censored on Twitter? I do not trust coincidences when they so conveniently amount to a weakening of the voices for independence and a clear warning to supporters of Alex Salmond to watch their step or else? Often individuals are targeted for harsh treatment to serve warnings on others. Well I say no to intimidation. Do not be cowered into submission or silence by the powerful COPFS in Scotland.
I urge you to support the Mark Hirst Defence Campaign in any way you can via www.civillibertyscotland.com. If we don’t speak up now in defence of those guilty of no crime other than expressing their opinions and speaking truth to power then we will all one day be caught in the tangled web of thought control and authoritarian rule which will render us powerless to oppose injustice and resist draconian restrictions on our freedoms.
Mark Hirst did not intend to offend or cause harm to anyone. He is a gentle man and strident peace activist. A man of considerable integrity and unflinching commitment to the cause of Scottish independence, equality and civil liberties. He is thoroughly deserving of our support.
HIRST CASE RAISED IN HOUSE OF COMMONS
Kenny MacAskill MP secure adjournment debate in which the case of Mark Hirst is raised in relation to the role and need for reform of the position of the Lord Advocate, the Government Minister who is responsible for Scotland’s prosecuting authority, the Crown Office and Procurator Fiscal Office.
SPEECH BY KENNY MACASKILL MP
Adjournment Debate – Role of Lord Advocate
Kenny MacAskill
(East Lothian) (Alba)
I believe that many of the ills that afflict Scotland can be laid at the door of this Tory Government. The Tories have not been elected in Scotland not just for the 55 years of hurt experienced by English football fans, but for 65 years—longer than I have lived. Independence is therefore essential, but not all ills rest there; some, along with our demons such as alcohol and violence, can and must be addressed by ourselves. The role of the Lord Advocate is one.
The Lord Advocate and Law Officers, along with Ministers, are part of Scotland’s offices of state. They are enshrined in the Scotland Act 1998, which established the Scottish Parliament. That is why legislative change is required, so I am grateful for the opportunity to raise this issue. I welcome the willingness of the UK Government to assist, and I hope that urgency will now be shown by the Scottish Government. Scottish democracy badly requires it.
Before the post of Secretary of State for Scotland was created, the Lord Advocate was the power in the land, and some postholders were despotic indeed. The transportation of Thomas Muir and the hanging and beheading of Baird, Hardie and Wilson, the Scottish radicals and 1820 martyrs, are crimes that lie with them. Thankfully, the post devolved and became a purely legal role, but an anachronism was built in, for the postholder is both principal legal adviser to the Scottish Government yet also head of the prosecution service—the Crown Office, as it is known. That is something replicated neither elsewhere in the United Kingdom nor, indeed, in any modern democracy. Conflict of interest precludes it. In England and Wales, an Attorney General advises the Government from within. Meanwhile, a head of the prosecution service is both separate and independent from Government. But not so in Scotland, and therein lies the problem.
To be fair, apart from those despotic years, postholders, irrespective of political hue and whether pre or post-devolution, have acted with the impartiality expected. Modest steps were taken to mitigate the conflict of powers. Under Alex Salmond’s Administration a convention was invoked that the Lord Advocate appeared at Cabinet only when legal advice was to be given and did not participate in wider political debate. But the anachronism still lingered. Under Nicola Sturgeon’s Administration it has been brutally exposed by both Scottish Government and Crown Office actions, with the Lord Advocate straddling both. Change is now needed, and fast.
Firstly, there has been an admission by the outgoing Lord Advocate of malicious prosecutions involving the administrators in the Rangers FC liquidation. That is unprecedented in Scotland, not just in recent years but since those days of the early 19th century. Even south of the border there have been no such cases since 1999, and high-profile cases before such as the Winston Silcott and Daniel Morgan cases were rare. It has caused alarm with the public and been of huge reputational damage in an organisation where impartiality is imperative. It has also caused consternation and anger within police and prosecution services, where the overwhelming majority of staff act without bias and free of any favour or prejudice. The reputation of the many has been traduced by a few.
It was the former Lord Advocate’s decision, and seeking to cast blame on his predecessor was shameful and inadequate. An inquiry, perhaps even by a non-Scottish judicial figure, has been promised. Additionally, there is the financial cost. The quantum of damages is for the court, but suggestions are that the final bill could reach £60 million or £80 million—this in an organisation with an annual budget of £300 million, struggling to meet existing commitments. The price will be paid by Scottish taxpayers and the loss felt by hard-pressed Scottish public services.
Secondly, and just as alarming, has been the role of the Lord Advocate and a coterie around him within the Crown Office in the Alex Salmond case, and the fallout from it. It is another instance of the public having to pay the price of Government incompetence, with the legal expenses bill in the civil case amounting to £500,000, but where the issue of impartiality as well as competence was raised. In the civil case, the presiding judge described the Scottish Government’s actions as “unlawful”, “unfair” and “tainted by apparent bias”. During proceedings, senior external counsel, Roddy Dunlop QC, dean of the Faculty of Advocates, expressed horror at the situation he and his colleague had been put in by their client. They could no longer rest on pleadings they knew to be untrue. The client was the Government, and their senior legal adviser was the Lord Advocate. A criminal case followed the failed civil case and was prosecuted by the Crown Office, where the same Lord Advocate remained in office.
Despite growing pressures on police and prosecution, nothing has been spared—nothing has been too trivial—but the targets always seem selective. The Alex Salmond case saw resources deployed that are normally reserved for serious organised crime figures or serial killers, for charges that, were it not for who was being prosecuted, would either never have seen the light of day or appeared only in the lowest courts, not the High Court. I say that as someone who was Justice Secretary for seven and a half years but also a defence agent for 20 years. As it was, Mr Salmond was acquitted on all charges, by a majority female jury.
It is standard practice in cases involving politicians that the Lord Advocate recuses himself from involvement in the consideration or prosecution of the case, and that was done here, with no direct involvement in the prosecution. However, at the same time, the Lord Advocate had been, and was, sitting on Scottish Government committees dealing with the civil case, where referral or prosecution was being actively sought and advised by the Administration.
Let us recall that a prosecution was sought by the Scottish Government, as the actions of the director of human resources in contacting the police confirm. Many—indeed, most—complainers were and remain at the heart of Government, or are officials or otherwise closely linked with the governing party. Prosecution was encouraged and pressed for by the chief executive of the governing party, who is the First Minister’s husband.
Chinese walls and recusal are entirely inadequate. In one role, the Lord Advocate was supporting a Government pursuing prosecution; in another, he was denying that it was anything to do with him. A separation of powers this certainly was not. When James Wolffe appeared before the Holyrood Committee considering the Salmond prosecution, he was frankly evasive and obfuscating, mirroring the actions of the Crown and the Government in a lack of openness and transparency. There was neither contrition nor candour. Open government this certainly was not.
The fallout and failures continue to reverberate. Following on from the Alex Salmond case has been that of Craig Murray, a writer and former diplomat. His conviction is under appeal at the Supreme Court; accordingly, I refrain from commenting on specifics of the case. Instead, I restrict my remarks to the decision by the Crown to prosecute Mr Murray for jigsaw identification of complainers in the case. Why was he prosecuted when others who did so—in one case certainly overtly, and in many others much more flagrantly than by Mr Murray—were not? No action was taken against them.
Moreover, publications that in any other case would have constituted a clear contempt of court went without censure by the Crown. They included newspaper articles as prejudicial as I have ever seen, but they were supporting prosecution, whereas Mr Murray, though seeking to report factually, was not. It seems that the Crown has one law for those supporting the Government line and another for those who challenge it.
Neale Hanvey
(Kirkcaldy and Cowdenbeath) (Alba)
My hon. Friend will be aware of the case of journalist Mark Hirst, who was arrested and charged with threatening and abusive behaviour. However, when that case went before Sheriff Paterson, he ruled that there was no case to answer, and that Hirst had simply been giving his opinion of the situation in the SNP and no more than that. There are also cases of police knocking on doors for single tweets, and others that are sub judice or where charges have yet to be brought.
All this is exerting a chilling effect on democracy in Scotland. Does my hon. Friend share my concern that, even in the absence of any evidence of wrongdoing or malfeasance, any continued failure by the Scottish Government to address the separation of powers reinforces talk of deliberate and targeted harassment of individuals critical of the Scottish Government, their policies and their leadership, including their role in the Salmond affair?
Kenny MacAskill
Absolutely. There is a clear perception of there being far from equanimity or, indeed, even balance by the Crown.
Now James Wolffe has stepped down as Lord Advocate, replaced by Dorothy Bain. Ms Bain has an illustrious record of service and I wish her well, but the structural flaw remains. Personnel changes, no matter how merited, cannot resolve the fundamental flaw of a lack of separation of powers. The impartiality of the Crown is an imperative in a democracy. It must be seen to act in the public interest, not that of the Government or their friends or allies. The coterie who surrounded Mr Wolffe and who were instrumental in driving these policies and actions, often against the wishes and views of long-serving staff, still remain—in particular, the Crown Agent, Mr Harvie, the senior civil servant. Unusually among senior Crown staff, his career has not simply been as a procurator fiscal in Scotland, but has included service in and secondment to British Government Departments.
The situation is now critical as a police investigation has opened into the SNP’s finances. The party leader is the First Minister and her husband is chief executive. This situation would be intolerable in any public body or private company, or even in a bowling or social club in any Scottish town. The idea that the chief steward could be the spouse of the treasurer would draw derision and rejection, but not so in Scotland’s governing party. Worsening that further is the fact that all three members of the SNP finance and audit committee resigned from their roles when refused information by the chief executive. That has been followed by the resignation of the elected treasurer, the hon. Member for Dunfermline and West Fife (Douglas Chapman), for similar reasons. Given what has happened, can the Scottish public be assured that the investigation will have access to all information, and that any decision to prosecute or not will be made on legal criteria and in the interests of justice?
Protocols have failed, been breached or even abused. Interim steps can be taken to separate the roles. Perhaps there should not just be a recusal, as there no doubt will be by the Lord Advocate, but, as with the Rangers FC investigation, the bringing in of an external judicial adviser. Moreover, the Lord Advocate has recused herself from involvement in the Rangers FC civil proceedings. Maybe she could recuse herself from all direct Government involvement. An in-house legal department exists. The duty to represent the Government in court and pursue constitutional challenges remains, but that can be dealt with by external counsel.
Change and a separation of powers there must be. The twin roles of the Lord Advocate in prosecution and in advising Government are an historical anachronism, and are entirely unsuited to a modern democracy. As a former Justice Secretary, as well as someone who has practised law in Scotland for over 20 years and cherishes our distinct system, I am appalled at what has happened, and I know that is echoed in legal circles.
Joanna Cherry
(Edinburgh South West) (SNP)
I am very grateful to the hon. Gentleman for giving way. I am not going to comment on any of the particular cases that he has mentioned, but is he aware that the First Minister of Scotland has recognised that there is a case for reform and does he agree that all that is really needed is for this House to pass a Bill to amend the Scotland Act to give the Scottish Parliament the power to make alterations to the role of Lord Advocate? The Scottish Parliament could then properly consider what I think he is suggesting—that is, separating the position into roles akin to the Attorney General and the Director of Public Prosecutions in England. I stress that I am not making any comment on the cases that he has mentioned. I am simply drawing to his attention the fact that the First Minister has recognised the case for reform and that this might be the best way to do it.
Kenny MacAskill
Recognition is one thing; progress is quite another. We are now in July. Holyrood is in recess. We have had an election. And we are still to see any action other than rhetoric from the Scottish Government. It is entirely inadequate. I do accept what the hon. and learned Member says—that it should be for the Scottish Parliament to decide what the structure should be. I think it has to be a structure that will mirror most democracies south of the border or indeed elsewhere. It should be for the Scottish Parliament to decide, but they have to show greater willingness.
I call on the Minister to engage with the Scottish Government as a matter of urgency so that changes can be made to the 1998 Act to provide for a complete separation of powers between the head of the prosecution service and the senior government legal adviser. Every modern democracy does so and so must Scotland. The failures have been too many and the risks are too great, for justice has not only to be done, but must be seen to be done.
7.41pm
The Parliamentary Under-Secretary of State for Scotland
(David Duguid)
I thank the hon. Member for East Lothian (Kenny MacAskill) and congratulate him on calling this Adjournment debate. I know that he and others—he in particular—have taken a keen interest in this subject. I am grateful for the opportunity to hear his views and those of others on this important constitutional issue, particularly in the light of the hon. Member’s former role as Cabinet Secretary for Justice in the Scottish Government.
I recognise the concerns that the hon. Member raised during his speech regarding the dual role of the Lord Advocate, both current and historical—we always enjoy a bit of Scottish history when we hear the hon. Member speak in this place—as the senior legal adviser and the most senior Law Officer. The hon. Member referenced specific cases. I hope he understands that it would be inappropriate for me or any Minister to comment specifically on those cases at this point. Although the UK Government would have a role to play in any changes to the role of the Lord Advocate, I stress that it would be inappropriate for me to speculate on what action should be taken at this time. I will therefore provide some context on the role of the Lord Advocate before I explain the set process that any changes must go through before the UK Government can take a position.
Joanna Cherry
I hear that the Minister is not going to speculate or set out a plan, but does he agree that one route might be for this Parliament to pass a Bill amending the Scotland Act so that the dual role of the Lord Advocate could be revisited by the Scottish Parliament? Of course, under the current Scotland Act, the role of the Lord Advocate is reserved to this Parliament. Does he agree that one potential way forward would be to pass very straightforward Bill that gave the power to change the role to the Scottish Parliament?
David Duguid
I will be coming to that point in a bit more detail later in my response. Although that is possible in theory, I will explain later why in practice the UK Government would choose not to go directly down that route. If the hon. and learned Lady will forgive me, I will come back to that in a minute or two.
The context of the role of the Lord Advocate is the Scotland Act 1998, which I will refer to, for brevity, as the 1988 Act. Section 48 of that Act makes provision regarding the appointment of the Lord Advocate and their removal from office. The 1988 Act itself came about after 74% of voters in the 1997 devolution referendum were in favour of a Scottish Parliament. The subsequent ’98 Act devolved significant powers to Scotland and legislated for the establishment of a Scottish Executive, later known as the Scottish Government, and a Parliament. The Scottish Parliament took responsibility in areas such as education, law enforcement, health and social care, and local government, among others, but there are many others that remain the prerogative of the UK Parliament through schedule 5 to the Act. There are too many to list, but a few examples would be foreign affairs, international trade, defence, national security, energy and, of course, the constitution.
Since 1998, there have been two major adjustments to the devolution settlement, the Scotland Acts of 2012 and 2016. The 2012 Act represented the first transfer of fiscal powers from Westminster to the Scottish Parliament following devolution. After the independence referendum of 2014, where the clear majority voted to stay in the Union, and after the Smith Commission, the 2016 Act was passed to transfer a range of tax and welfare powers to the Scottish Parliament. These Acts have created one of the most powerful devolved Parliaments in the world and give the Scottish Government power over numerous aspects of Scotland’s governance.
As hon. Members will be aware, the Lord Advocate is the Scottish Government’s most senior Law Officer and principal legal adviser—that is the topic of this debate. Section 48 of the 1998 Act, in addition to providing for the appointment of the Lord Advocate and their removal from office, also makes provision for the independence of the Lord Advocate in their capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. This was to ensure the traditional independence of the Lord Advocate when taking decisions related to those matters continued after they became a member of the Scottish Government.
The Lord Advocate’s role as head of the systems of criminal prosecution and investigation of deaths is, in section 29 of the 1998 Act, protected from modification by an Act of the Scottish Parliament. The hon. Member for East Lothian has mentioned the limitation on legislative competence in section 29, and any formal separation of responsibilities would require legislation. Although the UK Government have the power to bring forward legislation to make this change, in practice we would want to ensure the Scottish Government have first put their proposals to the Scottish Parliament for scrutiny.
Jim Shannon
(Strangford) (DUP)
This is a complex matter, but does the Minister not agree that there is distrust and conflicting opinions on the division of the role of the Lord Advocate within the Scottish Parliament and Holyrood, and that these proposals would need to be scrutinised before the Scotland Act 1998 is changed? Does he further agree that these matters must be addressed in Holyrood before Westminster is expected to change law?
David Duguid
I thank the hon. Gentleman for his timely intervention, because that is kind of the point I was making. Although the UK Government, as I said to the hon. and learned Member for Edinburgh South West (Joanna Cherry), have the power to bring forward such legislation, in practice we would want to ensure that the Scottish Government have put the proposals to be scrutinised by the Scottish Parliament. It is therefore a matter for the Scottish Government, in the first instance.
It is only right that the Scottish Parliament has an opportunity to scrutinise and debate these proposals. Only once these proposals are agreed in principle in the Scottish Parliament would we expect the Scottish Government to make a formal representation to the Secretary of State for Scotland, as custodian of the devolution settlement, and then the UK Government would consider the next steps.
As I think the hon. and learned Lady said, the SNP made a manifesto commitment ahead of the recent Scottish parliamentary elections to consult on whether the dual function should be separated in the future. It is right that our colleagues at Holyrood, rather than UK Ministers, take the lead on deciding what must now happen, or at least they should take that first step. We have not received, as far as I know at this time, any requests from the Scottish Government to amend the 1998 Act, and it would therefore be premature for the UK Government to comment further on that point.
Neale Hanvey
Surely there is nothing to prevent the Scottish Government from returning to the arrangement of the Salmond Government, where the Law Officer recused himself from Cabinet discussions on an informal basis, despite the separation of powers not being in place. That would at least show some willingness towards a formal separation, or towards a consideration of that matter before the Scottish Parliament.
David Duguid
I thank the hon. Gentleman for his intervention. Of course, what he is referring to is an informal arrangement, and by definition there would be nothing to stop such an informal arrangement if that was agreed by those involved, but again the question is not one for me, as a UK Government Minister, to decide.
The UK Government continue to work closely with the Scottish Government on all amendments to the 1998 Act to ensure that we are delivering together for Scotland. Devolution, brought about by that Act, is the means by which our two Governments work together. It is also the means by which we continue to live in one of the most successful and long-lasting political unions in history, as part of a devolution settlement that is aimed—and we strive for this, at least—to strike the right balance.
Question put and agreed to.
7.49pm
House adjourned.
ALEX SALMOND’S WRITTEN SUBMISSION
The written submission by Alex Salmond, Former First Minister of Scotland to the Parliamentary Inquiry into the Scottish Government’s “unlawful”, “biased” and “unfair” harassment process that sought to persecute Mr Salmond. (This version contains Scottish Parliament imposed redactions).
(Below is a copy of the written submission made by the former First Minister of Scotland, Alex Salmond. It contains certain redactions as published by the Scottish Parliament on 22nd February 2021. There is a clear and overriding public interest in seeing this submission despite the attempts by the “institutionally corrupt” Crown Office, along with others, to suppress the content.)
Submission of Alex Salmond
Introduction
This is my fourth submission to the Parliamentary Inquiry. It should be read in addition to, and in conjunction with, the three other previous submissions. Those prior submissions relate to the application of the procedure (phase 2), the Judicial Review (phase 3) and the Ministerial Code (phase 4).
This final document accordingly includes an introduction and overview of matters linking each of the four individual submissions
It thereafter includes submissions on
1. phase 1 of the Inquiry.
2. the question of ‘conspiracy’
3. Crown Office
Documentary evidence exists to support all of the factual statements made in this submission. I have sought to provide that to the Committee where it is within my power to do so. Despite repeated requests, however, Crown Office has not provided the Committee with the critical evidence which was unable to be led in the High Court. Perhaps even more concerning is the direction from Crown Office that I face the prospect of criminal prosecution for even referring to the existence of such evidence or specifying (even in broad terms) what that evidence is. One of their letters even suggested that the Committee’s use of such documentation might also constitute a criminal offence
My hope and belief, expressed outside the High Court in Edinburgh after my acquittal, was that documents which were not put before the jury and the public would be published in the course of this Inquiry. To date, and despite the centrality of those documents to the remit of this Committee and the overwhelming public interest in their publication, Crown Office continue to veto any such publication under threat of prosecution.
Despite that deplorable prohibition, I can confirm that all of the material factual statements made in this submission are supported by documentary evidence. Where I am legally allowed to direct the Committee to such documents, I will be happy to do so.
Overview
The Committee has achieved progress in the volume of documentation supplied.
However it has been fundamentally obstructed in three key areas.
First on the legal advice which the Government received from external counsel in the Judicial Review. In normal circumstances the extraordinary discovery by this Committee that both Senior and Junior Counsel to the Government threatened resignation because the case they were being asked to argue was unstateable would
have been headline news. However, despite two parliamentary votes, the full advice from Counsel hasn’t been provided to the Committee. It is extraordinary that the Lord Advocate, who could sanction such advice being published, has refused to do so. The legal provision for him to publish in the public interest is clear. Inexplicably, the Lord Advocate has been able to simply refuse that request and to get away with doing so in the face of the will of the Committee and of Parliament. Despite that, it appears from what has emerged that by October 2018 external counsel advised the Government that, on the balance of probability, they were heading for likely defeat. And yet, despite that advice and the cost of hundreds of thousands of pounds of avoidable legal fees, the Scottish Government pressed on with a case they expected to lose. This submission explains why.
Second the restriction arises as a result of the failure of the Government to provide documents from when the Judicial Review started in August 2018 until the Scottish Government finally conceded in January 2019. There were 17 meetings with external Counsel, daily meetings on progress of defending the Judicial Review (according to Paul Cackette, acting Solicitor to the Scottish Government during the case) and thrice weekly meetings according to Ms Judith Mackinnon, the Investigating Officer. However, the Committee has yet to publish (or to my knowledge see) a single relevant minute, email, text message or ‘One Note’ from that entire period relating to those meetings despite being assured that such documents would be provided. Of particular interest to the Committee would be the extent to which various parties were informed of the progress of the case and in particular whether the Lord Advocate’s expressed views on “sisting” (pausing) the Judicial Review pending the criminal case were discussed, how widely and with whom.
Thirdly, the crown response to the section 23 request has hindered rather than assisted the Committee. The information provided was neither sought nor publishable by the Committee. Those in Crown Office providing that information must have been well aware of that. However, text messages which could be properly considered and published and which have been part of the Committee’s questioning and would bear directly on the veracity of evidence given under oath to this Committee have been withheld. The blocking of the Committee in this matter and others is nothing whatsoever to do with protecting the anonymity of complainants, which I support and have upheld at every stage in this process. Rather, it is a matter of the shielding of some of the most powerful people in the country who are acutely aware of how exposed they would become.
The Parliamentary Committee has already heard evidence of activities by civil servants, special advisers, Ministers and SNP officials which taken individually could be put down to incompetence, albeit on an epic scale. However taken together, and over such a prolonged period, it becomes impossible to explain such conduct as inadvertent co-incidence. The inescapable conclusion is of a malicious and concerted attempt to damage my reputation and remove me from public life in Scotland. It is an attempt which would, in fact, have succeeded but for the protection of the court and jury system and in particular the Court of Session and the High Court of Justiciary.
However, underlying all of this and perhaps the most serious issue of all is the complete breakdown of the necessary barriers which should exist between Government, political party and indeed the prosecution authorities in any country which abides by the rule of law.
In each of the written submissions under Phases 1-4 of the Inquiry remit I have sought to explore those themes, and identify evidence to assist the Committee in doing its job holding the Executive to account.
The success, or failure, of this Committee in doing so will have a very significant bearing on public confidence in the ability of Parliament more generally to expose failures across Government. The ramifications of a Committee unable to complete its work due to delay, obstruction and refusal on the part of those under investigation are both profound and chilling.
Phase 1
In relation to Phase 1, I am asked for evidence regarding the development of the policy.
I would make the following general comments, on which I will be very happy to expand in oral evidence.
1) Fairness at Work
The Committee has heard evidence on the origins of the Fairness at Work Policy 2010 (‘FaW’). As First Minister I approved the policy and, in contrast to any other witnesses before this Inquiry, I was actually involved in its development. Implementation of the policy was achieved with the co-operation of the trade unions and I was pleased to be the First Minister who sanctioned its adoption.
As Appendix 1 from a Management Board meeting of 23 November 2009 makes clear, it was not evolved as a result of specific complaints about Ministers at the time but reflected long standing trade union grievances about Ministerial Offices stretching back to the days of the Scottish Office. FaW was the first workplace policy to include Ministers and I approved it on the basis that it was made compatible with the statute based Ministerial Code in which the First Minister is the final decision maker on the fate of a Minister facing a complaint. This was done by placing the Deputy First Minister in the deliberative part of the policy. The result was that only after a recommendation had been made would the First Minister finally decide. This was aimed at avoiding him or her judging twice on the same case. The policy was negotiated over a period of 18 months, was carefully constructed, balanced and lawful. It was well received by all concerned.
In the event there were no formal complaints made against any Minister under the policy and thus it was never invoked. Specifically and to my knowledge the present First Minister was never informed about any complaints against me because there were none. Similarly I was never informed about any complaints against her or any other Minister under the terms of this policy because there were none.
In the evidence of Ms Richards (25th August 2020) she revealed that there have been two complaints under FaW against current Ministers since 2017. Presumably these will have been dealt with under the FaW provisions including the involvement of John Swinney as Deputy First Minister.
This Committee is charged with finding out what went wrong. It should also look at what can be done now to put matters right.
Fairness at Work, of which the Permanent Secretary admitted in her evidence (in response to Ms Mitchell on 18th August 2020) to “not being an expert”, is in reality a carefully considered policy which is still in operation for the civil service and for serving Ministers with regard to bullying complaints. The Permanent Secretary’s extraordinary claim in the same evidence session that it does not cover harassment can only be a result of her admitted lack of familiarity with the policy. In reality it covers this explicitly in paragraph 3.2.1. As recently as December 2017 FaW was hailed by the unions in a letter to the Permanent Secretary as an achievement “of which we all should rightly be proud and something that sets up as being more assiduous than our counterparts down south” ([Redacted] FDA Convener)
FaW is legal, not illegal. It is procedurally fair, not unfair. It was carefully considered, not rushed. It achieved the central longstanding workforce ambition of having Ministers on the same footing as civil service managers. No doubt it can be updated and improved but the current position of limbo is ridiculous.
The concept of a civil service investigation into people over which they have no legitimate jurisdiction is nonsensical and the idea of passing the results to the relevant political party for action is self- evidently ludicrous. If legal action wasn’t taken against the government it would inevitably follow against any political party which attempted to proceed with any form of disciplinary action on such an unlawful basis.
Fairness At Work should be reinstated at the earliest opportunity pending the Dunlop review.
2) The Development of the 2017 Procedure
The Committee has already clearly established that there was no discussion or information presented to either Parliament or Cabinet on the 31st October 2017 of extending work place policies to former Ministers. Nor was there any suggestion that this should be done in the Head of the Civil Service’s letter of 3rd November 2017. And of course it was not carried forward in any other administration in the U.K. and was opposed by [Redacted] of the UK Cabinet Office when they were briefly consulted on the proposal later in November 2017. As she wryly asked the Scottish Government at that time, was there also to be such a retrospective policy for former civil servants? Nor was the new policy signalled in any of the internal communications with staff until February 2018.
The claim of the Government is that it came about independently from James Hynd who was tasked with drafting the policy and delivered the first draft applying ONLY to Former Ministers on November 8th 2017. However the previous day Ms McKinnon had circulated a “routemap” of a policy which also suggested applying to former Ministers. Mr Hynd reacted to that on 8th November saying that “neither of the pathways involving Ministers look right”.
It is stretching credibility to believe that this radical departure from all previous policy in the Scottish (or any other) administration was simultaneously and independently dreamed up by two separate civil servants. This is despite Mr Hynd telling the Committee on August 25th 2020 that he started with “a blank sheet of paper”. In one of the many letters to the Committee from civil servants correcting their evidence, Ms Mackinnon conceded on October 31 2020 that these things were “happening in parallel”. Indeed they were and there was a common factor. That common factor is the Permanent Secretary Leslie Evans whose office was deeply involved in directing the work of both James Hynd on his policy and Ms Mackinnon on her route map.
In addition we know now that Ms Evans went to see the First Minister on November 6th about her information that Sky News were about to run a story concerning Edinburgh airport. I am now in the position to know exactly what this issue was about and the Permanent Secretary’s fears that it was about to break as a major story were groundless. However in the febrile atmosphere of November 2017 a sense of proportion and due process was in short supply.
In reality I had spent 30 years in public life in Scotland and for most of that time was certainly the most investigated person in the country by the press. It is inherently unlikely that misconduct had remained unreported and undiscovered over such a period. Mr Murrell confirmed in his evidence to this Committee that he had never heard of any such complaint against me in my entire time in politics and the First Minister confirmed this on BBC television to Andrew Marr on 7th October 2018.
Regardless, the chronology revealed by the evidence tells us that the Permanent Secretary briefed the First Minister on 6th November 2017 on the proposed story involving Edinburgh Airport. Further, the Permanent Secretary was contacted by Barbara Allison about a separate concern from a former civil servant on November 8th 2017. Having briefed the First Minister on the first of these it might be considered unlikely that she did not brief her on the second. In that context, the notion that a policy instructed immediately afterwards which specifically, and uniquely, extended to cover allegations against former ministers is co-incidental and unrelated is hardly sustainable.
If further confirmation of the basis for the policy were needed, the Committee has evidence of two directly political interventions at this stage.
First, the Chief of Staff to the First Minister drafted a specific amendment on 17 November 2017 which amended the commissioning letter instructing the policy proposing the wording “but also former Ministers, including from previous administrations regardless of Party”. This was in an email to Leslie Evans’ Private Secretary. It is impossible to accept that such a radical expansion of the jurisdiction of the Scottish Government to cover not just former ministers of the current administration but also those of previous administrations (many of whom are no longer even in elected office never mind in Government) was not specifically inserted to allow the complaint against me to be prosecuted.
The second political intervention was when the First Minister and the Permanent Secretary reached agreement, perhaps at their meeting on November 29th but certainly before December 5th 2017, that the policy should be recast in order that FM should be taken out of the policy proper and only consulted or even informed after the process was complete. This was a fundamental change in the policy.
The timing of this is significant. When the Permanent Secretary agreed with the First Minister that she should take over as key decision maker in terms of this new policy she was already aware of the developing complaints against me. Therefore she put herself at the centre of a policy in the full knowledge that I would likely be the first (and perhaps only given the subsequent declaration of illegality) subject of its implementation. Doing so from a position of already being tainted by bias is an extraordinary decision.
Despite her protestations to the contrary the Permanent Secretary was chiefly responsible for the pursuit of an unlawful policy which has cost the Scottish people millions of pounds.
In her letter of 21st June 2018 to Levy and McRae she describes the policy as “established by me”. She claimed ownership of it then, but not now. When asked at the Committee she said “there seems to have come into being a tradition of calling it my procedure. It is not; it is a Scottish Government procedure and one that has been agreed by Cabinet..” In fact, this procedure was never even seen by Cabinet or Parliament.
It was established by Ms Evans.
In her presentations before the Committee, the Permanent Secretary still seems oblivious to the scale of the disaster she has inflicted on all concerned or the enormity of the misjudgements she has made.
The view that she should have resigned on 8th January 2019, the day that Lord Pentland’s interlocutor judged the policy Ms Evans established and the actions taken as “unlawful”, “unfair” and “tainted by apparent bias” is widely shared not least by Cabinet Ministers. The damage she has done to the reputation of the civil service is very significant. In my view, any person conscious of the responsibility of holding high office would have resigned long ago. Instead Ms Evans’ contract was extended.
3) The role of the Investigating Officer
As the Committee has already discovered the “prior contact” of the Investigating Officer with the complainants was not “welfare”, as was indicated to Parliament, but was specifically contact about emerging complaints, weeks before the policy under which they were to be pursued was even approved.
The Committee has already established that complainants were informed that Ms McKinnon would be appointed the Investigating Officer in early December 2017, long before complaints were actually made. The Committee has further established that the draft policy was even shared with one complainant for her comment and that Ms Mackinnon was in contact with both complainants to discuss the basis on which future complaints might be submitted under the policy.
Documentation which finally emerged at the Commission and Diligence ordered by the Court of Session at the end of December 2018 demonstrated that the Government pleadings were false in terms of the nature of this contact. This has been admitted by the Lord Advocate in his evidence to the Inquiry on 8th September 2020. Again, such conduct appears to carry no sanction. These are serious matters, especially so for a Government making statements to a public court.
For example the “OneNote” from Judith McKinnon dated January 9th 2018, and revealed as a result of the Commission process, speaks to “changing” the position of a reluctant complainant, the sharing of complaints, and of it “being better to get the policy finalised and approved before formal complaint comes in” and of not telling the FFM until we are “ready”. It is this information that was completely at odds with the government pleadings in the Judicial Review and indeed stands in stark contrast with the oral evidence presented to the Committee.
These practices are not just wrong, they are an affront to the principles which underpin workplace and human resources policy across the country. The Committee has made reference to ACAS guidance at various stages of the Inquiry. How such conduct could even be contemplated by an individual employed at significant public expense and with a string of HR qualifications remains to be explained.
Watching the evidence before the Committee, it is apparent to me that even after having conduct declared illegal in the Court of Session, those at fault in the civil service still cannot accept the fact that they did something seriously wrong. In reality behaving unlawfully is as serious as it gets for any public servant.
The repeated claim that the terminology somehow changed for the first to the final drafts of the procedure thus causing confusion for those implementing the policy is not just irrelevant (since it is only the final version that matters) it is also untrue.
In fact one of the very few unchanged provisions in the policy as it went through numerous drafts and redrafts between November 8th to the final iteration on December 20 2017 was that the Senior Officer/ Investigating Officer should have “no prior involvement”.
Nor is it credible that the claim that the need for impartiality of an investigating officer or equivalent was misunderstood. On the contrary, both James Hynd (10th November 2017) offering 3 names at “arms length” and Judith McKinnon (7th November 2017) seeking to engage an “independent party to investigate” recognised this at an early stage.
Whether that person came from the broader civil service or outside it is secondary. Perceived freedom from bias is an easily understood concept which is well established in common law and in workplace policy. The appointment of Judith McKinnon in this light was always wrong and is incomprehensible particularly in the
face of the fact that she has confirmed before this Committee that the nature of her prior contact with the complainants was well known and indeed sanctioned among her colleagues and line managers.
When the fact of it was discovered by the Government’s external Counsel (and even after the duty of candour was explained to government lawyers by them on November 2nd and then by the court on November 6th, both 2018) the attempt was still made in pleadings to present it as “welfare” contact.
The documents which demonstrated this to be false had to be extracted from the Government by a Commission and Diligence procedure under the authority of the court as granted by Lord Pentland. The documents then produced under that procedure emerged despite the Government being willing to certify to the Court that these documents simply did not exist. That conduct is outrageous for a Government. At the Commission itself, Senior Counsel for the Government (himself blameless for the debacle) felt compelled to apologise to the court repeatedly as new batches of documents emerged.
It is highly probable that had this documentation not been concealed from the court (and from the Governments own counsel) the falsity of the Government’s pleadings would have been avoided. The fact that even after the Government case collapsed, misinformation then appeared in both a press release from the Permanent Secretary and the First Minister’s statement to Parliament of 8th January 2019 speaks to an organisation unable and unwilling to admit the truth even after a catastrophic defeat, the terms of which they had conceded to the Court of Session.
The interests of the complainants
I also want to make a submission about the claims by the Scottish Government to have promoted the interests of the women who raised complaints. That is, on the evidence before the Committee, clearly false.
The Permanent Secretary claimed to the Committee that the interests of the complainants were paramount in the Government thinking. This is very far from the case.
The complainants were brought into the process by conduct “bordering on encouragement” as it was submitted by my Senior Counsel to Lord Pentland in the Judicial Review
The complainants were assured that they would be in control of the process and that any police involvement would be their choice.
This assurance has been stipulated from the earliest origins of the policy (eg Nicola Richards’ email to Permanent Secretary of 23 November 2017) and remained in place until the Permanent Secretary countermanded it in her instruction to Ms Richards to send her decision report to the Crown Agent in August 2018, a move taken against the direct wishes of the complainants.
They were offered the option of making “anonymous complaints” for which there is no provision in the policy. However, when it came to actually protecting the anonymity of the complainants through a court order in the Judicial Review in October 2018 the Government was not even represented by Counsel in court. It was, in fact, me who instructed Counsel to seek that anonymity on the part of the women concerned.
The investigation was carried out against the advice of the police who pointed out that the Scottish Government were not competent to conduct the investigation. This has been made available to the Committee in the police evidence from the Chief Constable.
The reports to the Crown Office (instead of the police) were made against the express wishes of both complainants and in direct conflict with the terms of the policy at paragraph 19.
The leak of the story to the Daily Record on August 23 2018 was made with no consideration of the impact on the complainants, impact which the Permanent Secretary described in her evidence as causing considerable distress to all concerned. That, of course, was in itself in direct contravention of the confidentiality of the process promised to the complainants, and also to me.
However, it had been the Permanent Secretary’s own intention, despite police advice to the contrary, to issue a press statement confirming the fact of the complaints on Thursday 23 August 2018.
This Committee’s remit is to examine the actions of those in authority. Accordingly the conduct of the Permanent Secretary and the civil servants and special advisers involved is important. To claim, as the Scottish Government has done, that the wishes and welfare of those who had made complaints were central to the decision making is demonstrably untrue.
The leak to the Daily Record
In my view, the circumstances of the leak of the details of the complaints to the Daily Record on 23rd/24th August 2018 should be thoroughly examined. It is highly likely that the leak came from within the Scottish Government and, in all likelihood, from one of the Special Advisers to the First Minister. The background facts may assist
The Permanent Secretary instructed her staff to send her Decision Report to the Crown Agent on or about August 21st 2018
The Crown Agent, according to the police informed them of the Government’s intention to release a story of the fact of the complaints to the press and the Chief Constable and another senior officer advised against it and refused to accept a copy of the report. We know, therefore, that the desire of the Scottish Government to get these matters into the public domain is fully supported by evidence.
Despite this police advice, two days later the Government informed my legal team they intended to release a statement at 5pm on Thursday 23 August 2018. We advised that we would interdict the statement pending our Judicial Review petition and the statement was withdrawn. On the strength of that undertaking, we didn’t require to seek interdict.
We were then informed at around 4pm that the Daily Record newspaper had phoned the Scottish Government press office with knowledge of the story but had no confirmation. At 8pm, the Record phoned and then emailed at 8.16pm claiming confirmation had now been given and broke the story at 10pm. The second story they printed on Saturday 23rd August 2018 contained specific details from the complaints and demonstrates that they also had access to the Permanent Secretary’s decision report or an extract from it.
This leak was (according to the ICO) prima facie criminal, deeply damaging to my interests and those of the complainants and a direct contravention of the assurances of confidentiality given to all. After I formally complained to the ICO, the conclusion of the ICO reviewer assessing these facts was that she was “sympathetic to the thesis that the leak came from a Government employee”. The only reason no further action could be taken was because the specific individual could not be identified without police investigation. I intend to return to that police complaint when this Committee has concluded its review. I should say that I am confident that I know the identity of those involved in the leak.
John Somers, The Principal Private Secretary to the First Minister confirmed that her office had received a copy of the Permanent Secretary’s report in evidence on 1st December 2020. However, that evidence was then corrected to say that it had not been received. However, that is difficult to reconcile with the ICO review report (paragraph 4.8) which list the PPS, and therefore The Private Office as one of the stakeholders “who has access to the internal misconduct investigation report”.
It is unlikely that a leak to the Daily Record came from mainstream civil service. The overwhelming likelihood is that it came from a Special Adviser to the First Minister who had access to the report or an extract from it which was the basis of the Daily Record story of August 25th 2018.
The question of ‘conspiracy’
It has been a matter of considerable public interest whether there was ‘a conspiracy’. I have never adopted the term but note that the Cambridge English Dictionary defines it as ‘the activity of secretly planning with other people to do something bad or illegal.’ I leave to others the question of what is, or is not, a conspiracy but am very clear in my position that the evidence supports a deliberate, prolonged, malicious and concerted effort amongst a range of individuals within the Scottish Government and the SNP to damage my reputation, even to the extent of having me imprisoned.
That includes, for the avoidance of doubt, Peter Murrell (Chief Executive), Ian McCann (Compliance officer) and Sue Ruddick (Chief Operating Officer) of the SNP together with Liz Lloyd, the First Minister’s Chief of Staff. There are others who, for legal reasons, I am not allowed to name.
The most obvious and compelling evidence of such conduct is contained within the material crown office refuses to release. That decision is frankly disgraceful. Refusing to allow the Committee to see that material both denies me the opportunity to put the full truth before the Committee and the public, and makes it impossible for the Committee to complete its task on a full sight of the relevant material. The only beneficiaries of that decision to withhold evidence are those involved in conduct designed to damage (and indeed imprison) me.
From a very early stage in the Judicial Review the Government realised that they were at risk of losing. By October they were told by external counsel that on the balance of probability they would likely lose. This is the legal advice they have hidden from the Committee in defiance of two parliamentary votes.
As the Committee has heard in evidence there were 17 meetings of the Committee formed to monitor and plan the Scottish Government defence of the Judicial Review between August 2018 and January 2019. Paul Cackette in his evidence said that there were daily meetings while Ms Mackinnon suggested three times a week. Despite this information being offered at the evidence session of 1st December no information has been received by the Committee of any of these meetings. I believe there have to be such emails which show the Lord Advocate’s advice on the possibilities of sisting (pausing) the Judicial Review behind the criminal case. The advantage of doing so in a context where the Judicial Review was likely to be lost was clear. Any adverse comment or publicity about the illegality of the Scottish Government actions would be swept away in the publicity of my arrest and subsequent criminal proceedings.
It became common knowledge in government, special advisers and the SNP that the Judicial Review was in trouble for the Government and the hope was that police action would mean that it never came to court, that the JR would be overtaken by the criminal investigation.
In evidence Ms Allison on 15th September 2020 specifically denied that the Scottish Government had any role in contacting potential witnesses or former civil servants after the police investigation had started on August 23rd 2018. This is not true.
I enclose at appendix 2 a copy of an unsolicited email sent by Ms Allison herself to an ex Scottish Government employee on August 27th who then received a further unsolicited email from Ms Ruddick of the SNP the following day (appendix 3) The individual concerned, who provided a defence statement, had never even been a member of the SNP. I believe her contact details were given to Ms Allison by a Government Special Adviser.
Another Special Adviser was in contact with the majority of people who thereafter became complainants in the criminal trial, shortly after the story being leaked to the Daily Record on August 23rd 2018.
In his evidence session of 8 February 2021 Mr Murrell spoke of the letter sent by the FM round all SNP members on 27th August 2018. I pause briefly to note that despite the email reaching 100,000 members, not one complaint about me was received in response. However, what he did not disclose was the email round SNP staff and ex staff members sent by his Chief Operating Officer from late August 2018 (enclosed as appendix 3). This email was sent selectively. Some staff members were targeted and sent it. Others were not.
The recruitment of names to receive this email provoked opposition. Appendix 4 shows the refusal of a senior member of the SNP administrative team at Westminster to supply names to HQ. The staff member expressed the view that she was not prepared to take part in an obvious “witch-hunt” which would be incompatible with her professional responsibilities as a lawyer. At Appendix 5 I enclose the terms of an affidavit of the staff member who has agreed to have it shared with the Committee. What is clear is that even at the time of the initial trawl for potentially supportive individuals, there was profound disquiet about the ethics and legality of the approach.
In addition to advocating the “pressurising” of the police (those text messages are public and before the Committee), Mr Murrell deployed his senior staff to recruit and persuade staff and ex staff members to submit police complaints. This activity was being co-ordinated with special advisers and was occurring after the police investigation had started and after I ceased to be a member of the SNP. From the description of the material released to the Committee under section 23 it is clear that any supporting evidence establishing this point was not shared with the Committee by the crown office. Why?
It was clear that defeat in the Judicial Review would have severe consequences. Cabinet Ministers thought it should lead to the resignation of the Permanent Secretary. The Special Adviser most associated with the policy believed that her job was in jeopardy and accordingly sought to change press releases in light of that. The First Minister’s team felt threatened by the process as did the civil service. The documentary evidence shows that special advisers were using civil servants and working with SNP officials in a fishing expedition to recruit potential complainants. This activity was taking place from late August 2018 to January 2019, after the police investigation had started.
The Judicial Review cannot be viewed in isolation. The effect of it, and its likely result of a defeat for the Scottish Government led to the need to escalate these matters to the police, even if that meant doing so entirely against the wishes of the two women who had raised concerns. The Permanent Secretary’s “we’ve lost the battle but not the war” message of January 8th 2019 to Ms Allison whilst on holiday in the Maldives is not (as she tried to claim) a general appeal for equality but rather shows her knowledge that there were further proceedings to come and her confidence that the criminal procedure would render such a loss in the Court of Session irrelevant. I note in passing, that such language is, in any event, totally incompatible with the role of a professional civil servant.
The Role of the Crown Office
The Crown Office has intervened three times to deny this Committee information for which it has asked.
This has been done by reliance on legislation which was never designed to obstruct the work of a Parliamentary Committee acting in the public interest and investigating the actions of the Scottish Government. I know this to be true because I was First Minister when the legislation was passed in 2010. The true purpose of s. 162 of the Criminal Justice and Licensing (Scotland) Act 2010 was to prevent witness statements falling into the hands of the accused and being used to intimidate or exert retribution on witnesses and further because of instances of evidence ending up held or disposed of in an insecure fashion. The basis of the legislation was Lord Coulsfield’s Report (2007) and the intent was to clarify the legal requirements of disclosure and to establish practical arrangements to prevent the misuse of disclosure. Thus section 162 (and 163) had nothing whatsoever to do with preventing relevant evidence being presented to a parliamentary Committee and its misinterpretation as such by the Crown Office is a profoundly disquieting development which strikes at the heart of the parliamentary system of accountability.
On 17th September 2020 the Crown Office said that our proposal to the Committee to identify the existence of documents which had not been provided by the Government but which had been disclosed to me in the criminal case would be covered by Section 163 of the 2010 Act that “any person who knowingly uses or discloses information in contravention of section 162 commits an offence”
Just in case we did not get the message he repeated the same point on 3 November 2020. On 17th December 2020 the Crown’s representative went further to block information specifically requested by the Committee “For you or your client to accede to the request of the clerk to the Committee would require both the use and disclosure of said information. As such what is proposed would amount to a clear breach of section 162 which, by reference to section 163 would amount to a criminal offence”.
He then appears to suggest that the Committee itself would be in danger of prosecution if we had acceded to the clerk’s request.
“Further, any person who received such information from you or your client would also be in breach of section 162, and consequently section 163, if they use or disclose that information. In these circumstances I do not consider what is proposed is acceptable”
This is a letter from an unelected official citing legislation passed by this Parliament for quite different reasons and using it to deny information to a Committee of elected parliamentarians. Some of the information we intended to provide included Government documents which should have been provided to the Committee in the first place. This position is extraordinary and totally unacceptable.
Given this attitude to disclosure by the Scottish Government and Crown Office, it becomes highly surprising that when this Committee exerted section 23 powers to require documents it was given irrelevant information for which it had not asked and could never be published while relevant information remained undisclosed. It is also clear that Government SPADS were briefing the media on this information before members had even seen it. This is not the behaviour of a prosecution department independent of government influence.
The Lord Advocate said in his evidence on 17th November 2020 that he thought the Committee has seen this correspondence. As far as I am aware this is not the case Nevertheless, I am happy now to provide that correspondence if the Committee so wishes. In his latest letter of 8th February the Lord Advocate pointedly fails to answer the specific question from the Committee Convener of 3rd February seeking confirmation that all Government records had been provided.
As was glaringly clear from his evidence and his inability to address the most basic of questions, his denial of provision of the legal advice of external counsel, his costly delay in settling the case, his refusal to confirm what the Committee eventually found out that both Counsel threatened to resign from the case, the Lord Advocate is deeply compromised between his twin roles as head of prosecutions and chief government legal adviser.
However the matter goes further yet. The Permanent Secretary has confirmed in evidence to the Committee that the referral to the crown office was contrary to the express wishes of the complainants. In spite of his protestations that he recused himself from anything to do with the criminal investigation. I believe that the Committee should ask the Lord Advocate directly whether he instructed two unwilling complainants to make police statements.
Secondly the Committee has heard of the highly unusual route via the Crown Agent that the Permanent Secretary ordered her staff, against the wishes of the complainants, to present her report to the Chief Constable. Crown Agent David Harvie’s line manager at that time was Leslie Evans, the Permanent Secretary.
The Crown Office under current leadership is a department simply not fit for purpose.
Summary
The procedure was devised when the Permanent Secretary, as decision maker, had knowledge of emerging complaints against me. From the outset the Permanent Secretary was compromised and should not have taken on that role.
The procedure was unsound not just in its implementation but in its genesis. It was devised “at pace”, probably with the purpose of progressing complaints against me and certainly without proper care or regard to its legality or effective consultation with the unions.
The documents disclosed to the Committee demonstrate further serious abuses of process by both the Investigating Officer and the Permanent Secretary.
In a further breach of the duty of candour the Government owed to the Court, those documents were not made available at Judicial Review.
The Investigating Officer had not just “prior involvement”, but subsequently regular contact with the complainants of a nature and level which was self-evidently inconsistent with that of an impartial official.
The Permanent Secretary who in her own words “established” the procedure met or spoke to both complainants on multiple occasions (including in mid process) and failed to disclose this in either the civil or criminal case.
The procedure was conceptually flawed and would have collapsed on principle even if it had been properly implemented. It is a retrospective, hybrid policy, which claims jurisdiction over private citizens who might have no connection whatsoever with the Scottish Government and shows complete confusion between the legitimate roles of Government and political parties.
It is demonstrably unfair. It transgresses the most basic principles of natural justice in not even allowing the person complained about the right to prepare their own defence. In addition, the Permanent Secretary denied access to civil servants, witness statements or even my diaries until they were pursued in a subject access request.
The Government was aware at a very early stage that they were at significant risk of defeat in the Judicial Review, and by October 2018 were advised that, on the balance of probabilities, they were likely to lose. Nevertheless they kept the clock running and the public ended up paying over £600,000 as a result.
This information on likely defeat in the JR was communicated to key decision makers
– the Permanent Secretary, First Minster, the Lord Advocate, the Chief of Staff- in meetings with external Counsel through October and November 2018.
The interests of complainants were disregarded by the Government in refusing mediation initially without consultation, being given no consultation whatsoever on the possibility of arbitration, being given false assurances on the Government accepting their clear view against reporting matters to the police and then sending the report to the Crown Office against their express wishes. The Government didn’t even instruct counsel to attend court for the procedural hearing to address my application to guarantee the anonymity of complainants.
The Crown Office has blocked key information coming to this Inquiry by wilfully misinterpreting legislation designed for other purposes.
The Lord Advocate is manifestly conflicted in his roles as both Government legal adviser and prosecutor.
The advice of the Lord Advocate at one stage included, for example, the option of sisting (pausing) the Judicial Review to allow a criminal case to overtake the JR proceedings. A consequence of this happening would have been to protect the government from the catastrophic damage arising from losing the judicial review and a finding of unlawful conduct.
This prospect provided an incentive and imperative for the recruiting and encouragement of police complaints from others.
This was done by the closest advisers to the First Minister and senior SNP officials actively involving civil servants AFTER the police investigation had started.
The Permanent Secretary ordered her decision report to be sent to the Crown Agent, David Harvie, against the terms of the policy and the wishes of the complainants. At that time I understand that she was his line manager.
Against police advice the Permanent Secretary decided to press release the fact of complaints on Thursday 21st August 2018. That publication was only prevented by threat of legal action by my solicitors.
A matter of hours later, there was what the ICO assessed as a prima facie criminal leak of information including details of complaints to the Daily Record, in breach of my rights of confidentiality, and those of the complainants. Such action was also contrary to the express assurances of confidentiality offered to all parties and central to such workplace issues.
The Judicial Review was only conceded when both Counsel threatened to resign from the case
The policy and actions of the Permanent Secretary and the Government were accepted as and then judged as “unlawful”, “procedurally unfair” and “tainted by apparent bias”.
The real cost to the Scottish people runs into many millions of pounds and yet no-one in this entire process has uttered the simple words which are necessary on occasions to renew and refresh democratic institutions – “I Resign”.
The Committee now has the opportunity to address that position.
Rt. Hon. Alex Salmond
17th February 2021
Link to Alex Salmond’s oral evidence to the Holyrood Inquiry 26th February 2021
THEY CAME FOR MARK HIRST
“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.” - Gordon Dangerfield, Solicitor Advocate.
This article by Solicitor Advocate Gordon Dangerfield and was first published on his excellent blog: www.gordondangerfield.com
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 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 in January 2021.
JIM SILLARS - MALICIOUS PROSECUTIONS
“I don’t know about Denmark, but something has been rotting in the State of Scotland, a concern not dispelled by the Crown Office seeming to capitulate to the parliamentary committee of inquiry’s demand for evidential material.” - Jim Sillars
Originally published in the Scotsman
Jim Sillars is a former Labour and SNP MP and ex-Deputy leader of the SNP
I don’t know about Denmark, but something has been rotting in the State of Scotland, a concern not dispelled by the Crown Office seeming to capitulate to the parliamentary committee of inquiry’s demand for evidential material. That it should ask the committee not to make the evidence public, as though the public was not entitled to know, makes one wonder if it has learnt anything.
That “ask” reveals that those in charge of that Office have not abandoned their role as the Pretorian Guard of the Scottish Government/SNP officialdom, a role exercised against the public interest in seeking to frustrate a legitimate parliamentary inquiry in doing its duty to lay bare the truth of a disgraceful episode. There are two questions to be answered: do they now admit error in threatening Alex Salmond with prosecution if he dared reveal the evidence, and is all the material being delivered? The committee should not take its word for the latter.
I hope the Lord Advocate and his senior officials will now reflect upon their recent conduct, and will now desist in the vengeful prosecution of supporters of Alex Salmond, having failed to nail him on thirteen charges. Mark Hirst, a journalist, faced eight months of anxiety before coming to trial, only to see the Judge decide swiftly that he had “no case to answer.” Craig Murray is now involved in a trial. Is there now a habit of malicious prosecution embedded in our criminal justice system?
There is much for we citizens to be concerned about: a civil service politicised and compromised after ingesting doses of amnesia and obfuscation; a First Minister who declared the inquiry would be given whatever it asked for, but who quickly shunted that responsibility to the Lord Advocate, who seemed anxious to shield her when the opposite applied.
We have seen the chief executive of the governing party, spouse of the First Minister, as is now public knowledge, seeking to have Alex Salmond prosecuted in England, not in pursuit of justice, but as a tactic to weaken his position in the Scottish system by making him “fight on two fronts.” In sixty years in public life, I cannot recall any such egregious action by any party official anywhere in the UK.
In his winding up speech on behalf of Salmond, Gordon Jackson QC, hobbled by a pre-trial order prohibiting use of evidence now to be revealed could only hint to the jury, when he said something “stinks.” The joint actions of the Scottish Government and the Crown Office have gone beyond “stinks.” The stench of political corruption now hangs over this nation. To make the air clean again, beyond the parliamentary one, whose forensic limitations were exposed by Alastair Bonnington and Brian Wilson, we need a judicial inquiry equipped with all the powers to command evidence from all sources.
Yours etc.
Jim Sillars
ARRESTS OF TWO SCOTTISH JOURNALISTS SPARK INTERNATIONAL OUTRAGE
Over 30 prominent international figures have signed an open joint letter raising concerns about the impartiality of Scotland’s criminal prosecuting authorities following the arrest and charging of two Scottish journalists.
Add your name to the letter below.
A joint open letter has been sent to the Lord Advocate following the arrests and charging of two Scottish journalists. The letter has been signed by prominent international figures from the fields of academia, law, journalism, politics, diplomacy, the former intelligence community, artists and musicians as well as activists.
Among the signatories to the letter are Yanis Varaofakis (the former Greek Finance Minister), Kristinn Hrnaffson (Editor-in-Chief of Wikileaks), Lawrence B. Wilkerson (a former US Chief-of-Staff at the US State Department), as well as other prominent individuals from a range of backgrounds.
The Lord Advocate Mr Walter James Wolffe QC
Crown Office and Procurator Fiscal Office
25 Chambers Street,
Edinburgh EH1 1LA
31st May 2020
Dear Mr Wolffe,
We are writing to you to express our growing concern over the actions of both the Crown Office and Police Scotland.
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. Other supporters of Mr Salmond have also been contacted by police and warned over online comments they made in the wake of the trial.
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. As you know, the prosecution following from that investigation, pursued again at considerable cost to the public purse, resulted in the acquittal of Mr Salmond on all charges and now raises the most serious questions about why that investigation and that prosecution were pursued.
Whilst we appreciate that you cannot be involved in individual cases you will undoubtedly be aware that complaints of alleged Contempt of Court were made against six other individual journalists widely regarded as being hostile in their reporting of Mr Salmond. No action by the Crown Office or Police Scotland has been taken against any of those individuals. This leaves the distinct impression that Police Scotland, at the direction of the Crown Office, are acting in a manner that is both biased and disproportionate.
As you will be aware, for public confidence to be maintained in our independent legal system the law must be able to both demonstrate it is acting impartially and be seen to be doing so. 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 would welcome your fullest public response to the concerns raised in this letter and 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.
SIGNED
Yanis Varoufakis (Author, former Greek MP and Finance Minister, philosopher, economist) Professor Robert Black QC (Professor Emeritus of Scots Law, Edinburgh University) Sir David Hare (Playwright, screen writer and film director) Kristinn Hrnaffson (Investigative journalist and Editor in Chief of Wikileaks) Tariq Ali (human rights campaigner, journalist and historian) Roger Waters (co-founder Pink Floyd, political activist) Lawrence B. Wilkerson, (US Colonel, Ret, former Chief of Staff, US Department of State) Paul Kavanagh (Columnist, The National newspaper) George Kerevan (Journalist, Former SNP MP, former Associate Editor of The Scotsman) Tommy Sheridan (Convenor, Solidarity and former MSP) Ann Wright (Former US Ambassador, US Colonel, Ret, and former US diplomat who resigned in 2003 in opposition to President Bush’s war in Iraq) Christine Assange (human rights campaigner and mother of Julian) Gordon Dangerfield (Solicitor Advocate) Hugh Kerr (Former Labour MEP, author and journalist) John Kiriakou (CIA whistle-blower) Coleen Rowley (Retired FBI Agent and former Minneapolis Division Legal Counsel, 2002 Time Magazine Person of the Year) Ray McGovern (Former CIA Officer, Founder of Veteran Intelligence Professionals for Sanity) Robert Tibbo (lawyer to Edward Snowden) Annie Machon (former MI5 officer, author and journalist) Katherine Gun (former GCHQ whistle-blower) Clive Ponting (former Government whistle-blower) Stuart Campbell (Editor, Wings over Scotland) James Kelly (Editor of SCOT goes POP! and columnist with The National) Neil MacKay (Singer-songwriter, Scottish independence activist) Elizabeth Coyle (solicitor) Campbell Martin (Broadcast journalist and former SNP MSP) Elizabeth Murray (former Deputy National Intelligence Officer for the Near East & CIA political analyst) Robin McAlpine (Political strategist) Bogdan Dzakovic (9/11 aviation security whistle-blower, FAA Security, Ret.) Robert Wing (former US Foreign Service Officer) Marshall Carter-Tripp (Political science professor and Foreign Service Officer (retired) and Division Director, State Department Bureau of Intelligence and Research), Bill Binney (former Technical Director, National Security Agency, NSA), Clement Laniewski (Lt. Col, US Army, ret).
The Chartered Institute of Journalists has also added its support for the above letter. (The CIoJ is the most senior professional body representing journalists in the UK and the oldest such body in the world.)
Add your own support here (names of those supporting will be published regularly):
(Some operating systems may not be able to display the above form correctly. Please use the contact form at the top of the page “Contact” to add your name if that happens)
Also signed by:
Dave Llewellyn, Iain MacGillivray, Evelyn Airlie, Fiona Murray, Barry Donnan, John Irvine Duffy, David Cox, Rachel Ann Hirst, Alex Airlie, Anne Moffat, Kirsty Macleod, James McCulloch, Norma Johnston, Kes irving, Norman Carey, Alison Watters, Tony Cosaitis, Robert Cruickshank, Alastair J.L. McNeill, William black, Suzy Cargil, Douglas Copley, Jim Murray, Gary J kelly, Gordon MacGregor, William Robb, Dr John Jamieson McCallum, Isobel Copley, Philippa Jane Plevin, Scott Plenderleith, Tracy Scott, Mac Dalrymple, Nadia Holmes, Keith Gilchrist, Daniel Watson, Scott Meikle, John Ryan, Fiona Grierson, Kenneth Will, Blair Hendry, Iain Smith, David Graham, Mary Woods, Marie Cascarino, Mhairi Elizabeth Comrie MacGregor, Colin McTaggart, Jeremy Dougal Forde, John Spencer-Davis, Roderick Lunny, Angela Leitch, Jim Scullion, Dore Schlünkes, Alastair Gordon Rennie, Andrew Wilson, Dr Peter R Ashby, David Taylor, Joanne Robinson, Robert De Bold, Grace Robertson, John Slater, Jean Adair Locke Hutchison, Joanne Linda Wilkins, James Gardiner, James Allan Copeland, Colin Grant, Alan Stewart McKenzie McHarg, Craig Gilfillan, Robert Urquhart, Greg Drysdale, James Mullen, Diane Mathieson, Raymond Leslie, Dr Duncan Mitchelson, Clive Rose, Wendy MacDonald, Christine Sinclair, Tracey Slattery, Keith James Wilson, Margaret Pollock, peter mcmahon, William Caldwell., Ronnie Masterton, Linda Miller, Ruth cornwell, Stan McConnell, Stewart Gale, Miss Charlotte Liston Sutherland, Heather Alari, Mr Douglas Andrew Arthur, Ina Herceg, Gordon Newbigging, Scott C Forbes. LLB(Hons), LP, Philip Murphy, Sheila Kerrigan, DavidRobertson, Robert Burns, David A Bennett, Dennis Tabor, John Jackson, Susan Watson, Eric Murdoch, Kevin Craigens, Eleanor Horn, Archie Cuthbertson, Kenny Ritchie, Ailsa Spindler, Lorraine mcgregor, Gavin Adams, a p gow, William Donaldson, James Mcleavy, Gordon cairns, Neil Bird, Gordon Ross In-D-Car Vlogger, Sam Doak, Ute Miko-Reid, Josephine Harris, Elizabeth Duncan, William Pollock, Sheila Lewry, Shaun Middleton, Jimmy Brack, Deborah Jane Oliver, John Grierson, Peter A Bell, Christine Dick, Robert McAllister, Isobel Wilson, William Mack, Morag Williams, Rita Balneaves, Andrew Milne, Sharin Hamilton, Denise Findlay, Derek Robert Cameron, Brian Cronin, Alistair Warwick, Fiona Flanagan, Janet Scott, Russell Young, William Ross, Anne Hutchison, Pamela cyples, Lorraine McClafferty, Jeanette McCrimmon, Calum Murray, Mike willison, Elaine Muir, Craig Sheridan, Derek Stephen McLean, Bartholomew Cole, Sheena Fraser, Helen Dolan, Margaret Edgar, David magee, Philip Taylor, J F Rae, David Heriot, Fraser Anderson, Janette Leck, Alex Sutherland, Robert Dickson, Dennis Nicholson, David Roderick Cumming, Andy MacLennan, Mark Stuart, Roger Anderson, Irene Anderson, Pat Maceachen, Neil Rankin, Lynne Forgie, Christopher Ross Bannan, Alasdair Frank MacLeod, Jan Cowan, Stephen Wood, Peter Duncan, Andrew Hodgson, Christina Thomson, steven bain, Diarmid Gibson, Amanda Hunter, John McBride Baxter, Jamie Sebastian Birch Campbell, Stephen Cleary, Allan Duke, Michael Cavanagh, Graeme Otterson, Susan MacAskill, Rob Moran, Patricia Mary Somers and Brian Somers, Alex Manson, John Boyd, Eamonn Purdie, Lorna Rolim, Janet McGregor, Ross Kennedy, Lindsay Scott, Douglas George Douglas, Nuala Hennessy, Robert Knox, Craig Macinnes, David Calder, James MacDonald, Keith Calder, John Angus, Sandra Brown, John Paul Conaboy, Thomas Platt, Francis Weldon, Hendry Stuart, Franny Weldon, Ian McLean, Stuart Hood, Brian Penn, Gerry Pearson, Aileen Hamilton, Anna Platt, Michael jamieson, Jenny Gunning, john c swann, Iain Sutherland, Ruaridh Fraser-Douglas, Georgia Skinner, Jemma McLaughlan, Steve Parkinson, Deborah Ewen, John Dickson, Linda Cooper, Alisdair Scott, John Cunningham, Richard Lindsay, Norman Smith, Angela McGuinness, Roddy Wilson, Alex John Greig, Alan Campbell, Joan Summers, Elizabeth Boyd, Rory Winter, Alex Reid, Hugh McShane, Andrew Fairbairn Porter, James McCabe, Jan Murdoch, Linda Graham, George Skinner, Ann Conlon, Peter Meikle, Christopher Clark, Bill Glen, Mary Edward, Graham Rocks, Angus Fox, Mandy King, John Lamond, bridget Dunne, Craig Paterson, Karon Frame, Linda Hamilton, Wilma Watts, Sarah Jane Djoudi, Michael JG Watts, Marco Rinaldi, Vince Cooper, Thomasina Kellythorn, Mary G Jenkins, Mark Rowantree, Ian Anderson, Hugh Meikle, John Barrie Jehu, Ian Grant, john love, Brian Welsh, Margaret Usher, Diane Fletcher, Angus Buchan, William Duguid, Iain Macpherson, Alan Hopton, Thomasfriar, Morag McGrath, Grant Campbell, Isabella Welsh, Ian George, Ruth Hanratty, Michael Chalmers, Pamela Stirling, William meek, Iain M Campbell, Jake Foyer, Victor Stephen McAndrew, robert mcdill, Frazer Hay, Sylvia Hard, Veronica Burns, Jill Tennent, Mark Traynor, Douglas Anderson, John Wilson, Alfie MacKay, David H Pritchard, Alan Hunter, Ally Campbell, Catherine murphy, ronald anderson, Andrew Stewart, Gordon Arthur Hunter, Mary G McBride, Peter Cannon, George D. Cruden, Ben Clarke, Donald Jack, Andrew Hughes, Margaret McGovern, Eleanor Hamilton, Martin Semple, Alison Doran, elizabeth oneill, John Leavey, Brian Smith, Robert Buntin, John Williamson, Jacqueline Anderson, Stevie McBride, Alistair Grieve, Alexander MacDonald, David Moffat Allan, James Kerr, James smith, Hugh Renicks, William Bryan, John Lowe, Andrew James Mills, Kay Elizabeth Watson, Peter A. 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Baird, Robert Marshall, Caroline Tamara Hoard, Hugh Healy, Lindsay Hoard, Michael Shapiro, Ida Gemmill, Alasdair Nicholson MBE MA LLB, Daniel Keany, Chris McColl, Anne Spence, Arlene McGinn, Murdo Mitchell, Jane Barclay, Isobel Delussey, Cllr.Kate Stewart, Dr Scott Hamilton, Sharon Read, Marion Hay, Phil Naldrett, Stephen Hargan, Isabella Mahon, Jake Robertson, Isabell Machon, Robert J. 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McCabe, James Anderson, Tony Laverick, Conon Urquhart, Richard Donoghue, Anne Johnston, Phil ferns /producer, Julie Sheppard, Kevin Taylor, David Kay, Marjie Manfeld, Christopher Dooley, Hugh Auld Paterson, David Miro Benda, Robert Markle, Frank Mckenna, Dr Sebastian Lexer, Gerard William Bartle, Simon John Dempsey, Ailsa Gray, Daniel Harris, Waseem Afzal, Helga Lönze, Alun Coulter, Emma Lock, Jonathan McNabb, Colin James Duffy, Clive Michael Ray, JAMES A. RUSSELL, David McDermitt, William kay, Thomas Ullrich, Jane Creagh-Osborne, Ruaridhi Bannatyne, Joe Hutchison, B. Anthony MacLeod, Alex MacGregor-Devlin, Verena Eiwen, David Collet, George Corner, John Stothard, Helen Jenner, Ray Mccloy, John Holland, Peter Jeavons, Raymond John Coad., Paul Collins, Elizabeth Wallace, Eileen Llorens, Eamon Sweeney, Maureen Law, Kenneth Law, Elspeth King, Stephen Wilson, William George Miller, Darren Moore, Leanne Nicholson, Arne Sudholz, peter hall, Peter Mercadante, Catherine Smith, Michael Donnelly, Gina vassallo, Desmond Gilmartin, Brian D Finch, David Logan, Michael Opitz, Keith john cobbold, Adele Brown, Mairi Kemp, Lesley Greig, Evelyn Leighton, Martyn Brunt, Tom Partridge (retired Veterinary Inspector)., Cristian Gheorghiu, Dean Rutter, Benjamin David Neufeld, Moray Grigor, Myriam Fuentes, Danny Davidson, John Patrick Kerlin, Jason Howdon, Piotr Berman, John connal, Albert Robertson, Mark Record, shona clark, Ping Jiang, Anna Palczynska, Bernard McEneny, Christine Mcleish, Dr Pamela Davis, Kayren Hamilton, Violet Milne, Mayra Cordova, Richard Brackenbury, Monica Tagliaferri Avila, Monica Tagliaferri Avila, Philomena Russell, Lilian Flett, Dean Vaughan, PJ McBride, M. Lynne Mayo, James W. Smyth, Jyrki Ekström, Annabelle Hodge, Michael Stimson, Stephen Monahan, Keith Brebner, Wayne Minor, Gordon Darge, Paul Shipton, Patrick Duggie, Duncan M Campbell, Jim Reid, Mordechai Gabai, Michael Keefer (Professor Emeritus, University of Guelph), Alex Cox, Elsie Ruth Wilson, Michael Trainor, Ian Robert Bruce, Mark Baldwin, Roger Tonkin, Jerry Russell, John McWilliams, Brian J Farrell, Paula Iasella, Eleanor Williams, Irena Perigorskaya, Margaret Millar, Peter Walker, Matt Ferguson, Barbara R. Antisdel, Colin Livingstone, David Cairns Pettigrew, Manfred Karrer, Francesco De Marxo, Birgit Wilhelmi, edwin elby, Sherry Clayton, James Bremner, John Ahearne, Thomas Moretti, michelle erickson, Carrie Ellsworth, Kim Mulder, Kelly Lehigh, Mitchell Duirs, Heidi Karim, David Lorig, Thomas Alexander Beavitt, Bengt E. 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GASSING THE PAST: An exploration of Britain’s use of gas against civilians
Mark Hirst explores Britain’s often overlooked role in the gassing of civilians in what is now modern day Iraq and Syria in 1920, a war crime ordered by Winston Churchill.
[First published in the Scottish Left Review]
ONE hundred years after the British Government gassed civilians in Mesopotamia, Mark Hirst sheds light on this forgotten chapter of Britain’s imperialist past to highlight the hypocrisy of British foreign policy then and now.
Any exposed, moist part of the body is vulnerable to it. Gas masks alone will not deter its menace or protect the wearer from its deadly effects. On contact it causes burn-like blisters on the skin, especially the eyes, armpits and groin. On inhalation the lungs begin to bleed resulting in wretched, froth filled coughing. Severe abdominal pain follows, then violent vomiting and shortness of breath. It has a tendency to linger in low areas for hours, sometimes days, waiting like a predatory animal for its next victim.
By the end of the First World War the reputation of mustard gas as a battle field weapon was both feared and hated by ordinary soldiers on the front line. During that bloodiest of conflicts it is believed to have killed upwards of 100,000 soldiers on all sides, and left a further 1.2million struggling with the effects for the remainder of their often short lives.
My own great grandfather was one if its victims and although he survived the initial gas attack, he suffered the rest of his days with serious respiratory problems and complications which, years after the war had ended, finally claimed his life.
Following the end of WWI, the Ottoman Empire was divided up and the British entrusted by the League of Nations with the mandate to run Mesopotamia, now modern day Iraq. From the outset it was clear that people throughout the country, north and south; Kurds, Sunnis and Shias were angry about the imposition of the British mandate. What had started off as a series of peaceful mass demonstrations calling for an end to British administration and the establishment of an independent Arab government for Iraq quickly turned violent.
The reaction of the British was immediate and ruthless, as it had been in Ireland, India and other corners of the Empire where the indigenous people dared to question Britannia’s right to rule.
Major General Sir Percy Cox was the Colonial Administrator for Mesopotamia. In collusion with Churchill, Cox aimed to rule the region as cost effectively as he could but it appears that neither he, nor the Secretary of State for War, were prepared for the scale or the speed of revolt that began in that summer of 1920. Churchill had believed it would take 25,000 British and a further 80,000 Indian troops to control the country conventionally. But a strategy, dependent on using the RAF to ‘police’ the region, would allow the British to reduce the number of infantry needed to between 4,000 and 10,000 men.
Churchill still had a watchful eye on the ongoing resistance to British rule in Ireland. He knew if the situation there escalated further then he would need at least 150,000 British troops to put down any intensified revolt at England’s back door. However within a few weeks of what Arabs called the Ath Thawra al Iraqiyya al Kubra, or the Great Iraqi Revolution as it later became known, the British realised too late that they were ill-equipped to put down an uprising that was spreading rapidly down the length of the Euphrates valley.
An air of panic appears to have set in as commanders frantically reviewed how they could deal with the 100,000 Arabs who were taking part in the uprising. An urgent reappraisal was needed by the British on how to deal effectively with the emerging crisis in the region.
Among the documents held at the National Archive in Kew, in Surrey, are papers, telegrams and contemporaneous secret ciphers which the British Government had sealed and kept hidden for more than 50 years related to the use of gas by British forces in Iraq. Churchill, as Secretary of State for War, read and contributed to these reports and secret telegrams from General Headquarters in Baghdad and soon realised the situation was drastic.
In one telegram to the War Office in London Sir Percy Cox and his Deputy Colonel Arnold Wilson ask if gas could be used and specifically if 15,000 artillery gas shells at the time stored in Egypt could be transported urgently to British forces in Iraq. The papers reveal that the British already had 19,500 Howitzer gas shells in Iraq, but evidently believed that would not be enough to tackle the numbers taking part in the insurgency.
Churchill was unequivocal in his response to a request from Sir Percy who requested “earnest consideration of use of gas… by both Army and RAF”.
In another declassified cipher from the War Office to Sir Percy, Whitehall unambiguously states it cannot send any more gas shells in addition to those it had dispatched from Egypt.
It reads: “We cannot send any more gas shells but you may use that in your possession”.
In more recent times American academics have sought to claim that whilst the use of gas was fully authorised at the highest level it was never actually deployed by the British due to “technical reasons”. However close examination of the contemporaneous papers demonstrates this is a distorted interpretation of the primary archive material from the period.
As a result of the high dependency strategy on the RAF to ‘police’ Arab tribes there were experiments carried out to drop gas shells from aircraft, a technology that was very much in its infancy. British Commanders in Baghdad wanted this in addition to the use of artillery gas shells they already possessed.
At the height of the revolt the technology for dropping gas shells from aircraft had not been “perfected”, due to various genuine technical obstacles. However it is clear from the documents that the gas munitions that the British had available in the region at the time and the additional stocks that were transported from Egypt were for use principally by the artillery, in support of RAF operations.
The artillery had no technical difficulty in the use and deployment of gas having used it extensively in the trenches of France and Belgium since 1915.
When the US, in close collaboration with their UK allies established, funded and set the terms of reference for the Supreme Iraqi Criminal Tribunal that tried Saddam and his henchmen few Western ‘liberal’ commentators appeared bold enough to highlight Britain’s own genocidal legacy in Iraq.
The reason for the revisionism by US scholars, who claim that no gas was ever used by the British in 1920, widely reported by the main stream western media is obvious. Use of such practices, especially against civilians, would expose the blatant hypocrisy of US/ UK foreign policy and undermine further the reasons given for the subsequent US/UK led invasion of Iraq in 2003.
That campaign, the world was told, was to remove the ‘threat’ of Saddam’s chemical weapons programme and infrastructure which he had used, ironically when he was a firm ally of the US and UK, against Kurdish civilians in Halabja in March 1988.
Revisionist American academics and their associates in the right wing press had to present a consistent moral case to justify the invasion, despite the overwhelming weight of evidence that gas was indeed deliberately used against civilian tribes 60 years before Saddam’s own horrific genocidal efforts. Like Saddam 68 years later there is absolutely no question that British forces were deliberately targeting civilians in 1920 using any and all munitions they could get their hands on.
Many British commanders at the time believed it had an “excellent moral effect on the Arab”. The British estimate is that around 10,000 Arabs were killed during the most intensive three month period of the revolt.
An RAF Wing Commander at the time, J. A. Chamier wrote a year after the uprising: “The best way to demoralise local people was to concentrate bombing on the most inaccessible village of the most prominent tribe which it is desired to punish. All available aircraft must be collected and the attack with bombs and machine guns must be relentless and unremitting and carried on continuously by day and night, on houses, inhabitants, crops and cattle.”
Even in 1920 the deliberate targeting of ‘non-combatants’ was regarded as a war crime under the terms of the 1899 Hague Conventions, to which Britain was a signatory.
However British commanders in Mesopotamia concluded that the “Manual of Military Law” only applied to conflict “between civilised nations” and therefore any and all means could be used against Arab tribes and villages, and they were.
“When we saw a group of villagers,” wrote one RAF Squadron Leader, “doing what they ought not to be doing, we just bombed them.”
That attitude of commanders on the ground was not only shared, but encouraged and authorised at the highest level.
Whilst some tentative questions of principle related to the use of gas were raised by some officers, the response from Whitehall was explicit.
In one War Office minute Churchill states:
Long after the rebellion against the British had been quashed, the punitive attacks and bombings by the Army and RAF continued against Iraqi civilians well into the 1920s.
An eyewitness to one attack, Saleh ‘Umar al Jabrim, said a British raid on his village in Southern Iraq in February 1923 where Bedouin were celebrating a wedding left a woman, one girl and two young boys dead.
Arthur Harris, ‘Marshall of the RAF’, or “Bomber Harris” as he became more commonly known, had during the Second World War been labelled by many as an untried war criminal for his deliberate targeting of civilians in Dresden and other parts of Germany during the war.
Harris learned his ‘craft’ in Mesopotamia in the years following the uprising. As a young squadron commander Harris reported a mission he took part in over Northern Iraq in 1924 and wrote:
When the US, in close collaboration with their UK allies established, funded and set the terms of reference for the Supreme Iraqi Criminal Tribunal that tried Saddam and his henchmen few Western ‘liberal’ commentators appeared bold enough to highlight Britain’s own genocidal legacy in Iraq. Nor did they seem eager to mention Britain’s horrific precedent as the first country to deliberately order the gassing of civilian populations.
In 2010 former UK Prime Minister Tony Blair sought to defend his actions in leading the UK into a clearly illegal war when he gave evidence to the Iraq Inquiry. Either he was, and remains hopelessly naïve about Britain’s historic and bloody role in Iraq, or he deliberately chose to overlook it.
Either way Britain’s hypocrisy was not lost in the Arab world.
In defence of his decision to invade Iraq Blair told the Inquiry that it was clear Saddam retained the “absolute intent” to use chemical weapons again, weapons he patently did not possess at the time of the invasion.
In 1920, unlike Saddam 83 years later, Britain not only had the capability, but it had the clear and absolute intent of using chemical weapons, by means of thousands of gas shells.
The response to the Great Iraqi Revolution of 1920 was a ruthlessly violent and typically British that resulted in civilian men, women, children and entire communities being wiped out.
The documents from that period barely conceal the implied racial supremacy behind British Imperialist thinking at the time. They reveal an imperialist mindset at the very highest level of Government, up to and including Churchill that, that was not a million miles away from the Nazi’s warped notions of racial supremacy.
Recent British military adventurism indicates that such attitudes against “uncivilised tribes” have not gone away.
THREAT TO FREEDOM OF EXPRESSION
We are facing an immediate and direct threat to freedom of expression and civil liberties in Scotland.
Mark Hirst was recently arrested, questioned and charged by Police Scotland following personal comments he made in the wake of the Alex Salmond trial.
For various legal reasons he cannot detail all of the circumstances related to that video at this time.
But the broader context of his arrest and that of other prominent pro-independence supporters, including Craig Murray, should be of concern for everyone who believes in freedom of expression and civil liberties, whether they back an independent Scotland or not.
A legal defence fund has been launched and a campaign to help support Mark’s defence and raise awareness of the direct and immediate threat to freedom of expression and civil liberties in Scotland that these actions by the authorities presents.
The website that has been established will serve as a focus for that campaign and will add to the growing voices, concerned that Scotland is becoming more authoritarian and where our basic rights of freedom of speech are being undermined by very senior establishment figures.
Despite the wider crisis arising from the Covid19 pandemic there are some who view this situation as an opportunity to finally see off the threat from those in Scotland who are absolutely committed to securing Scotland’s independence.
Please join this campaign and resist the new authoritarianism that seeks to close us down.
CIVIL LIBERTY RESTRICTIONS LACK OVERSIGHT
Independent oversight of Covid crisis restrictions is essential to avoid abuse of civil liberties and freedom of expression.
In times of crisis and national emergency Governments can wield huge power over us.
As every single one of us knows we’re living through what may ultimately prove to be the worst health and economic catastrophe in our recorded history. In the UK that is not be helped by the diabolically reckless manner in which Governments have responded. Too slow, too little, too casual.
But this crisis also has huge implications for our rights to freedom of expression and our civil liberties.
In Scotland right now there is a major threat to those freedoms. It is perhaps unsurprising that Governments who crave power are exploiting the Covid emergency to expand and extend their control, directing activity and resources in a manner that would be regarded as intolerable in normal times.
Repeatedly, and somewhat perversely, we have heard politicians compare the emergency to the Second World War. But for all that Churchill was a warmongering, abusive, racist drunk not even he was incompetent enough to send the troops into battle wearing bin liners and homemade masks.
During that war the British Government did however introduce emergency legislation that saw thousands and thousands of foreign nationals rounded up and sent to prison camps fearing they could be potential infiltrators and dissenters. Major national emergencies can breed deep paranoia among Governments no matter how big or small. The Scottish Government is not immune to that level of distrust either and is demonstrating its willingness to countenance extreme measures to maintain its control and its power.
In times of national emergency international law allows Governments to take steps that limit and restrict our freedoms, including freedom of expression and civil liberties. But every action it takes, every restriction it introduces, must be “reasonable, necessary and proportionate to the threat” and crucially have genuine independent oversight.
What we have witnessed in Scotland in recent months in the deliberate targeting of pro-independence voices meets none of those standards.
THE COSY CLUB: The birth of the new Scottish elite
For too many, especially those in the leadership, Holyrood has become a big cosy club where dissent and criticism are not tolerated but other wayward behaviour is.
[First published in 2011]
It’s almost 21 years since the devolved Scottish Parliament was reconvened.
It was a time of great positivity and of hope. A new dawn had risen across Scotland and there was a real sense of optimism in those early days.
On July 1st 1999, the Scottish Parliament was reconvened. There was a tangible sense that we were witnessing something truly historic. It was a remarkable, memorable period.
At that time most of the parliamentary staff were new to the world of “professional” politics. All appeared deeply committed to the task ahead, firmly believing they were on the road to taking back the country’s independence after almost 300 years.
But gradually it became evident, over many months and then years, that there were more and more people appearing whose commitment to the goal of independence wasn’t immediately obvious.
The success of the SNP only increased that drift of “new talent” as invariably politics graduates of various sorts began to view the prospects of a job as a parliamentary assistant, researcher, adviser or press officer as a comfortable way to advance their own careers.
But something else began to evolve. The cosy club began to emerge, often comprising individuals from opposing parties, mixing freely and often indiscreetly with political journalists. The often declared and admirable aim of the 5th estate is to scrutinise the elected representatives. It shouldn’t be a difficult task. All they need to do is report the facts and crucially hold the Government and elected representatives to account and in doing so inform their audiences, the wider public, a level of transparency and accountability that they will never get from politicians themselves. But when the media fail in that central task and a cosy consensus is established, it is bad for both journalism, politics and our wider democracy.
Many will argue that such bonds, such herd behaviour is natural and inevitable but it also comes with consequences for transparency and simply mimicked too closely the nepotistic culture of Westminster.
In 1999 a new establishment was in town but quickly adopted the same attitudes and behaviours of that other place.
HEADBUTTING IS NOT A RULE BREAKER IN THE COSY CLUB
One striking example of how cosy things had become occurred during a parliamentary press reception for political journalists.
A young, ambitious and tediously boring SNP MSP, who used to regularly creep up behind parliamentary MSP’s staff and whisper the word “c**t” in their ear, was determined to confront a senior, well-known and pompous political editor. Unbeknown to the MSP the political editor in question, who has a tall and imposing physical presence, had been indulging in the complimentary bubbly that was being freely offered at the reception and was in a typically bombastic mood with those around him. As the MSP remonstrated with him over a particularly scathing article written about him the political editor evidently lost patience.
He would later claim he didn’t mean to make contact with the MSP but instead his “air headbutt” had failed to stop short, as planned he later claimed, and knocked the MSP to the floor. There was no lasting brain injury to either party and the political editor later issued a full personal apology to the MSP in question.
But you may be forgiven for thinking that in a room full of other political journalists and politicians such an incident may have resulted in a headline or too. But even back then, in those early days, that is not how the cosy club operates. It’s in a bubble all of its own with strong vested interests at stake and therefore rarely inclined to rock the boat.
CAREERISTS AND CHARLATANS
Many insiders claim that things haven’t changed much except it has become even more incestuous and protective of club members.
For the careerists and political charlatans it is an easy game to play. Don’t question, don’t criticise and whatever you do, don’t think.
For those running the club, and their overly enthusiastic bouncers on the door, the power trip has become intoxicating.
Those who have ruthlessly pursued this political existence as a career but who lack any substantive commitment to independence, have advanced and profited from the largesse of devolution and now believe they are untouchable and unstoppable.
That has dangerous consequences for democracy, transparency and accountability and, of course, the delivery of independence. They will do everything and anything they can to maintain the cosy club so long as their narrow, selfish, personal needs are met and crucially, they remain in control.
They take no quarter, no dissent and definitely no challenge to their position even if it means ruthlessly (and purely metaphorically) stabbing former close associates and friends in the back because this current leadership in Scotland has historic form in this area.
That political approach and style should be left rotting where it belongs, in the gutter of Westminster.