STATEMENT ON BEHALF OF ALEX SALMOND
“The documents released tonight confirm that sisting (postponing) the Judicial Review was indeed under active consideration by the Scottish Government in September 2018.”
John Swinney must now be the only person in Scotland who believes that the piecemeal release of these extraordinary legal documents have done anything other than demolish the Government’s pretence that they were not warned months in advance that they were on course to lose the judicial review. The more they release the more threadbare the government’s position becomes. We look forward to further revelations in tomorrow’s instalment.
The real question he has to answer is why they kept running down the clock and running up the bills, long after they were warned of the position by external counsel in the starkest of terms.
A witness statement supplied to the Inquiry this week by Alex Salmond, demonstrates that the prospect of the criminal investigation overtaking the judicial review was well known among special advisers and SNP officials by November 2018.
External counsel were specifically asked in September by the Government to consider whether they “should seek to have the judicial review proceedings sisted pending the outcome of any police investigation” and on September 4 said “we can see strength in the argument that the criminal investigation may make the entire petition pointless: if there is a criminal conviction then surely the case would not proceed.”
On September 17th the Lord Advocate advised in favour of reporting restrictions instead. In the event it was Alex Salmond’s legal team who moved for these reporting restrictions on 4th October 2018 in front of Lord Pentland. The Government were not even represented at the hearing.
Mr Salmond has never argued that the Lord Advocate was involved in accelerating the criminal case to overtake the judicial review. Indeed in his evidence last Friday he argued exactly the opposite.
What he has stated is two things;
Firstly, that the prospects of sisting was in wide discussion in September 2018. The Committee has not been given all of the documents by the Government but if they serve a notice on Mr Salmond’s lawyers they will be provided with the ones they hold. The Crown Office have blocked their release up until now.
Secondly, that it had become common knowledge among special advisers and SNP officials in November 2018 that the judicial review was going to succeed but that it could be overtaken by the criminal investigation if it were sufficiently advanced.
Mr Salmond at the Committee’s request, submitted a witness statement yesterday which corroborates that position.
In contrast to the Scottish Government, Mr Salmond has provided, or offered to provide, documentary evidence to back every statement he has made to the Inquiry”
In his oral evidence session Mr Salmond said;
“Sisting was being examined by the Lord Advocate because, quite clearly, you would expect him, as the Government’s legal adviser, to be looking at that—and not just Mr Cackette and others; it would be very important for those to see it. I am not suggesting for a second that the Lord Advocate was engaged in thinking, therefore, “We should accelerate the criminal case in order to avoid defeat in the civil case.” I am not suggesting that for a second. I am merely suggesting that there was widespread knowledge by November 2018 that the judicial review was going to fail, on the part of the Government, and that there was a prospect of it being sisted if the criminal case came to a moment before the judicial review hearing in January 2019.”
Documents released from 4 September 2018
Note from External Counsel
27. we have been asked for our views on whether the respondents should seek to have the judicial review proceedings sisted pending the outcome of any police investigation and/or criminal proceedings that may follow the investigation
35. we can also see strength in the argument that the criminal investigation may make the entire petition pointless: if there is a criminal conviction then surely this case will not proceed; and if there is a trial and an acquittal then the Ministers would be faced with a very different situation than that which presently obtains”