From Levi & McCrae – Glasgow – sent by email, 15 January 2020
Dear Ms Fabiani
Alex Salmond
We have taken instructions on your letter of 14th January 2021. That letter raises several matters of importance which we take this opportunity to address.
Appearance at the Committee
First, your public statement of disappointment at our client’s suggestion that he cannot appear in person on 19th January 2021 but instead would be happy to appear on Tuesday 16th February 2021 requires to be put in context. As the clerk to the committee will doubtless confirm, the first contact with our client about any such date was 2nd January 2021, a Saturday morning. That, incidentally, despite the fact that we had asked that all correspondence be sent to this office.
By reply of 4th January 2021, we wrote to the committee making plain that the date was not suitable, and setting out at some length some of the fundamental issues behind that position. We were surprised, therefore, to receive your repeated invitation of 12th January 2021, not least because the COVID situation had worsened considerably in the intervening period and no progress at all appears to have been made in relation to the evidential and procedural issues repeatedly raised by us.
Our confirmation of our position on 14th January 2021 therefore simply restated what has been known to you for some time. We can only assume that the tone of surprise and the express reference to your ‘disappointment’ was therefore for public consumption. For the avoidance of any doubt, our client is committed to giving evidence, in person, when it is safe to do so and when the issues raised in correspondence have been addressed. He has reserved the date of the 16th February
2021 for that purpose. Please confirm whether you wish to proceed on that date or not.
Secondly, you publicised your invitation for next week in the full knowledge of the contrary advice from the Presiding Officer to suspend in-person Committee meetings. This, we now understand, was sent to you in an email of 8th January 2021 which stated:
“I have also today written on behalf of the SPCB (Scottish Parliament Corporate Body) to all Committee Conveners to request that all committee meetings are held virtually for the remainder of January”
Your letter did not inform us of this direction. Nor did you reference it in the correspondence you chose to publicise. We and our client required to find it out from other sources. Our client asks you to reflect on your responsibilities to witnesses you invite to your proceedings, particularly when they are private citizens, invited to assist you in your proceedings. Regardless, our client intends to follow the advice of the Presiding Officer and the Corporate Body.
Further, none of this has anything to do with our client being “reluctant” to travel, as you suggested. He is perfectly willing to travel to your Committee meeting as long as it can be completed safely and can be properly regarded as being for work or an essential purpose in conformity with the regulations. This is not a question of personal preference, it is about following the Parliament’s own advice on in-person meetings. More helpful is the view expressed that only an in-person meeting is suitable for this evidence. We agree.
Thirdly, let me revisit the response you have offered in relation to the issues of substance raised on multiple occasions previously.
Documents from the Criminal Proceedings
You are aware that there are multiple documents of fundamental importance to your Inquiry which were part of disclosure in the criminal trial. We have pointed this out for months now in numerous letters.
We wish these to be available to the Committee but have now been warned on a number of occasions by the Crown Office that supplying these to you, or even identifying them for you to recover, would constitute an offence. This is an entirely separate matter from Lady Dorrian’s orders which continue to be observed and respected by our client.
Your letter once again fails to explain why you have not recovered this material, which in our client’s view is critical to enable him to give his evidence in full and for the Inquiry to discharge its remit. Your letter of 12th January 2021 indicates that you consider you have run out of time (at para 4). That, with respect, cannot be correct given you are still ingathering evidence. The more recent letter of 14th January 2021 (at para 6) contains the following explanation:
‘The Committee has written to the COPFS seeking access to records, the Clerk has contacted you seeking your assistance in this matter and the Committee has gained access to numerous key documents from the judicial review having pursued this matter direct with the Court of Session.’
That, again, cannot be a sufficient basis on which to rest. Writing to COPFS seeking access to the documents was a necessary first step in recovery but in light of the refusal of Crown Office to allow access, why has no action been taken to recover these documents in court? The Committee could have done so, and still could.
Further, we have given you every possible assistance short of putting our client in jeopardy of criminal prosecution in our efforts to have these documents in a public forum. The final part of the explanation relates to the documents in the judicial review, not the criminal trial, and is irrelevant. If we are to take from your correspondence that the committee has decided to refuse to take proper steps when it is within your power to at least make the attempt to recover the relevant material, why is that position being
adopted?
Documents in relation to the Judicial Review (Phase 3)
There is also material relevant to Phase 3 of the Inquiry, (the judicial review), which has not been provided to our Committee. Some of this is government documentation which the government undertook to deliver but hasn’t. We have made this point in numerous items of correspondence without an explanation from you as to why you haven’t recovered it. Can you now please do so?
Evidence under oath
Our client is currently unable to discharge in full his responsibility to give complete evidence to your committee and its members without fear of prosecution. For example, if our client is asked quite reasonably by your Committee about his awareness of the existence of documents or other material relevant to your Inquiry how is it proposed he replies, while remaining faithful to his oath?
We note your response to this in the letter of 14th January 2021 in the penultimate paragraph where you write:
‘I am also concerned at your suggestion I should seek specific assurances from the COPFS that you are free to fulfil the requirements of the oath. I am very clear that evidence to the Committee, under oath or solemn affirmation, must comply with the relevant legal obligations. This includes respecting Lady Dorrian’s orders and not sharing confidential information from the criminal trial.’
We struggle to follow that passage. Why are you concerned about our client seeking assurances? When you say you are ‘very clear’ that evidence must ‘comply with the relevant legal obligations’, what does that mean? Please set that out in clear and unequivocal terms so that we can advise our client.
We understand the position to be that our client must tell ‘the truth, the whole truth, and nothing but the truth’ under threat of a charge of perjury if he does not do so. Is that your understanding? If so, how do you propose he does so when that inevitably involves reference to material in the criminal proceedings and when doing so leaves him open to prosecution? In short, when you write that our client cannot share confidential information from the criminal trial in giving answers, how do you propose he fulfils his oath?
This, again, is a matter on which we sought clarity on many previous occasions. Time is now short, however, and we need your official guidance.
Our client is not the subject of your Inquiry, according to its remit. You have asked for and received our client’s full assistance to enable you to fulfil that remit which has involved many hundreds of hours of his time. Our client is therefore extremely disappointed to receive what he considers hostile correspondence which has often failed to address legitimate concerns and queries raised by him from the outset of this process. He wants to assist your inquiry to fulfil its stated remit and every representation he has made is aimed at achieving that goal.
Your inquiry’s remit is very clear and we have repeated it many times in correspondence: “To consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond”. It is not our client whose actions you are to consider or report on. He is uniquely placed to help your inquiry, having endured an unlawful process instigated (and conceded) by the government. He has told you where to recover evidence to help you and also to ensure that, when he comes to give his evidence, it can be given as openly and fully as possible without fear of him breaching court orders or,worse still, prosecution. You have given him no reassurance or assistance on any of these matters other than to insist very publicly that he turns up in breach of parliamentary guidelines. That is wholly unacceptable conduct towards a witness who is a private citizen and who has offered unprecedented help and co-operation to your Inquiry at his own expense.
We ask you to reflect on that before issuing further public criticism of him.
Finally, your letter references a lack of ‘respect’ on the part of our client. That is unhelpful and unfair. In fact, it is our client who has been left repeatedly disappointed at the lack of courtesy shown to him for many months throughout this process.
By way of recent example, that discourtesy applies even to your letter of 14th January criticising our client. That private correspondence appeared on the Committee website and was publicised before we had the opportunity to even consult our client. Specifically, the fact of your invitation of 12th January to our client appeared in a BBC
tweet at 16.50. We received your letter at 17.13. Criticism of our client for a lack of courtesy or respect (which he entirely refutes) rings hollow in such circumstances.
We note, in any event, that the sharing of the submission to James Hamilton with Committee members was done after careful legal review and was entirely proper. It was not published by our client but rather was shared with Members of the Scottish Parliament engaged in a Parliamentary Inquiry. Those members have a duty of confidence to the Committee.
Further, in our experience of the last months, our representations appear not to be processed for many weeks and it is unclear to us or our client what reaches committee members, in what form (i.e. to what extent redacted) and when. The unredacted submission to James Hamilton has now been shared with you, and would appear already to have assisted the Committee significantly in its deliberations.
We have copied this letter to your Committee members and our client intends to release it to the media.
SIGNED
David McKie
Levy & McRae
