Salmond v Sturgeon round 4. What next?

[Cismyfatarse]

New thread.

Always awkward when you want to rely on something you "can't remember". - NS did a fair amount of that on Wednesday mind.

"continuing to rest on pleadings that we know to be untrue..."

It's shameless, there is no respect given to the people of Scotland with this grubby, underhand clinging on to power that isn't deserved. It's a completely corrupt administration and needs cleared out completely.

Totally agree re Dunlop, and his junior counsel (Christine, surname escapes me) who both come across as very professional and having acted with integrity but being messed about with a client who was acting ideologically and in blatant self interest.

The problem with lying is that you need to have a good memory or you get caught out. Most of us learn this as very young children.

Or you could just rely on saying you don't remember or don't recall and expect that that will do.

Unfortunately that really only works if it's used once.

@TheShadowyFeminist

I agree, he dealt with what must've been a deeply frustrating & professionally embarrassing situation with the utmost professionalism.

Most clients don't have the weighty legal expertise of the Lord Advocate to help steer them through matters. It does beg the question, why he allowed matters to proceed. The QC sent him a separate, specific note, appealing to him to get the government (of which he's part & supposed to ensure doesn't act unlawfully) to see sense.

I think away from the immediate politics the role of the Lord Advocate is concerning.

Why is it that for example, that the Crown Office and the Lord Advocate in his function as head of that service can turn to the Scottish Parliament and say no, you cannot have unredacted version of Salmond’s statement?

Remember that the Spectator presented or unredacted! What has happened to them? Is the Lord Advocate turning up to square off against Andrew Neil and Fraser Nelson?

No. He’s done diddly squat on that. But he’s pretty good at telling the Scottish Parliament it’s no!

Why is it that a political magazine is not subject to his attentions and yet he can tell elected representatives that they can’t see?

Nobody has answered that one.

Mostly still quite baffled, but checking in so I can keep reading all of your helpful posts.

Yep. Me and Big Bro wished we'd just come clean in the first place after the incident with the water pistol and the wallpaper. Boiler unlagged, floor boards up, plumber called ..... didn't even help much when we blamed each other.

Lord Advocate seems to be both defender and prosecutor in this instance. It's a problem.

Yes @LexMitior, and that kind fo ties back to the discussion about why some are prosecuted and others not too. The Spectator and the statement to the committee are either both in breach or both not, on exactly the same basis.

I'm reading the email of the 6th/7th again and something which I hadn't noticed last night was the language of the person in the SG (Paul Cackette) who wrote to Dunlop. Ever had your boss ask you to do something which you thought was utter crap? His email wording totally reads like that to me. Very much "I have to ask you these questions because I've been told to but please don't think these are my view"

Thankfully never had a boss like that. Otoh I tend to tell them not to be so daft which may explain my lowly station relative to the FM.

For all the dog's dinner the whole thing is, the crucial line in the Dunlop/O'Neill e-mails surely is:
'If one needed a watershed moment where the case moved from very difficult to unstatable that was it.' written on December 21st, and referring to the day before.
So it was by no means the case that they were told it was 'dead in the water' from the start - way back in October, as Salmond claimed.

in October they were told there were difficulties but also 'good grounds'

The problem with that though is that information was kept from the legal team that meant they were in the dark so weren't giving guidance in an eyes wide open situation.

As I understand it there is a large space between "balance of probabilities" i.e. we think you will lose this and are wasting money, and "unstatable".

As I understand it once the case became "unstatable" it means that Dunlop couldn't present the arguments to court without being in breach of his own professional ethics.

They were in the "look, there's arguments we can make but they're weak and you are almost certainly going to lose" stage for a while before they moved to the "we can't even argue this anymore" stage. And it only took so long because they kept hiding evidence.

@StatisticallyChallenged - good point! Civil servants ultimately defer to political wishes. What they may think of what they are asked to do, unless it’s actually immediately unlawful or breaks their codes of conduct then they will do whatever is asked of them after checking the risks have been flagged to ministers. If they don’t do this, and matters go wrong, the it is they not the politicians who are criticised. This is such a basic point that all civil servants who work on policy and with ministers will always cover themselves this way. They would have had very short careers if they didn’t do that!

That letter from Roddy Dunlop 😱

The argument that says there was a case in October was based critically on a lack of disclosure and evidence by the SG.

Let us assume tomorrow I get a case from the SG but very little evidence. From a pure public law point of view (which is all I have) u can say “there is an argument” because the cases will say so. But then it is factually and evidentially refined.

My client pisses me about for months not disclosing things. My obligations to justice matter. I have to meet the duty of candour to the court, which means if there are documents which assist in the resolution of the case the SG must provide them. That’s a duty in law they have to the court.

The client doesn’t give me anything and keeps pressing for an academic legal argument that clears them. I know that is not going to happen because of seriousness of the issues at hand. I also know that a court will take very seriously the issue of non disclosure because this is the SG against one man. One! Public law says that governments must act proportionately and reasonably and not use their power and resource against individuals in an abusive way.

I am by now very worried. I write desperate emails trying to pry my client away from the political crack they are on, indicating that actually they are obliged to disclose and it is not an option.

Finally dribbles of evidence come out which are unclear and inconsistent. The test for judicial review grounds are met.

The delay in the case collapsing is due to the failure of information to be presented.

The way I understand it is that the legal team where getting information in dribs and drabs. (a bit like the committee is) And on occasion where professionally embarrassed in front of the judge because they said they had it all when in fact they didn't because it had been withheld.
This is where November is crucial and the meeting on the 13th. It probably got to the stage that because of the way the legal team where being treated they decided to call it quits and because of that they then got the evidence they did need and then following that decided that the SG had no chance but SG hung on until December and into January.

I am by now very worried. I write desperate emails trying to pry my client away from the political crack they are on, indicating that actually they are obliged to disclose and it is not an option.

this made me laugh.

It seems to me as well that there was a lack of understanding (and perhaps a refusal to even ask about) the realistic probability of success? I suppose I can kind of see, in the legal advice, that the probability of successfully defending seems to be declining as it goes on but they seem to be clinging to "but it's still arguable..."

There's no proof information was 'withheld' or 'hidden'. It was identified early on that although the appointment of the person who headed the investigation was made 'bona fide', it was a problem. Although there's been difficulties over the retrieving/presenting of documents (how many e-mails does a huge organisation get in just one day never mind the time frame we are talking about?) the fact is they were presented or the fact of them existing was disclosed. If there was a devious motive for withholding them they never would have been presented/admitted to them at all. Of course though the legal team have taken an extremely dim view of the whole sorry mess (understandably) and that's reflected in the harshness of the language.

But as pointed out earlier by Stats - that was what they finally conceded on - the appointment of Judith McKinnnon -crucially, they took the advice.

It is now clear that

1. The SG did not disclose all the information to their legal team.

1. The SG tried to press on with the case when very very strongly advised against it. To the point it became unstateable.

It beggars belief that a government would behave like this.

A client paying for it themselves would not have been so careless of the costs of such action either.

For anyone still in doubt about the notion Sturgeon set out to bring Alex Salmond down I direct you to this extremely clear 20-minute summary.
You have to block your ears to Tommy Sheridan's (I never have/will be been a fan) loud 2-min intro.
As he and Gordon Dangerfield discuss, the 'policy' used against Salmond has not been used on any other person within the Scottish administration before or since Alex Salmond.
And the very idea that it should ever have been used retrospectively is also highly dubious

sputniknews.com/podcasts-tommy-talks/202101211081827199-a-political-witch-hunt/

urgh, sleazy tommy "the monkey" sheridan

@StatisticallyChallenged

I am by now very worried. I write desperate emails trying to pry my client away from the political crack they are on, indicating that actually they are obliged to disclose and it is not an option.

this made me laugh.

It seems to me as well that there was a lack of understanding (and perhaps a refusal to even ask about) the realistic probability of success? I suppose I can kind of see, in the legal advice, that the probability of successfully defending seems to be declining as it goes on but they seem to be clinging to "but it's still arguable..."

Yes of course. You can see that because of the efforts to cling to procedural arguments like Salmond being out of time.

Let us imagine you are a judge. You could exclude the claim on the basis that Salmond had waited and was technically out of time. That’s the rule and it could be thrown out.

But set that against the facts

Salmond is one person against the SG

Salmond attempted to resolve this issue by other means short of filing a JR

Salmond looks like he has been subject to a retrospective policy

Salmond looks like the policy so done also could have implications for a criminal investigation

The SG has not disclosed or attempted to resolve the JR with Salmond. On both counts they have a legal duty to do this

This just bare bones stuff. The judge does not care about politics or whether Salmond is a creep.

The balance of justice, procedural fairness, reasonableness, proportionality and non retroactivity all applied to him as they do to anyone else in the country.

The SG set against all of that he didn’t file within the rules and he could not advance his claim.

They would have been made an absolute laughing stock in court had they tried to do this.

Wings and Tommy Sheridan as credible sources Never thought I'd see the day!