Source: The Conversation – UK – By Nick McKerrell, Senior Lecturer in Law, Glasgow Caledonian University
Monday March 23, 2020 may go down in history as the day the UK went into lockdown over coronavirus. But the virus relegated another piece of startling news, certainly in Scotland, that in different times would have had sent shockwaves through the political world.
Alex Salmond, former first minister of Scotland, was acquitted of all 13 alleged sexual offences against nine women, following a two-week trial at the High Court in Edinburgh. The jury found him not guilty on 12 charges of sexual assault and not proven on a charge of attempted rape. Not proven is a unique verdict in the Scottish criminal justice system which amounts to an acquittal.
Legal and political battles
The trial was the culmination of a lengthy legal process. Charges were brought one year ago, when heavy restrictions on media coverage came into play. After his acquittal, Salmond stood on the steps of the capital’s court building and ominously declared that “information will see the light of day” which was not allowed to be presented in the evidence – although this seems to be unlikely until the worst of the pandemic is over. He is now said to be using his time in lockdown to write his own account of the last two years.
It seems like a distant memory now, but the legal shadow boxing that took place prior to the actual criminal trial may regain significance. In January 2019, Salmond succeeded in winning a judicial review against the way the Scottish government – the government he used to lead – investigated complaints against him.
This meant the government had to pay his legal costs when the civil law legal process – which was nothing to do with looking at the substance of the complaints – ruled that the investigation was “unfair”. But shortly afterwards, criminal charges were brought after a full Police Scotland investigation – which did not rely on the internal government complaints system.
However, Salmond’s acquittal has led to some of his supporters to link the two. MSP Alex Neil has said there should be a judicial inquiry into the Scottish “organs of the state” to see if there was a conspiracy to “do in” Salmond.
In his summing up, chief defence lawyer Gordon Jackson told the jury that, “Something doesn’t smell right about the whole thing”. It was revealed during the trial that the complainers – who retain anonymity under Scottish court rules – included government civil servants and pro-independence activists.
Yet such talk of conspiracies in relation to sexual offences was condemned by Rape Crisis Scotland. In the light of the verdict, the organisation pointed out how difficult it is for victims of sexual assault to come forward, particularly when they have to appear in court, as all the women in this case did.
The conviction rates in Scotland for rape and attempted rape are very low. In 2017-18, there was a success rate in the courts of 43%. Sexual Assault charges stand a bit higher at 63% success, but this is way below the rates of other crimes.
Behaviour in the workplace
Salmond is not guilty of any criminality. He argued that innocent behaviour involving touching members of staff had been turned into allegations of sexual offences. Many of these charges took place in a professional setting where Salmond admitted personal boundaries were blurred. He called it an “informal family environment” with a large degree of socialising not as common in other governmental departments.
This working environment had led several civil servants to complain of stress, according to their line manager. And according to evidence given in court, following two complaints, work rotas were changed to ensure no woman worked alone with the former first minister.
A picture of this stressful workplace emerged, where the most powerful person in government was failing fully to respect personal space, an issue that caused Gordon Jackson to say that Salmond “could have been a better man on occasion”. That, however, did not amount to criminality.
Much was made in the trials of incidents that “no one thought twice about” at the time turning into criminal offences. Ultimately, the behaviour was not ruled as criminal, but there is no doubt on the law and definition of sexual assault. The Sexual Offences (Scotland) Act 2009, passed by the Salmond government and justice secretary Kenny MacAskill to help increase the Scottish conviction rate, outlines exactly what it can amount to.
Some have argued that charges should not have been brought at all following the acquittal, but that ignores the nature of criminal prosecution. There will always be people found not guilty, but it does not mean that potential criminal behaviour should not be investigated and brought to court for a jury to decide upon. In Scots law the defence can ask the judge to throw out the charges if they think the evidence is flimsy, stating that there is “no case to answer”. This was not done in this case, although the prosecution withdrew one charge of sexual assault where no evidence was led.
In the immediate aftermath of the decision, much of the political tension within the SNP that had been in hiatus during the criminal proceedings resurfaced, if only temporarily, due to the COVID-19 issue. High-profile MP Joanna Cherry had a four-page statement ready to release on social media immediately after the verdict. She also called for an inquiry into the Scottish government’s handling of the issue and, significantly, the SNP too. The ex-justice secretary MP Kenny MacAskill called for unspecified resignations.
Salmond’s allies within the SNP will be critical if he chooses at some point to raise the “information” he alluded to in his speech. There could also be many more that support him. As he begins his desired return to Scottish public life, Salmond will also have to rejoin the party as he resigned at the beginning of the judicial process.
There is another worrying element of the aftermath of the verdict for the current first minister Nicola Sturgeon. A parliamentary inquiry into her behaviour over the Salmond incidents by an independent standards committee was put on hold until the trial was finished. This was intended to look at a number of meetings she held with Salmond during the government investigation into his behaviour in 2018 – an action that looked to be forbidden under the ministerial complaints process.
Coronavirus aside, this committee can now report on these events. Coupled with a potential internal SNP battle which could expose the bitterness and bad blood simmering within the party, the long-term effects of the Salmond acquittal could be immense.
– ref. Alex Salmond acquittal: looming fall-out for SNP could ignite civil war – https://theconversation.com/alex-salmond-acquittal-looming-fall-out-for-snp-could-ignite-civil-war-134820