Roddy Dunlop QC: 'I’m not convinced the reasons for attacking the not proven verdict are sound'

At the height of the political drama surrounding the Alex Salmond affair earlier this year, Roddy Dunlop found himself playing a walk-on part.

Dunlop’s legal advice to ministers was published following pressure from MSPs investigating the Scottish Government’s handling of complaints against the former first minister.

It led to his expert counsel being pored over by journalists and subjected to commentary by self-appointed legal experts on social media.

“It was very odd,” he says, reflecting back on those febrile few weeks where it seemed that nearly every day ended with the publication of a slew of documents.

Dunlop, an experienced QC who has been dean of the Faculty of Advocates since last July, had acted as senior counsel for the Scottish Government during its ill-fated attempt to defend itself during the judicial review brought by Salmond’s lawyers in 2018. 

Documents published by the government in March showed Dunlop had advised ministers there was “little sense to continue to defend the indefensible” in the months before the case was conceded at the Court of Session in January 2019.

“It’s never happened to me before that any (legal) opinion of mine has been circulated beyond the client and the solicitors,” Dunlop says. “It’s very odd to have your opinions and your emails put on a website for the world to see, the world to crawl over and the world to comment on.

“I didn’t find it distressing. Ultimately, any lawyer giving his views should be doing so knowing the client can waive the privilege at any point and that advice might be out there. I only ever say that which I would not mind being repeated elsewhere.”

But this wasn’t just any case. For most of the start of the year, Scotland was gripped by the unfolding Salmond v Sturgeon psychodrama which reached its peak when the two appeared before MSPs to give evidence in March.

With the country still in lockdown and most of us happy for any distraction from the grim reality of the pandemic, every twist and turn was followed with alacrity.

Dunlop is no stranger to airing his opinions on Twitter, but he made it clear this was one subject he wouldn’t be commenting on. 

“There were a number of people asking me questions on Twitter about what certain people of high office had or hadn’t done or had or hadn’t said,” he says. “I tweeted that it should go without saying, but for the hard of thinking – I cannot and will not comment on advice I have given in any case. I had no desire to see myself in front of the faculty’s discipline tribunal and that would be one sure way of getting there.”

I ask Dunlop if there’s anything to be gained by lawyers from being on Twitter, given the potential difficulties they can find themselves in.

“That’s a very good question. I’m only on Twitter because the faculty’s PR adviser said it’s important to engage with modern Scotland in a modern fashion. I find it quite often to be an absolute cesspit. I’ve seen great harm caused to a variety of people in Scottish public life by Twitter – the propensity towards pile-ons and hate and attacks is utterly horrendous, and I can understand why some people have decided it’s not for them. 

“The advice I give to any budding lawyer is to remember that the internet is forever. Once it’s out there (even if you can delete it, someone will have screenshotted it) it will be there forever and future employers will look at it. Don’t tweet in the pub. Don’t tweet in anger – that way madness lies.”

As dean of the Faculty of Advocates, Dunlop currently holds the position previously held by James Wolffe, the departing lord advocate.  

During the Holyrood inquiry into the handling of complaints against Salmond, questions were raised about the lord advocate’s dual role as both head of the prosecution service and chief legal adviser to the Scottish Government. 

Scottish Labour leader Anas Sarwar was among those calling for the roles to be separated, while more than 80 per cent of those responding to a survey by Scottish Legal News supported a severing of the lord advocate’s prosecutorial and political functions.

The pressure on Wolffe was compounded when it emerged the taxpayer would be saddled with a bill of more than £24m for compensation paid to former Rangers administrators David Whitehouse and Paul Clark following their wrongful prosecution.

The Crown had previously admitted that the prosecution of the two men, which began under Wolffe’s predecessor, Frank Mulholland, had been malicious.

But Dunlop, who represented Whitehouse during that particular case, warns against making any snap judgements on the role of the lord advocate as a result of recent controversies.

“I think we need to be careful of knee-jerk reactions,” he says. “A lot of the noise behind this is being driven by recent travails. They are recent travails I can’t necessarily talk about because I was involved as counsel in at least two of them – the Salmond judicial review and the Whitehouse case.

“If you acknowledge that there have been certain situations of late where problems have arisen, you have to set that against the fact the lord advocate’s office is centuries old and has operated perfectly sensibly and satisfactorily for centuries. The fact there has been a couple of difficult cases in recent times, by all means have a look at it, but don’t make change for change’s sake.”

In May it was announced Wolffe would stand down from his post alongside solicitor general Alison Di Rollo. Their successors are Dorothy Bain as lord advocate and Ruth Charteris as solicitor general, the first time the two most senior roles in the Crown Office have been held simultaneously by women. 

But despite recent headlines, Dunlop is full of praise for Wolffe.

“We’re still in a time of great constitutional uncertainty and constitutional change. I for one think it’s been helpful that we’ve had someone of the ability of James Wolffe in the office of lord advocate who has a depth of knowledge of constitutional law that is absolutely preeminent amongst his peers.

I find (Twitter) quite often to be an absolute cesspit. I’ve seen great harm caused to a variety of people in Scottish public life by Twitter – the propensity towards pile-ons and hate and attacks is utterly horrendous, and I can understand why some people have decided it’s not for them. 

“I don’t think it’s appropriate for me to comment on James’ role in any case I was involved in and that would include Whitehouse and Salmond. What I can say, have said and will say until I’m blue in the face, is that James Wolffe is an exceptional lawyer and a man of unimpeachable honour and integrity.

“Anyone that has ever suggested that James Wolffe has been got at, that he is corrupt, that he has done anything that is in any way dishonest is completely misguided. I’ve known the man for 23 years; he is as straight as a die and he is one of the most intelligent lawyers of his generation.”

While discussion about the future of the lord advocate’s role has been a relatively recent debate, two of the perennials when it comes to reform of the Scottish legal system are the issues of corroboration and the not proven verdict.

Unique to Scotland, not proven was famously referred to as the “bastard verdict” by Sir Walter Scott and has the same effect as not guilty.

The subject of debate for many years, there does now appear to be a growing political consensus around its removal.

In the run-up to May’s Holyrood elections, the Tories, Labour and the Greens all supported calls for the third verdict to be scrapped, while First Minister Nicola Sturgeon said the issue would be looked at amid “mounting evidence” not proven is linked to low conviction rates in rape and sexual assault trials.

Rape Crisis Scotland has led calls for not proven to be abolished as a means of securing more convictions.

Research has shown that removing not proven could encourage jurors to opt for a guilty verdict in finely balanced trials, while a 2015 review by judge Lord Bonomy found some jury members mistakenly thought a not proven verdict left open the possibility of a retrial.

“I have no interest in the politics of it,” says Dunlop. “I’m only interested in whether the reasons for attacking the not proven verdict are sound, and I’m not convinced they are. 

“I’ve got great respect for Sandy Brindley [chief executive of Rape Crisis Scotland], but I would challenge her to show what evidence there is that the existence of the not proven verdict is leading to situations where there should be a conviction. That should not be the case. What would the basis be for a jury that would otherwise convict saying, ‘We’re sure about his guilt, but we’re going to give him a not proven because it’s available to us.’ I just don’t see that. 

“The low conviction rate [for sexual offences] is something that many countries experience. We are not wildly dissimilar from other countries in that it is in the nature of these things that evidence is difficult to obtain, especially in a situation where corroboration is necessary and one must be satisfied beyond reasonable doubt as to guilt. Those cases are always going to be more difficult to prove than others.”

Dunlop believes the removal of not proven is overly simplistic, a popular response favoured by politicians who haven’t considered its full implications. He says its removal would have to be accompanied by a willingness to look at other features of the Scottish legal system, such as jury size and majority verdicts. 

“We think the situation that we’ve got works, that it’s worked for centuries. There’s no evidence of particular problems.”

“We need to be careful of knee-jerk reactions,” says Dunlop              Picture: Anna Moffat

Dunlop recently represented Craig Murray, a former UK diplomat who was found in contempt of court and sentenced to eight months in prison over blogs he wrote about Salmond’s criminal trial.

Murray, a former UK ambassador to Uzbekistan, was found to have breached a court order protecting the identities of women who made allegations about the former first minister.

The Murray case has become a cause célèbre for conspiracy theorists who accuse the Scottish Government of orchestrating a plot to have the blogger jailed.

But despite apparently growing amounts of online disinformation about the Scottish legal system, Dunlop isn’t worried.

“We must allow open and frank comment of the justice system because if you don’t, the checks and balances that keep the judiciary adhering to their own values are missing,” he says.

“These days everyone is a potential amateur journalist and I think that is, in the main, healthy. I would be very wary of a situation where we are stifling criticism, even if it is misguided, of the court process.”

On the subject of contempt of court more generally, he says: “One of the essential restrictions is the restriction that’s in place in the Murray case – the anonymity of complainers. 

“Do I think there’s a lack of awareness of that? If there is, that’s regrettable and that should be addressed, but how do you do that when any keyboard warrior can sit down and make comment? People need to educate themselves, but I’m not suggesting you should have a law degree before being allowed on Twitter.”

One potential curb on freedom of expression, according to Dunlop, could come from the Scottish Government’s controversial hate crime legislation.

The Faculty of Advocates was among the organisations which highlighted issues with the bill as it passed through Holyrood. Dunlop says that while many of the concerns were allayed by the time the legislation passed, not all of them were.

“There is inevitably going to be a chilling effect. There is inevitably going to be the possibility that the legislation is misused and results in malicious complaints to the police by people simply looking to cause trouble.

“As we said when the bill was first put forward, we are supportive of the general aims of the bill, which are laudable. The vast majority of big-ticket problems we had with it have been amended out.”

Like almost every other area of life, the Scottish courts system has been badly affected by the pandemic and is struggling to deal with a backlog of cases.

Dunlop says that, on the whole, he’s not in favour of remote hearings carried out online and worries that they became the default even after the worst of the pandemic has passed. 

“I think everyone agrees that going forward, the procedural business should be dealt with by way of remote hearings, but for everything else which might determine the case one way or another, it should be in person. It’s more efficient. It’s better to meet the judge and engage with the judge in person. The faculty thinks extending remote hearings beyond the pandemic would be a dangerous step, a retrograde step.”