Forgotten meeting between complainant and investigating officer ‘watershed moment’ in Salmond case

The discovery of a forgotten meeting between one of the complainers and the civil servant installed as the investigating officer (IO) in the Scottish Government’s investigation of Alex Salmond immediately before a formal complaint was lodged was described as the “watershed moment” by senior counsel.

Judith Mackinnon, the head of people advice at the Scottish Government who took on the role of IO, met with Ms A on 16 January 2018 but was unable to recall that meeting when asked.

In newly released documents containing the legal advice, an email from senior counsel Roddy Dunlop QC, dated 22 December 2018, said this meant the government would be unable to respond to accusations of bias.

He said: “The problem with this is that [Mackinnon] stated in the commission yesterday, on oath, that she could not remember that meeting. That leaves us unable to aver, let alone prove, what happened at that meeting, and thus unable to rebut the rather obvious inferences that will otherwise be drawn from the fact that it occurred.

“If one needed a watershed moment where the case moved from very difficult to unstatable, that was it.”

And an email sent the day before from junior counsel Christine O’Neill said the existence of a note of a meeting between Ms A, Mackinnon and the director of people, Nicky Richards, and the fact of a call between the second complainer and Mackinnon before the formal complaints were made was “new information”.

O’Neill concluded: “It need not be said but the new information over the last 24 hours about further contact between Judith Mackinnon and the complainers simply reinforces our views about the case in relation to her prior involvement/apparent bias.”

The external counsel had said on 31 October 2018 that the prior contact between Mackinnon and the complainers was “extremely concerning”.

Two notes from counsel in November show statements being adjusted to disclose this prior contact.

But a joint note on 6 December warned the government that Salmond’s case was “more likely than not to succeed” after further information on the extent of the contact came to light.

Commenting on the release of the final tranche of legal advice documents, deputy first minister John Swinney said: “I am completely clear that these documents, taken in their entirety, utterly disprove the conspiracy theory that the Scottish Government delayed the concession of the judicial review or ignored advice from counsel, or that there was a plot against Mr Salmond.

“These documents demonstrate that the case became unstateable in late December and the Scottish Government conceded quickly afterwards in early January.”