Salmond denies sexual misconduct allegations

[ProfessorDavey]

Oh and can I just ask again because I am finding it very hard to understand your thinking on this point
'By the way, I am struggling to understand why if you think Salmond is acting deviously that you take the words in the statement actually true rather than a deliberate manipulation?'

I think he is using his power and establishment position to pull levers which are unlikely to be available to others.

Imagine a reverse situation.

Salmond is accused of misconduct - there is an investigation which clears him. The accusers think the decision to be wrong and the process flawed - they can go for a Judicial Review, but of course the cost is prohibitive. Do you think they'd be able to raise £100k in hours to take it to Judicial review. Of course not.

That's where there is an imbalance - options are open to Salmond due to his position and power that aren't open to others.

[Nearly Sane]

I think he is using his power and establishment position to pull levers which are unlikely to be available to others.

Imagine a reverse situation.

Salmond is accused of misconduct - there is an investigation which clears him. The accusers think the decision to be wrong and the process flawed - they can go for a Judicial Review, but of course the cost is prohibitive. Do you think they'd be able to raise £100k in hours to take it to Judicial review. Of course not.

That's where there is an imbalance - options are open to Salmond due to his position and power that aren't open to others.

Which I agree with but ignores the question asked.

[Nearly Sane]

The outcome of which (indirectly via revisiting of the decision by the Scottish Government required by the Judicial Review, rather than directly as in the case of an appeal) may be that the decision is reversed, in which case Salmond's name will be cleared.

A Judicial Review cannot reverse a decision directly, however the ultimate outcome of a Judicial Review is often that a decision is reversed.

There is no ultimate outcome in that sense legally which is the point that Tickell makes which you and Salmond disagree with.

[ProfessorDavey]

There is no ultimate outcome in that sense legally which is the point that Tickell makes which you and Salmond disagree with.

Yes there is - a Judicial Review can legally require the organisation that has lost to revisit its decision - they might (or might not) come to the same decision, but they have to revisit it.

[Nearly Sane]

Yes there is - a Judicial Review can legally require the organisation that has lost to revisit its decision - they might (or might not) come to the same decision, but they have to revisit it.

No, there really isn't at this stage which is where you say you know better than Tickell and you agree with Salmond.

[ProfessorDavey]

No, there really isn't at this stage which is where you say you know better than Tickell and you agree with Salmond.

Yes there is - Tickell recognises it, as he understands how Judicial Reviews work. I do too as I also do - clearly you don't understand the various outcome possibilities of a Judicial Review.

One is that the Judicial Review finds against the organisation making the original decision, refers it back to then requiring them to revisit the decision. When they revisit the decision they will need to justify their process and the new decision in light of the findings of the Judicial Review.

I'll ask again - do you have any legal background. I think I know the answer because if you did you would know that a Judicial Review can refer an original decision back to the losing organisation to be revisited.

[Nearly Sane]

Yes there is - Tickell recognises it, as he understands how Judicial Reviews work. I do too as I also do - clearly you don't understand the various outcome possibilities of a Judicial Review.

One is that the Judicial Review finds against the organisation making the original decision, refers it back to then requiring them to revisit the decision. When they revisit the decision they will need to justify their process and the new decision in light of the findings of the Judicial Review.

I'll ask again - do you have any legal background. I think I know the answer because if you did you would know that a Judicial Review can refer an original decision back to the losing organisation to be revisited.

And he says that the judicial review has nothing to do with clearing Salmond's, and you disagree with that and are with Salmond

[ProfessorDavey]

And he says that the judicial review has nothing to do with clearing Salmond's, and you disagree with that and are with Salmond

Let's walk you through it shall we:

1. Do you accept that the outcome of a Judicial Review might be that the Scottish Government is required by law to take the decision again?
2. Do you accept that if this is the outcome of this Judicial Review that the Scottish Government, when taking the decision again (as required under law), may come to a different outcome, in other words to find in favour of Salmond?
3. If 1 and 2 occur (as is quite possible under Judicial Review) that Salmond will have cleared his name?

Not rocket science

[Rhiannon]

Let's walk you through it shall we:

1. Do you accept that the outcome of a Judicial Review might be that the Scottish Government is required by law to take the decision again?
2. Do you accept that if this is the outcome of this Judicial Review that the Scottish Government, when taking the decision again (as required under law), may come to a different outcome, in other words to find in favour of Salmond?
3. If 1 and 2 occur (as is quite possible under Judicial Review) that Salmond will have cleared his name?

Not rocket science

You've got what he is asking for (a review) and then made up a lot of other stuff.

[Nearly Sane]

Let's walk you through it shall we:

1. Do you accept that the outcome of a Judicial Review might be that the Scottish Government is required by law to take the decision again?
2. Do you accept that if this is the outcome of this Judicial Review that the Scottish Government, when taking the decision again (as required under law), may come to a different outcome, in other words to find in favour of Salmond?
3. If 1 and 2 occur (as is quite possible under Judicial Review) that Salmond will have cleared his name?

Not rocket science

No, not rocket science, just in disagreement with Tickell's article that it has nothing to do with clearing his name in a legal sense.

[ProfessorDavey]

No, not rocket science, just in disagreement with Tickell's article that it has nothing to do with clearing his name in a legal sense.

So you accept my step by step account of possible outcome of the Judicial Review?

[Nearly Sane]

So you accept my step by step account of possible outcome of the Judicial Review?

No, I am accepting Tickell's version, which you and Salmond disagree with. 

[ProfessorDavey]

You've got what he is asking for (a review) and then made up a lot of other stuff.

I'm not claiming this will happen, but that it is a reasonable possibility.

He may lose the Judicial Review - but if he wins the most common remedy of Judicial Review is a so called quashing order. Effectively the original decision is set aside as it was found to be unlawful. The court then directs the original decision making body (the Scottish Government in this case) to make a fresh decision in accordance with the judgment of the court.

If this happens then the Scottish Government will need to run the procedure afresh and will need to take account of any procedural issues deemed unlawful by the Judicial Review. The Scottish Government may come to the same decision again of course, but they may not.

[ProfessorDavey]

No, I am accepting Tickell's version, which you and Salmond disagree with.

Where does Tickell make any comment on what happens next if Salmond wins and the outcome is that the decision is referred back to the Scottish Government who are required, under law, to take the decision again. He doesn't discuss this, but this is of course a necessary consequence of the things he does discuss - likely outcomes of a successful Judicial Review.

Whether or not Tickell discusses them in his article he well knows (as he is a legal academic) that were the outcomes he discussed to happen then the Scottish Government would be required by law to take the decision again. And he will know too, that there is no guarantee that were they to run the process again that the decision would be the same.

All he is saying is that, on a precise point of law, that a Judicial Review cannot reverse a decision (actually they can, but this is very rare and not really relevant here) but that doesn't mean that the ultimate outcome of a Judicial Review is that a decision is reversed. Were that not the case why would anyone apply for Judicial Review.

[Nearly Sane]

Where does Tickell make any comment on what happens next if Salmond wins and the outcome is that the decision is referred back to the Scottish Government who are required, under law, to take the decision again. He doesn't discuss this, but this is of course a necessary consequence of the things he does discuss - likely outcomes of a successful Judicial Review.

Whether or not Tickell discusses them in his article he well knows (as he is a legal academic) that were the outcomes he discussed to happen then the Scottish Government would be required by law to take the decision again. And he will know too, that there is no guarantee that were they to run the process again that the decision would be the same.

All he is saying is that, on a precise point of law, that a Judicial Review cannot reverse a decision (actually they can, but this is very rare and not really relevant here) but that doesn't mean that the ultimate outcome of a Judicial Review is that a decision is reversed. Were that not the case why would anyone apply for Judicial Review.

And yet you took the position of disagreeing with Tickell and agreeing with Salmond about what was covered by the judicial review. If you don't disagree with Tickell, then you would accept that in putting forward his case that Salmond was wrong is correct?

[ProfessorDavey]

And yet you took the position of disagreeing with Tickell and agreeing with Salmond about what was covered by the judicial review. If you don't disagree with Tickell, then you would accept that in putting forward his case that Salmond was wrong is correct?

I've never disagreed with Tickell - I have merely pointed out that his article is merely about what a Judicial Review can and cannot do, rather than the secondary consequences of the Judicial Review findings one the decision making body.

I have no doubt that he and I both agree that the ultimate outcome of a quashing order from the Judicial Review (were that to happen) cold be that the Scottish Government reverses its original decision when it is revisited. All he is saying is that it wouldn't be the Judicial Review that reversed the decision (that isn't what they do) it would be the Scottish Government required, by law, to make a fresh decision in accordance with the judgment of the Judicial Review.

What he is doing in his article is articulating the distinction between and appeal (which can directly overturn an original decision) and a Judicial Review, which in criminal law terms can order a retrial but cannot determine what the outcome of that retrial would be.

[The Accountant, OBE, KC]

Yes there is - Tickell recognises it, as he understands how Judicial Reviews work. I do too as I also do - clearly you don't understand the various outcome possibilities of a Judicial Review.

One is that the Judicial Review finds against the organisation making the original decision, refers it back to then requiring them to revisit the decision. When they revisit the decision they will need to justify their process and the new decision in light of the findings of the Judicial Review.

I'll ask again - do you have any legal background. I think I know the answer because if you did you would know that a Judicial Review can refer an original decision back to the losing organisation to be revisited.

I am confused - what decision are you referring to? What decision has the civil servant carrying out the investigation made?

[Nearly Sane]

I've never disagreed with Tickell - I have merely pointed out that his article is merely about what a Judicial Review can and cannot do, rather than the secondary consequences of the Judicial Review findings one the decision making body.

I have no doubt that he and I both agree that the ultimate outcome of a quashing order from the Judicial Review (were that to happen) cold be that the Scottish Government reverses its original decision when it is revisited. All he is saying is that it wouldn't be the Judicial Review that reversed the decision (that isn't what they do) it would be the Scottish Government required, by law, to make a fresh decision in accordance with the judgment of the Judicial Review.

You seem very confused. The point Tickell is making and that I posted the link for is that the crowdfunding has nothing to do with raising money for Salmond's defence , or clearing his name. You took issue with that and are hence disagreeing with Tickell. Toy cited as the reason for this Salmond's statement so are agreeing with Salmond. You still haven't addressed the question of why you think that Salmond might be being devious in his use of soft power here, but that you have to agree with him as regards the disagreement with Tickell because he is somehow obviously being honest - which in itself is irrelevant but shows confusion on your part.

[Rhiannon]

I don't see how Salmond is fighting to clear his name, but I don't think he needs to. All he needs is for there to be doubt over the original process. Then he can cry foul, reapply to the party and the odds of the women sticking with the criminal investigation are hugely reduced, with little chance of success should it get to court.

[Nearly Sane]

I don't see how Salmond is fighting to clear his name, but I don't think he needs to. All he needs is for there to be doubt over the original process. Then he can cry foul, reapply to the party and the odds of the women sticking with the criminal investigation are hugely reduced, with little chance of success should it get to court.

As covered in #112, a lot of this needs to be seen with a more indepth knowledge of Scottish politics.

[ProfessorDavey]

I am confused - what decision are you referring to? What decision has the civil servant carrying out the investigation made?

He is seeking Judicial Review of the complaints procedure used by the Scottish Government to investigate and determine whether there is a case to answer and the outcome of that investigation, being that there is a case to answer and that the matter should be referred to the police and made public.

There was an internal process in the Scottish Government with the investigation outcome providing to Nicola Sturgeon on 22nd Aug - the Judicial Review is on that investigation and he is, do doubt hoping, that the Judicial Review quashes the outcome of that investigation requiring it to be rerun, and potentially requiring changes to the procedure used if that is the verdict of the Judicial Review.

[The Accountant, OBE, KC]

I don't see how Salmond is fighting to clear his name, but I don't think he needs to. All he needs is for there to be doubt over the original process. Then he can cry foul, reapply to the party and the odds of the women sticking with the criminal investigation are hugely reduced, with little chance of success should it get to court.

If the judicial review finds in his favour, Salmond seems to think this will result in the Permanent Secretary having to give Salmond the details of the complaints against him. This may then enable him to clear his name if he can come up with something to discredit the allegations against him.

Can he reapply to join the party before there is an outcome to the investigation and before that outcome is that there is no case for Salmond to answer?

[ProfessorDavey]

You mean the accusers.
I take the point, but Alec Salmond has denied the complaints as far as he knows what they are. From his point of view and those people that believe him, the accusers are lying. If they are lying, he surely has the right to use whatever  means that are available within the law to defend his name.

He of course has the right to defend himself.

But alternatively it may be that his accusers are right and he is lying and that he is using whatever means he has (which are considerable given his power and establishment position) to get the accusers to shut up and go away. That Salmond is able to mobilise thousands of supports with cash (and dubious comments) in hours could just be enough to make the women drop their claims regardless of their validity, knowing that they cannot be guaranteed not to have their identities leaked if the case proceeds.

I don't like the power politics here - it seems inbalanced.

[Nearly Sane]

If the judicial review finds in his favour, Salmond seems to think this will result in the Permanent Secretary having to give Salmond the details of the complaints against him. This may then enable him to clear his name if he can come up with something to discredit the allegations against him.

Can he reapply to join the party before there is an outcome to the investigation and before that outcome is that there is no case for Salmond to answer?

It's not clear what any decision of the judicial review might be, so it isn't clear what any result of it would address.

He could reapply to the party at any time here. The application to join a party is not part of the legal process.

[ProfessorDavey]

If the judicial review finds in his favour, Salmond seems to think this will result in the Permanent Secretary having to give Salmond the details of the complaints against him. This may then enable him to clear his name if he can come up with something to discredit the allegations against him.

Yes it may do and also it may require the process to be rerun under different rules. You can see how this may significantly advantage Salmond and also may deter the accusers of engaging with the revisited process as it is likely that their names may become public.

So a win may advantage Salmond in 3 ways.

First the initial outcome would be quashed and the process run again
Secondly that he may have a greater ability to defend himself in a rerun (or just result in a different outcome)
Thirdly that the women may decide not to engage in the process if their anonymity cannot be guaranteed