Salmond denies sexual misconduct allegations

[jeremyp]

I think there is a world of difference between how we might respond to each other's comments on this MB and how a person accusing one of the most powerful and influential figures in Scotland of sexual harassment might feel about comments made in support of that powerful and influential person, particularly if you aren't 100% confident that your anonymity can be assured.

Yes there is, but what are you going to do about it? The comments really don’t mean anything in the context of a country containing more than five million people. People generally need to understand that fact and those that already do need to help the rest towards that understanding.

[ProfessorDavey]

Yes there is, but what are you going to do about it? The comments really don’t mean anything in the context of a country containing more than five million people. People generally need to understand that fact and those that already do need to help the rest towards that understanding.

It only takes one person.

But what is more important from the perspective of justice is whether the accuser might decide not to proceed with the allegations, or others decide not to raise them out of perceived threat.

[ProfessorDavey]

I think - given that Salmond has admitted he didn’t need to crowdfund the legal action - that it was quite a dickish move.

I agree - Salmond is usually incredible sure-footed politically, but this seems to be an error on his part. Regardless of what Gabriella may opine I think the crowdfunding has back-fired, shifting public opinion against him. Prior to this the reporting was pretty balanced on him personally, largely the innocent until proven guilty, with most media attention on the intriguing politics. Over the weekend that has shifted with pretty broad condemnation of the approach.

Given the current climate, I think it will have a detrimental effect on sexual assault victims coming forward but what can we do about it? The only answer is to change the current climate so people do not get intimidated by arseholes on the Internet - at least that is my opinion.

Well don't forget that comments on-line are 'publications' and there are laws both against actions that are intimidatory to a witness or plaintiff, and also publications that prejudice and fair trial.

Now I've not read all the comments, so can't comment specifically in this case, but I would have thought that theoretically if a defendant acted in a manner to encourage positive comments being published, which may also be derogatory to witnesses or the plaintiff that this could constitute deliberately prejudicing a fair trial or alternatively could be deemed to be intimidatory to the plaintiff or witnesses.

And if the trial collapses it is the defendant who will benefit. Certainly mainstream media are very carefully these days about what they publish in relation to a trial (whether active or potentially pending) but clearly often less careful about comments they allow associated with that article, which would also be deemed to be publications. And this will apply to the crowdfunding page just as much as to the Daily Record.

[ProfessorDavey]

I think - given that Salmond has admitted he didn’t need to crowdfund the legal action - that it was quite a dickish move.

The normal situation for crowdfunding in legal cases is that it allows David to fight Goliath. In this case it is be used to support Goliath fighting David - I think that is seems to many to be so inappropriate.

[jeremyp]

In this case it is be used to support Goliath fighting David.

The Scottish Government is David?

[jeremyp]

I agree - Salmond is usually incredible sure-footed politically, but this seems to be an error on his part. Regardless of what Gabriella may opine I think the crowdfunding has back-fired, shifting public opinion against him. Prior to this the reporting was pretty balanced on him personally, largely the innocent until proven guilty, with most media attention on the intriguing politics. Over the weekend that has shifted with pretty broad condemnation of the approach.
Well don't forget that comments on-line are 'publications' and there are laws both against actions that are intimidatory to a witness or plaintiff, and also publications that prejudice and fair trial.

Now I've not read all the comments, so can't comment specifically in this case, but I would have thought that theoretically if a defendant acted in a manner to encourage positive comments being published, which may also be derogatory to witnesses or the plaintiff that this could constitute deliberately prejudicing a fair trial or alternatively could be deemed to be intimidatory to the plaintiff or witnesses.

And if the trial collapses it is the defendant who will benefit. Certainly mainstream media are very carefully these days about what they publish in relation to a trial (whether active or potentially pending) but clearly often less careful about comments they allow associated with that article, which would also be deemed to be publications. And this will apply to the crowdfunding page just as much as to the Daily Record.

Don't forget that, in this case, there is no trial, at least not yet. Salmond is raising the money to support a legal action in which he is the plaintiff and the Scottish government is the defendant. As the action is about the process that the government employed, there's no reason for Salmond's accusers to get involved.

[ProfessorDavey]

The Scottish Government is David?

As pointed out in the discussion with NS, Salmond sees the judicial review as a key factor in clearing his name. And indeed if he won it there is a strong likelihood that the original decision would be quashed, internal process would need to be re-run taking account of the judicial review findings. Under these circumstances there is a significant likelihood that the original decision would be reversed.

So although the judicial review is actually tabled against Permanent Secretary Leslie Evans (not the Scottish Government who aren't the primary respondent), this isn't some altruistic 'change the rules to prevent others suffering' case, the real target is to get the original allegations dismissed, in other words the accusers.

So it is very much Goliath against David.

[ProfessorDavey]

Don't forget that, in this case, there is no trial, at least not yet. Salmond is raising the money to support a legal action in which he is the plaintiff and the Scottish government is the defendant. As the action is about the process that the government employed, there's no reason for Salmond's accusers to get involved.

If he wins his case it is likely that the original internal process, involving the accusers, will be required by law to be re-run.

[ProfessorDavey]

Don't forget that, in this case, there is no trial, at least not yet. Salmond is raising the money to support a legal action in which he is the plaintiff and the Scottish government is the defendant. As the action is about the process that the government employed, there's no reason for Salmond's accusers to get involved.

Wrong terminology - Salmond is the applicant, Permanent Secretary Leslie Evans is the primary respondent.

And in a judicial review, as in other types of tribunal, the applicant can call witnesses or request witness statements to be provided, and therefore could request the accusers to be witnesses in the case - specifically they'd be probed on how they made the allegations, how evidence was taken etc etc - so all about the process. I imagine they'd be required to provide evidence in the form of a written statement, and their anonymity would be maintained, but they might be required to be involved in the judicial review.

[Rhiannon]

It's hard to say how traumatising Salmond's actions have been for the women in this case. But revisiting trauma in the context of a court situation or tribunal is traumatising in itself, and often retraumatising. I was talking to a key worker from Women's Aid who told me that during the legal processes surrounding a rape trial victims are encouraged not to get counselling because it can be used by the defence as evidence of coercion, poor mental health, you name it. So anyone dealing with abuse that could become a criminal matter may well not be getting psychological support. Retraumatising in the court arena, revisiting any kind of harassment or abuse, is horrendous.

If I were one of these women I'd walk away.

[The Accountant, OBE, KC]

I agree - Salmond is usually incredible sure-footed politically, but this seems to be an error on his part. Regardless of what Gabriella may opine I think the crowdfunding has back-fired, shifting public opinion against him. Prior to this the reporting was pretty balanced on him personally, largely the innocent until proven guilty, with most media attention on the intriguing politics. Over the weekend that has shifted with pretty broad condemnation of the approach.

I think that's wishful thinking on your part - you have not addressed the issue that your same argument about "sending a message to victims" was used to call for him to be suspended from the SNP after the allegations were leaked to the Daily Record, which makes it sound like he is guilty of wrongdoing before any process had been carried out or judgement reached about whether he is actually guilty.

That some people are critical of Salmond for not just rolling over and going along with the unethical "sending a message" justification to punish a man simply on the basis of allegations is not really surprising - some people seem to either have a particular weakness for the "fragility of women" narrative and let their emotional reaction override their concern for a fair process, or it was just an opportunity to attack Salmond that they could not bring themselves to pass up.

[The Accountant, OBE, KC]

As pointed out in the discussion with NS, Salmond sees the judicial review as a key factor in clearing his name. And indeed if he won it there is a strong likelihood that the original decision would be quashed, internal process would need to be re-run taking account of the judicial review findings. Under these circumstances there is a significant likelihood that the original decision would be reversed.

So although the judicial review is actually tabled against Permanent Secretary Leslie Evans (not the Scottish Government who aren't the primary respondent), this isn't some altruistic 'change the rules to prevent others suffering' case, the real target is to get the original allegations dismissed, in other words the accusers.

So it is very much Goliath against David.

No it very much isn't. It's an individual (Salmond) against the government. You can try to spin it into something else, but the crowdfunding page is evidence that a substantial number of people disagree with your view of who is David and who is Goliath for the purposes of a judicial review into a process that is alleged to have been carried out unfairly.

[The Accountant, OBE, KC]

It's hard to say how traumatising Salmond's actions have been for the women in this case. But revisiting trauma in the context of a court situation or tribunal is traumatising in itself, and often retraumatising. I was talking to a key worker from Women's Aid who told me that during the legal processes surrounding a rape trial victims are encouraged not to get counselling because it can be used by the defence as evidence of coercion, poor mental health, you name it. So anyone dealing with abuse that could become a criminal matter may well not be getting psychological support. Retraumatising in the court arena, revisiting any kind of harassment or abuse, is horrendous.

If I were one of these women I'd walk away.

That makes it sound like you have already decided Salmond is guilty?

A lot of the articles linked to on here by people who are against the crowdfunding seem to just pay lip service to the idea of innocent until proven guilty, rather than that they actually believe in that principle.

[Rhiannon]

That makes it sound like you have already decided Salmond is guilty?

A lot of the articles linked to on here by people who are against the crowdfunding seem to just pay lip service to the idea of innocent until proven guilty, rather than that they actually believe in that principle.

I accept that, and I haven't, but if the actions did happen, then then the point stands.

In terms of the crowdfunding, my objection is that he didn't need to do it. He has the money, so what is it other than a show of strength?

[ProfessorDavey]

I think that's wishful thinking on your part - you have not addressed the issue that your same argument about "sending a message to victims" was used to call for him to be suspended from the SNP after the allegations were leaked to the Daily Record, which makes it sound like he is guilty of wrongdoing before any process had been carried out or judgement reached about whether he is actually guilty.

Calling for someone in politics to resign, be sacked, be suspended etc is part and parcel of the political machinations under circumstances where there are allegations. Sure as light follows day opposition parties will suggest this - this has nothing to do with Salmond per se as it has happened in pretty well every other case involving a politician of every party - I can think of recent examples involving Labour (Ken Livingston), the Tories (Damian Green), the LibDems (Chris Renard) etc etc - all occurred prior to completion of formal process, and certainly before any criminal charges (if any eventually happened) occurred or court procedure.

And actually it is very common for an individual to be suspended from their work or an organisation while an investigation is ongoing. You might not like it, but it is what regularly happens so there is no indication that Salmond has been treated any differently from the norm as a senior politician.

And just to correct your error - the story was not originally placed in the public domain due to a leak. Once the initial investigation was complete (22nd August) the details that Salmond was under investigation on 2 counts dating back to 2013 and that details had been passed on to the police was released into the public domain by the Scottish Parliament. There was a later leak, via the Daily Record which provided some more details, but the original release of information was planned and agreed and not a leak.

[ProfessorDavey]

It's an individual (Salmond) against the government.

Once again you are incorrect factually, it is an individual (Alex Salmond - the applicant), against another individual (Leslie Evans - the respondent).

But the reality is that it is an individual acting with the clear intention of reversing a decision on accusations that were brought by two other individuals.

It is Goliath vs David.

[Udayana]

It seems clearly in Salmonds interests to use crowd funding as, whether the case is won or lost or, if charged, he is convicted or not, it is seen as Salmond and an army fighting for a cause rather than a lonely perv avoiding responsibility. If the case is lost and a prosecution proceeds at least he won't have wasted his own money.

The advantages probably outweigh any increased criticism. 

[The Accountant, OBE, KC]

Calling for someone in politics to resign, be sacked, be suspended etc is part and parcel of the political machinations under circumstances where there are allegations. Sure as light follows day opposition parties will suggest this - this has nothing to do with Salmond per se as it has happened in pretty well every other case involving a politician of every party - I can think of recent examples involving Labour (Ken Livingston), the Tories (Damian Green), the LibDems (Chris Renard) etc etc - all occurred prior to completion of formal process, and certainly before any criminal charges (if any eventually happened) occurred or court procedure.

And actually it is very common for an individual to be suspended from their work or an organisation while an investigation is ongoing. You might not like it, but it is what regularly happens so there is no indication that Salmond has been treated any differently from the norm as a senior politician.

I did not say that Salmond has been treated differently. My point was that the treatment was unfair. That other people have also been treated unfairly before their guilt had been proved just means that Salmond was smart to find a way for people to show public support for him rather than just accept the unfair treatment.

And just to correct your error - the story was not originally placed in the public domain due to a leak. Once the initial investigation was complete (22nd August) the details that Salmond was under investigation on 2 counts dating back to 2013 and that details had been passed on to the police was released into the public domain by the Scottish Parliament. There was a later leak, via the Daily Record which provided some more details, but the original release of information was planned and agreed and not a leak.

You seem to have misread what I wrote or have trouble comprehending it. You are responding to my post where I wrote that the allegations had been leaked to the Daily Record by starting your sentence "the story was not originally placed in the public domain due to a leak" . If I wanted to discuss how the story was originally placed in the public domain I could just refer you back to Nearly Sane's reply #121 where he listed the sequence of events when he replied to one of my posts. That would have saved you the bother of needlessly parroting NS. 

Now back to what I actually wrote - that the allegations were leaked to the Daily Record. Clearly preserving the anonymity of the 2 women or Salmond was not important to whoever leaked some of the details of the allegations.

Leaking details to the papers may well put people off from making allegations about sexual harassment or taking the matter further.

[The Accountant, OBE, KC]

Once again you are incorrect factually, it is an individual (Alex Salmond - the applicant), against another individual (Leslie Evans - the respondent).

Firstly, that's not what you thought here:

The judicial process is him vs Scottish Government.

And secondly, you are being factually inaccurate - while the first respondent is Leslie Evans, the second respondent is the Scottish Government. And statements have been issued to say "The Scottish Government will defend its position vigorously."

https://beta.gov.scot/publications/permanent-secretary-statement-on-complaints-against-former-first-minister-alex-salmond/

A statement from solicitors Levy & McRae said: “We can confirm at 10am this morning, a petition for judicial review in the Court of Session by Mr Alex Salmond was served on the legal representatives of the Scottish Government.

“We can also confirm that first respondent is the Permanent Secretary, Ms Leslie Evans, who established the procedure which is the subject of challenge. The second respondent is the Scottish Government.

“Mr Salmond has no further comment to make but intends to leave the matter for the Court to determine.”

But the reality is that it is an individual acting with the clear intention of reversing a decision on accusations that were brought by two other individuals.

It is Goliath vs David.

The reality is that the Scottish government is Goliath.

[ProfessorDavey]

The reality is that the Scottish government is Goliath.

This is all about getting the decision quashed through judicial review with Salmond's desired consequence being a reversal of the original decision when it is revisited. Leslie Evans and the Scottish Government are merely pawns in the game between Salmond and his intended target, being a decision not to accept the allegations made by the two women as having merit.

Goliath vs David.

[ProfessorDavey]

... seem to just pay lip service to the idea of innocent until proven guilty, rather than that they actually believe in that principle.

I think you are confused - you are confusing the burden of proof in criminal proceedings with those in civil proceedings. Salmond has not been charged with any criminal offence. He has however been investigated in civil processes where the burden of proof is not 'beyond reasonable doubt' but is 'on the balance of probabilities'. I civil proceedings the accused isn't considered innocent until proven guilty, nor guilty until proven innocent - the starting point is one of firm neutrality, neither presuming guilt nor innocence.

[The Accountant, OBE, KC]

This is all about getting the decision quashed through judicial review with Salmond's desired consequence being a reversal of the original decision when it is revisited. Leslie Evans and the Scottish Government are merely pawns in the game between Salmond and his intended target, being a decision not to accept the allegations made by the two women as having merit.

If the civil servant's investigation process was carried out incorrectly, it is in everyone's interests that it should be reviewed and corrected. The process should have integrity and the civil servant carrying out the process should be seen to have not abused their own power against an individual with less power, otherwise what's the point of trying to investigate someone else's abuse of power? Are you against the principle of judicial reviews of government actions?

Whether the allegations of the two women have merit is something that can only be decided after a fair investigation process. Therefore it makes sense to establish the fairness of the investigation process.

Goliath vs David.

When it comes to the Judicial Review, the Scottish Government is Goliath.

[ProfessorDavey]

Whether the allegations of the two women have merit is something that can only be decided after a fair investigation process. Therefore it makes sense to establish the fairness of the investigation process.

What makes you think the process is unfair? Should everyone challenge every decision under judicial review when they don't like the outcome, just in case the process hadn't been conducted properly.

An unfair process could have ended up deciding the allegations had no merit - do you think the women would have the power and influence to be able to raise the necessary funds to apply for judicial review in those circumstances? I somehow doubt it.

[The Accountant, OBE, KC]

I think you are confused - you are confusing the burden of proof in criminal proceedings with those in civil proceedings. Salmond has not been charged with any criminal offence. He has however been investigated in civil processes where the burden of proof is not 'beyond reasonable doubt' but is 'on the balance of probabilities'. I civil proceedings the accused isn't considered innocent until proven guilty, nor guilty until proven innocent - the starting point is one of firm neutrality, neither presuming guilt nor innocence.

You seem to have a very limited understanding of disciplinary investigations. The principle of innocent until proven guilty applies to disciplinary investigations and proceedings. The person carrying out the investigation is required to be impartial, which means not assuming that the person complained about is guilty. That is what the phrase "innocent until proven guilty" means. It does not mean the person making the complaint is lying, it just means you can't punish the the subject of the complaint without going through a fair process of investigation. People hire lawyers to advise them, both when they are the subject of a disciplinary complaint and when they want to make a complaint and companies sometimes get legal advice before they carry out an investigation of a complaint, as suspending someone prematurely could result in the company facing a claim for compensation later from the person who was suspended. 

And wittering on about the burden of proof and beyond reasonable doubt isn't going to distract anyone from the errors you have been making in your posts.

[The Accountant, OBE, KC]

What makes you think the process is unfair? Should everyone challenge every decision under judicial review when they don't like the outcome, just in case the process hadn't been conducted properly.

No point asking me a question until you have answered the question I asked you. Are you against judicial reviews of government actions?

An unfair process could have ended up deciding the allegations had no merit - do you think the women would have the power and influence to be able to raise the necessary funds to apply for judicial review in those circumstances? I somehow doubt it.

Most likely they would not have been able to raise the funds. Are you saying that because some people can't get the funds to pay legal fees, no one should have the right to fund legal fees? Who do you suggest should pay for everyone's lawyers instead?