Salmond denies sexual misconduct allegations

[ProfessorDavey]

You seem to have a very limited understanding of disciplinary investigations.

Weird that, because I could have sworn that I've been involved in conducting such investigations and procedures in a range of contexts. Indeed just last night I received the formal paperwork for a disciplinary hearing that I'm involved in as a panel members next week.

The principle of innocent until proven guilty applies to disciplinary investigations and proceedings.

Even the very terms 'innocent' and 'guilty' have no place in civil and disciplinary procedures and hearings. No-one is found guilty, allegations are deemed 'proven' or 'not proven', or are 'upheld' or 'dismissed' etc on the balance of probabilities. That you use these terms in the context of civil and disciplinary hearings suggests you don't understand them.

The person carrying out the investigation is required to be impartial ...

I agree, and in civil and disciplinary hearings where the burden of proof is 'balance of probabilities' that means they do no presume in either direction - they won't, of course, use the terms guilty or innocent (as they have no place in such hearings) but they will neither presume the allegations to be 'proven' or 'not proven' - so if you must use innocent and guilty the starting point is complete neutrality, neither a presumption of innocence, nor a presumption of guilt. This is, of course completely different to criminal proceeding (whether the terms are used) in which a person is presumed innocent until proven guilty, which is aligned to a different burden of proof - beyond reasonable doubt.

[The Accountant, OBE, KC]

Weird that, because I could have sworn that I've been involved in conducting such investigations and procedures in a range of contexts. Indeed just last night I received the formal paperwork for a disciplinary hearing that I'm involved in as a panel members next week.
Even the very terms 'innocent' and 'guilty' have no place in civil and disciplinary procedures and hearings. No-one is found guilty, allegations are deemed 'proven' or 'not proven', or are 'upheld' or 'dismissed' etc on the balance of probabilities. That you use these terms in the context of civil and disciplinary hearings suggests you don't understand them.
 I agree, and in civil and disciplinary hearings where the balance of proof is 'balance of probabilities' that means they do no presume in either direction - they won't, of course, use the terms guilty or innocent (as they have no place in such hearings) but they will neither presume the allegations to be 'proven' or 'not proven' - so if you must use innocent and guilty the starting point is complete neutrality, neither a presumption of innocence, nor a presumption of guilt. This is, of course completely different to criminal proceeding (whether the terms are used) in which a person is presumed innocent until proven guilty, which is aligned to a different burden of proof - beyond reasonable doubt.

That you have been involved in disciplinary matters does not bode well for the people involved if you have a tendency to misunderstand what is written and leap to assumptions. I have also been involved in disciplinary investigations and hearings and I didn’t suggest that those terms are used
during the formal process. However the principle of innocence is upheld until guilt is proved. And notice I did not say anything about “beyond reasonable doubt”.

As an employer, I have been advised by lawyers not to do anything during the investigation process that suggests that I think an employee is guilty of the allegation made against them. As someone helping someone else who was the subject of a disciplinary process I have been advised that the allegation  will be investigated without any assumption of guilt. I assume you are not going to try to correct conversations between people and their solicitors?

But rather than being distracted by legal terms, why not answer the question. What is your solution to someone making allegations that a government has acted unfairly?

[jeremyp]

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.

If he wins it will be because the original process will be deemed not fit for purpose, so of course they'll have to redo it in accordance with the law.

You seem to be arguing that a flawed process should not be rerun on the grounds that the answer might be different. If the process was unfair to Salmond, surely it must be done again.

[jeremyp]

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

Yeah, whatever. |Like it matters.

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.

If Salmond genuinely thinks the process has been unfair to him and genuinely believes the wrong conclusion has been reached, what is he supposed to do if he can't challenge the decision and the means by which it was made?

[Rhiannon]

The applicant in any proceedings has the upper hand. The respondent has to counter the allegations that the applicant makes. In that sense they can be on the back foot.

[jeremyp]

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

Leslie Evans was acting in her capacity as an employee ofd the Scottish government. She'll get their support.

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.

I have to ask you again: what is he supposed to do if he feels that Leslie Evans acting on behalf off the Scottish government has treated him unfairly. Is he supposed to roll over just because it might be unpleasant for his accusers? It might get quite unpleasant for him if he is branded a sex offender. Obviously, that doesn't matter if he is guilty, but if he is not guilty...

[The Accountant, OBE, KC]

The applicant in any proceedings has the upper hand. The respondent has to counter the allegations that the applicant makes. In that sense they can be on the back foot.

If you mean the government need to defend themselves against allegations of abuse of power and carrying out unfair processes, that’s the case in any allegation of wrongdoing that goes to court

I still disagree with PD. If we are using the analogy, I think in the judicial review the Scottish government is “Goliath”, if we are talking about who has more power and access to bigger resources.

[Rhiannon]

Leslie Evans was acting in her capacity as an employee ofd the Scottish government. She'll get their support.
I have to ask you again: what is he supposed to do if he feels that Leslie Evans acting on behalf off the Scottish government has treated him unfairly. Is he supposed to roll over just because it might be unpleasant for his accusers? It might get quite unpleasant for him if he is branded a sex offender. Obviously, that doesn't matter if he is guilty, but if he is not guilty...

Isn't the problem here how he's gone about it? He can self-fund it.

[ProfessorDavey]

I still disagree with PD. If we are using the analogy, I think in the judicial review the Scottish government is “Goliath”, if we are talking about who has more power and access to bigger resources.

You are entitled to your opinion - I disagree - Salmond remains pretty well the biggest beast on the Scottish scene and his ultimate target isn't the Scottish Government or Leslie Evans, but the decision itself. He wants to use his very considerable power and influence to get the decision reversed via the judicial review and the pressure that will put on both the Scottish Government and the accusers if he wins. And in fact merely going through the process will delay matters considerably plus place the accused in a period of limbo or even drag them into the judicial review itself which could easily be sufficient to get them to walk away as Rhiannon indicates.

[ProfessorDavey]

Isn't the problem here how he's gone about it? He can self-fund it.

And that the women don't have equivalent resources to challenge an unfair process if they perceive it to be. So imagine if Salmond wins the judicial review and the decision is quashed and re-run, with the finding that Salmond has no case to answer. The process might still be unfair, but the women are never going to be in a position to afford to challenge the new process under judicial review.

[jeremyp]

Isn't the problem here how he's gone about it? He can self-fund it.

Yes and I said so up thread, but PD’s arguments seem to be mostly about the fact he is doing it at all.

[ProfessorDavey]

It might get quite unpleasant for him if he is branded a sex offender. Obviously, that doesn't matter if he is guilty, but if he is not guilty...

You are getting well ahead of yourself. In order for him to be branded a sex offender he would have to be convicted of a criminal offence of a sexual nature. From where we are now, for that to happen we'd need.

1. The police to conduct their investigation and decide that their is sufficient evidence for Salmond to be charged with a criminal offence of a sexual nature (once criminal charges are made the presumption of innocence kicks in).
2. For Salmond to be tried and found guilty (with the burden of proof being beyond reasonable doubt).
3. For Salmond to fail in any appeal he might bring against those criminal charges.

And that's without considering the judicial review - effectively he is hoping the judicial review simply makes the issue go away, but he has very many further stages that would need to go against him, with burden of proof firmly in his favour, before he could be branded a sex offender. He isn't close to being in the last chance saloon, indeed he has barely started the pub crawl.

[jeremyp]

And that the women don't have equivalent resources to challenge an unfair process if they perceive it to be. So imagine if Salmond wins the judicial review and the decision is quashed and re-run, with the finding that Salmond has no case to answer. The process might still be unfair, but the women are never going to be in a position to afford to challenge the new process under judicial review.

But if the courts find the process to be unfair and the new investigation exonerates Alec Salmond, perhaps justice will have been done.

[jeremyp]

You are getting well ahead of yourself. In order for him to be branded a sex offender he would have to be convicted of a criminal offence of a sexual nature. From where we are now, for that to happen we'd need.

Are you so naive as to believe that a person can’t be branded as a sex offender if they have not been convicted in a court?

[Shaker]

Are you so naive as to believe that a person can’t be branded as a sex offender if they have not been convicted in a court?

Branded by whom? That famous court of tabloid-driven public opinion, or an actual court of law?*

* Which can and does still get things howlingly wrong. Enquire within for a long list of shameful details.

ETA: I may be arguing against the wrong person - because of the double negative of JeremyP's question. Happy to be informed and edumacationated.

[ProfessorDavey]

But if the courts find the process to be unfair and the new investigation exonerates Alec Salmond, perhaps justice will have been done.

Or perhaps those running the process will feel cowed into finding in favour of Salmond under the weight of pressure of a judicial review defeat. While the review isn't about the decision, but the process, it is a brave organisation that has their decision quashed and sent back to them to re-run and simply come to the same conclusion again. Losing a judicial review provides no guarantee that the re-run process is any less flawed or the new decision is any safer.

[ProfessorDavey]

Are you so naive as to believe that a person can’t be branded as a sex offender if they have not been convicted in a court?

If someone were to do that to Salmond without him having been convicted of a criminal offence of a sexual nature then I think he'd be bringing another type of case ... one for defamation (libel or slander), which he'd almost certainly win.

[The Accountant, OBE, KC]

Isn't the problem here how he's gone about it? He can self-fund it.

He did the crowdfunding because he wanted to get a show of public support for his view that Leslie Evans acted unfairly during the investigation. It seems a reasonable way to me to counteract the damage to his reputation once the fact that there was an investigation became public knowledge and some of the details of the allegations were leaked and there were calls from opposition MPs and critics for the SNP to suspend him and he decided to resign, all of which would make some people assume his guilt. But obviously others disagree with me, which is fine.

If someone accused me of sexual harassment and I was in a position of power and in the public eye and I believed I was innocent and I believed I had been unfairly prevented from defending myself or having access to information and I thought some of the decisions being made were politically driven or in support of a particular agenda, and I knew people were forming their opinions of whether I was guilty or innocent, “no smoke without fire” etc etc because it was now all over the media, I would probably do what Salmond did as it was far more effective than just protesting his innocence and denying the allegations.

Maybe Leslie Evans didn’t act unfairly, maybe she did - he obviously believes that she did but the two of them would be looking at it from different perspectives and have different agendas. The system is that the court is seen as independent and impartial and will make a decision as to which perspective and which agenda should prevail at this moment in time, based on their interpretation of the law after looking at the evidence.

I am not surprised that some people would turn the crowdfunding into an argument about intimidating all victims of sexual harassment while other people are supportive and donated. It goes with the territory of politics.

[ProfessorDavey]

I have been thinking a little more overnight at to why I have such a difficulty with Salmond going for judicial review at this stage. Actually it goes beyond the issue of funding and of the message it sends to the accusers (both of these are still powerful issues).

No there is a broader issue - that it seems an inappropriate use of the court option. Judicial reviews are typically the option of last resort, the final in a series of checks and balances that are used when a decision with serious consequences of itself have been made. So it is often used when a decision to deport someone has been made, or a decision to remove care from a vulnerable person has been made, or to approve a planning application with major public consequences, or to remove public funding from an organisation. In every case the people taking the action are in the last chance saloon, so to speak - this is their final option to try to prevent the effect.

But this isn't the case for Salmond. As far as I can see he is challenging an initial finding of an inquiry, which has, of itself, no consequences. The initial decision appears to be that the Scottish Government has determined that the claims of the women have merit and if true that they might amount to criminal offences. Hence they have effectively suspended their inquiry and passed the issue to another, completely independent body - the police. This is a very early stage in the overall process and one that has absolutely no direct effect (ignoring political consequences) on Salmond - he hasn't been suspended, nor disciplined internally, nor charged let alone convicted by the police. Salmon has many , many further stages before their are any actual consequences arise.

So rather than challenge via judicial review simply the initial stage in the process he has the checks and balances already - if he feels the internal inquiry process was unfair, his case in now been considered by a completely independent body, why not trust that the police will fail to find sufficient evidence (they have a stricter burden of evidence than the internal inquiry) to be able to bring charges. And even if they were to press charges, why not trust the court procedures where he would need to be found guilty (beyond reasonable doubt) that he would be acquitted in a trial, or even win on appeal. Only if all of those further steps go against his are there real consequences.

So overall I think this is an inappropriate use of the judicial review approach, and it may be that the authorities refuse to allow him to go for judicial review. If judicial review were allowed in this case (effectively to challenge merely an initial stage in a process without any final consequences) then the flood gates would be opened (or at least would for those with deep enough pockets).

Just as an example - the case I'm hearing next week also had an earlier stage where the police were contacted and involved - in a Salmond world that should trigger a judicial review - that is ridiculous and to my my would be an abuse of the process.

[The Accountant, OBE, KC]

I completely disagree. If I was in a serious fight for my reputation and I thought the initial investigation showed signs of unfairness I think it’s far more effective and less costly to try to nip it in the bud at the start with a judicial review, rather than wait to have a judicial review at the end of a long, drawn out, costly process which put my career on hold. If I thought the initial investigation was carried out unfairly I wouldn’t have much confidence in the rest of the process.

[ProfessorDavey]

I completely disagree. If I was in a serious fight for my reputation and I thought the initial investigation showed signs of unfairness I think it’s far more effective and less costly to try to nip it in the bud at the start with a judicial review, rather than wait to have a judicial review at the end of a long, drawn out, costly process which put my career on hold.

Which would be a clear abuse of the process to try to use a judicial review to 'nip it in the bud'. Judicial review is a process of last resort and should not be used unless all alternative  remedies have been exhausted.

This from the official documentation linked to the process in Scotland (my emphasis).

'Judicial review is the process by which a court reviews a decision, act or failure to act by a public body or other official decision maker. It is only available where other effective remedies have been exhausted and where there is a recognised ground of challenge.'

[jeremyp]

Branded by whom?

It really doesn't matter. If Salmond is branded by "public opinion" he is finished.

[jeremyp]

Or perhaps those running the process will feel cowed into finding in favour of Salmond under the weight of pressure of a judicial review defeat.

Or perhaps they'll be even more determined to do a good job and (if he is guilty) make sure it sticks.

Losing a judicial review provides no guarantee that the re-run process is any less flawed or the new decision is any safer.

That's just speculation on your part. I could equally say it is more likely to be done carefully the second time and more likely to come to the right conclusion.

[Rhiannon]

It really doesn't matter. If Salmond is branded by "public opinion" he is finished.

I actually think that whatever happens public opinion will be that he's the victim, at least north of the border.

[jeremyp]

If someone were to do that to Salmond without him having been convicted of a criminal offence of a sexual nature then I think he'd be bringing another type of case ... one for defamation (libel or slander), which he'd almost certainly win.

It doesn't matter. If the public thinks he is a sex offender, his career is over. Suing for libel is a dangerous game if you actually did it. And how do you sue social media?