Salmond denies sexual misconduct allegations

[ProfessorDavey]

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

I think you are right and he is a wily old fox and understands this well.

Recognising that judicial review is supposed to be an option of last resort, I suspect that Salmond knows this all too well too. Accordingly he is probably expecting that the courts refuse his petition for judicial review (in other words they don't allow it to happen) and that will allow him to develop a narrative that not only was he hard done by by the process but that he wasn't allowed to challenge it. Most people wont understand judicial review, so wont recognise that until all stages of the process including any appeals have been completed that petitioning for judicial review is inappropriate under the law and therefore many will see him somehow as a victim.

[jeremyp]

I think you are right and he is a wily old fox and understands this well.

Recognising that judicial review is supposed to be an option of last resort, I suspect that Salmond knows this all too well too. Accordingly he is probably expecting that the courts refuse his petition for judicial review (in other words they don't allow it to happen) and that will allow him to develop a narrative that not only was he hard done by by the process but that he wasn't allowed to challenge it. Most people wont understand judicial review, so wont recognise that until all stages of the process including any appeals have been completed that petitioning for judicial review is inappropriate under the law and therefore many will see him somehow as a victim.

He wants a judicial review to strong-arm the Scottish Government into changing its decision. He doesn't want a judicial review because that will make him a martyr of the system.

Please try to get your story straight. Does he want a judicial review or not?

[The Accountant, OBE, KC]

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.'

I disagree that it would be an abuse if I had tried repeatedly over a period of time to get details of the allegations against me and this had not been provided to me in order for me to put information together to show the investigator that the allegations had no merit and I had no case to answer for internal disciplinary purposes. If there are no other effective remedies to get the information that I had requested and was entitled to, then a judicial review would be the only other option.

[ProfessorDavey]

He wants a judicial review to strong-arm the Scottish Government into changing its decision. He doesn't want a judicial review because that will make him a martyr of the system.

Please try to get your story straight. Does he want a judicial review or not?

I think he wants it to happen and to go in his favour but recognises that he in unlikely to be successful in his petition for judicial review, but that he can use that decision to refuse to allow a judicial review to support his narrative of being the victim.

His least favoured option, I guess, would be for the petition for judicial review to be successful, but for him to lose the review. However even that leaves him no worse off than he is now, but drags out the process and maintains the pressure on the accusers who probably just want the process over.

He is, without doubt, a canny political operator.

[ProfessorDavey]

I disagree that it would be an abuse if I had tried repeatedly over a period of time to get details of the allegations against me and this had not been provided to me in order for me to put information together to show the investigator that the allegations had no merit and I had no case to answer for internal disciplinary purposes. If there are no other effective remedies to get the information that I had requested and was entitled to, then a judicial review would be the only other option.

Remember that a judicial review should be the last resort after all other options for remedy have been exhausted.

So if this is the case he should allow the internal inquiry to reach its ultimate conclusion (it is currently effectively stalled as matters have been passed to the police). If that internal inquiry, if it is restarted, finds that the disciplinary allegations are proven (they haven't considered that yet), then the process with no doubt allow an internal appeal stage. So he can appeal and if that is dismissed there are external legal processes he can opt for, specifically employment tribunal, which itself has its own appeal process. Only if all these have failed, can Salmond justifiably claim he has exhausted other options. As that stage judicial review seems appropriate, but not before.

[The Accountant, OBE, KC]

A judicial review is time sensitive and needs to be brought promptly. In England you have 3 months from when the grounds on which the claim is based arose. Not sure if that’s the same timeframe for Scotland. If it is, them if the grounds for the judicial review are that Leslie Evans and the government acted unfairly or outside their powers or mishandled the administration of the investigation, Salmond has to ask for a review of the administration of the investigation within 3 months of the investigation process.

[ProfessorDavey]

A judicial review is time sensitive and needs to be brought promptly. In England you have 3 months from when the grounds on which the claim is based arose. Not sure if that’s the same timeframe for Scotland. If it is, them if the grounds for the judicial review are that Leslie Evans and the government acted unfairly or outside their powers or mishandled the administration of the investigation, Salmond has to ask for a review within 3 months of the investigation process.

Yes that's right, but the 3 month period only starts ticking one all other options have been exhausted. So once Salmond has gone through the whole process of internal investigations, hearings, appeals and any external legal options, e.g. employment tribunals and their appeals processes, then he has 3 months.

[The Accountant, OBE, KC]

Yes that's right, but the 3 month period only starts ticking one all other options have been exhausted. So once Salmond has gone through the whole process of internal investigations, hearings, appeals and any external legal options, e.g. employment tribunals and their appeals processes, then he has 3 months.

No - the 3 months start from the investigation process that Salmond alleges was unjust and unfair. The Scottish government has said in response to the petition for review that Salmond’s statement to the media regarding the grounds for his petition contain inaccuracies and that it will defend its procedures in court at the judicial review.

[ProfessorDavey]

No - the 3 months start from the investigation process that Salmond alleges was unjust and unfair. The Scottish government has said in response to the petition for review that Salmond’s statement to the media regarding the grounds for his petition contain inaccuracies and that it will defend its procedures in court at the judicial review.

Nope - again from the Scottish courts official guidance:

'Where a suitable statutory right of appeal or review exists, a person will be expected to use it before seeking judicial review'

[The Accountant, OBE, KC]

Nope - again from the Scottish courts official guidance:

'Where a suitable statutory right of appeal or review exists, a person will be expected to use it before seeking judicial review'

There isn’t an appeal as to how an investigation is carried by the government and whether they refuse to provide you with information about the allegations that you are entitled to have. You can appeal a decision made after a disciplinary hearing.

On a separate note, there should also be an independent review or investigation about how details of the allegations got into the paper, compromising the right to confidentiality of the 2 women and Salmond

[The Accountant, OBE, KC]

I think you are right and he is a wily old fox and understands this well.

Recognising that judicial review is supposed to be an option of last resort, I suspect that Salmond knows this all too well too. Accordingly he is probably expecting that the courts refuse his petition for judicial review (in other words they don't allow it to happen) and that will allow him to develop a narrative that not only was he hard done by by the process but that he wasn't allowed to challenge it. Most people wont understand judicial review, so wont recognise that until all stages of the process including any appeals have been completed that petitioning for judicial review is inappropriate under the law and therefore many will see him somehow as a victim.

This speculation is very entertaining but as it’s short on evidence, it’s not very convincing, though you can believe it as true if you like. Without evidence for the allegations of sexual misconduct and without evidence for your theories about what Salmond might or might not be thinking, I prefer to keep an open mind.

Also, I would suggest it is better to be a wily old fox, if indeed that is what is happening here, rather  than the alternative of being like a lamb to the slaughter.

[ProfessorDavey]

There isn’t an appeal as to how an investigation is carried by the government and whether they refuse to provide you with information about the allegations that you are entitled to have. You can appeal a decision made after a disciplinary hearing.

A 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 ...' (again from the official guidance). The judicial review looks into the process of decision making, but when you petition for judicial review it is based on a decision, act or failure to act. In this case I'm sure there is a clear appeals process embedded within the internal disciplinary procedures of the Scottish government (plus also further avenues for Salmond to explore if he loses the disciplinary case and an appeal is dismissed - that process has not been exhausted, indeed the investigation is yet to be completed.

It is clear that the expectation embedded within the judicial review process is that you are expected to see through the full options available to you to challenge any decision, act or failure to act before petitioning for judicial review.

So for example there is a recent case involving the whisky industry petitioning for judicial review of the decision of the Scottish Government to bring in minimum pricing on alcohol years ago. They only petitioned for judicial review once they had challenged that decision all the way through the court process including various appeals stages and ultimately the European court of justice. That has taken years from the original decision, but the 3 months applies from when the final alternative option for remedy (in this case EUCJ) was exhausted.

[ProfessorDavey]

Without evidence for the allegations of sexual misconduct and without evidence for your theories about what Salmond might or might not be thinking, I prefer to keep an open mind.

You and I are not party to the evidence, but that doesn't mean there isn't evidence. The Scottish Government, via their inquiry, clearly believe there is sufficient evidence for them to take the decision to hand the matter over the the police.

Of course the presence of evidence doesn't mean that we should accept that Salmond has engaged in wrongdoing until the process is complete - so I'm not rushing to any form of judgement, but I think the due process needs to be followed through.

For the internal process (based on balance of probabilities) we should neither presume that the allegations are proven, nor unproven until that internal process is complete.

Were Salmond to be charged with a criminal offence, at that point we should apply the criminal standard of presumption of innocence, that applies only to criminal charges, until or unless he is found guilty (using beyond reasonable doubts as the standard of proof.

But all this requires the various processes to be allowed to proceed to their completion.

If once all of these eventualities have played out and all potential remedies exhausted and Salmond remains dissatisfied with the outcome, then he should consider petitioning for judicial review.

[The Accountant, OBE, KC]

A 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 ...' (again from the official guidance). The judicial review looks into the process of decision making, but when you petition for judicial review it is based on a decision, act or failure to act. In this case I'm sure there is a clear appeals process embedded within the internal disciplinary procedures of the Scottish government (plus also further avenues for Salmond to explore if he loses the disciplinary case and an appeal is dismissed - that process has not been exhausted, indeed the investigation is yet to be completed.

It is clear that the expectation embedded within the judicial review process is that you are expected to see through the full options available to you to challenge any decision, act or failure to act before petitioning for judicial review.

We”ll know once the courts make a decision on the judicial review.

[ProfessorDavey]

We”ll know once the courts make a decision on the judicial review.

We will indeed - or rather we will know when they have considered whether to grant or not to grant the petition for judicial review which is the step before actually conducting a judicial review.

[Nearly Sane]

It would seem that the decision was taken on something not mentioned at the time of the original stushie. Things still up.I'm the air with both the police investigation, and possibility of a further investigation by the Scottish Govt, after the completion of the police investigation.


https://www.bbc.co.uk/news/uk-scotland-scotland-politics-46428570

[ProfessorDavey]

It would seem that the decision was taken on something not mentioned at the time of the original stushie. Things still up.I'm the air with both the police investigation, and possibility of a further investigation by the Scottish Govt, after the completion of the police investigation.


https://www.bbc.co.uk/news/uk-scotland-scotland-politics-46428570

Indeed - it would appear that the sole reason for for judgement was that the investigating officer had had prior contact with the complainants, albeit there is no suggestion that she acted in anything other than an impartial manner in conducting the investigation. This, I gather, wasn't something Salmond had raised in his original complaint and would appear to have only become apparent last month.

Salmond's main complaint seems to have been that we wasn't told what the allegations were, nor who had made them. It would appear that the court was comfortable with the procedure in this respect.

Nonetheless this is now in the hands of the police and only once they have completed this investigation will the government determine whether or not to rerun the investigation (presumably using exactly the same procedure, albeit they will no doubt ensure that the investigating officer has had no interaction with anyone involved in the allegations).

Actually on that last part procedures that seem totally reasonable in principle can be almost impossible to deliver in practice. This is particularly the case with senior people where it isn't uncommon to expect the investigating officer or panel to be senior to the person under investigation. This can mean that a handful of people (or even just one) are suitable. Add to that the need for the investigating officer to have had no involvement with the allegations prior to being appointed and sometimes you can end up with no-one. The law of unintended consequences of procedures developed completely in good faith.

[jeremyp]

Indeed - it would appear that the sole reason for for judgement was that the investigating officer had had prior contact with the complainants, albeit there is no suggestion that she acted in anything other than an impartial manner in conducting the investigation. This, I gather, wasn't something Salmond had raised in his original complaint and would appear to have only become apparent last month.

Salmond's main complaint seems to have been that we wasn't told what the allegations were, nor who had made them. It would appear that the court was comfortable with the procedure in this respect.

I don't know where you - or Nicola Sturgeon - gets that from.

Judge Lord Pentland subsequently said that the government's actions had been "unlawful in respect that they were procedurally unfair" and had been "tainted with apparent bias".

The government admitted that one part of its procedure had been wrong and the trial collapsed. That doesn't mean that the court thought the bits Salmond was complaining about were perfectly fine.

Nonetheless this is now in the hands of the police and only once they have completed this investigation will the government determine whether or not to rerun the investigation (presumably using exactly the same procedure, albeit they will no doubt ensure that the investigating officer has had no interaction with anyone involved in the allegations).

I think it would be better to let the police investigation run its course to find out if Salmond is guilty or not.

[Gordon]

Moderator:

Some recent posts that raised or discussed the issue of another public figure have been removed from this thread, which is about a specific person, and any of these posts that are relevant will be added to the 'Lawrence Krauss' thread, on the Theism and Atheism Board.

So, Vlad, if you wish to discuss Krauss please use the thread noted above (which was started by you).

[ProfessorDavey]

I don't know where you - or Nicola Sturgeon - gets that from.

The government admitted that one part of its procedure had been wrong and the trial collapsed. That doesn't mean that the court thought the bits Salmond was complaining about were perfectly fine.

Presumably from the judgement itself. From the statement from the Scottish Government:

'All the other grounds of Mr Salmond’s challenge have been dismissed.'

I haven't read the judgement, but certainly the Scottish government think that all the other points raised by Salmond were considered and have been dismissed.

I think it would be better to let the police investigation run its course to find out if Salmond is guilty or not.

I agree. However if he is found not guilty in a criminal court it doesn't necessary rule out further investigation of the complaints in an employment/disciplinary context. This is because the standard of proof is different - being beyond reasonable doubt in the former and on the balance of probabilities in the latter.

[Udayana]

Presumably from the judgement itself. From the statement from the Scottish Government:

'All the other grounds of Mr Salmond’s challenge have been dismissed.'

I haven't read the judgement, but certainly the Scottish government think that all the other points raised by Salmond were considered and have been dismissed.
I agree. However if he is found not guilty in a criminal court it doesn't necessary rule out further investigation of the complaints in an employment/disciplinary context. This is because the standard of proof is different - being beyond reasonable doubt in the former and on the balance of probabilities in the latter.

I'm finding the statements and reports unsatisfactory as the ruling does not seem to be currently available (and probably will not).

The case was raised and funded to examine some basic issues with investigation procedures that may not have been properly examined as the government conceded on a lesser point.

What about the various leaks to the press?

The main concern was not Salmond's actual behaviour (which can be dealt with by the police) but that abuse accusations and inadequate investigation procedures could be used to disgrace individuals for political reasons. 

Are those points just dismissed because the case has been won on other grounds?

[ProfessorDavey]

I'm finding the statements and reports unsatisfactory as the ruling does not seem to be currently available (and probably will not).

True it isn't available now, but presumably will be made available. There is already a video snippet of the judgement, presumably the rest of the judgement was also videod and I guess a written judgement will appear in time. 

The case was raised and funded to examine some basic issues with investigation procedures that may not have been properly examined as the government conceded on a lesser point.

What about the various leaks to the press?

The main concern was not Salmond's actual behaviour (which can be dealt with by the police) but that abuse accusations and inadequate investigation procedures could be used to disgrace individuals for political reasons. 

Are those points just dismissed because the case has been won on other grounds?

Interesting question and there is some lack of clarity. The Government statement clearly implies that the other points made by Salmond were dismissed (which could only happen if they were considered). We don't currently have definite clarity on this, although it would seem to be odd for the government to be so definitive on this in an official statement if it weren't the case.

So if it is the case that the other elements of the procedure (beyond appointing an inappropriate investigating officer) have been considered and determined to have been appropriate then the points you raised would have been addressed and a determination made.

[Nearly Sane]

The estimable Andrew Tickell's view

https://www.thenational.scot/politics/17343668.andrew-tickell-salmond-legal-win-is-failure-of-apparent-bias/

[Udayana]

The estimable Andrew Tickell's view

https://www.thenational.scot/politics/17343668.andrew-tickell-salmond-legal-win-is-failure-of-apparent-bias/

Yes.

And Craig Murray is more forthright on his blog.

The Scottish Government statement is misleading and dishonest.

[ProfessorDavey]

The Scottish Government statement is misleading and dishonest.

How do you know - have you seen the written judgement or watched the whole of the judge's decision in court.

What doesn't seem in dispute is that Salmond won his case on a single point relating to the application of the procedure. What appears unclear is whether his other claims were considered and dismissed (this is what the Scottish Government statement says), or weren't considered (I've seen nothing official to back that up).

To assume that the Scottish Government statement is misleading and dishonest is to indicate you know the answer to my previous paragraph - in which case please provide the evidence as I've not seen it.