Salmond denies sexual misconduct allegations

[Nearly Sane]

Salmond accuses Sturgeon of lying.


https://www.heraldscotland.com/news/18998623.alex-salmond-accuses-nicola-sturgeon-giving-untrue-evidence-holyrood-inquiry/

[The Accountant, OBE, KC]

Just goes to show why it was necessary and correct procedure for Mr Salmond to ask for a judicial review of the government's investigation into sexual misconduct allegations against him. I could be wrong but I got the impression that there was some patronising, knee-jerk 'presumption of guilt against the man against poor defenceless women ' reaction from some people on here to argue against the judicial review.

Given that the government investigation was set aside in the judicial review by showing it was flawed from the start and “tainted by apparent bias”, costing taxpayers £512,000 for Salmond's legal costs, the latest accusation by Salmond that Sturgeon misled Parliament seems plausible. The evidence that Salmond seems to be offering about the meetings in March 2018 seems much more convincing than Sturgeons vague response that Salmond was "spinning false conspiracy theories" and trying to divert attention away from the misconduct complaints made against him. .

[Nearly Sane]

Just goes to show why it was necessary and correct procedure for Mr Salmond to ask for a judicial review of the government's investigation into sexual misconduct allegations against him. I could be wrong but I got the impression that there was some patronising, knee-jerk 'presumption of guilt against the man against poor defenceless women ' reaction from some people on here to argue against the judicial review.

Given that the government investigation was set aside in the judicial review by showing it was flawed from the start and “tainted by apparent bias”, costing taxpayers £512,000 for Salmond's legal costs, the latest accusation by Salmond that Sturgeon misled Parliament seems plausible. The evidence that Salmond seems to be offering about the meetings in March 2018 seems much more convincing than Sturgeons vague response that Salmond was "spinning false conspiracy theories" and trying to divert attention away from the misconduct complaints made against him. .

I would like to see evidence of anyone on here arguing against holding the judicial review.

[The Accountant, OBE, KC]

I would like to see evidence of anyone on here arguing against holding the judicial review.

The whole discussion with PD who thought Salmond going for a judicial review was an abuse of process. I am not sure what page it started but here is an exctract.

http://www.religionethics.co.uk/index.php?topic=16041.250

[Nearly Sane]

The whole discussion with PD who thought Salmond going for a judicial review was an abuse of process. I am not sure what page it started but here is an exctract.

http://www.religionethics.co.uk/index.php?topic=16041.250

I think (a) need to show a quote that says the judicial review shouldn't happen, and (b) anything there amounts to 'some patronising, knee-jerk 'presumption of guilt against the man against poor defenceless women ' reaction from some people on here to argue against the judicial review'.

[The Accountant, OBE, KC]

I think (a) need to show a quote that says the judicial review shouldn't happen, and (b) anything there amounts to 'some patronising, knee-jerk 'presumption of guilt against the man against poor defenceless women ' reaction from some people on here to argue against the judicial review'.

Not sure what you mean by needing to show a quote for (a) and (b).

My words were not a quote of someone else's words. My words were an interpretations of (a) a discussion about whether asking for a judicial review was inappropriate and (b) a discussion of whether crowdfunding a judicial review will make the alleged victims feel bad - as though the feelings of the alleged victims were more important than the feelings of someone subjected to an unfair investigation process.

http://www.religionethics.co.uk/index.php?topic=16041.175

(a) #268 onwards - there are too many posts to quote here - but the start is "So overall I think this is an inappropriate use of the judicial review approach"
(b) #177 onwards - there are too many posts to quote here but the start is  "I agree there is a significant political context, but I'm struggling to see how that is primarily about Scottish politics, rather it seems to me politically that this is far more to do with the whole metoo global movement. This is about power relationships, sexual harassment/abuse and the ability (or otherwise) of women with limited power and influence to speak out against men with power and influence."

[ProfessorDavey]

http://www.religionethics.co.uk/index.php?topic=16041.175

(a) #268 onwards - there are too many posts to quote here - but the start is "So overall I think this is an inappropriate use of the judicial review approach"

These are my words I believe, but clearly misrepresents my view. These words are not from the start of my reply #268 but in fact is in the fifth paragraph of my post after the argument.

Also my argument is not, and was never, that Salmond should not have the option of judicial review - no my argument was that it was inappropriate to use is at such an early stage, when judicial review is supposed to be the option of last resort once all other avenues have been exhausted, including appeals etc. Hence, this is actually the start of my reply #268 (with my emphasis):

'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'.

I still consider pushing for judicial review at such an early stage to be inappropriate and effectively an abuse of power - specifically because it isn't realistically available to others, both due to cost (ordinary people have neither the means themselves, nor the power to put out a call to supporters to raise the cash) and I cannot believe that had Joe Public or Joanne Public requested judicial review at such an early stage that it would have been allowed. The judicial system acquiesced to Salmond I suspect due to his position as the 'biggest beast' in Scottish politics over decades and that had they refused the Salmond campaign would scream refusal to allow a fair process.

And what has happened is probably exactly at Salmond would have wished - even with judicial review on process (not on irrationality of outcome which wasn't the case and couldn't have been the case as the process had not progressed to outcome), then the appropriate response should be to re-run the process, in this case the investigation within the work context of the Scottish Government. That has not happened as far as I am aware, and I doubt it will ever happen as it would be seen to be politically incendiary. Therefore those who made the allegation have not had their opportunity for these work-based allegations to be considered under a process where the burden of proof is balance of probabilities. Don't suggest that all is fine because of the criminal case - that is an entirely different process with a much more stringent burden of proof (beyond reasonable doubt). It is extremely common for processed assessed on balance of probabilities to find in favour of the complainants even if there is no chance of conviction in a criminal court.

The other point here is that Salmond has adeptly moved the agenda from allegations of sexual misconduct against him to allegations of a politically-motivated witch hunt against him. He has carefully shifted his position from one of alleged perpetrator of serious misconduct to being the victim. Doesn't surprise me as he is a superb political operator. But where are those who raised the issues in the first place - the original 'victims' - where is their justice? There isn't any - the process most likely to find in their favour has effectively been shelved and the key reason for that was Salmond's use of judicial review at, in my opinion, an inappropriately early stage in the process.

[The Accountant, OBE, KC]

These are my words I believe, but clearly misrepresents my view. These words are not from the start of my reply #268 but in fact is in the fifth paragraph of my post after the argument.

Also my argument is not, and was never, that Salmond should not have the option of judicial review - no my argument was that it was inappropriate to use is at such an early stage, when judicial review is supposed to be the option of last resort once all other avenues have been exhausted, including appeals etc. Hence, this is actually the start of my reply #268 (with my emphasis):

Sorry it was not intended to be a misrepresentation. I was referring to the actual discussion on this board in the context of the timing of the judicial review, and was not trying to imply that you were arguing that a judicial review should never take place. My sloppy wording in not making that clear in the first place.   

'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'.

I still consider pushing for judicial review at such an early stage to be inappropriate and effectively an abuse of power - specifically because it isn't realistically available to others, both due to cost (ordinary people have neither the means themselves, nor the power to put out a call to supporters to raise the cash) and I cannot believe that had Joe Public or Joanne Public requested judicial review at such an early stage that it would have been allowed. The judicial system acquiesced to Salmond I suspect due to his position as the 'biggest beast' in Scottish politics over decades and that had they refused the Salmond campaign would scream refusal to allow a fair process.

And what has happened is probably exactly at Salmond would have wished - even with judicial review on process (not on irrationality of outcome which wasn't the case and couldn't have been the case as the process had not progressed to outcome), then the appropriate response should be to re-run the process, in this case the investigation within the work context of the Scottish Government. That has not happened as far as I am aware, and I doubt it will ever happen as it would be seen to be politically incendiary. Therefore those who made the allegation have not had their opportunity for these work-based allegations to be considered under a process where the burden of proof is balance of probabilities. Don't suggest that all is fine because of the criminal case - that is an entirely different process with a much more stringent burden of proof (beyond reasonable doubt). It is extremely common for processed assessed on balance of probabilities to find in favour of the complainants even if there is no chance of conviction in a criminal court.

The other point here is that Salmond has adeptly moved the agenda from allegations of sexual misconduct against him to allegations of a politically-motivated witch hunt against him. He has carefully shifted his position from one of alleged perpetrator of serious misconduct to being the victim. Doesn't surprise me as he is a superb political operator. But where are those who raised the issues in the first place - the original 'victims' - where is their justice? There isn't any - the process most likely to find in their favour has effectively been shelved and the key reason for that was Salmond's use of judicial review at, in my opinion, an inappropriately early stage in the process.

I think if a process is flawed then that calls into question any outcome of that process. So it makes sense to correct the process before proceeding to the next step.

I don't think your suggestion makes sense nor is it fair. What is achieved by conducting a flawed process from start to finish, knowing it is flawed and requiring Salmond and the alleged victims to endure the ordeal of a flawed investigation and disciplinary hearing, then have a judicial review which would have found that the original investigation process was flawed, and then Salmond and the alleged victims would have to go through the whole process of investigation and disciplinary hearing again? It's far better and fairer IMO to fix the process first before proceeding any further on the disciplinary hearing.

The political aspects, while interesting, is far less important than being seen to have conducted a fair process of investigation according to the rules, in order for the outcome of the process to be respected and believed.     

[ProfessorDavey]

I think if a process is flawed then that calls into question any outcome of that process. So it makes sense to correct the process before proceeding to the next step.

But that isn't the process for Judicial Reviews which are meant to be an option of last resort - effectively the normal process is supposed to run its course before triggering Judicial Review. I refer again to 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.'

Over the years I've been involved in all sorts of quasi-judicial processes, where Judicial Review is an option - for example School disciplinary cases, Student complaints, Schools admissions etc. In every case it is accepted that the normal process must run its course in its entirety (which usually involves a process of appeal) before an individual can ask for Judicial Review.

The Salmond case is a pretty standard internal process within an organisation, which usually involves three stages:

1. An initial investigation to determine whether there is a case to answer.
2. A formal process (e.g. disciplinary) which determines whether the allegations are upheld or not upheld - on a balance of probabilities
3. An appeal process whereby an individual can challenge the outcome of the formal process and potentially have it overturned.

I have never heard of a case where Judicial Review has been triggered prior to running through all three stages, and indeed it should be as, by definition, other remedies would not have been exhausted (stage 3 appeal).

[ProfessorDavey]

don't think your suggestion makes sense nor is it fair.

It isn't really my suggestion - this is what happens all the time in Judicial Review - they are only allowed once the internal processes within a public body have been completed and any alternative approach for remedy has been exhausted.

Realistically it would be chaos if anyone could trigger Judicial Review at any stage in a process - it would result in countless Judicial Reviews, would be used simply to stall processes within public bodies and would result in Judicial Review where no such review would be triggered had the normal process been allowed to run its course (as the person doesn't yet know whether the ultimate decision might be acceptable to them).

What is achieved by conducting a flawed process from start to finish, knowing it is flawed and requiring Salmond and the alleged victims to endure the ordeal of a flawed investigation and disciplinary hearing, then have a judicial review which would have found that the original investigation process was flawed, and then Salmond and the alleged victims would have to go through the whole process of investigation and disciplinary hearing again? It's far better and fairer IMO to fix the process first before proceeding any further on the disciplinary hearing.

But that it the process - that's the way Judicial Reviews work - they are supposed to be an option of last resort, once processes within public bodies have run to completion.

But interesting that you mention Salmond and the alleged victims would have to go through the whole process of investigation and disciplinary hearing again - why hasn't this happened in this case. The Judicial Review challenged stage 1 in my three stage process and found it to be unsound. It did not comment on a decision (i.e. whether the allegations were upheld on the balance of probabilities) as the process never got to stage 2. The appropriate response to the Judicial Review outcome should be to run the process again, ensuring a fair process, from stage 1 through to 3. Has this happened ... hmmm, don't think it has.

[ProfessorDavey]

The political aspects, while interesting, is far less important than being seen to have conducted a fair process of investigation according to the rules, in order for the outcome of the process to be respected and believed.   

So presumably you are in favour of the process to be run again to determine whether the allegations against Salmond are upheld on the balance of probabilities. I agree this is what should happen.

But this is where the politics get in the way (and I'm sure Salmond fully recognised this). The Judicial Review effectively stalled the process and to re-run it I suspect is too politically incendiary to be contemplated by the Scottish Government, so in the allegations brought forward by the various women have not been considered, under the balance of probabilities burden of proof - there has been no process to determine whether they are upheld or not. Justice has not been served for those women.

[Nearly Sane]

So presumably you are in favour of the process to be run again to determine whether the allegations against Salmond are upheld on the balance of probabilities. I agree this is what should happen.

But this is where the politics get in the way (and I'm sure Salmond fully recognised this). The Judicial Review effectively stalled the process and to re-run it I suspect is too politically incendiary to be contemplated by the Scottish Government, so in the allegations brought forward by the various women have not been considered, under the balance of probabilities burden of proof - there has been no process to determine whether they are upheld or not. Justice has not been served for those women.

It's not really practical to rerun the process while there is the ongoing committee review happening in the Scottish Parliament looking at the process 

[The Accountant, OBE, KC]

But that isn't the process for Judicial Reviews which are meant to be an option of last resort - effectively the normal process is supposed to run its course before triggering Judicial Review. I refer again to 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.'

Over the years I've been involved in all sorts of quasi-judicial processes, where Judicial Review is an option - for example School disciplinary cases, Student complaints, Schools admissions etc. In every case it is accepted that the normal process must run its course in its entirety (which usually involves a process of appeal) before an individual can ask for Judicial Review.

The Salmond case is a pretty standard internal process within an organisation, which usually involves three stages:

1. An initial investigation to determine whether there is a case to answer.
2. A formal process (e.g. disciplinary) which determines whether the allegations are upheld or not upheld - on a balance of probabilities
3. An appeal process whereby an individual can challenge the outcome of the formal process and potentially have it overturned.

I have never heard of a case where Judicial Review has been triggered prior to running through all three stages, and indeed it should be as, by definition, other remedies would not have been exhausted (stage 3 appeal).

I think you are mistaken without further evidence to support your interpretation of how a judicial process is supposed to work. Makes no sense to have a formal disciplinary process if the investigation process is flawed. I think the correct interpretation of "other effective remedies have been exhausted" does not mean have an appeal to a flawed disciplinary process as you seem to think. I think it makes more sense in disciplinary processes to do something similar to declaring a mistrial during the trial process, rather than continuing a flawed trial process which produces an outcome of no value, going through the appeals process and then declaring a mistrial after that. 

[ProfessorDavey]

I think you are mistaken without further evidence to support your interpretation of how a judicial process is supposed to work.

I'm not mistaken - I've been involved in enough processes that might ultimately result in Judicial Review to know the way they work (or rather are supposed to work).

And again I refer you back to 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.'

In the three stage process how on earth could other effective remedies have been exhausted when the allegations had not been formally considered (stage 2) and were that to have found against Salmond then there is an appeal (stage 3) - only when stage 3 had been completed can it be considered that other effective remedies have been exhausted.

[ProfessorDavey]

I think you are mistaken without further evidence to support your interpretation of how a judicial process is supposed to work.

Recent confirmation that under UK law Judicial Review is a remedy of last resort:

https://www.lexology.com/library/detail.aspx?g=840ca85c-6576-4b52-9477-91b9f55cc933

Salmond used it as a remedy of first resort.

[ProfessorDavey]

It's not really practical to rerun the process while there is the ongoing committee review happening in the Scottish Parliament looking at the process

Does that translate to 'not now' in your mind, or 'not ever'.

Do you agree that the outcome of the Judicial Review means that the process should be re-run (presumably using the new process determined by the committee review). Or do you think that Salmond should not have to face a process based on the allegations with the burden of proof being balance of probabilities.

[The Accountant, OBE, KC]

I'm not mistaken - I've been involved in enough processes that might ultimately result in Judicial Review to know the way they work (or rather are supposed to work).

And again I refer you back to 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.'

In the three stage process how on earth could other effective remedies have been exhausted when the allegations had not been formally considered (stage 2) and were that to have found against Salmond then there is an appeal (stage 3) - only when stage 3 had been completed can it be considered that other effective remedies have been exhausted.

I think you are mistaken and any assertions or claims about your opinion or experience are not convincing. I think your interpretation of the official documentation linked to the process in Scotland is flawed. Repeating your flawed interpretation or asserting that your interpretation is not flawed is not convincing. If you have some evidence to support your interpretation that would be more convincing.

That the court agreed with Salmond's lawyers to holding a judicial review and found against the Scottish government points to your interpretation being wrong.
 
https://www.scotsman.com/news/politics/emails-lawyers-reveal-how-alex-salmond-won-judicial-review-against-scottish-government-3023310

https://www.scotsman.com/news/politics/alex-salmond-inquiry-gain-access-legal-advice-report-after-agreement-scottish-government-3072781

[The Accountant, OBE, KC]

Recent confirmation that under UK law Judicial Review is a remedy of last resort:

https://www.lexology.com/library/detail.aspx?g=840ca85c-6576-4b52-9477-91b9f55cc933

Salmond used it as a remedy of first resort.

In Salmond's case the alternative remedies were not adequate and appropriate.

[Nearly Sane]

Does that translate to 'not now' in your mind, or 'not ever'.

Do you agree that the outcome of the Judicial Review means that the process should be re-run (presumably using the new process determined by the committee review). Or do you think that Salmond should not have to face a process based on the allegations with the burden of proof being balance of probabilities.

It translates to your statement that 'I suspect is too politically incendiary to be contemplated by the Scottish Government' to rerun betrayed a lack of knowledge of the current position.

As to your two questions, they seem like a false dichotomy. I'd like to see what comes out of the current review before opining on the next steps.

[ProfessorDavey]

In Salmond's case the alternative remedies were not adequate and appropriate.

Why?

That is using the outcome of the Judicial Review to support its initiation when other remedies had not been exhausted.

How would that argument work had the Judicial Review determined that the processes for initial investigation (stage 1) were hunky dory?

[ProfessorDavey]

I think you are mistaken and any assertions or claims about your opinion or experience are not convincing. I think your interpretation of the official documentation linked to the process in Scotland is flawed. Repeating your flawed interpretation or asserting that your interpretation is not flawed is not convincing. If you have some evidence to support your interpretation that would be more convincing.

That the court agreed with Salmond's lawyers to holding a judicial review and found against the Scottish government points to your interpretation being wrong.
 
https://www.scotsman.com/news/politics/emails-lawyers-reveal-how-alex-salmond-won-judicial-review-against-scottish-government-3023310

https://www.scotsman.com/news/politics/alex-salmond-inquiry-gain-access-legal-advice-report-after-agreement-scottish-government-3072781

So you are using the argument that the court agreed to Judicial Review as confirmation that their decision was right, yet you are also arguing that when the initial inquiry into the allegations found that there was a case to answer that the decision was flawed (and therefore had to be subject to judicial review at an early stage, and certainly not as last resort).

Guess what, public bodies and the courts sometimes get things wrong - hence the need for Judicial review and appeals. I doubt very much that a similar case for Judicial review brought by Joe or Joanne Public, rather than the biggest beast in Scottish politics would have received anything other than 'go away and come back once the internal process is complete'.

[ProfessorDavey]

https://www.scotsman.com/news/politics/emails-lawyers-reveal-how-alex-salmond-won-judicial-review-against-scottish-government-3023310

https://www.scotsman.com/news/politics/alex-salmond-inquiry-gain-access-legal-advice-report-after-agreement-scottish-government-3072781

But these links relate to the outcome of the Judicial Review, not to the earlier decision to allow the Judicial Review at such an early stage when it is meant to be an option of last resort.

[ProfessorDavey]

As to your two questions, they seem like a false dichotomy. I'd like to see what comes out of the current review before opining on the next steps.

But surely whatever the review comes up with there is a necessity to rerun the process - this is surely what the Judicial Review requires as it did not quash the decision (not that there really was one) but dismissed the process - thus the inquiry should be rerun in the interests of justice.

[Nearly Sane]

But surely whatever the review comes up with there is a necessity to rerun the process - this is surely what the Judicial Review requires as it did not quash the decision (not that there really was one) but dismissed the process - thus the inquiry should be rerun in the interests of justice.

Dunno. I think we are not in Kansas anymore and I know of no precedent so I don't think I have any chance of what I think 'should' happen till I have the information of what does hsppen

[ProfessorDavey]

Dunno. I think we are not in Kansas anymore and I know of no precedent so I don't think I have any chance of what I think 'should' happen till I have the information of what does hsppen

Precedent for what? Precedent for a Judicial Review determining that there was procedural impropriety and requiring the public body to rerun the process again? Happens all the time.

What should happen is that the investigation should be rerun using a process that doesn't fall foul of challenge by Judicial Review - surely you can agree with that?