The Crown Office has refused to hand over any information it holds about the Scottish Government’s investigation of Alex Salmond.
Holyrood’s inquiry into the botched investigation into claims of sexual harassment against the former first minister asked Scotland’s top prosecutor to release any “relevant” material to it.
In a letter to the inquiry, the Crown Office and Procurator Fiscal Service (COPFS) has argued releasing any information without a “legal basis” could discourage witnesses from coming forward in the future and “undermine public confidence both in the police and in COPFS”.
But it said the committee could seek the power to release the information through a standing order.
The Committee on the Scottish Government Handling of Harassment Complaints was set up after Salmond won a legal challenge and £512,250 payout at the Court of Session over the way claims against him were dealt with.
Last week, the committee’s convener Linda Fabiani wrote to Lord Advocate James Wolffe QC asking for “relevant information and evidence” that the Crown may have that could help with its investigation, such as communications between officials relating to the conduct of the judicial review and the Scottish Government’s decision to concede.
Responding on behalf of COPFS, High Court procurator fiscal Kenny Donnelly said there is no formal or legal requirement for the information to be provided.
Mr Donnelly also said there is no legal basis allowing Salmond and his lawyers to release confidential evidence used during his criminal trial or to provide it to the committee.
While Mr Donnelly found the committee’s request for information does not carry legal force, he suggested it could seek the power to release the information through a standing order and then make a formal request under Section 23 of the Scotland Act 1998.
He explained that COPFS’s counsel, on behalf of the lord advocate, would then need to consider whether producing the required documents would be in the public interest.
Mr Donnelly wrote: “If COPFS were to provide such information for other purposes then there is a significant risk that this would undermine public confidence both in the police and in COPFS and that members of the public would be discouraged from providing such information which is necessary for the investigation and prosecution of crime.
“At present, you have identified no legal basis that would allow COPFS to disclose any material which it holds to the committee.”
The letter also quotes the Scottish Information Commissioner Daren Fitzhenry, who said witnesses who gave statements to police would not expect the information to be released outside of that investigation.
In her request for information, Ms Fabiani stressed the committee is not considering “the ‘merits’ of the allegations or the conduct of the trial”.
Instead, she told the prosecutor: “The committee is seeking material that the Crown may hold which falls within the committee’s remit – specifically any information, for example, communications between officials, related to the conduct of the judicial review and the Scottish Government’s decision to concede – as well as information concerning the handling of the harassment complaints considered under the Scottish Government procedure as opposed to the merits of any such complaints.”
The approach comes after Scottish Government director for communications for ministerial support and facilities Barbara Allison told MSPs she obtained a copy of text messages between herself and Permanent Secretary Leslie Evans from the Crown Office as she no longer had them.
She said the exchange had “been retrieved from her mobile phone in the context of the proceedings in HMA v Alexander Salmond”.
After Salmond’s successful legal challenge, Ms Evans sent a text message to Ms Allison saying the “battle maybe lost but not the war”.
Ms Fabiani has now told the lord advocate the committee wants to obtain “relevant information and evidence” that the Crown may have that could help with its investigation.