Scotland's Lord Advocate James Wolffe (Russell Cheyne/AFP via Getty Images)

Crying Wolffe

The Alex Salmond inquiry has been hobbled by legal intervention – so why can the media publish what politicians cannot discuss?

“Nemo me immune lacessit” was the motto of the Stuart kings of Scotland. It remains the boast of the Order of the Thistle. Anglicised as “No one provokes me with impunity” it might also usefully be adopted by Scotland’s prosecuting authority, the Crown Office, if the tone of the Lord Advocate’s appearance before the Holyrood committee investigating the Scottish government’s failings over the harassment complaints against Alex Salmond is any indication.

“The committee should not entertain any attack on the integrity of the Crown [Office] or the hardworking people who work for it,” the Lord Advocate, James Wolffe QC, made clear to his MSP inquisitors in introductory remarks that sought to make clear he would not suffer any disrespectful nonsense from them. Once the questions started coming, he raised his voice to Jackie Baillie, Scottish Labour’s deputy leader, for what he deemed to be her insufficiently deferential reference to one of his legal colleagues as “an official”.

Among their nation’s defining characteristics most staunchly defended by Scots, the preservation of a separate legal tradition (enshrined in the 1707 Act of Union) ranks in the highest tier. It has therefore been painful to witness either (depending on the line of attack) the personal integrity or professional competence of some of its highest officeholders being impugned in recent days. These attacks have been spurred by the intervention of the Crown Office to – in effect – prevent the Holyrood committee from discussing some of Alex Salmond’s most incendiary claims.

The least deferential accusation implies that this muzzling of the Holyrood inquiry was driven, at least implicitly, by the Lord Advocate. This supposes that a man of his – until now – unquestioned impartiality and probity placed his role as the Scottish government’s legal adviser (and in which capacity he attends, by invitation, meetings of Sturgeon’s cabinet) above the imperative to let justice be done though the heavens fall.

It is a grave charge easily refuted through Wolffe’s insistence that he played no part in the Crown Office’s intervention and did not sign-off on it (although he takes responsibility for it in his capacity as the Crown Office’s chief). “I put it entirely in the hands of my most senior professional prosecutor,” Wolffe explained in the course of endeavouring to suggest that his critics were trying to have it both ways – alleging his impartiality was compromised because of his government role whilst criticising him for not getting involved in the Crown Office’s advice to the committee to redact parts of Salmond’s evidence.

The problem is that the Crown Office’s intervention involves deeply contentious advice and Wolffe’s normally admirable professional loyalty to what he describes as “the most able lawyers in the country” prevents him from even acknowledging that there is a legitimate debate to be had about that reality.

the imperative to let justice be done though the heavens fall

The stated reason for the Crown Office’s intervention was to ensure the Holyrood inquiry does not reveal information that could lead to the identification of one or more of the complainants in Salmond’s criminal trial (in which he was acquitted on all charges). The committee’s proceedings are televised and published and including the most troublesome part of Salmond’s submission could thus endanger the complainants’ anonymity and constitute contempt of court.

Yet, the Crown Office’s intervention followed the judgment in the High Court of Lady Dorrien who as Lord Justice Clerk holds the second highest post in the Scottish judiciary. Her judgment justified the legality of The Spectator’s publication of Salmond’s submission in full because it was not deemed to contain content that could lead to identification. If The Spectator is not in contempt of court for publishing Salmond’s submission, why would Holyrood be in contempt of court for publishing it?

Wolffe was asked this question by the inquiry’s deputy convener, the Tory MSP Margaret Mitchell. He tried to draw a distinction between the committee considering and publishing Salmond’s claims, stating “the restriction is on publication, it does not prevent parliament taking into account material that has been provided to it.”

With the greatest respect to the Lord Advocate, it cannot be said that that this answers the substantive charge – that if The Spectator has the sanction of the High Court to publish in full Salmond’s submission why does not the Scottish parliament also have that right?

After all, this is not a law school moot. The Spectator has published Salmond’s testimony and no contempt of court charge has ensued against it. Yet, the Crown Office’s contempt of court warning to the Scottish Parliament materially restricts its ability to air in full Salmond’s allegations against the Scottish government. If Wolffe knows a good answer to this, he did not articulate it clearly to the MSPs.

The closest he came to doing so was to say that, actually, the Crown Office had only expressed “concern” to Holyrood about how considering all Salmond’s evidence risked it being in contempt of court. In effect, that it was meant as helpful advice, but did not constitute legal direction, and if Holyrood had chosen to interpret that as an order not to proceed, then that was up to MSPs. Again though, this is hardly sufficient. It is a foolish MSP who ignores a clear statement of concern from the prosecution service that pursuing a line of inquiry risks contempt of court. And, if that is indeed the honest guidance, why was The Spectator not similarly warned when it indicated an intent to publish?

This was not the only issue in which the Lord Advocate adopted a note of certainty without providing the convincing argument to back it up. It is no incidental matter that Alex Salmond claims that the Scottish government failed to comply fully with a search warrant to hand over documents. Salmond claims that about forty documents are involved. To this Wolffe said, somewhat surprisingly, that he was “unaware of the detail of the complaint”.

Taking the hint that he would not get satisfaction on the matter, the Tory MSP, Murdo Fraser, asked the Lord Advocate whether, in law, failure to comply with a search warrant was a criminal offence. Wolffe was as forthcoming on the theory as he was on the practice, batting aside the question with, “I am not going to make any comment in the abstract on what might or might not be a criminal offence.”

Fraser did not quite mutter that defence lawyers would take heart from that equivocation on what is surely a basic legal principle. But his response suggested he was thinking it.

Whatever the Lord Advocate achieved by his appearance before the committee, it was not clarity on the thinking behind the Crown Office’s interventions in the Salmond inquiry. Perhaps Scotland’s chief prosecutor – loyal to a fault to his colleagues – believes that outcome constitutes successful damage limitation. If so, then that would be a sober and telling conclusion.

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