A jury member is only allowed to consider certain facts in a case. The judge has ruled rigorously on what both prosecution and defence counsel may present as relevant fact. The judge will have excluded certain facts from being presented for various reasons. One of these reasons is Scotland’s idiosyncratic and very strict law on collateral evidence.
The essence of the collateral evidence rule is that what must be judged is the alleged criminal action itself and evidence pertaining directly to it. So if I were alleged to have stolen a tricycle, and an eye-witness says they saw me do it, that must be judged on the evidence of the event itself. If I had evidence, for example, that a social media group had been discussing how to fit Craig Murray up as a thief, that evidence would very likely not be admissible in court because it would be collateral evidence. It does not relate to the direct eye witness evidence on the alleged criminal act itself.
The classic statement of this Scottish common law rule is from Justice Clerk Ross in Brady vs HM Advocate 1986
The general rule is that it is not admissible to lead evidence on collateral matters in a criminal trial. Various justifications have been put forward for this rule. The existence of a collateral fact does not render more probable the existence of the fact in issue; at best a collateral matter can only have an indirect bearing on the matter in issue; a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue.
Some may find this strict law on collateral evidence counter-intuitive. But it is the law, and the social media group “evidence” would very likely be kept from the jury while my guilt or otherwise of tricycle theft was being considered. The jury would have properly, as is the law of the land, to consider only what the judge directs them to consider in reaching their verdict.
But a journalist is not a jury member. The journalist has a very different role. The journalist’s job is to dig out information of the kind the judge may consider collateral and immaterial to innocence or guilt of the act. The journalist could not, of course, publish any such information during the trial itself or the judge might send them to jail for a considerable period. But the job of the journalist is to dig, and to keep digging.
I am rather a hard working journalist. Therefore coming specifically to the Salmond case I know some things which the jury know but you, dear reader, are not permitted to know, like the identities of the accusers. I know other things around the alleged events which the jury will not know, because it does not fit in to the judge’s, or the lawyers’, view of what is needful to be presented at trial. Some of that I cannot tell you nor even hint at because it may influence the jury in the improbable event that they read my blog. Such event being made even less probable by the judge’s stern and correct admonition to the jury not to read about the trial online. But some of that I can tell you because certain facts are plainly not relevant to the question of guilt or innocence of the charges involved.
[As an aside, I was challenged online as to whether I agreed with the law of contempt of court. My own belief is it is much too strict in limiting publication. Throughout most of the world, freedom of speech allows people to comment on trials as they wish and it is for the jury or the judge not to be influenced by the media. The judge’s direction to the jury not to read or be influenced by media ought to be sufficient. There is something strange about the notion that trial should theoretically be public, but the public not permitted to write about it. What is the point of trials being public if the public are not permitted to comment? It is even stranger that I can say to you down the pub that I thought a witness came across as a liar, but that legally expressed opinion becomes illegal if I tweet it. Where is the line? Can I tell a small meeting I thought the witness was a liar? And finally, the extremely arbitrary powers of the judge to decide who is guilty of contempt of – the judge themself – is an extraordinarily abusive power if you think about it. Being able just to jail anyone who says you are personally doing a bad job is self evidently an abuse of human rights.]
Another category of things which I know, relates to the political circumstances and machinations around this most political of trials. At a crucial moment where the Independence movement is, frankly pathetically and unnecessarily, stalled by the Boris Johnson veto, it is no exaggeration to say that the fate of an entire nation can be affected by the outcome of this trial. The Independence movement is of course infinitely bigger than any individual or collection of individuals, just as the cosmos is much bigger than my teacup. But this trial directly relates to the stalling of the momentum of the Independence movement, and in a manner most people do not realise.
There are vital questions here which in no way depend on whether or not Ms H told the truth in her testimony about events in Bute House. It is very important to say that nothing I write here is affected in any way by whether the alleged attempted rape and alleged attempted assault with intent to rape actually happened or did not happen. Everything I am going to write will remain true whether the alleged assaults happened or not, and what I write makes that neither more nor less likely. The accusers’ claims and the accused’s denials must be fairly judged. I leave that in the very capable hands of Lady Dorrian and the jury (and I may add that all my research has cast no shadow at all on the reputation of the trial judge Lady Dorrian).
The trial was kicked off with by far the most serious allegations first, from Ms H. The court is cleared of the public for the evidence of the anonymous accusers. Media only are permitted to attend and watch in a CCTV room. I have been refused media accreditation on the grounds I do not write for “a media organisation regulated by Ofcom and owned by a limited company.” The ever excellent Grouse Beater blog has a very good compendium of Ms H’s evidence the first two days as reported by journalists, including by James Doleman and by Philip Sim.
I believe however I may comment on one aspect of Ms H’s evidence without fear of contempt of court, because my commentary in no way relates to the allegation made, or comments one way or the other on the plausibility of what Ms H said. I here take an aspect of Ms H’s evidence entirely at face value.
Ms H on Monday in court described herself as a “soft supporter of Independence”, “not very party political.”
Yet this is a person who could stay in a bedroom inside Bute House (not Salmond’s bedroom), who was employed then in a central, vital political capacity, who remains today very much an intimate part of the small trusted inner circle of SNP leadership, a person approved as an SNP candidate by central vetting, who attempted as the court heard today to get the nomination for an Aberdeenshire Holyrood consituency which overlapped with Alex Salmond’s then Westminster Gordon seat.
A “soft independence supporter”. Her own words. Approved as a candidate.
This is three years after the alleged attempted rape. My point is purely a political one.
Those of us who are deeply unhappy with the apparent willingness of the SNP to accept a permanent Westminster veto on Independence, and to squander the mandate for Indyref2 won at the last Holyrood election, have long suspected that far too many people at the “professional”, careerist, highly paid core of the SNP are at best “soft independence supporters” and more interested in other political agendas: particularly agendas related to gender and identity politics. The revelations of this trial, entirely unrelated to the truth or otherwise of the allegations against Alex Salmond, are of massive public interest from a political standpoint.
According to her evidence today, when Ms H did finally years later report the alleged assault in Bute House, as she said inspired by the Harvey Weinstein case, she reported it not to the police, not to the civil service, but to the SNP’s conduct and discipline officer, Ian McCann. That is in itself sufficient indication that Ms H, who said in evidence she could go in and out of Bute House without signing in, is not the career civil servant she was rather disingenuously made out to be in the media.
Her evidence was perfectly clear. She made the sexual assault complaint to party HQ with the specific purpose of preventing any possible political comeback by Alex Salmond and to ensure he could not pass vetting in order to become an SNP candidate again. Ms H said this directly in her evidence.
Not only that, but she discussed this plan not just with Ian McCann – who reports directly to Peter Murrell – but with other accusers.
So here we have four women, Women H, G, J, and A, all of their identities kept secret because they are all accusers of Alex Salmond, all of them in very close circle within the current SNP leadership. They are in touch with each other and with Ian McCann. Woman H has given the SNP details of a serious criminal allegation against Alex Salmond with the stated intention that it should be used in vetting to prevent him being an SNP candidate again. She is discussing with some or all of the others how they can make allegations and stay anonymous. The official response from SNP HQ is that they will hold on to the allegations hoping they will “not need to deploy them.”
Witness H is specifically asked against what eventuality the party was sitting on the allegation, and she replied explicitly for vetting – ie to prevent Alex Salmond standing for parliament again. Sitting on allegations of an extremely serious criminal offence, in case you have to deploy them – why? for the political purpose of preventing an Alex Salmond comeback – is a very strange way indeed to deal with a criminal matter. Attempted rape is far more serious than that. If it is true, this is a gross insult to victims of sexual violence everywhere.
I repeat again, in the interests of my not going to jail. None of this in any way reflects on the truth or otherwise of the alleged assault itself. The above is all perfectly possible if based on a real, or based on a fabricated assault. I am not commenting on Ms H’s credibility. That would be illegal. I am commenting on the interesting fact of the SNP staff and the accusers sitting on allegations with the intention of deploying them, specifically only if necessary, to end Alex Salmond’s political career. The idea that attempted rape could be an insurance against an Alex Salmond comeback – an idea into which SNP HQ were fully bought in. Indeed it was SNP HQ who expressed it that way.
If you look through the twitter lines, you will see that journalists between them have missed at least three quarters of what is said in court. Because I am not there I am dependent on their selection of material. But allied to my background knowledge, I do hope that I have managed to elucidate some of what is happening, and fulfilled my purpose of supplying information you will not get from corporate and state media. It is plain enough that what I have stated is what has been given as evidence. It is extraordinary that mainstream media reports that I have seen mention none of this, but again only concentrate on the lurid details of the happenings in Bute House as alleged by Miss H.
Iain Macwhirter reckoned this trial could split the SNP from top to bottom. I respect Iain greatly and I know why he said it. But I believe Iain is wrong about the effect on the party. As more revelations come out, despite the anonymity of the accusers, what I do believe this trial might do is enable the broader SNP membership to cast off a fairly small and unrepresentative group of careerists who have gained control of the party machinery, who never had Independence at heart and have been making a very fat living on the back of the efforts of a devoted membership.
Irrespective of which, I wish the judge and jury well in their efforts to reach a fair and considered verdict on the allegations.
With grateful thanks to those who donated or subscribed to make this reporting possible.
This article is entirely free to reproduce and publish, including in translation, and I very much hope people will do so actively. Truth shall set us free.
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