A recap of the first two articles: David Clegg and his persistent pursuit of Alex Salmond: Extracted from: “Break-Up: How Alex Salmond And Nicola Sturgeon Went To War” written by former Daily Record political editor David Clegg and Times journalist Kieran Andrews.

Clegg’s singular and persistent unfruitful pursuit over many months, seeking from Scottish government employees and civil servants, information that would be damaging to Alex Salmond was in direct contravention of a number of the conditions contained in the news editor’s “code of Practice”. As was the inaccurate reporting of fact evidenced by the malicious and irresponsible headline claiming that Alex Salmond had been reported to the police over sexual assault allegations which was not the case.

The truth of the matter is that on 21 August 2018 the Crown Agent, according to the police informed them of the Government’s intention to release a story of the fact of the complaints to the press and the Chief Constable and another senior officer strongly advised against it and refused to accept a copy of the internal misconduct investigation report. The exchange of views confirmed the urgent desire of the Scottish Government to get the information into the public domain.

Just two days later, on Thursday 23 August 2018, without informing the police of the decision to ignore their advice not to do so the Scottish Government informed Alex Salmond’s legal team of its intention to release a statement at 1700 hours. Alex Salmond’s legal team advised in return that they would interdict the statement pending the outcome of the Judicial Review petition and the government withdrew its intent to publish information to the public. An interdict was not processed on the strength of the government undertaking.

The bombshell was dropped at 1600 hours with the information that the Daily Record newspaper had phoned the Scottish Government press office with knowledge of the story but without confirmation it could not publish. Confirmation was not forthcoming from the Scottish government.

Then, at 2000 hours an employee of the Daily Record telephoned claiming confirmation of the leaked information had been received and the story would be published that night. The story broke at 2200 hours.

A follow up story was published on Saturday, 25 August 2018 containing specific details from the leaked complaints demonstrating that their informant had access to the Permanent Secretary’s decision report or an extract from it.

The leaking of the information was a prima facie criminal act, deeply damaging to the interests of Alex Salmond and a blatant invasion of the privacy of the complainants as well as a direct contravention of the assurances of confidentiality given to all.

The conclusion of the legal authority who assessed validity of the complaints was that they were “sympathetic to the thesis that the leak came from a Government employee”. But legal action action could only be instructed if the police investigated matters and identified the person(s) who leaked the information.

Editors code of Conduct

1. Accuracy:

i) The Press must take care not to publish inaccurate, misleading or distorted information, including headlines not supported by the text.

ii) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

2. Privacy

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual’s private life without consent. Account will be taken of the complainant’s own public disclosures of information.

3. Harassment:

(i) Journalists must not engage in intimidation, harassment or persistent pursuit.

Leslie Evans and the Lord Advocate’s rush to judgement

The Chief Investigating Officer, Leslie Evans, in her evidence to the parliamentary Committee on 8 September 2020 was economical with the truth when said she was not “completely aware” of how the police referral was made, when records revealed the referral was actioned on her specific instruction by Ms Richards, via the unusual route of the Deputy Crown Agent, who was sent the documentation on 22 August 2018, although the covering letter was dated 20 August 2018 indicating the order had been issued by Leslie Evans on that date..

A Sunday Post newspaper article reported on 26 August 2018, that the referral was on the advice of the Lord Advocate which is sort of confirmed by Leslie Evans in her [Redacted] evidence to the Committee that the referral was made “on legal advice”.

The Deputy Crown Agent in turn arranged a meeting with the Chief Constable and another senior officer who, quite correctly, refused to accept the documentation on the grounds that it might prejudice their enquires.

The documentation also clarified that the reference of the report to the police via the Crown Office was very much against the wishes of both complainers who in early August 2018 had informed, first Ms McKinnon then Ms Richards, who, acting on the instructions of Leslie Evans had “sounded out” the complainers on their attitude to a criminal case.

The action of Leslie Evans in referring her report to the police was a blatant betrayal of trust who told the Parliamentary Committee on 17th November 2020, that the interests of the complainers were always at the “forefront” of her consideration.

Records also show that the view of the complainants when embarking on the process in November 2017 was that any police referral had to respect their wishes. A request that was acceded to on 25 July 2018, that their views were “central to any decisions” on police referral. Indeed Ms Richards, specifically highlighted the view of the complainers against criminal proceedings, but her assertions were ignored by Leslie Evans.

Intent to thwart the Judicial Review

Of great significance is the indecent haste of the Scottish government on Thursday 23 August 2018, who ignoring the advice of the police not to do so to informed Alex Salmond’s legal team of its intention to release a statement at 1700 hours.

Alex Salmond’s legal team advised in return that they would interdict the statement pending the outcome of the “Judicial Review” petition and the government formally withdrew its intent to publish information to the public. An interdict was not processed on the strength of the government undetaking.

Had Leslie Evans successfully transferred investigating responsibility of her “Internal Misconduct Investigation Report” to the police on 20 August 2018 the action would have conveniently rendered the continuance of the “Judicial Review” unnecessary.

Confirmation of an intent to side-line the “Judicial Review” is alluded to in a Ms Richards email of 28th August 2018, in which, in an update of the progress of the “Judicial Review”, she included advice from the Scottish government legal department which referred to the “prospects of suspending” the Judicial Review behind a criminal investigation.

The Internal Misconduct Investigation Report

The response of the Scottish government to the illegal leak of confidential information to the Daily Record, on 23 August 2018, is contained in a report which has been classified “strictly confidential” with distribution has been restricted to a few senior government officials.

A few, heavily redacted but informative extracts have been released for public consumption through the Information Commissioners Office (ICO).

Namely:

3.5 To progress the investigation, a witness would be needed who would be willing to provide information about the method of disclosure (for example, by hard copy being passed in person) and the identity of the culprit.

3.6 The Daily Record declined to provide information as to how or by whom they came by the copy of the report, relying on the journalistic exemption within the DPA 2018, clause 14 of the Editors Code of Practice and s.10 of the Contempt of Court Act 1981.

3.7 23 members of staff were identified as having knowledge of, or involvement in, the internal misconduct enquiry. These members of staff were interviewed by the Data Protection Officer at the SG as part of their Data Handling Review. The interviews did not disclose any information which would enable a suspect to be identified.

3.8 In the absence of any information coming to light, or any witness coming forward, there was insufficient evidence to point to any specific suspect and to allow the investigation to move forward. The matter was closed.

Comment: What a can of worms!!.

The police were not asked by the Scottish government to investigate the 23 August 2018, criminal leak of confidential information.

This despite the Daily Record blatantly breaching rules 1,2 and 3 of the editor’s “code of conduct”.

That the Daily Record was permitted to decline, (without a legal challenge), to provide information as to how or by whom they came by the copy of the report, relying on the journalistic exemption within the DPA 2018, clause 14 of the Editors Code of Practice and s.10 of the Contempt of Court Act 1981 is a travesty of justice and a betrayal of the 2 complainants and Alex Salmond.