When it comes to legal restrictions on Holyrood's proceedings on the Scottish Government's handling of sexual harassment complaints - most of the focus has, understandably, has been on the impact of the contempt of court order on a parliamentary process which isn't privileged.
As I indicated a few weeks ago, however, perhaps the most significant legal restriction in play here isn't the order - but s.162 of the Criminal Justice and Licensing Act 2010. Here it is: legislation.gov.uk/asp/2010/13/se…
What is its significance? It says that if material is disclosed to an accused person by the Crown, they can only use or disclose that evidence for the purposes of their criminal defence and any appeals. It is a crime under s.163 to breach this. legislation.gov.uk/asp/2010/13/se…
It is this rule of law - passed when Alex Salmond was First Minister, without any exceptions or qualifications in it - which means he cannot "use or disclose" material turned over to him in the course of his criminal defence for anything else. That much is clear. But -
- you may be asking yourself, if the Crown disclosures established evidence of a wide-ranging conspiracy by some of the complainers to make false allegations of sexual assault, why on earth was this evidence not used in the High Court trial? Here we need to look at another Act.
Under the Criminal Procedure Scotland Act, there are restrictions in place about the evidence which can be led in sexual offence cases. These are in sections 274 and 275 of the 1995 Act. These applied in principle in HMA v Salmond. legislation.gov.uk/ukpga/1995/46/…
These rules were introduced to try to prevent accused people instructing their lawyers to explore - amongst other things - the sexual history of people alleging they were victims of sexual offences.
The way these provisions work is that if an accused wishes to lead evidence of a restricted topic, they apply to the Court in advance for a determination. On my understanding, this happened in HMA v Salmond in respect of the evidence he told Holyrood today he cannot disclose.
As I understand it, Lady Dorrian refused to admit this evidence at a preliminary hearing before trial under the s.274 procedure. If this evidence disclosed clear evidence of a conspiracy on the part of one or more of the complainers, this is a difficult decision to understand.
If this evidence disclosed proof of a conspiracy against him, I find it strange that Alex Salmond didn't instruct his lawyers to appeal against Lady Dorrian's decision excluding the evidence before trial. Under s.74 of the 1995 Act, he had this right. legislation.gov.uk/ukpga/1995/46/…
Yet no appeal was taken, the evidence wasn't explored at trial & now the ordinary application of s.162 means this evidence cannot be used for any other purpose. If this evidence is compelling, I cannot understand why Lady Dorrian's exclusion of it wasn't vigorously challenged.
Apologies for a long thread - but hopefully an insight into this wider legal context may help to make sense of the legal context within which today's evidence is (and is not) being given.
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