The Alex Salmond Trial: Your Man Excluded From the Gallery

Alex Salmond

GETTY IMAGES: Mr Salmond has pled not guilty to all 14 of the charges against him

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.



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