Scotland’s most senior civil servant has defended her decision to report harassment claims against Alex Salmond to Scotland’s prosecutors against the will of the women involved.
Permanent Secretary Leslie Evans said she had to balance the objections of the individuals with the “potential criminality” of the situation when she informed the Crown Office of their complaints.
Ms Evans gave her explanation when she appeared in front of the Holyrood’s Salmond inquiry at its first hearing this year.
During the committee meeting – held virtually as a result of Covid restrictions – Ms Evans’s attention was drawn to evidence from one of the complainers suggesting she did not want the case to go down the path of a criminal investigation.
For example, that asks the question if conduct of sexual nature had the purpose or effect of violating the complainer’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?”
Leslie Evans discusses harassment and equality legislation
Deputy convener Margaret Mitchell said the complainer, known as Ms A, was not motivated by seeking a criminal case. Rather, she wanted measures in place to prevent a repeat of what she had experienced.
During her third appearance in front of the inquiry, Ms Evans confirmed that it was her decision to refer the matter to the Crown Office and acknowledged that the complainers did not want to go down that route.
The permanent secretary said the women were concerned about a loss of privacy, media coverage, about the possibility of them having to revisit events that they would rather not.
They also feared “some backlash and retribution” from some quarters of the public and some individuals.
Therefore, Ms Evans said she did not take her decision lightly and had to balance legal advice with the views of the complainers.
But Ms Evans pointed out that Scottish Government procedure said matters may be referred even if the complainer does not want it – a point that was also made in ACAS guidance.
I had to decide whether each alleged conduct amounted to harassment…”
Permanent Secretary Leslie Evans
In response to the Lib Dem MSP Alex Cole-Hamilton, Ms Evans said she had taken legal advice throughout the process.
While she was unable to share the details of her decision, she did go through the process that was followed.
Each complaint was analysed separately as was Mr Salmond’s response.
“I had to decide whether each alleged conduct amounted to harassment and I had to weigh up in that process,” Ms Evans told MSPs.
That involved taking legal advice and account of legislation including the Protection from Harassment Act 1997 and also the Equality Act 2010.
“For example,” she said. “That asks the question if conduct of sexual nature had the purpose or effect of violating the complainer’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
“It also demands to consider whether the conduct in itself, which in itself may not have constituted harassment, but when taken with other instances and other incidents – demonstrates a course of conduct which a reasonable person may consider amounts to harassment.
“So in addition to drawing on those legal definitions I needed to look at the context of the complaints, the working environment and the nature of the professional relationship.
“I needed to take into account the impact on the individuals – very importantly. And I needed to ask myself if I was satisfied that an event had occurred based on the evidence available and if so, did it take place in the manner described? And importantly, was it corroborated by other witness statements?”
Mr Salmond has denied the harassment claims and last year was cleared of several charges of sexual assault at the conclusion of a criminal trial.
The former first minister took successful legal action against the Scottish Government in the civil courts. A judgement at the Court of Session found that the Scottish Government’s handling of the claims against Mr Salmond were unlawful and tainted with apparent bias.
The ruling resulted in the taxpayer forking out more than £500,000 to meet the former SNP leader’s legal costs.
The inquiry is examining how the Scottish Government dealt with the complaints against Mr Salmond, which ultimately led to its defeat in the civil courts.
Harassment complaints policy
The inquiry has previously heard that the perception of apparent bias was down to prior contact the Scottish Government’s investigating officer, Judith Mackinnon, had with the two complainants before their claims were raised.
The harassment complaints policy, which remains in place, states that the investigating officer “will have had no prior involvement with any aspect of the matter being raised”.
Ms Evans said: “While I was aware that there had been some contact, I was not aware of it and not of the nature that was subsequently brought to bear in some of the documents that were presented.”
During her evidence, Ms Evans repeatedly refused to say when the Scottish Government was told it would probably lose a legal challenge brought by the former first minister.
Asked three times by Scottish Labour’s Jackie Baillie when senior external counsel first advised that the government was unlikely to win the case, Ms Evans refused to say, citing legal privilege.
“It would have been remiss for me to only have listened to one voice; at every stage, the legal advice that I was provided was complete and thorough and from a variety of sources and that is quite right and quite appropriate,” Ms Evans said.
She added: “I listened carefully to all legal advice from all sources at every stage – every single stage – of the procedure, not just during the judicial review. But I had a really careful and really important role and responsibilities to undertake.”