Lawyers warned the Scottish Government was heading for defeat in its court battle with Alex Salmond more than three months before it lost the case.
In a major development which piles more pressure on Nicola Sturgeon, it emerged yesterday that they warned in September 2018 there was 'a real risk that the court may be persuaded by the petitioner's case in respect of the ground of challenge based on 'procedural unfairness'.'
Legal advisers then informed officials on October 31 of a 'very real problem' which eventually led to Mr Salmond winning the case.
Lawyers warned the Scottish Government was heading for defeat in its court battle with Alex Salmond more than three months before it lost the case
Roddy Dunlop, QC, pictured, said he had contacted the Lord Advocate, James Wolffe, QC, to alert him to his concerns, 'and, frankly, as a sense check'
How senior Counsel Roddy Dunlop QC rang the alarm bells
'I have just discussed this with the Lord Advocate, as I am very concerned indeed.
'He has suggested a short note setting out my concerns, and this is now attached.
'I am sorry to be sending this to you at all, let alone late at night on Halloween, but I'm afraid I see no other option.
'As presently advised, I consider that this presents a very real problem indeed...
'If I am correct in the views expressed above, then the procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.
'I can well understand the angst that even suggesting (conceding the case) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.'
An 'urgent note' issued by senior counsel highlighted prior contact between the official who investigated complainants and a woman making the allegations.
Roddy Dunlop, QC, who wrote the note, said he had contacted the Lord Advocate, James Wolffe, QC, to alert him to his concerns, 'and, frankly, as a sense check'.
Mr Wolffe shared his concerns about the potential 'repercussions' for the case, he said. The legal advice was finally published last night after Deputy First Minister John Swinney had looked likely to lose a vote of no confidence tabled by the Tories.
Taxpayers were landed with a bill of more than £500,000 when the Scottish Government investigation into Mr Salmond was described as 'unlawful' and 'tainted by apparent bias' by the Court of Session in January 2019.
An email sent to government officials by Mr Dunlop, now Dean of the Faculty of Advocates, at 10.50pm on October 31, said: 'I have just discussed this with the Lord Advocate, as I am very concerned indeed. He has suggested a short note setting out my concerns, and this is now attached.
'I am sorry to be sending this to you at all, let alone late at night on Halloween, but I'm afraid I see no other option.'
In a detailed report headed 'URGENT note by senior counsel', he explains that one of the complainers first made the complaint to Scottish Government HR official Judith Mackinnon, who went on to become the investigating officer in December 2017.
He says this is a 'concern' as the complaints procedure sets out there must be 'no prior contact'.
In a major development which piles more pressure on Nicola Sturgeon, it emerged yesterday that they warned in September 2018 there was 'a real risk that the court may be persuaded by the petitioner's case in respect of the ground of challenge based on 'procedural unfairness''
Salmond aide's evidence 'stays secret'
A former aide to Alex Salmond has been told his evidence to the Holyrood inquiry will not be published ‘for legal reasons’.
Geoff Aberdein, who was chief of staff to the former First Minister, said clerks for the committee had on Monday reiterated what they told him in January.
He said he submitted evidence in October following a request from the inquiry convener and ‘my expectation was that it would be published’.
However, he said he would not ‘put myself in the position of contravening these legal considerations’. Newspaper reports had suggested that Mr Aberdein’s evidence may be published.
Mr Salmond told MSPs last week that an April 2 meeting with Nicola Sturgeon to discuss claims against him had been arranged by Mr Aberdein when he met Miss Sturgeon in her parliamentary office on March 29, 2018.
He said Mr Aberdein had been approached by a Scottish Government official ‘who brought him into the process’ about the complaints.
The First Minister has said that ‘allegations of a sexual nature’ were discussed on March 29. However, she initially ‘forgot’ about this conversation as it was ‘opportunistic’.
Miss Sturgeon is under investigation over whether she broke the ministerial code of conduct by failing to notify civil servants about the meeting with Mr Salmond on April 2.
He said: 'I consider that this presents a very real problem indeed... If I am correct in the views expressed above, then the procedure was not followed: rather, an express embargo was ignored in a way which may well vitiate the entire proceedings.'
Mr Dunlop then goes on to add that 'arguably that infects all that followed thereon'.
He said the Lord Advocate 'has also indicated that he shares my firm advice that this issue will have to be disclosed, and my concern as to the potential repercussions for the wider case'.
Mr Dunlop also said: 'A swift decision is going to have to be taken on whether to concede (a) the issue is disclosed and any argument based thereon then resisted, or (b) the issue is disclosed and the petition then conceded as a result thereof.
'I can well understand the angst that even suggesting (b) will provoke, but if the proceedings are vitiated then it makes little sense to continue to defend the indefensible.'
On December 6, 2018, legal advisers told ministers in their view the 'least worst option' would be to concede the petition. They wrote: 'We cannot let the respondents sail forth into January's hearing without the now very real risks of doing so being crystal clear to all concerned.'
Scottish Tory leader Douglas Ross said: 'Despite the Scottish parliament backing two Scottish Conservative motions to release the legal advice, the SNP never even bothered to lift a finger to actually try and publish it.
'It's jaw-dropping that they didn't even ask if the Lord Advocate would allow it to be published. Instead, they let the public and press think he was the block on its release, when it was SNP ministers all along.
'John Swinney refused to even consider publishing the legal advice until his job was on the line.'
Mr Swinney said: 'These documents are clear. Our legal advice was optimistic about the Government's prospects for success at the start. It became gradually but progressively less optimistic over time.
'It was only in December that the advice concluded that our case was no longer stateable and we should concede. As late as December 11, ministers were advised that we should continue.'
He added: 'Significantly, however, this comprehensively disproves claims that we had continued the case in defiance of legal advice.'
Scotland's top law officer rejected claims prosecutors were part of bid to 'cover up' key evidence about Salmond harassment complaints
By Michael Blackley for the Scottish Daily Mail
Scotland's top law officer has denied prosecutors were part of a bid to 'cover up' key evidence about Alex Salmond complaints.
Lord Advocate James Wolffe, QC, yesterday told the Holyrood inquiry into the handling of complaints about the former First Minister that there has been no 'improper behaviour' by the Crown Office.
But he sparked criticism when he refused to say whether a criminal offence would have been committed if the Scottish Government failed to hand over evidence demanded through a search warrant.
It followed Mr Salmond's claim under oath that his legal team has identified around 40 documents never shared by the Government despite a search warrant asking it to hand over all evidence ahead of his court case.
Mr Wolffe was grilled on the eve of the long-awaited appearance by Nicola Sturgeon
Mr Wolffe told MSPs: 'Any suggestion, from any quarter, that the Crown's decision-making has at any time been influenced by irrelevant considerations or improper motivations would be wholly without foundation.'
Tory MSP Murdo Fraser said some people claim the Crown Office is part of a 'cover up' as documents and messages obtained during Mr Salmond's criminal trial cannot be released to the inquiry.
He said there was a precedent for release in relation to a case involving Rangers' administrators.
Mr Wolffe said: 'I reject absolutely any suggestion, any attack, on the integrity with which the Crown has conducted itself in relation to these matters.'
The Lord Advocate repeatedly refused to say whether or not any failure by the Scottish Government to obey a search warrant would be a criminal offence.
'Failure to comply with search warrants is clearly something that would require investigation and it would be a serious matter if it were to have taken place,' Mr Wolffe said.
'But I am not going to make any comment in the abstract on what might or might not be a criminal offence.'
Labour MSP Jackie Baillie said: 'Perhaps no greater argument for the separation of the roles of the Lord Advocate can be made than the Lord Advocate refusing to state that failing to comply with a search warrant is tantamount to criminal conduct.'
EXCLUSIVE: Nicola Sturgeon pledged to take the law chief out of the Scottish Cabinet... while Leader of the Opposition 15 years ago
By Mark Howarth for the Scottish Daily Mail
Nicola Sturgeon vowed 15 years ago to make the Lord Advocate independent of the Scottish Government.
As leader of the opposition in 2006, she demanded that MSPs be handed secret evidence about why ministers had wasted taxpayers’ money defending a court case where there was little hope of victory.
The Scottish parliament’s Justice 1 Committee was trying to investigate the scandal around Shirley McKie, a police officer who sued after being falsely accused of leaving her fingerprint at a murder scene.
At the time, Miss Sturgeon – who was leader of the SNP at Holyrood – accused Lord Advocate Colin Boyd, QC, of obstructing the work of MSPs and promised that the SNP would separate the head of the Crown Office from the Cabinet.
She added: ‘It’s about time the Labour and Lib Dem government came clean on this matter and released these vital reports to the committee so that they can conduct a proper investigation.’
Tory MSP Murdo Fraser, who sits on the current committee examining the Salmond case, said: ‘Nicola Sturgeon is singing a very different tune these days. The First Minister and her allies have purposely tried to dodge the truth on Alex Salmond.
‘The same principles apply here as in the McKie case and the hypocrisy is stunning. She should look at what she used to stand for and rediscover it.’
Strathclyde Police detective Miss McKie was part of a team investigating the murder of Marion Ross in Kilmarnock, Ayrshire, in 1997.
The Scottish Criminal Records Office (SCRO) identified her fingerprint at the scene of the crime, but in court she denied having been there, which led to the collapse of the trial of accused David Asbury as the case against him also relied on fingerprints.
Miss McKie was charged with perjury, but was cleared at the High Court in 1999 after expert witnesses testified that the forensics were mistaken. The Crown Office commissioned a confidential review by Tayside Deputy Chief Constable James Mackay, who concluded in 2000 that the SCRO was at fault and that some of its officials had probably acted criminally.
However, the Lord Advocate, a former Labour Party election candidate, decided to take no further action.
In 2001, Miss McKie sued the Scottish Executive for compensation, but it continued to defend the case until February 2006 when it suddenly agreed to pay her £750,000 without admission of liability as questions were raised about what ministers and officials had known and when.
But Mr Boyd insisted that he had never shown them the Mackay report. Mr Boyd, now Lord Boyd of Duncansby, stood down in October 2006..
Miss Sturgeon told the Scottish parliament at the time: ‘It is important to place on record the fact that my party thinks that the Lord Advocate should be completely independent of government.
‘We do not think that one person should be asked simultaneously to be the head of an independent prosecution service and a member of a political cabinet.
‘In certain circumstances, in sensitive cases, even a perception of a conflict of interests can be damaging, and I think that it would have been better to protect the new Lord Advocate from that from the outset.
‘That is why, in government next year, the SNP will separate the two roles.’
The SNP and Scottish Government were asked for comment.