Anonymity and Unintended Consequences In the ideal detective story the reader is given all the clues yet fails to spot the criminal. He may advert to each clue as it arises. He needs no further clues to solve the mystery. Yet he can remain in the dark for the simple reason that reaching the solution is not the mere apprehension of any clue, not the memory of all, but a quite distinct activity of organizing intelligence that places the full set of clues in a unique and explanatory perspective. (Bernard Lonergan, Insight: A Study of Human Understanding). Actions may have unintended consequences, and this applies equally to the action whereby we grant anonymity to complainants (in sexual abuse cases, say). Let’s first give a reminder of the “law” of unintended consequences. Thus, it was said that under the Raj the British wanted to reduce the cobra population and so they offered a reward for those producing snake heads. As a consequence the Indians started breeding cobras that they could kill solely to get the reward. When the British discovered the ruse they terminated the reward system. At this the subalterns released their captives into the wild, thus increasing the population of snakes. Plainly, this outcome was unintended, but indirectly it was a consequence of the original action designed to prevent that very outcome. How might this apply to the legal protection of complainants? The noble idea pertains especially to powerful abusers, those who might be thought to exert more power than their victims (who have only their word to bring their abuser to book). Unfortunately, even those with a measure of power may have enemies who possess an even greater power. Think here of a politician meeting no effective opposition whose friends occupy high positions in the police, the media, victim support groups, and lawyers and who seeks to destroy the enemy. One inculpatory strategy is “corroboration by numbers” whereby a host of complainants are marshalled - under guarantee of anonymity - so that even should the criminal action fail in the end, at least the enemy targeted will suffer immense reputational damage. At this point every regular reader will think I have Cardinal Pell in mind, as indeed I do. However, I am not only thinking of Pell. As I write these sentences (mid February 2021) I strongly suspect that a scandal of Watergate proportions is unfolding in Scotland as regards the allegations against Alex Salmond. 1 So, although I have only these last two weeks begun to take an interest in the story I am very inclined to believe, for example, Robin McAlpine, a journalist I 1 In making a comparison between Salmond (who has admitted some inappropriate behaviour) and Pell (who has not) I should stress that the comparison regards only some aspects of the strategy deployed: the manner in which the accusers deployed “corroboration by numbers” in a conspiracy, say. I am not writing to defend Salmond per se. 1 had not heard of in January, whose now deleted article may be found here.2 As a complete beginner writing for other novices, the “conspiracy” runs along the following lines.3 For over twenty years, then, Alex Salmond was the leader of the Scottish National Party whose central aim is to achieve independence from the UK. Eventually Scotland held its referendum, but Salmond’s “Yes” to Independence was defeated in 2014. Shortly after this Salmond resigned his post as First Minister and Nicola Sturgeon (mentored by Salmon for 30 years) succeeded him. She enjoys high standings in the polls, and faces weak opposition. On the other hand, some in the independence movement might prefer a more robust approach, while supporters of Sturgeon might fear Salmond’s return to politics. Towards the end of 2017 two women came forward informally to complain about Salmon, apparently for his behaviour in 2013 (that is, even before the referendum). The “non-conspiratorial” account is that neither Sturgeon nor her influential husband Peter Murrell were told about this, and yet remarkably a process was initiated to create a new complaints procedure should such a thing happen - one dealing with former First Ministers, a novelty that I do not think exists outside Scotland. Under this new procedure, such complaints would not be dealt with by the current First Minister, but rather by a civil servant. The drafting of the scheme was arguably cobbled together in consultation with the complainants, for example, with regard to whether the police could be notified without their permission, something that presumably the complainants did not want.4 Only after the draft was completed were the complaints made formal (in January) and they were to be dealt with by the independent investigating officer who, it turns out, had already been in touch with the complainants. Salmond was told about the complaints in early March, and at that time contact was made between Sturgeon and Salmond mediated by Liz Lloyd (Sturgeon’s Chief of Staff) and Geoff Aberdein, (Salmond’s former Chief of Staff). Three weeks later, Sturgeon met with Aberdein on 29 March (in a meeting that does not appear in the diary). According to Aberdein the allegations were mentioned, and so a further meeting to discuss them was arranged on 2 April, at Sturgeon’s house. The significance of this fact is that, while government business must be minuted, Party business need not be, and also that plainly, a civil servant such as Lloyd could not independently arrange a meeting at such a location without the home-owner’s approval. Sturgeon would later tell Parliament that it was then that she first learned about the allegations, a falsehood contradicted by the meeting of 29 March. When these awkward facts came to light Sturgeon claimed that the fleeting encounter had escaped her mind. 2 Wings Over Scotland | The integrity of a nation 3 A timeline I have come across after writing this essay may be found here: Salmond Affair Update-Peter Murrell Exposed as an Inarticulate Numnut Who failed to Stick to the Script – caltonjock 4 CONTRARY TO THE FACTS: THE EVIDENCE OF LESLIE EVANS AND JUDITH MACKINNON – Gordon Dangerfield 2 At the time of writing she is facing calls for her resignation having misled Parliament for having failed to declare her meeting with Aberdein on 29 March. Certainly, her excuse is highly implausible. How could very serious allegations about her mentor of over 30 years not fail to make an impression? If they were mentioned at that time and Sturgeon really had forgotten, surely that fact indicates that she must have already known about them at that time. At any rate, an investigation went ahead under the new rules which Salmond’s team argued were unfair. He had not been told what the two complainants had said; nor was he aware of the prior involvement with the investigating officer; he was not given access to the witness statements; nor the full relevant evidence he required and so on. In short, he was not given a fair hearing.5 So confident was he of his cause that the team shared evidence with Sturgeon indicating that a court would find in his favour. Salmond was prepared to enter into binding mediation, but this was refused with the result that he felt he had no choice but to take the Scottish government to court. The anti-Salmond camp was now vulnerable, not least because key players might have to give evidence under oath. It has been alleged that at first the motivation behind the complaints was “merely” to have something on file so that should Salmond return to politics in the SNP his re-entry would be vetted and blocked. But the situation had now escalated and when Salmond went ahead with the judicial review, in response, it seems, criminal charges were launched (against the wishes of the original complainants, apparently). Salmond sought an interdict that would prevent publicity, but before this could be granted, on 23 August 2018 the Daily Record published the salacious details that now included an attempted rape. The details seemed incredible to Craig Murray,6 and he began to investigate, not the identity of the complainants, but who among the very few who had details of the police investigation and had leaked the story to the press. To his surprise he deduced that with very high probability it was Chief of Staff Liz Lloyd who had done so - the journalist in question, Davie Clegg, being an old friend.7 This narrative is supported by Salmond himself, who later met with Murray to explain further8 and also from subsequently revealed WhatsApp group formed at the time that included among its membership Permanent Secretary Leslie Evans9 who reckoned that although the battle had been lost “we” would “win the war,” and Peter Murrell, who spoke of now being the time to put pressure on the police.10 5 CONTRARY TO THE FACTS: THE EVIDENCE OF LESLIE EVANS AND JUDITH MACKINNON – Gordon Dangerfield at 82-84. 6 Craig Murray - Wikipedia 7 Wings Over Scotland | All the jolly boys and girls Tweets from 2011: (davieclegg OR courierclegg) (from:Eliz_Lloyd) - Twitter Search / Twitter 8 My Sworn Evidence on the Sturgeon Affair - Craig Murray 9 Leslie Evans - Wikipedia 10 Peter Murrell - Wikipedia 3 The judicial review collapsed in January when the government’s own legal team decided that the case was “unstateable,” after which Salmond was arrested. It has been reported that 22 police officers had interviewed 400 witnesses and taken 700 statements. Salmond was tried in March, with new complaints coming forward. On the face of it, this boosted the credibility of the original pair, however, the more conspiratorial reading here is that these women were all closely related to Sturgeon, a fact that if widely known would paint a very different picture. At any rate, we know that someone hostile to Salmond had leaked, and to that extent he was clearly the victim of a conspiracy. Salmond would suffer reputational damage in this “trial by media,” though again, his judicial review succeeded, and moreover, the jury found him not guilty. On the attempted rape the prosecution were unable to establish that one complainant (Woman H) was present on the occasion and the defence were able to find a witness - a friend of the complainant - who gave evidence that she was elsewhere.11 Salmond emerged from the court at the start of the Covid lockdown announcing that in due time all would be revealed. Having weathered this storm, two inquiries were now set up. In the first place, former DPP James Hamilton12 was appointed to look at whether Sturgeon had misled Parliament. Salmond’s evidence is in the public domain, for example, it has been reported in the right wing Spectator.13 However, in the second place, Linda Fabiani is currently convening an inquiry into the fiasco of the botched investigation, and Salmond has submitted the same evidence in support of his account. This inquiry at Holyrood has been widely condemned by Salmond’s supporters as a farce, however, since it has refused to admit Salmond’s evidence and for this reason Salmond has refused to appear. The inquiry has even refused to rule out the possibility that Salmond will be convicted of contempt of court should he tell the truth - an absurd situation that seems impossible to understand. Moreover, the inquiry has also refused to accept the evidence of Salmond’s former Chief of Staff Geoff Aberdein - clearly another key figure! The inquiry is meant to investigate the botched investigation into Salmond. How can this possibly make sense? Again at the time of writing, the Spectator has just won its case to amend Lady Dorrian’s court order regarding the reporting of allegations.14 11 Murray particularly highlights the mendacity of Woman H: "I Have a Plan So That We Can Remain Anonymous But Have Maximum Effect" - Craig Murray 12 James Hamilton (Director of Public Prosecutions) - Wikipedia 13 But see: Salmond’s Submission To Inquiry | Grouse Beater (wordpress.com) 14 Spectator wins challenge to court order in Alex Salmond case | Alex Salmond | The Guardian The most recent evidence is that Salmond’s evidence can be submitted and Salmond is due to appear before Fabiani on 24 February. 4 A non-legal interpretation from a controversial pro-Salmond blog makes the distinction between identifying a complainer and identifying a complainer as such.15 For example, let’s say that Sturgeon’s bank manager complained against Salmond. Can this fact be reported? It depends. Supposing it is in the public domain that it was the bank manager who complained then identifying the manager in effect identifies the complainant. However, supposing it is not widely known that the manager is the complainant then identifying her would not be identifying the complainant. In this situation the complainant may be referred to. This would almost seem to be common-sense especially as it has been reported that complainants include people close to Sturgeon including an MSP and a civil servant. For if such a person was involved in a further capacity (not only as a complainer, but as someone organising meetings, say) then Salmond may wish to refer to that person in that capacity (should it be relevant). On the other hand, it is very difficult to think that Salmond would want to refer to Sturgeon’s bank manager (or gardener, or hairdresser). Why should that be relevant? Salmond’s submission to the Hamilton inquiry includes the following: 26. I received a message via Geoff Aberdein from her Chief of Staff Liz Lloyd (the initial the First Minister has redacted from my relevant WhatsApp message is “L”) on the 13th July 2018 that the First Minister wanted to see me again and we met once again at her house at her request the following day, 14th July 2018. This is shown at Appendix A. There was no-one else at this meeting. She specifically agreed to correct the impression that had been suggested to my counsel in discussions between our legal representatives that she was opposed to arbitration. I followed this up with a WhatsApp message on the 16th July 2018. On the face of it, this information about the interactions between Sturgeon and Salmond mediated by their Chiefs of Staff are obviously pertinent, and it is very difficult to see how Fabiani’s inquiry could consider what was going on without admitting it - and, no doubt, Aberdein’s evidence too, as it would presumably corroborate this version of events. We would repeat our perplexity, then, as to why this evidence should be ruled out of court. How could this paragraph possibly constitute “jigsaw” evidence that could indicate a complainant against Salmond? At this juncture we are reminded of the sort of chess problems that appear in newspapers. A key moment in a game is reached and the puzzle is posed: White to play and win. By a series of interesting and decisive moves White (or Black) can force the issue, and the reader is invited to work it out. What adds spice to the challenge is that sometimes even a poor chess player can solve problems that grandmasters may miss. The important point here is that at the time that the key situation is reached no one is around to announce to the player that they can win by a 15 Wings Over Scotland | High Court update 5 puzzle-like manner. If a grandmaster were to be set such a puzzle, of course, then no doubt he or she would solve it in an instant, but as it is, in real time they might easily miss the win - and kick themselves afterwards. By way of a corollary, we add that Lloyd has not been called to give evidence at Holyrood. Let us now turn to the moral dilemma. Should complainants be granted anonymity? Generally speaking, perhaps. But always? In the Pell case it seems that a coordinated effort was made to put pressure on complainants and even to coach them so that their evidence would appear more credible. Maybe the point was not so much to put Pell in jail, but merely to destroy his reputation, at any rate, I have argued along conspiratorial lines that this is what actually happened. One feature of this case, it seems to me, is that the so-called right to privacy of the complainant - even the mendacious complainant - creates a moral hazard. I mean, those with sufficient power to manipulate the process can embark on the “corroboration by numbers” strategy, safe in the knowledge that the complainants, and more significantly those who encouraged the complainants are thereby protected. Obviously, this outcome may not be intended by those who support anonymity protections, but it is easy to foresee that it could happen - it has happened. In this scenario, even if the accused is acquitted his reputation is ruined. However, in the process of asking “What is going on?” the pieces of the jigsaw may almost assemble themselves in response to the tension of inquiry.16 In this endeavour the investigator (writing, perhaps, for the historians of the future) may seek to uncover the conspiracy and accidentally, as it were, uncover the complainant. Logically speaking, of course, this may happen if the conspirator also complains (and, of course, thereby obtains the right to anonymity). In other words, a single action has a double effect.17 Directly one may seek the truth, and the restoration of the reputational damage caused by false accusation. Indirectly, however, “jigsaws” get fitted together, and the accusers are found out. As we have consistently maintained, truth is the daughter of time. Here it might be argued that one unintended consequence of such a position is that genuine victims will be dissuaded from complaining. This may be so, but arguably that prospect remains whenever one party has less power than another. Our counter would be that the exalted principle of always protecting anonymity come-what-may acquires its prestige, in part, from the 16 For the classic study, see Bernard Lonergan, Insight: A Study of Human Understanding, ed. Frederick E. Crowe and Robert M. Doran, CW 3 (Toronto: University of Toronto, 1992). 17 Doctrine of Double Effect (Stanford Encyclopedia of Philosophy) 6 notion that it helps to champion the weak. To the contrary, in the manipulative scenarios that we imagine it is the relatively less powerful who are the true victims. These reflections on moral theology, we think, are relevant in the Salmond case, but we can add a further reflection on the political realities. Before we do, we feel obliged once again to make it clear that prior to two weeks ago we had hardly ever taken any thought to the issues of Scottish politics, and that once again we are writing as a complete novice. We are guessing. Thus, Sturgeon and the SNP enjoy considerable popularity and hence power, and for this reason Acton’s dictum about power’s corrupting influence holds to some extent. The Scottish government manages to keep the truth suppressed, especially insofar as the Sturgeon-Salmond row is injurious to Independence. Only the Unionists profit from this scandal, a fact that to my mind makes it inevitable that the truth must eventually come out - given British influence. If Sturgeon is on thin ice, without doubt her enemies are now busy prizing open the cracks. She cannot skate on forever. Here we also have to note the role of alleged former M15 agent David Harvie as Crown Agent.18 It is reported that the complaints first went via COPFS, rather than the police, yet another issue raising questions about the role of Scotland’s powerful neighbour. And we must further note that Murray currently stands charged with contempt of court, a prosecution that would appear politically motivated. His sworn evidence has been redacted to prevent “jigsaw” identification of court protected identities, and his motive has only been to expose the misdeeds of the Scottish government. At this juncture let us conclude. To be clear, we do not know what is going on, and we have no information on the complaints whatsoever except as indicated by the reasoning in this article. Nor has it been our intention to solve jigsaws, but that said, it has been our longstanding methodological position that jigsaws do tend to get solved in the end. 18 David Harvie - gov.scot (www.gov.scot) Wings Over Scotland | You mustn’t slip up 7