Scotland’s most senior law officer has refused to say whether allegations the Scottish Government failed to hand over evidence as demanded by a search warrant would be a criminal offence.
The Lord Advocate, James Wolffe, was challenged over a claim by Alex Salmond that previously unseen documents relating to the government’s unlawful investigation of him were released to a Holyrood inquiry.
The former first minister stated under oath, last week, that there was a search warrant ordering the government to hand over all the evidence ahead of his court case, but his legal team have identified approximately 40 documents that were allegedly never shared.
Mr Wolffe, who is both head of the body responsible for prosecutions in Scotland and a member of the Scottish Government, was recalled to give more evidence to the committee inquiry into why the investigation was ruled to be unlawful, unfair and “tainted by apparent bias”, following a successful legal challenge by Salmond.
“I am not going to make any comment in the abstract on what might or might not be a criminal offence.”Lord Advocate James Wolffe
Asked whether a failure to obey a search warrant during the police investigation – as Salmond believes is the case with the Scottish Government – would constitute a criminal offence, Mr Wolffe repeatedly declined to answer but said the Crown Office was “unaware of the detail of the complaint”.
He continued: “If the Crown Office receives any real correspondence in that regard, it will, of course, consider it carefully before determining the way forward.”
Mr Wolffe suggested it would need to consider the “motivation” and the circumstances, and added: “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.
“But I am not going to make any comment in the abstract on what might or might not be a criminal offence.”
Crown Agent David Harvie added: “If and when we get clarity in relation to what is said to have happened, then that is a matter that will be considered seriously.”
Mr Wolffe also revealed that Deputy First Minister John Swinney only asked for the government’s legal advice to be handed over to the committee on Monday – the day a motion of no confidence in him was lodged with the support of all Holyrood’s opposition parties.
In November last year, the Scottish Parliament twice voted to demand the Government publishes the legal advice it received, but the government had so far refused.
With Swinney facing defeat in a vote of no confidence over the failure to comply with the will of parliament, he announced that “key” legal advice would be provided to the committee on Tuesday afternoon.
In his opening remarks, Mr Wolffe rejected criticism of the Crown Office and denied any political influence relating to Salmond’s criminal prosecution, which ultimately saw him acquitted of 13 charges at Edinburgh’s High Court last March.
Mr Wolffe said: “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.
“Insinuation and assertions to the contrary are baseless.”
He then acknowledged that the Crown Office had been criticised for “actions it has taken to protect the identity of the complainers” after its intervention that led to parliament censoring Salmond’s evidence after it was already in the public domain.
Mr Wolffe said the crown had been contacted by lawyers acting for one of Salmond’s complainants expressing concern about the publication of evidence.
“The crown considers that where a potential contempt is drawn to its attention, it has a responsibility to seek to ensure the court orders of this sort – made to protect the administration of justice and the interests of complainers – are observed by drawing that issue to the attention of the publisher,” he told MSPs.
He added: “The crown drew those concerns to the attention of the parliamentary authorities, the parliamentary authorities took a decision, and it was a matter for them to redact certain material.”