DANI GARAVELLI ON THE ALEX SALMOND TRIAL

1 April 2020

This was a case about power, sex – and the future of Scotland. From court, Dani Garavelli covered every minute

BY DANI GARAVELLI

It is 3.09pm, Monday, March 23, 2020. The year of the Coronavirus, Edinburgh. The Royal Mile – the stretch of road that runs between Holyrood Palace and the Castle – is eerily quiet. Gone are the workers with their carry-out coffees. Gone, the tour groups who gaze up at the cathedral, dedicated to St Giles, the patron saint of lepers.

Gordon Jackson, QC departs Edinburgh High Court

But trials, particularly sexual offence trials, are complicated affairs, with high stakes and, often, muddy waters. There tend not to be eyewitnesses, and yet the jury must be convinced beyond reasonable doubt, and so convictions are difficult to secure.

In this trial the stakes were higher, and the waters muddier, than most. On the verdict hung not only the fate of the man who took the SNP from the fringes to the mainstream, and the country to the brink of independence, but that of his protege-turned-adversary, Nicola Sturgeon, along with the Scottish independence movement as a whole.

If that wasn’t enough weight to bear – unfolding alongside the Weinstein case in the US – it was seen as a referendum on the #MeToo movement; a litmus test for contemporary attitudes on sexual offending in the workplace. Had #MeToo challenged public misconceptions on sex and power? Was it being used to empower women; or to victimise men?

As for the muddy waters, where to start? Salmond is innocent; but he does not come out of this unsullied. “I wish on my life the First Minister had been a better man and I wasn’t here today,” said Woman H, who claimed whilst giving evidence that he’d attempted to rape her.

The attempted rape charge was dismissed along with all the others, but the broader sentiment was endorsed. Both Prentice and Jackson, prosecution and defence, quoted Woman H in their closing submissions. “I wish on my life the First Minister had been a better man and I wasn’t here today,” Jackson said. “It’s a good line. Maybe it was rehearsed. But it is true. Because if, in some ways, the former First Minister had been a better man, I wouldn’t be here, you wouldn’t be here. None of us would be here.”

This was, in fact, the core of the defence case: that Salmond was a flawed, demanding, irascible leader, whose behaviour could be inappropriate, though never quite so inappropriate as to be criminal. Never that.

It was an impression reinforced last weekend when footage emerged of the garrulous Jackson discussing his client loudly on the Edinburgh to Glasgow train at a time when the trial was still in progress. He referred to Salmond and the allegations, as “inappropriate, arsehole, stupid, but sexual?” He also risked being in contempt of court by mentioning two of the complainers by name, and said his strategy included trying to “put a smell” on the women.

Many had wondered at the wisdom of choosing Jackson as a defence lawyer for a high profile sexual assault case. He did secure the acquittals, but at what cost? His indiscretion has effectively “put a smell” on Salmond, and he has referred himself to the Scottish Legal Complaints Commission.

Bute House

Much of the prosecution case centred on what happened in Bute House – the First Minister’s official residence in Charlotte Square, Edinburgh. To those of us who sat through the two-week trial, the lay-out of the Georgian townhouse is now as familiar as our own homes. The basement where the civil servants had their offices. The first floor with its chandelier-lit drawing room, the site of many an IndyRef dinner. The second floor (part official/part private), with its adjoining sitting room and study. And the third floor with its private bedrooms – one of which was the scene of whatever happened with Woman F, on the night of 4 December, 2013. That something inappropriate took place has never been denied. Woman F received an apology from Salmond at the time and an assurance it would never happen again. Now she too – along with the other complainants – is being branded a liar on the internet.

The image created of the former First Minister – an image undisputed by the defence – was of a man who could not bear to be alone. A man who worked all hours in both his public and private quarters and expected civil servants and government officials to work alongside him. A man who drank while he worked, and wanted others to drink too. A man for whom the boundaries between work and leisure, business and pleasure were hazy. Blurred lines, as they say.

There were other hints of murkiness too: allusions to machinations which, as Salmond said, could not be spelled out in court. “There is something going on here,” Jackson told the jury. “I can’t prove it, but I can smell it.”

Those of us who covered the preliminary hearings know what he was talking about: texts and emails the defence see as proof of a plot. One of them read: “We have lost the battle, but we will win the war.”

The lost battle referred to the judicial review – pursued by Salmond – which found the Scottish government’s investigation of the first two complaints had been unlawful; the war, to the criminal trial. Between the start of the judicial review and police charges being laid, eight more complainers had come forward.

The next act in this drama – Salmond’s reckoning – will be played out in a post-coronavirus world. But the seeds are already sown. They have been scattered by those supporters who turned up at the court day after day to shout “Captain, my Captain” or to play ‘Freedom Come All Ye’ on the bagpipes.

They have been scattered by the former Justice Secretary Kenny MacAskill, MP Joanna Cherry and MSP Alex Neil, who called for resignations and fresh inquiries; and by the online warriors tweeting bile-laden tweets about women they will never know.

It is clear Salmond is on the warpath. The question is how far will he go? Is he willing to set fire to the house he built, just to watch his enemies burn?

All great dramas have a central theme. The theme for The Rise and Fall and Putative Rise of Alex Salmond is power. It runs through the unfolding events like an electric current. The lust for it, what you do with it when you acquire it, and what happens when you refuse to let it go.

It was a shift in political power dynamics – from Salmond to Sturgeon post-IndyRef – that provided the local catalyst; a shift in gender power dynamics post-Weinstein, the global catalyst. It is no exaggeration to suggest that without the confluence of these two “moments”, the allegations at the centre of the court case might never have come to light.

For the last 20 years, Salmond and Sturgeon have been the SNP’s towering figures, each to some degree responsible for the ascendancy of the other. Sturgeon – 16 years Salmond’s junior – was on the executive of the Young Scottish Nationalists and helped secure Salmond’s victory in the leadership election of 1990.

In return, Salmond acted as Sturgeon’s mentor as she became an SNP candidate, a list MSP and finally, MSP for Govan – a seat she took from Gordon Jackson in 2007. Back then, Jackson was combining his legal work with his job as a Labour politician. The Scottish establishment is a very small world.

The Salmond/Sturgeon relationship suffered a blip in 2004. Salmond had resigned as leader four years earlier to be replaced by John Swinney (now Deputy First Minister) and when Swinney resigned, Sturgeon threw her hat in the ring. Salmond had insisted he had no interest in being leader again. But when he realised his protege wasn’t going to win, he changed his mind.

Sturgeon was not best pleased. But they hammered out a pact at the Champany Inn in Linlithgow – the birthplace of both Salmond and Mary Queen of Scots. They would stand on a joint ticket, it was agreed, with Sturgeon as Salmond’s deputy. Then, when the time came for him to go, she would be the anointed one.

Unlike Tony Blair, Salmond kept his part of the bargain. As the IndyRef campaign gathered momentum, Sturgeon’s public profile grew and grew so that when – on 19 September, 2014 – the result was declared and Salmond resigned, there was no question over who would succeed him.

Sturgeon surfed into the role of First Minister on a tide of goodwill. She owned the SNP conference in Glasgow the following spring, striding onto the stage like a coral-suited Boudicca.

It wasn’t long, however, until two facts became glaringly apparent: 1) Sturgeon had a very different style and set of priorities from Salmond and 2) Salmond had no intention of letting her get on with the job unhindered.

Sturgeon was more cautious than Salmond, less clubbable and much more interested in women’s issues. Right from the start, she put gender equality near the top of her agenda. She was particularly vocal on all-women shortlists, quotas for public boards and the eradication of sexual harassment in the workplace.

After the Weinstein story broke in October 2017, and the ripples spread out to Westminster, Holyrood and beyond, she encouraged women to come forward with complaints and sought to improve the process by which that could be done.

In the meantime, Salmond was becoming a problem. Early on she had to put him in his place after he appeared to suggest he would decide the strategy for the 2015 General Election. He fought and won the seat of Gordon in that election; then fought and lost it in the snap election of 2017.

He had already made it clear he believed Sturgeon’s softly, softly strategy was misguided and he blamed her “underwhelming” campaign for the loss of seat. Now, bereft of an official role, he turned into an embarrassment. In the summer of 2017, he staged a show at the Edinburgh Fringe, opening with the words: “I promised you we’d either have Theresa May or Nicola Sturgeon, but I couldn’t make these wonderful women come….”; an off-colour comment Sturgeon generously described as a throwback to “the Benny Hill era”.

Worse still, he launched a chat show on Kremlin-backed channel RT (formerly Russia Today), a move that caused consternation amongst even his closest friends. “I think there was a moment where his own hype overtook him and he wasn’t as alert to reality as he might have been,” one told me. “He began to believe the referendum was lost because the BBC was conspiring against him, rather than because his case was weak and he didn’t have anything to say about the hardest issues.”

It is here that the narrative begins to diverge. For those in the Sturgeon camp, it goes something like this. In November 2017, Mark McDonald was forced to resign as Minister for Childcare for sending “inappropriate” texts. This reinforced the Scottish government’s view that Holyrood was unlikely to be immune to allegations of historic offences. So it drew up a code of practice that allowed complaints to be brought not only against current ministers, but former ministers going back to the Scottish Parliament’s inception in 1999. It had no idea the first person to fall foul of this process would be the former First Minister.

Those in Salmond’s camp agree McDonald’s resignation was a turning point, but for different reasons. If McDonald had resigned his Holyrood seat, as well as his ministerial role, there would have been a by-election and an opportunity for Salmond to return to frontline politics. They contend the new process was designed precisely to prevent that happening.

Whatever the truth, Woman K, the civil servant who claimed he grabbed her bottom while they were having their photo taken at Stirling Castle, and Woman F, the civil servant he apologised to back in 2013, came forward.

A Scottish government inquiry was launched, the story leaked to the Daily Record tabloid newspaper and the allegations passed to the police. The weekend the Record story broke, Salmond held a press conference at the Champany Inn at which he described the investigation as “flawed and bereft of natural justice”.

Woman K remembers that weekend well. “My partner happened to be away and, no word of a lie, I didn’t eat, I didn’t sleep or drink anything,” she says. “I just sat on Twitter and refreshed it and refreshed it, and every time I did there was something new and horrifying being said about me.”

In an apparent display of power, Salmond launched a crowd-funder to raise money to fund the judicial review. In January last year, the government finally conceded its process was flawed on the basis that the investigating officer had previously been in contact with one of the complainants.

A jubilant Salmond called for the resignation of the Permanent Secretary Leslie Evans, who led the inquiry. But then, a fortnight later, another dramatic twist. The former First Minister was charged with a total of 14 offences against 10 women (one charge was later dropped). And so the stage was set for Scotland’s trial of the decade.

No-one arriving at the High Court in Edinburgh on Monday, 9 March, could have doubted the importance of what was about to unfold inside.

It was a few days BSD – Before Social Distancing – and the Royal Mile was very busy. A low winter sun was bouncing off the bronze toes of philosopher David Hume who sits outside. Tourists generally rub his right foot for luck, but today they were focused on the press pack jostling for the best position from which to catch Salmond and his entourage. He didn’t disappoint, smiling as he walked in, with his sister, Gail, and former constituency office worker, Isobel Zambonini.

Inside, the reporters were jittery. They knew the trial would be a legal minefield and that the demand for seats was likely to outstrip capacity.

At around 11am, the dramatis personae began to assemble. In the dock, flanked by security officers, was Salmond, his face now rictus as the 15 members of the jury filed in. Presiding over the case was Lady Dorrian, pictured below right, Scotland’s second most senior judge.

dORRIAN 1.jpg 2.jpg 3The others you have met already: Prentice – a quietly-spoken schoolmaster, who derives his power from the belt you suspect he has hidden beneath his advocate’s gown; Jackson – a Toby jug of a man, who has perfected the role of bumbling old fogey; and McCall, who is too senior to be a junior, and was presumably there to provide a female foil to Jackson’s performative blokey-ness.

The prosecution case was straight-forward. The women could be divided into roughly two categories: Woman A, Woman C, Woman D and Woman K, who claimed to have been sexually assaulted in public, and Woman B, Woman F, Woman H and Woman J, who claimed to have been assaulted while working late at Bute House. Woman G fell into both categories. Woman E did not appear in court and the charge relating to her was dropped.

Four of the women – Woman B, Woman D, Woman F and Woman K – were civil servants. All the civil servants told the court they reported their experiences to colleagues or line managers at the time of the alleged incidents, which took place between 2010 and 2014.

Prentice set about establishing a course of conduct. As he questioned them one by one, he drew out the patterns: the alleged public assaults – from the repeated stroking of Woman D’s face to the running of hands down the curves of Woman A’s body – had a proprietorial quality. “I think the First Minister did it because he could,” Woman K told the court.

With the women who claimed to have been assaulted in Bute House, the links were even clearer. In each case, they had been working in the evening. Several were offered alcohol – Maotai, Limoncello or whisky – and there was often some pretext for the initial touching: the re-enactment of a scene from a Jack Vettriano Christmas card (Woman B), for example, or an impression of a zombie from a film (Woman J).

All of the women spoke of feeling demeaned. They explained, too, the conflict they felt over making a formal complaint or going to the police. Salmond was the most powerful man in the country. They loved their jobs, had worked hard to gain them, and believed they would lose them if they made a fuss.

“If I had complained it would have been swept under the carpet and I would have suffered in my career,” said Woman B. “I never saw anyone in a senior position in the Scottish government tackle the First Minister on his behaviour.”

The fact that the alleged incidents took place in the run-up to the Independence Referendum in 2014 added extra pressure, the women said. Not only was it their job to protect the First Minister’s reputation, but the whole democratic process was at stake. “Everything we did which was outward facing had potential ramifications which went beyond personal experience,” said Woman F, who talked of a “real loyalty” to Salmond.

Some online commentators have suggested there was no corroboration of the women’s testimony. This is untrue. One civil servant colleague told the court he had witnessed the First Minister reaching out to touch the hair and face of Woman D in a lift. He had instinctively brushed Salmond’s hand away, saying something like: “Behave yourself.”

Three other civil servants testified that – after woman F and woman G’s experiences – staff rotas were changed so no woman would be alone in Bute House with the First Minister after 9pm (although others denied this was the case). Colleagues and relatives also testified to Women F and Women G’s state of mind immediately afterwards, describing them variously as “traumatised”, “pale” and “upset.”

Salmond’s defence was pick and mix. Some of the encounters he admitted, but insisted they were consensual; others, he insisted, were complete fabrications.

Like many trials, much of the evidence was He said, She said. Or rather He said, She said, She said, She said.

Woman F – the civil servant to whom Salmond apologised – said she had to fight him off as he forced his hands under her clothing. He described the encounter as a “sleepy cuddle”.

Woman B said he seized her wrists and tried to kiss her while attempting to re-enact the Vettriano Christmas card. He said it was just high-jinks. “At the time it wasn’t regarded as it is being presented now,” he said.

Woman G said he had put his arm around her and tried to kiss her. He said he was comforting her because she had been upset.

Woman A said he had touched her buttocks and her breasts. He said to have done so in a public space would have been “insane.” He said she was at the centre of the plot to bring him down.

Woman H said Salmond assaulted her twice in Bute House. The first time, she said, he kissed her and put his hands under her clothes; the second, he restrained her, removed both their clothes and climbed on top of her naked and aroused.

Woman H said the first incident had taken place in May 2014. He said there was no date in May 2014 for which he didn’t have an alibi, and used a combination of a diary and a calendar in an attempt to prove it. She said the attempted rape took place on June 13 after an IndyRef dinner; he said she hadn’t been at that dinner.

Jackson also suggested she was seeking revenge for the former First Minister’s refusal to back her in a political project. Weirdly, Salmond admitted a consensual encounter with Woman H – a “footer”, a bit of “how’s your father,” as Jackson put it – on an occasion which did not appear on the indictment.

This ribald tone was the one Jackson used a lot. To watch him, to listen to him, you would think he had wandered into the courtroom from the 1950s. His defence veered in all directions. One minute Salmond was a touchy feely guy whose hugs and kisses were being misunderstood, the next the victim of some grand, yet intangible, plot.

But it was Jackson’s trivialisation of some of the alleged offences that raised most eyebrows. It is one thing to insist the former First Minister is innocent of the offences with which he has been charged. It is another to treat some of those offences as inconsequential.

In defiance of what we know about power dynamics, Jackson equated the tactile way Salmond dealt with members of the public with the way he interacted with much younger female workers.

And he peddled all the old tropes. If woman F had believed Salmond had intended to rape her she would surely have considered it important enough to report to the police. If woman H had been distressed after her ordeal, then what was she doing on Twitter?

At times he seemed to regard the process as high jinks. He engaged in casual banter with a Glasgow councillor, as if they were old chums sharing a pint, not witness and QC facing each other across a courtroom.

At breaks and lunchtimes, he could be found laughing and gossiping with the (mostly male) reporters. In the afternoon the jury retired to consider its verdict, he grabbed hold of a well-known TV journalist and posed for a selfie.

Jackson’s closing submission appeared to play to male fears about past behaviour. How did things that people thought nothing of later find themselves on a charge sheet, he wondered. “It’s scary, scary stuff.” A couple of jurors nodded along.

The fact the trial was unfolding alongside the sentencing of Weinstein was significant. At almost precisely the moment the film producer was being jailed for 23 years, Jackson was asking Woman A: “Do you call that groping?” Scotland’s #MeToo moment this was not.

In comparison with Jackson, Salmond came across as dignified. The consensus amongst the journalists beforehand was that it would be disastrous for him to testify; but we were wrong.

Some of his charisma revived in front of an audience. He spoke and moved his hands like the accomplished politician he is, and had dates and facts at his fingertips.

When Prentice opened his cross-examination with the words: “Did you consider [woman B]’s feelings for one moment when you took hold of her hands and said let’s reenact the Christmas card?” repeating it four times, he seemed briefly rattled. But overall, he came over as meticulous and polished.

Asked if he regretted his behaviour, he said he wished he’d been more careful with people’s personal space, but “I’m of the opinion events are being reinterpreted and exaggerated out of any possible proportion.”

The jury took six hours to deliver its verdict which meant its deliberations spanned a weekend. By Monday, it had lost two of its 15 members. In Scottish courts, verdicts can be decided on a straight eight/seven majority. But when two jurors drop out like this the required ratio changes to eight out of 13.

When the time came, the foreman stood up and said Not Guilty to 12 of the 13 charges. The verdict on the charge involving Woman F – sexual assault with intent to rape – was found Not Proven, which is also an acquittal. None of the verdicts were unanimous. The foreman seemed content with the decisions he was conveying, but others were not. One young-ish juror with glasses sat with his head bowed.

Woman F was gutted. “I suppose I had hoped and expected that my case would be one that would help give weight and establish that pattern for others because there was quite a lot of evidence around it and I ended up feeling crushed,” she told me later.

Outside, Salmond made his statement while Jackson looked on, wigless and swigging from a Coke bottle. “God help us all,” the former First Minister said in reference to Covid-19. Then he elbow-bumped with Jackson in celebration.

Throughout the trial, there were two women notable for their absence. The first was Moira, Salmond’s wife of 39 years. Sixteen years his senior, she has always shunned the limelight. She accompanied him to court on the second last day, prompting speculation she might testify, but the rumours came to nothing; and she wasn’t by his side as he walked free.

The second woman was Nicola Sturgeon. She too was said to be on the witness list though never called. And yet, she was omni-present. Every time her name was mentioned, political journalists pricked up their ears. When Salmond’s former Chief of Staff Geoff Aberdein told the court he and one of the complainers had first met with her on 29 March, 2018 – four days earlier than the date she previously gave the Scottish Parliament – several of them almost spontaneously combusted.

Sturgeon’s role in the botched internal process will be explored in a forthcoming parliamentary inquiry, while a standards panel will look into the meetings and phone calls she had with Salmond while the investigation was ongoing. If she is found to have breached the ministerial code then her position will be challenged.

For now, the coronavirus crisis is all that matters, but Salmond is not going anywhere, and there will come a time when these issues must be addressed.

What happens to Sturgeon has implications both for the nationalist project. While Salmond was a guerilla fighter – the perfect leader for an insurgency – Sturgeon is a stateswoman respected on the international stage. To those who dream of an independent Scotland within Europe, her resignation would be a disaster.

The SNP which once saw itself as a united force – an us-again-the-world kind of party – is divided as never before. The faultlines began to appear shortly after the IndyRef as its tight ranks were swelled by thousands of new members. Left vs right; veterans vs newbies.

For a while Sturgeon pacified her squabbling brood, supporting, mollifying, giving an occasional ticking off, but mostly just telling everyone what they needed to hear. When the Salmond allegations exploded into the public domain, however, there was little she could do to keep tempers in check.

By the time he launched his crowd-funder, two distinct camps had formed and #IstandwithSalmond and #IstandwithSturgeon hashtags were circulating on Twitter. These camps have become more entrenched with time, compounded by acrimonious debate around the Scottish government’s Gender Recognition Reform Bill, which is part real, part proxy for the wider power struggle.

This power struggle is about to be played out in miniature as Angus Robertson (Team Nicola) and Joanna Cherry (Team Alex) battle it out to be selected as the party’s candidate for Edinburgh Central in next year’s Holyrood elections. This is destined to be a dirty fight. At the same time, the SNP is struggling with its domestic agenda. Thirteen years is a long time for any party to be in power and there is a growing frustration with its lack of fresh ideas.

All this is being played out against a backdrop of national turmoil: Brexit, for example, and now the coronavirus, which may have raised Sturgeon’s credibility, but also impacted on the prospects of a second referendum.

One recent poll put support for Scottish independence at 52%, but Johnson has consistently said he will refuse Sturgeon a Section 30 order granting powers to hold a fresh vote, so things are at an impasse. Few in Scottish politics now believe there will be a second referendum before next year’s Holyrood elections and possibly not for quite some time after that.

And now this. Salmond’s acquittal is a grenade. When he lost his Westminster seat, he quoted from a Jacobite song, ‘Bonnie Dundee’. “You have not seen the last of my bonnets and me,” he said. But will he really stage a comeback?

Though his supporters would relish it, it is hard to see how he could shrug off the reputational damage the trial has done. More likely he will wield his power from the shadows, manipulating, undermining, bringing his influence to bear. And trying to destroy his former ally. There seems no doubt if he can bring Sturgeon down he will, and to hell with what that does to the cause.

What cultural message would it send out, though, if the chief casualty of this sorry affair turned out to be a progressive female leader?

For all the political questions that are being asked in the aftermath of the trial, there are many gender-related ones which are not.

For example: why did special advisers, such as Geoff Aberdein – who knew of the concerns over Salmond’s behaviour – fail to act? Ditto those at the top of the Civil Service?

What can be done to stop online bloggers and tweeters, with no understanding of the law, peddling inaccuracies about the trial, the verdict and the women who made the allegations?

What lessons can be learned about the handling of sexual offences from a case in which the unwanted touching of women in the course of carrying out their professional duties has been down-played?

What impact will hearing a Defence QC ask: “Do you call that groping?” have on other women uncertain about whether or not to come forward? And whither #MeToo – a movement built on female solidarity – in a world where communicating with other women can be presented as collusion?

These are the issues preoccupying the complainants as they try to pick up the pieces of their lives amid a torrent of abuse.

“I worry that some of the commentary in the aftermath of the trial has been damaging, not only for the public discourse, but for our own safety and welfare,” says one.

Woman K wants her experience to be a catalyst for change. “I don’t want it to end like this – something good has to come of it,” she says. “We are privileged women in so many ways. We are all highly educated, we all know the ins and outs of government, the language of bureaucracy, and even we feel helpless and voiceless.

“If we can help make the system work better for women in the future then that, at least, would be something.”

The experience has been traumatic, but most of the women I have spoken to say they would do it again.

“Though it has been awful, at least I know I did what I could,” says one. Another agrees she felt a responsibility to her fellow complainers.

“I have been a feminist all my life,” she says. “I have talked about how women should speak out – so then, when it’s my turn, I couldn’t say: ‘Someone else needs to do that, not me.’ If things are going to change, I have to help change them.”

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