NICOLA Sturgeon’s top official has denied hiding the “smoking gun” which forced the Scottish Government to drop its legal fight with Alex Salmond. 

Leslie Evans told a Holyrood inquiry she could “see why that might be construed”, but insisted it had been the result of a “corporate failure”.

However she was less open when pressed on whether senior lawyers hired by the Government threatened to quit months before she finally conceded the case.

Ms Evans said she had always followed “composite legal advice”, and repeatedly avoided going into the specifics of advice from any particular source. 

Mr Salmond's supporters suspect the Government maintained its courtroom fight with the former first minister for months longer than the facts merited.

The denials and dodged questions came during a marathon three-hour session of the Holyrood inquiry into the Salmond affair, at which Ms Evans was the sole witness, appearing for a record fourth time.

The inquiry is looking into how the Scottish Government botched its probe into sexual misconduct allegations made against Mr Salmond in 2018.

Mr Salmond had the exercise seat aside in a judicial review by showing it was flawed from the start and “tainted by apparent bias”, a Government error that left taxpayers with a £512,000 bill for his legal costs.

Ms Evans denied Ms Sturgeon tried to influence the probe.

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The turning point in the judicial review was late December 2018, when the Government admitted the investigating officer in the probe, Judith Mackinnon, had been in substantial prior contact with the two complainers, creating the “apparent bias”.

Ms Evans, the Permanent Secretary since 2015, confirmed she knew Ms Mackinnon had been in contact with the complainers, Ms A and Ms B, before she was appointed to the role in January 2018. 

However she said she did not know the exact nature of the contact, or think it breached the Government’s own harassment complaints procedure, despite Paragraph 10 of this stating that the investigating officer “will have had no prior involvement with any aspect of the matter being raised”. 

Despite a duty of candour on the Government to share information with Mr Salmond’s legal team in the autumn of 2018, it was not for some months that the extent of Ms Mackinnon’s involvement was revealed.

It was only after Mr Salmond’s lawyers went through a special procedure to extract documents from the Government that the clinching material came to light.

This contradicted previous Government assurances to the court about the provision of documents. 

The Government later admitted a December 21, 2018 hearing at which Ms Mackinnon gave evidence was a “watershed" moment in the case, tipping the balance decisively in favour of ministers conceding.

Outside junior and senior counsel warned they would quit on January 3, 2019 if the matter was not resolved by then, and Ms Evans formally took the decision to concede on that day.


It became public the following week, when ministers accepted in open court that the probe had been unlawful, unfair and tainted by apparent bias.

At today’s inquiry session, Ms Evans admitted the recovery of material from the Government’s email and document systems had been “challenging”.

She said: “It is incredibly challenging, particularly in the digital world, and we need to get better at it. “There’s something like 35million documents in the Scottish Government electronic document management account at any one time. There’s 3000 in my own email account roughly at any one time.

"We get something like nearly 3m emails a week coming through the Scottish Government doors as it were. So it is always challenging.

“However the specifications we were provided with at the judicial review…  those were challenging to respond to there’s no doubt about that.” 

She said a review was put in place to improve matters and was already having an effect.

READ MORE: Alex Salmond accuses Nicola Sturgeon of giving 'untrue' evidence to Holyrood inquiry

Liberal Democrat MSP Alex Cole-Hamilton said that, given the key piece of evidence was the last to come out, it looked as if the Government was trying to hide the “smoking gun”.

He told Ms Evans: “I understand entirety what you say about the mega-haul of data, that an organisation as big as the civil service possesses, but with respect this is not some constituent grumbling about hospital waiting times.

“The evidence that was produced incrementally in the latter days of December in 2018 would ultimately be the smoking gun on which the failure of the judicial review collapsed.

“The optics of that look pretty bad. In a way, a reasonable person might look at that say that actually the Government had something to hide, or were trying to hide.”

Ms Evans replied: “I can see why that might be construed, and indeed I believe that is what has been alleged in some circumstances. That is not the case. It really is not the case. 

“I absolutely take the point that the speedy and effective sharing of information in any circumstances is important, nothing more so than in this one, and indeed you will have seen  the speed at which I took a decision very rapidly after that information came to light.

“As we know, there was nothing new in that information in the way the Investigating Officer had played their role. But it was the timing of that information coming out that lead as you know to my decision to conceded based on the fact that it had [contradicted] some of the commitments made earlier on by our legal representatives and cast doubt on our capacity to share other evidence in our case at the right time.

“I do not in any way try and reduce down or somehow give less import than should be to the information sharing processes that the Government was challenged by in those circumstances, but I would indefence say they were particularly challenging circumstances.”


Later, Labour MSP Jackie Baillie pressed Ms Evans on why the Government had never previously admitted that both its external counsel in the judicial review had threatened to quit because of problems with the Government's line of defence.

Ms Baillie said: "Tell us why you have never previously revealed that not one but both of your external counsel threatened to walk off the case unless you conceded it by January 3, 2019?"

Ms Evans said that fell into the category of legally privileged information which the Government had refused to disclose to the inquiry.

Ms Baillie told Ms Evans she had an “overriding duty” of candour and pressed her again on why the information had not been previously divulged.

Ms Evans said she would have been irresponsible not to have taken account of “composite legal advice” on the key date of December 21, 2018, when she realised a decision on conceding or not was needed.

Ms Baillie asked Ms Evans when external counsel had said, on balance, the Scottish Government was likely to lose - October, November 2018 or earlier?

Ms Evans again said she always took “composite” legal advice, adding: “It would have been remiss for me only to have listened to one voice. At every stage, the legal advice I was provided was complete and thorough and from a variety of sources.”

She said it was not until October 2018 that the legal advice involved consideration of whether Ms Mackinnon ought not to have been the investigating officer, given Parapgraph 10. 

“Was the interpretation that we had laid on it, and was within the spirit of it being drawn up, somehow able to be interpreted differently?” Ms Evans said. 

Ms Bailie said: “That is not my question and the Permanent Secretary understands that.”

She then asked Ms Evans again about when outside counsel told her that the Government was likely to lose the case.

However Ms Evans again sidestepped the question.

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She said: “We had discussion with counsel and with our [in-house] legal advisers on the prospects of success throughout this period... and I listened carefully to that advice as did the First Minister.

“Those sources of advice were what guided us through and contained and continue to inform our decision that the case was stateable, until it was not, which is the point at which I was asking for advice from a variety of sources, again, on the 21st of December [2018].

“Up until that stage, the advice that I was being provided with, and from which I did not depart, that composite advice, was that the case was stateable and was defensible and should be defended, and I think you heard that from the Lord Advocate himself.”

Ms Baillie told Ms Evans yet again that she was not asking about composite advice, but the advice of the external senior counsel told the Government.

She said: “I am asking again based on just that advice. Did they, in October, say to you that on balance you would be likely to lose?”

Ms Evans said: “I cannot confirm legally privileged advice. I can say that I listened careful to all legal advice from all sources at every single stage of the procedure.”

Ms Baillie said after the hearing: “After the car crash that was the investigation into Alex Salmond, it is extraordinary to hear Leslie Evans defend the Scottish Government’s handling of harassment complaints.

"It has patently failed the women at the centre of these complaints.

“Lamenting ‘procedural failings’ is the understatement of the century: The Scottish Government’s handling of this investigation was badly botched from the get-go, with bias and arrogance clouding judgements.

“It is not surprising that Leslie Evans has abandoned all ownership over the complaints policy that was found to be so catastrophically wanting, but ultimately she must carry the responsibility for much of this fiasco on behalf of the Scottish Government.”