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Beyond Reasonable Doubt – Alex Salmond Leaves Court an Innocent Man

The Crown suffers no losses and gains no victories – this prosecutor’s maxim means that whether a jury acquits or a jury convicts then justice has been done. The Crown is disinterested in the outcome of a criminal trial. It is not hard to imagine that the team of lawyers responsible for prosecuting Alex Salmond are holding very fast to that principle right now.

Every story has a beginning, middle and an end and nobody would suggest that the Salmond story has yet reached its conclusion. However, it is likely to be some time before we get to watch the final act. Like an old-fashioned cinema screening we have embarked upon an intermission forced upon us by Coronavirus.

It is an intermission during which the Scottish National Party will have almost no time or energy to focus on preparing for the next stage of the Salmond saga. Alex Salmond, on the other hand, has all the time in the world and anyone who thinks that he will withdraw quietly to the shadows has another think coming.

At this stage I should make plain that I am no expert in Scottish politics and neither am I an expert in the law of Scotland. Many is the English lawyer that has got his fingers burnt thinking he can ‘have a go’ at a Scots law case. It is a different jurisdiction and, in some respects, a fundamentally different place. Jury trials are decided by a jury of 15 not 12 and unanimity is not required, with a simple majority of 8 required for a guilty verdict. If fewer than 8 jurors reach a guilty verdict then the accused is acquitted. There are no hung juries in Scotland.

One of the greatest differences is the third verdict. The jury found Alex Salmond not guilty of all charges save for one which was not proven. Not proven is an acquittal as much as not guilty is an acquittal but not proven is not the same as not guilty. If that sounds slightly confusing then perhaps it is, not proven is sometimes referred to as the Scottish verdict and was disparagingly described by Sir Walter Scott as the bastard verdict. In practical terms that one different verdict in no way diminished Alex Salmond’s right to leave court an innocent man nor will it have any bearing on what comes next, whatever that may be.

Where I do have a good deal of experience is in both prosecuting and defending sexual allegations and many of the difficulties of these cases are universal. Invariably the acts complained of occurred in private. There is one person’s word against another’s. When the burden of proof rests with the Crown and the standard is beyond reasonable doubt it may be thought remarkable that convictions are ever regularly achieved.

The prosecution in the Salmond case would have hoped, although would not have been so rash as to assume, that the number of complainers (complainants in England) would have enabled a sufficiently strong case to be built to result in conviction. Plainly the jury did not vindicate that hope. It is easy to claim that lessons of general application can be drawn from cases such as this but the reality is not so simple.

It hardly needs saying that Alex Salmond is a very singular figure within Scottish public life and politics. Some might say he is the singular figure. Even the best and most thorough reporting of a criminal trial omits much of what goes on in court. Submissions are made that are not susceptible to publication. In the public statement Salmond made immediately after the trial he said: ‘There is certain evidence that I would have like to have seen led in this trial but for a variety of reasons we were not able to do so. Those facts will see the light but it won’t be this day.’

Of one thing we can be certain, Alex Salmond will do everything in his power to bring that evidence into the public arena, what its effect will be only time can tell. He’s got his verdicts in the court of law we shall see if he gets them too in the court of public opinion.


Max Hardy

Max Hardy is a barrister at 9 Bedford Row who specialises in criminal and regulatory law. He is a regular contributor to BBC radio and talkRADIO, and has been a legal consultant to Channel 4’s The Trial – a Murder in the Family and contributes to The Counsel magazine. He is a co-author of Politeia’s Reforming Legal Aid (2022).

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