In a letter to the Holyrood inquiry into the botched handling of allegations against the former first minister, Deputy Chief Constable Fiona Taylor, revealed Police Scotland was contacted on a number of occasions by the government seeking answers to “hypothetical questions” which were “predicated upon a specific set of circumstances… rather than development of a generic procedure”.
The letter appears to undermine the stance of civil service Permanent Secretary, Leslie Evans, that concerns about alleged misconduct by Mr Salmond had not influenced the design of the new government policy to deal with complaints about ex-ministers.
It also reveals that the Scottish Government did not report the allegations directly to Police Scotland but went to the Crown Office.
DCC Taylor said the government had first contacted Police Scotland on December 5, 2017, which was followed by a meeting and then a series of email and telephone exchanges through to August 2018.
She said: “The initial email contact indicated that advice was sought on the Scottish Government (SG) approach to sexual harassment procedures following the #metoo movement, and, SG obligations in response to allegations made by staff or former staff which may constitute a criminal
At the meeting Police Scotland provided the government representatives with information on the existing reporting mechanism within the Scottish Parliament,and with details of support and advocacy services.
However, DCC Taylor's letter states that while this advice was “reiterated on several occasions throughout the ongoing contact… a number of hypothetical questions were posed during email and telephone contact around the criminal justice process.
“Police Scotland advised that, without specific details, no appropriate response could be given and no assessment of risk could be made. It was further emphasised that individuals should be directed to the relevant support services as it appeared that the hypothetical questions were predicated upon a specific set of circumstances and the SG response to that set of circumstances, rather than development of a generic procedure.”
She adds: “The hypothetical questions suggested more than one victim of potential criminality and as such, it was stressed that, without knowledge of the detail, any risk that a suspect might present, could not be properly assessed or mitigated. It was highlighted that SG staff were not trained to undertake such investigations, or to engage with victims.
“No details of potential victims or perpetrators were provided by SG and, throughout the contact, Police Scotland encouraged SG to refer victims to appropriate support services.”
Despite being asked for advice on the policy, she says Police Scotland was not invited to provide comment on the “draft ‘procedure’ or framework”.
The committee had also asked Police Scotland when the complaints were first referred to it by the Scottish Government. It had previously heard during the inquiry that it was Leslie Evans who had passed the allegations to the police, despite reservations by the complainants.
However DCC Taylor writes: “SG did not refer matters directly to Police Scotland.
"I can confirm that on Tuesday 21st August 2018, the complaints were referred to Police Scotland by the Crown Agent. This took place during a meeting at the Crown Office, Edinburgh, involving the Crown Agent, the Chief Constable and the DCS, Head of Public Protection.”
The Scottish Government has been asked for comment.
But Scottish Labour MSP on the committee, Jackie Baillie, said the letter showed the Scottish Government was “attempting to stress-test their procedure ahead of taking action against Mr Salmond by war-gaming what the Deputy Chief Constable refers to as ‘hypothetical questions’.”
She added: “It is also clear that the Scottish Government referred complaints to the police via the Crown Agent, against the wishes of the women involved, and despite the police encouraging the government to refer complainants to support services as a first port of call.”
Scottish Conservative MSP, Murdo Fraser said the Police Scotland evidence raised “serious questions” around whether the Scottish Government followed the proper procedures.
“The women at the heart of this scandal were badly let down by basic errors from the government, seemingly at every turn, and yet nobody in the Scottish Government has taken responsibility for a devastating series of abject failures.”
A Scottish Government spokesperson said: “The Scottish Government has confirmed to the committee that Police Scotland was consulted on generic issues relating to the handling of complaints and sources of support for complainers, in the context of the Procedure agreed in December 2017.
“At this time the Scottish Government was dealing with internal employment matters, not a criminal investigation, and our HR staff are experienced in carrying out investigations on sensitive issues within an employment setting. As the procedure makes clear, we may refer to the police if we see evidence that raises concerns of potential criminality.
“As set out in our evidence to the Committee in November 2020, taking legal advice into account we referred the allegations to the Crown Office for onward transmission to the Police.”