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Response to Scottish Parliament committee request

As explained in a letter dated 10 November 2020 to the convener of the Scottish Parliament Committee on the Scottish Government Handling of Harassment Complaints, the material held by the Crown Office & Procurator Fiscal Service (COPFS) in relation to the criminal investigation and prosecution of Alex Salmond, as in any case, was obtained and is held by COPFS for that sole purpose.

It was also explained in November that for COPFS to process or disclose that material there required to be a legal basis and that Section 23 of the Scotland Act 1998 could provide such a basis in the event that the Committee sought to recover any data held by COPFS.

In applying the law as set by both the Scottish and United Kingdom parliaments, COPFS has the responsibility of protecting and respecting the sensitive and personal nature of the information it holds, and is keenly aware of the trust that is placed in police and prosecutors by people who complain of a crime or provide evidence.

It is vitally important that people who believe they have been the victim of crime, and those who can provide evidence as witnesses to crime, feel able to come forward to report that to the police in the confidence that they will be treated with respect, sensitivity and confidentiality by the police and COPFS. In order to protect that public confidence and trust, COPFS must process the information it holds carefully, thoughtfully and lawfully.

The Scotland Act 1998 stipulates that COPFS cannot simply produce any document on receipt of a Section 23 notice. Crown Counsel, on behalf of the Lord Advocate, needs to consider whether producing any documents sought would be contrary to the public interest.

In making such an assessment Crown Counsel must consider the relevant public interests, including, but not limited to, the relevance of the document to the work of the Committee, the interests of the owner of the document or anyone named in it, and the public interest in maintaining trust and confidence in law enforcement authorities. Each document needs to be considered on its own merits.

Crown Counsel has now considered the notice and, as in all matters, has acted with impartiality and fairness to apply the law, and the public interest test, professionally and independently.
Material has been provided to the Committee and the convener has been respectfully asked to give careful consideration as to whether or not it is appropriate and in the public interest to publish material COPFS has provided.

The Lord Advocate and Solicitor General for Scotland have not had any decision-making role in the investigation and prosecution of Alex Salmond and any subsequent related matters.