Saturday 4 April 2020

Salmond's Great Escape

We all remember the bit in the Great Escape when Gordon Jackson’s character gives himself away by answering “Thank You” to someone from the Gestapo wishing him “Good Luck” in English. But a modern-day Gordon Jackson QC has recently surpassed even this example of saying the wrong thing at the wrong time.

Alex Salmond’s lawyer has disgraced himself, but I very much hope we don’t end up in a society where people routinely record each other’s conversations and then give them to the authorities or the papers. Which of us has never said something foolish, or even illegal at some point or another? But what does this latest revelation tell us about the case?

It is important to realise that law is not primarily about truth. Salmond was declared “not guilty” of all of the charges except the most serious “sexual assault with intent to rape” for which he was given a “not proven” verdict. But this does not tell us what did or did not go on in various places. It just tells us that a jury was unable to determine beyond a reasonable doubt that Salmond was guilty. If I shoot someone, and go to trial for murder, but am freed, it doesn’t mean I didn’t shoot the person. Perhaps I was merely clever enough not to leave any incriminating evidence. Society accepts the verdict of the jury, by allowing the defendant to go about his life as before, but the innocent are frequently unjustly convicted and the guilty are still more frequently freed.

Jackson’s revelation of his lawyerly tactics likewise shows that law is more about winning a case rather than discovering truth. Jackson does not so much wish to disprove the statements that the various women made about Salmond’s actions, but rather wants to make these statements smell. All he had to do was put a smell on a woman and the jury would not believe her.

How many times has Jackson used this tactic during his career? Has he used it only when he thought the defendant was innocent? I couldn't have become a doctor, because I'm squeamish about blood, but I couldn't have become a lawyer because I'm squeamish about truth and would find it morally repellent to free someone I knew to be guilty or convict someone I knew to be innocent. 

We are left to wonder whether Jackson's techniques to win a case are only used when
when he thought the defendant was guilty merely of being an idiot. He has scruples about convicting a defendant who might technically be guilty, but where he the expert lawyer considered the law to be an exaggeration.  Thus, if someone were charged with assault,  Jackson might try to make the prosecution witnesses smell because he thought the fight hadn’t been very serious even though technically it had been an assault. In the same way Jackson's reasoning would accept that Salmond may have touched up some women, but that this was no reason why he should go to jail. Touching women's breasts or indeed other more serious assaults, may have fitted the legal description of sexual assault, but it was excessive to punish a man just for just that. In this way Jackson was not merely defending he was redefining the law. 

What are we to make of the facts of the case? There are liable to be various investigations into the conduct various Scottish people and corporate bodies.  Salmond’s acquittal means he can hardly be accused in any future investigation of doing something for which he was acquitted. But this affects everything that might be investigated.  If it is true that women were advised not to work with him alone, there must have been a reason for this. But if that reason was that he touched women sexually, he ought to have been convicted. Given he was freed we are left to wonder about these complaints, if indeed there were any. It's hard to know who to believe and what to trust. There is no firm ground on which to stand. In Scotland we are all in the mire, because we have lost sight of truth. It ceased to exist along with the secret oil fields that would make our independence rich. Civil servants perhaps knew they were exaggerating when they wrote about Scotland's future. Perhaps the jury thought some of these same people were exaggerating now. 

If we are unable to accept the various witness statements made by the women who accused Salmond of wrongdoing as representing the facts, because Salmond was acquitted, then they must be  false, mistaken or exaggerated. But then why does Jackson think Salmond was an objectionable bully? Why does he think Salmond’s behaviour was inappropriate and stupid? What did Salmond do that was objectionable, but in Jackson’s view not criminal?

If nine or ten women came to me independently with a similar story about a man groping them, I would be inclined to believe them, unless I thought they were conspiring against him. People don’t generally make up similar stories without a good reason.  The women witnesses who claimed Salmond sexually assaulted them were making statements about where his hands had been on their bodies. People can be drunk, they can misremember, and they can misinterpret, but if I feel someone’s hand on my breast it is hard to believe that I can be mistaken about it. But is this really Jackson’s point? It was stupid and inappropriate for Salmond to grope women, it was just this that made him a nightmare to work for, but according to Jackson it shouldn’t be a sexual offence to grope. It’s not war crimes. It’s not enough for Salmond to go to jail, just for this. 

There is a contradiction at the heart of the case. It is accepted that Salmond should have been a better man. But we don’t really know in what way he was less than perfect. If the jury is right and the women witnesses were not to be believed how has Salmond’s perfection been tainted? After all he didn’t grope anyone, he didn’t sexually assault anyone, and he didn’t try to rape anyone. Does his lack of perfection consist in chasing after lots of women, but never sexually assaulting anyone? Everyone consented to his chasing and anyway he desisted when politely asked even when drunk. Every touch of his hand was mutually desired and a woman was healed merely by touching the border of his garment.

The problem with the case is that the truth of what really happened and the facts of Salmond's acquittal leave a sense of a piece missing. The jury’s verdict gives us a truth that doesn’t fit all the other pieces of the puzzle. What’s more it’s hard to see how any future investigation can clarify this truth. It is impossible to know beyond a reasonable doubt what happened in private between two people some years ago when there is no other evidence but their testimony. Unless we all go around recording our lives so that every conversation and every gesture is recorded, we will never be able to prove these things. Perhaps we should install closed-circuit TV in every bedroom in the land. It could be a new building regulation.

The Salmond case means that we all ought to question our assumptions rather than mindlessly repeat them as if lectures in first year Sociology were the truth, the whole truth and nothing but the truth. Metoo would convict Salmond, but this doesn’t mean that Metoo is right either morally or legally. Quite the reverse it means that lots of people are being unjustly convicted where the evidence does not prove guilt beyond a reasonable doubt. We don’t know what Salmond did. We also don’t know if the women who testified against were speaking the truth. But it ought to be difficult to send someone to jail for something that happened years ago when the only evidence is witness testimony. Imagine if someone were hung for murder merely because some people said they saw it, but there was no physical evidence and no evidence even that someone had died. Would that be just? Imagine if life or death hung on the tricks of a lawyer uninterested in truth making up the law as he went along. 

The doubt that was cast on the testimony of the witnesses was that there might have been a political conspiracy against Salmond. The jury were uncertain of the motives behind the case. Anyone who lives in Scotland can see that there is metaphorically “gunpowder, treason and plot” and that all may not be as it seems. Our sinister Scotland with silence, secrets and Sturgeon gave the reasonable doubt that meant Salmond could leap over the barbed wire fence on his motorbike and with one bound make his Great Escape.