Why Scotland's Crown Office has questions to answer over Peter Murrell scandal – Brian Wilson

Those of us with slightly longer memories recall Nicola Sturgeon’s rottweiler role in these pursuits back in her days as Alex Salmond’s apprentice. She can hardly complain if what goes around tends to come around.

Then there was Henry McLeish’s “muddle not a fiddle”, which was an entirely plausible defence. When the sum involved reached £36,000, John Swinney solemnly proclaimed: “People around Scotland will be staggered by the amount of money that is involved.”

Well, if they were staggered by £36K, “people around Scotland” must be in a state of communal collapse on witnessing Honest John’s performance over the past week, exuding sanctimony and denying the need for any inquiry into how £400K went astray.

READ MORE: Westminster committee to discuss Peter Murrell embezzlement inquiry next week

An indisputable fact

However, this is not Holyrood’s biggest financial scandal. The half billion wasted on trying to build two ferries might be a contestant and you get a lot of camper vans for half a billion. The scandalous under-valuing of Scotland’s offshore wind assets will prove to be even more reckless. And so on.

Since the last thing the SNP would allow is a proper inquiry into outrages where there is a much clearer case for public accountability, they are unlikely to allow one into an unsavoury episode in which they disingenuously insist the only loser has been themselves.

So the demand for an inquiry has to be more focused and have a clear public interest objective. That is why I suggest this is the ideal point at which to establish a parliamentary inquiry into the workings of the Crown Office and role of Lord Advocate, which would doubtless draw upon the Murrell case for guidance.

READ MORE: John Swinney declines to apologise for SNP spending 'ring-fenced' indyref fund

The indisputable fact is that decisions taken in the Crown Office have repeatedly influenced the course of a case which, from the outset, had political ramifications. That is in the nature of things. It is the Crown Office which decides whom and whether to prosecute. It is the Crown Office which negotiates with representatives of the accused.

If one steps back from detail and personalities, the biggest public interest consequence of how the Murrell case evolved over five years is that the denouement did not arrive until two weeks after Scotland went to the Holyrood polls, a date that has been long fixed in the diary.

The immediate cause of this was the Crown Office’s decision not to oppose a request from Murrell’s lawyers to postpone the court hearing from February until May. From an SNP point of view, regardless of how or why that happened, it was obviously an extremely welcome piece of re-scheduling. Opposition politicians at the time claimed that it “absolutely stinks”. Either way, it provides the best possible example of why the justice system and politics must be seen not to intersect.

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SNP rebuffed judges’ call for change

In Scotland, the credibility of this assurance is made more difficult by the dual role of the Lord Advocate as both head of the prosecution service and also a member of the government. None of this is new or peculiar to the Murrell case.

As far back as 2008, in a submission to the Calman Commission on the future of devolution, Scotland’s judges made a rare collective call for the two roles to be separated. Each attempt since then to follow that advice has been rebuffed by SNP ministers.

Incidentally, since any change in the role of Lord Advocate would require an amendment to the Scotland Act (at Westminster), this might be a useful approach for the Scottish Affairs Committee of MPs to consider if they are looking for ways into a Murrell inquiry. Just trying to be helpful.

The Crown Office carries an aura which generally protects it from political scrutiny. Yet, as Russell Findlay, the Scottish Tory leader who was formerly a courageous crime reporter, wrote earlier this year: “The Crown Office’s actions were a regular cause of misery with cases delayed, fatally botched or questionably watered down by way of secretive plea deals.”

Mr Findlay continued: “The Crown’s day-to-day dysfunctionality seemed entrenched, partly due to its aversion to transparency and any meaningful political scrutiny and accountability.” Here, surely, is the chance to break that spell.

Swinney’s self-proclaimed integrity

The personality of each Lord Advocate influences the extent to which the dual role is called into question. As it happens, and quite apart from the Murrell case – from which she recused herself – the current one, Dorothy Bain, who was appointed by Nicola Sturgeon, has proved far from shy in encroaching upon politically sensitive territory.

Last year, it emerged that she had been briefing John Swinney on how the Murrell case was progressing, including the charges against him, long before these became public. There was nothing ‘routine’ about this, given the unique nature of the case.

Indeed, Mr Swinney might have demonstrated his oft self-proclaimed integrity by telling her: “I want to know nothing about this case because it is far too close to my political role.”

Instead, we are left to accept that, having been appraised of the bombshell that would eventually explode in court, Swinney put it aside in his thoughts and the Scottish Government was not involved in any interactions with the Crown Office thereafter.

It would be extremely interesting to subject that to parliamentary scrutiny. Whatever the outcome on specifics, the general conclusion of an inquiry would surely be that the dual roles of the Lord Advocate benefit the good names of neither Scottish politics nor Scottish justice.