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18:12
I remind members that legal proceedings are active, and that the sub judice rule applies. I will allow reference to the case for the purpose of asking and responding to questions on the handling of information. However, there should be no discussion of the specifics of the case.
Peter Murrell Charges (Information Sharing)
To ask the Scottish Government for what reason the March 2025 memorandum relating to the Peter Murrell case was not referenced by the Lord Advocate during her appearance last week when answering an urgent question from Michael Marra MSP regarding her briefing of the First Minister.
Last week I came to the chamber and answered the urgent question with care, based on the information and documentation that were available to me at that time. I was clear in my answers that there were other examples of information being provided in similar circumstances but that I could not give details without understanding the impact on proceedings.
I had not, in the time available before answering the urgent question, seen the March 2025 document. I had not seen the document since it was sent, nor any of the other examples, nor was I given advice on the impact on proceedings if information were released. I therefore undertook to consider the point in more detail and to provide examples.
It would have been quite wrong for me to answer such a sensitive issue in a live criminal case with anything less than the fullest understanding of the consequences of the issue. Yesterday I was able to provide members with a wide range of examples to demonstrate the long-standing practice of prosecutors properly advising Governments of casework and prosecution decisions. I have now provided Parliament with the fullest information available.
This must pass the sniff test. Either what we are dealing with is a serious error of professional judgment, or people will be thinking that it is something more serious. Last week, the Lord Advocate was asked about the nature and extent of her communications with the First Minister. She justified the January memorandum on the basis that proceedings were live and that he required to be advised so as not to prejudice them by public comment. In fact, she repeated three times the following statement:
“The communication to the First Minister was provided after the indictment was served, at a point at which there is no limitation on its terms being made public”.
However, now, we know that there was also a prior memorandum, in March 2025, which covered the alleged offence and its value. I have a higher estimation of the Lord Advocate than to believe that she had not referenced her past communications with the First Minister on the case before coming to the chamber last week. Why was that communication not disclosed then, and does she accept that her answers last week are at best—and have been shown to be—incomplete and therefore misleading to Parliament?
I am constrained in what I can properly say about live proceedings. Where Parliament seeks wider detail, I will provide what I properly can after considering my responsibility and the appropriate legal advice from my officials. I will not say anything that risks prejudicing proceedings or disclosing material that cannot be put into the public domain. I have now published all available examples of minutes to the First Minister.
As a person who has dedicated her professional life to upholding the rule of law, I understand fully the need for Parliament to be properly and accurately informed on matters on which it requests information. I answered the questions that were put to me and told Parliament that further examples would be provided once the required checks had been undertaken by my officials.
Three times, the Lord Advocate said:
“The communication to the First Minister was provided after the indictment was served, at a point at which there is no limitation on its terms being made public”.—[Official Report, 18 February 2026; c 78.]
Now, we have the same information in a memorandum from the Lord Advocate to the First Minister, dated March 2025. The fact is that the First Minister was then in possession of information that was not in the public domain. There was no reason for the First Minister to be given that information regarding a politically sensitive court case—one in which the accused was appointed as the Scottish National Party chief executive, while the First Minister was the leader of the SNP the first time around.
Journalists were asking direct questions and were denied those details. The public did not know, yet the First Minister knew the nature of the charges and the scale of the alleged sum from March 2025.
I remind the Lord Advocate of the statement that she made last week—three times—about why she shared that information in January. Now, we know that it was shared in March 2025. He knew the nature of the charges and the scale of the allegations in March 2025. That, by definition, is an informational advantage. If that information was shared with party special advisers—as it was—does that not risk becoming a political advantage? What was genuinely new in January and what assessment has been made of the implications of the prior knowledge, from March, for any potential role that John Swinney may have as a witness and for public confidence in the neutrality of the prosecution service?
At a point at which an indictment is served or a petition warrant is answered, there is indeed no limitation on the information contained in either document being made public. That recognises the possibility of disclosure once it has left the control of the prosecutor.
The position that an indictment is not public knowledge until it is heard in open court is entirely correct; formal public status arises through the court process. The fact that the information became knowledge before the case was called in court vindicated the practice of notifying the First Minister. I understand why people may feel uncomfortable at the First Minister having information that others do not. In a sensitive context, that feeling might be heightened. However, the First Minister gets to know some things that the public do not get to know because he has responsibilities that the public do not.
I am here today as Lord Advocate. I discharge my duties in that office independently of any other person and independently of any political interference. As I have explained, the Lord Advocate of the day may provide the First Minister of the day—or, indeed, the Prime Minister or another minister—with appropriate information on casework or investigations. That is done irrespective of the political party of the recipient of the information. It is done in the proper administration of the legal system. The Lord Advocate does not brief political parties. The Lord Advocate advises constitutional office-holders of information that they require to be aware of.
It is absolutely clear from the information that has been provided by the Lord Advocate that this practice developed under the Scottish National Party Government. The Lockerbie bombing and the Glasgow terror attack are completely different from—and not comparable to—the cases since 2011 that have been presented in her information. There was a clear change of approach and culture at that point.
However, as has already been mentioned, three times last week, the Lord Advocate said in very specific terms that she was able to inform the First Minister about the details of the case because,
“From the point at which an indictment is served, there is no limitation on its terms being made public.”—[Official Report, 18 February 2026; c 77.]
Those are the Lord Advocate’s words. We now know that the Lord Advocate provided the First Minister with that information in March 2025.
So, Lord Advocate, is a new justification being provided today that is different from the one that was provided last week? It certainly seems that, three times last week, that justification was made and Parliament was misled.
Always speak through the chair.
I have answered that question. [Interruption.]
Let us hear the Lord Advocate.
I was clear in my answers that there were other examples of information having been provided in similar circumstances but that I could not give details without understanding the impact on proceedings. I had not, in the time available before answering the question, seen the March 2025 document. I had not seen the document since it was sent, nor any of the other examples, nor had I been given advice on the impact on proceedings if information were released. It was essential, in order to protect the integrity of live criminal proceedings, that I took care and was measured in my responses. I undertook to consider the point in more detail and to provide examples, and I did that.
It would have been quite wrong for me to answer such a sensitive question on a live case with anything less than the fullest understanding of the consequences of the issue.
I do not believe that the Lord Advocate is corrupt, but I fear that, in her dealings on the matter, she has been unwise in the way that she has acted. Twice, Stephen Kerr has put a question to her, and Michael Marra has put the same question to her, but she has not responded to that question. She has not responded to the question about whether, given that she told the chamber last week that the justification for sending a minute to the First Minister was that it was after the service of the indictment, that applied when she sent a memo in March last year. Did that apply then—yes or no?
I have answered the question. [Interruption.]
All I ask is for common decency and for me—[Interruption.]
Thank you.
—to be given the opportunity to answer a very important question. All I ask is for common decency and the ability to answer a question that I have been asked to respond to. I am seeking to do that.
The question relates to why I did not mention the March 2025 document, and I have said why I did not. I said that, in the time before answering the question, I had not seen the March 2025 document. I had not seen the document since it was sent in March 2025, nor any of the other examples, nor—critically—had I been given advice on the impact on proceedings if information were released. I therefore undertook to consider the point in more detail, to provide examples and to respond in full and in writing, and I have done that.
Any responsible individual would understand that it would have been quite wrong for the serving law officer of the day, in a live case and in relation to such a sensitive issue, to respond with anything less than the fullest understanding of the consequences of the issue. Therefore, yesterday, members were given a wide range of examples, including the March 2025 document, and I have now provided the Parliament with the fullest information available.
I have absolute confidence in the Lord Advocate, as I think that the overwhelming majority of members do, and I have had the pleasure of knowing her for many years. However, I am still confused about the March 2025 document.
The Lord Advocate said that she was not aware of it, but was she aware of it before she came to the chamber last week? In hindsight, does she think that she should have mentioned that document in her statement last week, or was she completely unaware of the document that she sent in March 2025, having forgotten about it?
I think that we need some clarification of what her memory was of that document. In hindsight, does she think that she should have mentioned that document in her statement last week?
I think that I have explained that I had not, in the two hours that I had available to me before answering the urgent question, seen the March 2025 document. I had not seen the document since it was sent in March 2025. When I came into the chamber, I was not aware of the terms of the document. That is all that I can say.
I had not been given advice on the impact on proceedings if information in relation to that document were released. However, I undertook to look at the matter and to understand what had been done previously, and, in an open and transparent way, I provided the minute to Parliament.
There is a distinction to be made between a petition and an indictment—that is quite correct. However, at the point at which an indictment is served, there is no limitation on the information that is contained in either document being made public. Indeed, when a petition warrant is shared, there is no limitation on the information that is contained in it being made public.
It was important, in advising the First Minister, to recognise the possibility of disclosure of those documents once they had been released from the control of the prosecutor. The position that an indictment is not public knowledge until it is heard in open court is entirely correct. The formal public status arises through the court process, but that is very different from the situation that applies once the petition warrant or the indictment is in the hands of the accused or his advisers.
In this case, I was vindicated in the practice of notifying the Government, because information came into the public domain before the case was called in court. Therefore, the practice demonstrates an understanding of the risks that are involved in the stages at which different parts of the criminal process come into effect. The risk involves the public knowledge of the document, and the information becoming readily available. There is a need to protect ministers in relation to their knowledge of the document and the risk of talking about a case where there are important safeguards to protect the integrity of criminal proceedings.
I have the highest regard for the Lord Advocate, but the question that has been asked by some of my colleagues bears repeating. The question is not whether the Lord Advocate had seen the March 2025 minute in her name; it is to do with understanding why she sent the March 2025 minute, given that the indictment had not been completed, which was the justification that was given last week. It would be helpful if we could understand why the minute was sent in March 2025.
A petition warrant is the initiating process by which an accused person comes to court. A petition warrant sets down, at that stage, the prosecutor’s understanding of the charge that may eventually be brought before the court on an indictment. The petition is the initiating procedure and the indictment is the formal document that brings the accused person to court for a preliminary hearing and, ultimately, a trial, if they do not plead guilty.
The petition warrant contains information that could be brought into the public domain by virtue of the actions of either the accused or someone who is acting on their behalf, or through some other process—for example, the details of the petition warrant might be leaked to a newspaper.
In comparison and in contrast, the indictment is the formal document that is lodged with the court, at which stage a preliminary hearing is ordered by the independent court. The terms of the indictment are not made public by the Crown but they, too, can come into the public domain by virtue of the same process that applies to the petition warrant, which is in the hands of the accused or his adviser and is within the Scottish Courts and Tribunals Service; in some way, the document might be leaked.
Both stages in the process raise risks of the disclosure of the content of charges that the Crown would not otherwise make public. Such disclosure is a risk to the fair administration of justice, which needs to be protected. It is therefore critical that, when ministers such as the First Minister, in the job that they do, might be asked about a sensitive and difficult case, they are reminded that the ultimately important points are the protection of the rule of law; the protection of the accused person; the ensuring of a fair trial process; and the need not to make unlawful, illegitimate or ill-informed comment to whoever is asking questions about a live criminal case.
Can I just check something? I am a little bit unclear from some of those answers. Had the Lord Advocate seen the March 2025 document before it was sent? I seek a simple yes or no. Had she seen it? If so, had she simply forgotten about the document when she appeared in the Parliament last week?
I believe that I have answered that question. Of course I saw the March 2025 document when it was sent from my office. However, I did not see it before I entered the chamber to answer questions, and I did not know of it at the point at which I was asked questions.
The point that I have already answered is that it would have been improper for me to make a whimsical or ill-informed reference to a document that I had not seen before entering the chamber, as Lord Advocate, to be asked in an unprecedented way about matters in relation to a live case. It is unprecedented that a law officer be asked to comment in this way on a live case.
In the March 2025 memo, the Lord Advocate made reference to the amount involved in the case as being more than £460,000. For what reason would the First Minister need to know that fact?
I would be grateful if members avoided specific references.
I have been asked questions before in the chamber precisely on why the amount was mentioned in the indictment—which is for the same reason that it was mentioned in the March 2025 memo.
That concludes the urgent question.
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