SCOTLAND’S top law officer has accused Labour MSP Anas Sarwar of putting “factual errors into the public domain” and reminded him to “ensure that scrutiny of the acts of independent prosecutors should not be done in a way which undermines the rule of law” after he shared a letter sent to her office with the media.
On Wednesday morning, Sarwar wrote to Lord Advocate Dorothy Bain following reports that she had given the First Minister details of the charges against Peter Murrell before they were available to the public.
In a minute from January 19 later made public by the Crown Office and Procurator Fiscal Service (COPFS), Bain had told John Swinney that the former SNP chief executive was alleged to have embezzled £460,000 from the party and that a trial date was being “fixed for March 2027”.
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Sarwar then sent a letter to Bain, who as Lord Advocate is both the head of the COPFS and also the Scottish Government’s chief legal adviser, which he called a “public declaration”.
Sarwar wrote: “Media reporting has claimed that you briefed the First Minister, John Swinney, in relation to the prosecution involving Peter Murrell and the contents of an indictment, including the amount said to be involved. This was a month before the details of this charge were available in the public domain …
“It appears to many that your act was designed to confer clear political advantage in the run up to an election.”
He went on: “If it is established that your actions gave, or could reasonably be seen as giving, a political advantage to the governing party, then the question of your position is unavoidable.
“Scotland’s top prosecutor cannot be involved in conduct that allows any party to gauge political exposure from a live indictment, or appears to do so, and still expect public confidence to hold.”
In her response, also shared with the media on Wednesday, Bain told Sarwar: “Thank you for your letter today about the High Court prosecution of Peter Murrell.
“You based your comments upon media reports. I would have been happy to properly discuss the matter with you and answer your questions, but the publication of your letter has put a number of factual errors into the public domain, and it is incumbent on me to correct them quickly and publicly in order to protect the rule of law.”
She went on: “I did not brief the First Minister in relation to the prosecution of Mr Murrell or the contents of the indictment. My minute was a factual confirmation of the fact that Mr Murrell had been indicted and the nature of the charge, including the value of the alleged embezzlement.
“From the point at which an indictment is served, there is no limitation on its terms being made public. The timing of my minute to the First Minister – after service of the indictment – reflected this.
“My notification was done to advise Scottish Ministers that an indictment had been served, confirm that the appropriate processes had been followed in relation to law officers not being involved in decision making in the case, and remind them that it would not be appropriate to make any public comment on the matter. This process protects the administration of justice and does not, I believe, confer any political advantage.”
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Bain then added: “I would take this opportunity to remind you, and all politicians in Scotland, to ensure that scrutiny of the acts of independent prosecutors should not be done in a way which undermines the rule of law.
“It is essential that great care is taken in the exercise of the important function of elected members of parliament holding prosecutors to account without weakening public confidence in the independence of Scotland’s prosecution system.”
The position in Bain’s letter reflects the statements which she gave to MSPs on Wednesday afternoon in order to respond to Parliament on the memo sent to Swinney on January 19.
Murrell, who was chief executive of the SNP from 2001 to 2023, is accused of embezzling £460,000 over the course of 12 years and five months, from 2010 to 2023.
He was due to appear in court on February 20, but that was pushed back to May 25 after details of the charges were publicly reported last week. Murrell is yet to enter a plea.
On the Murrell case, a spokesperson for the COPFS said: "Scotland’s prosecutors act independently and in the public interest in all cases. COPFS understand there is significant interest in this matter which is active under the Contempt of Court Act 1981.
"The provisions of this act protect the integrity of proceedings, preserve access to justice for victims and secure the rights of people accused of crime.
"Anyone publishing items about active cases is advised to exercise caution as material must not be commentary or analysis of evidence, witnesses or accused. Contempt of court carries penalties of up to two years in prison and/or an unlimited fine.
"The Lord Advocate and Solicitor General were not involved in decisions on this case."
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