PROSECUTORS have rebuffed a request from the Holyrood inquiry into the Alex Salmond affair for material related to the former first minister’s criminal trial.

The Crown Office questioned whether there was a legal basis for releasing material to parliament which had been disclosed in confidence to Mr Salmond’s defence team.

It also claimed there was a "significant risk" that disclosure could undermine public confidence in police and prosecutors and hurt the fight on crime. 

However in a new letter to the inquiry, High Court Procurator Fiscal Kenny Donnelly did leave the door ajar to possible disclosure of material after laborious checks.

But he said the inquiry would need to specify what information it wanted and why so that crown counsel could decide whether release was in the “public interest”.

The response is a setback for the inquiry, but Mr Salmond, who is forbidden from releasing the material himself, could help MSPs identify what to ask for.

The added delay is likely to add to time pressures on the inquiry, which was supposed to finish its hearings this year, but is now expected to run into January.

The inquiry is investigating the Scottish Government’s botched probe into sexual misconduct claims levelled against Mr Salmond by two female civil servants in 2018.

Mr Salmond had the exercise set aside in a judicial review after showing it was “tainted by apparent bias”, a Government flaw that left taxpayers with a £512,000 bill for his costs.

Around a fortnight after he won his civil action against the Government, Mr Salmond was charged with sexual assault, leading to a trial in March this year at which he was acquitted on all counts.

During preliminary hearings, it emerged Mr Salmond’s defence had obtained phone records from SNP and government figures and wanted to use some at the trial. 

However the judge in the case, Lady Dorrian, refused on legal grounds.

Mr Salmond and his supporters believe the material he was unable to use at trial pointed to a high-level plot to destroy him and stop him making a political comeback.

Mr Salmond has told the Holyrood inquiry he wants to give it some of this material, but has been threatened with prosecution by the Crown Office, as it is an offence for an accused or their lawyers to disclose defence material obtained in confidence for another purpose.

Last month, a Government official, Barbara Allison, was able to share deleted text messages with the inquiry which the Crown Office had obtained from her phone for the trial after she asked it for copies.

The precedent prompted the inquiry to ask the Crown for any other material it held from the trial which was directly relevant to Mr Salmond’s civil case.

In a letter to the Lord Advocate, James Wolffe QC, inquiry convener Linda Fabiani said Ms Allison’s case "demonstrates that there may be material held by the Crown Office and Procurator Fiscal Service which is relevant to the Committee’s remit".

She stressed the inquiry did not want material on the Crown’s decision to prosecute, the "merits" of the allegations or the conduct of the trial.

But she did want Crown material within the inquiry’s remit, including "communications between officials related to the conduct of the judicial review and the Scottish Government’s decision to concede" and information about the Government's misconduct probe. 

Replying on the Lord Advocate’s behalf as he had not been involved in the trial, Mr Donnelly said the material held by the Crown Office had been obtained for the “sole purpose” of the “criminal investigation and prosecution of Alex Salmond”.

It said that if the Crown Office released it for another use there “a significant risk that this would undermine public confidence” in both the police and Crown and discourage the public from helping investigate and prosecute crime. 

He said a court order might allow disclosure under the Criminal Justice and Licensing (Scotland) Act 2010, bu the inquiry had not identified any legal basis for such a disclosure.

Although Section 23 of the Scotland Act gives parliament and its committees the power to demand documents and witnesses, Mr Donnelly said this only applied to Crown Office criminal investigation material if the Lord Advocate agreed disclosure would be in the public interest.

The Crown Office “cannot simply produce any document on receipt of a section 23 requirement from the Committee”, he said. 

“Instead Crown Counsel, on behalf of the Lord Advocate, would need to consider whether producing the document sought would be contrary to the public interest.

“In making such an assessment Crown Counsel would 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 having regard to the specific nature of the material sought, and the public interest in maintaining public confidence and cooperation in providing the police and prosecutors with information necessary for the effective investigation and prosecution of crime. 

“This is not an exhaustive list of the factors which would be taken into account as each document would need to be considered on its own merits. 

“In the circumstances, should the Committee decide to make a requirement under section 23, it would be helpful if that requirement could specify what document or documents the Committee sought and, if possible, an outline of the anticipated relevance of the document to the work of the Committee. 

“This would allow COPFS [Crown Office and Procurator Fiscal Service] to ascertain firstly whether it holds the document or documents sought and thereafter to make an informed decision on the public interest test required by the Act.”

Mr Donnelly also said there was no legal basis for the Crown Office granting Mr Salmond permission to release his copy of the material.

He said: “The confidentiality of information which has been disclosed to an accused person or his solicitors in criminal proceedings is governed by section 162 of the Criminal Justice and Licensing (Scotland) Act 2010.

“Section 163 of the said Act states that any person who knowingly uses or discloses information in contravention of section 162 commits an offence. 

“There is no legal basis in the 2010 Act or otherwise in law which would allow the Lord Advocate or COPFS to consent to Mr Salmond departing from his obligations under section 162 of the 2010 Act.”