The handling of criminal investigations involving Peter Murrell and Alex Salmond has damaged public confidence in Scotland’s prosecution system, legal experts have told MPs.
The concerns emerged as the Scottish Affairs Committee began hearing evidence for one of two Westminster inquiries examining the consequences of the former SNP chief executive’s £400,000 embezzlement case.
Witnesses argued that the Lord Advocate’s responsibilities should be separated. The office currently combines leadership of Scotland’s independent prosecution service with the role of the Scottish Government’s chief legal adviser.
The debate follows criticism of former Lord Advocate Dorothy Bain’s decision to brief First Minister John Swinney about details of the case against Murrell before that information was made public.
Dr Andrew Tickell, head of the department of economics and law at Glasgow Caledonian University, was asked about the effect of Operation Branchform and the criminal proceedings involving the late former First Minister Alex Salmond on trust in Scotland’s public prosecution system.
He told the committee: ‘I do think that the underlying tension has existed since devolution. There are clearly tensions between these two roles, but we have not previously seen a case that has brought them into such sharp focus.
‘Certainly, I think these events have created, rightly or wrongly, a perception of confusion about what a public prosecutor is doing while sitting in the Cabinet of the Scottish Government.’
Dorothy Bain, right, was Lord Advocate at the time of the investigations into Murrell and Salmond, and was succeeded by Ruth Charteris, left
Questions have been raised about when the First Minister was given information from the Murrell case and when it was released to the public
Dr Tickell said it was ‘undoubtedly true’ that both cases had generated controversy.
Labour MP Kirsteen Sullivan asked whether having the Lord Advocate sit in Cabinet had weakened public trust. Dr Tickell replied: ‘Yes. These are high-profile politicians who have been subject to criminal proceedings, and that inevitably raises questions.
‘Some people believe they are guilty, others believe they are innocent, while some think different individuals should have faced prosecution. Both investigations have prompted those debates.
‘The Crown Office’s response is that people from every political party have faced prosecution. However, because Scotland is a smaller jurisdiction, I think it may be more vulnerable to perceptions of bias.
‘The Crown Office has taken various steps to limit that risk, including what it considers to be a clear process for insulating prosecutorial decisions from the law officers. One of the central questions for this inquiry is whether those safeguards are sufficient to address concerns about public perception.’
Committee chair Patricia Ferguson later clarified that no politician had been prosecuted as part of Operation Branchform.
Labour MP Lillian Jones pointed out that Ms Bain told Mr Swinney in March 2025 that prosecutors alleged Mr Murrell had embezzled £460,000. The information did not become public until 11 months later.
She asked whether the details should have been disclosed earlier, arguing that this might have prevented suggestions that the First Minister had gained a political advantage from receiving the information privately.
Dr Tickell said: ‘It would certainly have been more difficult to make that argument if everyone had learned the information at the same time.
‘Should ministers receive this kind of information at the same time as the public? That goes to the fundamental question. If that approach had been followed, it would certainly have removed the controversy now being examined by this committee.’
Dr Tickell repeatedly backed separating the Lord Advocate’s duties and warned that the current arrangement could create a perception of bias.
Tory MP Douglas Lumsden said the ‘ordinary man on the street’ would not consider it appropriate for the Lord Advocate to sit in Cabinet. He added that people could believe information was being passed to other members of the Scottish Government.
Dr Tickell responded: ‘Yes, I think that would be an entirely understandable perception for people to have.’
Speaking about the Murrell investigation, he added: ‘There has clearly been controversy over whether Dorothy Bain was right to share those factual updates with the First Minister on two occasions.’
Malcolm McMillan, a former chief executive of the Scottish Law Commission who previously advised the Scottish Government on the Lord Advocate’s position, said public perception had to be a central consideration.
‘It seemed to me that one issue of critical importance is the question this committee is examining: perception. What do members of the public think?’ he said.
‘Looking ahead, I would like to see a serious discussion about public perceptions and the effect these matters have on confidence in the legal system, because public confidence is absolutely essential.’
