The criminal cases involving Alex Salmond and Peter Murrell raise major questions about whether Scotland’s prosecution service is acting independently of the SNP Government, a former Nationalist MP has claimed.

In the explosive first evidence to a Westminster inquiry, Joanna Cherry says the role of the Lord Advocate must be broken up because of concerns there is a ‘conflict of interest’ or ‘bias’ in the decisions involving high-profile cases with a political aspect.

The King's Counsel also says that there is ‘too close a relationship’ between civil servants and prosecutors.

It is the first published evidence to the Scottish Affairs Committee inquiry into the role of the Lord Advocate, which is currently both head of the independent prosecution service and also the Scottish Government’s top legal adviser.

The inquiry is one of two probes launched by the powerful Westminster select committee into the fallout from Murrell’s embezzlement of more than £400,000 from the SNP, which saw him jailed for more than five years.

Ms Cherry, who was MP for Edinburgh South West, said: ‘Until recent years I believed that the Scottish state prosecution system operated independently of Parliament and Government and that it was widely seen to do so.

‘However, events surrounding the prosecutions of Alex Salmond and Peter Murrell have led me to question whether everyone within the Crown Office and Procurator Fiscal Service is acting independently of government.

‘For the record I do not question the motives of recent law officers, but I believe they may have been badly advised by their officials in relation to actions taken surrounding both prosecutions.

‘In my opinion legitimate public concern about these matters could be addressed by reforming the role of Lord Advocate. 

'The reality is that because the role of legal adviser to the government and chief prosecutor are held by the one person, there is always the risk of a perception of a conflict of interest or worse, bias, in prosecutorial decisions in high profile cases with a political aspect.’

She also raised concerns about the impact of the ‘revolving door between Crown Office and the Scottish Government for civil servants’.

Ms Cherry said: ‘This was highlighted during the Alex Salmond affair when it transpired that the Permanent Secretary of the Scottish civil service passed the Scottish Government’s report on allegations against Mr Salmond to the Crown Agent, the most senior civil servant in the Crown Office, despite the wishes of the complainers not to involve the police.

‘There is a risk that there is too close a relationship between government civil servants and prosecutorial staff.’

In her submission, Ms Cherry raises concerns about potential conflicts in the role of Lord Advocate in several high-profile cases, including the malicious prosecutions over the takeover of Rangers Football Club as well as the Operation Branchform probe into the SNP’s funding and finances and the case involving Mr Salmond, who was cleared of 13 charges at Edinburgh’s High Court in March 2020 following harassment complaints.

Ms Cherry said there is a ‘question mark which hangs over the Lord Advocate’s independence in the direction of public prosecutions because she is also a minister of the serving government of the day’.

Referring to the First Minister John Swinney being tipped off by the former Lord Advocate Dorothy Bain with details of the Murrell case, Ms Cherry said: ‘Whilst there is a convention that the Lord Advocate recuses herself in politically sensitive cases, the fact that, in the Murrell case at least, she was being advised by officials to send the first minister updates which contained information not in the public domain, suggests that the rules around the nature and extent of the recusal are not clear.’

Tory MP Harriet Cross, the Shadow Scottish Secretary, said: ‘It’s shocking that even SNP insiders believe the government may have influenced procedure around the politically sensitive prosecutions of Alex Salmond and Peter Murrell.

‘Joanna Cherry is not only a former SNP MP, but a respected constitutional lawyer – the fact that she no longer has faith that all of Scotland’s justice system is operating independently is absolutely damning.

‘It’s clear that the dual role of the Lord Advocate is fundamentally flawed. The independence of the courts is a central pillar of our society – anything which threatens this principle must be reformed.

‘If John Swinney and the SNP want to restore the public’s faith in our courts, they will back our calls to split the role. Anything less will only raise more questions about their conduct throughout these cases.’

Last month, John Swinney announced that Lord Boyd of Duncansby will head up an independent review to consider whether the role of Lord Advocate and look at the advantages and disadvantages of it being both the head of criminal prosecutions and principal legal adviser to the Scottish Government.

A spokesman for the Crown Office and Procurator Fiscal Service said: ‘We note the UK Parliament’s Scottish Affairs Committee’s inquiry, have provided a submission and will consider further requests for evidence.’