by Nicola Sturgeon is facing a criminal inquiry into the deletion of WhatsApp messages during the pandemic after bereaved families instructed lawyers to prepare a police complaint.
Aamer Anwar, lead solicitor for the Scottish Covid Bereaved group, said he had been instructed to make a complaint to Police Scotland.
He said he would also ask the Information Commissioner’s Office to investigate “any possible breaches of law” after the UK’s Covid inquiry heard on Friday that “no messages whatsoever” had been given handed over by Ms Sturgeon.
Mr Anwar told the Sunday Mail that there were “serious consequences for those in power who choose to delete information with the intention of preventing its disclosure to public inquiry”.
Three relatives who set up a campaign group after their mothers died in 2020 at Almond Court care home in Glasgow said they were also considering a police complaint.
The UK Government wrote to all devolved governments in June 2021, February 2022 and October 2022 asking that potentially relevant material be retained and not destroyed.
Under the Inquiries Act 2005, it is a criminal offense to deliberately suppress, conceal, alter or destroy a “material” document. Offenders are fined heavily or even jailed.
‘Very concerned’
WhatsApp messages may also need to be retained to comply with Freedom of Information laws. David Hamilton, the Scottish Information Commissioner, said on Saturday: “Some of the material presented at the inquiry is deeply concerning and will be given further consideration by my office.”
After months of obfuscation from Mr Sturgeon, Jamie Dawson, KC, counsel for the inquiry, confirmed on Friday that “no messages whatsoever” or notebooks had been handed over by the former first minister.
John Swinney, who was deputy prime minister during the pandemic, deleted his messages using an “auto-delete” function.
It also emerged that Professor Jason Leitch, Scotland’s national clinical director, told his colleagues that deleting WhatsApp was “a bedtime ritual” – less than 24 hours after the UK inquiry was revealed.
But Ms Sturgeon gave an unequivocal promise during a Covid press conference in August 2021 that her WhatsApps would be handed over to a future public inquiry.
The revelation that they were destroyed caused an uproar on Friday, at the end of the first week of the United Kingdom’s public inquiry sitting in Edinburgh to take evidence about the Scottish Government’s handling of the pandemic.
Chaired by Lady Hallett, it is scheduled to hear evidence this week from Professor Leitch, Liz Lloyd, Ms Sturgeon’s former chief of staff, and First Minister Humza Yousaf. Ms Sturgeon and Mr Swinney will give evidence next week.
Mr Anwar said it was now “a matter of public record” that Ms Sturgeon, Mr Swinney and Professor Leitch had “willfully” deleted their messages.
He said: “The deletion of WhatsApps can only be seen as a premeditated cynical decision and of course Ms Sturgeon and others must answer for their motivation to delete messages.”
He added: “The trust my clients had in a transparent and accountable Scottish Government has been shattered. We are now instructed to prepare a criminal complaint to Police Scotland and ask the Information Commissioner’s Office to investigate any possible breaches of the law.”
Discomfort of loved ones
Jackie Marlow, George Hillhouse and Tracy MacMillan from the Almond Court relatives group told the Scottish Mail on Sunday: “We are disgusted at officers deleting messages during the pandemic, which shows they have something to hide.
“With what we now know, that it may have been criminal to clear this correspondence when they knew there was going to be an inquiry, we are considering reporting this to the police.”
In a lengthy statement published on social media on Saturday, Miss Sturgeon admitted that “her messages were not saved on my own device”.
She said she was able to “obtain copies” of some “between me and those with whom I communicated more regularly through informal means”. The inquiry has received messages from Ms Sturgeon which are taken from other people’s mobile devices.
The former prime minister also said she conducted her response to Covid “through formal processes”, was not a member of a WhatsApp group and only used informal messaging systems to communicate with a “limited” number of people.
However, evidence shown to the inquiry on Friday showed that she used WhatsApp for conversations with Mr Lloyd and Mr Yousaf, who was health secretary before he became first minister.
A schedule of her means of communication also said she would “exchange information or comments with colleagues via text or WhatsApp”.
However, he said, “the messages were not retained, they were deleted during normal inbox cleaning or phone switching.” They said she “couldn’t get messages” and had “nothing to give back”.
Ms Sturgeon insisted she acted in accordance with “Scottish Government policy”, which gave ministers discretion to decide what to keep and what to delete.
A spokesman for Ms Sturgeon and Mr Swinney referred to their previously issued statements and said they would not comment further.
His spokesman said on Friday: “Mr Swinney is committed to full transparency. He has fully engaged in the Covid inquiry and will continue to do so. All messages were handled in accordance with Scottish Government policies.”
Police Scotland said they were not aware of any complaints being made.
