Nicola Sturgeon faces criminal investigation after deleting WhatsApp messages amid the pandemic after bereaved families instructed lawyers to complain to police.
Aamer Anwar, lead solicitor of the Scottish Covid Bereaved group, said he had been instructed to lodge a complaint with Police Scotland.
He also said he would ask the Information Commissioner’s Office to investigate “any possible breaches of the law” after the UK Covid Inquiry heard on Friday that “no message had been conveyed” by Ms Sturgeon.
Mr Anwar told the Sunday Mail there would be “serious consequences for those in power who choose to delete information to prevent it being disclosed to public inquiry”.
Three relatives, who formed a campaign group after their mother died at Almond Court care home in Glasgow in 2020, said they were also considering making a complaint to the police.
The UK Government wrote to all devolved governments in June 2021, February 2022 and October 2022, requesting that potentially relevant materials be retained and not destroyed.
Under the Investigations Act 2005, it is a criminal offense for someone to deliberately suppress, conceal, alter or destroy a “relevant” document. Offenders will face huge fines and even jail time.
‘Deeply worrying’
WhatsApp messages may also need to be retained to comply with Freedom of Information laws. Scottish Information Commissioner David Hamilton said on Saturday: “Some of the material presented at the inquiry is extremely worrying and will be considered further by my office.”
After months of concealment by Ms Sturgeon, inquiry barrister KC Jamie Dawson confirmed on Friday that “no messages” or notebooks had been handed over by the former prime minister.
John Swinney, who was deputy first minister during the pandemic, deleted his messages using the “auto-delete” function.
It was also revealed that Scotland’s national clinical director, Prof Jason Leitch, told colleagues 24 hours after the investigation in England was announced that “deleting WhatsApp is a bedtime ritual”.
But Ms Sturgeon made a firm promise at a Covid press conference in August 2021 that her WhatsApps would be handed over to a future public inquiry.
The deleted statement caused uproar on Friday at the end of the first week of the UK public inquiry, which is meeting in Edinburgh to gather evidence about the Scottish Government’s handling of the pandemic.
The meeting, which will be chaired by Lady Hallett, is planned to hear the statements of Prof Leitch, Liz Lloyd, Ms Sturgeon’s former private secretary and First Minister Humza Yousaf this week. 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 “deliberately” deleted their messages.
He said: “Deleting WhatsApps can only be seen as a cynical, premeditated decision and of course Ms Sturgeon and others should respond to their motivations for deleting messages.”
He added: “My clients’ confidence that the Scottish Government is transparent and accountable has been shattered. We are now instructed to lodge a complaint with Police Scotland and ask the Information Commissioner’s Office to investigate possible breaches of the law.”
Unrest of relatives
Jackie Marlow, George Hillhouse and Tracy MacMillan, from Almond Court’s kin group, told the Scottish Mail on Sunday: “We are disgusted that authorities are deleting messages that show they have something to hide during the pandemic.
“Knowing what we know now, we are considering reporting this to the police as it could be criminal to clear this correspondence when they know there will be an investigation.”
In a lengthy statement published on social media on Saturday, Ms Sturgeon admitted her messages were “not stored on my own device”.
He said he was able to obtain “copies” of some of the “people with whom I most frequently communicated informally.” As part of the investigation, messages from Ms Sturgeon on other people’s mobile devices were obtained.
The former prime minister also said he had carried out the Covid response through “formal processes”, was not a member of a WhatsApp group and had only used unofficial messaging systems to communicate with a “limited” number of people.
But evidence shown at the inquest on Friday showed he used WhatsApp to meet with Ms Lloyd and Mr Yousaf, who was health minister before he became first minister.
A schedule of his communication methods also stated that he would “exchange information or opinions with colleagues via message or WhatsApp.”
But he said “messages are not stored but are routinely deleted when inboxes are collected or phones are switched.” He said he “didn’t get the messages” and had “nothing to give back.”
Ms Sturgeon argued she was acting in line with “Scottish Government policy”, which gives ministers discretion to decide what should be kept and what should be deleted.
A spokesman for Ms Sturgeon and Mr Swinney said they would not comment further, citing statements they had previously issued.
His spokesman said on Friday: “Mr Swinney is committed to full transparency. He has been fully involved in the Covid investigation and will continue to do so. “All messages were handled in accordance with Scottish Government policies.”
Police Scotland said it was not aware of any complaints made.