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IMMUNITY LORD: Conflict judge who failed to declare interest in case linked to his son – upholds Lord Advocate immunity from common law claims in £9M Rangers Admin action – which was initially to be heard by the Lord Advocate’s judge wife

Lord Malcolm rules Lord Advocate immune from parts of Rangers admin claim. A SENIOR Court of Session judge who failed to disclose he heard a case on eight occasions involving his own son – has now ruled the Lord Advocate has absolute immunity from being sued in connection with common law claims in relation to a £9million damages claim brought by former administrators for Rangers Football Club.

Lord Malcolm – real name Colin Campbell QC – made the ruling in an opinion published on Thursday in the case of “David John Whitehouse against Phil Gormley QPC & others”

The case – initially heard in the Court of Session in November 2017- was originally set to be decided by Lord Advocate James Wolffe’s own wife – Court of Session judge Lady Sarah Wolffe.

However, Lady Wolffe was switched at the last minute after questions were raised when her marital status and conflict of interest became apparent – reported here: CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

In last week’s lengthy 107 page ruling by the Court of Session Judge & Privy Councillor – Lord Malcolm ruled in 2018 where Lady Wolffe could not in 2017 – and upheld the absolute immunity of Lord Advocate James Wolffe QC – in respect of the common law claims but rejected the Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof.

Lord Malcolm’s summary and decision states: “The pursuer, and separately his former co-administrator of Rangers Football Club, are claiming damages from those said to be responsible for allegedly wrongful detentions, arrests, and prosecutions. The claims are brought at common law and in terms of articles 5 and 8 of ECHR. The Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof is rejected. However his plea of absolute immunity in respect of the common law claims is upheld. It follows that the actions against him shall proceed in respect of only the ECHR claims”

While upholding the Lord Advocate’s immunity, Judge Lord Malcolm allowed Mr Whitehouse’ claim against Police Scotland to go ahead to a proof, stating: “So far as Mr Whitehouse’s claim against the police is concerned, the court is not prepared to uphold his submission that it can be decided on the pleadings that he need not prove malicious conduct on their part. The result is that the pursuer’s claim against the chief constable, and the defences to it, shall proceed to a proof before answer (as was agreed by the respective parties in Mr Clark’s action)”

A proof will now take place at a date to be decided, regarding claims that Whitehouse’s human rights were breached by prosecutors when he was arrested.

In allowing a proof to go ahead, Lord Malcolm also ruled that the hearing should also consider whether PoliceScotland exceeded their powers and acted maliciously in their investigation into Whitehouse.

The hearing will take place alongside another set of proceedings dealing with Clark’s claims.

The £9million damages claim came about after David Whitehouse and his colleague, Paul Clark, who worked for administrators Duff & Phelps, who faced criminal proceedings following the takeover of Rangers by Craig Whyte.

However, criminal charges against both Mr Whitehouse and Mr Clark were later dismissed following a hearing at the High Court in Glasgow in June 2016 – amid a clear lack of evidence for a case to proceed, and widely shared views the charges were motivated more out of headline hunting PR by the Crown Office & Police Scotland.

Both Whitehouse and Clark claimed in the court action that the Lord Advocate’s prosecutors pursued a wrongful prosecution against them and there was no evidential basis for the charges brought against them.

Mr Whitehouse and Mr Clark also claimed that PoliceScotland acted maliciously against them and they should be entitled to damages from the Chief Constable – who was at the time – Phil Gormley.

Both of the former Rangers administrators believe detectives breached their legal powers during the investigation.

Gerry Moynihan QC – acting for Lord Advocate James Wolffe –  told the court that his client, the Lord Advocate enjoyed absolute immunity from being sued in a civil court.

The issues surrounding the Lord Advocate’s immunity were discussed earlier this year during a debate at the Court of Session – after the case had been passed around a number of judges – beginning with the Lord Advocate’s own wife – Lady Sarah Wolffe QC – who was initially scheduled to head the case and decide on it during November 2017.

Legal representatives of Mr Whitehouse claimed their client’s ECHR human rights were breached and that PoliceScotland should pay compensation to Mr Whitehouse

Rangers went into administration in February 2012, shortly after they were bought by Whyte, and Clark and Whitehouse were appointed as administrators.

Six days later Whitehouse contacted the police to raise concerns, particularly about Whyte, said Moynihan. Later that year the Crown Office announced that it had instructed Strathclyde Police to investigate. Lawyers for the two men believe that the crown was “the directing influence” in the probe.

Rangers later went into liquidation before being sold to a consortium led by Charles Green.

In 2014 Mr Whitehouse and Mr Clark were detained by PoliceScotland and held overnight, and the following year – both appeared in court on a second petition – then the case collapsed.

Craig Whyte later stood trial on criminal charges, however, he was acquitted by a jury at the High Court in Glasgow in June 2017.

In the current action, both Mr Whitehouse and Mr Clark say their arrest  and detention was wrongful, that their ECHR rights were infringed, and their professional reputations were damaged as a result of the case.

At a hearing held earlier this year, Whitehouse’s lawyers told Lord Malcolm that they didn’t believe that a hearing had to be held into whether the police breached their powers when investigating their client.

It was claimed that on the evidence made available to the court, Lord Malcolm was able to rule that PoliceScotland should be required to compensate Mr Whitehouse.

Whitehouse’s lawyer Heriot Currie QC told the court that his client’s arrest had affected his ability to make a living.

He added: “For 18 months the pursuer was subject to very serious, we say wholly unfounded allegations with a significant adverse effect on him, his family and his professional career.”

Gerry Moynihan QC, acting for the Lord Advocate, argued that the law stated that the Lord Advocate enjoyed immunity and that Lord Malcolm was bound to follow this.

However, Lord Malcolm refused the motion, concluding he couldn’t issue a ruling ordering PoliceScotland to hand over compensation to Whitehouse.

Lord Malcolm said the matter could only be decided following another hearing in the Court of Session.

Further hearings and a proof will take place at a date yet to be decided.

The circumstances and the parties’ contentions in the action are set out in the pleadings – which also mention the episode of the “Charlotte Fakes” emails, and reference to Craig Whyte – who initially faced charges – which were later dropped by the Lord Advocate.

PURSUERS PLEADINGS from the full Court of Session opinion by Lord Malcolm:

[1] At the outset it is necessary to describe the background to and the circumstances of the present action. The pleadings extend to over 250 pages, therefore what follows should be understood as a summary of what is a detailed and complicated picture. In late 2010 a Scottish businessman, Craig Whyte, expressed interest in acquiring Rangers Football Club.

In March 2011 he engaged David Grier of MCR, a corporate restructuring advisory firm of which the pursuer was a partner (prior to MCR’s acquisition by Duff & Phelps in October 2011), to assist in negotiations with the club’s lenders, Lloyds Banking Group. In May 2011 Craig Whyte, through an acquisition vehicle, Wavetower Limited, entered into an agreement for the purchase of a controlling shareholding in the club and was appointed as a director. The club struggled to meet its liabilities. In February 2012 it entered administration. The pursuer and his colleague were appointed joint administrators. Later that month the pursuer met with senior officers from Strathclyde Police and informed them that preliminary investigations suggested that the acquisition of the club by Wavetower may have involved illegal financial assistance. The administrators initiated proceedings at the Royal Courts of Justice in London seeking payment of sums due to the club held by Collyer Bristow, a firm of solicitors acting for Wavetower. Subsequently the administrators raised proceedings for payment claiming an unlawful means conspiracy, on the basis that Craig

Whyte and Gary Withey (Mr Whyte’s legal advisor and a partner at Collyer Bristow) had made false representations to the previous owners as to the availability of funds to finance the acquisition, and had acquired the controlling shareholding by fraud. The police were notified of these allegations.

[2] On 25 June 2012 the Crown Office issued a press statement in the following terms:

“The Crown Office has today instructed Strathclyde Police to conduct a criminal investigation into the acquisition of Rangers Football Club in May 2011 and the subsequent financial management of the Club. The investigation into alleged criminality follows a preliminary police examination of information passed to them in February this year by the Club administrators. The Procurator Fiscal for the west of Scotland will now work with Strathclyde Police to fully investigate the acquisition and financial management of Rangers Football Club and any related reports of alleged criminality during that process.”

At the hearing it was confirmed that the press release was issued on the instructions of and with the authority of the then Lord Advocate.

[3] The club was marketed for sale by the administrators. In May 2012 a consortium led by Charles Green entered into an agreement with the administrators. It obliged him to pursue a company voluntary arrangement, with funding of £8.5 million, which failing to purchase the business and assets of the club for £5.5 million. In June 2012 the creditors rejected the CVA proposal. Mr Green’s acquisition vehicle, Sevco (Scotland) Limited, acquired the business and assets of the club and paid £5.5 million to the administrators. In October 2012 Jane Stephen and Malcolm Cohen of BDO were appointed joint liquidators, with the pursuer and his colleague vacating office.

[4] During the police inquiry officers recovered materials by executing search warrants at a range of locations, including the premises of banks and professional advisors involved in the transaction. It is averred that the second defender, through his deputes, and the Lord Advocate at all times directed the police investigation. They were made aware of all evidence recovered and approved all lines of inquiry. In August 2013 officers from Police Scotland attended at the London and Manchester premises of Duff & Phelps, the pursuer’s employers, and executed search warrants previously granted by a sheriff at Glasgow Sheriff Court. Many documents were seized, including material over which privilege was claimed, and material which was said to be beyond the scope of the warrant. Duff & Phelps instructed their solicitors to liaise with the police in relation to this matter. It is averred that in February 2014 the Crown assured Duff & Phelps that the police had not reviewed or intromitted with material subject to the privilege claim, however officers had carried out a preliminary sift of all such material. The fact of that sift was not revealed at the time. In November 2014 Duff & Phelps’ solicitor attended a meeting at Crown Office in Edinburgh with a procurator fiscal depute and James Keegan QC, the allocated depute of the Lord Advocate. The solicitor was informed that his clients were to be treated as suspects and would be detained. It is averred that the advocate depute asked him whether that would change his position on privilege. It is stated that it was erroneously believed that the privilege dispute would be resolved by the appearance of the pursuer and his colleague on petition.

[5] At dawn on Friday 14 November 2014 the pursuer was detained at his home in Cheshire by officers from Police Scotland. This was said to be in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The pursuer was informed that the basis for his detention was “fraudulent scheme and attempt to pervert the course of justice”. He was taken to Helen Street Police Office in Glasgow where he was interviewed, arrested and charged. He was held in police custody until Monday 17 November 2014 when he appeared in Glasgow Sheriff Court. Requests for him to be released or liberated on an undertaking were declined, the police citing direction by the Crown. On 17 November he was committed for further examination and admitted to bail. It is averred that there were no reasonable grounds to suspect that the pursuer had committed an offence. In any event the detention was unnecessary.

[6] The pleadings set out lengthy averments and counter-averments in connection with the proposition that there was no reasonable foundation for what occurred. For example, averments are made as to the basis upon which the reporting officer, DCI Robertson, was of the opinion that there was a sufficiency of evidence available to give rise to a reasonable suspicion that Mr Whyte’s allegedly fraudulent transaction could not have been completed without the involvement, knowledge or advice of the pursuer and his colleagues, and that the pursuer had misled the police about his knowledge of and advice as to the financing of the transaction (sometimes referred to as the “Ticketus deal”). It is stated that DCI Robertson suspected that crimes of fraud and attempting to pervert the course of justice had been committed by the pursuer. He provided a briefing to the detaining, interviewing and arresting officers prior to the executive action being taken, which included reference to the matters which informed his suspicion. It is averred on behalf of the chief constable that the totality of material available was sufficient to give rise to a reasonable suspicion such as to justify interviewing the pursuer and others under caution and in detention. It was not appropriate to seek to make arrangements for voluntary attendance at a police station by multiple accused in which the offences suspected included an attempt to pervert the course of justice. It should be understood that the intention was to detain the pursuer, Mr Clark, and others as part of executive action to detain a number of suspects at the same time.

[7] At 7.15 pm on 14 November 2014 the pursuer was informed by the arresting officer that he was charged with a fraudulent scheme and an attempt to pervert the course of justice. The fraudulent scheme arose because of the false pretence which had been proffered, namely that Craig Whyte was a wealthy man who was investing his own capital in the acquisition of the club, when in fact he was using funds advanced by Ticketus. The practical result of the fraudulent pretence was that Mr Whyte was able to gain control of the club, and then force an administration, to the financial benefit of the pursuer whose firm was appointed administrators. Without the false pretence, Sir David Murray, the controlling shareholder of the club, would not have been willing to sell his shares to Mr Whyte. It was suspected that the pursuer had known of the criminal nature of this enterprise and had actively joined in it. It was further suspected that he had attempted to pervert the course of justice in providing statements to police in which he had deliberately omitted key information which he knew to be relevant to their inquiry. The arresting officer was satisfied that there were reasonable grounds for this course of action and sufficient evidence to charge the pursuer on the basis of information provided to her in the interview pack prepared by the reporting officer, the detailed briefing from him, and the interview of the pursuer and his responses.

[8] The decision for the pursuer to remain in custody pending court appearance on the next court day was taken by the custody sergeant in the police station whose function it was to make such decisions in respect of all arrestees at that station at that time. She had regard to the Lord Advocate’s guidelines, the Crown Office decision that he would be appearing on petition, and the nature and gravity of the offences with which the pursuer was charged. It is averred that the police officers acted in good faith. While the pursuer no doubt disagreed and disagrees with the decisions taken, that does not render them unlawful or unreasonable or actionable. Reliance is placed upon the terms of section 22 of the 1995 Act.

[9] These averments are answered in detail by the pursuer in support of the proposition that there was no basis for any suspicion that he had engaged in criminal activity. For example, it is averred that Ticketus were known to be an existing provider of working capital to Rangers. The existing owners of the club had suggested that the purchaser should continue to use Ticketus. A key issue for the club’s board was that there should be sufficient working capital to finance the club’s operations post-acquisition. An email exchange relied upon by the first defender did not suggest knowledge of the actual arrangement entered into between the club (under the control of Whyte/Wavetower) and Ticketus. This gives a flavour of the issues which would be addressed in any evidential hearing. In general it is the pursuer’s position that he had no knowledge of any intention on Mr Whyte’s part to use Ticketus funds in the purchase of the club or to misrepresent the true position as to the funding of the acquisition.

[10] In the course of the hearing it was explained that the critical part of the alleged fraud was not the use of the Ticketus funds, but the misrepresentation as to the financing of the acquisition. The pursuer avers that if Craig Whyte claimed that “Duff & Phelps knew everything”, which is denied, that claim provided no basis for suspicion or arrest of the pursuer as an individual. In any event such a claim was wholly at odds with the available documentary evidence which clearly demonstrated deliberate concealment of information from MCR. When in November 2014 the pursuer appeared on petition in respect of charges of fraud (relating to the acquisition and subsequent management of the club) and attempting to pervert the course of justice, he was served with a summary of evidence by the Crown, which it is said made no reference to any evidence supporting his involvement in fraud. It is claimed that there was insufficient evidence to support the decision to place the pursuer on petition.

[11] In June 2015 the Crown informed the defence that the focus of the inquiry had changed, and that any subsequent indictment was likely to include charges relating to the administration and disposal of the assets of the club. On 12 August 2015 DCI Robertson delivered a letter to the pursuer’s solicitor indicating, amongst other things, that the inquiry concerning the administration period and sale to Mr Green was a live police investigation. On 26 August 2015 the Crown applied to the sheriff at Glasgow for an extension of the time limit set out in section 65 of the 1995 Act.

[12] At dawn on Tuesday 1 September 2015 the pursuer was again detained at his home in Cheshire by officers of Police Scotland. He was conveyed to Helen Street Police Office in Glasgow where he was interviewed, arrested and charged. He was told that he would be held pending a court appearance the following day. It is averred that the Crown directed the police to keep the pursuer in custody. He appeared on petition at Glasgow Sheriff Court on 2 September when he was committed for further examination and admitted to bail. It is stated that at no point were there any reasonable grounds to suspect that the pursuer had committed an offence and that his detention was in any event unnecessary. There was insufficient evidence to justify a charge. Other suspects, specifically Craig Whyte and Charles Green, were permitted to attend police stations by arrangement.

[13] On behalf of the chief constable it is averred that there was an investigation into the acquisition of the club by Charles Green and the possible involvement of Craig Whyte in that transaction. Police inquiries established a reasonable suspicion that the pursuer, along with Mr Clark, Mr Whyte, Mr Green and a Mr Ahmad, had formed a fraudulent scheme or conspired to enable Mr Whyte to acquire the club from the administrators. The pleadings set out the alleged circumstances relied upon, for example it is said that when

DCI Robertson asked the pursuer about his knowledge of Charles Green and any links he had to Craig Whyte, the officer formed the view that the pursuer was evasive. The fee for the exclusivity agreement with Sevco 5088 Limited signed by the administrators was partly funded by Mr Whyte. In April 2013 Mr Whyte was quoted in a newspaper saying, amongst other things, that Mr Green acted as a “frontman” for him in connection with the purchase of the club. It is averred that Mr Whyte had introduced Mr Green to the administrators. These are but examples of the various factors said to have been relied upon at this time. The pursuer was charged with involvement in a fraudulent scheme in terms of which the club had been acquired by Craig Whyte at an undervalue as a result of a false pretence, namely the concealment of the connection between Mr Whyte and Mr Green. Again reference is made to section 22 of the 1995 Act and to the decision of the custody sergeant on duty.

[15] In answer, amongst other things, the pursuer avers that in respect of the offer from Sevco 5088 Limited, there was nothing to suggest any involvement of Craig Whyte. The pursuer provided three witness statements to the police, all in 2012. He was not asked about Charles Green, other than in relation to proof of funds checks carried out by the administrators, nor about any links Green may have had to Whyte. The subject report submitted by DCI Robertson to the Crown in on or about 20 August 2015 made no reference to him having formed the view that the pursuer had been evasive in interview or that he had regarded the pursuer’s responses as suspicious. Again these are but examples of the counter-averments made on behalf of the pursuer, all of which will form the context of any evidential hearing. It is said that the totality of the evidence ingathered by the police prior to the second detention clearly demonstrated that Whyte’s claim to ownership of Sevco 5088 Limited was false. In any event, there was no evidence to suggest that the pursuer was aware of any involvement by Whyte in the Green bid; rather the evidence available to the police suggested the reverse. In any event there was no evidence that the true market value of the club at the point of the sale of the business and assets to Green was greater than had been represented.

[16] On Wednesday 2 September 2015 the pursuer appeared on a petition at Glasgow Sheriff Court containing charges of conspiracy to defraud and a contravention of section 28 of the 2010 Act. The procurator fiscal’s motion for committal was opposed on the basis that the charges did not represent new allegations, but were reformulations of those which had appeared in the November 2014 petition. The procurator fiscal insisted that the charges were distinct and had arisen from a separate police investigation. In the result the sheriff granted the Crown motion, and admitted the pursuer to bail. It is stated that there was insufficient evidence to place the pursuer on petition. On behalf of the second and third defenders it is averred that the service of the second petition was a considered and appropriate response to the further information being uncovered in relation to the acquisition of the club, its management, the conduct of its administration, and the disposal to Charles Green. Its service at this point avoided the risk of having two trials on related issues involving the same parties. The decision to include the pursuer was taken by experienced fiscals in good faith and in light of the evidence available against him. They had a reasonable suspicion that the pursuer had participated in the alleged crimes.

[17] The above summarises the first 100 pages of the pleadings. The next chapter concentrates, in the main, on the conduct of the second and third defenders. From time to time these defenders are referred to in a composite manner as “the Crown”. It is averred that on 3 September 2015 the court considered a Crown application for an extension of statutory time limits in which it was asserted that Duff & Phelps had recently produced a large quantity of material to the police which ought to have been made available during the August 2013 searches. At a continued hearing the advocate depute intimated that, having checked matters, there had been no such late production of material by Duff & Phelps. Instead it was asserted that Clyde & Co, a firm of solicitors who had acted for Collyer

Bristow, had recently produced 39 boxes of material that ought to have been produced in response to a warrant executed in August 2013. The sheriff granted the Crown’s application, but restricted the extension to a period of three months. The defence then sought further information about the 39 boxes, the existence of which had not previously been disclosed. In answer it is averred that the reference to the 39 boxes was made in error on the basis of internal misunderstandings within Crown Office and in communications with the police. The court was advised of this at the preliminary hearing on 16 October 2015 and an apology was tendered. At an appeal against the extension the appeal court was provided with a full explanation as to the mistaken reference to 39 boxes. Relying upon other factors the appeal court considered that the extension was justified. In response the pursuer avers that it is believed that the second petition was brought in order to influence the outcome of the contested section 65 application.

[18] On 16 September 2015, within the original time limits, the Crown issued an indictment (the first indictment) charging the pursuer with conspiracy to defraud and attempting to pervert the course of justice, and citing him to appear at a preliminary hearing on 16 October 2015. Several of the charges related to the matters dealt with in the second petition. The pursuer lodged a range of preliminary minutes, including an objection to the relevancy and competency of the charges, and a plea in bar of trial on the grounds of oppression and abuse of process. The judge continued the preliminary hearing to 11 January 2016 and fixed a debate on the preliminary minutes for the week commencing 7 December 2015. On behalf of the Lord Advocate it is averred that the decision to serve the first indictment was made because it was reasonably anticipated that the pursuer, Mr Clark, or both, might appeal the grant of the section 65 extension and, if the appeal was successful, there would be a real risk that the matters covered in the first petition would have become time barred. The Crown had recovered relevant evidence in relation to the period of administration. The indictment was drafted on the basis of this and other relevant evidence by experienced indicters acting in good faith. The pursuer avers that until the preliminary hearing the Crown adhered to the representations as to the 39 boxes.

[19] On 2 December 2015, which was the day before the appeal hearing in respect of the extension of time limits, the Crown served another indictment. At the hearing the advocate depute explained that it was to supersede the first indictment. He submitted that if the appeal was allowed, it would cause the new indictment to fall, meaning that the new charges would no longer be before the court. It is averred that no prior notice of this indictment was given. It replicated the charges on the first indictment and included additional charges. The pursuer faced a total of seven charges. The Crown states that including all charges on the second indictment was designed to ensure that the accused faced only one trial.

[20] At a preliminary hearing on 5 January 2016 the court assigned a debate on all preliminary pleas for the week commencing 1 February. After submissions were made on the pursuer’s behalf the Crown sought leave to make substantial amendments to the indictment. It was accepted that the first charge did not clearly set out the alleged criminality. In the result five of the seven charges directed against the pursuer were deleted, including all of those derived from the November 2014 petition. The advocate depute unequivocally renounced the Crown’s right to prosecute the pursuer on those charges, and the remaining charges were the subject of further debate. On 22 February the court upheld the pursuer’s plea to the relevancy and dismissed the remaining charges against him. The advocate depute informed the court that the Crown would consider whether to bring a further indictment against the pursuer. Later that day Crown Office issued a press statement, carried in the national and business press, that further proceedings would be brought against the pursuer. On 3 June 2016 the Crown confirmed that all proceedings against the pursuer were at an end. It is averred that at no point was there any justification for the detention, committal, prosecution or indictment of the pursuer. The second and third defenders never had a sufficient evidential basis for any of the charges directed against him. The Crown avers that the press statement was corrected the day after its publication to reflect the terms of the advocate depute’s advice to the court.

[21] The pursuer pleads that throughout the course of the prosecution, the conduct of the second defender’s deputes and of the third defender was marked by a disregard for their obligations. This is denied and it is explained that at all times the third defender’s predecessor in office, his deputes and procurators fiscal were aware of their obligations and sought to discharge them in good faith. In response to certain averments concerning the Crown’s disclosure obligations it is stated that the prosecution of the pursuer and his co-accused was an exceptional case involving quantities of documents and issues of legal and practical complexity not encountered in an ordinary case. The pursuer complains that disclosure was limited and sporadic. By the end of May 2015 only a third of all available productions had been disclosed to the defence. By the time of the debate in February 2016 approximately 1,000 Crown productions remained undisclosed. Certain undertakings were given in this regard on 19 April 2016, however by the time of the conclusion of the criminal proceedings several key witness statements and labels remained undisclosed, including recordings of police interviews of Charles Green, emails and other documents relating to the actions of Mr Whyte’s associate Aidan Earley, and statements of solicitors involved in the sale of the clubs assets out of administration, all of which, it is said, the pursuer reasonably anticipated would be supportive of his defence. The defence was never made aware of the total number of productions held by the Crown; such disclosure schedules as were provided were incomplete. The Crown contends that at all times it endeavoured to meet its disclosure obligations. At no point was any material wrongfully withheld. Various issues with the disclosure process made it unusually lengthy and complex, including competing claims of legal professional privilege and existing and anticipated civil actions in England. The number of documents involved necessitated the purchase of industrial scanners and the employment of additional staff members.

[22] The next chapter concerns non-disclosure of what are described as the “Charlotte Fakes” recordings. They are said to be part of a wider group of recordings made by Craig Whyte, and include conversations involving Craig Whyte and Charles Green. For the Crown it is averred that there were technical difficulties in opening and listening to the recordings which impeded assessment. Transcripts were disclosed on 29 January 2016. The pursuer avers that no audio recordings were provided nor any information as to provenance. The recordings had been in the possession of the police from at least July 2014, several months before the pursuer’s first appearance on petition. Transcripts had been available to the defenders by 2 December 2015, which was before the first preliminary hearing, and were put to Charles Green in his police interview on that date. On behalf of the first defender it is admitted that the recordings had been in the possession of the police. The Crown states that there were issues of admissibility in respect of the recordings. The pursuer avers that the recordings of conversations between alleged conspirators at the time of the alleged offences were material. They were exculpatory of the pursuer. They demonstrate that essential information, including Mr Whyte’s proposed participation in the Green bid, was withheld from the administrators; that Whyte was anxious about whether the administrators would accept the Green bid; and that third parties were to be encouraged to put financial pressure on the Club to encourage the administrators to accept the Green proposals. It is said that the recordings cannot be reconciled with the Crown’s claim that the pursuer was party to a conspiracy. The allegations in the second petition were entirely predicated upon a claim by Craig Whyte that he had acquired the business and assets of the club out of administration under the proxy of Green. It is also averred that on 4 May 2018 the pursuer’s agents recovered a series of subject sheets – communications from the police to the Crown – relating to the criminal investigation. These revealed that by June 2014 the police had recovered – as part of the Charlotte Fakes materials and from other sources – the contents of email accounts belonging to Craig Whyte. The police estimated the accounts to contain approximately 100,000 emails. On 19 June 2014 the reporting officer advised the Crown of the recovery of the emails, and as to their extent. On 4 August 2014 he advised the Crown that the emails related, inter alia, to the periods around the acquisition and administration of the Club. On 9 February 2015 the reporting officer advised the Crown as to the terms of certain emails which were assessed as being incriminatory of Craig Whyte. It is said that these emails were of central relevance to the allegations against the pursuer, and in particular his knowledge of and participation in any criminal conduct by Craig Whyte. On behalf of the Crown it is claimed that much of the Charlotte Fakes material did not impact upon the pursuer but, to the extent that it did, it included incriminating material. In response it is averred that the discussions involving the pursuer were in no way incriminatory, but were indicative of nothing more than the pursuer discharging his obligations as administrator.

[23] The pleadings continue by reference to disclosure issues surrounding a report by Pinsent Masons solicitors and the evidence of Aidan Earley, a business associate of Craig Whyte. For example it is averred that in July 2015 the defence asked the Crown for disclosure of various witness statements provided by Mr Earley. On 28 April 2016, after the dismissal of the remaining charges against the pursuer, the Crown disclosed a transcript of a series of text messages taken from Earley’s phone. These included a number of communications between himself and Craig Whyte at the time of the administration of the Club, which are said to be entirely exculpatory of the pursuer. The source material for the transcripts had been in the possession of the police since at least 13 April 2015, well before the September 2015 petition and the service of the first indictment. The text messages were put to Charles Green in his police interview on 1 September 2015, details of which were never disclosed to the pursuer.

[24] The pursuer then sets out various issues concerning what is described as the Crown’s obligation to pursue all reasonable lines of inquiry. For example, it is said that before indicting the pursuer, the Crown failed to interview staff of the pursuer and his co-administrator who had worked on the administration, the preparation of valuations, and the sale negotiations with other parties. It is averred that at no time did the Crown have an evidential basis for the claim that the assets of the club had been sold at an undervalue.

[25] The pursuer avers that the Crown failed to respond to requests for information and other correspondence from his agents. On several occasions the Crown was careless as to the accuracy of information given to the pursuer and to the court. Statements were made to the court which were misleading and lacked candour. DCI Robertson acted recklessly and without reasonable cause at various stages during the investigation and the criminal prosecution. He made unwarranted accusations to solicitors. He told Duff & Phelps that he would “shut down the Shard” (a reference to their headquarters in London) if they did not produce required material. Again by way of example of the complaints in this section of the pleadings, it is averred that the court was invited to grant a warrant on the basis of one-

sided information. The exercise of the warrant in London involved officers wearing bulletproof vests and tasers interrupting a client reception. An emergency injunction was then granted to the firm of solicitors concerned by the High Court in London. On 5 February 2016 the High Court of Justiciary granted suspension of the warrant on grounds of oppression. On 6 October 2016 the Queen’s Bench division of the High Court of Justice ordered the first and third defenders to pay the firm of solicitors’ costs on an indemnity basis, the court noting that the actions of the first and third defenders were “an abuse of state power”.

[26] It is averred that DCI Robertson sought to interfere with legitimate defence investigations. For example, it is stated that he threatened witnesses with imprisonment unless they changed their accounts. He amended draft statements provided by witnesses.

In response, amongst other things it is said that DCI Robertson did not consider that he received full cooperation from a number of witnesses. In order to progress the investigation applications were made properly by the Crown for warrants to recover documentation. The warrant relating to the solicitors’ premises had been drafted by the Crown. It was granted by a sheriff in Glasgow. Steps were taken to minimise disruption. DCI Robertson and his officers were not in uniform, and he had not requested uniform presence, but this is what was provided by the local police. At all times he acted in good faith. He was required to investigate matters robustly, probe inconsistencies, require truthful answers from witnesses, recover evidence, and be authoritative when executing court orders.

[27] It is averred that the Crown instructed forensic accountants to prepare reports in the hope that they would provide an evidential basis for the charges against the pursuer, however they were not given all of the relevant factual material, in particular material which did not support the Crown case. The experts were invited to reach conclusions on the basis of “one sided information”.

[28] In addition to the common law claim, the pursuer avers infringements of his rights under articles 5 and 8 of ECHR. So far as article 5 is concerned, it is stated that the actings of the defenders and each of them was a disproportionate interference with the pursuer’s liberty. A time bar plea is taken in respect of the events in November 2014.

[29] The pursuer’s pleadings then revert to general averments as to wrongful conduct, for example that the detentions were “outwith the competence of the officers” and accordingly unlawful; that they lacked probable cause; that the instructions from the Crown were actuated by an ulterior motive, namely the desire to allow evidence over which privilege had been asserted to be relied upon in the erroneous belief that detention would allow the criminal purpose exception to be invoked; and that the absence of reasonable grounds for suspicion demonstrated a degree of recklessness on the part of the Crown amounting to malice. It is averred that the timing of instructions was related to concerns about the whereabouts of Craig Whyte. Similar averments as to lack of probable cause and ulterior motives are made in respect of the second detention, for example a desire to maintain a purported justification for the proceedings against the pursuer. Similar averments are made in relation to the alleged wrongful prosecution in terms of petitions, committals, and the service of indictments. For example it is averred that in the first petition, the only matter directed against the pursuer on charge one, relating to fraud in respect of the acquisition and management of the club, was that he, together with two colleagues, had prepared a letter in the knowledge that it would be used to induce Ticketus to pay out a sum in excess of £18 million. However there was no evidence to show that the pursuer had been involved in the preparation of that letter, nor that it was in any way inaccurate or misleading, and nor that it had been relied upon by Ticketus. The evidence showed that Ticketus had already paid out the sum by the time the letter was issued, and that they had taken advice on all relevant matters from their solicitors. Again by way of example, charge six stated that the pursuer had made false statements in a report to the Court of Session; however the charge materially misrepresented the wording of the report. On various occasions the pursuer’s agents wrote to the Crown detailing errors in the charges, referring to the absence of supporting evidence, and pointing to exculpatory material which had been disclosed, however no substantive response was received.

[30] In response to the Crown’s plea of absolute privilege, the pursuer avers that if any such privilege is enjoyed (which is denied) it extends only to the actions of the third defender in prosecuting crimes on indictment and to the actions of the second defender in conducting a prosecution on indictment in the name of the third defender. Any such privilege does not extend to events prior to the service of an indictment. In any event, the second and third defenders have “surrendered” any right to claim absolute privilege by virtue of their conduct. In the event that their actings do not attract absolute immunity (which is denied) the second and third defenders plead that there can be no liability at common law unless acts were done maliciously and without probable cause. It is averred that at all times the second and third defenders, and those acting on their behalf, acted in good faith on the evidence available to them.

[31] As to the article 8 claim, the pursuer avers that his private life was interfered with by his detention and subsequent bail conditions. In the whole circumstances the interference was neither necessary nor in accordance with the law. As a result of the defenders’ actions he was unable to practice as an insolvency practitioner. He has suffered financial and reputational loss. In response it is averred that if article 8 is engaged (which is denied) any interference was necessary, in accordance with the law, and proportionate. Again a time bar plea is taken in relation to the earlier events. For present purposes it is not necessary to refer to the averments concerning the pursuer’s alleged loss, injury and damage.

PASS THE PARCEL: Court of Session judges merry go round on case involving Lord Advocate James Wolffe

In January of this year it was reported that a series of judge swaps on this case, from Lady Sarah Wolffe, to Lady Morag Wise, then Lord Paul Arthurson – led to a FOURTH judge – Lord Sidney Neil Brailsford – presiding over hearings in a case which could also decide the fate of the Lord Advocate’s immunity from legal action in cases of wrongful arrest.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor was lodged in the final months of 2017 by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland’s Philip Gormley and Lord Advocate James Wolffe QC.

However, it emerged at a hearing in November the Scottish Courts and Tribunals Service (SCTS) had quietly scheduled Lady Wolffe to preside over a crucial hearing in the case against her own husband – James Wolffe QC.

A copy of the Court Rolls handed to the media revealed Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate – her own husband – A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD – Scottish Government Legal Directorate) – on November 15 2017.

Prosecutor Liam Murphy  who is named in the action – is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe was removed from the hearing with no official comment from the Judicial Office.

Claims surfaced at the time Lady Wolffe was suddenly dropped from the case when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A second Court of Session Judge – Lady Morag Wise QC – was then scheduled to hear the case.

For reasons which have not been fully explained, Lady Wise was also dropped from the hearing on Wednesday 15 November which saw the case handed to a third judge – Lord Paul Arthurson QC – who set dates for  a four day hearing of legal arguments.

However, when the £9m damages claim returned to court in mid December, yet another judge – Lord Sidney Neil Brailsford had been assigned to the case, replacing Lord Arthurson.

During a hearing at Edinburgh’s Court of Session on 14 December 2017, judge Lord Brailsford arranged for a debate on legal issues surrounding the case to take place over four days in May 2018.

Lord Brailsford said: “I acknowledge that this is a very serious litigation relating to matters of substance.”

After Lord Brailsford departed from the case, Lord Malcolm took the case.

Lord Malcolm is chiefly known for failing to reveal a conflict of interest in relation to a £6million damages claim against construction firm Advance Construction Ltd (Scotland) – who was represented by none other than the judge’s own son – Ewen Campbell, a suspended but now reinstated Sheriff – Peter Watson, and the Glasgow based law firm – Levy and Mcrae who were previously accused in connection with a £28million pound writ by the liquidators of Heather Capital.

A full report on Lord Malcolm’s conflict of interest in the claim against Advance Construction (Scotland) Ltd can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

The trail of judge swapping – leading to at least four judges who have now heard this case in the Court of Session, and the silent replacement of Lady Wolffe with Lady Wise, and then Lord Arthurson – continues to raise serious questions as to why there are no written references to any note of recusal made by Lady Wolffe in the Register of Recusals published by the Judicial Office.

Given the fact Lady Wolffe clearly holds a conflict of interest in the case – in which one of the core participants in the action is her own husband – the Lord Advocate – the public are entitled to see a note of recusal entered into the Register of Recusals referring to a case in which she was scheduled to hear and decide on legal action against her own husband.

Both the Judicial Office and Scottish Courts and Tribunals Service did not issue any comment prior to DOI’s report on developments in the case, which can be viewed here: CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

A report on Lady Sarah Wolffe’s role in the sequence of events and her initial appointment to decide on the claim against her own husband, featured in aSunday Mail newspaper investigation, here:

Lord Advocate’s judge wife was set to oversee case brought against him by former Rangers administrator

Lady Sarah Wolffe was originally scheduled to oversee a hearing in David Whitehouse’s £9m lawsuit against Lord Advocate James Wolffe.

By Craig McDonald 24 DEC 2017

A former Rangers administrator’s £9million lawsuit against Lord Advocate James Wolffe was given an emergency judge swap – after it emerged the case was originally handed to his wife.

David Whitehouse, 51, is suing Wolffe, Police Scotland chief Phil Gormley and prosecutor Liam Murphy amid claims he was “unlawfully detained” during an investigation into Craig Whyte’s doomed 2011 club takeover.

Court officials had to draft in a replacement judge when they realised Wolffe’s wife Lady Sarah Wolffe was scheduled to sit on the bench for a procedural hearing at the Court of Session in Edinburgh last month.

The late switch from Lady Wolffe was ordered after the conflict was discovered.

Lady Morag Wise was asked to take her place, although the hearing eventually went ahead in front of Lord Paul Arthurson.

Yet another judge, Lord Neil Brailsford, was on the bench when the case was called again earlier this month. It is scheduled to go ahead next year.

The removal of Lady Wolffe is not noted in the official list of judicial recusals – where a judge declines jurisdiction – as it was reallocated before it was called in court.

A Scottish courts spokesman said: “Lady Wolffe was assigned to hear procedural matters in a number of cases on November 15.

“One of those cases was listed on the court rolls as David Whitehouse v Liam Murphy and others.

“Subsequently, when the papers were checked by the Keeper’s office, it became apparent the Lord Advocate was the third defender and, accordingly, the case was reallocated to a different judge.

“The case was initially reallocated to Lady Wise but, having regard to the level of business and in order to avoid unnecessary delay to the parties, was ultimately dealt with by Lord Arthurson.”

Whitehouse and colleague Paul Clark were arrested during the Rangers probe but charges against the pair were later dropped.

They worked for Duff & Phelps, who were appointed as administrators of the club in February 2012. The business and assets of The Rangers Football Club plc, who entered liquidation later that year, were sold to a consortium led by Charles Green for £5.5million.

Police launched an investigation into the circumstances surrounding the takeover. Whyte was cleared of fraud by a jury at the High Court in Glasgow in June.

Lawyers acting for Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that, throughout the period of detention, there were no reasonable grounds to suspect he had broken the law.

Whitehouse claims police and prosecutors didn’t follow correct legal procedure and his arrest damaged his reputation and caused him significant loss of income.

The defenders in the action, including the chief constable and Lord Advocate, claim correct legal procedure was followed and want his case to be dismissed.

 

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