RSS

Tag Archives: James Wolffe QC

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.

 

Advertisements
 

Tags: , , , , , , , , , , , , , ,

PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers who represent cops facing complaints

Ex Lord Advocate conflict of interest in inquiry role. A FORMER Lord Advocate who has links to lawyers and a suspended judge who represent the Scottish Police Federation (SPF) and cops facing complaints – has been appointed to review how complaints are handled against cops.

However, details released of the review fail to mention that Dame Elish Angiolini (nee McPhilomy) – hired Levy and Mcrae – who have been paid hundreds of thousands of pounds by Police Scotland & the Scottish Police Authority (SPA) – to get cops off the hook from complaints – including probes into deaths.

One of the lawyers linked to ex Lord Advocate Elish Angiolini – is suspended Sheriff Peter Watson.

Watson, who was suspended from the judicial bench by  Lord Brian Gill in 2015, after being named in a £28m writ linked to bust hedge fund Heather Capital – represents Police officers facing complaints and investigations by the Police Investigations and Review Commissioner.

Links between Angiolini and Watson are revealed in documents obtained from an investigation by Audit Scotland into payments of public cash by the Crown Office to Levy and McRae and Peter Watson.

Meanwhile Watson and his now former law firm Levy and Mcrae – also scoop up public cash for representing cops who are being investigated over complaints.

A recent report in the Scottish Sun found Police paid £187,000 to Peter Watson’s law firm PBW law for legal fees for representing cop clients facing complaints and other ‘issues’.

The newspaper also reported Police Scotland also paid £364,830 in charges over three years to Watson’s former law firm Levy & McRae – who are also linked to Angiolini.

Records also show Peter Watson represents Police Officers on behalf of the Scottish Police Federation – who assign Watson to officers facing difficult complaints investigations.

One of the high profile cases where Watson represents cops being investigated over complaints – includes  the three year investigation of Police Officers involved in the death of Sheku Bayoh.

Sheku, 31, died after being restrained by nine officers responding to reports of a man carrying the knife in the street in Kirkcaldy. Officers used CS spray, pepper spray and batons, after it was claimed Sheku struck Short. Dad-of-two Sheku lost consciousness and died in hospital shortly afterwards.

The Daily Record reported that Days after Sheku’s death in Police custody, the very same lawyer linked to Angiolini –  Peter Watson – who now has his own law firm PBW Law – issued a statement on behalf of the Scottish Police Federation and the officers involved.

He claimed Sheku “punched, kicked and stamped on” a female officer. However, none of this has been proved and a probe into the death is still underway.

The paper also reported Watson threatened the family of the deceased Mr Bayoh, in relation to a facebook posting, claiming the contents were a ‘breach of criminal law’.

A recent report in the Sunday Mail newspaper revealed PC Alan Paton, 44, has been paid about £75,000 to remain at home while the inquiry into the death of Mr Bayoh in Police custody, continues – three years after the events occurred.

A second officer involved in the investigation, PC Nicole Short, is also being paid similar amounts while off duty since Sheku’s death in 2015.

Now, an investigation by journalists into Elish Angiolini’s lucrative inquiry jobbing has revealed the former Lord Advocate has scooped well over half a million pounds of public cash – writing reports on policy areas which in reality have seen little change over the years, and are mainly used by ministers for PR purposes.

Details of large amounts of public cash payments to Elish Angiolini obtained by journalists using Freedom of Information legislation reveal Angiolini has received at least £603,985.41 for a handful of reports.

Payments of public cash from the City of Edinburgh Council to Elish Angiolini reveal the former Lord Advocate received large payments of public cash totalling £123,450 broken down to £40,350.00 in 2013-2014 and £83,100.00 in 2014-2015 – for the Mortonhall Crematorium Investigation and report.

However, the City of Edinburgh Council bitterly resisted releasing details of the payments, and the figures were only eventually disclosed after the intervention of the Scottish Information Commissioner.

Details obtained from the Scottish Government – who also resisted initial disclosure of what are listed as separate payments to Angiolini for a report into National Investigation into Infant Cremation Practices reveal Angiolini received even larger sums of public cash from the Scottish Government totalling at least £240,000 – broken down to £60,000 in 2014/15, £120,000 in 2015/16, and £60,000 in 2016/17

Expenses paid to Angiolini for the exact same report – which were claimed to involve meals for ‘other team members’ totalled £437.13 in 2014/2015, £621.18 in 2015/2016, and £292.05 2016/2017

A response from the UK Home Office disclosed the total amount paid to Dame Elish for work done on the review of Independent Review of Serious Incidents and Deaths in Police Custody was £116,667.

The Metropolitan Police, who paid Angiolini for a Report of the Independent Review into The Investigation and Prosecution of Rape in London – initially refused to release details of their huge payments to Angiolini,.

It then took over five months before the figures were released, and only after the matter had been reported to the Information Commissioner who began an investigation into the Metropolitan Police handling of the FOI request.

The response from the Metropolitan Police, received earlier this week stated: I can confirm the amount paid to Dame Elish Angiolini was £122,518.05 – £120,715.30 for the review and report; and £1802.75 for travel and hotel expenses.

Angiolini, who was Lord Advocate from 2006 to 2011, was appointed ten days ago by the now ousted Justice Secretary Michael Matheson – to look at how complaints are handled against the very same cops her own former lawyer now represents.

However, Angiolini had a chequered career as Lord Advocate, and was once accused of deliberately undermining the judiciary by Scotland’s top judge, the well respected Lord Hamilton.

In a letter released to the media, Lord Hamilton hit out at Elish Angiolini’s use of her Ministerial rank to tell a story of different sorts to the Scottish Parliament, for the collapse of the World’s End murder trial in 2007.

In her address to MSPs in 2007, Lord Advocate Angiolini attempted to blame the court for failures in the collapse of the high profile murder trial, failures which were clearly of her own Crown Office.

Taking issue with Angiolini’s statement in Holyrood’s main chamber, Lord Hamilton said in his letter to Angiolini at the time: I am of the clear opinion that the evidence that was made available to the court was sufficient to put before the jury to allow it the opportunity to decide on the case against Angus Sinclair. Let me set out the Crown case presented to the court.”

You then set out, in a detailed and carefully crafted narrative, the evidence apparently adduced by the Crown and conclude at column 1769 –

“It was the Crown’s position that the evidence in this case allowed … an inference [of guilt] to be drawn.”

It is clear that you were, as Lord Advocate, stating to the Parliament that in your “clear” opinion there was sufficient evidence to go to the jury. The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong.

Although I have read the whole of your statement to Parliament and the statement which the trial judge issued giving detailed reasons for his decision, I have formed no view as to whether or not that decision was sound in law. I am, however, concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong).

Section 1(1) of the Judiciary (Scotland) Bill provides that certain office holders, including the Lord Advocate, must uphold the continued independence of the judiciary. That section, I believe, reflects an existing recognition that the Lord Advocate, among others, has such a duty. The independence of the judiciary depends, in my view, not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the Lord Advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such. If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions in controversial cases, can reasonably expect to have that their decisions will not be openly criticised by other organs of government.

The public prosecutor may of course entertain private views as to the soundness of legal decisions. In the light of experience steps may be taken to amend the law or in a legal forum to challenge the soundness of an earlier decision. But public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.

My concern is not restricted to this case. The same situation might well arise in any case in which a trial judge sustained a submission under section 97. It might also arise where, on an appeal against conviction, the court held that there had been insufficient evidence in law to warrant it. While such events commonly occur without public interest, they may well occur in controversial cases. It would be most unfortunate were the Lord Advocate to adopt a practice of publicly criticising such decisions.

I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him. But such support could have been afforded without public criticism of the judge. In particular, respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.

I have discussed this letter with the Lord Justice Clerk. He agrees with its terms. He also agrees with my view that the letter should be made public.

The review of PIRC News comes after the PIRC Commissioner Kate Frame spoke out on the subject of who should investigate the Police in a recent Sunday Post article, here: So who should police the police? In her first interview in four years, Police Scotland watchdog breaks her silence

In the interview, Kate Frame called on MSPs to review who probes misconduct claims against officers and said whistleblowers should be able to turn to investigators outside the force.

Ms Frame said: “There is a discussion to be had about whether the police should investigate themselves.

“I think that from the public’s position, they would feel an independent investigation which has not been undertaken by the police would be preferable.”

In an earlier article it was revealed Police Complaints watchdog Kate Frame had accused Scottish Ministers of interfering in her functions as Scotland’s independent Police watchdog, reported by the Sunday Post here: Emails reveal police commissioner accused Scottish government of interfering after Justice Secretary’s aide asks her to delay scathing report

In the article,the Sunday post reported “the Police Investigations and Review Commissioner had to warn one of Justice Secretary Michael Matheson’s senior civil servants to back off after he attempted to persuade her to delay the publication of a damning report.”

“Ms Frame responded to the civil servant’s suggestion that her report might be delayed by writing: “My perception of your remarks is governmental interference with my independence.”

In the wake of the recently announced review to be conducted by the former Lord Advocate, legal insiders view the Scottish Government inquiry run by Angiolini move as an attempt to intimidate further outspoken views against Scottish Ministers interference in the Police Investigations and Review Commissioner and Police Scotland – which has been hit by multiple scandals used by senior officers & ministers in government to set their own agenda for Scotland’s single national Police force.

Angiolini’s glowing fanpage on Wikipedia records she was also working at the Crown Office as Solicitor General during the time in which prosecutors refused to look into 5 allegations of serious sexual assault against Scotland’s now current top cop, Deputy Chief Constable Iain Livingstone.

A report on the allegations of sexual assault against Iain Livingstone by a female Police Officer, allegations which were dismissed by a tribunal headed by male Police Officer colleagues of Livingstone was reported earlier by DOI here: TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

Issues surrounding the allegations of sexual assault made by a female Police Officer against Iain Livingstone while he served at Lothian & Borders Police in 2003 resurfaced during recent scrutiny of Police Scotland over the past year.

Livingstone was however, cleared of the allegations by a hearing chaired by another senior Police officer – John McLean, Strathclyde assistant chief constable. The Police led hearing on allegations against Police Superintendent Livingstone established there had been no sexual impropriety or intent on Mr Livingstone’s part.

However, interest in the 2003 case and details surrounding it has resurfaced – after the single Police service – created by the Scottish Government in 2013 – was hit by several scandals including numerous suspensions of senior officers, allegations of Ministerial meddling with ultimately led to the ousting of Chief Constable Phil Gormley, and the ongoing probe into senior officers use of a surveillance unit within Police Scotland to illegally spy on journalists & cops.

At the time of the sexual assault allegations in 2003, Iain Livingstone, 37, was working as an aide to Scotland’s most senior police officer, Sir Roy Cameron, at Her Majesty’s Inspectorate of Constabulary, when he was suspended in February 2003 over the claims – which arose from a drunken party at the Scottish Police College at Tulliallan.

It was reported at the time that Iain Livingstone – previously a solicitor and member of the Law Society of Scotland – had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

Five allegations of serious sexual assault made by the female Police officer against Livingstone were dismissed – but, at an internal misconduct hearing, Mr Livingstone admitted less serious allegations, including being in the woman’s room overnight after falling asleep.

The Crown Office has refused to disclose any material in connection with their consideration of allegations of sexual assault again Iain Livingstone – and this would include material during the time which Elish Angiolini was Solicitor General.

Among the raft of appointments to write reports & reviews, including the position of Principal of St. Hugh’s College of the University of Oxford – where she wrote a glowing appraisal of Aung San Suu Kyi, Angiolini is also listed as an Honorary Professor of  The Chinese University of Hong Kong.

Angiolini’s biography on the Honk Kong university site claims “As Lord Advocate she is seen as a moderniser, immediately announcing plans to speed-up justice and clear court congestion, including a scheme to quickly fine minor offenders and require them to pay compensation to victims.” – but makes no mention of significant failures during her time as Lord Advocate, including the episode where she was accused of undermining Scotland’s judiciary.

Michael Matheson’s announcement of Angiolini’s appointment by the Scottish Government was made in the Scottish Parliament:

Ministerial Statement on Police Complaints and Conduct Review

The written transcript of Michael Matheson’s statement:

Cabinet Secretary for Justice – Parliamentary Statement on review of complaints handling, investigations and misconduct issues in relation to Policing.

19 JUNE 2018

Thank you Presiding Officer.   

When I addressed the Chamber in November, on the leadership and performance of policing, I set out my intention to reflect on the operation of police complaints and conduct with key partners.   As I said then, I am open to considering whether there is scope for further improvement.

It is of the utmost importance to me and the public that parliamentary confidence in the police is high – and independently justifiably so – but equally that our systems provide suitable protection for the vast majority of police officers and staff who work hard to keep us safe.

Over recent months, I have listened to a range of different perspectives from those directly involved.  It is clear to me that complex issues have emerged in relation to the existing framework, operational responsibilities and procedures that need to be looked at afresh.

Five years on from the creation of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner, the time is right to look at how the structures and processes are working.

To do that effectively will require an independent and authoritative assessment and that is why I, together with the Lord Advocate, have commissioned Dame Elish Angiolini QC to take this work forward.

I am delighted that Dame Elish has agreed to lead that Review.  As members will be aware, she is exceptionally well qualified to scrutinise these issues, as a former Procurator Fiscal, Solicitor General and Lord Advocate.

Her outstanding record of public service in Scotland is well known, having chaired the Commission on Women Offenders, as well as the Mortonhall Crematorium Investigation for the City of Edinburgh Council and National Cremations Investigation for the Scottish Government.

More recently, she led the independent Review into Serious Incidents and Deaths in Police Custody in England and Wales for the UK Government.

Under Dame Elish’s leadership, the Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing will bring independent scrutiny to the framework and processes for handling complaints against the police and investigating serious incidents and alleged misconduct.

As well as assessing the current framework, the Review will report on the effectiveness of structures, operational responsibilities and processes. It will also make recommendations for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

The Review will consist of two phases:

    The first phase will include a consideration of current procedures and guidance to identify areas for immediate improvement;
The second phase will include a wider assessment of the frameworks and practice in relation to complaints handling, investigations and misconduct issues. It will cover the work of the Police and Investigations Review Commissioner, the Scottish Police Authority and Police Scotland.

The Review will take evidence from a broad range of stakeholders, including the Scottish Police Federation, the Association of Scottish Police Superintendents, the Scottish Chief Police Officers Staff Association, Unison, Unite, as well as the PIRC, SPA, Police Scotland and the Crown Office. Dame Elish may also wish to speak with those who have had experience of the current system to hear their views and understand where further improvement could be made.

Recommendations in the final report should take into account human rights considerations, as well as seeking to identify longer term improvements.

Presiding Officer, I am aware that the Justice Committee has invited evidence as part of its post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012.  I welcome this scrutiny of the landmark legislation that enabled the creation of single police and fire services.

I am also aware that evidence has been submitted on the provisions within the Act that underpin our current system of police conduct, complaints and investigations. Those provisions were intended to strengthen the governance, accountability and scrutiny arrangements for policing and created a clear statutory framework for independent review and investigation.

It is only right that the Committee considers this evidence as part of its broader scrutiny of the Act and I look forward to seeing the outcomes of that process.

However, as the Cabinet Secretary with responsibility for the overall framework for dealing with police complaints and conduct issues in Scotland, which includes other primary and secondary legislation, I have a duty to ensure that the whole system is working well.  And the Lord Advocate has an independent interest, as head of the system for the investigation and prosecution of crime in Scotland.

The arrangements for complaints handling, investigations and misconduct issues in relation to policing, have seen a period of intense parliamentary, media and public scrutiny.

It is a framework that must ultimately build public confidence in policing and the events of recent months have raised questions about the way the system works and whether it could be improved.

It is only right that I listen to those questions and act decisively to address them, which is why the Lord Advocate and I have commissioned this Review.

The key outcomes of the Review will be to ensure that:

    roles and responsibilities at all levels are clear;
there are agreed protocols that balance transparency with an appropriate level of confidentiality; and
the framework and processes are fair, transparent, accountable and proportionate, upholding fundamental human rights.

Fairness. Transparency.  Accountability. Proportionality. These are the guiding principles of the Review and go to the very heart of what any system, which holds public services to account, should deliver.

The commitment to upholding fundamental human rights is embedded in police training, in the oath taken by officers and is central to Police Scotland’s Professional Ethics and Values. This is to ensure that policing operations respect the human rights of all people and officers, who in turn should have their rights respected.  This must also be central to the process for handling police complaints, conduct issues and investigations.

It is vital that the police are held to account when things go wrong.  Policing by consent depends upon that accountability.  And it is essential that lessons are learned and improvements made to prevent mistakes, bad practice – and criminality – recurring in the future.

In order to do that effectively, our systems must treat all parties fairly and justly if they are to earn the trust and respect of those involved and of the wider public.

Let me also be clear about what the Review will not do.  It will not consider the role of the Lord Advocate in investigating criminal complaints against the police.  Nor will it look at the role of HMICS in scrutinising the state, effectiveness and efficiency of Police Scotland and the Scottish Police Authority.

It is also important to emphasise that the Review will not re-examine specific cases or review specific decisions, although they may provide evidence for an overall assessment of the efficacy of current systems and processes. 

There are a number of high profile criminal investigations relating to serious incidents involving the police, currently underway. Those investigations are a matter for the Lord Advocate and it would be wrong to suggest that this Review should examine those cases – or pre-empt the investigation process.

Presiding Officer, I am confident that this Review, under the authoritative leadership of Dame Elish Angiolini will bring fresh scrutiny to the framework and structures we established 5 years ago, to ensure they are robust and true to the principles that I have outlined.

It is essential that our systems for complaints handling, investigations and misconduct issues in relation to policing are fair, transparent, and accountable, respecting the rights of all those involved.  Systems that police officers, staff and the public can have confidence in.

Let me finish, by putting on record my thanks and appreciation for the work of Police Scotland, the SPA, the PIRC, HMICS and the Crown Office, commending all those who work to keep our communities safe.

The Scottish Government’s announcement of Angiolini’s appointment makes no mention of her involvement with lawyers who also represent Police Officers facing complaints – including probes into deaths in custody: Police conduct review; Former Lord Advocate to consider investigation processes.

Former Lord Advocate Rt Hon Dame Elish Angiolini QC is to review the processes for handling complaints against the police and investigating serious incidents and alleged misconduct.

The independent review, jointly commissioned by Justice Secretary Michael Matheson and Lord Advocate James Wolffe QC, will assess the current framework and report on the effectiveness of structures, operational responsibilities and processes.

It will also make recommendations for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

Mr Matheson said: “Most of us recognise and welcome the diligent, expert and often courageous work of the many thousands of police officers and staff who help keep Scotland’s communities safe.  That public confidence is also sustained by knowing that when things go wrong, the police are held to account, lessons are learned and improvements made.

“Given some of the questions raised in recent times about the processes for police complaints-handling, investigations and misconduct issues, and whether they could be improved, the time is right for this independent review, which will be ably led by Dame Elish.

“The review will seek to ensure that roles and responsibilities are clear, agreed protocols will balance transparency with appropriate levels of confidentiality, and that the processes are fair, transparent, accountable and proportionate, upholding fundamental human rights.”

Dame Elish said: “I am pleased to be invited to undertake this important independent review.  It is vital that systems for handling complaints, investigating serious incidents and alleged misconduct in relation to the police is both robust and fair, and trusted by all those involved.

“I look forward to engaging with those with direct involvement and experience of the current system – from all perspectives – to understand how it is working in practice and to identify areas for improvement.”

Background:

The independent review will formally begin in the autumn.

The Right Honourable Dame Elish Angiolini QC served as both Solicitor General for Scotland and, in 2006 was appointed Lord Advocate, the first to serve two different Scottish Government administrations.  She was appointed Dame Commander of the British Empire in 2011 for services to the administration of Justice.  In 2012, Dame Elish was elected Principal of St Hugh’s College, Oxford, and is both visiting Professor at the University of Strathclyde and Chancellor of the University of the West of Scotland.

Dame Elish has chaired a number of ground-breaking reviews in the fields of law and criminal justice, as well as public health.  In June 2011 she was appointed as Chair of the Commission set up to examine the issue of how female offenders are dealt with in the Criminal Justice System in Scotland.  She led the Independent Review into the Investigation and Prosecution of Rape in London, which reported in 2015 and also chaired the Mortonhall Review for Edinburgh Council and the National Cremation Investigation for the Scottish Government, which reported in June 2016.  Dame Elish’s report into deaths in police custody in England and Wales, commissioned by the UK Home Secretary, was published in October 2017.

Previous article in relation to Police Scotland can be found here: Police Scotland – Previous articles

Previous articles in relation to the Crown Office & Lord Advocate can be found here: Crown Office – Previous articles & Lord Advocate – Previous articles

 

 

Tags: , , , , , , , , , , , , , , , , ,

CAPITAL SECRET: Crown Office block disclosure of financial costs in FIVE YEAR probe of collapsed £400m Heather Capital hedge fund linked to Scotland’s judiciary

Crown Office Hedge Fund probe secrecy. A FIVE YEAR investigation by the Crown Office & Procurator Fiscal Service (COPFS) into charges relating to a collapsed hedge fund – remains shrouded in secrecy after the case was axed, and with a recent decision to block disclosure of costs of the probe.

The collapse of the Isle of Man based Heather Capital Hedge Fund saw four persons charged after a three year long Police investigation –  in April 2013 – in connection with events relating to the broke £400million hedge fund.

Heather Capital launched in 2005 – attracting global investors, loaning money to fund property deals.

After the collapse of the hedge fund in 2010, Paul Duffy, the liquidator of Heather Capital – claimed that about £90 million was unaccounted for.

However, in February of this year, Lord Advocate James Wolffe QC quietly axed the lengthy five year investigation of the collapsed hedge fund and solicitors Gregory King & Andrew Sobolewski , accountant Andrew Millar and property expert Scott Carmichael.

In a response to a Freedom of Information request, the Crown Office has now refused to disclose any information in relation to the costs of the five year investigation into a collapsed hedge fund which saw four persons charged by Police Scotland in 2013.

The Crown Office were asked for information contained in the costs (figures) of the investigation by the Crown Office into charges against four persons in relation to the collapsed Hedge Fund Heather Capital.

When (date) the decision was taken to drop any action against the four persons charged in connection with above.

How many independent or other counsel & crown counsel served or worked on this investigation (and other COPFS staff, or others contracted in for this investigation (and their speciality role) – and their costs.

Information contained in any overseas travel (dates & destinations, costs of) in relation to this investigation.

Responding for the Crown Office, Christine Lazzarin claimed there was no costing available for the failed five year investigation, as the Crown Office intentionally does not monitor costs in investigations.

However, legal insiders have suggested costs around the five year investigation have run into millions of pounds,and that some felt the case was flawed from the outset due to ‘a lack of additional charges.

There are also claims a number of prosecutors & counsel became inactive, leaving the probe over the span of the five years.

Responding to the Freedom of Information request, Christine Lazzarin of the Crown Office ‘Information Unit’ wrote: In relation to your request I will firstly explain that the Crown Office and Procurator Fiscal Service (COPFS) does not routinely collate the total costs associated with investigating individual cases, and having made enquiries with our Finance Division I can advise that there are no COPFS costs recorded against the case reference allocated to this investigation.

By way of explanation there was no specific team created to investigate this case and all COPFS costs associated with the investigation will be addressed within the existing budgetary framework and not recorded separately. We do not therefore hold associated staffing costs in terms of Section 17 of FOISA. Additionally I can confirm that there was no overseas travel involved in this investigation.

The investigation was handled by staff within the COPFS Serious and Organised Crime Division (SOCD) in consultation with the COPFS International Co-operation Unit. The case was then reported to Crown Counsel to take a decision on whether to prosecute.

Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed that there should be no proceedings at this time. The Crown however reserves the right to raise proceedings should further evidence become available.

It may be helpful if I outline the COPFS policy in relation to providing case related information in relation to a Freedom of Information request. Other than confirming that we do hold information, this information will not be provided to persons unconnected to a case under a Freedom of Information Act request. Information about a case will include sensitive personal data about the accused, victims and witnesses in terms of the Data Protection Act 1998, disclosure of which could constitute a breach of that legislation. Where disclosure of personal sensitive information would contravene the Data Protection Act, we are not required to disclose it under FOISA.

Having explained our general position you have asked for the date this decision was made and I can advise that I am unable to provide you with the information you have requested for the following reasons:-

The information is exempt in terms of section 34(1)(a) of FOISA because it is held by the Crown Office and Procurator Fiscal Service for the purposes of an investigation carried out by virtue of a duty to ascertain whether a person(s) should be prosecuted for an offence(s). This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption. Although the public interest is not defined in FOISA it has been described as “something which is of serious concern or benefit to the public”. It has also been held that the public interest does not mean “of interest to the public” but “in the interest of the public”. The decision to take no proceedings at this time is already in the public domain but I do not consider that it is in the interests of the public to know the date the decision was made. Additionally as the Crown reserves the right to raise proceedings should further evidence become available in the future it would be inappropriate to release case related details over and above those already in the public domain.

I also consider that under section 38(1)(b) of FOISA, release of the information requested would contravene section 10 of the Data Protection Act 1998 as you are requesting details of a criminal case reported to COPFS against particular individuals. This is an absolute exemption and I am not required to consider the public interest test.

I hope you find this information helpful.

If you are dissatisfied with the way in which your request has been handled, you do have the right to ask us to review it. Your request should be made within 40 working days of receipt of this letter and we will reply within 20 working days of receipt. If you require a review of our decision to be carried out, please e-mail foi@copfs.gsi.gov.uk.

The review will be undertaken by staff not involved in the original decision making process.

If our decision is unchanged following a review and you remain dissatisfied with this, please note that although generally under section 47(1) of FOISA there is a right of appeal to the Scottish Information Commissioner, where the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland, under section 48(c) no application can be made as respects a request for review made to the Lord Advocate. The information you have requested appears to fall into that category, although ultimately it would be for the Commissioner to decide whether that was the case should you refer the matter to him.

In circumstances where section 48(c) does not apply and the Commissioner accepts an appeal, should you subsequently wish to appeal against that decision, there is a right of appeal to the Court of Session on a point of law only.

While an investigation will be sought from the Scottish Information Commissioner’s office, previous attempts to have the SIC look at Crown Office blocking of Freedom of Information requests have fallen by the wayside – even when a request was made to investigate the Lord Advocate’s secrecy block on publication of the COPFS register of interests, more on which can be viewed here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

Although the Crown Office have refused to answer any questions on the status or costs associated with their five year investigation of the Heather Capital collapse, legal insiders have pointed to previous COPFS investigations and recent trials of financial frauds, where costs to the taxpayer have ran up to nearly ten million pounds.

One such case was the Mclaren property fraud case – which the Crown Office did everything in their power to avoid categorising as a “mortgage fraud” prosecution – after claims emerged the fraud duo once worked for, and had dealings with among others – a senior legal figure linked to one of the current top legal officers in the Crown Office.

In the McLaren case, Edwin McLaren, from Quarriers Village in Renfrewshire, was found guilty of property fraud totalling about £1.6m, convicted on 29 charges, and his wife Lorraine – on two charges.

The trial at the High Court in Glasgow began in September 2015 and heard evidence for 320 days.

Reports in the media quoted costs of around £7.5m, with more than £2.4m in legal aid paid for defence lawyers.

However, legal insiders claim the investigation by COPFS prior to the trial of the McLarens also ran into millions of pounds.

Similarly, with the complexity of the Heather Capital collapse – at £400million – the trail of money and international capital transfers – the costs of the Crown Office five year Heather Capital probe are likely to be at least equal to, or significantly higher than the investigation into the McLaren property fraud prior to that case going to trial.

HEATHER CAPITAL £28M CIVIL CLAIM ENDS:

Solicitor Peter Black Watson, formerly of Glasgow law firm Levy & Mcrae –  was linked to the collapsed hedge fund in a now abandoned £28million civil claim.

However, it has been previously reported part time Sheriff Peter Watson was suspended in February 2015 by Scotland’s top judge – Lord Brian Gill “to maintain public confidence in the judiciary”

A statement from the Judicial Office for Scotland issued after a newspaper asked for a comment, stated: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Peter Watson now has his own law business, PBW Law – also based in Glasgow.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also currently represent the Scottish Police Federation – who in turn represent all Police Officers in Police Scotland.

Investigations by the media also show that suspended Sheriff Peter Watson represented, among others – Lord Advocate Elish Angiolini – during her term as Lord Advocate.

Watson’s other clients included Alex Salmond, Stephen Purcell, Yorkhill Hospital Board – which has now changed it’s name to Glasgow Children’s Hospital Charity – of which Watson is chair, of the board and Rangers Chiefs.

In Court documents published online by the Scottish Court Service, it is noteworthy that during the tenure of Lord Advocate Elish Angiolini – who was Lord Advocate from 12 October 2006 – 30 April 2011, significant transfers of capital from Peter Watson’s law firm – Levy & Mcrae – took place to Panamanian and Gibraltar registered companies.

Records from the Court of Session reported:

On 4 January 2007, HC transferred £19 million to its client account with Levy and Mcrae.

On 24 January 2007, HC transferred £9.412 million to its client account with Levy and Mcrae.

On 9 January 2007, Levy and Mcrae transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security.

On 29 March 2007, Levy and Mcrae transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security.

A full report on the now abandoned £28million civil claim case against Peter Watson & Levy & Mcrae, and Lord Carloway’s consideration of Watson’s continuing suspension from the judicial bench can be found here: CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

 

Tags: , , , , , , , , , ,

CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

Lord Carloway considering status of suspended Sheriff linked to collapsed Hedge Fund. A JUDGE who has been suspended from the Judiciary of Scotland for a record THREE YEARS – after being named in a £28million writ linked to the collapse of a £400m Hedge fund – remains suspended despite the closure of the civil claim.

Now, Lord Carloway (Colin Sutherland) – Scotland’s most senior judge – is now said to be considering the position of part time Sheriff Peter Black Watson (64) – after the liquidator of Heather Capital Paul Duffy of EY – mysteriously abandoned the £28m action against Glasgow law firm Levy and McRae solicitors – in which Peter Watson was once a partner.

Peter Watson was suspended from the Judiciary of Scotland more than three years ago on February 16, 2015 – after the then Lord President, Lord Brian Gill, was informed by a journalist of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

The move came after allegations surfaced in a £28million writ naming part time Sheriff Peter Black Watson – and his former law firm Levy and Mcrae, and a number of individuals under investigation in connection with the £400million collapse of Heather Capital.

In response to queries from the media in February 2015 on the contents of the writ – the Judicial Office subsequently issued a statement confirming Lord Brian Gill  had suspended Sheriff Peter Black Watson (61) on 16 February 2015.

The suspension came after Gill demanded sight of the writ.

Responding to the Lord President’s request, Watson then offered to step aside temporarily – while the litigation concluded – however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

A statement from the Judicial Office for Scotland read as follows: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Watson’s former law firm –  Levy & McRae, was one of several companies being sued by Heather’s liquidator, Ernst & Young, after the fund’s collapse in 2010.

Watson was also a director of a company called Mathon Ltd – a key part of the Heather empire.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King was the subject of a Police Scotland investigation and a FIVE YEAR probe by the Crown Office.

However, in early February, the Crown Office coincidently confirmed there would be no prosecutions in the cases of the four individuals  – lawyers Gregory King & Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael – who were charged by Police Scotland in connection with a Police investigation of events relating to the collapse of Heather Capital.

Peter Watson now has his own law business, PBW Law.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also represent the Scottish Police Federation.

Responding to queries from reporters, a  spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.  An interlocutor to that effect has been issued.  The Lord President will consider what, if any, steps now require to be taken‎.”

Despite EY’s withdrawal of the £28million claim against Levy and Mcrae & Peter Watson, detailed claims in the Court of Session revealed the following:

[21]      In the Levy Mcrae case:

  • On 4 January 2007, HC transferred £19 million to its client account with LM (Lord Doherty paragraph [5]).
  • On 24 January 2007, HC transferred £9.412 million to its client account with LM (Lord Doherty paragraph [5]).
  • The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).
  • On 9 January 2007, LM transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
  • By a memorandum dated 17 March 2007, HC’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of LM reclaiming print).
  • On 29 March 2007, LM transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
  • In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).
  • Approaches made by HC to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).
  • At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of LM reclaiming print).
  • By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of LM reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required from Santo Volpe”:the request was much broader.)
  • In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.
  • By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.
  • By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.
  • On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).
  • By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:

“ … Our report is designed to … avoid weaknesses that could lead to material loss or misstatement.  However, it is your obligation to take the actions needed to remedy those weaknesses and should you fail to do so we shall not be held responsible if loss or misstatement occurs as a result … [Having explained the disappearance of the funds and the apparent repayments, on which legal advice had been received, KPMG warned] … these matters are extremely serious … an attempted fraud appears to have been perpetrated … We would recommend that the Board continue their investigation into this matter and formally document their decision as to whether or not to inform the criminal justice authorities …”

A full copy of a court opinion detailing these and other claims with regards to a further case against Burness Paull LLB  – which coincidently also collapsed earlier last year – can be viewed here: Court of Session allows proof against Levy & Mcrae and Burness Paull LLP in Heather Capital case as liquidators attempt to recover cash from collapsed £280m hedge fund.

In the motion of abandonment filed by EY & Heather Capital, heard in the Court of Session on 28 February before Lord Glennie, Lady Paton & Lady Clark of Calton, Lord Glennie’s opinion sums up matters in relation to issues in the Heather Capital case, which linked claims of financial wrongdoing directly to Scotland’s judiciary – who, ultimately heard and ruled on the case.

Lord Glennie stated in his opinion:

[97]      I have had the advantage of reading in draft the opinions to be given by Lady Paton and Lady Clark of Calton.  I agree with them and, for the reasons they give, I too would allow parties a Proof Before Answer of all their averments on record preserving all pleas. 

[98]      I would wish to add two comments of my own. 

[99]      The main focus of the debate in each case was whether the pursuer, HC, had made sufficient and relevant averments of “reasonable diligence” for the purposes of section 11(3) and the proviso to section 6(4) of the 1973 Act.  In both cases the Lord Ordinary held that HC had not said enough and in sufficient detail to justify sending the matter to a Proof Before Answer.  The matter could be determined on the pleadings.  Lady Paton has explained why we take a different view.  But I have a more general concern about this approach. 

[100]    In his note of argument in the LM case, under reference to cases such as John Doyle Construction Ltd v Laing Management (Scotland) Ltd 2004 SC 713 at pages 722 – 723 and Watson v Greater Glasgow Health Board [2016] CSOH 93 at paragraphs 22-23, Lord Davidson QC was at pains to remind us that the purpose of pleading is to give fair notice of the assertions of fact sought to be established in the evidence as well as to identify the essential propositions of law on which a party founds.  Elaborate pleading is unnecessary in any action, not just in a commercial action.  The purpose of the pleadings is to give notice of the essential elements of the case.  The pleadings should set out the bare bones of the case.  They are not the place to set out in full the evidence intended to be adduced.  In the present cases that appears to have been overlooked.  To that extent I have some sympathy with Lord Davidson’s submission.  The Closed Record in the BP action, as it appears in the Reclaiming Print, runs to some 59 pages, while that in the LM action extends to 93 pages.  This has happened, so it seems to me, because in their pleadings parties have indulged in a process akin to trial by pleading.  The defenders have made averments of fact intended to undermine the pursuer’s case on reasonable diligence; the pursuer has responded by making further averments addressed to those points;  this in turn has caused the defenders to make further averments or raise further questions;  the pursuer has tried to answer by making yet further averments;  and this is constantly repeated until parties are finally exhausted.  The process resembles one of cross examination and response, a process for which pleadings are quite unfitted.  I do not seek to apportion blame.  In a case such as this, the temptation to pile pressure on to the pursuer by pleading a wealth of detail is difficult to resist;  and a pursuer who does not respond in kind runs the risk of being thought to have no answer to the points which have been raised.  Difficulty arises when the matter comes to debate on the question of whether, for example, the pursuer has made sufficiently relevant and specific averments that it “could not with reasonable diligence have been aware” that loss had occurred (section 11(3)) and that it could not “with reasonable diligence have discovered” the fraud or error induced by the debtor which induced it to refrain from making a relevant claim at an earlier stage (section 6(4), proviso).  Points are made in argument about the failure to take certain steps or to follow up on the particular line of enquiry;  and the Lord Ordinary is invited to form a view that what was done was insufficient or that the reasons given for not doing it are inadequate.  Such an invitation should, in my view, be resisted save in the most obvious case.  The judgments which the court is being asked to make are essentially value judgments, assessments of the reasonableness or otherwise of a party’s conduct.  Such judgments should seldom if ever be made on the basis of the pleadings without hearing evidence.  It may seem obvious, on paper, that something ought to have been done or that a line of enquiry ought to have been pursued; but when evidence is led it might seem less obvious, or there might be good reasons for not taking that course.  It is not the function of pleadings to set out every reason why each relevant individual took or did not take any particular step.  In many cases issues of credibility and reliability might arise, the evidence may be far more nuanced than it is possible to convey on paper, explanations may be given more fully and persuasively than can come over in the pleadings, and some of the criticisms may, in light of all the evidence, be seen to be informed by hindsight.  I should emphasise that I make these observations without reference to any of the particular points decided in the particular cases with which we are here concerned.  But it does seem to me that the cases with which we are concerned illustrate the danger of the court being drawn into deciding cases on detailed averments of fact when it would be more appropriate that all the evidence be heard before any decision is made. 

[101]    The other comment I would wish to make concerns the question of whether the claims advanced in both actions on the basis of the existence of a trust are subject to the 5‑year prescriptive period in section 6 of the 1973 Act or are subject to the 20-year long negative prescription in section 7.  This matter was discussed by Lord Doherty in the LM action at paragraphs [25]-[31].  He concluded that the obligation of a trustee to produce trust accounts is an imprescriptible obligation;  that the liability to make payment of the sum found due in an accounting for trust funds is subject only to the long negative prescription;  and that the obligation of a trustee to restore the value of trust property paid away in breach of trust is also subject only to the long negative prescription.  The matter was not discussed by Lord Tyre in the BP case for reasons which are slightly unclear – matters appear to have proceeded in that debate on the basis that all obligations were subject to the 5-year prescriptive period and that the only issues in that respect concerned the pursuer’s case on sections 6(4) and 11(3) – but it was not suggested before us that the point is not live in that action too.  Detailed submissions on the point were made by Mr Duncan QC on behalf of LM and adopted by Mr Dunlop QC on behalf of BP.  Lord Davidson QC responded on behalf of HC.  I, for one, was grateful for their submissions.  It emerged in the course of those submissions, as it had to some extent at the debate in the LM case, that not only was there a dispute as to the law to be applied in a case of accounting and/or breach of trust but there was also a dispute as to whether the circumstances of the present cases gave rise to a relationship of trust at all or, alternatively, a trust of a kind intended to be excluded from the 5-year short negative prescription.  In light of this, it seems to me that it would be desirable that all of the relevant facts be determined before the issues are decided.  For that reason, and for the reasons given by Lady Paton in paragraph [80] of her opinion, I am persuaded that it would be premature to attempt to decide these points at this stage.

COLLAPSE OF FIVE YEAR CROWN OFFICE PROBE:

In a further twist to the Heather Capital saga, a FIVE YEAR probe by the Crown Office & Procurator Fiscal Service (COPFS) collapsed just a few days before the collapse of the £28million writ against Levy and Mcrae, & Peter Watson.

A report by journalist Russell Findlay revealed: CROWN prosecutors will take no action against four men following a fraud probe into a collapsed £400 million finance firm.

Lawyer Gregory King, 49, and three others were reported to the Crown by detectives who investigated his hedge fund Heather Capital which was based in the Isle of Man.

Heather, launched by King in 2005, attracted investors from around the world and loaned money to fund property deals.

Following its 2010 collapse, Heather’s liquidator Paul Duffy claimed that around £90million was unaccounted for and a police fraud probe resulted in the four men being reported to the Crown Office in April 2013.

An Isle of Man court judgement likened Heather to a ‘Ponzi’ scheme, made famous by US financier Bernie Madoff who was jailed for 150 years in 2009.

The other three reported by police were lawyer Andrew Sobolewski, of Bridge of Weir, Renfrewshire, Andrew Millar, of ­Cambuslang, near Glasgow, and Scott ­Carmichael, of Thorntonhall, near Glasgow.

Last year there was criticism of the Crown for taking so long to consider the case but after almost five years it has now dropped the case.

A Crown Office spokesman said: “Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed  that there should be no proceedings at this time.

“The Crown reserves the right to raise proceedings should further evidence become available.”

The Scottish Sun reported on the serving of the £28million civil writ which named lawyer Peter Black Watson – back in February 2015, here:

The Scottish Sun reports:

WRIT HITS THE FAN

FIRM FIRM SLAPPED WITH COURT SUMMONS – Top legal outfit in megabucks lawsuit

Practice is linked to bust hedge fund – Briefs with ties to big business and high-profile clients

By RUSSELL FINDLAY Scottish Sun 15 February 2015

A TOP law firm has been hit with a multi-million pound writ linked to a finance company at the centre of a fraud investigation.

Legal practice Levy & McRae — which acts for footballers, politicians, cops and newspapers — faces the claim over its role in connection with £400million investment scheme Heather Capital.

It’s claimed millions of pounds went missing following the collapse of the hedge fund. And The Scottish Sun told last week how four men — including tycoon Gregory King — have been reported to prosecutors probing the allegations.

King, 46, ran Heather subsidiary Mathon, where Sheriff Peter Watson — a former senior partner at Levy & McRae — was also briefly a director.

The Court of Session summons was served on the firm six months after he left the legal firm.

Watson is one of the country’s most high-profile lawyers and spent 33 years with Levy & McRae before quitting to set up his own business.

The visiting Strathclyde University professor sat on an expert panel created by former First Minister Alex Salmond to look into media regulation in Scotland.

Watson also acted for former Lord Advocate Elish Angiolini after she was harassed by a campaigner who was later jailed.

‘Their clients are a who’s who of Scotland’ And he includes ex-Glasgow City Council chief Steven Purcell among his list of clients, as well as senior police and prison officers.

The legal expert, 61 — chairman of Yorkhill Sick Kids’ Hospital charity — has also acted for former Rangers owner Sir David Murray.

And a Gers supporters’ group closed down its website following legal threats from Watson, who was working for under-fire directors Sandy and James Easdale.

A source said: “Watson and Levy & McRae are very well known and their clients are a who’s who of Scotland.”

Investors from around the world sunk their cash into Gibraltar-based fund Heather Capital, which launched in 2004.

Some of the cash was loaned to Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was not repaid.

Liquidator Paul Duffy of Ernst & Young has been battling to recover investors’ cash since 2010 and is suing Heather’s auditors KPMG for negligence over their role. Isle of Man court documents — acquired by The Scottish Sun — claim Heather was operating a “Ponzi” scheme to dupe investors.

They alleged that as early as December 2006, senior KPMG staff feared that Heather Capital “may have been perpetrating a fraud”.

And in August 2007, KPMG employee Raymond Gawne told a colleague that he was “very uncomfortable” acting for the fund which “may have acted in a criminal manner”.

The claim also alleges that millions of pounds of loans passed through the client account of Glasgow lawyer Frank Cannon who acted for Heather. KPMG senior executive David McGarry sent an email to Gregory King stating: “Frank Cannon has been uncooperative, either in providing some form of explanation for all of the security documentation prepared by his firm, or in agreeing to facilitate access to Cannon’s clients’ money account”. McGarry added he did not accept “that this is due” to Cannon.

Watson declined to comment on the writ and Levy & McRae and Cannon did not respond to our requests for comment.

The Police Scotland report naming Mr King and his associates Andrew Sobolewski, Andrew Millar and Scott Carmichael is now being considered by the Crown Office.

A spokesman for Ernst & Young confirmed: “Heather Capital, via Ernst & Young, has made a claim against Levy & McRae.” And a KPMG spokesman said: “The passages in the plaintiff’s summons provide a selective and misleading picture and are drawn out simply to seek to make what is a wholly unsubstantiated case.

“The allegations are completely unfounded and are being fully contested by KPMG.”

GREGORY KING MARBELLA-based former Glasgow Academy pupil, 46, was a lawyer and taxi firm boss before launching Heather Capital in 2004. Family business dynasty includes nightclub boss cousin Stefan King.

PETER WATSON GREENOCK-born solicitor advocate, 61, carved out a fearsome reputation as a media lawyer during 33 years at Levy & McRae. He also dishes out justice as a part-time sheriff across Scotland.

KING’S £400million hedge fund Heather Capital loaned millions of pounds to Glasgow-based Mathon, of which Watson was briefly a director.

TOP lawyer and part-time sheriff Watson has acted for a string of high profile celebrity, political, sport and media clients in a glittering legal career:

Watson’s clients included Alex Salmond, Stephen Purcell, Elish Angiolini, Yorkhill Hospital Board, Rangers Chiefs.

and a further development reported by the Scottish Sun on the suspension of Sheriff Peter Watson:

Bench ban for sheriff linked to fraud probe

Lawman, 61, suspended

By RUSSELL FINDLAY 25th February 2015, Scottish Sun

A SHERIFF was suspended after he was linked to a collapsed finance firm at the centre of a massive fraud probe.

Peter Watson, 61, was barred from the bench by judges’ boss Lord President Lord Gill following an inquiry by The Scottish Sun.

Watson, whose past clients include ex-First Minister Alex Salmond, was briefly a director of Mathon, a company run by Glasgow bookie’s son Gregory King, 46.

It received millions in loans from King’s hedge fund Heather Capital which crashed owing a seven-figure sum.

Watson’s suspension came 24 hours after we revealed Heather liquidators Ernst & Young filed a multi-million court demand against his former law firm Levy & McRae.

Lord Gill, 73, can suspend sheriffs and judges if it’s “necessary for the purpose of maintaining public confidence”.

Watson forged a fearsome reputation as a media lawyer over 33 years with Levy & McRae before he left the firm six months ago.

King is one of four men named in a police report which is being considered by the Crown Office.

The Judicial Office for Scotland said last night: “Sheriff Peter Watson was suspended from the office of part-time sheriff on February 16.”

The National also recently reported on the continuing suspension of Peter Watson from the judicial bench, here:

Lawyer Peter Watson still suspended despite case ending

Martin Hannan Journalist

Peter Watson was suspended from the bench more than three years ago

LAWYER Peter Watson remains suspended from his position as a part-time sheriff despite a £28 million court action in which he was being sued having been brought to an end.

Lord Carloway, the Lord President and Scotland’s senior judge, is said by legal sources to be considering the position of Watson after Paul Duffy, the liquidator of Heather Capital, abandoned the £28m action against Levy and McRae solicitors in which Watson was a former partner.

Watson was suspended from the bench more than three years ago on February 16, 2015, after the then Lord President, Lord Gill, was informed of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

It was Watson himself who e-mailed the summons material to the Lord President’s office himself and volunteered “not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings,” as the Judicial Office stated at the time.

The statement added that Lord Gill had “concluded that … suspension was necessary in order to maintain public confidence in the judiciary.”

Watson now has his own law business, PBW Law.

He told reporters: “I am very pleased that this action has been abandoned and I am looking forward to serving my clients now it is clear that there was no valid basis for this claim.”

A spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.

“The Lord President will consider what, if any, steps now require to be taken?,” the spokesperson added.

 

 

Tags: , , , , , , , , , , , ,

WOLFFE COURT: Lord Advocate James Wolffe and his judge wife at centre of £9million damages claim – Questions remain why Lady Wolffe avoided recusal during emergency judge swap on court case against her own husband

Lady Wolffe was set to hear court case against her own husband. SCOTLAND’S judiciary continue to face fresh allegations of concealing conflicts of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by the Lord Advocate’s wife – who is a judge in the Court of Session.

And, it has now emerged a series of judge swaps on this case, from Lady Sarah Wolffe, to Lady Morag Wise, then Lord Paul Arthurson – has 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.”

The background to the civil damages claim stems from when David Whitehouse and Paul Clark were appointed to the former Rangers Football Club PLC in 2012 after owner Craig Whyte declared the business insolvent.

The Duff and Phelps administrators faced a failed prosecution bid by the Crown Office in relation to the collapse of the Ibrox oldco, while Mr Whyte was found not guilty of fraudulently acquiring the club during a trial in June.

The charges against David Whitehouse and his colleague Paul Clark were later dropped.

Both PoliceScotland Chief Constable Phil Gormley and Lord Advocate James Wolffe claim police and prosecutors acted in accordance with correct legal procedure.

Yet questions remain on how the Crown Office acted in this case, and many others where prosecutions which ultimately collapse, appear to be based on flimsy or even non-existent or unprovable evidence.

Police arrested and charged Mr Whitehouse and Mr Clark during the investigation into businessman Craig Whyte’s takeover of the club in 2011. Charges were dropped following a court hearing before judge Lord Bannatyne in June 2016.

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

Mr Whitehouse also claimed that police obtained evidence without following proper legal procedure. An indictment against Mr Whitehouse was issued without any “evidential basis”, his lawyers said.

It is also claimed the actions of police and prosecutors are said to have damaged Mr Whitehouse’ reputation of being a first-class financial professional and led to a £1.75m loss in earnings.

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

Two days later, a spokesperson for the SCTS then said: “I can confirm that Lady Wolffe was assigned to hear procedural matters in a number of cases on Wednesday 15 November 2017. One of those cases was listed on the rolls as David Whitehouse v Liam Murphy and others. Subsequently, when the papers were checked for consideration, it became apparent that the Lord Advocate was the third defender and accordingly the case was reallocated to a different judge.”

When challenged for further comment and an explanation for the judge swapping which led to a third judge hearing the case, a second spokesperson for the SCTS claimed: “Hearings and callings of cases which are primarily procedural of nature are allocated to Judges depending on what other business they are dealing with. It is common for such allocations to be altered on the day by the Keeper’s Office on behalf of the Keeper of the Rolls to ensure the efficient handling of business.”

“As confirmed previously, Lady Wolffe was assigned to hear procedural matters in a number of cases on Wednesday 15 November 2017. One of those cases was listed on the rolls as David Whitehouse v Liam Murphy and others. Subsequently, when the papers were checked by the Keeper’s Office, it became apparent that the Lord Advocate was the third defender and accordingly steps were taken by the Keeper’s Office to reallocate the case to a different judge. The case was initially reallocated to Lady Wise but, having regard to the level of business and to ensure that all cases were dealt with on the day, was subsequently dealt with by Lord Arthurson.”

Pressed for an explanation on why no note of a recusal should be entered in the Register of Recusals, a THIRD spokesperson for the SCTS claimed: “In this instance no note in the register of recusals is required as the case was administratively reallocated prior the case calling in court, in order to avoid unnecessary delay to the parties. Notes in the register of recusals relate only to formal motions for recusals – where an issue arises on which the judge requires to consider whether to decline jurisdiction, and the decision being formally recorded.”

Since the last hearing in the case on 15 December 2017, legal insiders have poured scorn on explanations offered by the Scottish Courts over decisions taken which would have seen the Lord Advocate’s own wife hear and rule on the court case involving her own husband.

Sources have since claimed there was ‘no mistake’ involved in the selection of Lady Wolffe for the hearing in November.

A legal insider said: “Everyone knows who Lady Wolffe is and everyone knows James Wolffe is the Lord Advocate.”

“It is therefore ridiculous for anyone to claim the Keeper’s Office or anyone else within the Judicial Office or courts is unaware of Lady Wolffe’s status as the wife of Lord Advocate James Wolffe”.

The Sunday Mail reports:

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.

ByCraig 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.

 

 

Tags: , , , , , , , , , , , ,

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

Court details reveal judge scheduled to hear case against her own husband. SCOTLAND’S judiciary are facing fresh allegations of conflict of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by a judge who is the wife of the Lord Advocate.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor has been lodged 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.

A copy of the Court Rolls handed to the media at the time reveal 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.

Liam Murphy is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe appears to have been removed from the hearing, with no official comment from the Judicial Office or Scottish Courts and Tribunals Service (SCTS).

Claims have since been made Lady Wolffe was suddenly dropped from the hearing when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A report from a source claims a second Court of Session Judge – Lady Wise QC – was then scheduled to hear the case.

However, the silent replacement of Lady Wolffe with Lady Wise – has now raised serious questions as to why there are no references to any note of recusal made by Lady Wolffe – who clearly had a conflict of interest in the case given one of the core participants in the action is her own husband – the Lord Advocate.

The case then takes another turn after media reports of the hearing on Wednesday 15 November reveal a third judge – Lord Arthurson QC – eventually heard the case, and has since arranged for a four day hearing for legal arguments.

The background to the civil damages claim stems from when David Whitehouse and Paul Clark were appointed to the former Rangers Football Club PLC in 2012 after owner Craig Whyte declared the business insolvent.

The Duff and Phelps administrators faced a failed prosecution bid by the Crown Office in relation to the collapse of the Ibrox oldco, while Mr Whyte was found not guilty of fraudulently acquiring the club during a trial in June.

The charges against David Whitehouse and his colleague Paul Clark were later dropped.

Both PoliceScotland Chief Constable Phil Gormley and Lord Advocate James Wolffe claim police and prosecutors acted in accordance with correct legal procedure.

Yet questions remain on how the Crown Office acted in this case, and many others where prosecutions which ultimately collapse, appear to be based on flimsy or even non-existent or unprovable evidence.

Police arrested and charged Mr Whitehouse and Mr Clark during the investigation into businessman Craig Whyte’s takeover of the club in 2011. Charges were dropped following a court hearing before judge Lord Bannatyne in June 2016.

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

Mr Whitehouse also claimed that police obtained evidence without following proper legal procedure. An indictment against Mr Whitehouse was issued without any “evidential basis”, his lawyers said.

It is also claimed the actions of police and prosecutors are said to have damaged Mr Whitehouse’ reputation of being a first-class financial professional and led to a £1.75m loss in earnings.

A legal document states: “He lost income, in particular his entitlement to bonus payments and future earnings. His reputation was severely damaged.”

At the hearing on Wednesday 15 November  – originally scheduled to be heard by Lady Wolffe –  lawyers acting for Mr Whitehouse appeared during a short procedural hearing where it also emerged Mr Whitehouse’s colleague Mr Clark is also suing the chief constable and Lord Advocate.

At the hearing, Court of Session outer house Judge Lord Arthurson arranged for a four-day hearing into the legal issues surrounding the case to take place at a later date.

Given the similarities of the two claims, lawyers are now examining whether the two actions should be rolled into a single case.

The case has emerged from the circumstances surrounding Mr Whyte’s takeover of Rangers in 2011. Mr Whitehouse and Mr Clark worked for Duff & Phelps and were appointed as administrators of the club in February 2012. Four months later, the company’s business and assets were sold to a consortium led by Charles Green for £5.5m.

Mr Whitehouse believes that his human rights were breached as a consequence of the actions of the police and prosecutors.

The chief constable and the Lord Advocate claim that police and prosecutors acted in accordance with correct legal procedure.

Lawyers acting for the top cop & Lord Advocate claim that Mr Whitehouse’s human rights were not breached and that he did not suffer any loss or injury as a consequence of the actions taken by the police and prosecutors.

Lawyers acting for the Chief Constable & Lord Advocate also claim should be dismissed because the Lord Advocate is exempt from civil action from people who were the subject of a legal investigation.

However, the use of the Lord Advocate’s immunity from civil action – in times where the Crown Office have often been found to have got things wrong in court, or have acted improperly during investigations and the application of criminal charges, should now come under increased external scrutiny and ultimately be withdrawn from legislation.

The Judicial Office, and the Scottish Courts and Tribunals Service have both refused to issue any further comment or statement on this case, despite the Judicial Office informing journalists a statement would be issued, over two weeks ago.

However, questions remain as to why no recusal has been posted by the Judicial Office with regards to Lady Wolffe stepping aside from the case.

Clearly, had a register of judicial interests existed in a form currently being studied by MSPs of the Scottish Parliament’s Public Petitions Committee, incidences such as these could be avoided.

Lady Wolffe Biography:

The Hon Lady Wolffe was appointed a Judge of the Supreme Courts in March 2014.

Lady Wolffe qualified as a solicitor in 1992 and worked at the Bank of Scotland legal department from 1992 to 1993. She called to the bar in 1994 and until 2008 practised as a junior counsel, mainly in commercial and public law. From 1996 until 2008 she was also standing junior counsel to the Department of Trade and Industry and its successor departments. Since 2007 she has been an ad hoc advocate depute. She was appointed QC in 2008. As senior counsel she has practised mainly in commercial and public law. She was a member of the Disciplinary Tribunal of the Faculty of Advocates 2005-2008 and has been a member of the Police Appeals Tribunal since 2013. Mrs Wolffe emigrated to the United Kingdom in 1987.

Crown Office Specialist Casework Function:

The Crown Office Specialist Casework Function – currently led by Deputy Crown Agent: Lindsey Miller – comprises a number of specialist units involved in the delivery of case preparation and the provision of  other legal services in support of COPFS core functions where the nature, size and/or complexity of the case or subject matter means that it is most effectively dealt with within Specialist Casework. This Function is managed nationally by Liam Murphy, Procurator Fiscal Specialist Casework, but delivered from various locations throughout Scotland.

The Specialist Casework units are:

  • Appeals
  • Criminal Allegations against the Police
  • Health and Safety Crime (including the Helicopter Incident Investigation Team)
  • International Co-operation Unit
  • Proceeds of Crime Unit
  • Scottish Fatalities Investigation Unit   (including Road Traffic Fatalities Unit)
  • Serious and Organised Crime  (including Counter-Terrorism and Economic Crime)
  • Wildlife and Environmental Crime Unit

The Civil Recovery Unit also sits within Specialist Casework.

The Specialist Casework and the High Court Functions together are known as Serious Casework.

 

Tags: , , , , , , , , , , , , , ,

CRIME ON,CROWN: Historical Abuse probe dropped as Crown Office forced to pay £10K to law firm Clyde & Co – after judge suspends Police search warrant to obtain evidence relating to accusations against ‘influential’ clients

Crown Office paid £10K to law firm subject of Police raid. SCOTLAND’S Crown Office & Procurator Fiscal Service (COPFS) has been forced to pay £10K public cash in legal and ‘other fees’ to a law firm representing a ‘important client’ in relation to a botched search blocked by a judge.

The payment of £10,021.38 to Edinburgh law firm Clyde & Co (formerly Simpson & Marwick) was revealed by prosecutors in response to a Freedom of Information request amid ongoing media enquiries which have now established any possible criminal prosecution in connection with the allegations of abuse is “dead in the water”.

The events surrounding the search warrant occurred last summer, in which Police Officers obtained a search warrant to raid the premises of Edinburgh law firm Clyde & Co, in relation to material officers believed the firm held relating to evidence of historical sexual abuse of minors.

A search warrant issued by a Sheriff upon an application from the Crown Office to raid the law firm, resulting in two police officers attending the offices of Clyde & Co at 58 Albany Street, Edinburgh, at 10am on 22 July 2016 with a search warrant to obtain the evidence.

However, a stand off ensued while Clyde & Co applied to the court for a judge to revoke the search warrant.

The search warrant was subsequently revoked blocked by senior judge Lord Brodie after counsel for Clyde & Co claimed legal professional privilege was attached to the alleged evidence of abuse.

While the Crown Office have now admitted they were required to pay legal & other fees to Clyde & Co, prosecutors refused to divulge any further information on the case, citing the information was held as part of a criminal investigation – which has now been dropped.

Christine Lazzarin for the Crown Office stated in the FOI response: “Firstly I should clarify that a Bill of Suspension hearing emanates from criminal proceedings and any correspondence held between COPFS, the Scottish Courts and Tribunal Service (SCTS), Police Scotland and Clyde & Co in relation to this hearing is exempt.”

“By way of explanation, this correspondence is held by a Scottish Public Authority, namely the Procurator Fiscal, for the purposes of an investigation which the Procurator Fiscal had a duty to conduct to ascertain whether a person should be prosecuted for an offence and it is therefore exempt from release in terms of Section 34(1)(a)(i) of FOISA.”

“This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption.”

“Whilst I appreciate that there is a great deal of information in relation to the hearing publically accessible on the SCTS web-site, I consider that there is a strong public interest in maintaining the confidentiality of correspondence in connection with allegations of criminality and consequently the Bill of Suspension hearing.”

“The confidentiality of such information ensures that the agencies involved in the criminal justice process can report to the Procurator Fiscal in a manner which is free and frank and for this reason I consider that the public interest favours upholding the exemption.”

“You have also asked for information about fees, costs, legal expenses or other funds paid by COPFS to SCTS and Clyde & Co. I can advise that COPFS paid a total of £10,021.38 in fees, and other legal costs to Clyde & Co after the hearing.”

Further enquiries into the case by the media have now established the investigation into the case of alleged abuse has now been dropped – with legal insiders at the Crown Office blaming the Crown Office handling of the search warrant, and the effect of Lord Brodie’s order cancelling the search warrant.

Legal sources have also speculated Police Scotland may have been forced to pay the same law firm – Clyde & Co – for their actions in seeking to serve the warrant and obtain the alleged evidence of abuse.

During the Financial year 2016 to 2017, a mysteriously large sum of public cash – £213,933.24 was paid to Clyde & Co by Police Scotland according to figures obtained in a recent media investigation into Police payments to law firms, reported in more detail here: Concerns on Public Bodies Legal Fees spending as figures reveal Scottish Police Authority fork out over £1m in legal fees, Police Scotland spend at least £1.3 million on external lawyers

However, faced with further searching enquiries, Police Scotland have point blank refused to disclose any further information about their payments to Clyde & Co and other law firms.

While the Crown Office have now dropped a prosecution in relation to the alleged abuse, the media are eager to speak to anyone involved in the investigation, or the victims themselves, who can if they wish come forward to DOI, by way of contacting the blog at scottishlawreporters@gmail.com

This latest floundered investigation into what is alleged to be an influential figure in relation to historical abuse crimes – is another blow for the failing leadership of the Crown Office – under current Lord Advocate James Wolffe QC & Solicitor General Alison Di Rollo (sister of Glasgow solicitor & former Law Society of Scotland President – Austin Lafferty)

Last month, it was revealed the Crown Office has given jobs – without interview – to relatives of high ranking Crown Office staff, who then went on to be charged with drug dealing offences – information which came to light in an ongoing investigation into Prosecutors interests and a secret Crown Office register of interests, reported in more detail here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

The Sunday Mail newspaper reported the payments from the Crown Office to Clyde & Co here:

Court chiefs fork out £10k to law firm after botched raid in abuse probe

‘Standards were not met’ when cops turned up with a warrant at Clyde and Co’s Edinburgh office and tried to seize ‘privileged and confidential’ material.

By Craig McDonald Sunday Mail 8 OCT 2017

Prosecutors have paid £10,000 to a law firm after a botched raid on their offices.

Police wanted to seize files from Clyde and Co lawyers that they believed related to an abuse investigation.

But the firm objected, stating the material was “privileged and confidential”.

Despite this, two officers turned up at the firm’s Edinburgh branch with a search warrant in July last year. The warrant was eventually blocked after a court hearing.

Judge Lord Brodie later ruled “standards were not met” regarding prosecutors’ handling of the case.

The Crown Office have now paid £10,021 in legal fees and costs to Clyde and Co.

Detective Constable Nicola Gow called Clyde and Co by phone on July 7 last year to tell the firm they had information in their files that might be relevant to a criminal inquiry.

Graeme Watson, a partner, told her he would check what information he could provide but that “client files were privileged and confidential”.

Gow said she would discuss it with her superior officer but told the firm “a search warrant might be sought”.

Watson wrote to the sheriff clerk in Edinburgh stating the files were covered by the “Data Protection Act, confidentiality and agent-client privilege”.

Two police officers turned up at the firm’s building in the city’s Albany Street with a warrant at 10am on July 22.

Clyde and Co went to court to have it blocked. In his judgment, Lord Brodie found the procurator fiscal’s actions in applying for the warrant “to have been oppressive”.

He said the wording was “misleading, if not simply inaccurate” and “requisite standards were not met”.

The Crown Office said last week: “We note the terms of Lord Brodie’s decision. The Lord Advocate has taken steps to ensure there will be no repeat of this situation.”

Police Scotland said: “As this is a matter for the Crown Office, it would be inappropriate for us to comment.”

Clyde and Co declined to comment.

POLICE STAND OFF AS JUDGE BLOCKS SEARCH WARRANT:

A full report on the opinion by Lord Brodie and his revocation of the Police Scotland search warrant was published by Scottish Law Reporter here: Police raid on Edinburgh law firm halted by judge – Lord Brodie hits out at Crown search warrant tactics against Clyde & Co over historic sex crimes investigation

An excerpt from the Bill of Suspension, signed by Lord Brodie in relation to the search warrant follows:

NOTE BY LORD BRODIE in BILL OF SUSPENSION by CLYDE AND CO (SCOTLAND) LLP Complainers;

against THE PROCURATOR FISCAL, EDINBURGH Respondent:

Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance (Crown Office did not appear at hearing)

22 July 2016

[1]        The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 1537 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 1700 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr  Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 1700 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed.

[2]        The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor Advocate, a partner in the complainers, are as follows.

[3]        A client of the complainers is S.  The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L.  These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice… which advice and information being disclosed was privileged.” As I understood matters, the complainers retain in their possession documents and files, both paper and digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege.

[4]        On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken.  She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought.

[5]        On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the Sheriff Clerk in Edinburgh requesting that the Sheriff Clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from [S].” No reply has been received to that letter.

[6]        Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers.

[7]        At about 1000 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms:

“to any Constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other Officer of Law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and any other evidence which may be material to the investigation into the alleged abuse at L held by said Clyde & Co, whether in a computer system or otherwise.”

Insofar as material to the issues raised in the bill, the averments in the petition were as follows:

“[S] have provided copies of documents referring to a code of conduct for staff … a punishment book, lists … statements, including what purports to be a statement taken from [a named person] and signed by her …

[S] have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality.

The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.

“There are reasonable grounds for believing that evidence material to the investigation … is found within the documents being withheld by the solicitor.  The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to [L].”

The full note by Lord Brodie – which was published three months after the events of the search warrant took place, can be found here: COPFS Bill of Suspension – Clyde & Co – Lord Brodie

It is also worth noting the Scottish Government have recently announced the scrapping of time bar on historical sexual abuse cases, as the case referred to Lord Brodie does contain references to claims in relation to allegations of abuse becoming time barred.

The Scottish Government announcement on scrapping time bar for claims in relation to historical sexual abuse states the following:

The Limitation (Childhood Abuse) (Scotland) Act 2017 is a piece of legislation which changes the rules around the time limits within which you can make a claim for compensation in the civil courts. Usually you have to make your claim within three years of the injury, or (if it is later) three years from your sixteenth birthday.

This change will mean that there will no longer be a time bar on childhood abuse claims in the civil courts. (It applies to abuse of a person under the age of 18.) There will no longer be a requirement to make a claim within the three years or to ask the court to use its discretion to allow the case to go ahead after that period.

The law usually prevents claims being taken to court more than once. The Act makes a limited change to this for childhood abuse claims. If you took a claim to court before the Act became law, but lost because of the time bar, the Act means that you should not be prevented from taking another claim to court.

This change is in relation to the three year limitation period, which is relevant to abuse that took place on or after 26 September 1964.

The commencement of the Limitation (Childhood Abuse) (Scotland) Act 2017 means survivors of child abuse no longer face the ‘time-bar’ that requires personal injury actions for civil damages to be made within three years of the related incident.

Minister for Community Safety & Legal Affairs Annabelle Ewing, who took the legislation through Parliament, said the move was an important part of wider Scottish Government action to support survivors of childhood abuse.

Ms Ewing said: “Child abuse is the most horrific betrayal of our young people and, even where such crimes were committed decades ago, we will do all we can to help survivors get the justice they deserve. Police Scotland and the Crown continue to work tirelessly to bring perpetrators to justice through our criminal courts. And, while it may not be the right way forward for all, survivors may now be considering the option of accessing justice through the civil courts.

“This legal milestone would not have happened but for the courage of many adult survivors whose persistence and dedication have shone a light on the dark realities of child abuse. Through their brave testimonies they have made clear the great hurt and damage caused by the very individuals and institutions who should have cared for them.

“Alongside our national survivor support fund, the establishment of the independent public Inquiry into in-care childhood abuse, and the current consultation on a potential financial redress scheme, this removal of the civil time-bar underlines the Government’s commitment to ensuring Scotland is beginning to make amends for the grave failings of the past.”

Welcoming the introduction of the Act, Joanne McMeeking, Head of Improving Care Experiences at CELCIS at the University of Strathclyde, said: “The abolishment of the time bar is the result of many years of successful campaigning by survivors. It is a welcome addition to the package of effective reparation as outlined in the Action Plan on Justice for victims of Historic Abuse of Children in Care.”

For previous articles on the Crown Office, read more here: Scotland’s Crown Office – in Crown detail

 

Tags: , , , , , , , , , , , ,