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Crown Office scandal

Lord Advocate apologises for ‘malicious’ prosecutions

Rangers panorama

The insolvency team were probing the takeover of Rangers (pic: SNS Group)

Scotland’s top law officer has publicly apologised for wrongly prosecuting two of the men who investigated the takeover of Rangers Football Club.

David Whitehouse and Paul Clark were former insolvency specialists with the firm Duff & Phelps who acted as administrators in the club’s collapse in 2012.

But the pair found themselves under arrest in 2014 and Mr Whitehouse recently described how he was forced to sleep on the floor of a police cell for six nights.

They settled out of court with the Crown Office in December and were both awarded £10.5 million in damages while legal costs are expected to be in excess of £3m.

The Crown Office has admitted that the prosecution that followed was “malicious”.

Lord Advocate James Wolffe today made a statement in the Scottish Parliament in which he apologised for the prosecution and admitted that decisions made were “indefensible in law”, but denied anyone had acted with malice

He said: “I concluded that those decisions proceeded without probably cause, i.e. without a proper evidential basis – in circumstances which met the legal test for malicious prosecution.”


But he said that despite the affair being a malicious prosecution, “no individual had malice in the popular sense of a spiteful motive”.

He added: “My acceptance of liability in this case did not depend on any individual being malicious in that popular sense.”

Mr Wolffe told MSPs that “profound departures from the normal practices” had taken place, and also admitted breaches over Mr Clark and Mr Whitehouse being detained in November 2014 and September 2015 and over an inaccurate press release being issued.

Confirming the payments made to the two men, he added: “They should not have been prosecuted and as the current Lord Advocate and head of the system of criminal prosecutions, I apologised unreservedly that they had been. I reiterate that unreserved apology publicly to Mr Clark and Mr Whitehouse today.”

He added: “In this particular case, there was a very serious failure in the system of prosecution. It did not live up to the standards which I expect, which the public and this parliament are entitled to expect and which the Crown Office and Procurator Fiscal Service expects of itself.

“What happened in this particular case should not have happened. As Lord Advocate and head of the system of prosecution in , I tender my apology to this Parliament and to the public that it did happen and for the subsequent cost to the public purse.”

Scottish Conservative justice spokesperson, Liam Kerr, said there had been an “extraordinary catalogue of unexplained, profound departures from the normal practices”.

Scottish Labour justice spokesperson Rhoda Grant said: “We imagine there are checks and balances within the system between the Police and the Crown Office and Procurator Fiscal Service, where both challenge and question the activities and evidence in a case.

“This appears not to have happened, or to have gone seriously wrong in this situation – with both being sued by David Whitehouse and Paul Clark.”

She added: “How could this have happened? Were there concerns raised internally or externally about the actions of both organisations at the time, especially when it came to light there was inconsistent evidence?

MSPs are being urged to back demands for an independent inquiry into the case.

Our report last week

The Scottish Conservatives say the “unprecedented scandal in Scottish legal history” must be examined to restore public confidence in the Crown Office and Procurator Fiscal Service (COPFS).

Ahead of a debate in Holyrood tomorrow, the Conservatives say any inquiry must be “led by a judge from a jurisdiction outwith Scotland” due to questions over the role of former Lord Advocate Frank Mulholland, who is now a high court judge..


The Conservatives say any inquiry should ask why malicious prosecutions were pursued in defiance of evidence; how much it will cost taxpayers; the Lord Advocate’s dual role as head of COPFS and government minister; the roles of Lord Mulholland and Police Scotland.

Scottish Conservative shadow finance spokesman Murdo Fraser, who raised the matter in parliament last week, said: “This case is a dark stain on the reputation of Scotland’s justice system.

“Not only will this end up costing taxpayers tens of millions of pounds at a time when our police and courts are in desperate need of resources, but it raises fundamental questions about integrity.

Murdo Fraser

Murdo Fraser: ‘a dark stain on judicial system’

“This was not simple human error or an obscure legal mistake. Our prosecution service has admitted that, acting with malice, they sought to throw innocent men behind bars and destroy their reputations.

“Nothing could be more deplorable than the state seeking to imprison citizens they know to be innocent.

“That is why the only acceptable outcome is for the SNP to agree to establish a judge-led inquiry with full power to get to the bottom of what happened.

“Given the central role of Lord Mulholland as the previous Lord Advocate, the public would also expect a judge from outwith Scotland, most likely from one of the other home nations, to be appointed.

“We simply cannot trust the SNP government to do the right thing and to think they can get away with vague platitudes and hollow assurances.”

The Conservatives motion (LINK) states:

That the Parliament notes the Crown Office and Procurator Fiscal Service’s admission of malicious prosecutions of David Whitehouse and Paul Clark, formerly administrators of Rangers Football Club PLC; notes that £24,086,250 of taxpayers’ money was paid out to Mr Whitehouse and Mr Clark for compensation and legal fees in this case; notes reports that suggest the cost to the taxpayer could increase further up to around £100 million; believes that this is an unprecedented scandal in Scottish legal history; further believes that these matters need to be fully investigated in order to restore public confidence in the Crown Office and Procurator Fiscal Service, and calls for a full, independent, public inquiry led by a judge from a jurisdiction outwith Scotland to investigate the malicious prosecutions of Mr Whitehouse, Mr Clark and any other party connected with Rangers Football Club.

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