LAST WEEK, Scottish Conservative MSP Murdo Fraser called a debate, demanding a public inquiry into the “malicious prosecutions” of two administrators of Rangers FC.
In his opening remarks he used the word “incredible”.
And the contents of the subsequent debate and contributions of members from across the chamber were truly incredible.
The facts in summary are that David Whitehouse and Paul Clark were partners in the international insolvency firm Duff & Phelps and handled the administration of Rangers Football Club plc.
They were later arrested on suspicion of fraud and on a Friday morning in November 2014, were taken from their homes in Chester, England and driven to Glasgow, arriving too late in the day to be able to appear in court – timing that they believe was deliberate.
They were held in police custody until the Monday morning, left in cells without a mattress to sleep on and with lights burning throughout the night, and were checked on hourly as they were deemed to be on suicide watch. They were, in their words, treated as if they were terrorists.
Until May 2016, the considerable weight of the Scottish criminal justice system was brought to bear on them.
Yet those individuals had committed no crime, and nor was there a proper evidential basis for them to be indicted. Their detention has been deemed a breach of article 5 of the European convention on human rights. Their prosecution, it has now been admitted by the Lord Advocate, was malicious. The experience that those innocent individuals suffered was horrific and, understandably, has had a major psychological impact on them both.
The Lord Advocate has admitted a “malicious prosecution”.
It was not a simple human error, or an obscure legal mistake, or an error of evidence that suggested a need for individuals to be taken through a criminal process to establish their guilt or otherwise. In fact, our system of prosecution is admitting, unequivocally, that there was a malicious move to throw two innocent men behind bars and destroy their reputations.
So what does “malicious” mean? The Lord Advocate gave a statement on Tuesday that such a prosecution can be “malicious” in law, but not have the requisite character of “malice” that the public might popularly think. Whether or not that is accepted, I am not convinced that a lack of “malice” means a lack of “criminal conduct” as the Lord Advocate seemed to suggest when he said that whilst there had been “significant departures from standard practice” he did not concede criminality by anyone in the Crown Office.
In brief, malice is a personal act, and an organisation cannot be malicious. To draw his conclusions from the investigation that he instructed, the Lord Advocate must have identified one or more individuals with the requisite mens rea for the offence, to conclude that the prosecution was malicious. That is, per the dictum of Lord Justice Bayley in the case of Bromage v Prosser, “a wrongful act, done intentionally, without just cause or excuse”, which according to Quinn v Leathem, is “proof of malice”.
So the Lord Advocate must have identified an individual who, in their duties, acted wrongfully and “intentionally, without just cause or excuse”. Misconduct in public office is a crime. The conclusion that there was no criminal conduct surely requires deep exploration by an inquiry, in order to retain public confidence, one would have thought.
In any event, innocent individuals who were carrying out their job lawfully have faced prosecution not because of a suspicion that they had done anything wrong, but because of malicious intent by agents of the state. To the best of my knowledge, there has never been another instance of malicious prosecution in Scots law but, as Murdo Fraser put it, “we are still no closer to an explanation as to how and why those individuals became victims of a malicious prosecution; who authorised the action against them; or what the motivations behind that were”.
What we do know is that Messrs. Whitehouse and Clark were awarded £21 million in compensation and a further £3m in legal fees as a result of their malicious prosecution.
The Lord Advocate confirmed on Tuesday that those damages have been paid with a tax indemnity, meaning that, should Her Majesty’s Revenue and Customs come against them for tax, the additional cost will be met by the Crown Office, potentially doubling the payout.
The Crown Office could be forced to pay overall damages of up to £100m when all the cases are finalised.
We do not yet know from which budget that money will be taken, but however the finance secretary chooses to do it, vital public spending of some description will lose out.
So it is imperative we understand why this happened, who was responsible and how such grievous acts went unchecked for so long.
But getting answers must be combined with ensuring that there is full public confidence in the prosecution system. On Tuesday the Lord Advocate told me in response to my Chamber questions that “in this case… the normal processes that are routinely followed in every High Court case were not followed, but the public should take reassurance… [that]… the prosecution system in Scotland is robust, fair and independent, and is one on which they can rely.”
But he did not articulate WHY we should have such confidence.
Certain individuals must have made decisions that meant the prosecution proceeded. We need to know who they are and what those decisions were, and those people need to be held to account for them. The public need to be reassured that what we have just seen can never happen again.
The Lord Advocate told us there had been an investigation undertaken by a legal team instructed by him. Yet from the outside it looks like the Crown Office is marking its own homework. There will not be public confidence in any inquiry unless it is conducted externally and in public.
During the debate, the Lord Advocate argued that it is premature to conclude that any inquiry need not be before a Scottish judge. I do not agree. Given that this all happened on the former Lord Advocate’s watch and now responsibility has been admitted by the present Lord Advocate, it is imperative that there are no questions around legitimacy and independence.
The SNP Government argued that that an inquiry should await everything being completed in this matter. Again I argue that that view is not sustainable due to the the extraordinary circumstances and costs of the scandal.
The public must have answers as to why malicious prosecutions were pursued in defiance of evidence. To fail to set up a full, independent and public inquiry conducted by a member of the judiciary from outside Scotland, without delay, would, indeed, be “incredible”.
Liam Kerr is Shadow Justice Secretary and a Conservative & Unionist member of the Scottish Parliament for the North East.