RANGERS PAIR IN LINE FOR £21MILLION
Insolvency experts ‘who should never have been prosecuted’ set for massive payout from taxpayer
SCOTLAND’S top law officer has given the green light in court to massive compensation payments to two former Rangers administrators at the centre of a botched fraud probe.
Gerry Moynihan, QC, representing the Lord Advocate, told judge Lord Tyre that fraud charges against David Whitehouse and Paul Clark should have been dropped following their first appearance in court.
The Court of Session heard last month how parts of the prosecution against the two insolvency experts were ‘malicious’ and conducted without ‘probable cause’.
The concession came as a consequence of a legal action brought to Scotland’s highest civil court by Mr Whitehouse and Mr Clark. Mr Moynihan said the Crown had no objection to having to pay the money sought by the two men if Lord Tyre was to rule against it. He said in the event of the Crown losing the action, Mr Whitehouse and Mr Clark should be compensated on the basis that they should not have been prosecuted ‘at all’.
A series of probes were mounted following the takeover of Rangers in 2011 by Craig Whyte, who was tried in 2017 over fraud allegations – and cleared. Key figures in the row, including Mr Whitehouse and Mr Clark, are now seeking damages from police and prosecutors over what has been described as ‘a vendetta’ in lawsuits which will cost taxpayers tens of millions of pounds.
Calls are now growing for an official investigation into the Rangers shambles, backed by leading legal figures including former Justice Secretary Kenny MacAskill.
Mr Moynihan told judge Lord Tyre the Crown Office had disclosed more documents relating to the failed prosecution to lawyers acting for the two men. He said after reviewing the circumstances of the case, prosecutors concluded it should not have progressed against the pair, adding: ‘It is clear that they should never have been prosecuted at all.’
The court had previously heard that ‘numerous meetings’ were chaired by the Lord Advocate at the time, Frank Mulholland, QC, now judge Lord Mulholland, where strategic decisions were taken relating to the prosecution.
Mr Whitehouse and Mr Clark are seeking a total of £20.8million from the Crown Office and Police Scotland for wrongful arrest, detention and prosecution.
Their actions have stemmed from their alleged treatment by the police and prosecution authorities after the two men were appointed administrators of Rangers in February 2012. The club was liquidated in October 2012 and Mr Whitehouse and Mr Clark left their positions.
It is claimed in the current action that there was not any justification for their detention, committal or prosecution and that the Crown never had sufficient evidence for any of the charges it brought.
Mr Whitehouse and Mr Clark won a ruling from a specially convened bench of five judges at the Court of Session last year that the Lord Advocate did not have absolute immunity from a civil damages claim in such circumstances.
Even though the Crown now concedes large parts of the prosecution were ‘malicious’, they believe they previously had sufficient justification to bring the men to court for a petition hearing – the legal term for an initial appearance. Police Scotland still maintain they had ‘sufficient cause’ to arrest and detain the men.
A further procedural hearing was set for September 29.
Meanwhile, Mr MacAskill said ‘the very integrity of the prosecution service’ had been called into question by the Rangers case and the fallout from the Alex Salmond trial. Writing in The Scotsman, Mr
MacAskill said the Crown Office ‘has latterly failed to cover itself in glory’.
Alistair Bonnington, a former honorary professor of law at Glasgow University, called for a probe to be led by a former prosecutor based outside Scotland. He said the admission of malicious prosecutions ‘can’t be allowed to pass unexamined’.
A Scottish Government spokesman said: ‘Decisions about prosecution are taken by the Lord Advocate who acts independently of the Scottish Government in this respect.’