MacAskill slams ‘gobsmacking’ sums paid out in failed Rangers case
A FORMER SNP justice secretary has warned Scotland has become a haven for “rich man’s justice” after the Solicitor General said that massive damages payouts over malicious prosecutions in the failed Rangers fraud case were the result of victims’ high salaries.
Kenny MacAskill had raised issues with the Lord Advocate, Scotland’s most senior law officer, over the millions in damages payouts made to those maliciously prosecuted in the failed Rangers fraud probe as it could cost the public purse over £120 million.
The amount already paid out to three people in the Rangers case is nearly three times that paid to 19 people in miscarriage of justice compensation in Scotland over 10 years.
Now Mr MacAskill, who was justice secretary for seven years from 2007, has called for change after being told by the Solicitor General Ruth Charteris that the high levels of payouts were due to the fact those making the claims were “high earners”.
It comes as new questions are raised about why then-Lord Advocate James Wolffe accepted there were malicious prosecutions leading to concerns it would set a precedent for further “eye-watering” taxpayer payouts.
Mr MacAskill says there remains little transparency on the level of compensation tariffs used to reach settlements in the Rangers case.
‘Eye-watering’
THE Scottish Government has committed to an inquiry into the failings which have already led to £33m in damages and legal fees in the past year, with that figure estimated to potentially soar.
Among the beneficiaries of the malicious prosecutions in the Rangers case were finance experts David Whitehouse and Paul Clark of multi-national consultants Duff and Phelps who were among seven arrested in 2014 after they were appointed administrators of
Rangers when it fell into insolvency in 2012.
Ms Charteris said the settlements in the cases of Mr Whitehouse and Clark were the results of claims under past and future loss of earnings.
“Accordingly, the sums paid in settlement of those cases reflected the circumstances of the pursuers as high-earning individuals. The settlements have been properly evidenced and quantified to compensate the pursuers for the losses they suffered,” she said.
Mr Whitehouse and Mr Clark were among those subjected to detention and criminal proceedings in relation to fraud allegations in the wake of Craig Whyte’s disastrous purchase of Rangers from Sir David Murray for £1 in May 2011, and its subsequent sale before a judge dismissed all charges.
It came amid recriminations over Mr Whyte’s takeover supported with the mortgaging of future season-ticket sales and the club’s 2012 Sevco buyout from administration led by tycoon Charles Green.
£26.6m payout
MR Whitehouse and Mr Clark settled out of court with the Crown Office in December to the tune of around £26.6m including costs, with the Lord Advocate admitting a malicious prosecution.
Mr Green, whose Sevco consortium took over the club in June 2012, also won a £6.4m payout after a further malicious prosecution admission.
But there was no similar admission in the case of David Grier, a Duff and Phelps executive, who has been seeking £5m damages from the Lord Advocate and £9m from Police Scotland.
Court of Session judge Lord Tyre ruled there was “no probable cause” to prosecute and later ruled that Mr Grier had not made out a case that there was a malicious prosecution.
No award was made in a decision that is to be appealed.
Mr McAskill, the former defence agent who set up Edinburgh-based legal firm Erskine Macaskill who is now deputy leader of the Alba Party, said: “I asked the new Lord Advocate about quantification. There’s still questions to answer.
“It does though indicate the sums are the scale they are due to the fact that they’re high earners.
“But these sums still are gobsmacking given a full admission of liability for a malicious prosecution and where future loss must be limited as a result.
“I think we need clarity. What was paid out and why? It does seem that this is rich man’s justice being practised by the Crown. The sums paid out are still extraordinary and way beyond what is normally paid. This does seem to indicate one law and one level of damages for the rich, and quite another for everyone else. Almost every victim of crime or an accident at work or injury anywhere else can only look on in awe.”
New questions
QUESTIONS have been raised over the logic of agreeing to earlier malicious prosecutions.
Retired sheriff Douglas Cusine queried why the Lord Advociate agreed to malicious prosecutions but felt that did not apply to Mr Grier despite arising from the same events.
He believed that Lord Advocate James Wolffe, who stepped down in June, should not have conceded “malice” in the earlier hearings without having that issue decided by a court.
Mr Cusine said it was “worrying” that public funds have been spent but the Scottish Government has not yet felt the public are entitled to know why such payments were thought to be necessary.
He says a judge-led inquiry into the whole matter should sort out the legal grounds for malicious prosecution and because “there are a large number of matters which, in the public interest, need to be looked at, if only because, in the eyes of some, there has been damage to the reputation of the prosecution service”.
Mr Cusine said: “The inquiry needs to be led by someone who was not in the Crown Office when Frank Mulholland was the Lord Advocate, as these prosecutions took place ‘on his watch’. That points to the appointment of someone familiar with the Scottish system of prosecution and not an outsider, who would need to be brought up to speed with the inevitable cost to the public purse.”
He said the public are now entitled to know “why the prosecution was mounted, who made the decision to prosecute, and what steps will be put in place to ensure that there is no repetition”.
‘Under a bus’
KEVIN Drummond QC, a former sheriff in Lothian and Borders, said Mr Wolffe, in his capacity as head of the prosecution service, “threw the Crown Office under a bus” in announcing the malicious prosecutions which appeared to have been done on the basis of advice from Scottish Government Legal Directorate (SGLD), of which he is also the head.
He said the “significant” effects of the decision have serious implications for the “dual role” of the Lord Advocate in his capacity as senior legal adviser to the Scottish Government and his separate role as head of the prosecution service.
“There might even be professional issues of conflict of interest arising from the conflicting advice from the two separate arms of Government which he heads,” he said.
Between January 1, 2000 until March 31, 2019 the payouts to 19 claiming miscarriage of justice totalled £12.155m. Just £33,000 of that was paid out in the final two years. In the five years to the end of 2020, just £376,987 in compensation was paid out to 10 people who were wrongly convicted.
A Crown Office and Procurator Fiscal Service spokesman said: ‘The damages paid in this case reflect the circumstances of the pursuers as high-earning individuals.
“The settlements have been properly evidenced and quantified to compensate them for the losses they suffered.
“COPFS is committed to further public accountability and a process of inquiry once all litigation has concluded.”
We need clarity. What was paid out and why? It seems that rich man’s justice is being practised by the Crown