Those responsible for ‘malicious’ prosecution must be held to account

The remarkable admission made on behalf of Scotland’s Lord Advocate in the Court of Session last month that the prosecution of two men had been “malicious” and conducted without “probable cause” is an extraordinary statement, and raises really serious questions about the behaviour of our prosecution service.

The case revolved around the prosecution of David Whitehouse and Paul Clark, partners in the insolvency practice Duff & Phelps which handled the administration of Rangers FC. Both Whitehouse and Clark were detained, arrested, and prosecuted for alleged fraud in connection with the administration. They were cleared of all charges, and subsequently raised court proceedings against the Crown Office claiming that they had been unlawfully treated.

Despite originally denying any wrongdoing, the Lord Advocate has now accepted that large parts of the prosecution against the two men were malicious. As far as can be remembered, this is unprecedented in Scottish legal history.

Already Whitehouse and Clark have been awarded £600,000 in legal costs from the taxpayer, but this is only a fraction of the total money that they could be due.

They are seeking a total of £14 million from the Crown Office and Police Scotland for alleged wrongful detention, arrest and prosecution.

Over and above that, both Charles Green and Imran Ahmad – also connected with the Rangers saga – are pursuing the Crown separately in a related case, meaning that the total damages which could be awarded might well exceed an eye-watering £20 million.

How on earth did we end up in a situation where the taxpayer is potentially paying out such huge sums, due to a failure on the part of the prosecution service? And why have two innocent men had to go to such lengths to clear their names?

Clark’s lawyer Ian Ferguson QC told the court last month that his client had spent more than £1 million on legal costs, whilst Roddy Dunlop QC acting for Whitehouse said that his costs extended to £1.8 million. It is only because these two individuals are personally wealthy that they have been able to get justice, in a way that would never be open to those of more limited means.

The original case against Whitehouse and Clark was taken at the instance of the former Lord Advocate, Frank Mulholland, now a judge, and replaced in the role in 2016 by the current holder, James Wolffe. Both these individuals have to be held accountable for this astonishing turn of events, and one which could see the taxpayer forking out many millions in compensation.

The Court of Session case involving Whitehouse and Clark continues, and will have to be resolved either by a legal judgement, or (perhaps more likely) by means of an out-of-court settlement. But whatever the final sums involved, there has to be a full and open investigation into what exactly has gone wrong here, and those responsible held to account.

The simple fact that the Lord Advocate has admitted a malicious prosecution should send shivers down the spine of anyone concerned about the integrity of the Scottish legal system.

It is something that we might expect from a third-world country like Zimbabwe or North Korea, not modern Scotland. I will be pressing for a full, detailed, and public inquiry into what exactly has gone wrong here, to ensure that those responsible do not evade justice themselves.

Murdo Fraser is a Scottish Conservative MSP for Mid Scotland and Fife