Crown Office Hedge Fund probe secrecy. A FIVE YEAR investigation by the Crown Office & Procurator Fiscal Service (COPFS) into charges relating to a collapsed hedge fund - remains shrouded in secrecy after the case was axed, and with a recent decision to block disclosure of costs of the probe.
The collapse of the Isle of Man based Heather Capital Hedge Fund saw four persons charged after a three year long Police investigation - in April 2013 - in connection with events relating to the broke £400million hedge fund.
Heather Capital launched in 2005 - attracting global investors, loaning money to fund property deals.
After the collapse of the hedge fund in 2010, Paul Duffy, the liquidator of Heather Capital - claimed that about £90 million was unaccounted for.
However, in February of this year, Lord Advocate James Wolffe QC quietly axed the lengthy five year investigation of the collapsed hedge fund and solicitors Gregory King & Andrew Sobolewski , accountant Andrew Millar and property expert Scott Carmichael.
In a response to a Freedom of Information request, the Crown Office has now refused to disclose any information in relation to the costs of the five year investigation into a collapsed hedge fund which saw four persons charged by Police Scotland in 2013.
The Crown Office were asked for information contained in the costs (figures) of the investigation by the Crown Office into charges against four persons in relation to the collapsed Hedge Fund Heather Capital.
When (date) the decision was taken to drop any action against the four persons charged in connection with above.
How many independent or other counsel & crown counsel served or worked on this investigation (and other COPFS staff, or others contracted in for this investigation (and their speciality role) - and their costs.
Information contained in any overseas travel (dates & destinations, costs of) in relation to this investigation.
Responding for the Crown Office, Christine Lazzarin claimed there was no costing available for the failed five year investigation, as the Crown Office intentionally does not monitor costs in investigations.
However, legal insiders have suggested costs around the five year investigation have run into millions of pounds,and that some felt the case was flawed from the outset due to ‘a lack of additional charges.
There are also claims a number of prosecutors & counsel became inactive, leaving the probe over the span of the five years.
Responding to the Freedom of Information request, Christine Lazzarin of the Crown Office ‘Information Unit’ wrote: In relation to your request I will firstly explain that the Crown Office and Procurator Fiscal Service (COPFS) does not routinely collate the total costs associated with investigating individual cases, and having made enquiries with our Finance Division I can advise that there are no COPFS costs recorded against the case reference allocated to this investigation.
By way of explanation there was no specific team created to investigate this case and all COPFS costs associated with the investigation will be addressed within the existing budgetary framework and not recorded separately. We do not therefore hold associated staffing costs in terms of Section 17 of FOISA. Additionally I can confirm that there was no overseas travel involved in this investigation.
The investigation was handled by staff within the COPFS Serious and Organised Crime Division (SOCD) in consultation with the COPFS International Co-operation Unit. The case was then reported to Crown Counsel to take a decision on whether to prosecute.
Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed that there should be no proceedings at this time. The Crown however reserves the right to raise proceedings should further evidence become available.
It may be helpful if I outline the COPFS policy in relation to providing case related information in relation to a Freedom of Information request. Other than confirming that we do hold information, this information will not be provided to persons unconnected to a case under a Freedom of Information Act request. Information about a case will include sensitive personal data about the accused, victims and witnesses in terms of the Data Protection Act 1998, disclosure of which could constitute a breach of that legislation. Where disclosure of personal sensitive information would contravene the Data Protection Act, we are not required to disclose it under FOISA.
Having explained our general position you have asked for the date this decision was made and I can advise that I am unable to provide you with the information you have requested for the following reasons:-
The information is exempt in terms of section 34(1)(a) of FOISA because it is held by the Crown Office and Procurator Fiscal Service for the purposes of an investigation carried out by virtue of a duty to ascertain whether a person(s) should be prosecuted for an offence(s). This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption. Although the public interest is not defined in FOISA it has been described as "something which is of serious concern or benefit to the public”. It has also been held that the public interest does not mean "of interest to the public” but "in the interest of the public”. The decision to take no proceedings at this time is already in the public domain but I do not consider that it is in the interests of the public to know the date the decision was made. Additionally as the Crown reserves the right to raise proceedings should further evidence become available in the future it would be inappropriate to release case related details over and above those already in the public domain.
I also consider that under section 38(1)(b) of FOISA, release of the information requested would contravene section 10 of the Data Protection Act 1998 as you are requesting details of a criminal case reported to COPFS against particular individuals. This is an absolute exemption and I am not required to consider the public interest test.
I hope you find this information helpful.
If you are dissatisfied with the way in which your request has been handled, you do have the right to ask us to review it. Your request should be made within 40 working days of receipt of this letter and we will reply within 20 working days of receipt. If you require a review of our decision to be carried out, please e-mail email@example.com.
The review will be undertaken by staff not involved in the original decision making process.
If our decision is unchanged following a review and you remain dissatisfied with this, please note that although generally under section 47(1) of FOISA there is a right of appeal to the Scottish Information Commissioner, where the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland, under section 48(c) no application can be made as respects a request for review made to the Lord Advocate. The information you have requested appears to fall into that category, although ultimately it would be for the Commissioner to decide whether that was the case should you refer the matter to him.
In circumstances where section 48(c) does not apply and the Commissioner accepts an appeal, should you subsequently wish to appeal against that decision, there is a right of appeal to the Court of Session on a point of law only.
While an investigation will be sought from the Scottish Information Commissioner’s office, previous attempts to have the SIC look at Crown Office blocking of Freedom of Information requests have fallen by the wayside – even when a request was made to investigate the Lord Advocate’s secrecy block on publication of the COPFS register of interests, more on which can be viewed here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests - after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms
Although the Crown Office have refused to answer any questions on the status or costs associated with their five year investigation of the Heather Capital collapse, legal insiders have pointed to previous COPFS investigations and recent trials of financial frauds, where costs to the taxpayer have ran up to nearly ten million pounds.
One such case was the Mclaren property fraud case – which the Crown Office did everything in their power to avoid categorising as a “mortgage fraud” prosecution – after claims emerged the fraud duo once worked for, and had dealings with among others - a senior legal figure linked to one of the current top legal officers in the Crown Office.
In the McLaren case, Edwin McLaren, from Quarriers Village in Renfrewshire, was found guilty of property fraud totalling about £1.6m, convicted on 29 charges, and his wife Lorraine – on two charges.
The trial at the High Court in Glasgow began in September 2015 and heard evidence for 320 days.
Reports in the media quoted costs of around £7.5m, with more than £2.4m in legal aid paid for defence lawyers.
However, legal insiders claim the investigation by COPFS prior to the trial of the McLarens also ran into millions of pounds.
Similarly, with the complexity of the Heather Capital collapse – at £400million - the trail of money and international capital transfers - the costs of the Crown Office five year Heather Capital probe are likely to be at least equal to, or significantly higher than the investigation into the McLaren property fraud prior to that case going to trial.
HEATHER CAPITAL £28M CIVIL CLAIM ENDS:
Solicitor Peter Black Watson, formerly of Glasgow law firm Levy & Mcrae – was linked to the collapsed hedge fund in a now abandoned £28million civil claim.
However, it has been previously reported part time Sheriff Peter Watson was suspended in February 2015 by Scotland’s top judge - Lord Brian Gill “to maintain public confidence in the judiciary”
A statement from the Judicial Office for Scotland issued after a newspaper asked for a comment, stated: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.
“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.
The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.
Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.
On Monday 16 February the Lord President considered the matter.
Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.
Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”
Peter Watson now has his own law business, PBW Law – also based in Glasgow.
Watson, and his former law firm named in the Heather Capital writ - Levy and Mcrae – also currently represent the Scottish Police Federation – who in turn represent all Police Officers in Police Scotland.
Investigations by the media also show that suspended Sheriff Peter Watson represented, among others – Lord Advocate Elish Angiolini – during her term as Lord Advocate.
Watson’s other clients included Alex Salmond, Stephen Purcell, Yorkhill Hospital Board – which has now changed it’s name to Glasgow Children's Hospital Charity – of which Watson is chair, of the board and Rangers Chiefs.
In Court documents published online by the Scottish Court Service, it is noteworthy that during the tenure of Lord Advocate Elish Angiolini – who was Lord Advocate from 12 October 2006 – 30 April 2011, significant transfers of capital from Peter Watson’s law firm – Levy & Mcrae – took place to Panamanian and Gibraltar registered companies.
Records from the Court of Session reported:
On 4 January 2007, HC transferred £19 million to its client account with Levy and Mcrae.
On 24 January 2007, HC transferred £9.412 million to its client account with Levy and Mcrae.
On 9 January 2007, Levy and Mcrae transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security.
On 29 March 2007, Levy and Mcrae transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security.
A full report on the now abandoned £28million civil claim case against Peter Watson & Levy & Mcrae, and Lord Carloway’s consideration of Watson’s continuing suspension from the judicial bench can be found here: CAPITAL NUDGE: Scotland's top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson - suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital