Wednesday, November 30, 2022

NHS COVER-UP: Deputy FM John Swinney accuses NHS Grampian of damaging medical providers - seeks action from Health Secretary on report detailing how NHS Grampian Executives & staff deliberately targeted & discredited medical companies to switch contracts, cover-up Procurement Fraud & conceal Patient Safety risks

Health Sec. must act on NHS Grampian – John Swinney. SCOTLAND’S Deputy First Minister has demanded action from the Health Secretary on a report containing evidence of a malicious campaign carried out by named NHS Grampian Executives and staff who targeted medical companies to remove their business, hand the same contracts to former colleagues in the NHS, and cover-up their own use of untested chemicals on hundreds of patients.

The report – sent by John Swinney to Health Secretary Humza Yousaf with a written demand for action – quotes references from the probe of how NHS Grampian Executives and staff colluded in a discrediting campaign against medical providers to switch their business to other companies & colleagues.

Mr Swinney’s letter highlights conclusive findings which state: ”In investigating, it appears that from June 2018 there has been an unnecessary need to engage with Wassenburg as the preferred contractor of choice and that need has created some poor decision making including what appears to be discrediting MDUK to meet that need.”

Since early 2021, journalists have been examining the evidence in relation to the NHS Grampian scandal, submitting several FOI requests to obtain disclosure on events around procurement corruption, unlawful removing of contracts from certain medical providers and handing their business to former NHS employees, and a wider range of allegations of corruption around several individuals at NHS Grampian.

Some of the information obtained by journalists examining this case, and certain documents obtained via Freedom of Information and other sources, has been published on Twitter in a lengthy thread, which begins at the following link: FOI confirms NHS Grampian conducted thousands of invalidated procedures & covered-up incidents

An initial Freedom of Information request to NHS Grampian confirmed the NHS Trust has conducted thousands of invalidated procedures & covered-up the incidents- potentially putting thousands of patients’ at risk - after a whistleblower medical supplier – Medical Devices UK - reported NHS Grampian were using incorrect processes in endoscopy equipment.

A collection of documents released in response to Freedom of Information requests from journalists - detail the extent of discussions between NHS Grampian staff who were attempting to cover their tracks on using untested chemicals on patients can be found here: NHS Grampian Patient Safety Chemicals misuse probe FOI2021732

During the ongoing investigation, material was also obtained by journalists in relation to a secret internal NHS Grampian report authored by an NHS Grampian employee Mr Peter Gilchrist.

The original unredacted version of this report, which is also held by Deputy FM John Swinney - can be found here: DR GRAYS - Peter Gilchrist Report 20-12-19

Mr Gilchrist’s internal report details significant and serious wrongdoing within NHS Grampian, and goes into considerable detail on how contracts and business were removed from medical providers, accusing NHS Grampian Executives and staff of mounting a discrediting campaign against medical providers, at significant cost to taxpayers.

The report also identifies by name - NHS Grampian Executives and staff who were involved in a highly organised campaign, targeting medical providers to remove their business and hand it to former colleagues who previously worked in the NHS.

However, when journalists requested a copy of the report via Freedom of Information legislation, the version of the report released to journalists by NHS Grampian – was found to have been deliberately re-worded for FOI release – and omitted key evidence terms finding NHS Grampian Executives and Staff deliberately set out to discredit existing medical providers.

On studying the report, and further FOI material - it has become clear NHS Grampian employees were acting in a common cause - with an intention to remove business from medical providers – in this case – Medical Devices UK, and switch MDUK’s business to ‘preferred bidders’.

Further enquiries by journalists have established the ‘preferred bidders’ who were handed MDUK’s business - turned out to be former NHS employees.

Currently, the Scottish Information Commissioner is examining material and statements from journalists in relation to NHS Grampian’s re-wording of Freedom of Information disclosures.

The Scottish Information Commissioner’s office has also asked journalists if they are willing to speak to Police Scotland on this matter.

It is worth noting, this same report authored by Peter Gilchrist of NHS Grampian - in original form - was held by John Swinney for two years prior to NHS Grampian’s disclosure of a false version in late 2021

At this time, there is ongoing work by journalists in relation to this case, and further articles will appear detailing specific incidents, including NHS Executives discussing how to alter and rig evidence for presentation in the Court of Session.

Journalists are also examining material which indicates a former Cabinet Secretary for Health – Shona Robison – appeared to understand the extent to which Scottish Ministers were being deliberately misled by NHS Grampian Executives.

In a letter dated 2018 to John Swinney, the then Health Secretary Ms Robson informed Mr Swinney she backed a resolution to the affair – in which Ms Robison indicated the working relationship between NHS Grampian should be restored with reliable medical providers who had been subject to a concerted and malicious campaign by NHS Grampian Executives and staff.

And, prior to the Deputy First Minister’s demand for action on this scandal, John Swinney wrote directly to NHS Grampian in February 22, stating the actions of NHS Grampian staff had damaged the business of Medical Devices UK – damage which is backed up by evidenced material disclosed via Freedom of Information legislation.

Mr Swinney wrote: “As I have looked at a number of matters raised by Mr Donnelly, I am concerned that his business has been damaged by the unwarranted actions of some NHS Grampian personnel. I have been trying to secure satisfactory answers for some time but am frustrated by the lack of progress. Consequently, I now believe that the only appropriate way to resolve the series of issues connected with this case is through an independent investigation. I will therefore be writing to the Cabinet Secretary for Health and Social Care, Humza Yousaf MSP, to raise this matter with him and to ask that such an investigation takes place.”

Journalists have this week, attempted to establish why there has not yet been a response from the Cabinet Secretary for Health, Humza Yousaf, to the Deputy First Minister’s letter of 8 March 2022.

It has since been made known Mr Swinney’s office is currently seeking a response to the Deputy First Minister’s points in relation to the actions of NHS Grampian.

DFM John Swinney’s letter to Cabinet Secretary for Health Humza Yousaf:

I write on behalf of my constituent, Mr Jason Donnelly. Mr Donnelly is the Managing Director of Medical Devices UK Ltd, a company that provides an independent testing and validation service for decontamination facilities. The company previously provided these services at Aberdeen Royal Infirmary and a number of other NHS sites.

For nearly four years, I have been making representations on behalf of Mr Donnelly regarding ongoing issues his company has had with NHS Grampian. My representations have centred around my constituent’s concern that NHS Grampian was trying to discredit his company, allegations of manipulation of procurement frameworks, concerns over the transparency of NHS Grampian throughout this process and, latterly, the apparent editing of documents obtained via Freedom of Information requests.

In both September 2017 and February 2018, Medical Devices UK identified potential patient safety risks within NHS Grampian facilities due to attempted changes to the existing processes for cleaning equipment and storage of endoscopy equipment to ensure effective decontamination.

As a result of performing this contracted work and flagging the safety breaches to NHS Grampian staff, Mr Donnelly believes that senior figures within the health board have attempted to discredit his company, prevent his company from obtaining other work within NHS Scotland and ultimately blame his company for the safety breaches which were recorded as mandatory failures by NHS Grampian staff in the investigation report to MHRA.

As a result of the fallout from the incidents in September 2017 and February 2018, Mr Donnelly subsequently lost his business with NHS Grampian. This has been the cause of significant financial difficulties for my constituent’s business.

Mr Donnelly has shown me documentation that leads my constituent to believe that NHS Grampian has acted in a dishonest manner. For your convenience, I have included copies of these documents for your perusal.

Appendix 1 is an e-mail trail from May 2019 that shows a senior figure within NHS Grampian contacting NHS Tayside to warn them against using Medical Devices UK as a contractor. Several other FOI communications now reveal this was more widespread.

I have also included Appendix 2, which is an NHS Grampian Internal Report. On page 10 of this report, it reads: “In investigating, it appears that from June 2018 there has been an unnecessary need to engage with Wassenburg as the preferred contractor of choice and that need has created some poor decision making including what appears to be discrediting MDUK to meet that need.”

The above-statement from the NHS Grampian Report makes reference to Wassenburg Ltd, another company that can provide services similar to that of Medical Devices UK.

My constituent is concerned that, following the potentially malicious removal of his company’s existing three-year contract with NHS Grampian, Wassenburg were one of the companies awarded the contract by NHS Grampian to take over Medical Devices UK’s duties, allegedly without any satisfactory procedural process being followed. Mr Donnelly advises that NHS Grampian have subsequently been found to be in breach of contract.

Mr Donnelly has since obtained further material via Freedom of Information requests that contain communications between staff of National Services Scotland and NHS Grampian. Mr Donnelly states that these documents contain e-mail discussions between staff over how to ensure Medical Devices UK are not selected for any contracts, how to evade rules and the tendering process.

I have written to your two predecessors, Shona Robison MSP and Jeane Freeman, regarding my constituent’s concerns. I was grateful for their substantive responses to my correspondence, but my constituent has repeatedly stated via information obtained from FOI disclosures that the information being provided to the Scottish Government and Scottish Ministers by NHS Grampian was inaccurate and misleading. Mr Donnelly has confirmed to me that he is in possession of several pieces of evidence that prove this to be the case.

An example of NHS Grampian’s potential lack of transparency is the editing of a document obtained via Freedom of Information.

Throughout this ongoing process, Mr Donnelly has obtained a significant number of documents via FOI requests. One such document was a copy of Appendix 2, the previously- discussed internal NHS Grampian report that was sent to Mr Donnelly in 2019.

I have attached as Appendix 3 a copy of the report, which was received in 2021 by Mr Donnelly under FOI. Whilst this document should be an exact copy of the original document in Mr Donnelly’s possession, it has subsequently been edited at some point prior to being issued via FOI.

On page 10, the report now reads: ”In investigating, it appears that from June 2018 there has been an unnecessary need to engage with Wassenburg as the preferred contractor of choice and that need has created some poor decision making on the part of both and including what appears to be a clear attempt by to bring into disrepute MDUK so as to achieve a desired outcome.”

I wrote to Professor Hiscox, Chief Executive of NHS Grampian, regarding this matter in October 2021 (Appendix 4). She replied stating that the NHS Grampian Board Secretary, Sarah Duncan, would investigate this matter. I have attached Professor Hiscox’s reply with Ms Duncan’s findings as Appendix 5. As you can see, no satisfactory answer was provided as to why this document was edited.

I believe that the concerns raised by my constituent are of such a serious nature and that there are serious questions over the reliability of the information that NHS Grampian has provided and their transparency throughout this ongoing affair.

Given the protracted nature of this dispute, and the legitimate concerns over the conduct and transparency of NHS Grampian, I believe that the most appropriate way to investigate the concerns raised by my constituent would be via an independent investigation.

I am grateful for your consideration of this matter and I look forward to your reply.

Further articles and developments on this growing NHS Grampian scandal will be published in due course as material obtained by the media is studied, investigated and released to publication.

Thursday, October 20, 2022

SCOTS LAW: Legal Highs, Legal Lows. A legal profession which prides itself in preying on clients, ripping-off Legal Aid, fixing court outcomes, concealing malicious prosecutions & judicial conflicts of interest, obstructing public access to justice - and - Why you should really question much of what your lawyer tells you.

World leading? Not a chance M'lud. ONE DAY is a long time in Scotland’s legal world, let alone a full year – but we all can be assured the consistency of wrongdoing, industrial scale dishonesty, legal fee overcharging & outright malice - from Scotland’s legal profession - whether it be in dealing with clients, working in court in civil hearings or in criminal trials, or working for public authorities – is never ending.

While blog journalists have been working on real life cases for the past year, it may be worth reminding readers your rights with regard to regulation of your legal representatives, are as ineffective and futile as they have ever been in Scotland, right up to this date.

After all, since 2008 and some Thirty Five Million pounds plus, later – much of it recovered from fees you pay to your solicitors *and perhaps money & assets your solicitor strips you of when your case goes not the way you were told it would - the Scottish Legal Complaints Commission (SLCC) has not once named a corrupt solicitor or law firm – or actually had any impact on standards of legal service in Scotland.

Fourteen years for the Scottish Legal Complaints Commission - billed in 2008 as an “independent” regulator of Scotland’s legal services – to have absolutely zero material impact on the scale of dishonesty in Scotland’s legal profession – is itself a tribute to how corrupt Scotland’s legal mcmafia really is, and – an indicator of the sheer level of control exerted by professional groups such as the Law Society of Scotland, and Faculty of Advocates (to name but two) on how MSPS and the Scottish Government can or cannot give increased rights to consumers of legal services in Scotland.

For instance, are you looking for a lawyer right now to conduct legal business or perhaps pursue a civil claim, or defend you in a criminal trial?The fact is, if you are trying to find out if a particular solicitor or law firm has any record of complaints, discipline issues, or are just plain corrupt - you - the consumer - are not going to find out.

So, why would you even bother going to a lawyer or a law firm who has perhaps fleeced one hundred clients before you go through their doors? Think first, readers .. do you really need to spend Five thousand pounds on a batch of letters to, say - your next door neighbour for the next Five years over a fence which is 10cm higher than it should be … and then lose the case in court and have to pay your own solicitor say .. another Twenty Thousand pounds for losing, and then end up sequestrated by the solicitor’s good friend the local Sheriff – when you cannot pay the legal fees?

Yes, it is that easy. It’s your money, your lives, your home, your family, your business – consumers. Think first, Tens of thousands of people have gone before you thinking they are smarter than a Scottish lawyer, and what happened next? Well, the statistics tell their own story. Thousands of complaints a year to Scotland’s so-called ‘independent’ legal regulators – staffed by lawyers and their families – and guess what, a tiny amount of redress if anything, and thousands of clients lives ruined.

The public debate on legal services in Scotland is rather odd, and very biased.

Mostly, any public debate on Scotland’s legal profession, is driven by the legal profession itself.

Having examined Scotland’s cliquey legal profession for decades, worked on thousands of cases, reported on hundreds more – and when assigned cases to assist clients through the often murky, dishonest world of legal services and Scotland’s institutionally dishonest courts system and not forgetting the institutionally everything bad Crown Office – it can be easily said – consumers of legal services in Scotland have about as much chance of obtaining a fair hearing, as a baked pie in front of a group of staring, salivating alligators with Scottish LLB Law degrees & judicial robes.

The world, of course – is a bigger place. And, with the advantage of the internet, and the ability to communicate on global platforms, away from the Scots legal mcmafia sponsored public relations spin, and bought up influencers, clients, consumers, journalists and readers can find a more open and less legal profession driven debate on justice, the courts, legal services, and just about anything else you can think of.

Example - If you are interested in US politics and the US Courts, and judiciary – and trust me – you should be - readers who want to expand their knowledge of what judges and lawyers do in and out of court, should start looking at how the US media cover America’s justice system and the US Supreme Court - because - in the US, journalists and lobby groups are much more open and willing to investigate and write up exactly what is going on with a judges' interests, conflicts of interest and recusals.

Even better, there are Law Professors and Academics in the US, who will tell you – the public - the absolute truth about the workings of the US Judiciary and 'SCOTUS' - otherwise known as the Supreme Court of the United States.

Expand your knowledge, people. Look at how other countries media deal with their justice systems and those parts of the judiciary which consider themselves too powerful to be held accountable to ethics, expectation of justice, or even – the law itself.

Reading up on how other countries report on their judges, courts and the workings of the justice system will easily bring even the occasional reader to conclude much of what you have just read, is never reported in Scotland or the UK. In fact, academics here can very easily be roped into (mostly willingly) in what are absolutely vicious campaigns against journalists looking at the workings of the judiciary.

There are of course, other advantages of reading media outside the sphere of Scotland’s legal profession reach in that journalists don’t have to put up with ranting calls from UK or Scottish Judicial Office Press Officers, who end up screaming down the phone at journalists and editors because the thorny question of judges conflicts of interest, judges unexplained wealth & lifestyle, and participation in political deals, lobbying, international bargaining and political lobbying here in Scotland come up for scrutiny.

As colleagues in the media have observed – reviewing the audio records of those calls, would indeed one day make a good book.

So, what have blog journalists been looking at in the past year.

A deep dive into certain long running news articles in relation to the plight of victims in all kinds of scandals, from medical to ill treatment at the hands of whichever Scottish public service, such as Health, Policing, Courts, Judiciary, Local and Central Government – have revealed that lawyers and their law firms quoted three paragraphs down in the articles – are demanding their ‘clients’ sign up to Non Disclosure Agreements – even before legal representation is taken on – and that any compensation recovered be subject to significant success fees for the law firm involved, with clients also forced to sign an agreement they will not raise a complaint, or their representation will be terminated.

And, it certainly does not take too long for lawyers who give quotes to the media on how they are so involved in representing their clients case – to call in a client for a menacing chat, which – now that we live in a world where everyone records everyone … is much more able to be reviewed by journalists and people outwith the legal profession.

The law firms involved, are – unsurprisingly – all “Award Winning Law Firms” – based in Scotland’s big cities and regularly quoted in whatever scandal is the headliner for the week, or weekend.

Still think you are smarter than a Scottish Lawyer? … hmmm!

Does the following example apply to anyone you know?

A meeting with your lawyer goes like this.

Hello, dear client. Tell me your case. Wow! I have never heard of your predicament before ... This is a disgrace! I can take you on as a client but first, you must sign up to our terms of business, give us Five grand, and you also have to sign a Non Disclosure Agreement - and while you are at it, we would like to store your property titles, just in case you cant pay our fat padded faked-up legal fees and we will take your house instead.

Hey folks, this happens a hundred times a week in Scotland. And, for years. Decades even. So, why not get wise to it instead of being ripped off. Don't say you haven’t been told!

Here’s a question for readers:

Have you ever wondered why – in the past fourteen years from 2008 to 2022 – hardly anyone ever gets to see the actual detail in complaints investigations, outcomes, quantum on actual losses by clients compared to the derisory compensation (if any) paid out by predatory law firms after an ‘investigation’ by the Scottish Legal Complaints Commission?

Small numbers, isn’t it. A handful. And, few if any law firms named – in the past Fourteen Years.

In an active case currently under scrutiny, journalists were handed recordings which reveal clients are being threatened during arbitration hearings organised by the Scottish Legal Complaints Commission.

Yes, you read that correct. Clients who agreed to arbitration hearings organised by Scotland's legal regulator - are being openly threatened and intimidated by solicitors - in front of 'qualified' arbitrators and Legal Complaints Commission staff.

Perhaps, upon reading this, you may think the Arbitrators and SLCC staff may step in, even offer to assist the client over the lawyer's shouting, threats and intimidation and their audible threats of using courts and Scotland's ever-puppet judiciary to go after clients.

Not a chance. In fact, the Scottish Legal Complaints Commission denied the Arbitrators or their own staff members hear or witness anything – yet the audio records confirm these events.

In fact - journalists have also been handed communications where the Scottish Legal Complaints Commission actually threatened clients - who had already been threatened at SLCC run Arbitration hearings - that if they uttered a word of what happened - the Scottish Legal Complaints Commission would act against them in some undefined way.

To say the above is corruption at work, would be an understatement at least - but you can be sure, when our investigation is complete, the material in these cases will be published.

Now, to some other issues journalists have been looking into.

Recent cases brought to this blog's attention reveal solicitors are requesting extra payments over legal fees from clients, in crypto currency.

These payments, in many cases appearing to be forced payments, with a threat that if they are not made legal work will cease on anything from claims against councils, to writing a will - are being demanded by law firms from a wide spectrum of clients, including the elderly - the latter of which first drew journalists attention to - as reports were coming in of elderly clients unable to handle technology to the point law firm employees were visiting home addresses to help their clients set up crypto currency accounts which would pay into accounts held by solicitors or 'other persons' connected to a law firm - but which strangely do not show up in the law firm's accounts to the Law Society of Scotland or HMRC.

So, if any readers have elderly or vulnerable relatives who are being forced into making off-the-books crypto currency payments to Scottish law firms - you can email this blog with the details to add to the information now being collected by journalists.

Oh, and if you were wondering how deep Scotland’s legal profession has dived into crypto currencies - to make it all nice and legal, the Scottish Government working group on crypto assets and crypto currency is headed by a UK Supreme Court judge - Lord Hodge.

A number of cases where criminal complaints and investigations have arisen in relation to activities at properties owned by Scots lawyers, and several members of the judiciary in EU countries and in the Gulf states, have been passed to journalists.

Allegations in respect of these cases range from financial crime to tax avoidance, domestic violence, and sexual assault.

Interestingly, many of those who have passed on information in relation to allegations and criminal complaints in such cases, are from Scotland or the UK, and have attended properties owned by certain high flying Scots lawyers & Advocates - in a guest role, of sorts.

Further information in relation to properties in the Gulf States - owned by leading figures of Scotland’s legal world, including the judiciary document cases where persons employed by the owners have been subject to threats, and in certain cases, swift deportation back to their countries of origin, mostly in Asia after events witnessed at the premises became subject to allegations and investigations.

Several key figures within Scotland's legal establishment - have sought to ensure these cases - do not come to light in the media, however the leads are now being investigated and publication may occur at a later date.

In a case which relates to a cover-up within Scotland’s NHS Estate – journalists have been investigating links between Scotland’s legal world & the misuse of evidence by key NHS organisations, over the past 15 months.

The case extends to cover significant patient risks, concealed by NHS Executives who were involved in switching multi million pound contracts and trying to cover their tracks.

Journalists have been investigating the NHS scandal involving NHS Grampian, in which NHS Executives and staff arranged, and colluded to target and discredit Scottish Medical Providers, in a malicious campaign to remove their business, and transfer the contracts to preferred providers.

The sums involved total millions of pounds, and investigating the trail of wrongdoing within NHS Grampian has led to the detection of organised fraud and collusion within Scotland's entire NHS estate and factual evidence revealing corruption right at the heart of NHS National Procurement.

Some of the documents in relation to the NHS Grampian fraud have been posted to Twitter. However a full investigation and publication of material will appear in due course.

Another issue journalists are looking into - is the wide and varied property ownership of solicitors and law firms.

In towns and cities across Scotland, local law firms and solicitors own and hold interests in multiple properties.

How these properties have come to be owned by solicitors is indeed, a very murky affair and a lengthy battle to reveal.

In many cases, there are solicitors who own twenty plus properties in very intricate ownership arrangements clearly designed to thwart persons from finding out the real owner.

Some lawyers have chosen to spread ownership around their families and relatives, whereas others have created offshore trusts and networks of companies of which the aim is clearly to defeat any link between the solicitor and the properties.

The family ownership link has been known about for some time, and frequently emerges when – for example – a solicitor’s partner decides to separate, and they then find out they own a selection of properties they were unaware of when their solicitor partner unleashes his colleagues on their subsequent separation and divorce.

An interesting revelation from the property scrutiny project – identifies solicitors who own significant numbers of rental properties and who are all receiving Housing Benefit paid rents from – in some cases – their criminal legal aid clients,

Yes, You read that correctly.

Solicitors are housing clients in what are in many cases – run down, rat infested flats and properties around Scotland AND – the rent on the property is paid to the solicitor in Housing Benefit, while the solicitor is also collecting Legal Aid cash for representing the client, his tenant in criminal trials.

There are hundreds of such cases currently being looked at. An example of one such case currently being investigated involves a solicitor and Tribunal judge - who represented a client who was found guilty of sexually assaulting paramedics. The client turned out to be the tenant of the solicitor, who was receiving Housing Benefit for his client’s rent, as well as Criminal Legal Aid for representing his client, found guilty of sexually assaulting paramedics.

Turns out the solicitor & Tribunal judge has been at this for years, raking in public cash for tenants he houses, and represents in criminal court at the same time – and – many solicitors are doing exactly the same.

The petition on the Register of Judges Interests. Yes, the petition rumbles on, and journalists await action by the Scottish Government. However, the time has been spent usefully studying the judiciary, watching how assets move, who talks to who, which judge is threatening who about transparency, and how judges waft around the world doing their wee bit for greed, avarice and sheer dishonesty in the legal world.

An update on the petition will be published in the coming weeks.

So, as you see - never a dull moment in the media, or in the legal profession.

And finally.

Whistleblowers. If you want to speak out on what is occurring in your public service, company or whatever the issue is - use an email service such as Protonmail or wherever, and contact the blog or a journalist that you trust and an editor who will not burn you to his friends in whichever public service you are speaking up against.

Monday, November 22, 2021

TRIBUNAL ROLE PROBE: Judge-appointed Vice-Chair of Scottish Solicitors Discipline Tribunal asks Court of Session to block Legal regulator probe of his conduct & role in “inappropriately brought” discipline case at Institute and Faculty of Actuaries

Tribunal Judge asks Court to block probe of his conduct. A SIGNIFICANT conflict of interest in how the legal profession investigates itself may play a role in one of three appeals to the Court of Session – after details emerged the Scottish Legal Complaints Commission (SLCC) – is facing legal action to block a regulatory investigation of three members of the Institute and Faculty of Actuaries (IFoA) – one of whom is Benjamin Kemp – the Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).

Material obtained by journalists reveal three separate appeals to the Court of Session against the Scottish Legal Complaints Commission’s decision to investigate Mr Benjamin John Tizzard Kemp and two additional members of the Institute and Faculty of Actuaries. Mr Kemp is represented by Brodies LLP

The two additional IFoA members - Ms Emma Gilpin (Head of Regulation) and Mr Michael Scott (Head of Disciplinary) who also face investigation by the Scottish Legal Complaints Commission in the same complaint – have launched their own, separate appeals to the Court of Session which seek to overturn the SLCC's decision to commence an investigation of their professional conduct.

Details of the complaints lodged against the three Institute and Faculty of Actuaries members appear to relate to IFoA Disciplinary action which was thrown out by a Tribunal, which then awarded costs against the Institute and Faculty of Actuaries for bringing the case.

The complaints, submitted by Mr Rhodri Tomos, former Fellow of the Institute and Faculty of Actuaries to the Scottish Legal Complaints Commission - relate to the bringing of a disciplinary action against Mr Tomos, from October 2019 to January 2021 after which the Disciplinary Tribunal Panel made a final determination the original disciplinary action was "inappropriately brought", "unconscionable" and "not in the public interest".

It has also emerged the Institute and Faculty of Actuaries were required to pay costs for the "inappropriately brought” disciplinary action.

Commenting on the case - Mr Rhodri Tomos, former fellow of the IFoA who submitted the complaints to the Scottish Legal Complaints Commission in relation to the conduct of Mr Kemp and the other IFOA members, said:

"The IFoA Disciplinary Tribunal Panel threw out the IFoA's case against me very quickly in just a couple of hours, when the hearing was listed for 3 days.

The panel, chaired by an experienced Court Judge, criticised the disciplinary as inappropriately brought, unconscionable and not in the public interest. That's the exact opposite of what the IFoA disciplinary scheme is supposed to be there for. The panel awarded costs against IFoA in my favour.

No member of the public had complained about me or my work. It was an internal "executive referral" from IFoA, which triggered my resignation from IFoA in Oct 2019 after working so hard since 2001 to qualify as a Fellow. I then suffered a long and stressful 16 months disciplinary process from IFoA, who used internal and external lawyers, including a QC against me, an unrepresented individual, yet they still lost.

My complaint to SLCC about the lawyers involved is entirely reasonable based on the DTP's findings, which are final, and deserves a full investigation in the public interest. This matter is entirely self-inflicted by IFoA, who along with their oversight body the Financial Reporting Council have failed to investigate my complaints throughout. "

Earlier today, a potentially serious conflict of interest in the appeal by the Institute and Faculty of Actuaries members has been identified by legal sources – where one of the three IFoA members – Mr Benjamin Kemp now under investigation by the SLCC – also holds the position of Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).

The Scottish Solicitors Discipline Tribunal is the third, and effectively the judicial tier of legal regulation in Scotland - which acts on investigations carried out by the Scottish Legal Complaints Commission and hears ‘prosecutions’ of solicitors and advocates - undertaken by the Law Society of Scotland & Faculty of Advocates.

The appointment of Solicitors Discipline Tribunal members by Scotland’s top judge the Lord President, currently Lord Carloway (Colin Sutherland) - effectively makes all Tribunal members including Mr Kemp - judicial appointees.

Commenting on court challenge, a legal source said: “We have a situation developing in this appeal where the Vice Chair of the SSDT, the senior tier of legal regulation in Scotland whose members are appointed by Scotland’s top judge – is now asking the same judiciary to overturn a decision of Scotland’s statutory legal regulator to investigate complaints about his own professional conduct.”

The Scottish Solicitors Discipline Tribunal website confirms the role of Scotland’s top judge in appointing members of the SSDT, stating: “The Tribunal has both solicitor and lay members. All are appointed by the Lord President of the Court of Session – Scotland’s most senior judge. Solicitor members are nominated by the Law Society of Scotland, but may not also be members of the Council of the Law Society. Lay members are drawn from all backgrounds and walks of life, following open advertisement The principles of public appointment are followed by the Scottish Government in making recommendations to the Lord President.”

The Scottish Legal Complaints Commission were asked for comment and issued the following response: “As you are aware, we are legally quite restricted in what we can say – under s43 of our Act we can’t comment on any complaint, with the law making it a criminal offence. This includes confirming or denying whether a specific complaint has been received.  We are lobbying for this to be changed so we can be more transparent, but need to abide by the current legislation.”

The Judicial Office and Lord President were asked for comment on the position of Mr Kemp in this Court of Session appeal against the Scottish Legal Complaints Commission, given the inherent conflict of interest of Mr Kemp – effectively a judicial appointee, and Vice Chair of the SSDT - a key organisation in the regulation of solicitors, now asking the judiciary which appointed him - to overturn an investigation of the statutory body the SLCC to investigate complaints against himself.

No statement has been issued by the Judicial Office prior to publication, however any further statement or response will be added to the article.

It has not been confirmed by the Institute and Faculty of Actuaries as to whether the individual lawyers or the Institute and Faculty of Actuaries itself - is funding this appeal in the Court of Session.

In response to media enquiries, the Institute and Faculty of Actuaries said: “The IFoA does not comment on any live proceedings.”

It should be noted that cost orders have been awarded against the Institute and Faculty of Actuaries (IFoA) for investigations previously dismissed by the Disciplinary Tribunal.

These cost orders are referred to in the 2020-2021 Annual report of the Institute and Faculty of Actuaries Disciplinary Board, which states:

“Three cases were dismissed by the Tribunal panel without a hearing of the parties. Determinations where findings of misconduct are not made are not usually published by the Tribunal panels unless requested by the Respondent. Costs were awarded against the IFoA in respect of two of the dismissed cases. The total costs awarded against the IFoA was £69,248.73.”

The Institute and Faculty of Actuaries Disciplinary Board cost guidance states costs are awarded when IFoA bring cases inappropriately or negligently.

Thursday, September 09, 2021

PROSECUTION ADVOCATE: Conflicts of interest, failure to recuse & judge swapping in court - Rangers Admin malicious prosecution case illustrates why Scotland’s Prosecutors & Judiciary must be required to register, declare & publish all their interests - and publish all details of judges’ recusals from court hearings

James Wolffe - Rangers Admins prosecution was malicious. AS SCOTLAND’S justice system awaits proposed reforms including the creation of a Register of Judges’ Interests – it should not be forgotten how entangled Scotland’s judiciary were in the organised, motivated & malicious prosecution of the Rangers Administrators - by the Crown Office and Procurator Fiscal Service (COPFS) and Police Scotland.

So grim was the determination of Prosecutors, Police and the Judiciary itself to see this malicious prosecution through to a result - at one point in November 2017 – the Lord Advocate’s own judge wife – Lady Sarah Wolffe QC – was neatly arranged – by the judiciary – to hear the civil damages claims against her own husband in his role as the Lord Advocate, and similar damages claims against Scotland’s Chief Constable.

Back in February of this year, Scotland’s top law officer – Lord Advocate James Wolffe QC gave a statement at the Scottish Parliament on 9 February 2021 in which Mr Wolffe conceded - the prosecution of Rangers Administrators – by the Crown Office & Police Scotland – was a malicious prosecution.

James Wolffe publicly apologised to the two Administrators  who were wrongly prosecuted during a fraud investigation carried out by the Crown Office and Police Scotland, in relation to the sale of Rangers Football Club.

David Whitehouse and Paul Clark acted as administrators during the sale of the football club, settled out of court with the Crown Office in December and were both awarded £10.5 million in damages while legal costs are thought to total more than £3 million – all of which will be paid from public cash.

Lord Advocate James Wolffe publicly apologised for the malicious prosecution, however – Wolffe denied anyone had acted with malice but was accused of “brushing this appalling state of affairs under the carpet” if public confidence isn’t restored through an independent inquiry.

Mr Whitehouse and Mr Clark were arrested in 2014 but the Crown Office has admitted the prosecution that followed was “malicious”.

Mr Wolffe said in his statement to Holyrood that decisions made in the Crown Office probe were “indefensible in law”.

Missing from the statement to MSPs was a key fact in the order of events, in which Lord Advocate James Wolffe had earlier said nothing during court hearings in late 2017 where his judge wife – Lady Sarah Wolffe was scheduled by fellow judges to hear financial claims for damages in this case case against her own husband – Lord Advocate James Wolffe.

DOI journalists reported on events in December 2017 - where the judiciary had neatly arranged for the Lord Advocate’s judge wife to rule on the financial claims against her husband & also Scotland’s Chief Constable - CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife - Judge Lady Wolffe

SCOTLAND’S judiciary faced fresh allegations of conflict of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by a judge who is the wife of the Lord Advocate.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor has been lodged by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland's Philip Gormley and Lord Advocate James Wolffe QC.

A copy of the Court Rolls handed to the media at the time reveal Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate - her own husband - A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD - Scottish Government Legal Directorate) - on November 15 2017.

Liam Murphy was at the time - listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe appears to have been removed from the hearing, with no official comment from the Judicial Office for Scotland or Scottish Courts and Tribunals Service (SCTS).

Claims have since been made Lady Wolffe was suddenly dropped from the hearing when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe - was involved in the case.

A report from a source claims a second Court of Session Judge - Lady Wise QC - was then scheduled to hear the case.

However, the silent replacement of Lady Wolffe with Lady Wise - has now raised serious questions as to why there are no references to any note of recusal made by Lady Wolffe – who clearly had a conflict of interest in the case given one of the core participants in the action is her own husband – the Lord Advocate.

The case then took another turn after media reports of the hearing on Wednesday 15 November reveal a third judge – Lord Arthurson QC – eventually heard the case, and has since arranged for a four day hearing for legal arguments.

Questions then arose as to why the Judicial Office avoided publishing any official recusal by Lady Sarah Wolffe QC – the wife of Lord Advocate James Wolffe - in relation to the scheduling of the case to be heard by the Lord Advocate’s.

A further report on Lord Advocate James Wolffe & his judge wife Lady Sarah Wolffe’s role in the financial damages claims case linked to the Rangers malicious prosecution - and coverage in the media can be found here: WOLFFE COURT: Lord Advocate James Wolffe and his judge wife at centre of £9million damages claim - Questions remain why Lady Wolffe avoided recusal during emergency judge swap on court case against her own husband

These events and others, illustrate very well why all members of Scotland’s judiciary should be required to declare and publish their interests in a Register of Judges’ Interests – which is now part of the Scottish Government’s work programme for 2021 –2022.

A Register of Judges’ Interests should contain information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Readers can watch the full statement in relation to the malicious prosecutions of the Rangers Administrators - from the Lord Advocate James Wolffe to MSPs on 9 February 2021 here:

Lord Advocate James Wolffe QC statement on Malicious Prosecutions of Rangers Admins 9 Feb 2021

Malicious Prosecutions of Rangers FC Administrators by the Crown Office, Lord Advocate & Police Scotland – Scottish Parliament 9 February 2021

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is a statement by the Lord Advocate, on malicious prosecutions. The Lord Advocate will take questions at the end of his statement, so there should be no interventions or interruptions.

The Lord Advocate (James Wolffe) Thank you, Presiding Officer. I am grateful for the opportunity—[Inaudible.] I am sorry about that sound issue, Presiding Officer.

I am grateful for the opportunity to make a statement following the disposal last week of the actions that David Whitehouse and Paul Clark brought against me. Those actions concerned events that predated my appointment as Lord Advocate, but it was and is my responsibility, as the current incumbent, to account for them. The on-going proceedings that relate to the matter constrain what I can say today, but I welcome the fact that I am now free to begin the process of public and parliamentary accountability and to reiterate the commitment that the Crown has given to that process.

The prosecutions that gave rise to the cases arose from police investigations into the purchase of Rangers Football Club by Craig Whyte in 2011 and into the administration of the club and its sale to Charles Green in 2012. The investigations were large and complex. Ultimately, seven individuals were prosecuted. This statement concerns only the position of Mr Clark and Mr Whitehouse.

On 14 November 2014, Mr Clark and Mr Whitehouse were detained and brought to Glasgow. They were held in custody before appearing in court on 17 November on a petition that contained charges that related to Mr Whyte’s purchase of Rangers. That started the clock for a statutory time bar that, unless extended, required the Crown to serve an indictment in respect of the charges by 16 September 2015.

In High Court cases, after an accused has appeared on petition, the Crown undertakes a process of investigation and analysis that is called precognition. When it is completed, the precognition contains a detailed narrative of the evidence and an analysis of whether the evidence is sufficient to support criminal charges.

The precognition is submitted to Crown counsel for a decision on whether to issue an indictment. Precognition is not a statutory requirement, but it is a long-standing, routine and essential feature of Crown practice in relation to High Court cases. It provides assurance that there is a proper evidential basis for the indictment and, along with Crown counsel’s instruction, it provides a record of the basis for the decision.

This case was exceptional in its scale and complexity. By early September 2015, with the expiry of the time bar approaching, the precognition process was incomplete and essential investigations were still on-going. On 3 September, the Crown applied to the court for a nine-month extension of the time bar; the sheriff granted a three-month extension. An appeal by Mr Clark and Mr Whitehouse against that extension was refused. In the meantime, on 2 and 3 September, Mr Clark and Mr Whitehouse appeared in court again on a second petition that contained new and separate charges that related to the second matter that the police had been investigating—the administration of Rangers and its sale to Charles Green in 2012.

On 16 September 2015, Mr Clark and Mr Whitehouse, with five other accused, were indicted. The charges against them derived from the November 2014 and September 2015 petitions. At that time, the precognition process in relation to the November 2014 petition was still incomplete and there was, demonstrably, no precognition in relation to the September 2015 petition, which had only just been initiated. Essential investigations were still on-going in respect of the charges that derived from the November 2014 petition, and there was evidence available that was—objectively—obviously inconsistent with the charges against these two accused that derived from the September 2015 petition.

On 2 December 2015, a second indictment was served that superseded the first. At a preliminary hearing in February 2016, following legal argument, Crown counsel withdrew certain of the charges. On 22 February, the judge dismissed the remaining charges against Mr Clark and Mr Whitehouse. Crown counsel advised the court that consideration would be given to a further indictment against them. A Crown Office press statement that was issued that day indicated that a fresh indictment would be brought, but that was corrected by a further statement the following day.

On 25 May 2016, the Crown advised Mr Clark and Mr Whitehouse that there would be no further proceedings against them. On 3 June 2016, Crown counsel formally advised the court of that position.

In August 2016, Mr Clark and Mr Whitehouse initiated civil actions against me—I had been appointed on 2 June 2016—to seek damages on the grounds of malicious prosecution and breaches of articles 5 and 8 of the European convention on human rights. They also advanced claims against the chief constable of Police Scotland.

I advanced a defence that relied on established legal authority that the Lord Advocate is immune from common-law liability. That defence was upheld at first instance, but, in October 2019, the inner house of the Court of Session overturned the previous legal authority and allowed the claims to proceed.

On 20 August 2020, I admitted liability to Mr Clark and Mr Whitehouse. Those admissions followed the conclusion of a very substantial and lengthy investigation that was undertaken by the legal team, including external counsel, instructed on my behalf. As a result of that investigation, I concluded that the decisions to place Mr Clark and Mr Whitehouse on petition in September 2015 and to indict them were indefensible in law.

I concluded that those decisions proceeded without probable cause—that is, without a proper evidential basis—in circumstances that met the legal test for malicious prosecution. That legal test can, in certain circumstances, be met even though no individual had malice, in the popular sense of a spiteful motive. My acceptance of liability in this case did not depend on any individual being malicious in that popular sense.

I cannot, at this time, disclose in detail the basis upon which liability was admitted, but, when it is free to do so, the Crown will disclose the basis for those admissions in full—including to this Parliament. What I can say is that there were, in this case, profound departures from the normal practices, including precognition, that are designed to ensure—and routinely do ensure—that any prosecution in the High Court has a proper basis.

I also admitted breaches of article 5 in respect of the detention of Mr Clark and Mr Whitehouse in November 2014 and September 2015, and of article 8 in respect of the incorrect press release of February 2016.

After the admissions of liability, mediations took place with both pursuers, and agreement was reached to settle their claims. Each of them has been paid £10.5 million in damages, and, to date, more than £3 million has been paid to them in aggregate by way of expenses. Those two pursuers were very high-earning professional people and the damages paid reflect a reasonable estimate of the loss that they sustained as a result of being prosecuted. I have written to the Justice Committee about the financial implications.

On 24 December 2020, I issued written apologies to each of Mr Clark and Mr Whitehouse. They should not have been prosecuted, and, as the current Lord Advocate and head of the system of criminal prosecution, I apologised unreservedly for the fact that they had been. I reiterate that unreserved apology publicly to Mr Clark and Mr Whitehouse today.

Although the case involved significant departures from standard practice, lessons have been learned and will continue to be learned. The precognition process has been reinforced, and, in 2018, I established new arrangements for the management and oversight of large and complex cases. Those arrangements are now well established and provide a substantial safeguard against anything like this happening again.

In my JUSTICE human rights day lecture in December 2016, I said this:

“a fair and independent prosecution service, taking decisions rigorously, independently and robustly in accordance with the evidence, is, I believe, essential to the freedom under the law which we enjoy as citizens of this country.”

Scottish prosecutors and the Crown Office and Procurator Fiscal Service have a justified reputation for fairness, integrity and independence. The seriousness of what happened in this case should not obscure the truth that, day in and day out, Scotland’s public prosecutors and the staff who support them fulfil their responsibilities with professionalism and skill. They take hard decisions rigorously, robustly and in accordance with the evidence, and they secure the public interest in the fair, effective and robust administration of criminal justice in Scotland.

In this case, there was a serious failure in the system of prosecution. It did not live up to the standards that I expect, that the public and this Parliament are entitled to expect and that the Crown Office and Procurator Fiscal Service expects of itself.

What happened in this case should not have happened. As the Lord Advocate and head of the system of prosecution in Scotland, I tender my apology to this Parliament and to the public for the fact that it did happen and for the consequent cost to the public purse. I confirm my commitment and that of the Crown to supporting a process of inquiry into what happened in this case once related matters have concluded, and I express my determination that nothing like it should ever happen again.

The Deputy Presiding Officer The Lord Advocate will now take questions on the issues that were raised in his statement. I intend to allow about 20 minutes for questions, after which we will move on to the next item of business.

Liam Kerr (North East Scotland) (Con) I remind members that I am a practising solicitor, and I thank the Lord Advocate for advance sight of his statement.

There has been an extraordinary catalogue of unexplained and profound departures from normal practices. What is “indefensible”, to use the Lord Advocate’s word, is that, given that the

“decisions proceeded without probable cause—that is, without a proper evidential basis”,

the prosecution was malicious.

Let us be absolutely clear: this was not simple human error or an obscure legal mistake. Rather, our system of prosecution has admitted that it acted with malice in its move to throw innocent men behind bars and destroy their reputations. That begs an obvious question: how many times in Scottish legal history has there been a malicious prosecution?

In any event, I note that the Crown is, crucially, committed to a process of inquiry. Can the Lord Advocate confirm that there will be a fully independent, judge-led public inquiry that demands to know why malicious prosecutions were pursued in defiance of evidence? Will it investigate the actions of the Lord Advocate, his predecessor and all agents who were involved? If not, how on earth can the Crown expect the people of Scotland to conclude anything other than that it is brushing this appalling state of affairs under the carpet?

The Lord Advocate (James Wolffe) Given that I have come to Parliament at the first opportunity when I have been free to do so, I hope that nobody would suggest that I could properly be accused of “brushing” anything “under the carpet”. I have committed myself and the Crown to supporting a process of inquiry once related matters have been concluded. Those matters need to be resolved before the process of inquiry can proceed.

On Mr Kerr’s first point, as I observed in my statement, the legal test for malicious prosecution can be met in circumstances even when no individual has malice in the popular sense of their having a spiteful motive. I should make it clear that my acceptance of liability in this case did not depend on any individual being malicious in the popular sense. That is not for a moment to minimise the seriousness of what happened. Quite the reverse is the case; as I observed in my statement, what happened represents a very serious failure in the system of prosecution in Scotland.

I have been asked how many times there has been a malicious prosecution in Scotland. As I emphasised in my statement, a process that is known as precognition is undertaken routinely in High Court cases. That process necessarily involves careful collection, investigation and analysis of evidence. It involves a system of cross-checking and should provide significant reassurance to the public that, in our system of prosecution, cases are routinely brought on a proper basis.

As I explained in my statement, in this case, that process was incomplete when the case was indicted; essential investigations had not been completed. The normal processes that are routinely followed in every High Court case were not followed, but the public should take reassurance from what I have said that the prosecution system in Scotland is robust, fair and independent, and is one on which they can rely.

Rhoda Grant (Highlands and Islands) (Lab) I, too, thank the Lord Advocate for advance sight of his statement.

This case raises serious concerns. That it was thought that the Lord Advocate was immune from common-law liability would suggest that he should also have been beyond reproach. We imagine that there are, in the system, checks and balances between the police and the Crown Office and Procurator Fiscal Service, with both of them challenging and questioning the activities and evidence in a case. That appears either not to have happened or to have gone seriously wrong in this case, with both being sued by David Whitehouse and Paul Clark.

How could that have happened? Were concerns raised, internally or externally, about the actions of both organisations at the time, especially when it came to light that there was inconsistent evidence?

The Lord Advocate said that the system has been improved, but there cannot be proper scrutiny until we know exactly what went wrong in the first place. Until that happens, how can we expect to restore confidence in the system?

The Lord Advocate (James Wolffe) The first thing that I should say is that, at this time, there are continuing live proceedings relating to the matter, which regrettably—I do regret it—constrains what I can say.

I have committed the Crown to engaging fully with public accountability in the matter, and the Crown has committed to making more information available when it is free to do that. That includes the basis upon which liability was admitted in this case and supporting the process of inquiry when it is possible to do that. I hope that that gives some assurance to Rhoda Grant that lessons will be learned and that there will be public understanding of what happened.

Perhaps it is worth noting—I do not say this to minimise, in any sense, what happened in this case—that the court fulfilled its functions in dealing with certain charges and the Crown fulfilled its responsibilities in withdrawing charges and ultimately confirming that no prosecution would proceed. I do not say that to minimise the significance of a prosecution having been brought without proper basis. However, on those issues the checks and balances in the system fulfilled their functions.

As I explained, there is, in the Crown Office, routinely preparation of High Court cases, which involves cross-checking of cases by staff of the Crown Office and Procurator Fiscal Service initially, and ultimately by Crown counsel, on the basis of there being a full narrative of the evidence and analysis of that evidence. Those processes are designed to ensure that we can be confident—I am confident—that, across the system in Scotland, prosecutions are brought properly and that this case was wholly exceptional.

Rona Mackay (Strathkelvin and Bearsden) (SNP) Can the Lord Advocate reiterate what lessons have been learned and what improvements are being made to ensure that this will never happen again?

The Lord Advocate (James Wolffe) The key lesson relates to the management of large and complex cases. As I said in my statement, I have instituted new procedures for internal management and oversight of the particular category of case. The arrangements involve early agreement of the investigation and prosecution strategy; early and continuous engagement with the police; a project management approach to case preparation; a system of case management panels to scrutinise case strategy and to keep under review the progress of the case, with reference to the strategy; and any issues that might emerge being addressed.

All of that aligns with a protocol that the High Court issued in 2018, with my support, in relation to the management of such cases once they are in court. That protocol, again, encourages a proactive approach to the management of such cases.

Murdo Fraser (Mid Scotland and Fife) (Con) The Lord Advocate referred to the payment of £24 million that was made to Whitehouse and Clark, but that sum might well be just the tip of the iceberg, because the report suggests that the total cost of the case could top £100 million, given that there are outstanding cases.

Will the Lord Advocate tell us whether it is correct that, in addition to those payments, Whitehouse and Clark were also given tax indemnities so that, should HM Revenue and Customs pursue them for payment of tax, that demand would be met by the Scottish Crown Office, and that the cost to the Scottish taxpayer will therefore be far higher than the £24 million that has been paid out already?

The Lord Advocate (James Wolffe) I acknowledge the significance of the sum involved. Murdo Fraser is correct in observing that, with other cases pending, the cost to the public purse will increase and the ultimate cost is yet to be seen.

The approach that has been taken in settling cases was to make a reasonable estimate of the actual loss that individuals could demonstrate. An arrangement was entered into such that if—it is “if”—they can properly show that they have sustained additional loss of the type that Mr Fraser described, that loss will be borne.

If that happens, the Crown will account to the Justice Committee, as it did last week, for the costs in the cases.

John Mason (Glasgow Shettleston) (SNP) Now that it has been established that the Lord Advocate does not have absolute immunity from civil liability, will the Crown be more cautious in pursuing prosecutions, and will that mean that criminals are less likely to be convicted?

The Lord Advocate (James Wolffe) I am determined that any change in the law regarding the immunity of the Lord Advocate should not have that effect. That is one reason why I have put in place measures to strengthen the management of large and complex cases.

It is essential that there is a proper basis for prosecutorial decisions in all cases. As I explained in my statement, the process of precognition that is routinely undertaken in all High Court cases provides confidence and assurance both to prosecutors and to the public.

I have confidence in the robustness of Scotland’s prosecutors. They make difficult decisions every day, in exercising their judgment. I am determined to have in place systems that enable prosecutors to continue to take robust decisions in effective prosecution of crime.

James Kelly (Glasgow) (Lab) The decisions that were made in this case might predate the current Lord Advocate, but they raise serious questions about decision making and accountability within the Crown Office. Serious errors were made. The system failed, and we have been told that the cost to the public purse will be at least £24 million. What other area of the Scottish budget has had to be to be raided to fund the incompetence of the Crown Office and Procurator Fiscal Service?

The Lord Advocate (James Wolffe) As the Cabinet Secretary for Finance told Parliament last week, arrangements have been made so that the cases will not affect the Crown Office’s resource budget or its operational effectiveness. The member’s question would be better directed to the finance secretary.

Liam McArthur (Orkney Islands) (LD) This is a true scandal. In monetary terms, it is on a scale with BiFab and the Ferguson Marine shipyard. The colossal waste of taxpayers’ money runs to tens of millions of pounds. That money could have been spent on supporting businesses during the pandemic, on educational catch-up or on investment in mental health. There might be worse news to come, given that we do not yet know the extent of Police Scotland’s exposure or of the additional cases to which the Lord Advocate referred.

Given that the overturning of the Hester v MacDonald decision means that the Lord Advocate can now be held liable for serious errors from the past, what assurance can he offer that there are no other skeletons lurking in the Crown Office closet?

The Lord Advocate (James Wolffe) The principal assurance that I can give is the description that I have already given of the routine precognition processes that are carried out in every High Court case.

It is fair to say that this case was wholly exceptional in all sorts of ways—that is the principal answer to Liam McArthur’s question. We have a system of prosecution that has demonstrated robustness, fairness, effectiveness and integrity. This case was a serious falling below the standards that all of us expect of that system, but the very fact that those expectations are so high and that this case has occasioned the justified reaction that it has is a reflection of the high standards that our prosecutors routinely meet, day in and day out, in courts across the country.

John Finnie (Highlands and Islands) (Green) I, too, thank the Lord Advocate for early sight of his statement. This was a serious failure of the system of prosecution, and public confidence in our justice system is vital. Can the Lord Advocate outline what further steps will be taken to reassure a public that might reasonably think, “Wow! If this can happen in such a high-profile case, with all that publicity, what chance do I have against the system?”

The Lord Advocate (James Wolffe) The first reason why the public should have reassurance is the point that I made a moment ago to Liam McArthur, that routinely—day in and day out—our prosecution system operates effectively, robustly and fairly, and it is understood and seen by the public to do so. Prosecutors take decisions that, if taken to court, are tested in the independent court and by the examination and cross-examination skill of those who represent accused persons. So, not only are there protections and reassurances to be taken from the well-justified recognition of the integrity and skill of our public prosecutors, but the public can also have confidence because of the reputation, integrity and skill of the defence bar in testing prosecutions that are brought—and, ultimately, because of our court system, in which any case that is brought to court is tried fairly and independently.

James Dornan (Glasgow Cathcart) (SNP) Having previously been a precognition officer, I am surprised to see that the lack of precognition appears to have been a major failing in this case. Further to your statement, Lord Advocate, can you give some detail to help provide reassurance that the Crown is, indeed, equipped to deal with complex financial crime going forward?

The Lord Advocate (James Wolffe) Yes, indeed. The Crown successfully prosecutes thousands of cases every year, including complex financial crime cases. For example, an accused was prosecuted last year in respect of a £12 million Ponzi scheme fraud involving 140 complainers and laundering the proceeds of the crime. He was convicted and imprisoned for 14 years. Serious financial crime cases are dealt with in accordance with the arrangements that I have described for large and complex cases. Those new arrangements, which were put in place in 2018, should give reassurance that such cases will be effectively and properly investigated and prosecuted. In the course of this Parliament, the budget allocation to the Crown Office and Procurator Fiscal service has increased by some 42 per cent. Although that was to deal with a range of pressures on the system, part of that additional budgetary resource has gone to ensure that the new system for the management of large and complex cases can be operated as it is intended to be.

Adam Tomkins (Glasgow) (Con) What happened was completely indefensible, Lord Advocate. I therefore have a simple question, to which I want an answer: was it incompetence or was it corruption?

The Lord Advocate (James Wolffe) I have said what I can say about the circumstances. There were significant departures from the normal practices that routinely provide safeguards against what happened in this case. I have made it clear that the admission of liability in this case was not predicated on any individual having subjective malice.

I should also say that the investigation that was carried out into the prosecutorial work on the case did not report any criminal conduct to me. Had it done so, I would have taken action. However, should criminal allegations come forward, that does not preclude their being considered and, if appropriate, investigated. I am putting in place arrangements, including the instruction of external senior counsel, so that such a process can happen if that is required.

Alex Neil (Airdrie and Shotts) (SNP) Do the former Lord Advocate, Frank Mulholland, Police Scotland and the team of prosecutors who worked on the case agree with the current Lord Advocate’s decision to pay out millions of pounds of public money on the basis that the prosecution was malicious? Is the Lord Advocate’s decision making in this case up to scratch and robust?

The Lord Advocate (James Wolffe) I have had to take the decision on the civil action that was brought against me. I took that decision following the conclusion of a substantial, lengthy and carefully considered investigation that was undertaken by the legal team, including a team of external counsel instructed on my behalf. That decision fell to me to take, and it is one for which I stand here and account to the Parliament.

Bill Kidd (Glasgow Anniesland) (SNP) Can the Lord Advocate provide reassurance to victims and witnesses that arrangements have been made so that the settlements that are made will not affect the service that the Crown Office provides?

The Lord Advocate (James Wolffe) Yes. A moment ago, I reminded members that the Cabinet Secretary for Finance told Parliament last week that arrangements had been made so that the meeting of the settlements would not have an impact on the resource budget of the Crown Office. Indeed, the budget allocation to the Crown Office this year is significantly larger than it was last year. As ever, that, in part, reflects the commitment of the service to supporting victims and witnesses.

Neil Findlay (Lothian) (Lab) The Lord Advocate admits to a malicious prosecution but says that no one showed malice. That takes political doublespeak to a whole new level. Can the Lord Advocate answer these clear questions? Who is responsible for this expensive fiasco? Who is accountable? Where is the money coming from to pay for it? Those are clear questions. Can I have clear answers, please?

The Lord Advocate (James Wolffe) Yes. I proceeded in addressing the case on the basis of the relevant legal tests. As I explained in my statement, the legal test for malicious prosecution—I appreciate that the wrong has that description—can, in certain circumstances, be met even though no individual had malice in the popular sense of the word. That is the basis on which I accepted liability in this case.

In terms of our responsibility, ultimately, in our constitutional arrangements, it is for the Lord Advocate, as head of the systems of criminal prosecution and the investigation of deaths, to answer for the conduct of criminal prosecutions, whether in court—as I do every day in relation to the prosecutions that are brought in my name—or here, in Parliament, as I am doing today. As the current Lord Advocate, it is my constitutional responsibility to answer to the Parliament for what happened at that time.

I have said what I can say today about the circumstances, given other pending processes. When it is free to do so, the Crown Office will disclose further information.

Gillian Martin (Aberdeenshire East) (SNP) The Lord Advocate has already given quite a lot of detail, but I ask him to outline what additional steps he will take to support public accountability for and understanding of such cases.

The Lord Advocate (James Wolffe) As I have said, as and when the Crown is free to do so, it will disclose further information about what happened in this case. In particular, it will disclose the basis for the admission of liability. I and the Crown will support a process of inquiry once all related matters have been dealt with.

The Deputy Presiding Officer We have a very brief final question from Graham Simpson.

Graham Simpson (Central Scotland) (Con) Will there be a fully independent, judge-led public inquiry?

The Lord Advocate (James Wolffe) We will debate a motion in the name of Murdo Fraser on that subject tomorrow. In my statement, I have made it very clear that I and the Crown will support a process of inquiry when all other related matters have been concluded. The ultimate form of such an inquiry will be a matter for determination at the appropriate time.

Events have since moved on from the now former Lord Advocate’s statement to the Scottish Parliament in February 2021.

Later in March it was confirmed both the Lord Advocate – James Wolffe – and his deputy – Solicitor General Alison Di Rollo (maiden name Lafferty) were to resign from their respective roles at the Crown Office – due to events conceded in relation to the malicious prosecution of the Rangers Administrators.

After James Wolffe and Alison Di Rollo resigned their office, a ‘short’ recruitment process took place, which saw former Advocate Depute Dorothy Bain QC appointed as Lord Advocate to replace James Wolffe, and Ruth Charteris QC replacing Alison Di Rollo as Solicitor General.

However, material passed to journalists revealed Bain was not the first choice to replace James Wolffe.

As the recruitment round took place, a list of several well known legal figures who turned down offers of accepting the Lord Advocate role was passed to journalists.

One legal figure involved in the process - who does not wish to be identified – said he felt the Lord Advocate role was poisoned by the Rangers debacle.

The legal figure added “The Crown Office is badly damaged as an institution”.

After Dorothy Bain’s appointment to the Lord Advocate role, issues of Ms Bain’s involvement in the Rangers case were reported by the media - resulting in claims Ms Bain held a conflict of interest in any involvement in further proceedings relating to the malicious prosecution of the Rangers Admins.

The new conflict of interest which emerged - was that Dorothy Bain had previously acted for a firm of solicitors who represented the Rangers Administrators company - Duff and Phelps.

As a result of increased media scrutiny of the new Lord Advocate’s conflicts of interest in the Rangers case – Dorothy Bain has since recused herself from further involvement in related matters – with the new Solicitor General, Ruth Charteris QC, assigned to issue instructions to the ‘independent’ legal team and senior counsel advising on the remaining Rangers claims cases.

Noting James Wolffe made no mention of matters which arose in court in relation to the judiciary’s scheduling of Lady Wolffe to hear and rule on the financial claims against her husband – Lord Advocate James Wolffe, and damages claims lodged against the Chief Constable of Police Scotland - a report on Lady Sarah Wolffe’s role in the sequence of events and her initial appointment to decide on the claim against her own husband, featured in a Sunday Mail newspaper investigation, here:

Lord Advocate's judge wife was set to oversee case brought against him by former Rangers administrator

Lady Sarah Wolffe was originally scheduled to oversee a hearing in David Whitehouse's £9m lawsuit against Lord Advocate James Wolffe.

By Craig McDonald 24 DEC 2017

A former Rangers administrator’s £9million lawsuit against Lord Advocate James Wolffe was given an emergency judge swap – after it emerged the case was originally handed to his wife.

David Whitehouse, 51, is suing Wolffe, Police Scotland chief Phil Gormley and prosecutor Liam Murphy amid claims he was “unlawfully detained” during an investigation into Craig Whyte’s doomed 2011 club takeover.

Court officials had to draft in a replacement judge when they realised Wolffe’s wife Lady Sarah Wolffe was scheduled to sit on the bench for a procedural hearing at the Court of Session in Edinburgh last month.

The late switch from Lady Wolffe was ordered after the conflict was discovered.

Lady Morag Wise was asked to take her place, although the hearing eventually went ahead in front of Lord Paul Arthurson.

Yet another judge, Lord Neil Brailsford, was on the bench when the case was called again earlier this month. It is scheduled to go ahead next year.

The removal of Lady Wolffe is not noted in the official list of judicial recusals – where a judge declines jurisdiction – as it was reallocated before it was called in court.

A Scottish courts spokesman said: “Lady Wolffe was assigned to hear procedural matters in a number of cases on November 15.

“One of those cases was listed on the court rolls as David Whitehouse v Liam Murphy and others.

“Subsequently, when the papers were checked by the Keeper’s office, it became apparent the Lord Advocate was the third defender and, accordingly, the case was reallocated to a different judge.

“The case was initially reallocated to Lady Wise but, having regard to the level of business and in order to avoid unnecessary delay to the parties, was ultimately dealt with by Lord Arthurson.”

Whitehouse and colleague Paul Clark were arrested during the Rangers probe but charges against the pair were later dropped.

They worked for Duff & Phelps, who were appointed as administrators of the club in February 2012. The business and assets of The Rangers Football Club plc, who entered liquidation later that year, were sold to a consortium led by Charles Green for £5.5million.

Police launched an investigation into the circumstances surrounding the takeover. Whyte was cleared of fraud by a jury at the High Court in Glasgow in June.

Lawyers acting for Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that, throughout the period of detention, there were no reasonable grounds to suspect he had broken the law.

Whitehouse claims police and prosecutors didn’t follow correct legal procedure and his arrest damaged his reputation and caused him significant loss of income.

The defenders in the action, including the chief constable and Lord Advocate, claim correct legal procedure was followed and want his case to be dismissed.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary