Court details reveal judge scheduled to hear case against her own husband. SCOTLAND’S judiciary are facing 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 is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.
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 takes 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.
The background to the civil damages claim stems from when David Whitehouse and Paul Clark were appointed to the former Rangers Football Club PLC in 2012 after owner Craig Whyte declared the business insolvent.
The Duff and Phelps administrators faced a failed prosecution bid by the Crown Office in relation to the collapse of the Ibrox oldco, while Mr Whyte was found not guilty of fraudulently acquiring the club during a trial in June.
The charges against David Whitehouse and his colleague Paul Clark were later dropped.
Both PoliceScotland Chief Constable Phil Gormley and Lord Advocate James Wolffe claim police and prosecutors acted in accordance with correct legal procedure.
Yet questions remain on how the Crown Office acted in this case, and many others where prosecutions which ultimately collapse, appear to be based on flimsy or even non-existent or unprovable evidence.
Police arrested and charged Mr Whitehouse and Mr Clark during the investigation into businessman Craig Whyte's takeover of the club in 2011. Charges were dropped following a court hearing before judge Lord Bannatyne in June 2016.
Lawyers acting for Mr Whitehouse claimed their client was "unlawfully detained" by detectives in November 2014. They also said that throughout the period of detention, there was no reasonable grounds to suspect that Mr Whitehouse had broken the law.
Mr Whitehouse also claimed that police obtained evidence without following proper legal procedure. An indictment against Mr Whitehouse was issued without any "evidential basis", his lawyers said.
It is also claimed the actions of police and prosecutors are said to have damaged Mr Whitehouse' reputation of being a first-class financial professional and led to a £1.75m loss in earnings.
A legal document states: “He lost income, in particular his entitlement to bonus payments and future earnings. His reputation was severely damaged.”
At the hearing on Wednesday 15 November – originally scheduled to be heard by Lady Wolffe - lawyers acting for Mr Whitehouse appeared during a short procedural hearing where it also emerged Mr Whitehouse's colleague Mr Clark is also suing the chief constable and Lord Advocate.
At the hearing, Court of Session outer house Judge Lord Arthurson arranged for a four-day hearing into the legal issues surrounding the case to take place at a later date.
Given the similarities of the two claims, lawyers are now examining whether the two actions should be rolled into a single case.
The case has emerged from the circumstances surrounding Mr Whyte's takeover of Rangers in 2011. Mr Whitehouse and Mr Clark worked for Duff & Phelps and were appointed as administrators of the club in February 2012. Four months later, the company's business and assets were sold to a consortium led by Charles Green for £5.5m.
Mr Whitehouse believes that his human rights were breached as a consequence of the actions of the police and prosecutors.
The chief constable and the Lord Advocate claim that police and prosecutors acted in accordance with correct legal procedure.
Lawyers acting for the top cop & Lord Advocate claim that Mr Whitehouse's human rights were not breached and that he did not suffer any loss or injury as a consequence of the actions taken by the police and prosecutors.
Lawyers acting for the Chief Constable & Lord Advocate also claim should be dismissed because the Lord Advocate is exempt from civil action from people who were the subject of a legal investigation.
However, the use of the Lord Advocate’s immunity from civil action - in times where the Crown Office have often been found to have got things wrong in court, or have acted improperly during investigations and the application of criminal charges, should now come under increased external scrutiny and ultimately be withdrawn from legislation.
The Judicial Office, and the Scottish Courts and Tribunals Service have both refused to issue any further comment or statement on this case, despite the Judicial Office informing journalists a statement would be issued, over two weeks ago.
However, questions remain as to why no recusal has been posted by the Judicial Office with regards to Lady Wolffe stepping aside from the case.
Clearly, had a register of judicial interests existed in a form currently being studied by MSPs of the Scottish Parliament’s Public Petitions Committee, incidences such as these could be avoided.
Lady Wolffe Biography:
The Hon Lady Wolffe was appointed a Judge of the Supreme Courts in March 2014.
Lady Wolffe qualified as a solicitor in 1992 and worked at the Bank of Scotland legal department from 1992 to 1993. She called to the bar in 1994 and until 2008 practised as a junior counsel, mainly in commercial and public law. From 1996 until 2008 she was also standing junior counsel to the Department of Trade and Industry and its successor departments. Since 2007 she has been an ad hoc advocate depute. She was appointed QC in 2008. As senior counsel she has practised mainly in commercial and public law. She was a member of the Disciplinary Tribunal of the Faculty of Advocates 2005-2008 and has been a member of the Police Appeals Tribunal since 2013. Mrs Wolffe emigrated to the United Kingdom in 1987.
Crown Office Specialist Casework Function:
The Crown Office Specialist Casework Function – currently led by Deputy Crown Agent: Lindsey Miller - comprises a number of specialist units involved in the delivery of case preparation and the provision of other legal services in support of COPFS core functions where the nature, size and/or complexity of the case or subject matter means that it is most effectively dealt with within Specialist Casework. This Function is managed nationally by Liam Murphy, Procurator Fiscal Specialist Casework, but delivered from various locations throughout Scotland.
The Specialist Casework units are:
- Criminal Allegations against the Police
- Health and Safety Crime (including the Helicopter Incident Investigation Team)
- International Co-operation Unit
- Proceeds of Crime Unit
- Scottish Fatalities Investigation Unit (including Road Traffic Fatalities Unit)
- Serious and Organised Crime (including Counter-Terrorism and Economic Crime)
- Wildlife and Environmental Crime Unit
The Civil Recovery Unit also sits within Specialist Casework.
The Specialist Casework and the High Court Functions together are known as Serious Casework.