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:
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
39 comments:
No doubt about it, Scotland's judiciary are corrupt.
Thanks for the video.Wolffe and his Crown Office Rangers persecution complex will always haunt Scotland.
What happened in this case proves the Lord Advocate and Chief Constable can fit up anyone they like and send them to jail on fake evidence fake charges and a malicious prosecution.
This guy was in the US lecturing us on law and justice.Now he cannot be trusted to keep the sidewalk clean.
Some lawyers are really pissed off at you over a Whatsapp lawyer group message leak know anything about this?
Allow me to translate the video for your readers
Ladies and Gentlemen we are gathered here to hear about ME ME ME THE LORD MALICIOUS
I organised cops and prosecutors to run a totally fake investigation based on faked up evidence and nailed those we wanted to nail because I am the MALICIOUS PROSECUTOR and I have the power to do as I want and FIX any INVESTIGATION AND TRIAL OF ANYONE I WANT TO JAIL
I am brilliantly brilliant and you must bask in my brilliance
Now if anyone of you msps want to speak out against me be very warned and very careful I know all about your private lives what you really do instead of all that pish you talk about in front of the cameras
So I cost you over ONE HUNDRED MILLION POUNDS to rig an investigation and throw a few accountants in jail.
What are you going to do about it? NOTHING
You are going to sit there and bawl for the cameras and papers and do NOTHING against me.
How about you Torags call for a judge inquiry as we earlier discussed because I am very friendly with all the judges and we can arrange another rigged investigation to get me off the hook.
I am the best Lord Malicious for Scotland EVER
WE ARE WORLD LEADING PROSECUTORS AND WE FAKE THE EVIDENCE TO CONVICT THE INNOCENT.
Been doing this for years fixing trials and fixing jail time so you better not say anything bad about me and my chums or we will turn on YOU
The top judge agrees with me I am brilliant and so is he.We are the brilliant team of corrupt prosecutors and courts who can fix jail time for anyone we like
THE END.
Wolffe cant resist spinning himself can he even after all the corruption we now know about the Rangers case
"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."
@ 9 September 2021 at 21:25
The judiciary like to think otherwise ...
@ 10 September 2021 at 21:23
The malicious prosecution of the Rangers Administrators is not the only malicious prosecution, or malicious investigation carried out by the Crown Office & Police Scotland.
There are other cases where both COPFS & Police Scotland have launched malicious investigations & invoked malicious charges (some deserted at Trial/Court) to harass individuals, groups & critics - or put on a display to others by flexing their power ...
There are also a number of recent cases, including criminal appeals where criminal defence legal counsel are alleged to be under investigation by regulators & Police/COPFS in relation to allegations of a criminal nature - including serious sexual assault.
This could be of significant interest, given a string of cases - mostly criminal trials & appeals - have suffered loss in court for the Crown on each occasion .. with defences lodged looking increasingly incompetent and not my accident.
For the avoidance of any doubt - the judiciary are aware of the above, yet have chosen not to act, comment or do anything about it at this time.
@ 11 September 2021 at 01:57
Thanks, very interesting - contact the blog please re. the lectures in the US by Scotland's legal profession & legal world actors.
@ 11 September 2021 at 18:19
Thanks ... this matter is being dealt with for an ongoing media probe.
@ 12 September 2021 at 14:04
The statement in the Scottish Parliament is the usual speech from Scotland's legal mcmafia ... talk up themselves & their gigantic ego while reminding everyone nothing can be done due to perceived 'independence' of the legal and justice system to ensure no scrutiny, transparency or accountability.
The msps should ask the story about relatives + friends of Crown Office at drugs parties and links to the coke and other drugs removed from the home of the dead QC as a favour to you know who the prosecutors
Arrogant as F* and lying to the end he was determined to send the Rangers accountants to jail on false charges and false evidence
Why hasnt Wolffe and the cops been charged by now?They admitted corruption they rigged the investigation from the start everyone knows the evidence was malicious we are into September and no charges they should be charged and send to the same jails they wanted to send the admins!
Everyone should watch the video to understand how rotten and corrupt the Crown Office and Lord Advocate are and the lengths they go to cover up
Even China becomes aware of corrupt judiciary and corrupted global arbitration courts
https://www.economist.com/china/2021/09/11/china-is-becoming-more-assertive-in-international-legal-disputes
China is becoming more assertive in international legal disputes
Party leaders are using such cases to reshape legal and regulatory norms
Sep 11th 2021
IN EARLY JANUARY the Communist Party published a five-year plan for the development of “socialist rule of law with Chinese characteristics”. Most of the document is domestically focused, but one section is devoted to foreign matters. It calls on China to help shape international law, to turn itself into the first choice of jurisdiction when resolving cross-border disputes and to promote the use of Chinese law abroad.
The party’s goal, the plan says, is to promote “a fair and reasonable” international system of rules. But in the past year it has become increasingly clear that the party means to take a legal fight to the world on multiple fronts. President Xi Jinping wants China’s legal apparatus to grow more muscular in international disputes, and to reshape international legal and regulatory norms.
Independent legal system and judiciary?
HA! tell that to Mr. Assange.
Comment 15 September 2021 at 15:00
West politicians attempt to controlled China by insisting PRC do business with same politicians and giving their family directorships or service contracts.Changes occur for global markets and as you refer to corrupted arbitration courts are no longer needed nor should be recognized by emerging economies controlled by previous failed global market model.PRC and emerging economies move on from failing ruin of United Kingdom and corrupt British political class.
Your blog is very good.Thank you for opportunity to post my comment blog author.
snitchy said...
The msps should ask the story about relatives + friends of Crown Office at drugs parties and links to the coke and other drugs removed from the home of the dead QC as a favour to you know who the prosecutors
13 September 2021 at 21:51
I know what this refers to.There are men in the party group who will kill to protect their reputations and secret double life.All the QCs too who have glowing write ups on their Chambers pages.Magic Circle #2 with all star cast from Scots Legal mafia.
So where is the not-very-independent investigation of the Lord Advocate and Police Scotland for their fit up of the Rangers accountants??
Dont forget all the drug dealers in COPFS who somehow manage to obtain confiscated drugs and sell to their friends
and the staff who tip off their gangland friends to search warrants and drugs raids
Funny isnt it how all COPFS staff charged with crimes cases skip court and no one is prosecuted by their own colleagues?
The Judiciary think they are decent honest human beings when they have no power to control them. Teflon criminals they are.
As you say neither Crown Office or Police Scotland will begin a complex case as this without the judiciary in on the plot from beginning and here is the evidence on your blog.
Did anyone spot the recent banner headline spin on a Procurator Fiscal who was named in the Magic Circle scandal.Ever so good PF shared boys with Scottish judges and colleagues at COPFS and Law Society.
Lothian and Borders cops had the full details then Crown Office cut in to block a raid on one of the posh Edinburgh mansions used as a party pad for creepy lawyers judges and fiscals.
Shock horror the story of the son and the drug dealing parties in Scotland and Amsterdam - why did the editor give daddy and mummy of law and justice a pass for this particular story I wonder?
Why are certain media folks in bed with lawyers?
Someone must write a book no?
And after confessing to arranging a malicious prosecution in front of the cameras and politicians nothing else happened to anyone or cops who were all part of the conspiracy and taxpayers cash is used to cover up everything.
Oh so very Scottish.
Confess to crime in front of the Scottish Parliament and you are able to walk out the front door with new job and a clean slate.
Obvious from James Wolffe's appearance in the video clip is how he seeks to turn the whole event of admitting to a malicious prosecution into one of no one is to blame and drops in language which actively lobbies against any investigation of what actions his prosecutors and police took against the accused.
Did you hear about a former prosecutor who gave a short talk on how corrupt she found the Crown Office.
More or less quoted as follows
* There are men of standing in Scotland's legal profession who use their links with charities including children's charities to mask their predatory lifestyle including links to child abuse.
An example of above used in the talk states the wife of a well known male lawyer handed evidence obtained from her husband's files to prosecutors implicating her husband's involvement in child abuse. However and because of the male lawyer's clientele his wife was told her husband will not be investigated or charged. The male lawyer finds out from a source and allegedly threatens to kill his wife unless he is allowed to move back into one of their properties.
* Lawyers who are close to Police are little more than hitmen who help to cover up the worst excesses of Police corruption and vendettas against colleagues and individuals carried out by Police officers.
* A senior figure in Scotland's justice sector is in fact a serial rapist and predator. He gets away with remaining in public life because his colleagues and wife covered up for him, and he along with figures from the legal establishment forced his victims to sign Non Disclosure Agreements with small financial settlements and physical threats. One of Scotland's most senior politicians has a copy of a report which documents over several pages: multiple rapes, predatory sexual assault bullying and physical threats involving several women - all attributed to this one male justice figure.
* A senior judge was a well known bully and thug throughout his legal career. The judge had a serious alcohol problem and a record shows court staff felt threatened by his actions on several occasions to the point they asked to be transferred from their duties.One staff member threatened to call Police and was sacked.
The judge went on to assault his wife and divorce her for a [withheld] after he told a conference he had talked to god and was going to become a priest.
* A prosecutor covered up for his drug dealing son and ordered Police not to investigate links to the death of a former prosecutor and contents including Class A drugs removed from the dead lawyer's home.
* Prosecutors removed references to a senior Law Society name in a property fraud scandal because he held links to senior prosecutors. The media were tipped off but backed off outing his involvement in the fraud.
* A leading advocate is a well known serial predator of females and is protected by his male colleagues and figures in the world of politics. He used his position to sexually assault several junior female colleagues for decades and used his status to coerce female lawyers into sexual relationships to advance their careers.
* A Sheriff asked prosecutors for and received assurances he would be kept out of an investigation of a criminal investigation involving crimes against journalists.
The talk ends with a statement saying she may write a book about the reality of life in Scotland's legal circles.
After a pause several of the women in attendance thank her for what she said.
Of interest?
What happened to all the crooks calling for a judge led inquiry into the Rangers fiasco?
As if a judge is honest enough to trust after reading how Lord Advocate manipulated the law to go after the Rangers accountants
Good one Peter and a good reminder along with the evidence how corrupt Scotland's entire justice system is!
Very interesting Peter including the comments.
Someone should ask the US authorities why they allow in a Scottish solicitor who holds events in the United States but who has not disclosed he was charged with crimes relating to sexual molestation/sexual violence and elevated, in an African country.Some speculation Scottish Police contacts made the charges go away.Details are widely known within the legal profession.
How corrupt can the judiciary be after reading this!
They were literally running out of judges on the day of the hearing to cover up for their insistence judge Sarah Wolffe hearing the claim against her own hubby.
and Paul Arthurson ends up covering for Wolffe.
"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."
Interesting again it takes Peter Cherbi to break open a massive judicial scandal.
Yes about time the St Aloysius student abusing lawyer mafia are outed and their legal enforcers who block reports of serious sexual abuse of students being reported in the press.
The horrible lawyer and judicial thugs of Scotland's legal clique who go to the SAME SCHOOL have kept abuse scandals at their own schools secret for years
How many probes of schools such as St Aloysius where all the top judges and lawyers in Scotland come from are going to happen before we get to the truth>
https://www.sundaypost.com/fp/police-in-fresh-abuse-probe-at-leading-private-school/
Police in fresh abuse probe at leading private school
By Craig McDonald April 5, 2020, 12:01 am
A fresh police inquiry has been carried out into claims of historical abuse at one of Scotland’s top private schools.
The probe, which follows a similar inquiry three years ago, came after allegations were raised by a former pupil of St Aloysius College, Glasgow, who now lives in Canada. We can also reveal legal action has begun over separate allegations of physical and sexual abuse said to have taken place at the fee-paying school.
Detectives previously interviewed former staff over a historical abuse complaint made in 2017 but, while not ruling out criminality, could not corroborate the claims.
In one case, an ex-pupil has told how he suffered physical and sexual abuse at the hands of lay and Jesuit members of staff in the 1960s.
Another former student states he was physically abused at St Aloysius, also in the 1960s.
A third case outlines details of physical and sexual abuse said to have been suffered by a pupil at the school in the 1970s and ’80s.
One former pupil, now in his 60s, says he suffered sexual abuse over two and a half years by two Jesuit priests at the college. He also said he was subjected to physical abuse by another priest and a lay teacher.
The 2017 police inquiry arose from the claims which are now subject to civil action. The former pupil said: “School was horrendous and ruined my life. I was in my 40s before I sought help and have seen a psychiatrist and clinical psychologist since then.”
Daniel Canning, a lawyer with Thompsons Solicitors, who represents the former pupils, said “dozens of supporting witnesses” had come forward with details of abuse. He said: “We are investigating all allegations of abuse and encourage anyone affected to contact us.”
St Aloysius and the Jesuit order said they were unable to comment.
I forgot Paul Arthurson was mixed up in the Rangers case mix-up.Thanks for the reminder!
From the comments I can imagine certain lawyers are removing from their online profiles they are St Aloyisus alumni.
As for the Police investigation of sexual abuse scandals your readers should be informed a number of well founded accusations relate to prolonged serious sexual assaults on several male students carried out by some of Scotland's legal celebrities.
All of those accused are solicitors, advocates, a prosecutor and at least two sheriffs.
Think on these details while your readers read coverage of a scandal which has been covered up by lawyers and judges who visited schools, colleges and preyed on students for decades.
Do not expect any headlines of criminal charges or a parade of the guilty from the Faculty of Advocates to the Law Society of Scotland.
Anyone notice all these child abuse cases at prestigious schools all over Scotland are from the same decades of schooling for Scotlands top judges and top lawyers and top everything else.Perhaps worth mentioning when John Swinney was Education Secretary he forbade and opposed a petition calling for the child abuse inquiry to be added to state schools!
* A senior figure in Scotland's justice sector is in fact a serial rapist and predator. He gets away with remaining in public life because his colleagues and wife covered up for him, and he along with figures from the legal establishment forced his victims to sign Non Disclosure Agreements with small financial settlements and physical threats. One of Scotland's most senior politicians has a copy of a report which documents over several pages: multiple rapes, predatory sexual assault bullying and physical threats involving several women - all attributed to this one male justice figure.
Makes sense and doubtless the only decent law journo Sherlock Cherbi can put a name and files to the senior justice figures who survive on Non Disclosure Agreements into the justice system.
Anonymous Anonymous said...
* A senior figure in Scotland's justice sector is in fact a serial rapist and predator. He gets away with remaining in public life because his colleagues and wife covered up for him, and he along with figures from the legal establishment forced his victims to sign Non Disclosure Agreements with small financial settlements and physical threats. One of Scotland's most senior politicians has a copy of a report which documents over several pages: multiple rapes, predatory sexual assault bullying and physical threats involving several women - all attributed to this one male justice figure.
Makes sense and doubtless the only decent law journo Sherlock Cherbi can put a name and files to the senior justice figures who survive on Non Disclosure Agreements into the justice system.
25 September 2021 at 17:59
==========================================================================
Its a good job you didn't sign Judge Moriarty's Non Disclosure Agreement as well Sherlock.
Shocker NOT reading the comments about the esteemed judicial figure and a history of violence, alcohol abuse.All kept quiet during Peter's petition for fear headlines would make the judiciary look bad!
A very good example of why the judiciary must be required to declare all their interests and without exception or excuse.
Partner from certain law firm representing Police Scotland angrily claims the recent focus on Police Scotland related Non Disclosure Agreements is "a Peter Cherbi production" and blames your "dogged determination" and use of Freedom of Information.I searched Twitter and found all your material however for some reason none of this is posted to your blog.Care to comment why?
Cool blog!
You publish everything!
Love your Twitter.
Really love your Twitter!
Are you Scottish?
You sure don't sound like a Brit.
How come you understand our Supreme Court justices and DOJ so well?
My Twitter friends talk about you all the time and send me your stuff.
You are a Democrat I guess.
What you write is exactly the same here in the US.
You Tweet stuff I never heard of then I see what you said in news days or weeks later!
Ever consider swapping UK and moving to where life happens?
What you do for Scotland is great but 10 years for your register.Really?!
Changing law takes way too long in Scotland.
We really need guys like you in the US who talk to people honestly about law and courts!
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