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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 57
CA86/19 and CA72/20
Lord President
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motions
in the causes of
DAVID GRIER
Pursuer and Reclaimer
against
THE LORD ADVOCATE
and
THE CHIEF CONSTABLE OF POLICE SCOTLAND
Defenders and Respondents
______________
Pursuer and Reclaimer (v Lord Advocate): Dean of Faculty (Dunlop KC), Markie;
Kennedys Scotland (for Fleming & Reid, Glasgow)
Pursuer and Reclaimer (v Chief Constable): Smith KC, Black; Kennedys Scotland (for Fleming &
Reid, Glasgow)
Lord Advocate: Moynihan KC, Davie KC; Scottish Government Legal Directorate
Chief Constable: Duncan KC, Arnott; Ledingham Chalmers LLP
2
20 December 2022
Introduction
[1]
Between 2014 and 2015, several persons were investigated and prosecuted in
connection with an alleged fraudulent scheme in 2011 to acquire Rangers Football Club from
Murray International Holdings. These persons included Craig Whyte, whose company,
Wavetower Ltd, were to be the buyers.
[2]
In November 2014, Mr Whyte was placed on a petition, containing inter alia a charge
of fraud, along with Gary Withey, David Whitehouse, Paul Clark and the pursuer. A second
petition, dated September 2015, specified further charges against the same accused, apart
from the pursuer, and included Charles Green. An indictment, libelling charges against all
six accused, and adding Imran Ahmad, was served in September 2015 with a second,
substitute indictment following in the December. None of the accused was ever convicted of
any offence.
[3]
At preliminary hearings at the High Court of Justiciary in February 2016, either the
Crown withdrew the libels or the judge dismissed the charges against Mr Whitehouse,
Mr Clark and the pursuer; the decision in respect of the pursuer being upheld on appeal in
May 2016 (HM Advocate v Withey 2017 JC 249). A plea in bar of trial by Mr Withey was
sustained. Mr Whyte was found not guilty by a jury in June 2017, following a seven week
trial.
[4]
Mr Withey died in 2019. Mr Whitehouse and Mr Clark raised actions against both
defenders for malicious prosecution (Whitehouse v Lord Advocate 2020 SC 133). In February
2021 the then Lord Advocate settled their claims at a reported £10.5m each. In a subsequent
3
statement to the Scottish Parliament, he accepted that Mr Whitehouse and Mr Clark had
been maliciously prosecuted. Actions by some of the other former accused may be pending.
[5]
This reclaiming motion (appeal) arises from the first instance decision ( [2022] CSOH 2;
defenders. The Lord Ordinary held that, in contrast to Messrs Whitehouse and Clark, the
pursuer had not been maliciously prosecuted. The Lord Ordinary found that those police
officers and members of the Crown Office and Procurator Fiscal Service, who were dealing
respectively with the investigation and the prosecution, honestly believed that there had
been reasonable and probable cause to charge and indict the pursuer, as did the designated
Crown counsel who marked the case for prosecution. Malice had not been proved. In any
event, the Lord Ordinary found that the police had not been acting as a prosecutor.
[6]
The law on malicious prosecution was recently analysed by a Full Bench in
Whitehouse v Lord Advocate. This case is mainly about the application of the test for malicious
prosecution to the primary facts found by the Lord Ordinary and the inferences which he
drew from those facts. In addition, on the fourth, and last, day of the hearing, the pursuer
lodged a minute seeking to introduce res noviter (new material) which, it was said, could
have had a material bearing on the Lord Ordinary's assessment of the credibility of Crown
counsel.
The allegedly fraudulent scheme
[7]
The pursuer, who was then employed by MCR Business Consulting, London, met
Mr Whyte in 2010. MCR were acquired by the international firm, Duff & Phelps, in late
2011. Duff & Phelps were specialists in corporate finance, including insolvency. Upon
4
MCR's acquisition, Mr Whitehouse and Mr Clark became partners in the firm and the
pursuer became a senior employee.
[8]
The pursuer was engaged by Mr Whyte in connection with his purchase of Rangers
Football Club. The Club, which was owned by Sir David Murray through Murray
International Holdings, was heavily in debt to Lloyds Bank (formerly the Bank of Scotland).
The pursuer was instructed to prepare a scheme for the reduction of the debt. Mr Whyte
was receiving advice from Mr Withey, a partner in a London firm of solicitors, namely
Collyer Bristow, and from Philip Betts, an asset finance broker. The pursuer's main remit
was to "negotiate" the debt. Emails were exchanged between Messrs Withey, Betts and
Whyte. In one of these, dated 8 April 2011, and copied to Mr Betts, Mr Whyte told
Mr Withey not to disclose anything to the pursuer other than that which was required for
him to deal with Lloyds. In the proceedings before the Lord Ordinary, this became known
as the "Don't tell David" email. In an earlier email of 6 April, Mr Withey had described a
funding arrangement with an American corporation, namely Ticketus, to Messrs Clark,
Whyte and Betts. Ticketus were controlled by Ross Bryan through their parent company,
Octopus Investments.
[9]
Mr Whyte's plan, at least according to the defenders, was to acquire the Club by, in
effect, using the money which the Club would thus in due course generate through sales of
its own season tickets. The Club would buy itself for Mr Whyte through a company,
Wavetower Ltd, being a subsidiary of Liberty Capital Ltd, which he owned. Ticketus would
supply Wavetower with funds, which would be repaid from the season ticket sales over
three years.
[10]
MIH had been told that the acquisition was to be funded by Mr Whyte. The Club's
directors thought that Wavetower were to absorb the £20M Lloyds debt and that Mr Whyte
5
would inject about £5m of his own funds into the Club. With its normal income, including
that from future season tickets, the Club would be set on an even keel with no debt and
substantial capital for development (ie new players). Assurances were given by Mr Whyte
on how he intended to manage two significant tax claims, which were being pursued by HM
Revenue and Customs against the Club.
[11]
No money was ever provided by Mr Whyte, or by Wavetower, other than the funds
supplied by Ticketus. Initially, the police reported that Sir David had told the police that,
had he known of the Ticketus arrangement, he would not have agreed to the sale. It would
simply have left the Club in the same parlous financial state. All that would have occurred
was a change of owner. Insolvency was likely to follow, and it soon did. At a later stage,
Sir David was recorded as expressing a different view. It would later be contended by the
police and the Crown that insolvency is what Mr Whyte and his advisors had planned all
along. In due course, the administrators sold the Club to Sevco Scotland Ltd, a company
owned by Charles Green. This sale was also alleged to have been part of a fraudulent
scheme, but the pursuer was not said to have been involved in that.
Police investigation
[12]
Alastair Johnston was the chair of an "Independent Committee" of th e Club's
directors, which had been created to provide its views on the acquisition to MIH. He made
a complaint about Mr Whyte on 17 January 2012. The investigation began on that date. On
14 February, the Club went into administration with Mr Whitehouse and Mr Clark as joint
administrators. They began their own investigations into the acquisition. They spoke to the
police about their suspicions. They raised civil proceedings against Collyer Bristow (ie
Mr Withey) in London. On 23 May, the BBC broadcast a programme called: "The Men who
6
sold the Jerseys". This claimed that Mr Whitehouse and Mr Clark had a conflict of interest in
becoming administrators. More significantly, for present purposes, it said that the pursuer
had been aware of the Ticketus arrangement prior to the acquisition.
[13]
On 22 June 2012, the Crown Office instructed Strathclyde Police to investigate the
acquisition and its aftermath. The investigation was delegated to two relatively low-ranking
officers, namely DS James Robertson and DC Jacqueline O'Neill. They were members of
Strathclyde Police's Economic Crime Unit within its Specialist Crime Division. These two
officers conducted a detailed investigation. In due course, they were to bear the brunt of the
criticism by the various accused in the civil actions, including the one raised by the pursuer
against the Chief Constable.
[14]
Initially, the suspects had been restricted to Messrs Whyte, Betts and Withey. On
24 October 2012, the BBC broadcast a conversation between Mr Whyte and the pursuer in
which the pursuer appeared to acknowledge that he had known about the Ticketus
arrangement. The pursuer gave statements to the police as a witness on 23 and 24 October
and 7 November 2012. He denied involvement in any fraud. He said that he had been
unaware of "Ross" (Mr Bryan of Ticketus), or the identity of the funders, (Ticketus), until
after the sale of the Club had been completed.
[15]
By the summer of 2013, the police had begun to suspect the pursuer, Mr Whitehouse
and Mr Clark. This was after meetings with Mr Betts during March and April 2013. The
first of these took place at Stansted Airport. Mr Betts said that he had told the pursuer about
the Ticketus arrangement on 25 January 2011, when the two men had gone to a pub after a
meeting in London. The police's manuscript notes of that meeting included the words "Told
DG [the pursuer] funded against tickets wouldnt have been full breakdown as I dont think I
knew myself" (sic). In a statement, Mr Betts explained what had occurred in more detail.
7
He reiterated that he had told the pursuer that the funds were being raised against the
future sale of season tickets.
[16]
The police obtained a warrant to search Duff & Phelps' offices in London and
Manchester. The searches were executed on 28 August 2013. A senior manager at Duff &
Phelps claimed legal privilege over a number of the documents which were to be seized.
Among the items removed was a black folder which contained a cash flow forecast. This
had an entry referring to the "Ticketus Advance". This was referred to as Schedule 9.
[17]
Suspicion fell on the pursuer because of two matters. The first was his participation
in a presentation to the Independent Committee on 24 April 2011. In December 2010, a firm
of chartered accountants, namely Saffrey Champness, had prepared financial projections
based upon assumptions which had been provided by Mr Whyte and Mr Betts. These had
included a cash flow forecast for the post-sale period 2011 2012 entitled Schedule 9.
Originally, the entry detailing incoming funds of £20M had been described as "Ticketus
Advance". Had it remained in the forecast, this description would have alerted the
Committee, and hence MIH, to the true nature of the source of the funds; that is that they
were ultimately to be based on future ticket sales. On 17 March 2011, Mr Betts instructed
Saffrey Champness to amend this entry to show Mr Whyte's company, "Wavetower" as
being the party advancing the funds.
[18]
The minutes of the Independent Committee meeting record the pursuer as having
stated that he was "very comfortable with the forecasts and the re-worked working capital
position". The police believed that the pursuer had presented, on Mr Whyte's behalf, a cash
flow forecast to the meeting, which had induced MIH to consent to the sale to Wavetower.
It was completed on 6 May 2011, in the absence of any knowledge of the Ticketus
arrangement. The police thought that this had been the Schedule 9 forecast which they had
8
later found in the black folder recovered from Duff & Phelps' offices. This was incorrect.
The Schedule 9 forecast was not available at the meeting.
[19]
The second matter was the pursuer's preparation of "the letter of comfort". This was
provided to Ticketus, ostensibly in order to persuade them to release the funds to
Mr Whyte's solicitors, Collyer Bristow (ie Mr Withey). In April 2011, MIH had requested
evidence that the necessary funds to meet the Lloyd's debt were in Collyer Bristow's client
account. Meantime, Ticketus were concerned about the risk of non-repayment of their funds
as a result of the Club's tax liabilities. On 5 April 2011, Ross Bryan of Ticketus emailed
Messrs Whyte, Withey and Betts seeking comfort in relation to the likely outcome of what
became known as the "big tax case" (see Advocate General v Murray Group Holdings 2016 SC
201; 2018 SC (UKSC) 15), and its implications for Ticketus as a creditor, if the Club were to
lose the case and go into insolvency, as in due course they did.
[20]
Mr Betts forwarded this email to the pursuer. On 7 April 2011, the pursuer became
involved in the preparation of the letter of comfort, which was forwarded in his name, as a
partner in MCR, to Ticketus. It said that, if the Club were to go into administration, the
administrators would be bound to honour the Club's contract with Ticketus. The police
believed that the letter of comfort was intended to induce Ticketus to release the funds. It
transpired, however, that Ticketus had transferred the funds to Collyer Bristow before they
received the letter, albeit that they were to be held as undelivered pending completion of the
sale.
The police report to the Crown Office
[21]
DS Robertson submitted numerous "subject sheets" and interim reports to the Area
Procurator Fiscal, Glasgow, and to Sally Clark, the Senior Procurator Fiscal Depute in the
9
Economic Crime Unit of the Crown Office's Serious and Organised Crime Division. An
interim report of 23 November 2013 recorded that the police had carried out a full
assessment of a "chronological bundle" compiled by Duff & Phelps' English solicitors,
namely Holman Fenwick Willan. Together with interviews of Duff & Phelps' personnel and
other material, the police gave an update of the pursuer's (and Messrs Whitehouse and
Clark's) knowledge of the Ticketus arrangement. They referred to Mr Betts: (a) having told
the pursuer of the arrangement in London in January 2011; (b) forwarding the email from
Mr Bryan to the pursuer in April 2011; and (c) sending the pursuer an email later that day
regarding the provision of the letter of comfort to Ticketus. On the following day, there was
a series of emails about the Ticketus arrangement. This included a query asking the pursuer
if he had been aware of the manner in which Mr Whyte was funding the deal; the pursuer
replying "Still on it but getting closer".
[22]
On 8 August 2014, DS Robertson submitted a Standard Prosecution Report to the
Crown Office. This was the culmination of the police investigation which had, as already
noted, been carried out at the specific request of the Crown Office. It incorporated much of
what had been reported before. The substantive part of the SPR extended to some 94 pages.
It was addressed to Ms Clark. It named Messrs Whyte, Withey, Whitehouse, Clark and the
pursuer as potential accused. It contained draft charges against all five accused, including
the fraudulent gaining of control of the Club by concealing the Ticketus arrangement from
the Independent Committee. There was a specific charge against the pursuer of attempting
to pervert the course of justice by providing statements in which he falsely denied prior
knowledge of that arrangement. The police operation (entitled Iona) had involved
interviewing over 180 witnesses and seizing 1,200 productions as a result of the execution of
18 search warrants.
10
[23]
The SPR set out the police's understanding of the events surrounding the acquisition
of the Club in considerable detail. In particular, it described the Ticketus arrangement and
the evidence which indicated to the police that the pursuer had been aware of it before the
presentation to the Independent Committee. It highlighted the purpose of the "criminality
undertaken" by the five accused, notably the securing of a debt-free Club. In describing
what the police thought had occurred, the SPR contained extensive extracts from many
emails to and from the proposed five accused and the content of witness statements, from
which knowledge of certain matters, according to the police, might be inferred. It set out in
chronological order an almost daily diary of the events leading up to the acquisition of the
Club. Information covering the investigation followed, again with extracts from witness
statements. Prominent in the report was a transcript of the conversation, which had been
broadcast by the BBC, between the pursuer and Mr Whyte in which he was said to have
admitted prior knowledge of the Ticketus arrangement.
[24]
The SPR's "[s]ummary of misrepresentation and criminality" stated that, from the
evidence available in the statements and documents, Mr Betts had explained the Ticketus
arrangement to the pursuer. The pursuer had sent the letter of comfort to release the
Ticketus funds. He had presented a version of the cash flow forecast with, as he knew,
"Ticketus" substituted by "Wavetower". He had supplied false information about the
source of funding to the Independent Committee. A week later, the pursuer had emailed an
attachment, which had been sent to Michael Bills (who worked for the pursuer), with a cash
flow forecast from Ticketus, to Lloyds. An email from Mr Bills dated 1 June 2011 outlined
what Mr Whyte had done and implicated all three Duff & Phelps individuals, including the
pursuer, in the "end game"; being that the Club would go "bust". A large number of
selected extracts from "significant witness statements" were appended to the SPR, along
11
with summaries of the others. These ran to many pages. Copies of the statements of Messrs
Whitehouse and Clark and the pursuer were attached. Further enquiries were suggested.
Some 395 productions were numbered and described. There was no mention of the "Don't
tell David" email nor was there reference to the meeting at Stansted Airport.
[25]
The Crown Office, notably Ms Clark, decided to detain the five (Messrs Whyte,
Withey, Whitehouse and Clark and the pursuer) and to charge them in terms of the SPR
drafts. Ms Clark took the view that there was a prima facie case against the pursuer; that
being the formal requirement before placing someone on petition. She reached this view on
the basis of the SPR, the earlier police subject sheets and Mr Bett's statements. She framed a
petition which was derived from the SPR's draft charges. In an email dated 13 November
2014 to Helen Nisbet, the Deputy Head of the Serious and Organised Crime Division at the
Crown Office, Ms Clark attached the draft petition and commented that "we've struggled
with" the involvement of Messrs Whitehouse and Clark, as it was difficult to establish that
they had associated themselves with "the common criminal purpose".
[26]
On 14 November, the charges were revised by Ms Clark and re-sent to Ms Nisbet
and Caroline MacLeod, a Solemn Legal Manager, with a comment that all three of the Duff
& Phelps group had "input into" the letter of comfort which formed part of the "pretence to
induce [Ticketus] to transfer the funds". The pursuer was arrested and appeared on petition
along with Messrs Whitehouse, Clark and Withey on 17 November 2014. Mr Whyte
appeared a few weeks later.
Further searches
[27]
Meantime, the police had continued to investigate. The Lord Ordinary considered
that DS Robertson's treatment of some witnesses, notably professional persons, was
12
intimidatory and threatening (Opinion para [83]). DS Robertson obtained a warrant to
search Duff & Phelps' Manchester premises for electronic material relating to the Club's
administration. This was executed on 8 July 2015 with Ms Clark in attendance. In order to
deal with the large amount of material, a process was put in place whereby Duff & Phelps'
Scottish solicitors, namely DWF, would review the material for legal privilege and separate
it onto different discs. The privileged discs were put in marked, sealed envelopes. These
discs were delivered to the police between October and December 2015. On 6 October 2017,
the discs were returned to Duff & Phelps. Some of the envelopes had been opened. The
Lord Ordinary rejected DS Robertson's explanation of how this had come about (para [82]).
[28]
On 5 December 2015, the police obtained and executed a search warrant, without
prior warning, at HFW's premises in London. The search commenced while a business
entertainment event was taking place. Legal privilege was claimed. HFW obtained an
injunction that evening from the High Court of Justice in London prohibiting the police from
examining the contents of some 47 boxes of documents which had been seized. The High
Court (Queen's Bench Division) described the execution of the warrant as an abuse of state
power (order of 9 September 2016). A bill for the suspension of this warrant was presented
to the High Court of Justiciary on 18 December 2015. The High Court held that, because the
sheriff had not been told that the documents sought were subject to an ongoing dispute in
relation to legal privilege, or that High Court proceedings had been initiated, the warrant
was oppressive. The warrant was suspended (Holman Fenwick Willan v Orr 2017 JC 239).
Crown Office decisions
[29]
In October 2014, shortly before the appearances on petition, James Keegan QC (sol
adv) became the designated Crown counsel (Advocate depute) who would require to decide
13
who, if anyone, was to be prosecuted, with what crime, and in what forum. Ms MacLeod
was appointed as the Solemn Legal Manager responsible for the practical management of
the case. Ms Clark was to prepare the Precognition. Although the name remains the same,
the Precognition is far removed from its original form of a collection of precognitions
compiled by the sheriff, and later the procurator fiscal, for transmission to Crown counsel
(Alison: Practice 148). It is now generally a file of statements taken by the police, albeit still
destined to, and intended for the benefit of, the Crown counsel who will ultimately "mark"
the case for prosecution. It ought to contain draft charges and lists of witnesses and
productions to assist in the framing of any indictment. An analysis, signed by a procurator
fiscal, of whether the evidence is sufficient to support criminal charges, usually forms a
preface. It is followed by a recommendation. In the modern era, the Precognition is in
electronic form, although in 2014 the final version would more likely have been in hard
copy. Ms Clark did not ever complete or formally submit a Precognition.
[30]
Rather, by early August 2015, there were concerns about the fast looming time bars.
A case must be indicted to a Preliminary Hearing within eleven months of an accused's first
appearance on petition (Criminal Procedure (Scotland) Act 1995, s 65). The last date on
which an indictment could be served so as to comply with the eleven month time bar was
17 September 2015 (10 months to allow for timeous service of the indictment). If missed, it
would quite simply prevent any prosecution on indictment. The five accused who had
appeared on the original petition, or at least all but Mr Whyte, would have tholed their
assize (be held to have gone through the trial process).
[31]
The plan became one to report the case "electronically" by 10 August. The day
before, Ms Clark produced a draft report in which she recommended that the pursuer, along
with the four original co-accused on the first petition, be indicted. On the same day,
14
Ms MacLeod countersigned the report and referred to the need to serve a first indictment on
10 September 2015 in case an application for an extension of time was not granted. An
application for an extension of time had been made to the sheriff on 3 September. It was
anticipated that this first indictment would be superseded by a more comprehensive one,
but presumably only if an extension were granted.
[32]
Ms MacLeod's recommendation to Crown counsel was that "there is a clear
sufficiency of evidence" against Messrs Whyte and Withey and the pursuer. There was also
evidence of the involvement of Messrs Whitehouse and Clark, notably their being kept
appraised of progress and providing guidance to the pursuer, who was described as "the
junior partner". Ms MacLeod noted that counsel and the Lord Advocate had been "kept
abreast of developments".
[33]
Two further procurators fiscal depute at the Crown Office became involved in the
drafting of the indictment, namely Alistair Logan and Alan MacDonald. In an email to
Crown counsel dated 4 September, Mr Logan advised that he did not consider that
Messrs Whitehouse and Clark could properly be indicted. There was an absence of evidence
of their awareness of any false representation or knowledge of the Ticketus arrangement,
albeit that they had had some input into the letter of comfort. The pursuer, however, was,
according to Mr Logan, "a different kettle of fish and it [was] clear that he was aware from
January 2011 of the nature of the Ticketus deal" and thus that Mr Whyte was not using his
own money. He was complicit in the letter of comfort and in the false representation of
Mr Whyte's financial position to the Independent Committee. Counsel noted this update.
[34]
The extension of time was granted by the sheriff on 7 September 2015. On
10 September, Ms Nisbet emailed other members of Crown Office reporting upon a meeting
15
with the Lord Advocate and stating that "Plan A" had been to indict all five accused. She
advised that:
"We are comfortable with the indictment against 3 (Whyte, Withey and [the
pursuer]) of the 5 but Whitehouse and Clark have been causing us concern (although
we are confident that a sufficiency will be established in the fullness of time)".
Although the extension had been granted, if that were successfully appealed to the High
Court, the last date for service would revert to 17 September (only 7 days hence). Any
subsequent indictment would be rendered void and the right to indict would be entirely
lost.
[35]
Messrs Logan and MacDonald had been tasked with identifying "some kind of
sufficiency" against Messrs Whitehouse and Clark (Plan B). Both plans were discarded in
favour of the "completely unimagined and unimaginable Plan C to indict all seven" (ie
including Messrs Green and Ahmed). Ms Nisbet noted that "We are to libel as many
charges as we can". A meeting with an accountant and Crown counsel was to take place on
the next day "which may be the quickest way of confirming we have a sufficiency for further
charges". The final draft indictment was to be put before the Lord Advocate. A manuscript
note, which was taken at the meeting with the accountant, read "nail the three Duff &
Phelps people". In his testimony, counsel denied that this was an instruction from him. It
was a phrase which he would not have used, but it might mean that the accountants were to
produce a report that incriminated the three. Counsel testified that he had not intended to
"nail" anybody.
[36]
Messrs Whitehouse and Clark appealed against the extension. Concerned about the
possibility that the appeal would be allowed, and on the instructions of the Lord Advocate,
Crown counsel took what he described as a "tactical" decision to instruct service of a first
16
indictment within the original, un-extended timescale. This was with a view to issuing a
second, fuller and more considered, substitute indictment subsequently.
[37]
Crown counsel's instruction, in so far as relevant to the pursuer, commenced as
follows:
"15 SEPTEMBER 2015
I have considered the charges on the indictment ... and the evidence that has been
presented to me either in document form or reported to me in evidence summaries.
I am satisfied that there is a substantial body of evidence that supports the
allegations of conspiracy/fraud on the part of Craig Whyte and Gary Withey as
narrated in the indictment.
I have considered the preliminary observations that have been made in a quotation
document by the Forensic Accountants ... I have noted in particular, the criticisms
that they make of the actions of the Joint Administrators, the accused Paul Clark and
David Whitehouse. I note that those criticisms are connected to the conduct of [the
pursuer] and Paul Clark before the acquisition of Rangers Football Club plc [RFC] by
Craig Whyte and during the management of that club.
I note that there is a substantial body of evidence that points to knowledge on the
part of [the pursuer] and Mr Clark that money obtained from Ticketus (`secured
against' an assignation agreement that related to the upfront sale of season tickets at
a discount over three football seasons.) was utilised by Mr Whyte with the
connivance of Mr Withey to acquire RFC."
[38]
Counsel went on to consider the evidence against Messrs Whitehouse, Green and
Ahmed before concluding that the indictment should proceed against all seven. When later
asked at the proof about his decision, counsel said that the case "wasn't ready". What he
meant by that was not explored in any detail.
[39]
The first of the two indictments was served on 15 September 2015. The principal
charge libelled against the pursuer and the four original accused was a conspiracy to acquire
the Club by fraud, in furtherance of which a misrepresentation had been made at the
Independent Committee meeting and the letter of comfort had been prepared (charge 1). An
additional charge of this being in furtherance of serious organised crime was added
17
(charge 4). There was no charge of attempting to pervert the course of justice (cf the original
police charges). The complexity of the alleged fraudulent actings of the accused is simply
illustrated by the libel being broken down into some 55 sub-paragraphs. Charges (2) and (3)
were against Messrs Whyte and Withey only. The remaining charges did not concern the
pursuer. Crown counsel, Mr Logan and Mr MacDonald all testified that they had been of
the view that there was a sufficiency of evidence to justify an indictment libelling these
charges.
The Extension of Time
[40]
The reasons supplied to the sheriff by Crown counsel in support of the application
for an extension of time were inaccurate. The precise source of the confusion may remain
uncertain, but was explored by the High Court in the criminal appeal (Whitehouse v HM
Advocate [2017] HCJAC 46). The position is as follows. When the application came before
the sheriff on Thursday, 3 September 2015, counsel told him that some 29 boxes of
previously withheld material had recently (July 2015) been recovered from Duff & Phelps in
a belated response to the search warrant of August 2013. At a continued hearing before the
same sheriff on Monday, 7 September, Crown counsel accepted that this had not been
correct. Rather, 39 boxes had been received from the solicitors (Clyde & Co) acting for
Collyer Bristow.
[41]
The sheriff applied the first leg of the two stage test in HM Advocate v Swift 1984 JC
83 and decided that this explanation, coupled with the fact that the original petition had
been presented prematurely because Mr Whyte constituted a flight risk, amounted to a
reason why an extension might be granted. This was also a reason why, when taken with
the complexity of the case, an extension of three months ought to be given, applying stage
18
two of the test, to allow for a "fully considered indictment". But for the alleged late arrival
of the material, the sheriff reported to the High Court that his decision might have been
different (see Whitehouse v HM Advocate, LJC (Carloway), delivering the Opinion of the
Court, at paras [5] and [6]).
[42]
At the hearing on the appeal, it was conceded by the Crown that the revised version
of events concerning the 39 boxes had also been incorrect (Whitehouse v HM Advocate at
para [8]). There had been some additional material from Duff & Phelps pursuant to the
warrant of July 2015. Thereafter, only a small quantity of material had come from Collyer
Bristow's solicitors, and it had already been assessed in 2013. The Crown apologised for the
"human error". The High Court reconsidered the application and held that an extension
ought to be granted, given the volume of material, the complexities of the case and,
ultimately, the public interest in allowing the prosecution to proceed (at paras [18] and [19]).
[43]
At proof, Crown counsel testified that, prior to the second hearing before the sheriff,
he had not been told by the procurator fiscal (Ms MacLeod) that the information about the
39 boxes had been incorrect. As will be seen in relation to the plea of res noviter,
Ms MacLeod had been aware, prior to the continued hearing, that the position in relation to
these boxes was disputed and uncertain. The Lord Ordinary accepted counsel's testimony
and described Ms MacLeod's failure to inform counsel of the uncertainty as "reprehensible"
(Opinion para [139]). On the basis of the evidence currently available, this criticism is
unjustified.
[44]
The tangled web thus weaved unravelled at the commencement of the hearing on the
reclaiming motion. A hitherto regrettably undisclosed email from Ms MacLeod to Crown
counsel dated Friday, 4 September 2015, and timed at 7.48pm, was produced. This indicates
that she had forwarded to counsel an email dated 4 September from Duff & Phelps'
19
solicitors (DWF) explaining that counsel may have confused the Duff & Phelps boxes
recovered in 2013 and the HFW boxes in 2015. The 2013 warrant in respect of their clients
had been fully complied with long before 2015. The Lord Ordinary's criticism of
Ms MacLeod, a senior prosecutor fiscal depute, was, to say the least, unfortunate. At the
risk of unnecessary repetition, it is almost certainly unjustified.
[45]
The Crown served the second indictment on the day before the appeal on the
extension of time was due to be heard (2 December 2015). Charges (1) and (4) against the
pursuer remained, as did many of the charges against the other accused. There were
additional charges brought against the pursuer. These were charges (7) to (9), which libelled
that the pursuer and Mr Whyte had created invoices for services rendered by the pursuer to
the Club instead of Mr Whyte's company, namely Liberty Capital. Charge (1) was a breach
of section 993 of the Companies Act 2006, whereby the original five accused were parties to a
failure by the Club to pay taxes with a view to causing it to go into administration.
Withdrawal and dismissal of charges
[46]
The preliminary hearings were due to take place on 3 and 4 February 2016. The first
indictment was not called, and thus fell. Various challenges to the competency and
relevancy of, and the specification within, the second indictment were made by the accused.
Crown counsel withdrew a number of charges, including what had been charge (4) on the
original indictment against the pursuer (serious organised crime). Charge (1) remained, but
the allegation regarding the letter of comfort was deleted, leaving only his participation in
the Independent Committee meeting.
[47]
A further preliminary hearing was held on 26 February 2016, at which the judge
heard evidence about the role of the Independent Committee. He concluded that the
20
pursuer's participation at the Committee's meeting could not have brought about a practical
result. Sir David Murray gave evidence, in contrast to what the police had noted him as
saying in the early stages of the investigation, that he would have proceeded with the sale
irrespective of its views. That being so, the judge held that the indictment did not relevantly
aver fraud because no practical result could have followed. In light of that, on 15 April 2016,
he dismissed charge (1) as irrelevant.
[48]
The Crown appeal was refused (HM Advocate v Withey). The High Court reasoned
(LJG (Carloway), delivering the opinion of the court, at para [29]) that what was being
libelled against the pursuer was a conspiracy to acquire the Club by fraud; the pursuer's
involvement being his concealing of the Ticketus arrangement from the Committee, thus
resulting in MIH selling the Club to Wavetower. There was no link between the
concealment and the sale; there being no representations by the pursuer to MIH. The
evidence was that the sale would have proceeded in any event (para [32]). Although it may
have been possible to allow the prosecution to continue on the basis purely of an incomplete
conspiracy or an attempted fraud, the Crown declined this option and proceeded on the
basis that what had to be proved was a completed act of fraud (para [33]). On that basis the
charge was irrelevant. The statutory charge failed because of an absence of an averment of
trading whilst insolvent (para [36]). The remaining charges against the pursuer were also
dismissed as irrelevant. That brought the proceedings against the pursuer to an end.
The Lord Ordinary
The law
[49]
The Lord Ordinary had regard to the law on malicious prosecution as set out in
Whitehouse v Lord Advocate. Canadian and Australian cases demonstrated, in large part, how
21
matters should be analysed in modern society.
I
n terms of Nelles v Ontario [1989] 2 SCR 170,
there were four elements which had to be proved: (a) the defender had started the criminal
proceedings; (b) the proceedings had been concluded in favour of the pursuer; (c) there had
been no reasonable and probable cause; and (d) there had been malice, or a primary purpose
other than that of carrying the law into effect. The Lord Advocate accepted elements (a) and
(b). The Chief Constable accepted that (b) was satisfied, but not (a). Elements (c) and (d)
were separate from one another. Both had to be established (Opinion para [61]) in respect of
each defender).
[50]
Responsibility for the prosecution of crime rested upon the Crown and not on the
police. There was English authority that the police could be held to be the prosecutor where
either the Crown were deprived of their ability to exercise independent judgement, because
of false information from the police (Rees v Commissioner of the Police of the Metropolis
impropriety as to be worthless.
In order to establish a lack of reasonable and probable
cause, there was no need to prove that the prosecutor had no subjective belief in the cause.
Malice had a broader meaning than personal spite. It was not to be inferred from an absence
of reasonable cause. It was not necessarily to be inferred from an absence of subjective belief
(para [72]). Liability would not be imposed where a prosecutor proceeded, in the absence of
reasonable and probable grounds, because of incompetence, inexperience, poor judgement,
lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross
negligence (Whitehouse v Lord Advocate), although malice could be inferred from recklessness
in some cases (Robertson v Keith 1936 SC 29; Willers v Joyce [2018] AC 779) (para [55]). Malice
involved acting with a motive other than a desire to bring a criminal to justice (Glinski v
McIver [1962] AC 726).
22
The case against the Lord Advocate
[51]
The pursuer did not contend that the case against the Crown had been made out
when he appeared on petition. His position was that, at that stage, the Crown had been
misled by the police. The only issue was whether the case was proved at the indictment
stage and thereafter. The Lord Ordinary had previously held (2021 SLT 371) that the Lord
Advocate had pled no relevant defence to the pursuer's averments of a lack of objective
reasonable and probable cause when the indictment was served. The sole question was
therefore whether malice had been made out.
[52]
The pursuer placed the greatest weight on two factors. First, the absence of a proper
analysis of the evidence, notably the lack of a Precognition as required by the Crown Office
Book of Regulations (para [119]). Secondly, the misleading of the sheriff in the application
for an extension of time (para [120]). Other matters included the failure to disclose the
"Don't tell David" email in the SPR, the application for the warrant to search HFW's
premises, and the "tactical" service of the first indictment (para [121]).
[53]
The Lord Ordinary noted the difficulty of demonstrating an improper motive in the
bureaucratic setting of a public prosecutor's office (para [128]). The absence of a completed
Precognition was a serious breach of standard procedure, but he doubted whether this had
any relevance to malice (para [129]). The draft Precognition had repeated similar evidential
flaws as were in the SPR; for example it assumed that Mr Bett's statements were true.
Ms MacLeod's recommendation was brief and not reasoned (para [131]). The Lord
Advocate had reached no view on sufficiency; having delegated that to Crown counsel.
[54]
All of the individuals concerned in the prosecution had been subjectively of the view
that there was reasonable and probable cause to indict the pursuer (para [138]). The
23
knowledge and understanding of Crown counsel was of particular importance (para [134]).
His primary sources were the SPR and the summaries of evidence in the draft Precognition,
plus further "haphazard" material (para [134]). He had been able to form the view that
there was sufficient evidence of the pursuer's involvement in a conspiracy to commit fraud
(para [136]). He considered that the presentation to the Independent Committee meeting,
though not decisive in itself, formed part of the conspiracy to acquire the Club by fraud.
The letter of comfort had been sent after Ticketus had transferred the funds, but counsel did
not regard that as important because the funds were to be held as undelivered. Mr Logan
and Mr MacDonald had formed the same view on sufficiency in relation to both
indictments. Their evidence had not been challenged (para [137]).
[55]
The actions of the Crown in respect of both indictments were not motivated by
anything other than the pursuit of the interests of justice (para [138]). There was no
evidence that the Crown knew of the material which had been subject to legal privilege.
When seeking a warrant to search the offices of Duff & Phelps' solicitors, and in applying to
the High Court for an extension of time in which to serve the second indictment, there had
been failures to tell the court of relevant matters, but those failures did not point to malice.
[56]
In relation to the admissions of malicious prosecution made in the cases raised by
Messrs Whitehouse and Clark, the Lord Ordinary determined that his decision should not
be "influenced by the extra-judicial outcome of those other cases or by anything said by the
Lord Advocate by way of explanation for that outcome" (para [143]).
The case against the Chief Constable
[57]
The police did not have objective reasonable and probable cause to charge the
pursuer (para [94]). The pursuer's knowledge of the Ticketus deal, even if it could be
24
established on the basis of "ex post facto" statements did not cause anything to occur
(para [96]). The pursuer's involvement amounted to his participation at the meeting of the
Independent Committee and the drafting of the letter of comfort. The Schedule 9 cash flow
forecast had not been presented at the meeting. The letter of comfort did not induce
Ticketus to transfer funds, as it was sent after the transfer. As the High Court had held,
neither of these actions had led to a practical result and neither could objectively constitute
fraud. The charge of perverting the course of justice was based on the pursuer's denial of
knowledge of the Ticketus arrangement. As that did not amount to the commission of an
offence, there could be no objective reasonable and probable cause for that charge
(para [97]).
[58]
The police did have subjective reasonable and probable cause to charge the pursuer.
DS Robertson had acted reprehensibly in a number of ways, but there was no doubt that, at
the time of the SPR, he, and his colleague, were genuinely of the view that there was
evidence that the pursuer had participated in a fraudulent scheme (para [102]).
DS Robertson's actings, notably in relation to privilege and his interviewing techniques, had
been driven by his "groundless suspicion" that Duff & Phelps and their lawyers were
obstructing the investigation (para [102]). The errors, which infected his analysis, of the
pursuer's participation at the Independent Committee meeting and the drafting of the letter
of comfort, had been honest.
[59]
It had not been put to the police that they had deliberately misrepresented the
position to the Crown. The police had honestly believed that there was a proper case to lay
before the court (Willers v Joyce; para [102]). The failure to mention the "Don't Tell David"
email in the SPR, the meeting at Stansted Airport and the examination of material over
which privilege had been claimed, did not amount to a misrepresentation to the Crown. The
25
email had not been obviously exculpatory (para [103]). The pursuer had been aware of it by
16 June 2015 when it was proffered as a reason to terminate the prosecution. The Stansted
meeting had been a preliminary discussion. There was no material difference between what
was said at that meeting and the later witness statements.
[60]
The search at Duff & Phelps' offices was undertaken to see if they had a copy of the
original cash flow forecast. A copy was found in the black folder, to which privilege might
have attached. There was no evidence that it had been used in the case presented to the
Crown. DS Robertson had opened the sealed envelopes, but no misrepresentation of the
case to the Crown had followed (para [108]). The discovery of the discs post -dated the first
indictment. The primary responsibility for not telling the sheriff of the High Court
indictment lay with the Crown.
[61]
The police were not the prosecuting authority. The Crown were not deprived of
their ability to exercise independent judgement. Important elements of the case were
factually incorrect, but not to the extent required to hold the police to be a prosecutor. The
police did not think that the information in the SPR was either false or tainted (para [111]).
The decision to charge the pursuer was made by the Crown, who had been entit led to rely
on the SPR. Its errors had not been discoverable at that time.
[62]
The police had not acted with malice (para [112]). They had had no motive other
than to bring the pursuer, whom they believed to have committed criminal offences, to
justice. The police investigation may have suffered from incompetence, poor judgement,
lack of professionalism or recklessness, but that was not enough for malice. There was no
illegitimate motive or a deliberate misuse of the court process. Insofar as the decision to
recommend charging the pursuer may have been reckless, it amounted to over-zealousness,
not indifference. The treatment of Mr Betts, as a witness instead of a suspect, stemmed from
26
DS Robertson's assessment that Mr Betts had been truthful about the alteration to the cash
flow forecast. DS Robertson considered that the pursuer had been untruthful when he
denied awareness of the alteration at the time of the Independent Committee meeting.
Causation
[63]
The Lord Ordinary rejected the contention that the de minimis test, which was
adopted in industrial disease cases (Simmons v British Steel 2004 SC (HL) 94), applied. The
pursuer's losses were not indivisible. At least some damage to his reputation and earning
potential had been caused by the BBC. The pursuer had raised an action of defamation
against the BBC. It was currently sisted. No evidence had been led to enable the court to
assess which losses were caused respectively by the Chief Constable or the Lord Advocate.
There was evidence that the pursuer's professional ranking had begun to decline prior to his
arrest and charge. Even if the court had been in the pursuer's favour on the merits, it could
not have pronounced decree for a sum in damages in respect of each defender.
Quantum
[64]
It was common ground that three elements required to be assessed: loss of earnings,
solatium; and the expenses of defending the criminal proceedings. Loss of earnings would
have been assessed at £998,000 (including future losses of £120,000); £30,000 was appropriate
for solatium, and there was £935,859 in expenses.
Submissions in the Reclaiming Motion
The pursuer's case against the Lord Advocate
[65]
The circumstances in which an appellate court could interfere with first instance
27
findings of fact were well known. Interference with inferences drawn from the primary
facts was more readily justifiable than interference with primary facts which were based
upon the credibility and reliability of witnesses (AW v Greater Glasgow Health Board
[2017] CSIH 58 at para [49]). The Lord Ordinary had drawn the wrong inferences from the primary
facts. In addition, the court could interfere in a range of circumstances in which the court at
first instance had erred in law or failed to consider relevant evidence (para [50]). There had
been four instances of such errors or failures.
[66]
First, the Lord Ordinary had ignored the Lord Advocate's admission of maliciously
prosecuting Messrs Whitehouse and Clark. This was an extra-judicial admission against
interest (Walker & Walker: Evidence (5th ed) at para 9.2). It was not collateral. There were
sufficient averments to cover it and evidence had been led about it without objection
(McGlone v British Railways Board 1966 SC (HL) 1). Since the conspiracy was said to be
between the pursuer, Mr Whitehouse and Mr Clark, how could it be malicious in respect of
Messrs Whitehouse and Clark and not the pursuer?
[67]
Secondly, at the meeting with the forensic accountant, which was shortly before the
first indictment, there was a note to "nail the three Duff & Phelps people". This was not
mentioned in the Lord Ordinary's Opinion. Thirdly, he had failed to take into account the
import of the illegal warrant to search the offices of HFW, which the High Court had
described as oppressive and the courts in England as an abuse of state power.
[68]
Fourthly, the Lord Ordinary had erred in stating that malice was not to be inferred
from an absence of probable cause (Glinski v McIver at 743; Whitehouse v Chief Constable at
para [89]). He had not taken into account the lack of probable cause. His citation of
Robertson v Keith did not demonstrate otherwise. Malice can be inferred from recklessness,
including wilful blindness, such as when a case was indicted when it was not ready.
28
[69]
Malice required proof of an improper purpose; that the prosecutor deliberately
perverted or abused the process of criminal justice (Whitehouse v Lord Advocate at para [107]
citing Miazga v Kvello Estate [2009] 3 RCS 339 at para [80] and Henry v British Colombia (AG)
[2015] SCC 24 at para [46]). It was accepted by all parties that subjective belief was relevant
only to malice and not to whether there was reasonable and probable cause. There had to be
some improper purpose or motive (Henry v British Colombia (AG) at para [51]). The legal
definition was broader than spite or ill will. An obvious insufficiency of evidence could
support an inference of malice (A v New South Wales (2007) 233 ALR 584 at para [90]; Willers
v Joyce at para 55).
[70]
An inference of malice ought to have been drawn from the primary facts. The sheriff
had been misled by the Crown in the application for the extension of time. The Crown had a
duty of candour. Had the correct information been provided to the sheriff, he may have
reached a different view (see Zurich Insurance Co v Hayward [2017] AC 142 at para 35). Then
there was the instruction to the forensic accountant, and the accompanying meeting note to
"nail the three Duff & Phelps people". That had not been disclosed to the judge who had
ordered recovery of the instruction. His order had not been obtempered. There was no
innocent explanation for this.
[71]
Malice on the part of Crown counsel was present from the time of his instruction to
indict until dismissal of the charges some nine months later. Crown counsel had admitted
that, at the time of his instructions to indict, the case "wasn't ready". The case should not
have been indicted without a proper analysis. Crown counsel had not seen a Precognition.
It was accepted that the Lord Ordinary's finding that Crown counsel had not acted
maliciously "significantly weakened" this submission. The Lord Ordinary had narrated the
29
circumstances of the HFW search. This was relevant to the issue of malice. The Lord
Ordinary had not made anything of it.
[72]
Malice could be inferred from a want of probable cause. There was no probable
cause because the pursuer's actings had no practical effect which would have been necessary
for a charge of fraud to have been made out. The improper motive was to achieve a
conviction at all costs. A "tactical" decision to indict had been taken despite the absence of a
Precognition. It was accepted that the Lord Ordinary had found that Crown counsel had
nevertheless been able to form a view there was a sufficiency of evidence, but he had said
that the case "wasn't ready". Indicting in these circumstances did not amount to a proper
invocation of the criminal law. Counsel had not looked at the second indictment.
[73]
On causation, the Lord Ordinary erred in holding that the pursuer's failure to
establish the requisite apportionment of blame between the defenders rendered the court
unable to make any award in his favour. Where joint wrongdoers contributed to a single
outcome, each was responsible for the entire loss whether the other causes were "innocent
or guilty" (McGregor, Damages, 21st edition, para 10-20 et seq). To require a pursuer to lead
evidence, to establish which defender had occasioned which specific loss, would involve an
impossible standard. The question was whether the defenders' actions had made a material
contribution to the whole loss (Williams v Bermuda Hospital Board [2016] AC 888; Simmons v
British Steel). The defenders were jointly and severally liable. It was for the particular
defender to show that the losses would have been incurred in any event.
[74]
On quantum, the pursuer accepted the Lord Ordinary's figures for solatium and loss
of earnings. The claim for legal defence costs was a subrogated claim made by the pursuer
on behalf of Duff & Phelps' insurers.
30
The pursuer's case against the Chief Constable
[75]
The complete absence of evidence against the pursuer, and the abuse of state power
in executing a warrant to search HFW's offices, were indicative of malice. The Lord
Ordinary had said that he would not accept DS Robertson's testimony in the absence of
support for it. In finding that DS Robertson believed that there was sufficient evidence, the
Lord Ordinary had not followed his own formula. There was no support for that belief.
DS Robertson had reported that a version of the cash flow forecast had been presented at the
Independent Committee meeting and that the pursuer had prepared the letter of comfort in
advance of the transfer of funds from Ticketus. Neither was true. DS Robertson had
attempted to explain that, when he had said that the pursuer had presented a version of the
forecast "on or around" 24 April, he was not saying that this version had been handed over
at the meeting itself, hence the absence of a minute to that effect. His position had been
bizarre and malice could be inferred. It had not been specifically put to DS Robertson that
he had deliberately misled the Crown because it had been agreed by counsel that it was not
necessary, in the context of a virtual WebEx proof, to put every point to every witness.
[76]
There were five indicators of malice: first, the erroneous references in the SPR to the
Independent Committee and the letter of comfort; secondly, the failure of the SPR to
mention the Stansted Airport meeting; thirdly, the sinister failure to disclose the notes of
that meeting; fourthly, the use of the cash flow forecast, prior to it being released from the
plea of privilege; and fifthly, the failure to mention the "Don't tell David" email. The Lord
Ordinary should have looked at the evidence in the round. This gave a clear indication of
the attitude of DS Robertson as an individual who was not trying to bring a person to justice.
It was not possible to look into DS Robertson's mind to ascertain what his motive had been.
Ultimately, the decision was one which no reasonable judge could have made. Had the
31
Crown been made aware of these matters, they would have declined to prosecute.
Disclosure of them would have resulted in a successful application to terminate the
proceedings on grounds of oppression. The Lord Ordinary ought to have found that these
events were all indicative of an improper motive, and a desire to bring the pursuer not to
justice, but to injustice.
[77]
It had not been suggested at the proof that the pursuer had done anything wrong.
The court required to be careful when looking at individual emails and parts of statements.
Much more evidence was put before the Lord Ordinary. The court should not rely on his
opinion. The pursuer had previously told the police about the potential irregularities of
funding once he had become aware of the Ticketus arrangement. DS Robertson had
reported in October 2012 that the pursuer had been aware of the arrangement, but not its
details. The Ticketus arrangement was, of itself, not toxic. What changed the police's view
of the pursuer was the recovery of the Schedule 9 cash flow forecast in the file discovered in
August 2013. This suggested to the police that Duff & Phelps had prior knowledge of the
arrangement.
[78]
DS Robertson's motive could be inferred from his behaviour. He was reported to
have stood up during an interview of a witness at Charing Cross police station and
"chanted" a "Rangers' song". He had also threatened Duff & Phelps' solicitor.
[79]
The Lord Ordinary erred in holding that the Chief Constable was not a prosecutor.
Where the sole source of information deprived the prosecutor of the ability to make an
independent judgement, that source itself became the prosecutor (Martin v Watson [1996] AC 74 ).
The test required a nuanced, contextual and realistic approach in its application to the
Scottish system. The Crown were entitled to rely upon the representations made by the
police and to assume that they had correctly, fairly and accurately recorded the results of
32
their investigation. Had the police reported the position correctly, the Crown would not
have prosecuted. The assessment of the sufficiency of the evidence, which led to service of
the petition, had been carried out by Ms Clark. It was based on the SPR and the subject
sheets. The cause of the prosecution was the SPR. Ms Clark had accepted it as accurate. She
could not say whether she would have put the pursuer on petition, had she been aware of
the errors in relation to the Independent Committee meeting and the letter of comfort.
The Lord Advocate
[80]
The Lord Advocate summarised the issues in six parts. (1) Had the Lord Ordinary
set out the law correctly? Subject to point 4, he had done so; (2) Had the Lord Ordinary
erred in making his primary findings in fact? None was challenged; (3) Had the Lord
Ordinary correctly applied the law to the facts? This was the de quo; (4) There was a
presumption that a public office holder was doing no more than his duty, honestly and in
to indict. Any breach of privilege was irrelevant as was undisclosed material such as the
Stansted Airport meeting and any invasion of the sealed CDs; and (6) At first instance there
had been twelve days of testimony and thousands of pages of productions, including
witness statements. The appeal court was being asked to reconsider the case through a
narrow focus using a telescopic view. All that the pursuer was complaining about was that
the Lord Ordinary reached the wrong conclusion.
[81]
The Lord Ordinary had correctly distilled the meaning of malice from Whitehouse v
Lord Advocate, as involving an "improper or malicious motive". There were an ecdotal
examples such as trumped up charges (Willers v Joyce at para 36) or obviously insufficient
evidence (A v New South Wales at para 90). An action for malicious prosecution must fail if
33
the court concludes that the prosecutor initiated or continued the prosecution on the basis of
an honest, albeit mistaken, belief that reasonable and probable cause existed. That was
because he or she would have been acting for the proper purpose of carrying the law into
effect. It was a singular feature of this case that the pursuer did not challenge in cross-
examination the honesty or subjective belief of any of the key individuals involved at the
indictment stage; whether Crown counsel, Mr Logan, or Mr MacDonald.
[82]
On the pursuer's four alleged errors, first, the Lord Advocate's admissions in the
cases of Messrs Whitehouse and Clark had been deleted from the pursuer's pleading after
the debate in February 2021 (2021 SLT 371). There was therefore no record on which to base
any submission about them. The settlement had been raised in closing submissions at the
proof, but it was a collateral matter. The Lord Ordinary had not accepted that Crown
counsel had acted from an improper motive. The perception of the prosecution had been
one of an overarching fraud with Mr Whyte pretending to buy the Club with his own
money; Sir David Murray having said to the police that he would not have sold the Club
had he been aware of the reality. As the Lord Ordinary had found, the conspiracy was
initially between the pursuer, Mr Whyte and Mr Withey. The pursuer had, according to
counsel, been willing to mislead the Independent Committee, knowing that it could
influence Sir David. This was a step in a series of events; the dupe not being the Committee
but Sir David. The emails indicated that the pursuer had been aware of who Ross Bryan
was; despite his denials. The Crown had relied not only on what Mr Betts had said, but also
on the letter of comfort, its reference to the season tickets and the change of "Ticketus" to
"Wavetower".
[83]
At the start of the proof, counsel for the Lord Advocate had said that it was agreed
that:
34
"we will not follow the normal rule that all principal points have to be put in cross-
examination to witnesses. Cross-examination will be illustrative only and no adverse
comment will be made about a particular point not having been put in cross-
examination".
This did not sanction a failure to put any allegation at all to the protagonists that they did
not have an honest belief in sufficiency. Critical points had to be put to the witnesses in the
usual way.
[84]
Secondly, the "nail" note had not been founded upon in the closing submissions at
proof. Crown counsel had denied that he had given this instruction. That was not
challenged. If it was not an instruction, it was not relevant. Thirdly, the Lord Ordinary had
taken into account the HFW search. Finally, he had correctly summarised and applied the
law. The four gateways to a review of the facts by an appellate court were closed.
[85]
An inference of malice depended on an analysis of the evidence as a whole. Rees v
Commissioner of Police of the Metropolis turned on highly unusual facts and did not support a
general proposition about the effect of misconduct. The Lord Ordinary was entitled to hold
that it was not comparable.
[86]
In relation to the available material, first, there was the significant finding in fact that
the prosecutors had an honest belief that there was sufficient evidence. That was the
beginning and the end of the case, unless there was reason to undermine it. Secondly, the
Lord Advocate was not criticised for instructing that a single indictment be served before
the expiry of the time bar, subject to there being a sufficiency. Thirdly, the High Court had
upheld the sheriff's decision to extend the time bar. Refusal of an extension would not have
affected the validity of the first indictment. The extension was not a precondition of a
prosecution.
35
[87]
A problem had arisen in relation to what had been exchanged between Ms MacLeod
and Crown counsel at the time of the extension hearings. After the Lord Ordinary's
Opinion, Ms MacLeod had produced a detailed timeline. She referred to material which had
not, in terms of an earlier undertaking by the Crown, been disclosed. The behaviour of
neither Ms MacLeod nor Crown counsel had been reprehensible. The references to 39 or
29 boxes had both been wrong. It was nevertheless not self-evident that Crown counsel's
testimony that Ms MacLeod had not provided him with the correct information, was untrue.
[88]
Fourthly, no error had been made in relation to there being evidence of a conspiracy
between the pursuer, Mr Whyte and Mr Withey. Fifthly, the second indictment did contain
additional charges against the pursuer; the main one being fraudulent trading and the others
concerning false invoices. Mr Logan and Mr MacDonald had given detailed explanations
for this.
[89]
The reclaimer mischaracterised the issue of causation. It was not one of
apportionment between wrongdoers, but the extent of the liability where several persons
sequentially caused harm to a pursuer. Several factors may have had an adverse effect on
the pursuer's reputation and earning potential. Apart from the criminal proceedings, they
included his association with Mr Whyte and the BBC programmes. If the Lord Advocate
was only liable from the indictment stage, the pursuer could not recover any earnings or
legal expenses which had been lost before that date. The Lord Ordinary had been unable to
attribute particular losses to the BBC or between the defenders. He correctly assessed
solatium at £30,000 on the basis of Thompson v Commissioner of Police of the Metropolis
[1998] QB 498. On 20 July 2021, the pursuer had said that he would produce further evidence of
the legal defence costs, otherwise that head of claim would be withdrawn. There the matter
rested.
36
The Chief Constable
[90]
The pursuer's case was essentially about police reporting. The pursuer had
identified no error in law in the Lord Ordinary's analysis. Rather the grounds of appeal
challenged the assessment of the facts; fundamentally, whether the police had deliberately
misreported the evidence. The pursuer had not engaged with the test for review; ie that the
Lord Ordinary's decision was affected by an obvious and important error, or could not
reasonably be explained.
[91]
The reclaiming motion was principally concerned with three questions about the
state of mind of the reporting officers. Did the evidence demonstrate that they: (1) did not
believe that they had a proper case to put before the Crown and the court; (2) were
deliberately and predominantly motivated by a purpose that was inconsistent with their
proper function; and (3) presented information which they knew to be false, tainted with
impropriety or evidentially worthless? The Lord Ordinary had answered all of these
questions in the Chief Constable's favour.
[92]
It was agreed that it was sufficient for proof of the absence of reasonable and
probable cause that there was no objective cause. Any subjective element was relevant only
to malice. As the defenders were not insisting in their cross appeals, the issue of what
happened if there was probable cause but also malice, should that be demonstrated, did not
arise. The delict was an intentional one. The question was not about legal relevancy but
whether the police considered that they had a proper case to present. Malice could, but
need not, be inferred from a lack of reasonable and probable cause, but that was for the Lord
Ordinary to determine.
37
[93]
Malice was a slippery concept, in the sense that it was resistant to gloss (sic). The
behaviour had to be deliberate. The bar was a high one. Recklessness would not suffice, but
it was not present in any event. The case had been advanced on the footing that the Chief
Constable had been the prosecutor. Prosecution was the responsibility of the Crown and not
the police (Smith v HM Advocate 1952 JC 66 at 71; Renton and Brown: Criminal Procedure
(6
th
/loose-leaf ed) para 4.01). Authorship of a prosecution could not be deduced simply from
malice in the supplying of evidence. Initiation would be established if the police had
procured or instigated the prosecution (B v A 1993 SC 232 at 238; Martin v Watson at 83). A
person can be held liable for wrongfully procuring a prosecution where the information
given is false (Norrie: Injuries to Particular Interests in Stair Memorial Encyclopaedia vol 15,
English cases and their application to the Scottish context may not be correct.
[94]
The pursuer had to demonstrate an obvious error on the part of the Lord Ordinary;
that he had reached a decision which could not be explained. The Lord Ordinary had seen
the whole film and not just a series of stills. He had made careful findings in fact, including
that DS Robertson's actings did not affect his conclusion that he had a proper case to lay
before the court. There was a body of evidence in relation to the suspicions falling on the
pursuer which were contained in the police reporting from November 2013 to August 2014.
These concerned his awareness of the Ticketus funding, his involvement in covering up the
funding arrangements and his lying to the police at interview. Whether an error had been
made in relation to whether a document had been handed over at the meeting, it was not
disputed that the pursuer had been party to the presentation of false information. There
may have been an error on the date of the Ticketus payment, but the money was not
38
released until after the letter of comfort. The pursuer had denied knowing of the Ticketus
arrangement and who "Ross" or Ticketus were.
[95]
The police had made the detailed interim report in November 2013 and presented
the SPR in August 2014. The Lord Ordinary had been entitled to find that any errors had
been honest ones because: (1) the evidence was capable of supporting the pursuer being
party to the presentation of false information to the Independent Committee; (2) it was not
suggested to DS Robertson that his error, in reporting that the cash flow forecast had been
handed out at the meeting, had been deliberate; and (3) DS Robertson's explanation of the
error was supported by other evidence, notably the email traffic which suggested that the
Committee had had access to a cash flow forecast.
[96]
The error in relation to the letter of comfort was said to be the report that it had been
sent before the funds had been transferred into the escrow account. As DS Robertson had
said, at the time of the transfer, Ticketus still controlled the funds. The letter was to be used
to allow the deal to complete. It was not put to DS Robertson that this error had been
deliberate. His explanation was not challenged. Any error was relatively insignificant in the
context of the whole evidence. The Lord Ordinary made no finding that it was the SPR
which had led to the pursuer being put on petition. Irrespective of what was known about
these matters now, Ms Clark would still have put the pursuer on petition.
[97]
The decision to treat Mr Betts as a witness had been made in good faith. The Lord
Ordinary had accepted that the Stansted meeting had been a preliminary one; designed to
find out what Mr Betts might say. There was no material difference between the notes of
that meeting and the subsequent statement.
[98]
On causation and quantum, the submissions of the Lord Advocate were adopted
mutatis mutandis.
39
Res Noviter
[99]
On the fourth, and last, day of the hearing on the reclaiming motion, the pursuer
lodged a lengthy Minute which advanced a plea of res noviter veniens ad notitiam (newly
discovered information). This averred that, in the application for an extension of time, the
Crown had founded on the late receipt of 39 boxes. At the hearing on 3 September 2015, the
number of boxes had been reduced to 29 and these were said to have come from Duff &
Phelps pursuant to the 2013 warrant. This number reverted to 39 at the continued hearing
on 7 September, but this time the boxes were said to have come from Clyde & Co (acting for
HFW). The Minute averred that there was "no responsible basis" for this representation.
Crown counsel's suggestion that a "minor and thus insignificant error" had been made was
untrue. At the hearing on the criminal appeal, counsel had accepted that inaccurate
information had been provided at both hearings because of "human error". This too was
wrong. The High Court had been misled.
[100] During the cross-examination of Crown counsel, the pursuer's counsel had told him
that he was "not suggesting that [he] personally misled the court, but ... the court had been
... misled". He said that the information had been provided by Ms MacLeod. He did not
recall finding out about the error until after the extension decision. In her testimony,
Ms MacLeod had not been sure of whether she had expressed doubts to counsel about what
the sheriff had been told.
[101] The application states:
"From information only just received by the Pursuer ... Ms MacLeod was apparently
being truthful and [Crown counsel] was being dishonest".
40
This blunt accusation stems from the late disclosure by the Crown of the email exchange
between Ms MacLeod and counsel. This included an email from Ms MacLeod to counsel
dated Friday, 4 September and timed at about 7pm. This in turn attached the email from
DWF (Duff & Phelps' Scottish solicitors) which said that what had been said to the sheriff
about 39 boxes had been inaccurate and that Duff & Phelps had fully and timeously
complied with the 2013 search warrant. Ms MacLeod had told counsel that she would make
further enquiries. These enquiries did not bear fruit in relation to the correct number and
source of any boxes. Ms MacLeod now said, in a statement produced to the court on the
final day of the reclaiming motion, that, prior to the second hearing before the sheriff, this
information had been passed to counsel.
[102] It was said that the pursuer had been deprived of the opportunity to examine Crown
counsel on the accuracy of what he told the sheriff and the High Court. The pursuer now
wished to recall counsel and Ms MacLeod. If counsel were held to have been dishonest, this
would demonstrate that he had been malicious and had used the court for an improper
purpose.
[103] The pursuer submitted that the question was whether it was in the interests of justice
that this be explored further, against a background of the importance of finality ( Rankin v
Jack 2010 SC 642 at 657). Ms MacLeod had been excoriated unfairly. Any finding that a
witness had knowingly deponed falsely would remove any former favourable impression
(Yuill v Yuill [1945] P 15 at 20).
[104] The Lord Advocate responded that the cogency of any new evidence had to be
considered in the context in the grounds of appeal. The evidence had to be "calculated to
affect the judgment in the case" (Rankin v Jack at para [40]) and "at least prima facie likely to
have that effect". The Lord Ordinary had accepted that Crown counsel's references to 29
41
and 39 boxes had been in error. Ms MacLeod had testified that she had sent an email to the
police on 6 September 2015 asking them to check an entry regarding the Duff & Phelps
chronology. This read "28/29 July 2015: Crown bring up 15 of the additional 29 boxes ...
released from D & P under LPP [legal professional privilege] only delivered to Police
July 15". She was asking about 29 Duff & Phelps boxes, not 39 Clyde & Co boxes. A copy of
that email, which had not been a production, had been sent to the pursuer's solicitors on the
date of Ms MacLeod's testimony. She said that she had discussed this with counsel. The
pursuer had done nothing about the email. Counsel had only been asked about the 39
boxes; ie the second error. The email had been available at the time of the cross-examination
of counsel. He could have been asked about how he had come to make two mistakes, but he
was not. The Lord Advocate had submitted at the proof that there was no "specification" of
the proposition that Ms MacLeod had misled counsel. The pursuer had overlooked what
was said in the email and an inaccurate summary of what Ms MacLeod had said was put to
counsel. It was not res noviter. This was an attempt to open a side window when the front
and back doors were locked.
Decision
Preface
[105] The detection and prosecution of crime is often far from a simple task. Allegations of
fraud, especially in the corporate and commercial sector, can be difficult to investigate. If
fraud exists, the perpetrators may have been adept at covering their tracks. Both at the
investigation stage, and when Crown counsel elect to prosecute, it is important that those
involved, especially those taking the critical prosecutorial decisions, are both experienced
and skilled in financial matters and commercial ethics and practices.
42
[106] Mistakes can still be made. Cases may be reported by the police to the Crown Office
which Crown counsel reject as inadequate evidentially, or because of the manner in which
the investigation has been conducted. Carefully drafted indictments may be dismissed by
the court because of some undetected flaw, or as a result of a misunderstanding of the law.
In due course, an accused may be acquitted because the testimony at trial did not reach the
threshold which had previously been thought, on Precognition, to exist.
[107] If, in every case, the Precognition were to contain entirely full and accurate
statements from the witnesses and a flawless and meticulous evidential analysis preceding
its recommendation to Crown counsel, the prospect of a defective prosecution would be
much reduced. However, especially in the pressured context of the Scottish system, which
has relatively strict, statutory time limits on the period available for serving an indictment
on a person who has already appeared on petition, mistakes can be made. Not everything
may have been included in a statement. Not every document may have appeared relevant
at the time of reporting. Very often, especially in the digital age, important further enquires
will be merited even at the stage of the indictment, hence the provision enabling lists of
witnesses and productions to be lodged late under section 67 of the Criminal Procedure
(Scotland) Act 1995. As with many forms of litigation, where a time limit is involved, a
strong degree of pragmatism may be required in order to ensure that the wider interests of
justice are considered and not subordinated to the requirements of internal procedures.
[108] It is not to be readily assumed that a failure by the police to report a particular piece
of information, or to produce a specific document, to the Crown stems from malice. On the
contrary, there is a presumption that a public office holder is doing no more than his duty,
and doing it honestly and bona fide (Beaton v Ivory (1887) 14R 1057, LP (Inglis) at 1061). A
police report, by its very nature, is bound to be a summary in order to make it reasonably
43
digestible to the prosecuting authority. It cannot, and should not, cover all the minutiae of
months of investigation. It must, to a degree, be selective, even though the law of disclosure
must ultimately be complied with. Even then, what is readily seen in hindsight to have been
of relevance may not have assumed such a significance at an earlier stage. This is the real
world in which prosecutions are commenced. In short, the occurrence of mistakes does not
normally constitute a conspiracy or give rise to an inference of malice.
The keys to an Appellate Review
[109] In Woodhouse v Lochs and Glens (Transport) 2020 SLT 1203, the court repeated the need
for an appellate court to exercise appropriate caution when reviewing findings of primary
fact, especially when the decision at first instance has been based upon determinations of
credibility or reliability (LP (Carloway), delivering the opinion of the court, at para [31]).
The court has to be satisfied that the findings were "plainly wrong". That means that the
Lord Ordinary has to be shown to have reached a decision which cannot reasonably be
219). Alternatively, it may be demonstrated that the court at first instance has made some
other identifiable error, including "a material error of law, or the making of a critical finding
of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant
evidence, or a demonstrable failure to consider relevant evidence"(ibid at 220).
[110] An appellate court must be careful because of the limitations of the appeal process,
with its narrow focus on particular issues rather than having, as the Lord Ordinary did, a
panoramic vista of the evidence as a whole. As counsel for the Chief Constable put it, the
appellate court is looking at a selected series of stills, rather than the complete film. Counsel
for the pursuer, in directing his case against the Lord Advocate, sought to unlock the door to
44
an appellate review of the essential finding of a lack of malice by using four potential keys.
None of these fits the lock.
[111] First, the Lord Ordinary did not ignore the Lord Advocate's admission that the
prosecutions of Messrs Whitehouse and Clark had been malicious. He specifically took
cognisance of this, but considered that he should not be influenced by such an extra-judicial
outcome. The court agrees. The precise reasons for settling the Whitehouse and Clark cases,
as disclosed in the statement to Parliament, may not be entirely clear but they were no doubt
based, in part, on a consideration of the evidence available against those individuals.
[112] From the terms of Crown counsel's instruction itself, and the earlier
recommendations from the procurators fiscal to him, it can readily be seen that the case
against the pursuer was viewed in a different evidential light from that against
Messrs Whitehouse and Clark. The distinction becomes clearer when the terms of
Mr Logan's email to counsel of 4 September 2015 are considered. This stated that neither
Messrs Whitehouse or Clark ought to be indicted. Matters are further illuminated when
Ms Nisbet's email of 10 September 2015, to similar effect, is taken into account. The
evidence against the pursuer was seen as far stronger than that against Messrs Whitehouse
and Clark. Different considerations would arise when the Lord Ordinary was assessing the
honest belief of Crown counsel in the sufficiency of evidence against the pursuer and those
which must have influenced the Lord Advocate in determining to settle the cases against
Messrs Whitehouse and Clark.
[113] The court considers that the Lord Ordinary did not err in law in treating the
admissions in the settled cases as having no material bearing on the case against the pursuer.
A reading of the views of Ms Nisbet and Mr Logan amply explains why, even if
Messrs Whitehouse and Clark were to drop out of the equation, a conspiracy case could
45
remain evidentially sound against the pursuer, Mr Whyte and Mr Withey. This is what the
Lord Ordinary found. Exactly what Crown counsel meant when he said that the case
"wasn't ready" is unclear. Many cases are not ready when they are indicted to a
Preliminary Hearing, if by that is meant ready for trial. That may be unfortunate, but it is a
fact of life. The test, when assessing malice, is not whether a case is "ready", but whether
there is a sufficiency of evidence to merit the libelling of the charges against the accused.
[114] Secondly, it is not surprising that the Lord Ordinary did not mention the manuscript
note to "nail the three Duff & Phelps people" in the minutes of the meeting with the
accountant on 11 September 2015. What this meant, or who, if anybody, said it, or to whom,
was never established. All that the evidence amounted to, if accepted, was that Crown
counsel had not said it or meant it. This piece of evidence went nowhere.
[115] Thirdly, the Lord Ordinary did take account of the search of HFW's offices in
December 2015. He devoted a section of his Opinion (paras [53]-[55]) to what had occurred.
He repeated that the High Court had held this activity to be oppressive. He referred to this
again when summarising the pursuer's case against the police (para [58]), with which the
Crown were said to be complicit (para [59]). He held that the primary responsibility for
obtaining the warrant had been that of the Crown (para [109]). He noted later that serious
mistakes had been made in relation to the warrant (para [141]). Nevertheless, he held that
there was no improper motive on Crown counsel's part. He was entitled to reach that
conclusion having heard counsel's explanation.
[116] Fourthly, the Lord Ordinary was correct to say that malice is not to be inferred from
an absence of probable cause, in the sense that they are not synonymous. There are cases in
which, looked at objectively, there is an absence of probable cause at the stage of indictment,
but that does not mean that the prosecution is thereby malicious. The indicter may have
46
erred in his understanding of the law, or in his interpretation of the evidence on paper and
what inferences might be drawn from it.
[117] There are many other possible reasons for the indictment of a case without probable
cause. These include, as it has been put, "incompetence, inexperience, poor judgement, lack
of professionalism, laziness, recklessness, honest mistake, negligence or even gross
negligence" (Whitehouse v Lord Advocate 2020 SC 133 (LP (Carloway) at para [107]), quoting
from Miazga v Kvello Estate [2009] 3 RCS 339, Charron J, delivering the judgment of the
Canadian Supreme Court, at para [81]). Although he does not say so expressly, the Lord
Ordinary's quotation of this passage must be taken to mean that he is following that dictum,
although he goes on to qualify this by referring, albeit without comment, to Robertson v Keith
1936 SC 29 (LJC (Aitchison) at 47) to the effect that malice may be inferred from recklessness.
That is not inconsistent with either Whitehouse or Miazga. Depending on the circumstances,
malice may be inferred from recklessness, or from an absence of evidence (probable cause)
(A v New South Wales (2007) 233 ALR 584, Gleeson CJ, delivering the judgment of the
majority of the High Court of Australia, at para [90]), but it need not be. Each case will turn
on its own particular facts.
The Meaning of Malice
[118] There is no indication in the Lord Ordinary's Opinion that he erred in his
understanding of the test for malice. That test requires that a prosecutor initiate or continue
a case not with a bona fide purpose of bringing a criminal to justice but for some other, and
thus necessarily improper, motive. The analysis in Glinski v McIver [1962] AC 726 (Lord
Devlin at 766) accurately reflects how malice ought to be seen in Scots law. It covers not
only spite and ill will but also any motive other than a desire to bring a criminal to justice
47
and circumstances in which the prosecutor is attempting to obtain some extraneous benefit.
In relation to the latter, Willers v Joyce [2018] AC 779 (Lord Toulson at para 55) offers a useful
critique. The Lord Ordinary synthesised the foreign and domestic jurisprudence and
arrived at a correct view of what is required. That is encapsulated succinctly in four words:
improper purpose or motive. The court adopts, in that regard, the dictum in Henry v British
Columbia (AG) 2015 SCC 24 (Moldaver J, delivering the opinion of the majority of the
Supreme Court of Canada, at para 51).
The evidential analysis
The case against the Lord Advocate
[119] In the case against the Lord Advocate, it had already been decided that, at the stage
of indicting, there was no objective reasonable and probable cause (Grier v Lord Advocate
2021 SLT 371, Lord Tyre at paras [42]-[45]). This court was not asked to review that decision.
It proceeds on the basis that objective cause was absent. The only issue which remained was
that of malice.
[120] The court is unable to fault the Lord Ordinary in the inferences which he drew from
the primary facts found. At the heart of the case was the mind-set of Crown counsel when
he made the decision to instruct service of the first indictment against the pursuer. It is on
that decision that the Lord Ordinary had to, and did, focus. That decision is what initiated
the prosecution (including that proceeding on the second indictment); not any earlier or
subsequent views on the evidence which may have been reached by the police or the several
procurators fiscal. For these views to have been relevant, they would have to have been
communicated to Crown counsel with the deliberate intent to mislead him into a
prosecution which had no reasonable or probable cause and to have achieved that end.
48
Although he may have sought, and even accepted, the views of others, his decision is not a
collective one. It is that of Crown counsel alone. In taking his decision he was exercising the
independent authority delegated to him by the Lord Advocate.
[121] The Lord Ordinary started by referring to what he described as the "bureaucratic
setting" of the office of public prosecutor. He correctly pointed out that it is less likely that
malice will arise in that context than if there were a private police prosecution. If anything,
the Lord Ordinary underestimated the importance of the setting. Cases are reported by the
procurators fiscal to Crown counsel, almost always in the form of a Precognition. That file
or dossier ought to contain the statements and productions, followed by an analysis of the
evidence. The nature and extent of that analysis, and the ultimate recommendation of
whether and where to prosecute, will depend on the facts and circumstances.
[122] On completion of the Precognition, and sometimes earlier, the case leaves the hands
of the permanent prosecutorial staff and is put into those of Crown counsel, the Advocate
depute who will mark the case. Crown counsel are independent legal professionals,
advocates or solicitor advocates, who are engaged on a commission directly from the Lord
Advocate to conduct cases on her behalf. Although there are exceptions, they are generally
expected to remain in office for a limited period in order to preserve the perception that they
act independently of the permanent cohort and take decisions which might be seen by some
to be tainted by prosecutorial zeal or other perceived absences of neutrality. The
independence of the Advocate depute (just like that of the Lord Advocate) is a constitutional
safeguard of the greatest importance in the system of criminal justice. It will, or ought to be,
very difficult to impute an improper purpose or motive to such an individual in the absence
of clear evidence to the contrary. The rhetorical question is bound to be: what possible
49
motive would Crown counsel have for launching a prosecution in which he or she thought
the evidence to be insufficient or tainted?
[123] The pursuer points to a number of factors from which, he says, malice ought to have
been inferred. In order to succeed he would have to go much further and to maintain, as he
did, that malice was bound to be inferred from the proved circumstances. In doing so, he
pointed to errors in the progress of the prosecution, including the absence of a completed
Precognition. As the Lord Ordinary found, the Precognition was not completed and, to that
extent, the case was not ready. Crown counsel knew that. He was also aware that, two days
after he took his decision to indict, a time bar could have resulted in any prosecution at
solemn level being impossible. Whether or not the case was ready, Crown counsel had to
decide in respect of each of the accused, if there was a sufficiency of evidence on the
principal charge of conspiracy to commit fraud. He could not avoid taking a decision just
because a formal Precognition had not been completed and presented to him. Such an
approach would elevate form over substance.
[124] The absence of a formal Precognition may perhaps have been, as the Lord Ordinary
put it, "a serious breach of standard procedure", but it cannot be said to have given rise to a
requirement incumbent on Crown counsel that he should insist on having a completed
Precognition before instructing an indictment. On the contrary, it would be his duty, with a
time bar looming, to make a decision on the material available. In taking that decision, he
was bound to form his own view. There was no paucity of information. Crown counsel had
plenty of material, including the detailed SPR, from which to work. He had been working as
the "embedded counsel" for a lengthy period. What counsel described as a tactical decision
was in reality one which had to be made in the prevailing state of preparation, whether the
case was ready or not. If the case were not indicted, there was a prospect that the
50
opportunity to prosecute would be lost forever and the broader interests of justice would be
defeated. The circumstances demanded a pragmatic approach .
[125] The Lord Ordinary reached a clear conclusion that all of the individuals concerned in
the prosecution were of the view that there was reasonable and probable cause to indict the
pursuer on the charges which he ultimately faced and that their actings were not motivated
by any purpose other than the pursuit of the interests of justice. In particular, he found in
fact that, notwithstanding the absence of a completed Precognition, Crown counsel was able
to, and did, form a view that there was a sufficiency of evidence against the pursuer of a
conspiracy to commit fraud.
[126] The Lord Ordinary's findings in relation to the motives of all those in the prosecution
team are amply justified on the evidence. Notwithstanding the High Court's decision ,
which was restricted to the relevancy of the indictment and proceeded upon a concession
relative to fraud as a completed crime, those in the Crown Office, including Crown counsel,
shared the view of the police, as set out in the SPR, that the pursuer had been engaged in a
scheme to acquire the Club by fraud; that is, as they saw it, buying the Club with its own
money. There were two compelling evidential reasons for this. First, the presentation of the
cash flow forecast to the Independent Committee with "Wavetower" substituted for
"Ticketus". Whether the description of what occurred at the meeting with the Committee
was entirely accurate does not detract from that which had been presented to the Crown
Office. One thing that is not in doubt is that, whatever his state of knowledge, the pursuer
did not mention Ticketus at the meeting. Secondly, there was the pursuer's involvement in
the letter of comfort which, as reported to the Crown Office, had been instrumental in
Ticketus releasing the funds from the escrow account.
51
[127] There was evidence from Mr Betts that the pursuer was aware of the Ticketus
arrangement long before the meeting. The fact of the "Don't tell David" email was
irrelevant, because the Crown were not then aware of it. The same applies to the manuscript
note of the Stansted meeting. The Lord Ordinary is critical of Ms MacLeod's
recommendation as being "brief" and unreasoned, but she was only the counter-signatory to
the Precognition, not its primary author. Whether these criticisms have any merit or not, the
pivotal decision rested with counsel. He considered that there was a sufficiency. The Lord
Ordinary believed him. There is no material upon which the Lord Ordinary's decision on
that key point can be successfully undermined.
[128] The pursuer founded heavily on the errors made by Crown counsel during the
application to extend the time limit and when instructing the search warrant of HFW's
offices. The section 65 application will be revisited under the res noviter heading. Suffice it
to say, as has been seen, during the proof Ms MacLeod supplied the pursuer's agents with
DWF's email to her concerning the 29 boxes. Notwithstanding the content of this, the
pursuer elected to cross-examine counsel on the basis that it was not being suggested that
counsel had "personally misled the court". That being so, the Lord Ordinary could hardly
have concluded (as is now suggested) that he did. Whether or not counsel had misled the
court, the extension would have been granted, at least on appeal. The complexities of the
case alone justified the allowance of further time (Whitehouse v HM Advocate [2017] HCJAC 46,
LJC (Carloway) delivering the opinion of the court, at paras [18] and [19]). With
hindsight, it is unfortunate that the Crown perhaps lacked faith in the courts reaching such a
view. On the search, the Lord Ordinary recorded that counsel had admitted to errors in
connection with the HFW warrant. He determined, as he was entitled to do, that instructing
a search was not indicative of improper motive, and hence malice.
52
[129] The critical steps in the prosecution were putting the pursuer on petition and then
indicting him. The Crown are not criticised in relation to the former. For the reasons
already explored, the pursuer's theory of underlying malice, that of securing a conviction at
all costs, has no rational basis or evidential support. In light of the decision that the first
indictment was not malicious, similar considerations apply to the second. The principal
charge remained. Nothing material turns on the fact that there were additional, mostly
statutory, charges added. Whether Crown counsel had specifically sanctioned these, the
indictment must have been framed in the context of the previous discussions with him about
a second dittay. The latter must have been signed by a Crown counsel; that is to say duly
authorised.
[130] None of those involved in indicting the pursuer was challenged on the critical matter
of honesty of belief in the course of the proof. Whilst not necessarily destructive of the
pursuer's case, it made it very difficult for either the Lord Ordinary or a Division of the
court to reach a different view. The court has struggled to understand what the parties
meant by agreeing not to follow the "normal rule that all principal points" had to be put in
cross-examination, cross was to be "illustrative only" and no adverse comment would be
made on something not having been put. The reason for this accommodation was said to be
that the proof was being conducted virtually by WebEx, rather than in person. Why that
ought to have made a difference was not explained nor was the reason why it was thought
competent for parties to purport to alter the normal rules on the assessment of evidence by
the court. The pursuer accepted in his submissions to the Lord Ordinary that, if it were not
suggested to a witness that he or she was being untruthful about a matter of significance, it
would be unfair to find that the witness had been lying. This indicates that the
fundamentals of the normal rules were not being departed from.
53
[131] The principles relative to a failure to cross-examine are straightforward. They are set
out in McKenzie v McKenzie 1943 SC 108 (LJC (Cooper) at 109) as follows:
"[T]he most obvious principles of fairplay dictate that, if it is intended later to
contradict a witness upon a specific and important issue to which that witness has
deponed, or to prove some critical fact to which that witness ought to have a chance
of tendering an explanation or denial, the point ought normally to be put to the
witness in cross-examination."
The question of fairness thus arises primarily in the context of a witness giving evidence
when it is the intention of the cross-examining party to lead contradictory testimony at a
later stage. Its general nature ought to be put to the witness as a matter of fairness so that he
or she might tender any available explanation. The rule is not an absolute one and, in
modern practice, a failure to put something is often regarded as a matter merely for
comment (see Dawson v Dawson 1956 SLT (notes) 58). In certain situations it will, as a matter
of fair play, be desirable to put a contrary version of events to a witness, if the cross-
examiner intends to submit later that that version is the true one (see Macphail: Evidence in
Stair Memorial Encyclopaedia vol 15 para 555). It will all depend upon the circumstances,
notably whether the opposing party, or even the witness, is prejudiced in the final outcome.
[132] In this case, the pursuer was not intending to lead contradictory evidence after
Crown counsel, and the procurators fiscal, had given evidence. He was intending to be, and
was, critical of their combined actings in submissions at the conclusion of the proof. The
question is whether he was either precluded from doing so or whether the failure to cross-
examine ought to have been taken into account by the Lord Ordinary in his determination
on credibility. In the normal case, where this criticism is mounted against a pursuer, it may
be sufficient for a defender to draw attention to the averments on record to demonstrate that
the pursuer was well aware of the defender's position. Had the pursuer wished to
54
contradict that position, it was for him to do so. A defender is not required to give his
opponent's witnesses an opportunity to expand upon their evidence in chief.
[133] In Whitehouse v Lord Advocate 2020 SC 133 (LP (Carloway) at para [52]), the court was
critical of the length and detail of the averments on record as serving to obscure the legal
bases upon which Messrs Whitehouse and Clark were seeking damages. Although the
pursuer's case against the Lord Advocate does not suffer from the extreme problems which
existed in Whitehouse, in terms of length, it is still not easy to work out from the pleadings
exactly what the nature of the malice on the part of Crown counsel or the procurators fiscal
is said to be. It is averred (Cond 3.8) that the Lord Advocate's conduct was such that no
reasonable prosecutor would have adopted ("followed") it and was "for that reason"
malicious. Many criticisms are levelled about the procedure adopted by those in the Crown
Office including, although this seems to be later contradicted, the absence of any instruction
to indict from an Advocate depute. There is much focus on the Book of Regulations. The
fundamental, but erroneous, contention throughout the pleadings seems to be that failures
within the Crown Office in relation to a sufficiency of evidence can, of themselves,
inevitably led to an inference of malice.
[134] For the reasons already explored, the pursuer had to establish an improper motive or
purpose on the part of the prosecutor. In this case, that attribution had to be to the person
who instructed the indictment; that is Crown counsel. Since that was the necessary element
of proof, but not one which is easily extracted from the averments, fairness dictated that
whatever malicious motive or purpose was being attributed to him, it ought to have been
put to him in cross. If, as was submitted at the hearing of the reclaiming motion, the motive
was to achieve a conviction at all costs, that ought to have been put fairly and squarely to
Crown counsel. A failure to do so may not have been fatal but it was certainly a matter for
55
adverse comment and a factor to which the Lord Ordinary ought to have had regard. It is
not clear that he did so other than in relation to Messrs Logan and MacDonald. That
approach favoured the pursuer.
The case against the Chief Constable
[135] The duty of the police is to report the results of their investigations to the Crown;
usually to the local procurator fiscal or, in this case, to the Crown Office. That duty must be
carried out in good faith. There is no duty on the police at that stage in connection with the
ultimate presentation of the case to a court, by which stage responsibility has passed to the
prosecution service. The report may, and often will, contain the view of the police on
whether there is evidence of a crime having been committed and who the perpetrators
might be. It is not, however, the function of the police to determine whether there is a
sufficiency of evidence and, if so, against whom. That is the exclusive province of the
Crown (see Smith v HM Advocate 1952 JC 66, LJC (Thomson), reading the opinion of the
court, at 71). The decision to place a person on petition is that of the relevant procurator
fiscal and his deputes. The determination to prosecute on indictment is solely that of
independent Crown counsel, who will normally have received the Precognition, together
with a recommendation from the procurator fiscal. The police have very limited input into
these decisions. They are not and cannot be prosecutors. In any event, the court agrees with
the Lord Ordinary that they were not prosecutors on the facts of this case. They cannot
therefore be sued for malicious prosecution. In so far as the pursuer's case is directed
against the police upon that basis, and the pursuer's relative plea-in-law, perhaps advisedly,
does not say that it is, it is misconceived.
56
[136] If the police provide the procurator fiscal with information or evidence which is
either false or tainted, that in itself may be actionable. The wrong is not characterised as
malicious prosecution, since it occurs in advance of any prosecution, but the information
may cause that prosecution and hence result in loss. It will be actionable if what the police
put in those reports is done maliciously. If that malicious reporting directly causes the
Crown to prosecute a person, the police will be liable in damages. Proof of causation will
remain difficult, given the role of the procurators fiscal and/or Crown counsel in reaching an
independent decision on sufficiency and, in the event of a sufficiency, on whether a
prosecution is in the public interest. Here, the procurators fiscal and Crown counsel carried
out their own analysis of the material presented to them, albeit principally in the form of the
SPR and appended materials. The case against the police must fail on this basis.
[137] Cases from other jurisdictions, which are based upon a deprivation of the Crown's
ability to exercise an independent judgement because of false or tainted information (eg Rees
may have an indirect, but analogous, bearing on the issue of causation (that is whether a
malicious police report resulted in a prosecution), but they do not, and should not , play a
direct role by introducing the novel concept of malicious police prosecution in Scotland
where the decision to prosecute is taken by the public prosecutor. That is the position in
virtually all cases. As was recently repeated (Glasgow City Council v VFS Financial 2022 SC
133, LP (Carloway), delivering the opinion of the court, at para [51] and citing McE v de La
Salle Brothers 2007 SC 556, Lord Osborne at para [161]) it is "most unwise and likely to lead
to substantial confusion" if rules which have been devised in another jurisdiction, which
have a different basis and historical origin, are grafted onto the existing general principles of
Scots law. In the field currently under comparative analysis, there is ample Scottish
57
jurisprudence, some dating back to the 16th century (see eg Reid: Delict at para 17.52; see also
Walker: Delict (2
nd
ed) at 870 et seq).
[138] As with the case against the Lord Advocate, the fundamental defect in the case
against the Chief Constable is that it approaches malice as if it were, at least in some cases,
an inevitable inference from objective fact. It will be in rare cases that an inference will be
irresistible. The central contention, that there was no support for DS Robertson's view on
sufficiency (even if that were to be material), is erroneous. His view was supported by the
testimony of others, notably DC O'Neill, the procurators fiscal and Crown counsel, which
was to the same effect. It was also incorrect to say that DS Robertson's report, on the
pursuer's presentation to the Independent Committee and his preparation of the letter of
comfort, was untrue. It may have been erroneous in some respects, but the pursuer had
been at the Committee meeting, when some form of cash flow forecast was discussed. The
letter of comfort ran in the pursuer's name.
[139] As already observed, a police report to the Crown is inevitably a summary which
will contain primarily what the police regard as important, even if, in an ideal world, that
ought to include any material factors in favour of the suspect's innocence. It is not intended
to be a comprehensive account of everything that the police did, or of what everyone said,
and when, during the investigation. Like the Lord Ordinary, the court is unable to detect
anything sinister in the fact that certain matters did not find their way into the SPR, such as
references to the meeting at Stansted, the notes of that meeting and the "Don't tell David"
email. Although these, and other matters, have assumed a degree of importance in the
reclaiming motion, they are of lesser, if any, significance when the totality of the evidence is
considered. They are little more than factors which indicate some questionable aspects to
the police investigation.
58
[140] The court does not accept that, had the Crown been aware of these matters, they
would have declined to prosecute or that their disclosure would have resulted in a
successful plea of oppression. The court, to a degree, accepts the pursuer's contention that it
should be careful when looking at individual emails and parts of statements, as distinct from
examining the facts found by the Lord Ordinary. But the pursuer specifically asked the
court to look at individual productions and transcriptions of parts of the testimony.
[141] It was not suggested to the police that, in sending the SPR to the Crown Office, they
were deliberately trying to mislead the Crown into mounting a prosecution of the pursuer.
As with the case directed against Crown counsel, if the pursuer were suggesting that
DS Robertson had been intending to dupe the Crown Office into mounting a prosecution on
the basis of inaccurate or tainted evidence, fairness dictated that this ought to have been
raised with him in cross-examination.
[142] In the absence of such a challenge, it is not surprising that the Lord Ordinary was not
prepared to accept that DS Robertson's actions, whether his interviewing techniques, the
opening of sealed envelopes, the use of the cash flow forecast and the obtaining and
executing of the warrants, far less his alleged singing of a Rangers' song, justified a finding
of malice. The court can find no sound reason to interfere with his conclusion. The evidence
supported the view that the police's honest belief was that the pursuer had been party to the
presentation of false information to the Independent Committee. Some form of cash flow
forecast had been made available to the Committee and that was supported by the relative
emails around that time. At the time of the letter of comfort, Ticketus controlled the release
of the funds. The Lord Ordinary's conclusion on lack of malice is not susceptible to
substantial criticism.
59
Causation
[143] The pursuer raised separate actions against the defenders. He was correct so to do.
That is because any liability of the defenders would be several and not joint. The alleged
wrongs were separate. They did not contribute to the same damage (Turnbull v Frame 1966
SLT 24, Lord Fraser at 24 following Hook v McCallum (1905) 7 F 528, LJC (Macdonald) at 532
following Barr v Neilsons (1868) 6 M 651, LP (Inglis) at 654). The Lord Ordinary's view on
the divisibility of the losses is correct, as is his attribution of some of the losses to the
allegedly defamatory material which was broadcast by the BBC.
[144] However, where a pursuer has established that he has suffered cumulative damage
to his reputation, lost earnings and incurred legal expenses unconnected to the litigation
itself, it is not open to the court to decline to award any damages on the basis that there has
been no specific evidence on what wrong caused what damage. That would introduce an
unnecessarily high hurdle to what is essentially a jury question for the application of the
conventional broad axe with a blunt blade. Had the Lord Ordinary found that the pursuer's
losses had been caused by one or both defenders and/or by a third party, he ought to have
applied that axe by assessing the impact of the broadcast, deducting that from the total of
what are now largely agreed amounts and, excluding any pre-indictment loss of earning or
legal costs from any damages due by the Lord Advocate. He would divide the balance in
such proportions as he considered reasonable.
[145] Quantum is not an issue for this court. Before leaving that subject, however, it is
worth remarking that any court engaged in an assessment of legal expenses as damages
would be bound to look askance at a figure of almost £1m which is said to be reasonable in
order to defend a prosecution which did not even get close to reaching a trial. In a case
60
involving what seems to be an extravagant sum, the court should consider a remit to the
Auditor of Court for an agent and client taxation.
Res Noviter
[146] This court can allow additional proof on the grounds of res noviter veniens ad notitiam;
that is to say, new facts coming to the knowledge of a party. It will exercise that power
where the interests of justice require that course of action in the circumstances of the
particular case; bearing in mind that finality and certainty are important aspects in the
justice equation, as is the need to ensure that every party has had a fair opportunity to
investigate and prepare their cases (Rankin v Jack 2010 SC 642, Lord Reed, delivering the
opinion of the court, at para [37]). The court would not normally allow proof of material
which could, if the case had been properly prepared, have been made available at the proof.
Even if the material could not have been made available, the court may still not admit the
material because of the importance of finality in litigation. The court's assessment is
"essentially an intuitive judgment".
[147] The court is not satisfied that it is in the interests of justice to admit the new
evidence. First, it does not assist directly in the proof of any material fact. Secondly, the fact
that erroneous information had been given by Crown counsel to the sheriff was well-known
before the proof. It had been explored in the criminal appeal (Whitehouse v HM Advocate).
The pursuer elected not to use counsel's erroneous submissions to the sheriff in his attempt
to prove malice. He expressly disavowed the possibility of counsel deliberately misleading
the sheriff. The court does not criticise that, as a tactical decision. It was nevertheless made
at a time when the pursuer's agents had been sent the email of 6 September 2015 from
Ms MacLeod to the police, asking them to check on the note of "29 boxes ... released from
61
D&P under LPP only delivered to Police July 15". Ms MacLeod had testified that she had
discussed the matter with counsel. In short, whatever new email may now have been
unearthed, and whether it should have been disclosed to the pursuer, the issue of culpability
in the sheriff court could have been explored at the time. Standing the pursuer's tactic,
which again the court does not criticise, of not confronting counsel with the direct
accusation, which is now made, of seeking a conviction at all costs, the lack of pursuit of this
line is not surprising.
[148] Thirdly, the court does not accept that either the conduct of Crown counsel or
Ms MacLeod was reprehensible. However unfortunate it may be, it is not unusual for
misunderstandings in advance of submissions to be made on a procedural matter. The court
is not persuaded that the newly produced emails or the new material from Ms MacLeod
demonstrates a prima facie case of dishonesty on the part of Crown counsel. Given especially
the apology which was tendered to the High Court, it seems far more likely that an
unfortunate mistake was made. Even if that were not so, and a greater level of culpability
was apparent, that is a far cry from demonstrating that counsel's decision to indict the
pursuer was malicious. Seen in the context of the whole evidence, this passage of sheriff
court procedure is of relatively peripheral significance. It is not likely to have affected the
Lord Ordinary's assessment of Crown counsel's credibility and hence the outcome of the
cases.
[149] The court will refuse the minute to hear additional proof. It will refuse the
reclaiming motions and adhere to the Lord Ordinary's interlocutors of 11 January 2022.
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