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Statement by the Lord Advocate to Parliament: Clark & Whitehouse

I am grateful for the opportunity to make a statement following the disposal, last week, of the actions brought against me by David Whitehouse and Paul Clark.

Although those actions concerned events which predated my appointment as Lord Advocate, it was and is my responsibility, as the current incumbent, to account for them.

There are ongoing proceedings related to this matter. That constrains what I can say today; but I welcome the fact that I am now free to begin the process of public and Parliamentary accountability, and to reiterate the commitment the Crown has already given to that process.

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

On 14 November 2014, Mr Clark and Mr Whitehouse were detained and brought to Glasgow. They were held in custody before appearing in court on 17 November on a petition containing charges relating to Mr Whyte’s purchase of Rangers.

This started the clock for a statutory time bar, which, unless extended, required the Crown to serve an indictment in respect of these charges by 16 September 2015.

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

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

This case was exceptional in its scale and complexity. By early September 2015, with the expiry of the time bar approaching, the precognition process was incomplete and essential investigations were still ongoing.

On 3 September, the Crown applied to the court for a 9 month extension of the time bar. The sheriff granted a 3 month extension. An appeal by Mr Clark and Mr Whitehouse against that extension was refused.

Meantime on 2 and 3 September 2015, Mr Clark and Mr Whitehouse appeared in court again on a second petition which contained new and separate charges relating to the second matter which the police had been investigating – namely, the administration of Rangers and its sale to Charles Green in 2012.

On 16 September 2015 Mr Clark and Mr Whitehouse, with five other accused, were indicted. The charges against them derived from both the November 2014 and the September 2015 petitions.

At that time, the precognition process in relation to the November 2014 petition was still incomplete and there was, demonstrably, no precognition in relation to the September 2015 petition which had only just been initiated. Essential investigations were still on-going in respect of the charges derived from the November 2014 petition. And there was evidence available which objectively was obviously inconsistent with the charges against these two accused derived from the September 2015 petition.

On 2 December 2015, a second indictment was served superseding the first one.

At a preliminary hearing in February 2016, following legal argument, Crown Counsel withdrew certain of the charges. On 22 February, the judge dismissed the remaining charges against Mr Clark and Mr Whitehouse.

Crown Counsel advised the court that consideration would be given to a further indictment against them. A Crown Office press statement issued that day indicated that a fresh indictment would be brought. This was corrected by a further statement the following day.

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

In August 2016, Mr Clark and Mr Whitehouse initiated civil actions against me – I had been appointed on 2 June 2016 - seeking damages on the grounds of malicious prosecution and breaches of Articles 5 and 8 of the European Convention on Human Rights. They also advanced claims against the Chief Constable of Police Scotland.

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

On 20 August 2020, I admitted liability to Mr Clark and Mr Whitehouse.

Those admissions followed the conclusion of a very substantial and lengthy investigation undertaken by the legal team, including external counsel, instructed on my behalf.

As a result of that investigation, I concluded that the decisions to place Mr Clark and Mr Whitehouse on petition in September 2015 and to indict them were indefensible in law.

I concluded that those decisions proceeded without probable cause – ie without a proper evidential basis - in circumstances which met the legal test for malicious prosecution.

That legal test can, in certain circumstances, be met even though no individual had “malice” in the popular sense of a spiteful motive. My acceptance of liability in this case did not depend on any individual being malicious in that popular sense.

I cannot, at this time, disclose in detail the basis upon which liability was admitted, but when it is free to do so, the Crown will disclose the basis for those admissions in full - including to this Parliament.

What I can say is that there were, in this case, profound departures from the normal practices, including precognition, which are designed to ensure, and routinely do ensure, that any prosecution in the High Court has a proper basis.

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

After the admissions of liability, mediations took place with both pursuers, and agreement reached to settle their claims.

Each of them has been paid £10.5 million in damages; and, to date, over £3 million has been paid to them in aggregate by way of expenses.

These two pursuers were very high earning professional people and the damages paid reflect a reasonable estimate of the loss which they sustained as a result of being prosecuted.

I have written to the Justice Committee about the financial implications.

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

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

In my JUSTICE Human Rights Day lecture in December 2016, I said this:
“a fair and independent prosecution service, taking decisions rigorously, independently and robustly in accordance with the evidence, is, I believe, essential to the freedom under the law which we enjoy as citizens of this country.”

Scottish prosecutors, and the Crown Office and Procurator Fiscal Service, have a justified reputation for fairness, integrity and independence.

The seriousness of what happened in this case should not obscure the truth that, day in and day out, Scotland’s public prosecutors, and the staff who support them, fulfil their responsibilities with professionalism and skill.

They take hard decisions, rigorously, robustly and in accordance with the evidence; and secure the public interest in the fair, effective and robust administration of criminal justice in Scotland.

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

What happened in this particular case should not have happened. As Lord Advocate and head of the system of prosecution in Scotland, I tender my apology to this Parliament that it did happen and for the consequent cost to the public purse.

I confirm my own commitment, and the Crown’s commitment, to supporting a process of inquiry into what happened in this case once the related matters have concluded. And I express my own determination that nothing like it should happen again.