18.02.21


The malicious prosecutions of David Whitehouse and Paul Clark, senior administrators at Duff & Phelps, should have red flags popping up to the sound of the loudest possible alarm bells.

Global management consultants involved in the liquidation of Rangers FC back in 2012 are unlikely to be top of most people’s list of those deserving of sympathy. Like anyone else, however, they are deserving of justice.

Instead, as the Lord Advocate, James Wolffe admitted to parliament last week, both Mr Whitehouse and Mr Clark were victims of a deliberate and reprehensible attempt by the state, in the form of the Crown Office, to destroy the lives and livelihoods of two innocent men.

In his defence, Mr Wolffe was not Lord Advocate at the time these appalling acts took place. In that respect, his predecessor, Frank Mulholland, now a Scottish high court judge, may have most to fear from the independent inquiry that must follow once the outstanding legal cases are concluded, overseen by a judge from outwith Scotland, for obvious reasons.

Nevertheless, Mr Wolffe’s contention that malicious prosecutions brought with nothing resembling ‘probable cause’ do not necessarily mean any individual acted with malice or ‘spiteful motive’ is hard to fathom. Either actions were deliberate, and criminally so, or the Crown Office is guilty of catastrophic incompetence.

And this matters more than just the damage to the Crown Office’s reputation. Mr Whitehouse and Mr Clark have received compensation and legal costs to the tune of almost £25m, with further cases still to settle. This figure could yet double, with some predictions suggesting £100m is not out of the question.

Last week, SNP MSPs were quick to insist that ‘lessons had been learned’ and it was ‘time to move on’. However, even at a time when governments are ‘hosing’ money around in response to the effects of the pandemic, the costs of this debacle are significant. Ultimately, they will have to be met from the Scottish Government budget, with inevitable and serious consequences for public services, already under enormous pressure.

It also comes in the wake of other costly misadventures, including Ferguson’s shipyard, BiFab not to mention the half a million pounds squandered by Scottish Ministers, apparently against the advice of their legal advisers, in defending the court action brought by Alex Salmond.

As the Justice Committee’s Convener, Adam Tomkins observed during a debate last week, there is now an ‘accountability crisis’. Prof Tomkins is a Tory MSP, so doubtless his view will be dismissed in SNP circles, particularly with the party and its leader enjoying resolutely healthy poll ratings.

But Prof Tomkins is not alone. Similar concerns have been voiced recently by former SNP deputy leader, Jim Sillars, and SNP MP, Kenny MacAskill, though the latter’s position may be compromised, given he was Justice Secretary at the time these malicious prosecutions took place.

In an opinion piece earlier this week, Mandy Rhodes, Editor of Holyrood Magazine, summed up the situation rather well when she wrote, “With growing calls for public inquiries into, among others, the Rangers debacle, the care homes scandal, drugs deaths and the Salmond complaints process; with internal battles hitting the headlines; flawed policy proposals hitting the buffers; and so-called political allies all but hitting each other, this feels more like a failing party leading a fag-end government limping along to its final demise than the one that in actuality is riding so high”.

So what is likely to be the legacy of these malicious prosecutions? Certainly, it should herald an end to the Lord Advocate performing the dual role of determining which crimes are prosecuted in Scotland while simultaneously acting as the government’s chief legal adviser and attending most Cabinet meetings. That perceived conflict is no longer tenable.

Sadly, it will also divert funds from other demands on the government’s budget, whether that be pandemic business support, education catch-up resources or investment in mental health services. In that sense, the timing of this scandal could hardly have been worse.

Hopefully, though, it will also spur collective and concerted action to address the accountability crisis referred to by Adam Tomkins in “a parliament that doesn’t even know when it’s being misled any more”.


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