Crown Office and Procurator Fiscal Service (Malicious Prosecutions)

– in the Scottish Parliament on 10th February 2021.

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Photo of Linda Fabiani Linda Fabiani Scottish National Party

Good afternoon, everyone. I give the usual reminder that social distancing measures are in place in the chamber and across the Holyrood campus.

The next item of business is a debate on motion S5M-24095, in name of Murdo Fraser, on the Crown Office. Members who wish to speak in the debate should please press their request-to-speak buttons if they are in the chamber, or press R in the chat box if they are participating remotely.

Photo of Murdo Fraser Murdo Fraser Conservative

Yesterday, the Lord Advocate made a statement to Parliament in relation to the malicious prosecutions of David Whitehouse and Paul Clark, former administrators of Rangers Football Club plc. Although that statement was welcome—we had been calling for it for some time—more needs to be said on these very serious matters, which is why we have called the debate on my motion.

Before getting into the substance of my remarks, I should make two preliminary comments. First, I should declare my interest as a member of the Law Society of Scotland, although I am not currently practising as a solicitor. Secondly, I am aware that there are currently live proceedings in relation to the cases of five individuals. I do not intend to comment on those; rather, I will concentrate on the cases of Whitehouse and Clark, which were referred to in the Lord Advocate’s statement.

David Whitehouse and Paul Clark were partners in the international insolvency firm Duff & Phelps and handled the administration of Rangers Football Club plc. On a Friday morning in November 2014, they were taken from their homes in England and driven to Glasgow, arriving too late in the day to be able to appear in court—timing that they believe was deliberate. They were held in police custody until the Monday morning, left in cells without a mattress to sleep on and with lights burning throughout the night, and were checked on hourly as they were deemed to be on suicide watch. They were, in their words, treated as if they were terrorists.

Yet those individuals had committed no crime, and nor was there a proper evidential basis for them to be indicted. Their detention has been deemed a breach of article 5 of the European convention on human rights. Their prosecution, it has now been admitted by the Lord Advocate, was malicious. The experience that those innocent individuals suffered was horrific and, understandably, has had a major psychological impact on them both.

In February 2016, all charges against Clark and Whitehouse were dismissed, and they were told in May of that year that no further proceedings would be taken against them. They were both free men.

The issue that we have to understand is how that could possibly happen. What happened to Whitehouse and Clark is simply incredible. It is what we might expect to see in a third-world dictatorship, not in Scotland in the 21st century. Despite the Lord Advocate’s statement yesterday, we are still no closer to an explanation as to how and why those individuals became victims of a malicious prosecution; who authorised the action against them; or what the motivations behind that were.

There is more to the case than simply those issues, significant as they are. Whitehouse and Clark initiated civil actions for damages against the Lord Advocate, winning a landmark case and persuading the Court of Session that he did not have immunity from common-law liability. They were fortunate in having the resources to pursue such a case—many others in similar circumstances would not have been so lucky.

Whitehouse and Clark have now each been paid the sum of £10.5 million in damages, together with another £3 million in legal costs. The Lord Advocate confirmed yesterday that those damages have been paid with a tax indemnity, meaning that, should Her Majesty’s Revenue and Customs come against them for tax, the additional cost will be met by the Crown Office, potentially doubling the payout.

That £24 million might just be the tip of the iceberg. With another five cases still to be heard, the total sum may well reach £100 million—or perhaps even more. At a time when Police Scotland is crying out for additional resources and every single member is facing daily demands from constituents—individuals and businesses—for more support due to the Covid crisis, it is simply extraordinary and outrageous that such vast sums of public money are being paid out as a result of catastrophic failures in the Crown Office.

There is so much here that has gone wrong and needs to have a light shone on it. The only connection between the seven individuals was their association with Rangers Football Club. What was the motivation for the Crown Office in pursuing them, given the lack of evidence of a crime having been committed? What was the role of the then Lord Advocate Frank Mulholland, who is now a High Court judge?

In any democracy where the rule of law is respected, it is essential that there is full public confidence in the prosecution system. That is precisely why we need answers to all those questions, and the public need to be reassured that what we have just seen can never happen again.

Yesterday, the Lord Advocate advised that there had been an investigation undertaken by a legal team instructed by him. Although I am sure that that was a valuable exercise, from the outside it looks like the Crown Office is marking its own homework. There will not be public confidence in any inquiry unless it is conducted externally and in public.

The Lord Advocate yesterday said that there was no evidence of criminality, but that statement is directly challenged by David Whitehouse, with whom we spoke yesterday, who states that he holds information about the role of Frank Mulholland in intervening personally to override decisions made in the case by prosecutors in his office. We know already that there are questions of criminality within the Crown Office, and it would be outrageous for those to be investigated internally—the Crown Office cannot prosecute itself.

That is why my motion calls for a full, independent and public inquiry conducted by a member of the judiciary from outside Scotland, from one of the other home nations. That is the only way that the findings of any inquiry will have credibility in the eyes of the legal profession and the Scottish public.

The whole episode is an unprecedented scandal in Scottish legal history. Whether what has happened is down to incompetence or corruption, it has to be exposed. These are not issues that can be brushed under the carpet. To restore public confidence, we need a full independent inquiry, which is the point that is made in my motion. I hope that it will have the support of the chamber.

I move,

That the Parliament notes the Crown Office and Procurator Fiscal Service’s admission of malicious prosecutions of David Whitehouse and Paul Clark, formerly administrators of Rangers Football Club PLC; notes that £24,086,250 of taxpayers money was paid out to Mr Whitehouse and Mr Clark for compensation and legal fees in this case; notes reports that suggest the cost to the taxpayer could increase further up to around £100 million; believes that this is an unprecedented scandal in Scottish legal history; further believes that these matters need to be fully investigated in order to restore public confidence in the Crown Office and Procurator Fiscal Service, and calls for a full, independent, public inquiry led by a judge from a jurisdiction outwith Scotland to investigate the malicious prosecutions of Mr Whitehouse, Mr Clark and any other party connected with Rangers Football Club.

The Lord Advocate (James Wolffe):

As I accepted in my statement yesterday, this case represents a serious failure in the system of criminal prosecution, and no one should doubt that I recognise the legitimate questions that it raises. I have committed the Crown to releasing further information when it is possible to do so and I have committed myself and the Crown to supporting a process of inquiry once related legal proceedings have concluded.

Other civil cases are currently pending and my obligation to the rule of law, both in those cases and otherwise, imposes constraints on what I can say at this time. In one of those cases, there is likely to be the hearing of evidence.

As I explained yesterday, I am putting in place arrangements, including the involvement of external senior counsel with no previous involvement in these matters, to ensure that any allegations of criminal conduct will be considered fairly and objectively. If criminal proceedings ensue, those must take their course before any inquiry could proceed. The timescale for the conclusion of these matters cannot presently be known, but let me be clear: I agree with Mr Fraser that thereafter there should be a process of inquiry, that that inquiry should be transparent and independent, and that it should be led by a judge.

Photo of Murdo Fraser Murdo Fraser Conservative

It seems that there is a very minor point of difference between us on where we should go from here. Given the former Lord Advocate’s role on the Scottish bench, our request is that the inquiry judge should not be from the Scottish bench, and should be from another jurisdiction in the United Kingdom. Does the Lord Advocate agree?

The Lord Advocate:

I entirely agree that the judge appointed would require to be demonstrably independent and to command confidence in that regard, and it may well be appropriate to appoint a judge from outwith Scotland. However, it would be premature at this time to conclude that, when the time comes to establish the inquiry, there is no Scottish judge that could satisfy that requirement.

The inquiry should be rigorous, independent, fully resourced and able to address effectively all the issues that require to be examined. Rhoda Grant, in her amendment, is right to draw attention to the need to consider the investigation and prosecution process in its entirety, including the role of the police, and I invite members to support her amendment.

The only point at which I depart from the substance of Murdo Fraser’s motion is that he seeks to prejudge the model and type of inquiry to be selected. I should be clear that I do not rule out a statutory public inquiry—for aught yet seen, that may be the right way forward—but other models and forms of inquiry are available and, equally, should not be ruled out at this stage.

By way of example, Lord Fraser of Carmyllie’s inquiry into the construction of this Parliament building was a non-statutory inquiry commissioned by Scottish ministers. What happened following the acquittal in 2000 of an accused individual in respect of the murder of Surjit Singh Chhokar illustrates the point. The then Lord Advocate Colin Boyd commissioned Sir Anthony Campbell, a Northern Ireland judge, to undertake a non-statutory inquiry into the Crown Office’s decision making in that case. He and the then Minister for Justice commissioned Dr Raj Jandoo to undertake a non-statutory inquiry into the liaison arrangements between the police, the Procurator Fiscal Service and the Crown Office and the family of the deceased.

The Lord Advocate:

Not at the moment, thank you.

Those inquiries were completed within seven and 10 months respectively. They generated robust and important conclusions, and the reports of the inquiries were laid before and debated in this Parliament.

The time to address the form of the inquiry and the identity of the judge who should undertake it will be when all related matters have concluded. At that time, it is likely that more information will be in the public domain, and, at that time, the matter should and will be brought back to this Parliament with the proposed arrangements for establishing the inquiry.

As I explained yesterday, the case that we are discussing involves significant departures from the standard processes that routinely ensure that High Court cases have a proper basis. The seriousness of the case, its unprecedented nature and the legitimate issues that it raises for inquiry should not obscure the truth that, day in, day out, Scotland’s public prosecutors fulfil their responsibilities fairly, independently and with integrity.

For my part, I am proud of the work of Scotland’s public prosecutors, which is reported on daily in news reports. They make hard decisions on behalf of us all, and those are tested and scrutinised by defence lawyers and the court. They prosecute cases of every description, including murders, sexual offences, serious organised crime, serious financial crime and crimes of violence and dishonesty, which cause harm in our communities.

By reason of the work that they do, and the way that they do it, Scotland’s public prosecutors have earned and deserve members’ continuing confidence. In making that point, I invite members to take seriously that I in no way wish to suggest or diminish the seriousness of the case or, indeed, the legitimate questions and issues that are raised.

Having identified what is perhaps a narrow point of difference in terms the substance of the matter, I move amendment S5M-24095.2, to leave out from “in this case” and insert:

“notes that this situation is unprecedented in Scottish legal history; further notes that the Lord Advocate and COPFS have committed to supporting public and Parliamentary accountability and notes that legal proceedings are ongoing; agrees that there should be a transparent process of inquiry, once all related legal proceedings are completed; and agrees that the precise mechanism of inquiry, which should be led by a judge, should be determined once all related legal proceedings have concluded.”

Photo of Rhoda Grant Rhoda Grant Labour

This is an extremely concerning issue not just for the people involved, but for the Scottish justice system. If we set aside the word “malicious” for the moment, this is a shocking case, whether or not malice was involved.

I appreciate that, as the Lord Advocate said in his statement yesterday, he could not be wholly forthcoming while the cases in question had not yet been concluded. In addition, those cases took place before his appointment. However, what he said was worrying. Arresting and then detaining people usually means that sufficient suspicion exists to suggest a level of criminality that could cause public harm. To then discover that there was no evidence against those in these cases to countenance such action is shocking.

In yesterday’s statement, we were told that Mr Clark and Mr Whitehouse were initially arrested in November 2014. They then appeared in court on separate charges in September 2015. The Lord Advocate told us yesterday that, at that time,

“Essential investigations were still on-going in respect of the charges that derived from the November 2014 petition, and there was evidence available that was—objectively—obviously inconsistent with the charges against these two accused that derived from the September 2015 petition.”—[Official Report, 9 February 2021; c 31.]

If there were obvious inconsistencies, why were those cases being pursued at that time?

Despite that, in December 2015, a second indictment was served, which superseded the first. However, in February 2016, Crown counsel withdrew certain charges and the court dismissed the rest. That was a full five months after it had become obvious that there were inconsistencies between the two lots of charges.

Not only is it clear that those cases were mishandled by the Crown Office and Procurator Fiscal Service, but we now understand that the police are also being pursued for damages. We should be able to trust both of those organisations to be beyond reproach. We should also be able to expect them to question and to challenge each other and to provide each other with checks and balances.

That brings me to Scottish Labour’s amendment. We agree with the motion’s sentiment that the situation requires an independent public inquiry because it undermines our justice system. However, we cannot do that without also looking at the role of the police. We expect there to be enough tension—enough questioning and scrutiny—between the two organisations that such things could not happen.

The costs of compensating for this mess will come out of the public purse. We do not yet know the full costs, both for compensation and for those accrued in the legal process in dealing with this failure and correcting the processes that have been found wanting. We have also yet to discover the extent of the role of, and compensation being sought from, Police Scotland, which will again fall to the public purse.

Which budgets will those funds come from, and what will have to be cut to pay for them? Let us be clear: services will need to be cut to provide that compensation. I cannot be alone in thinking that the level of compensation that has been determined, which is based on earnings, is obscene and calls into question the values of our society. It is also sickening that front-line workers, who save lives daily, and those who are paid the minimum wage in the gig economy will have to fund it. Sadly, even a modest pay rise for them is grudged, even during a global pandemic. That, if anything, shines a light on what is wrong with our society and what we need to put right. One also wonders whether those two men would have had the means to access justice if they had been paid the minimum wage. That is a debate for another day, but it is one that we must have.

We must have transparency on the whole process. Such legal and policing institutions can work only with the consent of the public. To have such consent they must also have trust that justice will be carried out fairly. These cases damage that trust. We must ensure that our justice system is fit for purpose. The only way to do that will be to have a public inquiry, led by someone whose independence and legitimacy cannot be questioned. That person must consider the roles of both the Crown Office and Procurator Fiscal Service and Police Scotland.

I move amendment S5M-24095.1, to insert at end:

“; understands that further compensation is also to be paid on behalf of the Chief Constable, and believes that the remit of any inquiry should include examination of the role and involvement of Police Scotland.”

Photo of Liam McArthur Liam McArthur Liberal Democrat

Despite yesterday’s statement from the Lord Advocate, I think that it is helpful that Parliament should have a further opportunity to consider in more detail the facts and the implications of this scandal. I therefore thank Murdo Fraser for bringing today’s debate to the chamber.

This is a scandal. In financial terms, as I said yesterday, it is up there with BiFab and the Ferguson Marine shipyard; the figure is £24 million so far, with the prospect, as the Lord Advocate acknowledged, of that increasing—potentially, very significantly. It is a colossal waste of taxpayers’ money. However the Cabinet Secretary for Finance chooses to plug this deep and expanding hole, it will come at a cost to other areas of public spending, at a time—as others have observed—when there is already no shortage of demands on those resources.

Every day, like other MSP colleagues, I am contacted by constituents who are struggling: business owners crying out for lifeline support to stay afloat and families desperate to know how the Government plans to make up the lost ground in their children’s education. Mental health services were in crisis before the pandemic, but they are now under unprecedented strain.

To be clear, the cost is tens—perhaps many tens—of millions of pounds that could have been spent on pandemic business support, education catch-up, or investment in mental health. Instead, it is being used to foot the bill for a malicious prosecution that should never have happened in the first place. We need to understand why that has happened, who was responsible and how such grievous mistakes went unchecked for so long.

With the overturning of the Hester v MacDonald decision leaving the Lord Advocate liable for any other historical errors, we need a clear understanding of what that might mean.

Over and above the crippling financial cost, these blunders come at a reputational cost, too. Although the Lord Advocate deserves credit for his action in seeking to address grave errors that were made prior to him taking up post, these events will inevitably shake public confidence and trust in the Crown Office. That is why we need a full independent inquiry, led by a judge from outwith Scotland, and why steps to put that in place should be taken now, even if the inquiry itself must await the conclusion of outstanding complaints. It is why we must also recognise the failings in the current arrangements—failings that have been the subject of debate since the establishment of the Parliament.

I have the greatest respect for the current Lord Advocate. However, over recent years, the evidence has been building that the Crown Office is in need of reform. The wholly unacceptable delays in fatal accident inquiries are perhaps the most striking example, but that reflects systemic problems arising from workload pressures and a failure to get the right checks and balances in place.

Ultimately, the Lord Advocate faces uncomfortable tensions, if not outright conflicts. As head of the prosecution service, the Lord Advocate requires to be scrupulously apolitical. At the same time, he is the Scottish Government’s own lawyer, attending the vast majority of Cabinet meetings. He is responsible for the investigation of deaths and for calling fatal accident inquiries even when families believe that the actions of Scottish public sector bodies may have contributed to those deaths. The personal integrity of the current Lord Advocate is not in question, but there is a question as to whether any single advocate—however capable and humane—should be asked to carry out so many tasks that involve so many competing interests.

The case for Crown Office reform is now compelling, as is the need for a judge-led inquiry into the shambles of these malicious prosecutions. In the meantime, the SNP Government must now explain how the costs of this shambles are to be met. The public deserve to know which services will be expected to pay the price for the incompetence that lies at the heart of this latest costly fiasco.

The Scottish Liberal Democrats will support the motion and the amendment in Rhoda Grant’s name at decision time.

Photo of John Finnie John Finnie Green

At decision time, the Greens will support the amendment in James Wolffe’s name and the amendment in Rhoda Grant’s name, the totality of which involves more measured language than the motion and a more realistic timeframe.

The word “unprecedented” has been used—that might be seen as reassuring, but I am not in any way reassured by it. We are told that the case was exceptional in its scale and complexity; nonetheless, the higher standards that we have come to expect from the COPFS—good folk—should have applied. Of course, the COPFS is serviced by the police and I note the claims against the police. That is why it is appropriate to support the Labour amendment.

I must draw a distinction between the postholder and the person; I have no issue with the actions of James Wolffe—indeed, I commend his leadership in confronting the significant shortcomings that he has inherited and accepted responsibility for. He rightly relied on the established legal authority that the Lord Advocate is immune from common-law liability. We know that that was overturned by the inner house of the Court of Session, which allowed the claims to proceed. However, we need to understand the fullest consequences of that decision.

What would have happened if the 1961 Hester v MacDonald decision had stood? I presume that we would not have had the financial ramifications, but that would not have negated any of the wrongdoing.

What are the implications beyond the case that we are considering? Deeply worrying facts have emerged. Actions were taken that were “indefensible in law”, which goes beyond the argument that it is a big organisation and mistakes happen. We need look no further than south of the border, where malicious prosecution is not rare. The decisions

“proceeded without probable cause—that is, without a proper evidential basis—in circumstances that met the legal test for malicious prosecution.”—[Official Report, 9 February 2021; c 32.]

Imagine being subjected to that by the state. The gentlemen who were wrongly treated in that way deserve to have a full and frank apology and to be rightly compensated.

I admit to some confusion about the Lord Advocate’s statement in relation to the legal test and the term “malice”. Even if the acceptance of liability did not depend on any individual being malicious “in the popular sense”, as the Lord Advocate put it, nonetheless, it was individual unlawful actions that brought us to this situation, and someone—an individual—should be sanctioned for that. There were “profound departures” from procedure and there was no proper basis for prosecution. It is disturbing to hear our head of prosecution admit breaches of articles 5 and 8 of the ECHR.

The case was in the public domain and was followed in great detail, but most cases do not have that level of public exposure. The two pursuers were very high earning, and the damages reflect that. I wonder what would have happened if the individuals who were wronged in this way were unemployed labourers. What level of redress or financial compensation might they have received and would there be the same level of outrage in some quarters?

I believe that we need to understand from the Lord Advocate whether the acknowledged shortcomings in the case applied in other perhaps less high-profile cases. We need to know whether professional public insurance indemnity, or perhaps a lack thereof, features in the case, although insurance would not be an excuse for the wrongdoing. We need to know what steps the Lord Advocate will take to ensure public confidence because, just as with policing by consent, the public are pivotal in relation to prosecution. It is something that is done for them rather than to them. Members of the public might reasonably think, “If this can happen in a case with all that publicity, what chance do I have against the system?”

We need an independent and robust judge-led inquiry, which should cover the police. I would not restrict it by saying that the judge must come from the home countries, as the Republic of Ireland has many qualified people. More than anything else, we need public reassurance.

The Deputy Presiding Officer:

We move to the open debate.

Photo of Adam Tomkins Adam Tomkins Conservative

I will start with a quote from a letter that the Lord Advocate sent to me, as convener of the Justice Committee, on 1 February. He said:

“in Scotland … all prosecution decisions are made by public prosecutors within the system of criminal prosecution for which the Lord Advocate, acting independently of any other person, is responsible.”

He went on:

“It is for the Lord Advocate, as head of the systems of criminal prosecution … in Scotland … to put in place the appropriate policies and procedures for decision-making in any particular type of case”.

That letter concerned an amendment to the Hate Crime and Public Order (Scotland) Bill that the Lord Advocate is seeking to resist, but the points that he makes in it are correct in law and are of general application. One person and one person only is responsible for the malicious prosecution of David Whitehouse and Paul Clark, and that person is the Lord Advocate.

When Frank Mulholland was Lord Advocate, he went out of his way to see to it that two innocent men were hounded by the state. The High Court in England ruled that the actions that were taken against those men were

“an abuse of state power”.

In any normal country, heads would roll. That man, Frank Mulholland, is now a Court of Session judge. Judges are, rightly, not accountable to Parliaments for their decisions, which is why nothing short of a full and open public inquiry, chaired by a judge from another jurisdiction, must be appointed to get to the bottom of this outrage.

The Lord Advocate is, of course, accountable to the Scottish Parliament and, yesterday, James Wolffe gave a statement to the chamber and fielded questions—he fielded questions but did not answer them. I asked him the perfectly simple and straightforward question whether his predecessor’s abuse of state power was caused by his incompetence or by corruption, but Mr Wolffe could not—or would not—answer even a question as basic as that.

I believe that, as others have said, Mr Wolffe is an honourable man, but what he said yesterday leaves a great deal to be desired. What we heard was not an account of how on earth it was that the Crown Office was not merely permitted, but encouraged, to indulge in a malicious prosecution of innocent men. Frankly, what we heard was a “Through the Looking-Glass” statement, which culminated in Mr Wolffe’s preposterous claim that we have malicious prosecution here but, somehow, no malice. That beggars belief. There can have been no malicious prosecution unless someone acted with spite—with malice—or in bad faith, and there is no mystery as to who, constitutionally, that was. It was the Lord Advocate.

We have an accountability crisis in Scotland. We have a Parliament that is so broken that it does not even know when it is being misled any more. We have a committee that is investigating how the Government investigated complaints of sexual misconduct that can neither publish nor even hear evidence that goes to the core of its remit. We have a Government that, uniquely in Europe, sought to use the Covid pandemic to insulate itself from freedom of information laws. In addition, wherever we look, we have taxpayers’ money wasted: wasted on coaching civil servants to dissemble to Parliament; wasted on lawyers’ fees; wasted on Derek Mackay’s salary; and wasted, of course, in compensating two innocent men who were hounded by the state in the most egregious abuse of power.

All this time, the perpetrators sit untouched.

The Deputy Presiding Officer:

You have to come to a close.

Photo of Adam Tomkins Adam Tomkins Conservative

I will say that again. All this time, the perpetrators sit untouched. Frank Mulholland’s judgment, as Scotland’s prosecutor, is in the dock, while Frank Mulholland himself sits in judgment. It stinks, Presiding Officer, and do you know what it stinks of? It stinks of corruption.

The Deputy Presiding Officer:

We are rather short of time, so any time that members take over their allocated time will have to be taken off other speeches.

Photo of Rona Mackay Rona Mackay Scottish National Party

We know that the debate on the motion, which has been legitimately brought forward by the Conservative Party, really should not have had to take place, but the fact of the matter is that a serious and unprecedented judicial error was made that has indeed been costly to the taxpayer.

It is important to say at the outset that the current Lord Advocate, who is in the chamber again today, was not in his post at that time, but he has acknowledged that it is his responsibility to apologise and answer questions on the issue, which he did in a statement to Parliament yesterday. He confirmed that, once all related legal proceedings have been completed, there should be a transparent process of a judge-led inquiry. Today, he has confirmed that all options are on the table and that the Government does not have an objection to someone outwith Scotland leading that inquiry, although such matters should properly be considered at the time.

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. As a member of the Justice Committee since 2016, I have witnessed that numerous times during their co-operation with the committee. They have a justified reputation for fairness, integrity and independence. Scottish prosecutors, and the Crown Office and Procurator Fiscal Service, have an established reputation for fairness, integrity and independence, and there is no doubt that they have tackled the unprecedented challenges that have been thrown up by Covid-19 in an exemplary manner.

That said, in this case, there was a very serious failure in the system of prosecution. It did not live up to the standards that the public and the Parliament are entitled to expect, and which COPFS expects of itself, as the Lord Advocate acknowledged.

However, we move on and lessons have been learned. The Lord Advocate has stressed that nothing like this should ever happen again. He confirmed in the chamber yesterday that the precognition process has been reinforced, and new arrangements have been established for the management and oversight of large and complex cases to safeguard against anything like this happening again.

Crucially, arrangements have been made so that the settlements will not affect the service that the Crown Office provides to victims and witnesses. The finance secretary has outlined the budget for 2021-22, including the budget for the Crown Office and Procurator Fiscal Service, and it is now for the Justice Committee to scrutinise that budget. However, the finance secretary has confirmed that the payments will not require to be met from the COPFS resource allocation that was announced as part of the Scottish Government budget last week. That allocation involves an increase in COPFS funding from £124.9 million in 2020-21 to £146.8 million in 2021-22, representing an increased resource allocation of £21.9 million and additional capital funding of £0.5 million.

There is no dispute that the case is a unique and hugely regrettable one that must never be repeated. I am confident that steps are now in place to make sure that it never is.

Photo of Daniel Johnson Daniel Johnson Labour

Like John Finnie, I find myself using the words “unprecedented” and “extraordinary”. Sometimes, using those words can be rhetoric and hyperbole, but in this debate they barely describe the seriousness of what has happened. Despite the Lord Advocate’s assertions and what we heard from Rona Mackay, we have not heard why we should have confidence that the matter is resolved or why it could not happen again.

Let us look at the statement that the Lord Advocate made yesterday. For him to conclude that prosecutions proceeded without probable cause or a proper evidential basis is extremely serious in itself and it should worry everyone not just in the Parliament but across Scotland. However, the fact that the result of this extraordinary lapse by this important public body is costing the public between £24 million and £100 million simply underlines what a scandal it is.

In any other times, this would be a national crisis, but this national crisis in our justice system should not be allowed to be obscured because we are facing a global pandemic and other significant issues. In the circumstances, the rhetoric is justified. There are serious questions about the rule of law, our justice system and our democracy.

The Lord Advocate said in his opening remarks that prosecutors deserve our confidence and respect. To put it simply, however, the questions that are raised mean that we cannot currently have confidence in their ability to do their job or confidence that things are happening as they should. We do not have answers on the circumstances of what happened, the motives or the culpability—to put it simply, the what, the why and the who.

What procedures were in place? Why did they fail? They were apparently a significant departure from what was expected, but why did that happen? How was it allowed to happen? Why did it happen? What was the motivation, rationale and justification for the departure? Who made the decisions? That is critical. All too often, when it comes to institutional failures such as this one, individuals hide behind the collective whole. The simple reality is that, in the prosecution, certain individuals must have made decisions that meant that the prosecution proceeded. We need to know who they are and what those decisions were, and those people need to be held to account for them.

On the “who” question, I acknowledge, as others do, that the current incumbent of the office of Lord Advocate has been forthcoming and has made himself accountable, but he is clearly not responsible for those decisions. We need those who are responsible for them to be held fully to account and they must face the consequences of those decisions.

More fundamentally, there are important principles at stake. We have fundamental safeguards at some of the most fundamental points in our justice system that are there to safeguard individuals from malicious prosecution—from being harassed by the power of the state. That is why people cannot incriminate themselves, and why we have historic principles such as double jeopardy and corroboration—it is so that the state cannot harass the individual, because we recognise the power of the state and the inherent imbalance that exists between the individual and the state.

It so happens that those concerned were individuals of means, who were able to defend themselves. However, we have to ask what would happen in other circumstances, whether such a thing has happened before, and whether other such circumstances have simply not come to light.

More broadly, there are fundamental questions about our justice system—about the police, and about the proximity of the Government, prosecution and police—that only a judge-led independent inquiry can answer.

The Deputy Presiding Officer:

The last speaker in the open debate is Shona Robison.

Photo of Shona Robison Shona Robison Scottish National Party

It is fair to say that across the chamber there is broad agreement that, in this instance, there was a failure in the system of prosecution, and that failure has been admitted to by the Lord Advocate. While saying that, it is important to recognise that what happened was, and is, unprecedented in legal history. It is important to recognise that, because it is essential that we reassure the public that, each day, the Scottish legal system works in a robust and transparent manner to ensure that justice is administered fairly and accountably. We should not lose sight of the fact that, each day, all those who are involved in the justice system work with great professionalism and dedication.

As we know, having concluded actions only last week, the Lord Advocate yesterday took the first opportunity to address Parliament on the situation, and, in his words, to

“begin the process of public and parliamentary accountability and to reiterate the commitment that the Crown has given to that process.”—[Official Report, 9 February 2021; c 30.]

I welcome that commitment and look forward to further parliamentary and public scrutiny of a transparent inquiry into the situation, as is called for in the motion.

We know that the case was exceptional in its scale and complexity and that certain legal proceedings are on-going. Therefore, in order to fully understand the implications of the situation and provide the opportunity to undertake as wide-reaching and transparent an inquiry as possible, it would be prudent to ensure that all proceedings have finished before establishing the inquiry, as is called for in the Lord Advocate’s amendment. That will also allow the time and opportunity to ensure that any further changes that are required are well established and thorough.

I welcome the fact that the Lord Advocate has already undertaken changes in order to reinforce the precognition process, and that new arrangements for the management and oversight of large and complex cases have been put in place. It is also important to note that assurances have been given that the settlement that is involved in the case will not affect the service that the Crown Office provides to victims and witnesses. However, the case is very serious and should be treated as such.

I welcome the motion and fully support an inquiry into this unprecedented situation. As to the make-up and timing of any such inquiry, I understand that the Government has no objection in principle to someone outwith Scotland leading it; however, I believe that it is prudent to ensure that any proceedings that are on-going in relation to the case are concluded before an inquiry is undertaken, to allow us to learn as much as we can and ensure that the steps that are taken to redress the situation are robust, transparent and effective.

The Deputy Presiding Officer:

We move to closing speeches. I call James Kelly to speak for up to four minutes, please.

Photo of James Kelly James Kelly Labour

The Conservatives have called an important debate, because the circumstances surrounding it are a scandal. It is not just that David Whitehouse and Paul Clark have been found to have been maliciously prosecuted; it is about the issues that flow from that.

There are clear questions about the processes and how things operate in the Crown Office. Two individuals have unfairly been taken through the courts, and a vast sum of public money has had to be paid out as a result of that.

Yesterday, the Lord Advocate said in his statement that Clark and Whitehouse were brought before the court in November 2014 on a petition, and he explained that they were subject to the process of precognition. He said that that involved

“a detailed narrative of the evidence and an analysis of whether the evidence is sufficient to support criminal charges.”—[Official Report, 9 February 2021; c 30.]

He went on to say that, in this case, there had been a departure from normal practice, including in precognition.

It is clear that, as Daniel Johnson said, there was no firm evidential basis on which to proceed with the case, and it is clear that that poses serious questions for the Crown Office and Procurator Fiscal Service. There was a statement yesterday, and there is a debate today, but we are no further forward on who is responsible. As Murdo Fraser rightly highlighted, we need to know who took the decisions and who is responsible.

The two individuals were high earners and were therefore able to fund a substantial legal case in order to bring it to justice. As John Finnie pointed out, people on a more average wage scale would not have been able to fund that. There is a clear access to justice issue. That leads to further questions about how the Crown Office is operating. Not everyone could have brought a defence in such a case. Are there other such cases? We know that there are issues relating to backlogs of cases. There needs to be a fundamental review of how the Crown Office is operating.

The sums involved are astronomical. At least £24 million has been admitted to so far. The cost could run to as high as £100 million. In the Finance and Constitution Committee meeting this morning, I raised the issue of the reduction in the housing budget. Because of incompetence on the part of the Crown Office, we are seeing that vast sums of money will have to be spent. We deserve to know where that money is coming from in the budget. Those questions need to be answered.

For the justice system to operate properly, the public and Parliament need to have confidence in it. This case is undermining that confidence. In order to move things forward, we need a judge-led inquiry to proceed promptly, and we need to hear the answers to those serious questions. We need not only proper lessons to be learned but serious reform of the systems and processes at the Crown Office.

Photo of Graeme Dey Graeme Dey Scottish National Party

I welcome this debate, as it gives us an opportunity to consider a matter of genuine and legitimate public concern. The significance of the compensation paid in these cases cannot be ignored, nor can the backdrop to all of this. There has been a serious failure in the process of prosecution, as the Lord Advocate has acknowledged. Although there are, quite properly, restrictions on what can be said about the cases because of on-going legal proceedings, neither the Lord Advocate nor—let me confirm this—the Government holds a contrary view to that.

In opening today and, indeed, during his statement on the issue yesterday, the Lord Advocate made clear his commitment to supporting parliamentary and public accountability at the right time once all the related legal proceedings are completed. He has also committed to a transparent process of inquiry that gets to the facts.

I should not need to emphasise that the work of the Crown Office and Procurator Fiscal Service as Scotland’s public prosecution service is the responsibility of the Lord Advocate in his capacity as public prosecutor, and not the responsibility of the Scottish ministers or the Scottish Government. However, the Government’s amendment makes clear our support for the underlying principles of how that must be taken forward, to secure the explanation of how and why the malicious prosecution was proceeded with. Murdo Fraser reasonably called for that.

The Lord Advocate has offered an assurance that Parliament and the public can have confidence in the wider work of the Crown Office and Procurator Fiscal Service, and that lessons have been learned and changes have been made. However, we recognise that there must be full and open reflection and investigation of what occurred, and of the monetary and other consequences of that.

There have been calls today for a judge-led inquiry. The Scottish Government’s amendment to the motion for debate makes clear, as did the Lord Advocate in his opening speech, that there would be merit in such an approach. However, the amendment also makes clear that any such inquiry can only appropriately take place once all the relevant legal proceedings have been concluded. That is something that I hope the Conservatives accept, but it is not acknowledged in the motion. The timing of any inquiry is critical. I hope that that is accepted across the chamber, and not just by the Conservatives.

Any inquiry must assess fully the circumstances of what has happened. However, it can effectively discharge that important task only if there are no on-going legal proceedings. Otherwise, there would be a danger that the inquiry process would prejudice those proceedings, and the inquiry would be at risk of not getting to the heart of what occurred. Therefore, the key issue is not the need for a process of inquiry—because that is accepted—but the timing of that process and the precise form that it will take.

The Scottish Government does not have an objection in principle to someone outwith Scotland leading such an inquiry; however, those matters should properly be considered at the right time.

Beyond that commitment, however, it would not be appropriate to say more today about the nature of an inquiry—whether statutory or non-statutory—or its detailed arrangements. That will be for a future date.

However, if anyone, for whatever reason, doubts the Scottish Government’s willingness to deliver a transparent examination of the matter, I would point them to the fact that we have statutory inquiries taking place into the Sheku Bayoh case, hospitals and trams. There exists evidence of the Scottish Government’s commitment to establishing the truth, even when it can be uncomfortable to do so. Whatever form of inquiry is chosen in respect of these prosecutions, the Scottish Government is committed to it being rigorous, independent, appropriately wide ranging, fully resourced and empowered to get to the bottom of the issues and concerns that have been rightly raised.

As soon as it is practical and possible, at the conclusion of all live legal proceedings, we can return to the matter and the precise specifics of how best it can be taken forward. That surely is the right and proper way to proceed—and it is essential that we proceed in a right and proper way, not throwing around unsubstantiated allegations about individuals, but committing ourselves to obtaining the facts and getting the answers that members have rightly asked for today.

I invite Parliament to support the Government amendment and the amendment from Labour.

The Deputy Presiding Officer:

I call Liam Kerr to wind up the debate, for around six minutes.

Photo of Liam Kerr Liam Kerr Conservative

I remind members that I am a practising solicitor and a member of the Law Society of Scotland.

At the outset of the debate, my colleague Murdo Fraser, in speaking to the motion, used the word “incredible”. The contents of the subsequent debate and contributions of members from across the chamber have at times been, in the truest sense of the word, “incredible”. Let us recap some of the facts that MSPs have described—and facts are what they are, because I shall limit myself to the cases of Whitehouse and Clark. I shall describe nothing that was not accepted by the Lord Advocate in his statement yesterday, and will studiously avoid anything that has yet to be concluded.

Throughout the afternoon, we have heard that a pair of reputable professionals were engaged to do a high-profile and complex job that was wholly within their expertise and competence. However, in November 2014, they were taken from their homes in England, driven to Glasgow too late to appear in court, held in custody—apparently without a mattress and with the lights on all night—and checked hourly. From then until May 2016, the considerable weight of the Scottish criminal justice system was brought to bear on them.

We now know that not only did their treatment breach the European convention on human rights, but there was malicious prosecution. It was not a simple human error, or an obscure legal mistake, or an error of evidence that suggested a need for individuals to be taken through a criminal process to establish their guilt or otherwise. Our system of prosecution is admitting, unequivocally, that there was a malicious move to throw innocent men behind bars and destroy their reputations.

What does “malicious” mean? Adam Tomkins referred to the suggestion that we somehow have a malicious prosecution, but with no malice. As a result, as we heard yesterday, there was “no criminal conduct”. Whether or not “malice” means what the people of Scotland might popularly think it means, I muse simply on this, as an aside: malice is a personal act, and an organisation cannot be malicious. To draw his conclusions from the investigation that he instructed, the Lord Advocate must have identified one or more individuals with the requisite mens rea for the offence to conclude that the prosecution was malicious. That, as the Lord Advocate well knows, is per the dictum of Lord Justice Bayley in the case of Bromage v Prosser, which defined it as

“a wrongful act, done intentionally, without just cause or excuse.”

That, according to the case of Quinn v Leathem, is “proof of malice”. The Lord Advocate must have identified an individual who, in their duties, acted wrongfully and

“intentionally, without just cause or excuse.”

Misconduct in public office is a crime. The conclusion that there was no criminal conduct surely requires deep exploration by an inquiry, in order to retain public confidence.

In any event, innocent individuals who were carrying out their job lawfully have faced prosecution not because of a suspicion that they had done anything wrong, but because of malicious intent by agents of the state. To the best of my knowledge, there has never been another instance of malicious prosecution in Scots law but, as Murdo Fraser put it,

“we are still no closer to an explanation as to how and why those individuals became victims of a malicious prosecution; who authorised the action against them; or what the motivations behind that were.”

What we do know from the speeches that have been made this afternoon is that the Scottish taxpayer has already paid out about £24 million in damages and legal costs—a figure that I presume does not include the legal costs of the state. We also heard that it is not beyond the realm of possibility that that figure could rise to £100 million or more. Rhoda Grant noted that we do not yet know from which budget that money will be taken. As Liam McArthur stated, that is a “colossal waste” of public money, which, as he also rightly said, could have been spent on education, health or business support. It is truly “incredible”.

In any democracy in which the rule of law is respected, it is essential that there is full public confidence in the prosecution system. The Lord Advocate told me yesterday that

“in this case ... The normal processes that are routinely followed in every High Court case were not followed, but the public should take reassurance” that

“the prosecution system in Scotland is robust, fair and independent, and is one on which they can rely.”—[Official Report, 9 February 2021; c 35.]

In a powerful contribution today, Daniel Johnson said that

“we have not heard why we should have confidence” that the same thing cannot happen again. As he went on to say, “there are fundamental questions”. Indeed there are.

The Lord Advocate’s reassurance has been given, absent a forensic public inquiry into what went wrong, who went wrong and why. That is why it is necessary—in fact, it is imperative—that a public inquiry be set up to investigate and shine a light on what on earth happened, why it happened and on whose authority, and that it be full and comprehensive.

That is why we are persuaded by the Labour amendment. The inquiry should be judge led, but under a judge from a jurisdiction outwith Scotland. The Lord Advocate suggests that it is premature to conclude that it need not be a Scottish judge. I cannot agree. Public confidence is key and, as Rhoda Grant put it, it is imperative that there are no questions around legitimacy and independence, in order that the public are reassured that what we have seen can never happen again.

That cannot and need not wait, potentially for years, for all matters to be tied up. Shona Robison is not correct that an inquiry should await everything being completed. The extraordinary circumstances and costs of the scandal mean that it simply cannot wait—yet the indications are that the Scottish National Party disagrees. The SNP intends, I think, not to support the proposition that the state’s seeking to criminalise innocent individuals with malicious intent is a reason to conduct the fullest possible inquiry—an

“independent, public inquiry led by a judge from a jurisdiction outwith Scotland”.

The public demand to know why malicious prosecutions were pursued in defiance of evidence, as the Murdo Fraser motion craves.

To vote in any way other than in favour of the Fraser motion tonight would, indeed, be “incredible”.