In his recent article, Douglas Mill, in a semi-jocular way, makes an extremely important point about what the Crown has accepted was a malicious prosecution which took place when the now Lord Mulholland was the Lord Advocate, the head of the prosecution system in Scotland. All prosecutions in solemn cases run in the name of the Lord Advocate; all others are in the name of procurators’ fiscal who are answerable to the Lord Advocate. 

Before I became a sheriff, I represented the Law Society of Scotland on firstly the International Union of Latin Notaries (UINL) and then the European Bar Association (CCBE). I was pleased at, and proud of, the esteem with which Scots law and Scots lawyers were held by these bodies. In my view, that malicious prosecution – in the “Rangers case” – will have significantly damaged that reputation, both nationally and internationally, as well as costing tax payers millions: it is thought to be £20 million for two of those involved. The Scottish government’s recently-published draft budget includes proposed cuts to criminal justice and whatever sums have been, or will be paid, will come out of that fund.

I have never been a prosecutor, but a prosecution on indictment cannot be taken unless that has been approved by Crown counsel who will have considered all the available evidence and whether it is in the public interest to prosecute. “Public interest” in that context, is often taken to mean, correctly, that the Crown takes a view, independent of the police, or, again, correctly, that it will prosecute, whether or not that is what the alleged victim wants. I can envisage instances where a prosecutor might be keen to prosecute, either because of the nature of the offence or the record of the supposed perpetrator, or both, but would not do so if there was not a sufficiency of evidence. In other words, the case would be marked “No-pro.” 

In the civil case dealing with the issue of the Lord Advocate’s immunity from civil suit, the Lord President narrates that on 3 September, 2015, there was an application to the court in the Rangers’ case to extend the time limit within which an indictment must be served. There is an internal email dated 10 September, by a procurator-fiscal depute, and the Lord President, after quoting part of it says, “This appeared to recognise that there was an insufficiency [of evidence] against the pursuers [accused, Whitehouse and Clark] at that time.”

The issues raised by the Rangers’ prosecution are important and in order to redress whatever reputational damage there may be, and any public concern, a number of questions need to be addressed. Among these are:

1. Why, if there was no evidence, or an insufficiency of evidence, was the prosecution nevertheless brought.
2. Who authorized the prosecution in the first place? While the advice of Crown counsel, if I recall correctly, is anonymous, there must be a means within the papers to identify which advocate-depute took the decision and whether a law officer – Solicitor-General, or Lord Advocate – was involved and, if so, at what stage.
3. Was there a point at which the decision to prosecute was re-assessed, (which would, again be by Crown counsel) and if so, by whom?”

Given recent press coverage, it seems clear that the media will not let this matter drop without the answers, and until we have them, a cloud may hang over all who were in the Crown Office the time which would be very unfortunate.