Financial consultant charged as part of Rangers FC case loses appeal against no finding of malicious prosecution

It was found by the Lord Ordinary that reclaimer David Grier was not maliciously prosecuted, in contrast to two other parties, David Whitehouse and Paul Clark, and that the police and the Crown honestly believed there was reasonable and probable cause to indict him.

The appeals were heard in the Inner House of the Court of Session by the Lord President, Lord Carloway, along with Lord Woolman and Lord Pentland. The Dean of Faculty, Dunlop KC, appeared for the pursuer and reclaimer in his case against the Lord Advocate and Smith KC in his case against the Chief Constable. Moynihan KC and Davie KC appeared for the Lord Advocate and Duncan KC for the Chief Constable.

Wrong inferences

In 2010, the pursuer was employed by MCR Business Consulting, which was acquired by the international firm Duff & Phelps in late 2011, in which he became a senior employee. He was engaged by Craig Whyte in connection with his purchase of Rangers FC and instructed to prepare a scheme for the reduction of the club’s debt. The pursuer’s main remit was to “negotiate” the debt, however emails between Mr Whyte and other parties revealed that there were instructions not to disclose anything to him other than what was required for him to deal with Lloyds, Rangers FC’s main creditor.

By the summer of 2013, the police had begun to suspect the pursuer. This was mainly because of his participation in a presentation made to the Independent Committee set up by the club’s board in April 2011, as well as his preparation of a “letter of comfort” provided to US firm Ticketus ostensibly to persuade them to release funds to Mr Whyte’s solicitors.

A view was taken by the Crown that there was a prima facie case against the pursuer, and he appeared on petition on 17 November 2014. An indictment was later prepared, but proceedings against the pursuer were dropped after a judge concluded that his participation at the Committee meeting could not have brought about a practical result and there being no link between the pursuer’s concealment of the Ticketus arrangement from the Committee and the sale of Rangers FC to Mr Whyte’s company Wavetower Ltd.

It was submitted for the pursuer that the Lord Ordinary, in finding there had been no malice in the conduct of the police and the Crown, had drawn the wrong inferences from the primary facts of the case. He had erred in stating that malice was not to be inferred from an absence of probable cause. In relation to the conduct of the police, the motivations of the investigating officer, DS Robertson, was not that of an individual trying to bring a person to justice.

Justified on the evidence

Lord Carloway, delivering the opinion of the court, began by observing: “There is a presumption that a public office holder is doing no more than his duty, and doing it honestly and bona fide. A police report, by its very nature, is bound to be a summary in order to make it reasonably 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.”

He continued: “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.”

Addressing the pursuer’s case compared to others who were successful in establishing malicious prosecution, he said: “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. 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.”

He went on to say: “The Lord Ordinary’s findings in relation to the motives of all those in the prosecution team are amply justified on the evidence. Those in the Crown Office, including Crown counsel, shared the view of the police 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.”

Examining the case against the Chief Constable, Lord Carloway said: “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.”

He concluded: “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.”

The reclaiming motions were therefore refused, as was a minute to hear additional proof also lodged by the pursuer.