Former Rangers consultant loses malicious prosecution case against Crown and Police Scotland

Lord Tyre

About this case:

• Citation:
  [2022] CSOH 2
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Tyre

David Grier, who had been charged with participating in a fraudulent scheme to acquire a controlling share in Rangers and perverting the course of justice, argued that the prosecution against him had been allowed to continue despite the absence of probable cause. Following the withdrawal of some of the charges against him, all charges against the pursuer were dismissed by April 2016.

The case was heard by Lord Tyre. Smith QC appeared for the pursuer, while Duncan QC appeared for the Chief Constable and Moynihan QC and Ross QC for the Lord Advocate.

Errors in analysis

The pursuer was originally arrested at his English home in 2014 and released on bail. Two indictments were later served on him in September and December of 2015 charging him of offences including fraud, money laundering, and carrying on a business with intent to defraud in relation to the acquisition of Rangers FC by a company controlled by Craig Whyte. Mr Whyte was acquitted of the remaining charges against him in 2017.

It was claimed by the pursuer that both the police and the Crown were responsible for the commencement and continuation of a malicious prosecution against him, and that he had been detained and charged without reasonable and probable cause. In his case against the police he contended, among other things, that they had failed to disclose certain aspects of the evidence to the defence and breached legal professional privilege.

In his case against the Crown, the pursuer argued that there had not been a proper case analysis and that the Crown had been complicit in the police actings relating to non-disclosure of parts of the evidence in the case, as well as the obtaining of a warrant to search the offices of a solicitor’s firm, HFW, instructed by the Rangers’ administrators.

Counsel for the Chief Constable submitted that the inferences drawn by the police against the pursuer had been reasonable and according there was reasonable and probable cause for prosecution. While it was acknowledged that there had been errors in analysis of the available evidence, undue emphasis had been placed on these by the pursuer and there had been a substantial body of evidence permitting the inferences drawn by the police.

On behalf of the Lord Advocate it was submitted that the decision to indict was not final and could have been withdrawn at any time if the prosecution team had been of the opinion that the evidence or the law did not support the charges. While some of the charges against the pursuer had been withdrawn, there was a legitimately held belief that there was merit in the others.

No illegitimate motive

In his decision, Lord Tyre said of whether there had been reasonable and probable cause: “When one attempts to identify the ‘key steps’ in which the pursuer was considered by the police to have been involved, there is nothing to be found except participation in the drafting of the letter of comfort and attendance at and participation in the Independent Committee meeting. As neither of those ‘involvements’ was linked to any practical result, I find that there was no objective reasonable and probable cause for the police conclusion that the pursuer had committed the offence of fraud.”

However, in considering whether the police could be considered a “prosecutor”, he said: “The information presented to the Crown in the Standard Prosecution Report was not known or believed by the police to be false or tainted by criminality or other impropriety. Important elements of it were factually incorrect but that is not enough of itself to clothe the police with the designation of prosecutor.”

Finally, addressing whether there was any malice in the police’s conduct, he concluded: “I find that the police had no motive other than to bring an individual perceived to be a criminal to justice. It was emphasised by the court in Whitehouse v Lord Advocate (2020) that malice was not to be inferred from, among other things, incompetence, poor judgment, lack of professionalism or recklessness. Much of the police investigation suffered from these faults but that is not enough to meet the test. No ‘illegitimate or oblique motive’ or deliberate misuse of the process of the court has been demonstrated.”

Lord Tyre therefore held that the pursuer’s case against the Chief Constable had not been made out.

No conclusive evidence

Turning to the case against the Crown, Lord Tyre noted: “As a matter of generality, there is force in the submission on behalf of the Lord Advocate that it is less likely that malice will be present where a decision to prosecute is taken in the bureaucratic setting of the office of a public prosecutor than where the ‘prosecutor’ is a private individual.”

He continued: “Not all of [the Crown’s] views have proved, in the light of subsequent events, to have been sustainable. Some have never been tested in court. However I am satisfied that all of the individuals concerned in the prosecution of the pursuer were subjectively of the view that there was reasonable and probable cause to indict the pursuer for the offences with which he was charged and, separately, that their actings were not motivated by any purpose other than the pursuit of the interests of justice.”

Lord Tyre concluded: “There was no conclusive evidence that the Crown officials knew of, far less were party to, the accessing of privileged material by the police. Mr Keegan (who directed the prosecution team) candidly admitted to errors in connection with the HFW search warrant but there was no evidence of an y improper motive on his part or on the part of any other Crown official.”

It was therefore also concluded that the pursuer had not made out his case of malicious prosecution against the Lord Advocate. As such, decree of absolvitor was pronounced in favour of both defenders.