Lord Advocate entitled to claim legal advice privilege over emails with in-house lawyers on Rangers proceeds of crime case, judge rules 

Correspondence between a senior prosecutor and in-house lawyers at the Crown Office relating to proceeds of crime proceedings against a former administrator of Rangers Football Club “oldco” is protected by “legal advice privilege” and therefore exempt from disclosure, a judge has ruled.

David Whitehouse, who is suing the Lord Advocate James Wolffe QC for £130,000 damages over losses he claims to have suffered as a result of a “restraint order” which was “wrongfully” obtained against the insolvency practitioner, was seeking disclosure of certain documents which would support his case.

However, a judge in the Court of Session upheld the Lord Advocate’s claim that the documents, a printout of a chain of emails between Crown Office officials and an advocate depute relating to an application for recall of the court order, were “exempt” from disclosure and “inadmissible” by virtue of legal advice privilege (LAP).

‘Restraint order’

Lord Brodie heard that the pursuer and his wife were suing the Lord Advocate for a total of £180,000 after the Crown had made an ex parte application to a judge by presenting a petition based on “false” averments, with the result that the judge made a restraint order in terms of section 120 of the Proceeds of Crime Act 2002.

The pursuers offer to prove that the averments in the petition “were entirely unsupported by evidence” and that the defender had evidence which “actively undermined the factual position set out in the petition”.

Mr Whitehouse, who along with former colleague Paul Clark was arrested and charged over his respective role in the insolvency and administration of the former Rangers Football club plc following Craig Whyte’s takeover of the club, was ultimately cleared after the charges against him were dismissed as irrelevant.

The restraint order was subsequently recalled by another judge, who noted that the defender’s failure to aver the full factual position amounted to “a clear and very serious breach of the duty of disclosure and candour” in relation to reasonable cause to believe that the first pursuer had benefited from criminal conduct and fear of dissipation of assets.

The pursuers raised an action for damages alleging that they suffered difficulty in their financial affairs and “loss of reputation, anxiety and distress” as a result of the order being imposed, with a full hearing set for June 2019 to determine whether they should be awarded “just satisfaction”.

In a separate action, Mr Whitehouse and Mr Clark, who was also charged and later cleared of any wrongdoing, are suing the Lord Advocate and the chief constable of Police Scotland for damages for breaches of their human rights.

‘Confidential emails’

In the present action the defender admitted that his conduct in applying for and securing a restraint order against the pursuers was “wrongful”, but the admission of wrongful conduct did not extend to an admission of the pursuers’ averments that they had suffered loss, injury and damage as a result of an infringement of their rights under article 8 of the European Convention on Human Rights.

In preparation for the action the pursuers sought and obtained an order for recovery of documents from the defender relating to the allegations made against Mr Whitehouse, including an exchange of emails between three COPFS officials and an advocate depute “showing or tending to show the basis upon which the Crown determined that an application for a restraint order should be made”.

The documents, which were contained within a sealed envelope, included summaries of facts, statements on the law as it related to restraint orders and evaluations of the facts in the light of the law, which had the appearance of a review of the defender’s position in relation to the forthcoming application for recall of the restraint order.

On behalf of the pursuers, it was argued that the material in the confidential envelope should be disclosed.

It was submitted that there was an “oddity” if privilege attached to material that was at the very heart of the case, which had been put to the judge who recalled the restraint order, that there had at the material time been simply no evidence of a risk of dissipation of proceeds of crime and no evidence that the pursuers had benefited from the first pursuer’s involvement with the club.

However, for the defender it was argued that the Lord Advocate was a “client” and COPFS officials, acting as lawyers, advised and instructed the advocate depute - who appeared in court on behalf of the defender - in relation to the restraint proceedings.

It was submitted that the underlying policy of the rule that communication between client and lawyer was privileged from being compelled as evidence lay in the general interest that parties should be able to communicate candidly with their legal advisers without being concerned that the communication may be made known to their opponents - and that consideration applied to the situation of the defender in the context of proceedings in respect of the proceeds of crime. 

‘Legal advice privilege’

The judge ruled that the Lord Advocate was “entitled” to assert legal advice privilege over the confidential communications.

In a written judgment, Lord Brodie said: “In my opinion there is no reason in principle why the defender cannot assert LAP in relation to communications between an advocate depute and full-time salaried COPFS officials who are admitted solicitors and deployed in roles which require an application of their legal expertise.

“What appears from the emails is an obviously private discussion of the application of the law to the available facts in an instant case, among four persons on whom the defender’s predecessor in office relied for legal advice. 

“That, in my opinion, gives the discussion and therefore the emails by which the discussion was carried out, a confidential character. The then Lord Advocate, as represented by his depute, was the recipient of legal advice, albeit that the advocate depute was familiar with the relevant law and contributed to the discussion.”

He concluded: “In my opinion the defender is entitled to assert LAP in respect of the contents of the sealed envelope. It follows that they should not be made available to the pursuers and, subject to any further procedure, may be returned to the defender.”