Malicious Prosecution Scandal: Lord Advocate must not be allowed to ‘mark his own homework’

Dean of Faculty, Roddy Dunlop QC, said his client David Whitehouse should be permitted to hand over documents he believes will help him in his complaint against Police Scotland and the Crown Office for subjecting him to “a malicious and without probable cause prosecution”.

Mr Whitehouse and Paul Clark received £10.5m each after charges brought against them in 2014 were dropped or dismissed. After being cleared they brought a civil action against the Crown Office and police.

James Wolffe QC has apologised to both men over the malicious prosecution.

Mr Dunlop said the documents may help in a judge-led public inquiry into what happened.

He said: “The background to this case is clear and I’m not going to rehearse it again. But we have an unprecedented situation where Messrs Whitehouse and Clark were, as has been admitted, prosecuted maliciously and without probable cause.

“Mr Whitehouse has a justified concern … that it has already been determined that there is no evidence of criminality. Now, Mr Whitehouse is entitled to raise the query: ‘how can that be’? Misconduct in public office is a crime under the common law of Scotland and one might have thought that a malicious prosecution would at least prima facie qualify as misconduct in public office.

“So this is not something that is ephemeral, made up or illusory. This is a real. It is a real concern on the part of Mr Whitehouse that it is something that is worthy of investigation.

“One is thinking about — as has been put by others in the Scottish parliament — how appropriate is it for the Lord Advocate to mark his own homework, as it were, simply to declare that there has been no criminality when it’s the Crown Office itself that has admitted the malicious prosecution?”

“Mr Whitehouse wants, and in my submission is entitled, to have this explored independently.”

Lord Tyre in the Outer House said he will issue his judgment in the case sometime soon.