Rangers administrators’ damages claims against Lord Advocate for ‘wrongful prosecution’ to proceed to full hearing

One of the former administrators of Rangers Football Club Plc who is suing the Chief Constable of Police Scotland and the Lord Advocate over his alleged “wrongful arrest, detention and prosecution” has been granted a full hearing in his £9 million damages claim.

 

A judge in the Court of Session dismissed the claim based on common law after it was argued that the Lord Advocate was “immune” from civil action, but held that there remained a case to answer in relation to the claims based on breaches of the European Convention on Human Rights (ECHR).

 

 

Lord Malcolm heard that the pursuer David Whitehouse and his former colleague Paul Clark from Duff & Phelps faced criminal proceedings following Craig Whyte’s takeover of the club from Sir David Murray in 2011 and its subsequent sale to Charles Green in 2012.

 

The purser was detained on two occasions following dawn raids at his home in Cheshire in November 2014 and September 2015 before being arrested and charged.

 

He was accused of being involved in a “fraudulent scheme” and “attempting to pervert the course of justice” and originally faced a total of seven charges before all the charges on the indictment against him were eventually dismissed.

 

He has raised an action against first, the Chief Constable of Police Scotland, second, the Procurator Fiscal For Specialist Casework in the Crown Office, and third, the Lord Advocate, seeking payment by the defenders, jointly and severally or severally, of £9 million by way of damages for alleged wrongful detention, arrest and prosecution based on common law fault.

 

The pursuer also claimed that his rights under articles 5 and 8 of the ECHR had been breached.

 

A similar action has been raised by Mr Whitehouse’s co-administrator, Mr Clark, who was seeking £5 million in damages.

 

 

On behalf of the pursuer, it was averred that there was “no justification” for his detention, committal, prosecution or indictment. 

 

The second and third defenders never had a sufficient evidential basis for any of the charges directed against him.

 

In terms of the article 5 claim, it was stated that the actings of the defenders was a “disproportionate interference” with the pursuer’s liberty.

 

As to the article 8 claim, the pursuer claimed that his private life was interfered with by his detention and subsequent bail conditions, which interference was “neither necessary nor in accordance with the law”. 

 

As a result of the defenders’ actions he was unable to practice as an insolvency practitioner and suffered “financial and reputational loss”.

 

 

However, the Crown claimed that the Lord Advocate, and all acting on his behalf, enjoyed “absolute immunity from civil suit at common law”, which was said to cover all acts done in the investigation, preparation and conduct of criminal proceedings.

 

It was accepted that the article 5 case was not subject to the immunity defence and therefore should proceed to a proof before answer.

 

But while there was also no immunity in respect of the article 8 claim, it was argued that the “right to respect for private and family life” was not engaged.

 

It was submitted that if criminalisation of conduct was not a breach of article 8, then article 8 was not engaged; were it otherwise any acquitted person could make a claim for an infringement of his rights under article 8. 

 

 

The judge upheld that Crown’s plea of “absolute privilege” at common law, but rejected the submission that the article 8 claim should be dismissed.

 

In a written opinion, Lord Malcolm said: “The pursuer, and separately his former co-administrator of Rangers Football Club, are claiming damages from those said to be responsible for allegedly wrongful detentions, arrests, and prosecutions. The claims are brought at common law and in terms of articles 5 and 8 of ECHR. 

 

“The Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof is rejected. However his plea of absolute immunity in respect of the common law claims is upheld. It follows that the actions against him shall proceed in respect of only the ECHR claims.“

 

He added: “So far as Mr Whitehouse’s claim against the police is concerned, the court is not prepared to uphold his submission that it can be decided on the pleadings that he need not prove malicious conduct on their part. 

 

“The result is that the pursuer’s claim against the chief constable, and the defences to it, shall proceed to a proof before answer (as was agreed by the respective parties in Mr Clark’s action).”