Former lord advocate Frank Mulholland “departed from Crown regulations” when he allegedly ordered an indictment served against a former Rangers administrator, a court has heard.
Ex-Duff & Phelps executive David Grier is suing the Crown over “wrongful arrest” during a probe into alleged wrongdoing at the Ibrox club.
Grier has also raised a separate action against Police Scotland claiming detectives acted unlawfully when he was arrested in 2014.
A virtual hearing for the Court of Session case was heard on Wednesday in front of judge Lord Tyre.
Lord Mulholland, now a sitting judge, was lord advocate at the time of Grier’s arrest while Jim Keegan QC prosecuted businessman Craig Whyte in connection with his purchase of Rangers. Whyte was cleared at the trial.
Andrew Smith QC, acting for Grier, told the hearing: “There appears to be significant evidence that the former lord advocate instructed the indictment be served without a case analysis having been prepared.
“So the former lord advocate, according to evidence available, told an advocate depute, Mr Keegan, to serve the indictment. That’s based on evidence from the senior investigating officer (from Police Scotland) in his statement.”
Mr Smith said it was the Crown’s position that the indictment was served due to a “misunderstanding”.
He added: “It’s said by the Crown that the advocate depute misunderstood the lord advocate’s position on this.
“But according to the information that’s available, the direct instruction came from the former lord advocate to proceed to issue the indictment and not to prepare the case analysis, the precognition.
“If that is correct, we have an extraordinary situation where neither the lord advocate, nor one of his deputes, ever properly issued the instruction to prosecute and have departed from Crown regulations that there is a requirement of preparation of the precognition.”
Mr Smith said he planned to quiz Lord Mulholland about such matters if given the opportunity.
Grier’s case is continuing following admissions made by the Crown in another case brought by businessmen David Whitehouse and Paul Clark.
Prosecutors admitted Whitehouse and Clark were wrongfully arrested and prosecuted and the two men are seeking a total of £20.8 million from the Crown Office and Police Scotland.
Officers suspected Mr Grier, of London, had broken the law during the sale of the Ibrox side and he was charged with fraud and conspiracy. Grier was later cleared of wrongdoing.
Mr Smith previously told the court that he wanted to know why his client was charged with conspiracy when the Crown didn’t have any evidence to show he was guilty of any crime.
