Crown lawyers today admitted two former Rangers administrators arrested in the wake of the club’s financial meltdown “should not have been prosecuted at all”.
David Whitehouse and Paul Clark are suing Lord Advocate James Wolffe QC and Police Scotland for more than £20 million for alleged wrongful detention, arrest and prosecution.
In a last minute admission before a 9am Court of Session video link hearing, Gerry Moynihan QC, representing the Crown, conceded they are liable for a damages payout covering the entire prosecution.
Moynihan has said the Crown accepted liability for “malicious prosecution”, but not from before the men first appeared in court on petition in November 2014.
Today the QC said Whitehouse and Clark could seek compensation for the whole prosecution pursued against them, a move likely to increase the size of their cash award considerably.
Moynihan told judge Lord Tyre that the pair “will be compensated” on the basis “that they should not have been prosecuted at all”.
Whitehouse and Clark were the subject of an abortive attempt to prosecute them following the Rangers takeover by Craig Whyte and the club’s subsequent administration and liquidation.
Roddy Dunlop QC, acting for Whitehouse, said the “significance” of this development should “not be missed”.
Dunlop said at the last hearing the Crown admitted there was no “objective probable cause” for pursuing Whitehouse and Clark, but “following the first petition the Crown were activated by malice”.
He said: “There remained a denial of liability for the first petition.”
Dunlop said there had been “a further concession” where the Crown “accepts liability for the consequences of the prosecution of these gentleman entire” and “without any carve out”.
He said Moynihan told him above this shift “literally half an hour ago”.
Dunlop added: “Effectively what my learned friend seems to propose is a situation where the Crown is liable entirely.”
Iain Ferguson QC, acting for Clark, said: “It’s a welcome concession by Mr Moynihan but it does come very late in the day.”
Later Lord Tyre asked Alastair Duncan QC, representing Police Scotland: “Is it still the police position that there was probable cause throughout their involvement?”
Duncan replied that the police position remained the same.
Earlier Duncan said there was “some prospect” that “all that’s left is a fairly short and discrete case against the police in relation to detention.”
Moynihan said only one witness from the Crown side has declined to give a statement and said she wouldn’t consent to being questioned by Whitehouse and Clark’s lawyers.
Lord Tyre set a further hearing for September 29.
Clark and Whitehouse were appointed as joint administrators of Rangers and informed Strathclyde Police that the club’s acquisition by Whyte through a firm, Wavetower, may have involved illegal financial assistance.
But they were detained by police in dawn raids at their homes in 2014 on suspicion of being involved in a “fraudulent scheme and attempt to pervert the course of justice”.
Whitehouse, of Cheshire, and Clark, of Surrey, maintain that at no point was there any justification for their detention or prosecution.
Last week Scotland’s senior law officer admitted former Rangers chief executive Charles Green “should never have been prosecuted” in connection with his takeover of the club.
Green, 67, will receive a public apology from the Lord Advocate and is in line for a massive damages payout.
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