A senior judge has opened the door for criminal prosecutions over malicious Rangers fraud prosecutions saying it was in the "interests of justice" to release vital evidence sought in the case.

The decision by Lord Tyre is a victory for former Rangers administrator David Whitehouse who has argued there should be a crime investigation after for the first time in Scottish legal history there were admissions of 'malicious and without probable cause' prosecutions.

Insolvency expert Mr Whitehouse and Paul Clark, of Duff and Phelps, former joint administrators of Rangers when it fell into financial trouble were subjected to detention and criminal proceedings with others in relation to fraud allegations in the wake of businessman Craig Whyte's purchase of Rangers from Sir David Murray for £1 in May 2011 and its subsequent sale before a judge dismissed the charges.

A settlement estimated to be around £24m was agreed "extra-judicially" in their malicious prosecution case against the Lord Advocate and the Chief Constable.

Mr Whitehouse has been seeking the release of documents uncovered in his successful civil case where it was admitted that he was subject to a malicious prosecution.

He believed they detail the unlawfulness of the probe.

Lord Tyre has now sanctioned the release of documents saying that it was in "the interests of justice".

READ MORE: 'Crown Office must face up to scandal': Ex-Rangers administrator pursues criminal action over malicious prosecutions

He added: "As regards use of the documents for the purposes of making a criminal complaint, I accept the pursuer’s submission that it is unnecessary for him to specify at this stage which offence he alleges was or may have been committed by any particular person; that is what would require to be investigated by the police."

He said if Mr Whitehouse regarded it was appropriate to pursue a complaint of criminal conduct "he should be able to do so without being hindered by being unable to use material that came to his attention as a result of being produced in the civil proceedings".


David Whitehouse (left) and Paul Clark (right)

He said that as some events happened in England, it would be in the interests of justice to disclose the information to prosecutors south of the border as well as the Crown Office in Scotland.

But he said that two witnesses who gave statements to the Whitehouse civil case would be allowed seven days to state whether they consider that there is anything stated that amounted to self-incrimination and which ought to be excluded from any permission to use and disclose.

The law states that people who wish to use documents recovered in civil actions need to have the permission of a judge in order for them to be made available in other actions.

The action lodged by Mr Whitehouse sought to use the documents to report any suspected breaches of regulations, misconduct to public authorities or for co-operating in investigations/inquiries.

The legal actions stems from a police probe surrounding Rangers financial position during the last decade and the sale of the club to businessman Craig Whyte.

Prosecutors admitted Mr Whitehouse and Mr Clark were wrongfully arrested and charged. Both men latter received a settlement of £10.5 million each.

Their legal costs - which were thought to total £3 million - were also paid.

Lord Advocate James Wolffe has said he will sanction an examination of any criminality that is uncovered by Mr Whitehouse, who is seeking to change the way that prosecutors and police in Scotland act in investigating those suspected of criminal behaviour after winning a landmark case and compensation for his malicious prosecution.

Scotland's top law officer previously stated he had so far found no evidence of criminal conduct in connection with settled damages cases won by two insolvency experts were unlawfully prosecuted.


Mr Whitehouse and Mr Clark had been been suing Police Scotland and the Lord Advocate fo damages, alleging that they were subjected to wrongful detention, arrest and prosecution during police investigations in 2014 and 2015.

All seven charges against them, alleging conspiracy to defraud and attempting to pervert the course of justice, were later either withdrawn by the Crown or ruled irrelevant by the High Court.

Lawyers for the Lord Advocate have admitted that prosecutors acted unlawfully for a significant amount of time in the prosecution of the two men.

They admitted that the human rights of both Mr Whitehouse and Mr Clark - who were cleared of all wrongdoing - had been breached at times during the investigation.

The Court of Session heard that the businessmen's legal teams had been supplied with papers which show senior Crown Office lawyers speaking about the "need to nail the Duff & Phelps people".

Details of the scandal started emerging four years ago when the Herald revealed that London-based legal firm Holman Fenwick Willan, who were acting for Duff and Phelps, was awarded £500,000 costs after police and prosecutors were found by the High Court in London to have "abused state powers" by carrying out an illegal raid and seizing privileged documents in connection with the failed Rangers fraud case.

Mr Whitehouse told the Herald on Sunday that the money is not enough and that he is determined that "something good" comes out of his ordeal by pursuing change within Scotland's justice system.

The police investigation was launched against a backdrop of the controversial nature of Mr Whyte's nine-months in charge after his 2011 takeover.

He agreed to take on Rangers' financial obligations, which included an £18m bank debt, a potential £72m 'big tax case' bill, a £2.8m "small tax case" liability, £1.7m for stadium repairs, £5m for players and £5m in working capital.

But he controversially helped fund his takeover by setting up a loan in advance from London-based investment firm Ticketus against rights to three to four years of future club season ticket sales in a bid to raise £24 million and pay off bank debt as part of a share purchase agreement with Sir David Murray.

Mr Whyte ended up being the last man standing in the fraud conspiracy case and was acquitted of taking over the club by fraud at the end of a seven-week trial four years ago.

The result of Mr Whitehouse and Mr Clark's legal pursuit to clear their names has meant that the Lord Advocate no longer has absolute immunity from being pursued in the civil courts for malicious prosecution. It marks a major change in an area of the law that has remained largely untouched for almost sixty years.