Kenny MacAskill: Scotland becomes 'rich man's justice' haven on sums paid in failed Rangers case

The amount already paid out to three people in the Rangers case is nearly three times that paid to 19 people in miscarriage of justice compensation in Scotland over ten years.

Now Mr MacAskill, who was justice secretary for seven years from 2007, has called for change after being told by the Solicitor General Ruth Charteris that the high levels of payouts were due to the fact those making the claims were "high earners".

It comes as new questions are raised about why then Lord Advocate James Wolffe accepted there were malicious prosecutions leading to concerns it would set a precedent for further 'eye-watering' taxpayer payouts.

Mr MacAskill says there remains little transparency on the level of compensation tariffs used to reach settlements in the Rangers case.

The Scottish Government has committed to an inquiry into the failings which has already led to an "eye-watering" £33m million in damages and legal fees in the past year, with that figure estimated to potentially soar.

Among the beneficiaries of the malicious prosecutions in the Rangers case were finance experts David Whitehouse and Paul Clark of multi-national consultants Duff and Phelps who were among seven arrested in 2014 after they were appointed administrators of Rangers when it fell into insolvency in 2012.

Ms Charteris said that the settlements in the cases of Mr Whitehouse and Clark were the results of claims under past and future loss of earnings.

"Accordingly, the sums paid in settlement of those cases reflected the circumstances of the pursuers as high-earning individuals. The settlements have been properly evidenced and quantified to compensate the pursuers for the losses they suffered," she said.

Mr Whitehouse and Mr Clark were among those subjected to detention and criminal proceedings in relation to fraud allegations in the wake of Craig Whyte's disastrous purchase of Rangers from Sir David Murray for £1 in May 2011 and its subsequent sale before a judge dismissed all charges.

It came amid recriminations over Mr Whyte’s takeover supported with the mortgaging of future season ticket sales and the club’s 2012 Sevco buyout from administration led by tycoon Charles Green.

Mr Whitehouse and Mr Clark settled out of court with the Crown Office in December to the tune of around £26.6m including costs with the Lord Advocate admitting a malicious prosecution.

Mr Green, whose Sevco consortium took over the club in June, 2012, also won a £6.4m payout after a further malicious prosecution admission.

But there was no similar admission in the case of David Grier, a Duff and Phelps executive, who has been seeking £5m damages from the Lord Advocate and £9m from Police Scotland.

Court of Session judge Lord Tyre ruled that there was "no probable cause" to prosecute and later ruled that Mr Grier had not made out a case that there was a malicious prosecution.

No award was made, in a decision that is to be appealed.

Mr McAskill, the former defence agent who set up Edinburgh-based legal firm Erskine Macaskill who is now deputy leader of the Alba Party has said: "I asked the new Lord Advocate about quantification. There’s still questions to answer.

"It does though indicate the sums are the scale they are due to the fact that they’re high earners.

"But these sums still are gobsmacking given a full admission of liability for a malicious prosecution and where future loss must be limited as a result.

"I think we need clarity. What was paid put and why?

"It does seem that this is rich man’s justice being practiced by the Crown.

"The sums paid out are still extraordinary and way beyond what is normally paid. This does seem to indicate one law and one level of damages for the rich and quite another for everyone else. Almost every victim of crime or an accident and work or injury anywhere else can only look on in awe."

Questions have been raised over the logic of agreeing to earlier malicious prosecutions.

Retired sheriff Douglas Cusine queried why the Lord Advociate agreed to malicious prosecutions but felt that that did not apply to Mr Grier despite arising from the same events.

He believed that Lord Advocate James Woolfe, who stepped down in June, should not have conceded “malice" in the earlier hearings without having that issue decided by a court.

He said it was "worrying" that public funds have been spent but that the Scottish Government has not yet felt the public are entitled to know why such payments were thought to be necessary.

He says a judge-led inquiry into the whole matter should sort out the legal grounds for malicious prosecution and because "there are a large number of matters which, in the public interest, need to be looked at, if only because, in the eyes of some, there has been damage to the reputation of the prosecution service".

He said: "The inquiry needs to be led by someone who was not in the Crown Office when Frank Mulholland was the Lord Advocate, as these prosecutions took place 'on his watch'. That points to the appointment of someone familiar with the Scottish system of prosecution and not an outsider, who would need to be 'brought up to speed; with the inevitable cost to the public purse."

He said the public are now entitled to know "why the prosecution was mounted, who made the decision to prosecute, and what steps will be put in place to ensure that there is no repetition".

Kevin Drummond QC, a former sheriff in Lothian and Borders said Mr Woolfe, in his capacity as head of the prosecution service, "threw the Crown Office under a bus" in announcing the malicious prosecutions which appeared to have been done on the basis of advice from Scottish Government Legal Directorate (SGLD), of which he is also the head.

He said the "significant" effects of the decision have serious implications for the 'dual role' of the Lord Advocate in his capacity as senior legal adviser to the Scottish Government and his separate role as head of the prosecution service.

"There might even be professional issues of conflict of interest arising from the conflicting advice from the two separate arms of Government which he heads," he said.

The Crown Office has already dismissed claims that the Ms Charteris should have nothing more to do with cases surrounding malicious Rangers fraud case prosecutions because of claims of a conflict of interest.

Concerns were raised that Ms Charteris was a key figure in the previous Mr Wolffe's original contention that he should be immune from damages actions - which was rejected in the Court of Session.

It came after Dorothy Bain QC, who became Lord Advocate in June recused herself from any involvement in litigation surrounding the sale of Rangers to Craig Whyte and the Sevco consortium fronted by Charles Green.

But Mr Drummond said: "Just contemplate this the Lord Advocate (Frank Mulholland) prosecuted the Rangers case which Lord Advocate (Wolffe ) described as 'malicious'. Meanwhile, the current Lord Advocate (Bain) appears to have recused herself from future decisions because she had involvement for the defence in the Rangers case, she having handed it over to the Solicitor General (Ruth Charteris QC), who in fact acted for Lord Advocate Wolffe in the civil actions. You couldn't make it up.

"Meantime the taxpayer continues to foot the bills for millions... and it is unknown whether [two remaining compensation cases] is on a malicious basis or not. And all the while the Scottish Government shelters behind a 'sub-judice position to remain silent with an alternative position that an 'inquiry' will be held at some indeterminate time in the future."

Between January 1, 2000 until March 31, 2019 the payouts to 19 claiming miscarriage of justice totalled £12.155m. Just £33,000 of that was paid out in the final two years.

In the five years to the end of 2020, just £376,987 in compensation was paid out to ten people who were wrongly convicted.

Cases involving Mr Green’s associate Imran Ahmad, are still ongoing.

In August, 2020 it was confirmed former Rangers director Imran Ahmad is to receive a public apology from the head of Scotland's prosecution service.

Mr Ahmad will also receive significant damages, and is pursuing an amount also believed to run to £50m, after he was wrongly prosecuted on fraud charges.

He was prosecuted in 2015 over the takeover of the Ibrox club in 2012 but all charges were dropped in 2018.

Duff and Phelps is also seeking £25 million for reputational damage.

The alleged Rangers fraud investigation was launched against a backdrop of the controversial nature of Mr Whyte's nine-months in charge which ended with the club's business going into administration with debts soaring over £100m while the team ended up relegated to the bottom rung of the Scottish football pyramid.

Mr Whyte had 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.