Yesterday’s piece was on balance very well-received. Someone imbued with the SFA’s mindset made a case for Rangers as a force for good in Scottish football. He challenged me to rebut his points and should I do so he would donate £50. I provided a direct quote from Peter Lawwell which unequivocally contradicted his basic premise. As we have come to expect from Rangers-facing individuals, he welched on his debt.
I was planning to write a piece on Rangers welching on their football debts, King’s latest confidence trick and 276 creditors being stiffed with peppercorn returns on the pound, but this will have to remain in development for the time being. A learned friend from Edinburgh has been in touch with some insights that will astonish my readers.
I have often stated that I curate comments on our award-winning site with a light touch. I will publish comments that I don’t agree with but I baulk at comments that are materially wrong. When Ayephone asserted that two former Duff & Phelps employees had settled their case with COPFS and Police Scotland I knew that he was wrong. Giving him the benefit of the doubt I arranged for an intermediary to contact the principals who confirmed that his argument was wide of the mark. However I went the extra yard and contacted a learned friend in Edinburgh. His insights that I will exclusively reveal in this piece will astonish you. I challenge readers to retain the merest vestige of confidence in the Crown Office & Procurator Fiscal Service (COPFS) and Police Scotland. Is it any wonder the latter tried to silence me and threatened me with action from COPFS when I wrote a slew of articles which highlighted their ineptitude. These articles were described as hard hitting. I now realise that I did not hit home hard enough.
The incontrovertible facts are that David Grier is suing Police Scotland in the Sheriff Court for £2million. In the higher courts Paul Clark is suing the Crown and Police Scotland for £5m and David Whitehouse is in for £9m, also against The Crown and Police Scotland. However it is to Mr Whitehouse and The Curious Case of the Missing Missive that I initially wish to turn.
Last year the Scottish Government’s Justice Committee invited submissions for the Inquiry into the role and purpose of the Crown Office and Procurator Fiscal Service.
There were a number of submissions including one from a party that represented the ‘Inalienable Rights of Scottish Badgers’ and in precipitous relief to this flight of fancy there was what can best be described as a somewhat constrained salvo from David Grier. Mr Grier’s remittance to the Inquiry had a light touch.
However there is a submission missing from the Inquiry’s list and I can exclusively reveal that it was from Mr Grier’s colleague, David Whitehouse. My bewigged learned friend in Edinburgh informs me that the Justice Committee, whilst pandering to Scotland’s badgers, ran a mile when they saw Mr Whitehouse’s allegations. Their excuse for not accepting his document was that it was defamatory of certain lawmakers.
The trouble is that everybody on the committee has seen this blistering missive and so have half of the legal profession in Scotland’s capital city. Happily one of the honest lawmakers who regularly reads my articles was only too happy to send me a copy and here it is for your delectation. Please read it carefully as its insights are explosive. I have added bold and occasionally red typeface to draw attention to key takeaways but I have not in any way adulterated the original text:
Submission of David John Whitehouse to the COPFS inquiry
19th October 2016
My involvement with COPFS relates to the prosecution brought in respect of the Rangers case. It is not possible for me to use or disclose any information received from the Crown through the disclosure process, as to do so would breach the provisions of Section 163 of the Criminal Justice and Licensing (Scotland) Act 2010. That constrains what I can say in evidence. I have asked my lawyers to consider whether there is any way in which the court can be asked to authorise me to give evidence on an unconstrained basis. The criminal proceedings remain outstanding against one accused, and reporting restrictions are in place. I can make available to the enquiry detailed, near-verbatim notes of each court hearing which will evidence appalling conduct on the part of the Crown, with the court being routinely misled, but I would need to be reassured that their provision would not breach the existing reporting restrictions.
I have commenced civil proceedings against Police Scotland and COPFS in respect of their conduct in certain aspects of the Rangers case. I will not refer to matters which could compromise that litigation. This litigation will be strictly based upon matters of law which are not covered in this submission. The pleadings in the litigation will contain substantial evidence to support the claim, such evidence is not referred to within these submissions to avoid any prejudice to the civil proceedings. Equally those matters referred to in these submissions are not necessary to support the civil proceedings. The matters referred to in these submissions are matters which I would wish to bring to the attention of the enquiry, which do not have an impact on the current ongoing criminal investigation and prosecution, and do not involve a breach of legislation.
The civil proceedings commenced against COPFS and Police Scotland will expose misconduct on a scale which will be regarded as extreme on any measure.
At the heart of the issue, I believe is a culture of reckless disregard for due process which has had a catastrophic impact upon the public purse, upon the victims of wrongful prosecutions, but most importantly the integrity and effectiveness of COPFS.
I wish to raise five specific issues which should be considered by the enquiry.
Firstly I would like to raise the independence of COPFS.
When I was first arrested, my employer and I, via our legal advisors, had lengthy dealings with Police Scotland and found them to be utterly inept in investigating complex financial crime. By way of background the crime for which I was arrested was reported by me to the Police. To aid the investigation of the crime COPFS and Police Scotland sought to recover material from my employer which was held subject to legal professional privilege. Neither COPFS nor Police Scotland understood the law in relation to legal professional privilege despite it being set out in extensive detailed correspondence.
The police in particular had no expertise nor training in complex economic crime. The lead investigating officer in the Rangers case, Jim Robertson, a Detective Sergeant at the commencement of the enquiry, advised my colleagues and lawyer for my employer that he lacked knowledge of the relevant law, he has no professional training in company law, accountancy or complex financial crime. He had in effect no supervising officer, his allocated line manager Detective Inspector Brian Wright confirmed he was not able to offer meaningful oversight of the investigation as he had been fully employed on the integration of Strathclyde Police with Police Scotland.
The lack of understanding of LLP is a matter which will I will refer back to later in this submission. Despite this obvious lack of technical or professional expertise, COPFS failed to review or challenge the flawed findings of the Police investigation. They failed to provide any legal oversight or supervision of the actions of the Police.
They showed a reckless disregard for the due process which they maintained throughout. COPFS was obliged, by law and by its own Disclosure Manual, to disclose all evidence (in the form of witness statements and productions) to the defence as soon as reasonably practicable, and in any event within 28 days of my first appearance in court (17 November 2014). However, a year later we were still waiting for many witness statements, and over a thousand crown productions. This seriously impacted upon my team’s ability to prepare my defence – all the more difficult when I was facing allegations that were poorly articulated, speculative and untrue.
In June 2015 and later, COPFS blamed delays in disclosure on the need to read the evidence before disclosing it. If true, that would suggest that they sanctioned my arrest, committal and indictment without first considering all of the evidence that had been available to them for many months, and in some cases years. That showed a reckless disregard for their legal obligations and the interest of justice, to say nothing of my own rights.
Notwithstanding my concerns as to the competence of Police Scotland, I was comforted at the time of my arrest by my lawyers reassuring me COPFS would act independently of the Police and would discharge their duty to critically analyse the evidence produced by the police and investigate my defence, that principle of independence having been established and evolved over hundreds of years. This has since proved to be a misconceived view in this case. Whilst it is correct that over hundreds of years this has been a key role of the public prosecutor, in recent years that independence has progressively been eroded. In the case of my investigation prosecution, COPFS and Police Scotland shared the same office in the same building and clearly acted in tandem at all times. The statutory checks and balances of independence were absent.
This lack of independence is a significant factor which has resulted in the catastrophic failure of the Rangers investigation.
The second issue is a lack of regard to conflicts of interest, which in this case were extreme.
The investigating police officer in the Rangers case, Jim Robertson, is an avid Rangers fan. He has openly confirmed to my colleagues, and lawyers for my employer that he is a regular participant and reader of Rangers fan blogs. In one interview, attended by a partner of DLA solicitors, he actually recited a Rangers chant in an attempt to intimidate a witness!
He stated repeatedly that the evidential basis for this action lay in the BBC documentary, “the Men Who Sold The Jerseys”. COPFS were aware of this and failed in their duty to review his conclusions. Media reports suggest the reporting officer had a deep affinity with the football club which if true should have caused deep concern to COPFS.
Public record documents indicate the Procurator Fiscal, Caroline Macleod, was previously married to one of the failed bidders for the club, Colin Macleod, formerly of Harper Macleod solicitors. Mr Macleod threatened to sue the joint administrators for not accepting his bid for the purchase of the club. His bid, submitted on behalf of “the Macleod clan”, was substantially inferior to other bids. Mrs Macleod refused all requests by my defence team for COPFS to investigate the position of the other bidders. The relevance of such enquiries to the charges is obvious.
Senior counsel for the Crown, James Keegan QC, is a known business associate and professional advisor to members and supporters of the Blue Knights who were also failed bidders for the club. The Blue Knights were a collection of individuals who were openly hostile to, and critical of the work of the administrators. Despite the fact that at no stage did they submit a bid capable of acceptance, they were the purchaser of choice for most fan groups.
Mr Keegan was also himself a previously disqualified director. His disqualification was as a result of an application by the then Secretary of State for Trade and Industry who considered Mr Keegan to have acted improperly as a shadow director of an insolvent company. He was disqualified for three years, by consent. He was also engaged in a 10 year dispute with the liquidator of one of his companies, Lowlands Building Services Limited. The liquidator pursued him for fraudulent trading resulting in him ultimately settling the claim by way of a contribution from the directors. In such circumstances it is entirely inappropriate that he should have been instructed to act for COPFS in an action against insolvency practitioners and individuals accused of fraudulent trading and acting as a shadow director.
Mr Keegan applied to become Queens Counsel in 2009. It is evident to me from a review of the terms of the application process for appointment to Queens Counsel, together with a review of the detailed report of Sir William Rae in respect of the 2009 appointment process, that he misled the panel which approved his appointment to Queens Counsel. He could not in my opinion have disclosed his disqualification as a company director, this coupled with the nature of the proceedings brought against him, which on any reading of the rules for applying for silk are a disclosable matter, suggest that Mr Keegan obtained the office on a false pretence. The practical outcome of his engagement in the Rangers case amounts to a fraud.
The final serious conflict of interest relates to the appointment of experts. The COPFS after twice indicting me and my colleagues, finally in 2016 commissioned an expert report from Aver accountants. The COPFS confirmed in court that absent such a report they did not have an evidential basis for the core charges contained within the remaining indictment.
Aver had a material conflict of interest. Aver had previously been party to a commercial arrangement with a business called Kinetic for the provision of insolvency services. Kinetic was acquired by Duff and Phelps, my employer, in 2015. Following the acquisition of the business, the commercial arrangements with Aver were terminated. This will have resulted in a material loss of income to the partners of Aver. It is inconceivable in those circumstances that Aver did not have a material conflict- of- interest in relation to the assignment which they undertook. In any event their report did not support the proposition advanced by COPFS in the indictments.
None of these conflicts were disclosed to the defence teams nor the court.
The third issue relates to a lack of integrity and honesty on the part of COPFS officials.
Until such time as the current criminal proceedings and civil proceedings are concluded it is not possible for me to fully set out the extent of this misconduct. It is, however, relevant to refer to you a decision of Lord Glennie which related to a restraint order which COPFS obtained against me based upon grossly misleading and false information and representations made to the court.
I attach a copy of the judgement in which Lord Glennie considers the Crowns conduct “amounts to a very serious breach of its duty of candour”. He further states “That it seems to me to be not only a failure to aver, but to amount to a clear and very serious breach of the duty of disclosure and candour.” “Where the applicant is the Crown, and is in a position of power, the court must be alert to ensure those powers are not abused”. In the subsequent HFW judgement for costs against the Crown arising from a bill of suspension in respect of a search warrant also unlawfully obtained, (judgement also attached) the court says “Taken in the round, which we are entitled to do, actions of the Third and Fourth (sic) defendants were an abuse of state power.”
The third and fourth defendants were Police Scotland and the Lord Advocate.
There are numerous other examples of where COPFS have misled the court and its officers and have attempted to pervert the course of justice. These matters form part of my civil proceedings and will not therefore be referred to in these submissions. I have transcripts of each court hearing which prove beyond any doubt that those at COPFS engaged in calculated misconduct in an attempt to pervert the course of justice.
My fourth point is a lack of understanding of the law around the issue of legal professional privilege.
This subject has been at the heart of the Rangers case and resulted in an oppression plea being upheld against one accused. The proceedings referred to above by HFW have resulted in very significant costs and damages being awarded against COPFS reported to be £500,000. Despite COPFS apparently have either failed to communicate the correct law to their staff who continue to maintain LPP does not apply in Scotland, or their staff have chosen to ignore the advice. This has led to the latest judgement re Clyde & Co v COPFS, copy attached, where COPFS have again acted oppressively with a disregard for the law.
I have personally been directly consulted by another leading Insolvency Practitioner not connected to my firm, who was also threatened with arrest by officers of COPFS in connection with the Rangers enquiry, as they maintained that this would overcome issues of LPP, astonishingly this was in 2016, after the HFW proceedings.
My final observation is that COPFS chose to disregard their own disclosure manuals and procedures consistently throughout the entirety of the Rangers prosecution. They deliberately and repeatedly concealed exculpatory material in an attempt to pervert the course of justice. The full detail will be established within the civil proceedings and are therefore excluded from these submissions.
I would request the opportunity to provide verbal evidence at the enquiry upon conclusion of the civil and criminal litigation.
My primary submission is that the failings of Crown office are a product of failed leadership which have resulted in a culture of incompetence and lack of candour. This can be rectified by the new Lord Advocate and I wish him well in that task.
It is a cornerstone of any modern society to have a criminal justice system in which the public have trust and confidence, I very much hope the enquiry will go some way to bring about change and to restore public confidence in what is a failed public body.
Defamatory? Only if it’s untrue but from what we know of the behaviour of police and prosecutors in the Rangers fiasco I doubt whether Mr Whitehouse need worry that a writ will be heading his way. Indeed with his £9m lawsuit underway, all the heavy artillery is now under his control and aimed squarely at Edinburgh. I have never met Mr Whitehouse and he does not know that I have this document but I don’t think he will be unhappy that it is to receive a wider audience. I think one can also reasonably assume that the meat of his statement to the spineless Justice Committee is basically the thrust of his damages case against Police and Crown.
I must admit to almost slack-jawed amazement to the revelation that Jim Robertson used a Rangers chant to intimidate a witness. Given his lack of any skill set in economic crime how did this hairy-arsed detective sergeant become a detective inspector during the course of the trial? Were Police Scotland attempting to confer a pretext of gravitas on their bumbling Keystone Cop?
Then there is Jim Keegan’s fraudulent elevation to the position of Queen’s Counsel. It truly beggars belief. I wrote extensively at the time that someone disqualified as a director for three years for fraudulent trading should not be leading a major Crown prosecution. COPFS sent their attack dogs, Police Scotland, to silence me. I paid no heed to the threats that were articulated to my parents.
However even these truly shocking revelations pale somewhat when one considers that Keegan acted for The Blue Knights and that a Procurator Fiscal was formerly married to a party who submitted a bid, under a ‘Macleod Clan’ banner, for the assets of Rangers.
Mr Whitehouse goes even further than laying out these incontrovertible facts. He accuses COPFS of perverting the course of justice.
In Ayephone’s flawed analysis he stated that Grier and Clark wanted Keegan’s and Robertson’s heads on a plate. Mr Whitehouse has not only delivered both heads. He has also had them stuffed.