1. Friday 12th January
INNER HOUSE OPPOSITION TO MOTION
P341/17 Pet: The Panel on Takeovers and Mergers for Orders under section955
2. LORD MALCOLM – C Richardson/N Marchant, Clerks
Thursday 18th January 2018
Starred Motion (2 days)
A259/16 David Whitehouse v Chief Constable of the Police Service of Scotland &c
A & W M Urquhart
Ledingham Chalmers LLP
The SMSM were conspicuous by their absence on Friday morning at The Court of Session. This could be predicated on the savage cuts that have been necessary as print copy sales fall off a cliff. One notes how Keith Jackson reached out to James Doleman (amateur blogger with a command of short hand) in an attempt to glean some court insights. Doleman’s approach to funding is far from amateur. Send him £50 and he will eschew reporting restrictions to give you the skinny. One can but hope that Keith made a call or two and that one of his Sports Production Editors, Allan Bryce or Darren Cooney, signed off Keith’s calls as expenses. Did Doleman issue a receipt? Despite the austerity it must be comforting for the Record’s dwindling readership to note that Bryce is on much more than a bare week despite primarily working on sister title The Sunday Mail.
As much as one acknowledges the budgetary constraints at the tabloids, where were our broadcasters? As those who stepped up with their £5.55 2018 subscription and £1.99 for an article know the BBC is in the de facto control of Freemasons. Masonic influence at the BBC is as prevalent as it is in all aspects of local government and public life in Wales. The cabal that run BBC Scotland are cut from the same cloth.
The call has gone out in the lodges that half-season ticket sales are mission critical. Paroxysms of Puffery apropos the Lite trip to Florida are the order of the day. What is verboten is any mention that Lite can only afford loan signings and that the players had to pay their own airfares. There are promises that they will be reimbursed in a BACS transfer at the end of the month. One can but hope for the players in the departure lounge that Johnston does not light the blue touchpaper on RIFC being liquidated. Just the holding company will be affected so no need to factor in 15 points as member club The Rangers will remain intact. A new holding company, minus King and his pariah Cold Shoulder status, is the conclusion that I arrived at in Saturday’s piece. David Low in a tweet concurred with my solution. You read it here first: jj passim A Pre-Pack Putsch.
Is David Murray picking up the tab for Johnston’s putsch or is he using the traditional Ibrox currency of OPM: Other People’s Money. My conservative estimate is that he dipped £35m from Rangers during his tenure. ‘Can I have some more Sir?‘
It fell to another amateur, John Clark, to cover Friday’s petition. Mr Clark by his own admission does not hear too well and does not to my knowledge have any grasp of shorthand but he did discern that the Exective of The Takeover & Mergers Commission, represented by Dentons, have expedited King’s motion of appeal having failed to have it thrown out. A two day hearing on the 28th February/1st March will inexorably dismiss King’s appeal.
Lord Bannatyne’s clerk had the good grace to respond to my missive which bore the fruits of my investigation of King. She pointed out that Bannatyne would form his opinion on the evidence presented in his court. However as Bannatyne lives in the real world he would have known that King would appeal. King, using Gullibillies money, would appeal a coin toss if it went against him. How comforting is it to note that the first tranche of season ticket renewals will find its way to Baron Davidson of Glen Clova and not to Brighton & Hove Albion FC. How embarrassing would it be if Murphy had to revert to his parent club? One would like to think that he would have more class than to blow his nose on a pair of Lite club shorts as was the case with Pena.
King has bought another four months. The question is what carnage will he wreak in that period or will Johnston pull the plug on his reign? King is a slippery fucker but a City source with contacts at Paternoster Square informs me that King has left a very bad taste in their mouths. Some industrial language was used. I’m led to believe the following robust narrative is verbatim:
‘We’re going to crucify that snivelling little cunt.’
Let’s hope they do. I would be happy to provide the nails. But an Inner House Judgment will take three months or more to write up. The question is:
Should the City watchdog have legal redress?
In the real world the TPE have never had to engage in court petitions. However King exists in a brown-brogued parallel universe where the rules of society don’t apply. Just look at how the Supreme Court ruled that Rangers’ use of EBT was an exercise in tax evasion, 17 of their titles were bent, yet the SFA are hell-bent on sweeping it under the carpet and refused to participate in a review. Banana Republic executive officers have more integrity than Regan and the Hun Loving Criminals under his command.
I make no excuse for reproducing one of my most significant exclusives of 2017 as it is the perfect preface to the second matter and David Whitehouse’s claim of £9m and costs.
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.
This submission was never published by COPFS and would not have seen the light of day had my Legal Eagle not remitted it to me. Let’s start with Jim Keegan QC who was suspended for three years for acting as a shadow director of an insolvent company. He also was alleged to have engaged in fraudulent trading. This allegation had legs. Keegan settled out of court. However the most explosive takeaway from this piece, which led to this submission being spiked, was the following:
“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.”
I invite readers to read this paragraph several times. Keegan took silk by fraud and should not have been prosecuting the Crown’s case as his elevation to silk was bogus. Will the Law Society intervene or are they another public body, as is the case with many Scottish institutions ( e.g. Health & Safety Executive) that is asleep at the wheel?
David Whitehouse, a highly respected accountant, chose his words carefully. One should take notice when he asserts that COPFS and Police Scotland work in tandem. There is no oversight of the latter by the former. As a result of this abnegation of their responsibilities, a hairy arsed policeman with no training in law or accountancy was allowed to charge around the world on a global wild goose chase in pursuit of Craig Whyte. Robertson also arranged that COPFS would not consider King’s £25,000 acquisition of information that was hacked from Craig Whyte. There are a minimum of three criminal counts here yet COPFS, acting in tandem with Police Scotland, refuse to act against one of their own. They also will not pursue the Magnificently Maned Adulterer who was the bag man on this reset of stolen intellectual property.
- Is it any wonder that King thinks he can get away with murder at The Establishment Club?