Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DAVID HENRY GRIER AGAINST THE CHIEF CONSTABLE, POLICE SCOTLAND [2020] ScotCS CSOH_33 (20 December 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_33.html
Cite as: 2020 GWD 13-188, [2020] ScotCS CSOH_33, 2020 SCLR 619, [2020] CSOH 33

[New search] [Printable PDF version] [Help]

Page 1 ⇓

OUTER HOUSE, COURT OF SESSION

[2020] CSOH 33

CA86/19

OPINION OF LORD BANNATYNE

In the cause

DAVID HENRY GRIER

against

THE CHIEF CONSTABLE, POLICE SCOTLAND

Pursuer

Defender

Pursuer: Smith QC, MacLeod; Kennedys Scotland

Defender: Duncan QC, Lawrie; Ledingham Chalmers LLP

20 December 2019

Introduction

[1] The pursuer has raised an action against the Chief Constable of Police Scotland. He

seeks payment by the defender of £2,000,000 as damages based on allegations of unlawful and

malicious conduct of the defender’s agents resulting in alleged wrongful detention, arrest and

prosecution.

[2] The case called before me in respect of a motion by the pursuer seeking summary

decree.

[3] In particular the pursuer moved the court to sustain his first plea in law and to repel

the defender’s pleas in law other than the fifth plea in law. In practical terms the pursuer

Page 2 ⇓

sought decree in respect of the merits of the action reserving only the issue of quantum of

damages for proof.

The background circumstances of the present action

[4] At the outset it is necessary to set out the background to and the circumstances of the

present action.

[5] The pleadings extend to 119 pages together with a Scott schedule of 64 pages.

[6] The following accordingly requires to be understood as no more than a summary of a

detailed and complex picture.

[7] The pursuer is a consultant experienced in business restructuring. In December 2010

and following thereon he was an employee of MCR Business Consulting. In October 2011

MCR was purchased by Duff & Phelps.

[8] In late 2010 CW, a businessman expressed interest in acquiring Rangers Football Club

(“the Club”). After various discussions on 14 March 2011 CW engaged the pursuer to assist in

negotiations with the Club’s lenders, Lloyds Bank. The pursuer became an advisor to CW and

continued in this role following the purchase of MCR by Duff & Phelps.

[9] CW through an acquisition vehicle, Wavetower Limited, entered into an agreement for

the purchase of a controlling shareholding in the Club and was appointed as a director. The

Club struggled to meet its liabilities. On 14 February 2012 it entered administration. Joint

administrators were appointed. Later that month the joint administrators met with senior

officers from Strathclyde Police and informed them that preliminary investigations suggested

that the acquisition of the Club by Wavetower may have involved illegal financial assistance.

[10] Thereafter a number of individuals and their actions were investigated by the

defender’s officers. Among those investigated was the pursuer. The chief investigating officer

Page 3 ⇓

throughout was a Detective Chief Inspector R. He was principally assisted by a

Detective Inspector O.

[11] Following upon these investigations on Friday 14 November 2014 the pursuer was

arrested at his home in England by officers of Police Scotland. He was transported by a police

car to Helen Street Police Office in Glasgow arriving late in the afternoon. Due to the lateness

of the hour it was not possible for the pursuer to be taken to court and processed for release on

bail. He accordingly had to spend the entire weekend in police custody before appearing on

petition at Glasgow Sheriff Court on the following Monday, 17 November 2014 along with

others who had also been arrested. A number of requests were made of the duty inspector

that he be released, all of which requests were refused.

[12] A petition was served upon the pursuer. The petition served upon him contained

allegations that he (with others)

“did prepare a letter addressed to Liberty Capital, the acquisition vehicle used by CW

dated 7 April 2011 providing advice on matters related to the acquisition of the

controlling shareholding in the knowledge that the said letter would be produced by

CW to Ticketus and used to induce Ticketus to release £18,161,500 to… (an) account

controlled by GW”. para (i)(vi)

[13] On 15 September 2015 an indictment was served upon the pursuer (and others)

requiring his attendance at the High Court in Glasgow on 16 October 2015. A second

indictment was served upon the pursuer on 2 December 2015. The final version of the

indictment against the pursuer (following radical amendment by the Crown as a result of legal

argument at various continued preliminary hearings) alleged inter alia

“(c) in respect of the Independent Committee of the Rangers Football Club PLC

(‘Club’) knowing that an Independent Committee comprising AJ, DM, MB, JG

and JM all c/o Police Service of Scotland, Glasgow and all directors of the Club

had been set up by the board of the Club in March 2010 with powers inter alia

to recommend acceptance or rejection of any proposed offer to acquire the Club

or any of its businesses or assets assessed on the merits of the Club, its

shareholders and all other stakeholders in the Club including the supporters,

Page 4 ⇓

you CW, GW and David Henry Grier did by yourselves and by the hands of

your authorised agents, employees and representatives on various occasions

between 3 December, 2010 and 6 May, 2011 both dates inclusive,

(ii) You CW, GW and David Henry Grier did on 24 April, 2011, at a meeting

of the Independent Committee at Murray Park, wilfully conceal from

the Independent Committee the ticket purchase agreement with

Ticketus hereinafter described in paragraph (d) in respect of sales of

season tickets for seasons 2011-12, 2012-13 and 2013-14 being assets of

the Club normally available for public sales, induce: the Independent

Committee to believe that there was no requirement to arrange

ring-fenced accounts for season ticket sales for the forthcoming season

of 2011-12 knowing that sales of season tickets for seasons 2011-12,

2012-13 and 2013-14 had been agreed with Ticketus aforesaid and this

you did to prevent the Independent Committee from discovering same;

knowing that the Independent Committee had concerns regarding the

source of funding by the acquisition of the Club the ability to provide

cash to invest in the Club for players’ acquisition, the ability to meet the

liabilities of the Club and the ability to provide working capital to fund

future operations of the Club, you did repeatedly make false

representations and pretences to the Independent Committee to the

effect that they would be provided with sufficient evidence of same,

knowing that you did not have sufficient evidence of same and had no

intention of providing sufficient evidence of same.”

[14] The pursuer sought to challenge the allegations contained in the final version of the

indictment, and the matter proceeded to a preliminary hearing. The Lord Ordinary

considered preliminary pleas based on allegations of relevancy, competency and oppression.

Following the hearing of evidence and hearing legal submissions, the Crown sought to amend

the indictment by deleting certain words. The Lord Ordinary agreed with the submissions on

behalf of the pursuer and around 15 April 2016 he dismissed the charges against the pursuer.

[15] In the course of oral argument at the summary decree motion it was contended on

behalf of the pursuer that during the prosecution the charge of fraud which the pursuer faced

consisted of an allegation that he conspired with others to mislead the Independent

Committee; and then he conspired to prepare a letter of comfort to Ticketus who, as a result,

released funds for the purchase of the Club. Given the foregoing contention it is convenient at

Page 5 ⇓

this stage in order to understand the detailed argument advanced at the summary decree

motion to set out the background as to the funding of the Club by Ticketus and the creation

and nature of the Independent Committee.

[16] In respect of the Ticketus funds the Club had operated, for some years, a system

whereby a third party (Ticketus) had provided finance in advance of payments received by

them for the sale of season tickets. Part of the allegations against the pursuer which subsisted

until he was prosecuted related to the question of whether the pursuer was aware that it had

been represented to others, being Murray Group, the Independent Committee and Lloyds

Bank that funds which were in reality Ticketus advances, were in fact money advanced

personally by CW. Such representations would give a misleading impression of the liquidity

of CW and a misleading impression of the ultimate liquidity of Rangers.

[17] In respect of the Independent Committee, on 24 April 2011, the pursuer (along with

CW and others) attended a meeting of the Independent Committee. The Independent

Committee was a public relations creature which had no statutory or other formal status. It

comprised notable individuals from the world of football. Its purpose was in order for

supporters to feel that they had individuals who would provide their blessing to any deal.

However, the Committee could not stop, or influence the transaction in any way whatsoever.

There were no “negotiations” with the Committee and nothing that was said at any meeting

by anyone could have influenced the outcome materially or otherwise. It was for these

reasons that the Lord Ordinary at the preliminary hearing, in the criminal case dismissed the

charges against the pursuer.

Page 6 ⇓

Summary decrees: the legal framework

[18] The following propositions in respect to the approach to summary decree motions

were agreed by parties to set out the legal framework in respect of which the motion before

the court required to be considered:

(a) The degree of satisfaction that is the tipping point for the court is less than

certainty, but more than probability;

(b) The court can take into account documents other than the pleadings;

on what is actually a matter for proof, it is in a quest to see if there is a genuine

defence and not merely a relevant defence pled. Accordingly, a defender might

state a defence, but if the facts appear to the contrary then the court can grant

summary decree. Accordingly, the reverse of Jamieson v Jamieson [1952] SC

(HL) 44, as it were, does not apply.

(d) Summary decree is not limited to those cases where there is no defence stated

at all or the stated defence is plainly irrelevant; the court is not barred from

pronouncing decree simply because the defender makes unspecific assertions

which, if established, would provide a defence where the defender does not

offer to prove it.

The submissions on behalf of the pursuer

[19] In the course of his submissions Mr Smith repeatedly referred to Detective Chief

Inspector R and it was in respect of this particular officer that nearly all of Mr Smith’s

criticisms were focused. As I earlier noted he was the senior investigating officer throughout

most of the investigations and therefore the police officer in charge of the investigations

Page 7 ⇓

surrounding the acquisition of the Club by CW. His deputy in this investigation was

Detective Inspector O. In particular Detective Chief Inspector R was the police officer who

had prepared a number of reports for the Crown which were referred to by Mr Smith in the

course of his submissions.

[20] In summary the core of Mr Smith’s submission can be set out in the following

propositions:

(a) The pursuer faced a charge of fraud. At all stages, that charge consisted of an

allegation that he conspired with others to mislead the Independent Committee

(the “IC”); and that he conspired to prepare a letter of comfort to Ticketus who,

as a result, released funds for the purchase of the Club.

(b) R represented to the Crown that the pursuer had actively committed each

element narrated above.

(d) R has only recently admitted that in each respect he was in “error”.

(e) He offers no explanation as to how that “error” could have occurred.

(f) In the absence of evidence for an allegation being made that leads to

prosecution, it is presumed to be malicious.

(g) Until a time after the pursuer was arrested, charged and appeared upon

indictment, the Crown did not have available to them the original evidence

upon which they could make an independent assessment of the guilt or

innocence of the pursuer.

(h) It is presumed that the Crown relied upon the communications from R as being

true and accurate. In fact, they were false. R, and hence the defender,

Page 8 ⇓

accordingly are responsible for the wrongs committed by the false reporting to

the Crown.

In addition Mr Smith relied on various other aspects of Detective Chief Inspector R’s

behaviour as supporting his allegation of malice on the part of this officer.

[21] Mr Smith commenced his detailed argument by considering the legal framework of the

pursuer’s action and started by posing this question: who is the “prosecutor”?

[22] His general position was that a “prosecutor” can be anyone who promotes the

prosecution: for example a complainer, or the police or any other private individual if that

person is motivated by malice. In support of this submission Mr Smith referred to

paragraph 452 of the Stair Encyclopaedia where the following is said:

“A person who gives information to the police or prosecuting agencies, as a result of

which the latter raise criminal proceedings, is not responsible for the conduct of these

proceedings and cannot be held liable for loss caused thereby due, for example, to a

flaw in the procedure. Such a person can, however, sometimes be held liable for

wrongfully procuring a prosecution if the information given is false. The matter has

been put thus:

‘When it comes to the knowledge of any one that a crime has been committed, a duty is

laid on that person, as a citizen of the country, to state to the authorities what he knows

respecting the commission of their crime, and if he states only what he knows and

honestly believes he cannot be subjected to an action of damages merely because it

turns out that the person whom he has given the information is, after all, not guilty of

the crime. It is necessary for anyone raising an action of damages against a person

who is given such information to aver that the information was given maliciously and

without probable cause.’”

[23] Accordingly Mr Smith submitted that a person providing information to the

prosecuting authorities can competently be sued for malicious prosecution if malice and want

of probable cause are shown.

[24] Mr Smith then turned to consider in more detail the issues of want of reasonable and

probable cause and malice. He did so under reference to an English Court of Appeal decision

in Rees and others v Commissioner of Police for the Metropolis (2018) EWCA Civ 1587. He first

Page 9 ⇓

submitted that there is, and can be no material difference between the principles applicable in

England and Wales or indeed any other common law jurisdiction than that in Scotland.

Procedures may differ but the substance is identical. He asked this question: why would

Scotland differ from any other common law jurisdiction?

[25] Mr Smith in his consideration of this case began by setting out what the Court of

Appeal by approving what the trial judge had said were the five essential elements of a

malicious prosecution claim:

(i) It was a prosecution that caused the plaintiff damage

(ii) The prosecution terminated in his favour

(iii) The defendant instituted or continued the prosecution

(iv) There was a “want of reasonable and probable cause”

(v) The defender acted with “malice”

[26] Accordingly assuming that the defender’s officers were the prosecutors in the present

case then the only disputed elements were at (iv) and (v).

[27] Mr Smith then turned to consider the meaning of want of reasonable and probable

cause and submitted that if there is an absence of evidence to support an allegation then there

is by definition a want of reasonable and probable cause. At paragraph 73 in Rees McCoombe

LJ cited with approval the observations of the trial judge, in adopting observations of

Lord Denning in an earlier authority. Lord Denning said:

“Whereas in truth he is only to be satisfied that there is a proper cause to lay before the

court or in the words of Lord Mansfield, ‘that there is a probable cause’ to bring the

(accused) ‘to a fair and impartial trial’”

[28] The matter of want of reasonable and probable cause was summarised helpfully by

McCoombe LJ in Rees in the following manner:

Page 10 ⇓

“75. In my judgment, it is entirely clear that the case presented by DCS Cook to the

CPS was not a ‘proper’ one, nor was it ‘fit to be tried’. It included (and strongly

relied upon) evidence, on the judge’s findings, procured by DCS Cook’s own

acts which were intended by him to pervert the course of justice. There is no

evidence that he gave any thought to the question whether there was a fit or

proper case to be laid before the court absent that tainted evidence. In such

circumstances, I cannot see that DCS Cook could be found to have honestly

believed that there was a ‘proper’ case to lay before a court. Indeed, as the

appellants forcefully pointed out to us, Mr Johnson QC presented no specific

argument to us on this aspect of the case, other than (inferentially) by support

for the judge’s finding that DCS Cook believed that the case (without Eaton)

provided ‘reasonable and probable cause’ – as to which, as I say, there was no

evidence whatsoever.

76. For these reasons, while I cannot disagree with the judge that there may have

been objectively sufficient evidence (absent Eaton) to provide reasonable and

probable cause to prosecute, I find it impossible to say that, as a prosecutor,

DCS Cook believed that he had reasonable and probable cause to lay murder

charges against these appellants.”

[29] Mr Smith then turned to place the above analysis in the context of the present case and

submitted: it is plain that an absence of any evidence to support an allegation, which he

contended appeared now to be accepted by the defender, renders it obvious that there can be

no “reasonable” cause, in that there is no reason for making the statement, and thus no

“probable“ cause. His core submission was that in the absence of any explanation for the

admitted errors by Detective Chief Inspector R, there is clear want of reasonable and probable

cause. In respect to the issue of malice Mr Smith maintained that if there is an absence of

reasonable and probable cause, then that establishes that there was malice on the part of the

police. He sought to put the matter in this way: if a police officer knows that there is no

evidence for an allegation, or it is presumed that he must have known, then he cannot in

making the report of the crime have been acting in accordance with his duty. He must have

been deliberately acting maliciously, malice being acting for an improper motive. It does not

of course require actual evincing of malice and ill will.

Page 11 ⇓

[30] Mr Smith then moved to consider certain further authorities which he contended

supported the position he was advancing, first in Quinn v Leathern [1901] AC 495 at 524

Lord Brompton stated the following:

“Of course, if when he instituted criminal proceedings the prosecutor knew he had no

reasonable grounds for the steps he was taking, the definition of malice given by

Bayley J in Bromage v Prosser would distinctly apply, and no further proof of malice

would be required…”

[31] In Bromage and another v Prosser (1825) 4B and C 247 Bayley J stated:

“The law infers malice from the probable result, viz the injury to the defendant”

and later Bayley J observed:

“…malice in common acceptation means ill will against a person but in its legal sense it

means a wrongful act done intentionally, without just cause or excuse. If I give a

perfect stranger a blow likely to produce death, I do it of malice, because I do it

intentionally and without just cause or excuse”

[32] Returning to Rees at paragraph 81 Mr Smith accepted that the fair point is made that a

desire to bring a criminal to justice is the job of the police. However, it is the desire to bring

him to justice that is important, and it is not bringing him to justice if a police officer

deliberately withholds evidence, or misrepresents the position. By so doing, he has deprived

the prosecution and the fact finder, namely: a jury or a judge of the necessary material to hold

a fair and just trial. By syllogism if a police officer is unable to offer an innocent explanation

for an error, then it is to be presumed that he acted for improper motive. Even if the officer

himself believes in guilt, it is not enough to excuse his behaviour: that is clear from a

consideration of the Rees case.

[33] Lastly in paragraph 85 of Rees reference is made to the observations of

Lord Toulson JSC, in Willers v Joyce [2016] UKSC 43 and in particular paragraph 55. His

observations included:

Page 12 ⇓

“As applied to malicious prosecution, it requires the claimant to prove that the

defendant deliberately misused the process of the court. The most obvious case is

where the claimant can prove that the defendant brought the proceedings in the

knowledge that they were without foundation… But the authorities show that there

may be other instances of abuse. A person, for example may be indifferent as to

whether the allegation is supportable and may bring the proceedings, not for the bona

fide purpose of trying that issue, but to secure some extraneous benefit to which he has

no colour of a right. The critical feature which has to be provided is that the

proceedings instituted by the defendant were not of bona fide use of the court’s

process. In the Crawford case Mr Delessio knew that there was no proper basis for

making allegations of fraud against Mr Paterson, but he did so in order to destroy

Mr Paterson’s business and reputation.”

[34] Mr Smith took the following propositions from the above legal analysis:

(a) The person who promotes the prosecution by providing information can

indeed be a prosecutor. The police can, if they know that their representations

will be relied upon, be taken to be the prosecutors.

(b) If there is an absence of evidence for a statement made, it is taken to be without

reasonable and probable cause.

further proof.

(d) The misreporting of crucial facts cannot be excused by an honest belief in guilt.

[35] Mr Smith then turned to examine the facts and circumstances of the present case in

terms of the above legal framework. He first turned to look at the petition and the indictments

which the pursuer had faced. He described the charges contained therein as lengthy and

opaque, however, he summarised the charges in the petition as follows:

1. The pursuer conspired with others to pretend to Sir David Murray that CW had

sufficient of his own funds to purchase the Club;

Page 13 ⇓

2. On 24 April 2011 the pursuer attended a meeting of the Independent

Committee and at the meeting he “did pretend” that CW had sufficient of his

own funds to effect the purchase;

3. That along with others a letter of 7 April 2011 was prepared and submitted (in

some unspecified way) to Ticketus, and by that letter (referred to elsewhere as a

letter of comfort) whereby Ticketus were induced to enter into a funding

arrangement;

4. That the pursuer sought to pervert the course of justice.

[36] Throughout his submissions Mr Smith referred to the charges at 2 and 3 above as

respectively the Independent Committee lie and the letter of comfort lie.

[37] In respect to these two lies he submitted the truth of the matter was that the pursuer

did not make any representation to the Independent Committee at all; and although in

respect of the comfort lie he was in the course of preparing a letter to assist CW, on receipt, the

letter was considered “disappointing” by PAB a witness and GW another accused who

suggested certain changes which were adopted in a later email. The final version of the email

was sent by PAB to Ticketus at midnight. It was limited to expressing views about the tax

liability at the Club and nothing to do with Ticketus funding. Indeed the funds were released

by Ticketus several hours before the email was completed. Notwithstanding these obvious

points, unless the Crown had a basis for thinking that there was a misrepresentation to the

Independent Committee; and there was a letter prepared by the pursuer which induced

Ticketus to release the funds, their charge could not stand. There could be nothing left in the

indictment or petition.

[38] So in the context of the law on malicious prosecution as developed above Mr Smith

posed what he said was the critical question: Did Detective Chief Inspector R tell the Crown

Page 14 ⇓

that the pursuer had done these things? Or put another way did he provide the information

to the Crown upon which the charges were brought and thus became the prosecutor?

[39] He argued that the first matter in considering these questions is to look at whether

there were clear and obvious lines of inquiry regarding each of the Independent Committee

and comfort lies that are alleged and to look at the approach of Detective Chief Inspector R to

these lines of inquiry.

[40] Thus: in respect of the allegation of misleading the Independent Committee, the

obvious source of information that the pursuer misrepresented something to the Independent

Committee would be to interview those present at the Independent Committee meeting; and

to seek to recover minutes of the meeting if they exist, or other written records of what took

place. In fact, it is known that Detective Chief Inspector R and Detective Inspector O did

interview Alastair Johnstone, the Chairman of the Independent Committee. Indeed they

travelled to Ohio, USA to do so. His statement reveals nothing about any misrepresentation

by the pursuer. So either he was not asked, or was asked and replied in the negative. Equally,

the minutes of the Independent Committee meeting do not reveal any suggestion that the

pursuer represented anything to the Independent Committee regarding the source of funds.

Notes by Mr Johnstone were also recovered by Detective Chief Inspector R which again said

nothing about any involvement of the pursuer.

[41] In respect of the comfort letter allegations, the obvious line of inquiry would have been

to Ticketus. Did they receive a letter of comfort? Who prepared it? And did it induce them to

release the funds? It is known that Ticketus officials were not asked any of these questions,

and indeed the timing of the release of funds with the finalising of the emails indicates that it

would be impossible for them to have induced the release, as the email was completed after

the funds were released.

Page 15 ⇓

[42] Turning to what was represented by Detective Chief Inspector R in respect of the said

two elements of the charge Mr Smith commenced by contending that an examination of the

Scott schedule showed that Detective Chief Inspector R’s position had changed materially

over time. Thus in respect of the Independent Committee lie the initial response by the

defender to the allegation that Detective Chief Inspector R had reported to the Crown that the

pursuer had misrepresented to the Independent Committee, was in effect “that is not what R

said. All he said was that the pursuer had reported to R that he had made certain

representations to the Independent Committee.” As a matter of fact, the pursuer’s witness

statement says no such thing, but the defender was trying to take advantage of the clumsy

language of Detective Chief Inspector R to seek to create an ambiguity. There was Mr Smith

submitted no ambiguity. Thus the defender’s position was in short “no he did not say what

you allege”.

[43] In light of the response set out above the pursuer adjusted the Scott schedule and

pointed out that in a different and subsequent report, Detective Chief Inspector R stated in

clear and unambiguous terms to the Crown “David Grier in particular presented a version of

this document on and around 24 April 2011 to the Rangers Directors and Murray Group

personnel”. There was no evidence that the pursuer had done so: not from Alastair Johnstone

or the minutes of the meeting or anything else. Mr Smith emphasised that the allegation made

was of a very particular nature, namely: that the pursuer presented a document which was

false. For that there was no evidence. In that the defender in these circumstances could not

continue with his position as stated in the Scott schedule shortly before a proof diet which had

been fixed in the sheriff court the following change was made to his response in this section of

the Scott schedule:

Page 16 ⇓

“As stated in DCI R’s supplementary statement, para 20: insofar as my reference in the

19 June 2014 Subject Sheet that ‘David Grier in particular presented a version of this

document’ could be construed as a representation that Mr Grier actually either

presented the amended cash flow to the Independent Committee or presented on that

document to the Independent Committee, then I accept that as an error.”

[44] Mr Smith commented as follows in relation to the above change in position: there is

now an admission by Detective Chief Inspector R that what he told the Crown in respect of the

Independent Committee lie was an “error”; however, no explanation is offered on behalf of

the defender as to how this “error” could have been made. Accordingly, the admission in

essence amounts to this: there was no evidence upon which to base the report to the Crown,

which formed a charge against the pursuer; the defender’s position commenced with what

Mr Smith described as obfuscation in the first answer to the schedule.

[45] Mr Smith took from the above that absent of any explanation as to why the position in

the Scott schedule was altered after such a length of time that it was a fair assumption that

Detective Chief Inspector R had in the course of this litigation been dishonest when the

answer to paragraph 1 in the Scott schedule was prepared. If he was dishonest that was

indicative of a pre-existing and a continuing malice.

[46] In respect to the comfort lie Mr Smith’s general submission was that the defender’s

response in the Scott schedule to the issues surrounding this was once again an exercise in

obfuscation. This matter is dealt with from paragraph 16 of the Scott schedule onwards. He

submitted that the simple point the pursuer was seeking confirmation of was that the funds

were transferred before the email was completed by the pursuer and sent to CW.

Accordingly, that letter could not have induced a practical result by the recipient. Yet, he

submitted, that rather simple series of propositions became lost in the midst of what he

described as a failure to address the point. He described for example the answer to

paragraph 17 of the Scott schedule as incomprehensible.

Page 17 ⇓

[47] Moving on in the Scott schedule paragraph 18 sets out the simple proposition, that in

the Standard Prosecution Report (“SPR”) [this is a document provided by the police to the

Crown, setting out information and recommending whether an individual should be

prosecuted and if so what is the evidence] Detective Chief Inspector R stated that the funds

were released after the letter was received by Ticketus, which is false. That is admitted.

Thereafter there follows a very long explanation which Mr Smith submitted added nothing

but confusion and irrelevance. Then in paragraph 20 of the Scott schedule it is stated that R

reported in the SPR that the funds were released after the letter was sent to Ticketus. That was

initially denied, but later admitted. The explanation and the answer to 20, which again came

extremely late in the day, appear to accept that the statement in the SPR was an error by

Detective Chief Inspector R.

[48] From the foregoing Mr Smith submitted that a similar series of propositions to that

which he had propounded in relation to the Independent Committee lie could be made.

(a) Detective Chief Inspector R now admits in his witness statement that what he

told the Crown in respect of the letter of comfort being a false pretence which

provoked a practical result was an “error”.

(b) Neither Detective Chief Inspector R nor the defender offers any explanation as

to how the “error” could have been made. Accordingly, once more,

Detective Chief Inspector R is admitting in essence that there was no evidence

upon which to base the report to the Crown on that matter, which of course

formed a charge against the pursuer.

been admitted.

Page 18 ⇓

[49] Mr Smith then summarised his position so far as the two lies are concerned in this way:

there is an acceptance by the defender that in respect of the only two elements of the charge of

fraud against the pursuer, namely: the two lies, it was an “error”. However, thereafter no

explanation is given as to how these errors could have occurred. Thus as a matter of law,

when there is no evidence to support a charge, it is presumed to be maliciously reported.

[50] There was not only the above which clearly supported the pursuer’s position that there

had been a malicious prosecution there was also what was described as the “Don’t tell David”

email.

[51] As a preliminary proposition to advancing his argument relative to the significance of

this email Mr Smith said this: the pursuer was charged with conspiracy to defraud. At the

very least, the start point for bringing home a charge of this kind is that the accused must have

known about the intention to mislead. If he was ignorant about the fraud by others he cannot

and could not be convicted of the charge of fraud.

[52] In development of his position regarding this email Mr Smith first returned to the Scott

schedule and directed the court’s attention to paragraph 24 and following where the issue is

raised regarding an email chain. Paragraph 25, it is accepted that an email was sent by CW to

PAB which stated inter alia: “Don’t disclose anything to David other than what is required for

him to negotiate with the bank. That is all he’s engaged to do.” (the “don’t tell David email”).

In the Scott schedule and from the email chain it can be seen that PAB stated that he had not

told the pursuer “anything” (see: section 29 of the Scott schedule).

[53] This email was contained in a cache of emails available to Detective Chief Inspector R

and is clearly and obviously inconsistent with the statement of PAB relied upon by

Detective Chief Inspector R that the pursuer did in fact know about the actual Ticketus deal.

Page 19 ⇓

[54] He went on to develop this argument as follows: the defender admits that that email

was sent by CW to PAB. It is admitted that R was aware of it when he prepared the SPR. He

so admits inter alia in his supplementary statement at paragraph 41. In recent (July 2019)

disclosure the “Don’t tell David” email is produced. A handwritten annotation in that

document by Detective Chief Inspector R by means of an asterisk which points to its

importance. It is denied by the defender that the email is “consistent” with the pursuer being

ignorant of the actual Ticketus arrangement. The defender responds to the email as follows:

The email is not exculpatory. It is not significant. That it is not expressly mentioned in the

SPR is unsurprising. There is a very simple issue raised in the Scott schedule regarding this

email. Were the Crown told of its existence and when? Regrettably, the defender fails to

provide an explanation of what the position actually is. It is plainly exculpatory and

significant.

[55] In paragraph 28 of the Scott schedule, the pursuer states simply that R did not at any

time advise the Crown of the existence of this email. That is denied (thus maintaining that he

did in fact tell the Crown of its existence). The Scott schedule then refers back to lines 15

and 26 of the Scott schedule, but when one looks to line 15 for a statement that the email was

in fact sent to the Crown, one looks in vain. This is, once again, obfuscation.

[56] The defender maintains at 26 that the email was neither “significant” nor

“exculpatory”. And no doubt, despite suggesting that the email was disclosed to the Crown,

it is being suggested that the reason Detective Chief Inspector R did not disclose it was

because he considered it to be an irrelevance.

[57] In his first statement in this action [TAB 11A], at paragraph 188 and following,

Detective Chief Inspector R discusses the email; and at paragraph 32 of the supplementary

statement. His position is solely based upon what he thought was the case, and what the

Page 20 ⇓

explanation for the email was. None of it is remotely logical or reasonable. It appears from

statements taken from PAB that he was never asked about it. Nor was he asked about PAB’s

reply referred to above, which is plainly inconsistent with the PAB statement. It is also crystal

clear that the email is plainly exculpatory; and even if some charitable view can be taken of

the R analysis, it is plainly an email that should have admitted of the interpretation that the

pursuer was in fact being kept in the dark about the actual Ticketus deal. He emphasised that

evidence does not have to be “exculpatory” for it to be relevant, or for the obligation to exist of

disclosure. The Crown was, by the concealment of its existence, deprived of the ability to

make an independent and informed judgment of whether the pursuer should be prosecuted.

The Crown was also deprived of the ability to disclose to the defence a vital piece of evidence

which they would have had the obligation to disclose. Further he emphasised that there was

in fact - as now is accepted - no evidence that the pursuer was in fact aware of the actual

Ticketus deal and thus nothing to “exculpate” him from. For what it is worth, on the basis of

that email, those representing the defendants in the High Court action accepted that it

demonstrated ignorance by the pursuer of the actual transaction, and they abandoned their

claim for a contribution to damages by Duff & Phelps. It is also a matter of importance to note

that the email was not, by definition, something of which the pursuer was aware, yet was

contained (according to R’s statement} in the CW database (viz the 130,000 or so emails). The

defender has consistently failed or refused to hand over that database in this litigation. It is

abundantly clear that at least one vital piece of evidence was contained in that database (the

“Don’t tell David email”) and the pursuer continues to wish to interrogate that database to

find out if there is anything else that R decided not to advise the Crown that is of importance.

It is a matter of admission by the defender (in the notice to admit) that Detective Chief

Inspector R interrogated the email database and nothing incriminating was found. That ought

Page 21 ⇓

to have been disclosed to the Crown too. In the defences, their note of argument and the Scott

schedule, the defender seeks to suggest that certain emails within the cache were

incriminatory of the pursuer. In his statement at paragraph 327, Detective Chief Inspector R

states that the database “implicated” the pursuer. Yet that denial fails to state what implicated

the pursuer. Of the emails produced and referred to by Detective Chief Inspector R, none

“implicates” the pursuer and Mr Smith reminded the court that the defender has

unreasonably refused to produce the database of emails, despite Detective Chief Inspector R

relying upon some of them for his opinion. No valid reason has been given for the failure to

produce them.

[58] Mr Smith submitted that the foregoing showed a clear want of reasonable and

probable cause. There is no evidence to support the allegations made against the pursuer, that

on its own shows there is no reasonable cause. There is no explanation for the errors of

Detective Chief Inspector R in his reporting to the Crown. There is no explanation for his

failure to report the “Don’t tell David” email. Taken together this evidence on its own clearly

shows malice on the part of Detective Chief Inspector R. There is nothing put forward on

behalf of the defender which supports an honest belief in the position put forward by

Detective Chief Inspector R.

[59] Turning to the issue of the causative effect of the foregoing Mr Smith contended that

the Crown at least to the stage of the petition were relying on the police reporting. This was

shown by the following:



The petition followed on the prosecution report prepared by the police.



The summary of evidence attached to the petition was taken from the SPR and

not filtered through the mind of the Crown.

Page 22 ⇓



The schedule prepared by Detective Inspector O as to when documentary

evidence was uploaded by the Crown, contained dates almost all of which

post-dated the date of the petition. If the Crown obtained any primary

evidence to allow it to independently consider the matter the defender has not

produced that information.



The harm was done to the pursuer at the stage of the petition and the petition

was entirely procured by the actings of Detective Chief Inspector R. At that

stage there was a completed wrong and thereafter it caused damage to the

pursuer.

[60] The next chapter of the pursuer’s submissions related to elements of what was

described by Mr Smith as misbehaviour on the part of Detective Chief Inspector R which

supported a general presumption of malice.

[61] This chapter divided into a number of discrete submissions. However, the broad

thrust of them was this: the actings of Detective Chief Inspector R showed a reckless

determination by him to obtain evidence in breach of the requirements of due process.

[62] First it was contended that Detective Chief Inspector R had obtained and executed a

search warrant in abuse of state power.

[63] On 6 November 2015 Detective Chief Inspector R had requested and obtained a

warrant in Glasgow Sheriff Court. This was a highly unusual course of action in that at the

time of the request the pursuer was subject to High Court procedure.

[64] The intention of Detective Chief Inspector R was to search the offices of Holman

Fenwick Willan (“HFW”) Solicitors in London, who at that time were representing not only

Duff & Phelps, but also representing the interests of the pursuer albeit instructing Scottish

solicitors to handle the Scottish part of the criminal proceedings.

Page 23 ⇓

[65] There was a dispute as to what had been said and done at the time of the obtaining of

the warrant in Glasgow Sheriff Court. It was not accepted that this factual dispute could not

be determined at the hearing of a summary decree motion and there was no further discussion

of this issue.

[66] However, what was relied upon by Mr Smith was what had occurred following the

obtaining of the warrant and which it was his position had been orchestrated by

Detective Chief Inspector R.

[67] First on 9 December 2015, the warrant was given effect in England by application to the

City of London Magistrates' Court for the warrant to be endorsed. A search then took place at

HFW’s offices, during which a number of items were seized including items which were of

clients of HWF entirely unconnected with the Rangers inquiry. No steps were taken to protect

the obvious privilege that would arise in respect not only of third party clients, but of the

pursuer and others in Duff & Phelps.

[68] Moreover, while the search was underway, HFW instructed counsel in England to

have an interim injunction granted against a number of parties including Police Scotland.

[69] On the day of the search Simon Clark of HFW met with Detective Chief Inspector R

and indicated that it was his intention to obtain an injunction against him from continuing

with his search, seizure and inspection of any documents within and taken from the offices of

HFW. He asked for an assurance that the documents would not be viewed, and that they

would be kept secure until the matter was determined by the court. Detective Chief

Inspector R responded to him that as far as he was concerned the warrant was valid and

lawful, and he would give no assurances to Mr Clark. The application for the injunction was

heard on the evening of 9 December and on that date the interim injunction was granted.

When the injunction was granted HFW sent an email communication to Detective Chief

Page 24 ⇓

Inspector R informing him of the terms of the injunction; a notice was given to City of London

Police of the injunction. Detective Chief Inspector R was repeatedly asked to confirm that he

would comply with the terms of the injunction but did not respond. However at 2.00pm on

10 December 2015 he was personally served with the injunction. The proceedings in England

were followed up by proceedings in Scotland where on 11 December 2015 an application was

made to the courts in Scotland to suspend the warrant.

[70] Despite having had the injunction personally served upon him Detective Chief

Inspector R emailed Simon Clark of HFW on 14 December 2015 asking that he comply with

the terms of the warrant by providing him with electronic copies of the material which had

been seized. Mr Clark responded pointing out that there was a live High Court injunction in

place, and an application was underway in Scotland to suspend the warrant. He accordingly

refused to hand over electronic copies.

[71] What followed was this: the warrant was quashed in Scotland. The judicial review

proceedings in England concluded by the issuing of a decision by Gross L J and Mitting J in

the High Court. In that decision the actions of the police were described as “heavy handed”

and an “abuse of power”.

[72] It was contended by Mr Smith that Detective Chief Inspector R’s actions constituted

this abuse. It was submitted that given this abuse of state power it could not be contended

that a police officer was acting other than maliciously.

[73] The second matter in this chapter was this: it was maintained that even after the

granting of the interim injunction Detective Chief Inspector R had sought to circumvent it by

emailing Duff & Phelps insurers Novae in the following terms:

“It is in relation to your company’s relationship with both Duff & Phelps and HFW

and a particular line of inquiry I have that I would welcome the opportunity to discuss

my enquiries with you to establish if you can assist my investigation. To protect the

Page 25 ⇓

integrity of the criminal investigation I respectfully request that you do not disclose or

discuss this matter at this time with either Duff & Phelps or HFW or individuals who

represent them.”

[74] Mr Smith then referred to the defender’s response in their written submissions at

paragraph 87 in respect of this particular matter: there he submitted it is maintained that the

approach to Novae was made with the knowledge of the Crown and Andrew Gregory, Duff &

Phelps solicitor. He submitted that that is evidently untrue. The correspondence indicates

that the approach by Detective Chief Inspector R to Novae was secretive and in particular he

noted that Novae was thanked for not disclosing the approach to Duff & Phelps as late as

18 December 2015, having had at least one conversation with Novae the notes of which have

never been produced. At paragraph 132 of his supplementary statement Detective Chief

Inspector R lists the email correspondence he had with Novae. In the list of correspondence,

Detective Chief Inspector R fails to disclose that prior to 21 December 2015, he had been in

contact in secret with Novae. The suggestion that there was no secret about contacting Novae

is simply untrue. The reason he disclosed to Mr Gregory that he had done so was that Novae

refused to provide further information unless Mr Gregory approved. In addition Mr Smith

referred to the following section of Detective Chief Inspector R’s supplementary statement:

“129 Following the search of HFW premises and the resulting injunction, I contacted

both Novae and Duff & Phelps through their respective solicitors in order to try to

obtain the materials which had been the subject of the December 2015 warrant and to

cut through the difficulties which the police were experiencing in recovering

materials.”

[75] Mr Smith submitted that the “difficulties” which were referred to in this statement

were the injunction which had been obtained. It was clear that he was seeking to circumvent

the injunction.

Page 26 ⇓

[76] Thus Mr Smith submitted that Detective Chief Inspector R’s approach to Novae and

the request that this be kept secret was an unacceptable way to proceed. Again it was

submitted that this was indicative of malice.

[77] Mr Smith then turned to how Detective Chief Inspector R had behaved in relation to

what he described as the schedule 9 document.

[78] He began this section of his submissions by describing the schedule 9 document and its

importance: this document was vital to the decision to prosecute the pursuer. The importance

was that there were two versions of it: one which showed the source of funds for the share

purchase to be CW’s own money, via Wavetower, and the other, which was the truth,

showing the source of part of the funds to be in essence a debt owed to Ticketus. It is not

contentious that it was clear that the alteration to the schedule 9 document was designed to

mispresent the funding arrangements, but the pursuer was wholly unaware of the content of

schedule 9. He was unaware that it had been altered. But Detective Chief Inspector R

engaged in a quest to try to establish, albeit he had no basis for believing it to be so, that the

purser knew of the alteration.

[79] Mr Smith argued that throughout the investigation, it is clear from the answers in the

Scott schedule that Detective Chief Inspector R had in fact accessed a version of schedule 9

which was recovered during a search of the offices of Duff & Phelps, despite there being an

immediate claim to privilege over the file in which schedule 9 was placed, thus ignoring the

claim of privilege and this too is indicative of malice. In support of this Mr Smith referred to

the Scott schedule from paragraph 135 to 147 and in particular to 146 where the following is

said:

“In the interim report to the Crown dated 5 April 2014, R makes reference to the

schedule 9 cash flow document which had been contained in the black file. He does so

by stating ‘on 28 August 2013 documentary evidence was seized under warrant from

Page 27 ⇓

the premises of Duff & Phelps. Included and identified during initial sift is a one page

document … which is a financial forecast spreadsheet which shows Ticketus as the

fund through the acquisition. This is the spreadsheet Saffery Champness … prepared

and was instructed to remove reference to Ticketus and replace with Wavetower”.

In response to that statement made on behalf of the pursuer in the Scott schedule the response

is: “Yes” by the defender. Thus there is a clear breach of the asserted privilege.

[80] The next section of the allegations regarding Detective Chief Inspector R’s behaviour

related to a further claimed breach of privilege. This allegation related to an envelope

containing CD type discs containing copies of and emails in respect of which privilege was

claimed by Duff & Phelps.

[81] Detective Chief Inspector R’s position throughout was that he had only opened these

envelopes when they were returned to Duff & Phelps solicitors, namely, Mr Gregory (see:

Scott schedule at answer 13).

[82] However, shortly before the initial diet of proof in the Sheriff Court Detective Chief

Inspector R gave a wholly different explanation, what he now said was this: he had already

opened the envelopes and he was merely conveying that he had reopened them before

Mr Gregory. The email correspondence Detective Chief Inspector R had after the event with

Mr Gregory makes no mention of this bizarre explanation; and his initial statement in the case

said that the envelopes were in a “sealed production bag”. The inconsistency between the

initial statement and the supplementary statement, after three solicitors provided statements

to the court that are contrary to what he was representing, is inexplicable other than by

considering that he has sought to mislead the court in this process. Once more that is

indicative of malice. Equally, the bizarre explanation now provided amounts to an admission

of breach of claimed privilege. That too is indicative of malice.

Page 28 ⇓

[83] The next matter referred to by Mr Smith was this: the reporting that the pursuer had

misled the Insolvency Practitioners Association (“IPA”) and attempted to defeat the ends of

justice by lying to Lord Hodge. The critical point in relation to this was that the pursuer is not

and had never been an insolvency practitioner. He never had been regulated by the IPA and

could not contribute to the report ordered by Lord Hodge.

[84] At a meeting between Detective Chief Inspector R and the IPA, he was advised by

them that the pursuer had no connection with them. Despite being advised as above on

3 October 2013, he never the less reported to the Crown subsequently via SPR on 8 August

2014 that the pursuer had attempted to defeat the ends of justice by lying to both the IPA and

Lord Hodge. Mr Smith submitted that Detective Chief Inspector R was clearly aware that the

pursuer had not committed any offence, and that he had not lied to Lord Hodge. Yet he made

what can only be taken to be a false allegation to the Crown. This too is indicative of malice as

no explanation has been provided to justify the position.

[85] Another series of actings of Detective Chief Inspector R which it was contended by

Mr Smith showed malice related to the circumstances surrounding the pursuer’s detention,

arrest and first appearance in Glasgow Sheriff Court on petition on which the pursuer was

detained (under section 14) at approximately 05.30 on 14 November 2014. [See the pursuer’s

pleadings.] He was transported by police car to Helen Street Police Station in Glasgow,

arriving at approximately 15.30. After interview, he was charged. No discussion took place as

to whether a court appearance could be arranged that evening. The pursuer was held in

custody until the following Monday and on that date, after appearing, was released on bail.

[86] The pursuer has never been charged with any offence in his life. His representatives

were in constant dialogue with the Crown and the police prior to that detention. He owned

property in England and is domiciled there. He was employed by Duff & Phelps. There was

Page 29 ⇓

no risk that he would abscond. He had been fully cooperative with the investigation at all

times. He would, had he been asked, have attended the police station with his solicitor.

[87] The only explanation of these actings proffered on behalf of the defender in his

pleadings is that the pursuer was a “flight risk” however no reason is given for this averment.

The defender’s response to the pursuer’s agents being in contact with them is “not known”

(see: paragraphs 125 and 126 of the Scott schedule).

[88] In answer 19 a little more is said about the issue of flight risk thus: the defender has

maintained in answer 19 on record that the defender received “intelligence” that DW (another

accused) had booked a flight to Portugal leaving on Friday 14 November 2014 and in a desire

to arrest all accused at once, it is implied that there was a fear that DW might be intending not

to return.

[89] It is understood that the “intelligence” was information from UK Border Force TAB 47

to the effect that a flight had been booked by DW. The flight had been booked by DW in

September of that year, prior to any suggestion that he might be accused of any offence. He

owns and at the material time owned property in Portugal, and regularly travelled there - all

of which was easily verifiable. He had a return flight booked for the Sunday evening, again

easily verifiable. Detective Chief Inspector R did not ask whether there was a return flight

booked, nor did he inquire whether there were any suspicious circumstances of his leaving to

go to his home in Portugal. Any responsible decision to arrest DW would have required that

such basic investigations took place. Detective Chief Inspector R did not do so, and by that

failure acted maliciously. No valid excuse has been provided for the arrest of DW, far less the

arrest of the pursuer.

[90] Further when the pursuer arrived at Helen Street, a large number of media personnel

were present. Although the defender now seeks to justify having tipped off the press, this

Page 30 ⇓

aspect was a direct consequence of the decision to detain the pursuer rather than invite him to

attend the police station with his solicitor.

[91] All of the above actings it was contended showed malice on the part of Detective Chief

Inspector R.

[92] The final section in this chapter related to alleged inappropriate behaviour on the part

of Detective Chief Inspector R towards professional persons. Mr Smith’s submission in

respect of this was that the conduct of Detective Chief Inspector R in his investigation

displayed an arrogant, unprofessional and malicious course of conduct towards potential

witnesses and legal representatives. Although there is no admission by him of such conduct,

there would appear to be no denial. The court is now is possession of evidence which displays

an unacceptable manner of investigation which can only be explained by it being motivated

by malice.

[93] The first detailed allegation related to behaviour towards James Clibbon who was a

solicitor with HFW. In a Subject Sheet (a Subject Sheet is a report by the Senior Investigating

Officer updating the Crown in respect of the police investigation) in January 2016 at

paragraph 22 it was represented to the Crown that Mr Clibbon was impeding the progress of

the inquiry and should be interviewed under caution. At no time did Mr Clibbon do other

than represent his clients’ interests.

[94] The second allegation related to behaviour towards Paul Smith a partner with Duff &

Phelps. He only had a peripheral involvement in the issue of the purchase of the shares in the

Club. He was interviewed by Detective Chief Inspector R in a heavy handed way, during

which he threatened him with prosecution. There was no basis for such a threat, and the

conduct once more is indicative of malice.

Page 31 ⇓

[95] Thirdly there was behaviour in respect of a Mr Philip Duffy who is an insolvency

practitioner and chartered accountant. He has provided a statement in the course of the

litigation, indicating that upon interview he was inappropriately treated by Detective Chief

Inspector R, who engaged in sectarian abuse. Again Mr Smith argued that a professional

person was submitted to conduct by Detective Chief Inspector R which was wholly

inappropriate.

[96] Mr Smith in conclusion took from the foregoing that a single occasion of over

enthusiastic conduct is explicable, however, the pattern of behaviour spoken to by the three

professional persons gave a clear indication that there was an overbearing and irrational

course of conduct by Detective Chief Inspector R that was an abuse of power and thus the

only explanation for it was malice.

[97] In summary it was Mr Smith’s position that focusing in a narrow way on the errors

and the lack of explanation for these clearly showed malice. When consideration was

thereafter widened and Detective Chief Inspector R’s behaviour more generally was focused

upon once again malice was clearly shown. Thus when these two aspects were taken together

malice was clearly shown.

[98] The final chapter of Mr Smith’s submissions dealt with the issue of causation.

[99] He commenced his submissions by asserting that the statements and actions of

Detective Chief Inspector R are causally connected to the petition being served upon the

pursuer.

[100] Mr Smith then proceeded to develop his general argument on causation by first

looking at the issue of the division of labour between Crown and the police.

Page 32 ⇓

[101] This division he summarised in this way: the police investigate and report; the Crown

prosecutes. The division of labour is regulated by the Criminal Justice and Licensing

(Scotland) Act 2010 section 117 (“the 2010 Act”) which provides:

“(1) This section applies where in a prosecution-

(a) an accused appears for the first time on petition, or

(b) an accused appears for the first time on indictment (not having appeared on

petition in relation to the same matter).

(2) As soon as practicable after the appearance, the investigating agency must

provide the prosecutor with details of all the information that may be relevant to the

case for or against the accused that the agency is aware of that was obtained … in the

course of investigating the matter to which the appearance relates.

(3) As soon as practicable after being required to do so by the prosecutor, the

investigating agency must provide the prosecutor with any of that information that the

prosecutor specifies in the requirement.

(4) In this section, ‘investigating agency’ means-

(a) [F1] the Police Service of Scotland,”

[102] What the pursuer takes from the above is that it is recognised by statute that the police

carry out investigations; they report to the Crown; the obligation to report all relevant

matters to the Crown arises no later than a point in time after appearances on petition; and

the obligation is a continuing one. It is therefore clear from the above provision that the

Crown can prepare a petition and serve it, based on information provided by the police

without having had access to all primary source material.

[103] Mr Smith accepted that the point in time regarding the obligation to produce the

material is stated to be no later than a point in time; and theoretically that does not answer the

question of whether, in this case, it was in fact provided previously.

[104] Mr Smith then set out the framework which he submitted allowed the court to deduce

that the primary information was not provided to the Crown at an earlier stage than the

service of the petition.

Page 33 ⇓

[105] First the defender fails to state when the primary information was in fact provided to

the Crown. If all statements were provided and all material was provided whereby the Crown

were able to and did micro manage the investigations to come to their own conclusion, then

the defender should say so and list what was provided and when. At no point is that made

clear.

[106] The second important feature of this aspect is that what Detective Chief Inspector R is

now apparently accepting is that there was no evidence to support the actus reus of each of the

(main) charges. How could it be disclosed to the Crown that there was no evidence to support

that? How could the Crown know that there was no absence of evidence - other than him just

saying to the Crown “although I have said that the pursuer did X and Y, in fact there is no

evidence to support it”.

[107] We also know that Detective Chief Inspector R reported to the Crown in the Subject

Sheet and in the SPR that the purser did the things that he was charged with. No other

possible source has been suggested by the defender other than the report from him. The court

he submitted is therefore faced with a situation where the Senior Investigating Officer (“SIO”)

reports that the pursuer did X and Y; he is charged with doing X and Y; when the SIO is

challenged by the Crown as to what the evidence is for X, the charges are withdrawn; no

other possible source of evidence is suggested for the charge being laid against the pursuer.

Accordingly, it is a simple deduction of cause and effect. If the defender wishes to suggest

that the charges could have been brought absent R’s report, then no doubt he can say so - and

he does not - and produce the evidence which supports such a proposition. It is clear that the

summary of evidence attached to the petition [TAB 8] was prepared by Detective Chief

Inspector R. It is difficult to see how any other conclusion can be drawn that the reports by

Detective Chief Inspector R caused the pursuer to be charged with the two main offences.

Page 34 ⇓

[108] That the duty of disclosure and the continuing duty was breached can be

demonstrated by reference to a number of aspects of the case. These can usefully be

summarised as resulting in the Crown being deprived of the ability - through that

concealment - to make an independent judgment at any time of the ability to bring charges

against the pursuer. In particular, Detective Chief Inspector R was in possession of all

material indicative of the fact that the funds transfer occurred prior to the email (“letter of

comfort”) being sent out by the pursuer to CW. He did not disclose that to the Crown. He

was in possession of the “don’t tell David” email - harvested from the CW “cache”, but took a

positive decision that as it was not exculpatory, he was not going to tell the Crown. That

decision was a breach of the provisions of section 117. It is not up to him or any police officer

to make a value judgment on a fact such as that.

[109] The timing of the transfer of funds is important in respect of the allegation that the

pursuer induced release of the funds. It is beyond any doubt whatsoever that the funds had

been paid over by Ticketus to Clarke Wilmott (who were their solicitors) on 31 March 2011

(some days prior to the alleged “letter of comfort” on 7 April 2011). The purpose of that was

to permit Clarke Wilmott to confirm the “show funds” to allow the transaction to proceed.

[110] The timings of the transfers (See the Scott schedule 16 and 16A), and the fact that the

“letter of comfort” post-dated the transfers of funds was information available to

Detective Chief Inspector R. He knew that to be so, as he had available to him considerable

quantities of emails of CW (which is understood from the Scott schedule he interrogated) and

to which reference is made by him in his witness statement at paragraph 327. The pursuer

considers those emails will establish what is known to be correct in fact: that the transfer pre

dated the email prepared by the pursuer on 7 April. Despite repeated calls upon the defender

Page 35 ⇓

to produce the 130,000 or so emails, the defender has failed to produce those emails without

any proper explanation.

[111] Detective Chief Inspector R also had available information from another source,

namely the High Court action in England. The Joint Administrators of the Club, DW and PJC,

issued proceedings (in about June 2012) in the High Court (Chancery Division) against

Collyer Bristow, alleging a fraudulent means conspiracy by them relating to the purchase of

the shares. Central to that claim was the question of the basis upon which the funds were

transferred. It was alleged that a fraud had been committed. The Administration was

subsequently taken over by BDO, as liquidators, and the High Court action was continued by

them. On 19 February 2014, the pleadings in the case were provided to R by James Clibbon.

In the pleadings in the High Court action, the precise dates and times of the transfers were

outlined with reference to email correspondence. The particulars of claim are produced

TAB 55. There would accordingly be no doubt that Detective Chief Inspector R was in

possession of information to the effect that the transfer predated the letter of comfort. It is

clear from recent disclosure that the exhibits from that case were examined by Detective Chief

Inspector R in detail. The exhibits make little sense without also cross referencing them to the

particulars of claim.

[112] Despite having all of that information available to him, Detective Chief Inspector R

reported to the Crown that the transfer post dated the letter of comfort and the transfer was

induced by it being produced to Ticketus. In the statement of O, she confirms that she was

aware of the civil pleadings. Although she states that she did not read them, no explanation is

given for the failure to consider this obvious line of inquiry. A case, concerning fraud,

regarding the transfer of funds was a clear and obvious source of information to affirm or

deny the allegations being made against the pursuer.

Page 36 ⇓

[113] In conclusion there is a statutory duty upon the police to provide all relevant

information to the Crown. The 2010 Act makes clear that there is a division of labour: and it is

clear from the 2010 Act that the police are expected to gather evidence and the Crown require

that they are provided with a full and accurate package of that information. That obligation

on Detective Chief Inspector R was to disclose to the Crown that there was in fact no evidence

upon which the charges could be based. In clear breach of the obligation, he deliberately

concealed important information which deprived the Crown of the ability to make an

independent decision on whether to prosecute the pursuer. For example he concealed from

the Crown the “don’t tell David email” and failed to tell them about PAB not being asked to

explain this important line of inquiry.

[114] Mr Smith submitted that the defender seems to struggle with the simple issue of

causation: the only source of information that the pursuer did the things that became the two

charges was from the reports prepared by R. The defender does not offer an alternative

source - indeed concedes that there is no such source. Absent any other possible source of

evidence for the charges, causation is instantly established. In summary, R says the pursuer

did X and Y; he is charged with X and Y; there is in fact no evidence from any source that he

did X and Y. He was prosecuted because Detective Chief Inspector R said he did X and Y.

[115] In conclusion and for the above reasons Mr Smith maintained that there is no defence

to the action, the summary decree motion should be granted and proof should be restricted to

quantum of damages.

The reply on behalf of the defender

[116] Mr Duncan’s general position was that I should refuse the motion for summary decree.

Mr Duncan commenced his detailed response by first setting out some matters of general

Page 37 ⇓

background. He referred to how Detective Chief Inspector R communicated and sought

guidance from the Crown and said this: Updates were principally provided by way of Subject

Sheets and, occasionally, Interim Reports.

[117] He then turned to look at the issue of the progress of the investigation. He submitted

that the Interim Report of 4 December 2012 gives a useful overview of progress by the end of

the first year of the investigation. In his principal statement, DCI R sets out the passage within

the report in which he summarised his then view of where the criminality lay in CW’s

purchase of the Club. By this stage, the pursuer had been implicated by the BBC in two

broadcasts, and the police were also concerned that the pursuer’s colleagues had been less

than forthcoming in assisting with the early stages of the investigation. However, the police

did not consider the pursuer a suspect as at the end of December 2012.

[118] As set out in Answer 10, the police view of the pursuer’s role eventually changed.

While there were a number of reasons for this, foremost among them appears to have been

information provided by another witness - PAB. The evidence from PAB is referred to in the

principal statement of DCI R. In short, PAB advised DCI R that the pursuer had been aware of

the true source of the purchase funds prior to conclusion of the purchase. This contradicted

what the pursuer had told the police previously. The evidence of PAB appeared to be

supported by email correspondence. On 5 April 2013, DCI R reported to the Crown that he

required to undertake further assessment of the evidence directed at the pursuer. He

submitted a further interim report on 23 November 2013. That report referred to emails that

DCI R considered contradicted the pursuer’s claimed ignorance of the true role of Ticketus

prior to CW’s purchase of the majority shareholding.

[119] As explained in Answer 10, the investigations continued in late 2013 and into 2014.

Analysis of additional emails and other investigations disclosed what appeared to DCI R to be

Page 38 ⇓

further evidence pointing towards the pursuer’s knowledge pre-purchase of the true role of

Ticketus. Further significant reports were made to COPFS on 4 April and on 19 June 2014.

Eventually, on 8 August 2014, DCI R drafted and submitted a Standard Prosecution Report

(“SPR”) to COPFS. Reference is made to Answer 10 and the averments about the content of

the SPR.

[120] Following discussions with the Crown, DCI R submitted a further Subject Sheet on

10 October 2014. It set out the executive action the police proposed should be taken in relation

to each suspect. The pursuer was subsequently detained on 14 November 2014, and then

arrested and charged.

[121] Thereafter Mr Duncan submitted that it was of some significance when considering the

position advanced on behalf of the pursuer to have regard to the history of the prosecution.

He briefly set out the principal points in the prosecution the beginning and the end point of

the prosecution ought not to be in dispute. The pursuer appeared on petition on 17 November

2014. On 15 April 2016 all extant charges were dismissed by your Lordship, which decision

was upheld on appeal on 13 May 2016. Between the beginning and the end of the

proceedings, and as the pursuer’s pleadings explain, two indictments were served. The first

was served on 15 September 2015 and the second on 2 December 2015. The latter differed

materially from the former and was itself the subject of considerable amendment.

[122] Mr Duncan then turned to detail the core point which he sought to take from the

history of the prosecution: the pursuer’s pleadings bear to set out two charges which are said

to be taken from what he describes as the “final version” of the indictment against him. It is

not known what he has in mind by that statement. It appears that he means the version of the

indictment which was before your Lordship “[b]y the stage of the hearing of the second

tranche of minutes”. He goes on to aver: “Those charges against the pursuer were the only

Page 39 ⇓

charges which he faced”. In response to the defender’s challenge to that statement, the

pursuer, in his note of argument says this:

“[t]he pursuer only faced those two charges (sic) [set out in Cond. 22] as is clear from

the indictment referred to, and the decisions of Lord Bannatyne at the various

hearings. Other charges which featured earlier - such as an attempt to defeat the ends

of justice - had no foundation and did not feature in the indictments. The pursuer

finds it difficult to comprehend what additional charges the pursuer faced in the light

of the content of the indictments if the defender wishes to explain what charges he

refers to as multiple, then the pursuer will answer the matter further.”

[123] In fact, the pursuer’s pleadings refer only to one charge. But the more fundamental

point is that it would not be accurate to suggest (a) that in the second indictment the pursuer

faced only the charge set out in Cond 22; and (b) that that was the position throughout the

prosecution. The correct position is as follows: the pursuer was subject to two charges within

the petition. Within charge 1 and charge 5 (the two charges that concerned the pursuer) five

elements of criminality or dishonesty are libelled. Charge 1 avers: that the pursuer was part

of a fraudulent scheme; that (per para (iv) of the charge) he attended a meeting of the

Independent Committee of the board of directors of Rangers (the “IC”) at which CW

pretended he had sufficient funds to acquire the majority shareholding and to meet working

capital requirements; that (per para (vi) of the charge) he and others produced a letter of

7 April 2011 knowing that it would be produced by CW to Ticketus and used to induce release

of funds to an account controlled by GW; and that the pursuer had known that CW did not

have the necessary funds and that the acquisition was being funded by Ticketus. Charge 5

libelled an attempt to pervert the course of justice based on the pursuer’s representation to

police that he had not known that Ticketus was funding the transaction.

[124] The first indictment libelled two charges against the pursuer. Once again there were

multiple elements to these, and they differed materially from the approach in the petition.

Charge 1 libelled (against the pursuer and others) conspiracy to acquire the majority

Page 40 ⇓

shareholding by fraud and also actual fraud (and averments of false representations and

pretences were directed at all accused).

[125] Paragraph (c) of charge 1 libelled a number of elements in relation to the IC. These

included an averment that the IC had been set up with powers to recommend or reject any

proposed offer. That was not correct. In Cond 22, the pursuer blames the police for this: he

says that the Crown relied upon the police reports. In Cond 23, the pursuer says that the

police and the Crown could have had no reasonable belief in the suggestion that the IC had

power to recommend or reject the transaction. The pursuer says that the conduct of the police

(as investigators) and the Crown (as prosecutors) was therefore wrongful. There are a number

of problems with the pursuer’s position on this matter. Foremost of these is that the police did

not say to the Crown that the IC had the powers which the charge suggested. Indeed, as has

been averred for many months in Answer 23, DCI R expressly flagged up within the SPR that

the IC had no power to block the transaction. It is not known upon what basis the pursuer

continues to blame the police for this error within the first indictment.

[126] Paragraph (c) of charge 1 then sets out a number of detailed elements of the criminal

conduct libelled against the pursuer and others in connection with the IC. Under reference to

the sub-paragraphs in which they appear, these are: (i) that CW made false representations

and pretences to the IC that he was funding the acquisition from personal wealth or via his

companies; that the pursuer and others made false pretences about (ii) the source and

provenance of the purchase funds and (iii) the source of available working capital; (iv) that

the pursuer and others wilfully concealed the Ticketus Purchase Agreement from the IC;

(v) that the pursuer and others induced a belief on the part of the IC that there was no

requirement to ring-fence season tickets sales; and (vi) that the pursuer and others:

Page 41 ⇓

“did repeatedly make false representations and pretences to the Independent

Committee to the effect that they would be provided with sufficient evidence [in

relation to the IC’s various concerns], knowing that you did not have sufficient

evidence of same and had no intention of providing sufficient evidence of same.”

[127] Overall, it can be seen that the detail of the charges against the pursuer in relation to

the IC were significantly expanded from what was set out within the petition. The pursuer

ignores this.

[128] Paragraph (d) (vi) of charge 1 concerned the letter of 7 April 2011. There were five key

elements as regards this matter in the first indictment: (a) that the pursuer and others

conspired to issue or caused to issue a letter of 7 April 2011 to CW; (b) that the letter was

signed by the pursuer; (c) that the pursuer and others were aware that the contents of the

letter would be made available or otherwise communicated to Ticketus; (d) that the letter was

intended to provide Ticketus with certain comfort and reassurance; and (e) that the nature of

that comfort and reassurance was per a quote purportedly taken from the letter. The quote

was in the following terms:

“should Wavetower or any of its nominees or associates become the subsequent owner

of the football club following an insolvency process, there is then the ability to

recognise and honour the contract for the future sale of season tickets”

[129] Again, it can be seen that the Crown’s treatment of the letter of 7 April 2011 is framed

quite differently to the approach within the petition. Again, the pursuer ignores this.

Charge 1 concluded by setting out the results of the foregoing criminality. Charge 4, which

was parasitic of charge 1, libelled a breach by the pursuer and others of section 28 of the

Criminal Justice and Licensing (Scotland) Act 2010.

[130] The pursuer faced the charges within the first indictment for a little over two months,

and, thus, none of the legal challenges to the prosecution that were argued before your

Lordship was brought within the context of the first indictment. The second indictment made

Page 42 ⇓

a number of significant changes to the case against the pursuer. First, an aggravation in terms

of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010 was added to charge 1.

Further, and in addition to the charges libelled within the first indictment, the second

indictment libelled a further five charges against the pursuer; charge 3 (a contravention of

section 330(1) of the Proceeds of Crime Act 2002); charge 7 (a second fraud charge); charge 8

(a third fraud charge); charge 9 (a fourth fraud charge); and charge 10 (offences under s 993

of the Companies Act 2006).

[131] The circumstances surrounding service of the first and second indictments are

discussed by Lord Malcolm in DW v Philip Gormley QPM & Ors 2018 CSOH 93 at

paragraphs [18] and [19], and consideration of that discussion is not unhelpful in emphasising

the obvious point that the question of whether to charge (and the basis on which to do so) are

all matters for the Crown and not for the police.

[132] The second indictment was itself the subject of significant further amendment. That

can be seen from your Lordship’s opinions. Amendments made at or about a continued

preliminary hearing held on 22 February 2016 are described at paragraph [9] of your

Lordship’s first opinion as “wholesale and radical”. As can be seen from paragraph [18] of

your Lordship’s second opinion, the Crown appear to have made further amendments to the

indictment. Amendments at both stages appear to have included charge 1. Once again, the

pursuer engages with none of this.

[133] Further, if the pursuer’s claim that he faced only the charge set out in Cond 22 is based

on the position as at “the stage” when “the second tranche of minutes” was argued before

your Lordship (which it appears to be given the wording included by the pursuer in the

pleadings), then this is incorrect. Even by this late stage in the proceedings, the pursuer still

Page 43 ⇓

faced one other charge on the indictment, a contravention of section 993(1) & (3) of the

Companies Act 2006.

[134] It is thus entirely unclear: how the pursuer is able to say as he appears to do in his

pleadings and in his note of argument that the only charges he ever faced were those

articulated in Cond 22; and how (as with all previous and other charges) those charges within

the second indictment were procured by the police. As against this, it is to be recalled that the

position of the police in the current proceedings is: the investigation proceeded under the

direction of the Crown at all times; that it was the Crown which had responsibility for

analysing whether the circumstances supported the bringing of a criminal case against the

pursuer; that it was the Crown which had responsibility for bringing and maintaining the

subsequent prosecution; which is to say that it was the Crown that had responsibility for the

content of the petition, for each of the indictments and for all amendments thereto. Plentiful

support for this position is to be found in the evidence including the statements of DCI R and

DI O.

[135] Mr Duncan then moved to consider the law regarding summary decrees and he did

not dispute the various propositions set out earlier in this opinion. However, he submitted

that in the circumstances of the present case it was important to have regard to the

observations of Lord Rodger of Earlsferry in Henderson v 3052775 Nova Scotia 2006 SC (HL) 85

at paragraphs 14, 15 and 18. Mr Duncan argued that the pursuer’s motion for summary

decree offended against each of the principles set out in these paragraphs. Mr Duncan then

turned to examine in detail the specific arguments advanced on behalf of the pursuer based on

the errors identified by Mr Smith.

[136] The first chapter of Mr Duncan’s submissions dealt with what Mr Smith had described

as the Independent Committee lie.

Page 44 ⇓

[137] Mr Duncan looked initially at what was the admitted error and what he contended

was the explanation for this. The error relied on by the pursuer relates to Detective Chief

Inspector R’s reporting of the pursuer’s role at the Independent Committee meeting on

24 April 2011 within a Subject Sheet dated 19 June 2014 and the SPR.

[138] Within the Subject Sheet dated 19 June 2014 the relevant extract is as follows:

“… the cash flow part of the document details the agreement CW completed with

Ticketus on 9 May 2011. Ticktus name is included in the document as providing an

advance of £20,000,000 excluding VAT with a season by season breakdown also

included.

This clearly contradicts statements and evidence provided by Duff & Phelps that they

were unaware of the Ticketus deal prior to acquisition. David Grier in particular

presented a version of this document on and around 24 April 2011 to the Rangers

directors and Murray Group Personnel which had Ticketus name removed and

replaced with Wavetower.”

[139] Within the SPR the relevant passages include:

“Grier also provided that a financial forecast was provided to the directors at this

meeting concerning cash flow. He stated that £20,000,000 is shown on the sheet with

Wavetower being the provider of funds.”

[140] Mr Duncan then turned to the way that the pursuer’s case in respect of the

Independent Committee lie had developed in its pleadings and in particular within the Scott

schedule and how the response for Detective Chief Inspector R had developed.

[141] In his pleadings, the pursuer argues that:

“to exaggerate the role played by the pursuer in attending this meeting, the SPR notes

that David GRIER in particular presented a version of this document on or around

24th April 2011 to the Rangers Directors and Murray Group personnel which had

Ticketus name removed and replaced with Wavetower”.

[142] Initially, the argument in the Scott schedule referred solely to the statement in the SPR

(see Scott schedule, line 1). Accordingly, Detective Chief Inspector R was asked to consider

the wording on page 44 of the SPR. At paragraphs 336 to 338 of his principal statement of

25 January 2019, he provides the following explanation:

Page 45 ⇓

“336. I did not mean either that David Grier provided the cashflow to the directors at

the meeting on 24 April 2011 or that he made any presentation at the meeting.

What I was referencing was what David Grier had told me in his statement.

337. I was also relying on the fact that David Grier was present at the meeting when

CW stood up and said he was using his money to fund the deal. I believed

David Grier knew that was not the case.

338. I accept that my wording is ambiguous …”

[143] In relation to the statement in the SPR being based on what the pursuer had told

Detective Chief Inspector R in his statement Mr Duncan submitted that of relevance are the

following extracts taken from the pursuer’s typed statement of 24 October 2012.

“… By this stage [around the beginning of April 2011] MM had already provided me

cash flow forecast provided to him by PAB (from Saffery Champness). This indicated

that Wavetower (acquisition vehicle used by Liberty Capital Limited) was going to

inject £20 million pounds to acquire the Lloyds debt …

[…]

Prior to the meeting and in preparation I was aware of the following. […] I was also

copied into what CW described as the latest cash flow forecast which he had sent to

MM. When I opened the attachment I realised this document was the same PDF file

that had been sent to me in the beginning of April by MM. It wasn’t in my remit to

comment on cash flows at the meeting.”

[144] On the basis of the foregoing, the defender stated at line 1 of the Scott schedule that:

“These sentences [in the SPR] do not allege that the purser said these things to the

Independent Committee (‘IC’). They are a report of what the pursuer is said to have

told the police: that a financial forecast was available to the Independent Committee

directors; that it showed Wavetower was the provider of £20m of funds. The same

sentences appear in the Interim Report of 4 December 2012 at p22. The pursuer was

not a suspect at that point.”

[145] In a later iteration of the Scott schedule, at line 1A, reference was made by the pursuer

to the Subject Sheet of 19 June 2014 which also refers to the Independent Committee meeting

of 24 April 2011. In response, Detective Chief Inspector R’s supplementary statement of

21 February 2019 provides further clarification about his understanding and reporting of the

pursuer’s role at the Independent Committee meeting. Specifically, he states, in the relevant

part, as follows:

Page 46 ⇓

“18. In relation to what Mr Grier said or did at the meeting of the Independent

Committee on 24 April 2011, my position is that this is accurately reflected in

the Minutes prepared by Mr McNeill. When these Minutes were put to other

witnesses for comment, no one said that Mr Grier said or did anything other

than what was recorded in the Minutes.

19. I am directed to the following statement included in a Subject Sheet of 19 June

2014:

‘Ticketus name is included in the document as providing an advance

of £20million excluding VAT with a season by season breakdown also

included. David GRIER in particular presented a version of this

document on and around 24 April 2011 to the Rangers Directors and

Murray Group personnel which had Ticketus name removed and

replaced with Wavetower.’

20. As I state at paragraph 336 of my previous statement, my position is not that:

‘David Grier provided the cashflow to the directors at the meeting on 24 April

2011 or that he made any presentation at the meeting.’ More specifically, it was

not my position that David Grier actually made any presentation at the meeting

of the Independent Committee on the cash flow document which had Ticketus’

name removed and replaced with Wavetower. In so far as my reference in the

19 June 2014 Subject Sheet that ‘David GRIER in particular presented a version

of this document’ could be construed as a representation that Mr Grier actually

either presented the amended cash flow to the Independent Committee or

presented on that document to the Independent Committee, then I accept that

is an error. On reflection the correct wording I should have used is that he

‘commented on’ the cash flow (see statement of David Grier dated 24th October

2012) or that David Grier ‘explained’ ‘their analysis’ of the cash flow (as per the

minutes of that meeting).

21. In terms of criminality, the significance of this meeting is that Mr Grier was

present when CW told the Independent Committee that he was funding the

acquisition with his money and Mr Grier knew that this was a lie but kept

silent. In my assessment, David Grier was involved with GW and CW in the

acquisition process and was part of the inner circle. Again, as evidence of this

involvement, I would point to the email summary provided in the appendix to

this statement.”

[146] Mr Duncan then turned to the question: Can the court draw an inference of lack of

probable cause and malice from the foregoing? His answer to that question was no for the

following reasons:

Page 47 ⇓

•

First, Mr Duncan submitted that the language used by Detective Chief

Inspector R had to be looked at carefully. He submitted that the passage in the

SPR could only be described in one way: it was a garbled statement therefore

nothing could be taken from it and in particular it could not be taken from it

that there was any malice on the part of Detective Chief Inspector R.

•

Secondly, this is not a situation where Detective Chief Inspector R is not

offering an explanation for the impugned wording rather, his position is that he

sought to convey what the pursuer had told him in his statement. He accepts

that on reflection the wording is ambiguous and that he could have used

different wording, pegged to the underlying evidence on which he was relying.

•

Thirdly, if the suggestion of the pursuer is that Detective Chief Inspector R

sought to deliberately “fit up” the pursuer by using these statements, one only

needs to notice the language used to notice the problem with that. What did

the language within the SPR even mean: “Grier also provided that a financial

forecast was provided …”? If this was an intended deception by

Detective Chief Inspector R, it was not a very good one. Moreover, if one then

faces the history of the use of the phrase it becomes obvious that this was not

Detective Chief Inspector R’s intention. This can be seen from the fact that it

first appeared in a report at a point when the pursuer was not said to be a

suspect.

•

Fourthly, in the particular context of an exceptionally complex investigation

where the police, as they saw it, experienced immense difficulties in ingathering

evidence, the court has to be very careful about focusing upon individual

sentences within reports and asserting malice and want of probable cause as the

Page 48 ⇓

only possible explanation of the content of these sentences. The events of the

Independent Committee meeting of 24 April contradict such a narrow

approach. As Detective Chief Inspector R makes clear in the passages to which

the court’s attention had been drawn his real concern was that at the meeting

CW was questioned about the source of the acquisition funds and gave a

misleading answer. Standing the evidence available to the police indicating

that the pursuer knew CW’s answer to be dishonest, Detective Chief

Inspector R had probable cause to suspect and report dishonesty on the part of

the pursuer.

[147] Broadening out from looking just at the passages in the documents themselves there

were Mr Duncan argued other matters which entitled the court to say that Detective Chief

Inspector R was not acting maliciously.

[148] In respect of the second part of the Independent Committee lie namely: “David Grier

in particular presented a version of this document to the Independent Committee”.

Mr Duncan referred to two wider matters which he said showed that this error was not the

product of malice.

[149] First the error was not repeated in the summary of evidence that had accompanied the

petition. That he submitted was strong evidence that the Crown did not seek to rely on the

single sentence to put the pursuer on petition.

[150] Secondly the existence of the minutes was drawn to the Crown’s attention in the SPR.

The minutes are listed as production number 89 at page 111 of the SPR. Thus Detective Chief

Inspector R expressly drew the Crown’s attention to the key document that would have called

into question whether the “in particular presented” comment was indeed intended as an

Page 49 ⇓

accurate verbatim account of what occurred. That he argued pointed away from any

malicious intent.

[151] Moving on, Mr Duncan submitted that the charge relative to the Independent

Committee lie was fundamentally based on the Independent Committee having power to stop

any deal. Mr Duncan argued there was no question of the police/Detective Chief Inspector R

misleading the Crown in respect of this issue. On the contrary it was the police who had

drawn the Crown’s attention to the Independent Committee’s power, or lack thereof. This

pointed directly in the opposite direction from Detective Chief Inspector R being malicious.

This was Detective Chief Inspector R pointing out to the Crown, who required to legally

analyse the position, of the relevant factors, namely: the legal position regarding the

Independent Committee’s powers.

[152] Moreover, Mr Duncan noted that the petition contained no averments about the

powers of the Independent Committee. However, when the first and second iterations of the

indictment are turned to there are averments that the Independent Committee had special

powers to deal with certain matters and made reference to special resolutions granting them

such. None of these averments were based on anything said by the police.

[153] Mr Duncan contended that when the evidence was looked at as a whole it did not

support the pursuer’s case that Detective Chief Inspector R was “trying to fit up the pursuer”.

[154] Next Mr Duncan asked: could the court conclude at this point that in reporting the

matter to the Crown the police had probable cause? He urged the court not to take a narrow

view of this issue and concentrate on individual sentences rather it should look at the

gravamen of what Detective Chief Inspector R was seeking to report. Detective Chief

Inspector R’s concern related to the giving of misleading answers and in particular his concern

was that at the meeting of the Independent Committee CW had said something which in

Page 50 ⇓

Detective Chief Inspector R’s assessment was inaccurate and which as Detective Chief

Inspector R understood at that time Mr Grier knew that it was incorrect. This was based on

what PAB had told him and upon email traffic.

[155] The next question posed by Mr Duncan was this: do the errors go anywhere or put

another way can the court say at this point that they caused the prosecution. His answer to

this question was no and that answer flowed from this: the Crown’s case against Mr Grier

was one of wilful concealment and in support of this position he directed the court’s attention

to HMA v CW, GW and Grier 2017 JC 249 at paragraph 45. It was his position the court could

not hold that these two errors of expression procured a case of wilful concealment.

[156] Further he made this point: there could be no question of the police having procured

the prosecution of the pursuer. That is because, regardless of any ambiguity arising from

Detective Chief Inspector R’s use of words, from both a practical and legal perspective, the

Crown was required to undertake its own independent analysis of the evidence. Reiterations

of the various charges show that the Crown did so. There is no question of the prosecution

having proceeded purely on the basis of the Subject Sheet and the SPR which contained the

errors and without any analysis of the underlying evidence by the Crown. There can be no

question of the Crown being deprived of the ability to make its own judgment by

Detective Chief Inspector R’s errors within the SPR and the Subject Sheet. He referred to

Detective Chief Inspector R’s statement where he said this at paragraph 338:

“…Insofar that as there was any ambiguity in the SPR, Crown Office has had all the

evidence (the witness statements and documents would have been submitted to the

Crown after the submission of the SPR), including a copy of the minutes of the

Independent Committee meeting held on 24 April 2011 and so it would have been

clear from the underlying evidence who said what. In addition the SPR would have

been considered against all of the briefings and updates from which the Crown had

been provided prior to August 2014.”

[157] The next chapter at Mr Duncan’s submissions related to the letter of comfort lie.

Page 51 ⇓

[158] Detective Chief Inspector R’s position in respect of this was as set out in his statement

at paragraph 7:

“I now accept that my conclusion that the Ticketus funds were transferred on receipt of

a letter prepared by MCR dated 7 April 2011 was an error.”

He further said this at paragraph 220:

“’…The completion monies (circa £24 million which included £4 million VAT) for the

transaction between Ticktus and CW’s acquisition of the Club were transferred from

Ticketus via Clarke Willmott on 7 April 2011 to Collyer Bristow and held in a separate

joint client account set up with Collyer Bristow bankers, C Hoare & Co.

These monies were transferred after Ticketus Investment Committee received the

comfort it sought from CW and GW regarding what would happen to their investment

should there be an insolvency event.’

And

‘On 7th April 2011 at the request of the accused GW who stated this would allow the

deal to progress with Lloyds and MIH, Ticketus (after receiving the letter from MCR

via CW) authorised the completion monies circa £24 million to be transferred from

their solicitors Clarke Willmott’s client account to the Collyer Bristow client account.

The monies were held to the order of Clarke Willmott and not the accused GW or CW

as no deal had completed.’”

[159] The position of the defender in the Scott schedule is as follows:

“DCI R accepts that the statement in the SPR that funds were released by Ticketus

‘after reviewing the letter from MCR via CW’ is an error but believes that comfort was

being sought by RB of Ticketus around that time. Reference is made to lines 18 and

18B above. At all times, DCI R acted in good faith.” (See answer 20 in the Scott

Schedule.)

[160] Mr Duncan’s submission was that the foregoing amounted to this: the statements in

the SPR, therefore, can be explained as being the product of a simple error on the part of

Detective Chief Inspector R, an error which he now accepts. However, in these circumstances,

it cannot be said that the pursuer is bound to succeed in demonstrating malice or a lack of

probable cause on this point. Nor is there any prospect of the pursuer succeeding in the

context of a motion for summary decree in showing that through the foregoing statement the

Page 52 ⇓

police procured the prosecution of the pursuer. He again referred to the way in which the

Crown had developed the articulation of the charges against the pursuer.

[161] In understanding the explanation for this error Mr Duncan said that it was important

to consider the detailed background to the transfer of the Ticketus money. It occurred in four

stages: there was the transfer to Ticketus own solicitors Clarke and Willmott. There was then

the transfer by Clarke and Willmott to a jointly controlled client account with Collyer Bristow

which remained under the control of Ticketus. There was then the release of funds by

Ticketus to GW of Collyer Bristow. Finally there was the transfer to Lloyds to pay down the

debt.

[162] Mr Duncan submitted that the transfer of the money was not a straightforward matter

and what had been said by Detective Chief Inspector R had to be read carefully and in the

context of that complex background.

[163] In development of the above Mr Duncan referred to page 32 of the SPR where the

following is said:

“These monies (the £24,000,000) were transferred after Ticketus Investments

Committee received the comfort it sought from CW and GW regarding what would

happen to their investment should there be an insolvency event. CW and GW met

with Grier and C of Duff & Phelps regarding this D&W’s London offices. A letter was

subsequently agreed between the parties. Contents of this were provided to Ticketus

via fund manager the witness RB.

The monies were held subject to an undertaking provided to Clarke Willmott by the

accused GW which in effect provided the monies were held to Clarke Willmott’s sole

order.

[164] Mr Duncan emphasised three points within the said section:



The use of the phrase “the comfort” rather than “letter of comfort.”



That reference was made to “A letter was subsequently agreed between the

parties.” (emphasis added)

Page 53 ⇓



“the monies were held to Clarke Willmott’s sole order.”

[165] The error he submitted at page 43 of the SPR had to be looked at in the context of what

was said at page 32 of the SPR.

[166] Mr Duncan argued the court might be entitled to say that none of what was said about

the letter of comfort was very clear. That he submitted was the whole point. If

Detective Chief Inspector R was attempting to fit up the pursuer it was not a good one and

was not very successful. All of that is indicative that there was no malice here.

[167] Once again it was argued by Mr Duncan that it was clear that the skills of

Detective Chief Inspector R as a draftsman were not good, however, malice should not be

viewed through that lens.

[168] It was his position that the words were not clear and that at a minimum there was

room for doubt as to what was meant in the SPR.

[169] Looking beyond the terms of the SPR itself Mr Duncan directed the court’s attention to

a note prepared by Detective Chief Inspector R for the advocate depute in the case. In this

document Detective Chief Inspector R said this:

“The funds had not been transferred by 7 April they were always in control of

Ticketus. The funds were moved on the basis that the tax issues had been addressed.

The letter followed the GW RB email exchanges. DW was copied in to all and had

knowledge of what was being asked for and given. At times he provided his opinion

when asked by C.”

[170] The part emphasised in this note by Mr Duncan was that “they (the monies) were

always in control of Ticketus.” This he submitted showed the complexity of the situation.

[171] Thus he urged the court not to take one sentence and look at it on its own. The court

had to look at the entirety of what was said and then place the error within that matrix.

Page 54 ⇓

[172] Finally he said this: that in any event when one turns to the charge itself it is not based

on what Detective Chief Inspector R had said. The petition contains a charge at page 2(vi)

which does not reflect what was said by Detective Chief Inspector R.

[173] The next chapter of Mr Duncan’s argument was this: could the court be satisfied that

in his reporting of criminality to the Crown Detective Chief Inspector R could not have had

suspicions of criminality.

[174] Mr Duncan made two general points on commencing his submissions under this head:

first Detective Chief Inspector R’s position was that he had a basis and it was important that

hindsight should not be applied as the test in relation to that and in relation to these matters it

was important to take a broad view and not look at one sentence or two sentences in what

were long reports. It was necessary when thinking about probable cause to take a broad view.

[175] The court should take note of the evidence which led him to suspect the pursuer.

[176] He directed the court’s attention to Detective Chief Inspector R’s statement where in

section C he had set out the basis for his reporting of the matter. Mr Duncan submitted that

the length of his summary was eloquent of the detail of the examination by Detective Chief

Inspector R of this issue and the amount of evidence that there was before him.

[177] Mr Duncan in particular relied on the following:



At paragraph 5 Detective Chief Inspector R referred to the pursuer having

accompanied PAB to the meeting at Dundas and Wilson’s office in London and

at that time PAB had explained to the pursuer that the money being used to pay

the Lloyds debt was being funded by Ticketus.



At paragraph 8 Detective Chief Inspector R says this:

“I do believe that comfort was being sought by RB of Ticketus on that

date (see below – in an email of 5 April 2011 RB states ‘For our IC to get

comfortable on final sign off to release the funds’) and at this comfort

Page 55 ⇓

did come in the form of the letter provided as per the last email sent on

7 April 2011 at 2329 hours by PAB to David Grier (‘Thanks David very

much appreciated. I will forward a copy to RB now. Speak

tomorrow.’). Comfort had also been provided by the response GW gave

to the ‘tax case hurdle/info’ email which had been sent by RB.”

There is thereafter reference to a number of emails.



Paragraphs 10-18 of the statement of Detective Chief Inspector R cover what he

relied on in showing what the pursuer knew at relevant stages.



There was reference to an email of 5 April 2011 from PAB to the pursuer which

refers to Ticketus as “our third party funder” and Detective Chief Inspector R’s

position is this: that this email supports the view Ticketus was funding this

matter and the pursuer was aware of this.



At paragraph 13 there is reference to a further email of 6 April 2011 which again

refers to investment funds and the importance of: “this area of funding is

sensitive and had been asked to keep within the firm.”



It was Mr Duncan’s position that again what was said there could be accepted

by a court as showing that the pursuer knew what was going on regarding

Ticketus.



It was his position that the same inference could be taken from the email

referred to at paragraph 15.



In respect of paragraph 16 it referred to a further email on 6 April 2011 which

was sent to various persons within Duff & Phelps or others. It was

Mr Duncan’s position that what this email could be construed as saying was

this: there was an above the board Ticketus agreement and there was a below

the table agreement that was about using the three year deal to pay down the

Page 56 ⇓

Lloyds Bank debt and provide funding. This email related to the Ticketus

purchase agreement.



Its relevance was that it was being discussed within Duff & Phelps and

Detective Chief Inspector R was entitled to be suspicious that the pursuer and

Duff & Phelps knew of this.



Mr Duncan relied on the terms of paragraphs 17 and 20.



Turning to paragraph 21, this was an email of 6 April 2011 in which a

Paul Smith replied to the pursuer’s email with subject heading “tax case

hurdle/info”. He wrote:

“Hi David did you make any progress? A load of queries late in the day

and I guess difficult to fully answer. Were you aware he was funding

the deal in this manner, I thought it was his cash? Fingers crossed for

you on the deal.”



It was Mr Duncan’s position that the above was of some importance in respect

to the pursuer’s knowledge as to the funding of the acquisition.



Mr Duncan also relied on the terms of paragraphs 23 – 26 and paragraphs 29

and 32.



Mr Duncan then turned to look at emails which post-dated the acquisition

which he submitted Detective Chief Inspector R was entitled to think showed

that the pursuer knew what was going on. In paragraph 35 Detective Chief

Inspector R states:

“On 11 May 2011, David Grier emailed an attachment to the witness MB

with no instructions or comments. The attachment comprised financial

forecast, a profit and loss cash flow and balance sheet forecast. It also

had other tabs of information relating to the specific years of season

tickets sold to Ticketus. It was for the next four years. It showed money

coming in from Ticketus and money going out to Lloyds around

the £20,000,000 level. The email originated from RB of Ticketus and

came to Grier via PAB. RB states that when he first spoke with

Page 57 ⇓

David Grier it was on a conference call between 16 and 19 May 2011 and

it was apparent to RB that by 19 May 2011 David Grier was fully aware

of the scale and the mechanics of the Ticketus transaction with the

Club.”



Mr Duncan also placed particular reliance on paragraph 38 where

Detective Chief Inspector R states:

“Also informing my suspicion in relation to Grier is an email exchanged

between MB and NB on 1 June 2011 wherein NB wrote: ‘Sounds like an

interesting job what’s the scope? Who else is in on it?’ MB reply:

‘All the Partner Group know about it as it is very finely poised – we are

not broadcasting involvement to anyone in case guy who has bought it,

our client, makes a mess of the whole thing.

We don’t want to be associated too heavily. Led by DG (Grier) but DW

was on sight as well and PJC closely involved. We’re engaged to review

short term cash flow and org chart/associated cost and liaise with

HMRC on the Club’s behalf – although we are unofficially being

dragged into other things as the guy who has bought it hasn’t got a

fucking clue – no plan, no strategy, did very little DD – it is honestly

baffling.

He only went ahead and did it as hasn’t risked any of his own cash –

paid a £1 for shares and funded repayment of bank debt by forward

selling three years worth of season ticket revenue. So every man thinks

he is a saviour but in fact it’s all a big front and Club has as much debt

as it had before, just as someone else.

Very long story but if interested and if you have the time… have a look

at a website called ……………...com or it might be .co.uk Club are under

investigation with HMRC for a decade of tax evasion which they claim

amounts to circa £50,000,000 – if they win Club will go bust and that’s

our endgame ultimately…’”

Mr Duncan submitted that in respect to the above that at this stage the court could not

be satisfied that Detective Chief Inspector R was not entitled to think that he was lied

to by the pursuer about the extent of his knowledge during the deal.



Mr Duncan also relied on the terms of paragraph 43 where Detective Chief

Inspector R says this:

Page 58 ⇓

“Also, very significant is neither Grier… disclosed any of the above

emails to me when I was taking statements from them. They were

obtained from other sources including PAB or, after certain warrants

had been executed, from Duff & Phelps and Collyer Bristow.”



Mr Duncan accepted that it was clear that considerable reliance had been placed

by Detective Chief Inspector R on the evidence of PAB. His discussion of this

starts at paragraph 168 of his statement and goes through to paragraph 175.



Mr Duncan in respect of this reliance on the evidence of PAB in particular

emphasised paragraph 173 of Detective Chief Inspector R’s statement which

says this:

“Following this asked PAB who all knew about the full details on the

Ticketus deal CW used to acquire the Club. PAB included ‘MCR,

David Grier and PJC’ as those who knew. PAB stated he was aware of

the press coverage and the denials being made by them (MCR now

Duff & Phelps). It is stated that he asked CW before telling Grier about

the deal who stated ‘As he’s now formally engaged no problem’. He

stated that this occurred in a pub after hearing Grier attended a meeting

with Lloyds Bank and Murray Group representatives in London. He

said Grier had never heard of Ticketus before so he had to tell him how

Ticketus worked and that CW was raising funds against the future sale

of season tickets. PAB also confirmed to me that he told Grier the

funding raised would be used to pay down the Club’s debt to Lloyds

Bank.”



Mr Duncan submitted that the above was of considerable importance. In the

course of his submissions Mr Smith had sought to suggest that no reliance

could be placed on the evidence of PAB. It may be that following a proof a

court decided that no reliance could be placed on the evidence of PAB.

However at this stage the court could not say that no reliance could be placed

on the evidence of PAB.



From paragraph 185 Detective Chief Inspector R sets out in detail his position

regarding what he believed given the foregoing were attempts to pervert the

Page 59 ⇓

course of justice by the pursuer. Mr Duncan said it was reasonably clear from

the terms of this paragraph that the main concern of Detective Chief Inspector R

was related to this question of an attempt to pervert the course of justice by the

giving of misleading statements concerning knowledge of how CW had

acquired the Club using Ticketus. In the last sentence Detective Chief

Inspector R said this: “At this time, however, I was unclear of exactly what role

C, DW and Grier played in the acquisition and management of the Club.”



From paragraph 309 onwards Detective Chief Inspector R deals with certain

transcripts of recordings made by CW.



In particular at paragraph 309 he refers to a transcript during May of 2012

where David Grier is clearly heard saying: “We probably did know what was

going on with Ticketus”. He also added words to the effect “There is no email

traffic whatsoever… that says we did”.



At paragraph 310 Detective Chief Inspector R says this regarding the above

section of the transcript: “I regarded this as highly significant”. He goes on to

say that CW in the same conversation said this: “We all know you did… so you

knew the structures of the deal”.

Mr Duncan’s position regarding the above parts of the transcript was that the court at the

stage of the summary decree motion could not come to a conclusion on the questions which

were clearly raised by the content of the transcript.



In a section dealing with his conclusions at paragraph 430 Detective Chief

Inspector R says this:

“I did not initially suspect that David Grier… were involved in

criminality. I was always trying to see the case from their side until

there came a point when I could no longer support the view that they

Page 60 ⇓

were not involved. There was a tipping point when the only way in

which everything fitted together was that they were involved – they

knew prior to acquisition that the Ticketus deal was being used to

acquire Rangers by CW. I remain of that view”.



Mr Duncan argued that this conclusion was a major challenge to the pursuer.

He submitted that Detective Chief Inspector R had given the pursuer the benefit

of the doubt, even after the BBC published certain allegations. Following these

allegations Detective Chief Inspector R had reported in December 2012 that he

did not regard the pursuer as a suspect.

[178] For all of these reasons Mr Duncan argued strongly that there was a proper basis for

Detective Chief Inspector R’s suspicion.

[179] Mr Duncan then turned to address the issue: at what point was the delict of malicious

prosecution completed? He began by examining the way that Mr Smith had approached this

question in the course of his oral submissions. He argued that it appeared from the way that

Mr Smith had addressed the court that what was being put forward was that the relevant

point was when the petition was served.

[180] Mr Duncan made two short points in response to this:



It is not the case which the pursuer has put forward in his pleadings and which

the defender has been required to answer. The case which the pursuer offers to

prove is that the defender’s officers drove the case from the stage of the petition

to the end of the prosecution.



The defender’s case is that a prosecution is a unum quid and cannot be divided

in the way the pursuer seeks to put forward.

[181] In development of this second proposition he noted that neither party had been able to

put forward any authority which supported the proposition the prosecution could be divided

Page 61 ⇓

in this way. Accordingly he submitted regard had to be had to first principles. He accepted

that having regard to the Stair Encyclopaedia at paragraph 446 it appears that the essence of

an action of malicious prosecution is about its “instigation”. However he submitted that the

court should be careful about that. Conceptually he submitted it seems more likely that one

has to look at a completed prosecution. He submitted that the idea of there being malice at

one stage and then no malice was a very odd one. It is not normal for a prosecution to be

considered in terms of individual parts of the prosecution.

[182] He submitted that a conceptually more appropriate way to look at the matter was to

approach the prosecution as a unum quid.

[183] It was his submission that Mr Smith’s approach could not be said to be one which was

more than of doubtful relevancy. He submitted that there was clearly a major legal question

in relation to this matter and he reminded the court that this was not a debate and accordingly

this issue had to be left for another day.

[184] Moreover even on the basis of an argument that the appropriate point to consider was

the date of the petition, the timeline in respect to the petition would have had to be had regard

to. The SPR recommending charges was dated 8 August 2014 and on 10 October 2014 the

Crown was told the police were proceeding to executive action. Accordingly the Crown had

had notice of what was happening here for some two months. In these circumstances it was

not open to the court to say the Crown was unable to make an independent judgment in

relation to this matter. He submitted that all of that was enough to give pause for thought

regarding whether the pursuer had discharged the onus to prove procurement of the

prosecution on the part of the defender.

[185] The next section of Mr Duncan’s submissions was to consider the role in prosecution of

the Crown.

Page 62 ⇓

[186] He began by arguing as regards the role of the Crown, the position of the defender is

this:

“The police are bound to comply with any instructions that the Lord Advocate may

from time to time issue to the chief constable. In relation to the investigation of

offences the chief constable, and through him his constables, must comply with the

instructions of the procurator fiscal. The ultimate responsibility for the investigation of

criminal offences lies with the procurator fiscal and not with the police. He is

completely independent of the police, who are subordinate to him and subject to his

control. […] The police report cases to the procurator fiscal where in their view there

is sufficient evidence to justify taking proceedings against a particular accused. The

procurator fiscal may, however, instruct police to report to him any case at any time.”

Mr Duncan then directed the court’s attention to the following in the defender’s pleadings:



answer 6 (pages 19/20) where it is averred that a senior PF was involved in the

decision as to how PAB was to be treated;



answer 7 statements and minutes of meetings were supplied to the Crown;



answer 9, averred that the police investigation proceeded under the direction of

the Crown;



answer 10, averred that:

(1) updates were provided by the police to the Crown during the

investigation;

(2) requests were made for directions from the Crown;

(3) enquiries were directed by the Crown;



answer 10 was further referred to between pages 47 and 63 including the

averment that the then Lord Advocate was “personally involved” in the

prosecution that averment being based upon what senior counsel for the Crown

had said in the Whitehouse case;

Page 63 ⇓



Lastly the court was referred to Answer 11 at page 65, Answer 19 and

Answer 20 and in particular the averment that the petition was framed by the

Crown.

[187] Following the above detailed review Mr Duncan made five points which he said

flowed therefrom.



All of the above goes to the issue of procurement of the prosecution no matter

what stage of the prosecution is looked at. At all stages it was abundantly clear

that the police told the Crown what they were relying on. To make out

procurement of the prosecution by the police, the court would have to hold that

the Crown was unable to ask any questions of the police. An example of this

was the Crown unable to ask the police to see the minutes of meetings of the

Independent Committee and unable to ask for clarification relative to the letter

of comfort.



Moreover, the above was relevant to malice. The police at all stages were

telling the Crown what they were doing. This was a situation which was

entirely different to that in the Rees case. In that case the police did not tell the

prosecution what they were doing.



The above clearly showed that the Crown had been given ample notice of the

difficulties relative to the pursuer regarding the Independent Committee.



All of the foregoing averments when taken together are evidence that there is

an issue to try in relation to want of probable cause. The defence in particular

offers to prove at proof police had the instructions of the Crown and the

approval from the Crown to proceed, that is relevant to the above question.

Page 64 ⇓



Lastly, the defender places reliance on these averments in respect of two pure

legal issues:

(a) The police at all times were acting in terms of their statutory obligations

in obtempering the instructions of the Crown. This is a legal point

which the pursuer will have to face.

(b) The police will say that insofar as they were the hands of the Crown

they are entitled to the same immunity from suit as the Crown.

[188] The next section of Mr Duncan’s reply dealt with the issue of disclosure of documents.

[189] Under this head he dealt with two specific matters, first the “Don’t tell David email”.

[190] Mr Duncan commenced by saying that as he understood the pursuer’s position the

obligation to disclose this document arose under section 117 of the 2010 Act. In passing he

noted that this particular obligation was not pled by the pursuer. The first substantive point

he made in relation to this was that it was difficult to see how civil liability arose from breach

of that provision. He pointed out that it was only engaged after service of the petition and the

requirement of disclosure was subject to the condition of “reasonable practicability”. It was

his position that the issue of reasonable practicability arose very sharply in respect of this

document as it was one out of 130,000 documents. He argued it was very difficult to

understand how the pursuer can prove how a failure to pull out one document from 130,000

can amount to malice.

[191] Secondly as to whether this email is exculpatory he referred to the Scott schedule at

lines 24 – 26 and to Detective Chief Inspector R’s statement at paragraphs 191 – 192. Thus

although the email indicates that the pursuer was being kept away from the share purchase

agreement nothing in it related to the agreement with Ticketus.

Page 65 ⇓

[192] Thirdly as to whether the document was provided to the Crown, there were two

sources of the email: first the cache of 130,000 emails and Detective Inspector O in her first

statement at paragraph 167 and in her second statement at paragraph 67 indicates that the

cache was in a disclosure list sent on 5 January 2016 and secondly it was contained in certain

discs recovered from Stevenson Harwood in December 2013 and in Detective Inspector O’s

supplementary statement at paragraphs 41 and 42 these discs were signed off to the Crown on

23 July 2013 and returned on 18 September 2014.

[193] He also pointed out that in terms of Detective Chief Inspector R’s supplementary

statement at paragraph 41 the email was provided to the defence in February 2014

(Mr Clibbon).

[194] As to disclosure more generally Mr Duncan said this: the defence position is that it is

not necessary for them to prove when certain productions were provided to the Crown rather

it was enough for the defence to show that the documents were available. It was open to the

court to hold at a minimum that interrogation of primary material by the Crown was clearly

possible including the “don’t tell David memo”. Mr Duncan in particular referred to [TAB 16]

in the pursuer’s bundle and argued that what it shows is not merely the uploading of

documents to a Crown database but production of documents to the defence by the

prosecution by December 2014 indicating that the Crown by that time had had sufficient time

to consider this documentation.

[195] Mr Duncan then moved on to consider the requirements for succeeding at proof in a

case of malicious prosecution.

[196] In his note of argument, the pursuer explains that his case is one of malicious

prosecution. The pursuer says “that, provided certain averments…and circumstances subsist,

a person providing information to the prosecuting authorities can competently be sued for

Page 66 ⇓

‘malicious prosecution’”. He did not take issue with that as a very general statement of the

law; the defender does not say that there are no circumstances in which Scots law recognises

as relevant actions for malicious prosecution where the wrongdoer is someone other than the

actual prosecutor.

[197] But the issue, in the context of a motion for summary decree, is not simply whether the

pursuer’s averments are sufficiently relevant to go to proof but whether, at that proof, he is

bound to succeed. None of the Scottish authorities on which the pursuer relies assists with

that question; none of them is concerned with judicial determination of an action of malicious

prosecution after proof. The defender is aware of no case of malicious prosecution against

police officers proceeding to (far less succeeding at) proof in Scotland. Thus, there is no

authority which explains how at proof the court ought to adjudicate upon an action of

malicious prosecution in the particular context of the law in Scotland regarding the role of the

Crown and police in prosecution of crime in Scotland as he intended to turn later in his

submissions. In this situation, Lord Rodger’s reminder that a motion for summary decree is

not the forum within which to embark upon detailed exegesis of the law is particularly apt.

[198] It was Mr Duncan’s position that the pursuer ignored the principles governing the role

of the Crown and police in the prosecution of crime in Scotland and rather, relying heavily on

English cases, the pursuer identifies what he considers to be the necessary legal ingredients for

succeeding in a case of malicious prosecution where the wrongdoer is someone other than the

Crown. Among the necessary elements, the pursuer says he requires to demonstrate that the

wrongdoer (a) acted maliciously and (b) without probable cause and (c) that he procured the

prosecution.

[199] In respect of the third element although in overall support of his case of malicious

prosecution the pursuer relies heavily upon the decision of the Court of Appeal in Rees &

Page 67 ⇓

Ors v Commissioner of Police for the Metropolis, he barely mentions it at all in relation to the third

element to be considered, which is concerned with causation. That is surprising because the

discussion of McCombe LJ at paragraphs [45]-[60] is of particular assistance in understanding

the exacting nature of the causation threshold the pursuer would require to meet at proof. The

pursuer requires to show that the defender’s officers “procured” the prosecution. In practical

terms, as emerges from McCombe LJ’s discussion, this means that the pursuer requires to

demonstrate that, acting maliciously and without probable cause, the police deprived the

prosecuting authority of the ability to exercise a proper independent judgment in deciding

whether to prosecute the pursuer. This critical plank of the pursuer’s case is entirely absent.

Not only is this fatal to the motion for summary decree, it leads to the result that the case falls

to be dismissed as irrelevant.

[200] Returning in this context to the issue of the investigation and prosecution of serious

crime in Scotland the pursuer’s position appears to be that the whole of the police

investigation into CW’s purchase of the majority shareholding was conducted maliciously and

without probable cause from beginning to end. It also appears to be the pursuer’s position

that the defender’s officers are responsible for - that they procured - the whole of the

prosecution from beginning to end; that they are responsible for its inception and for the

absence of any cessation prior to dismissal. This brings into sharp focus two things with

which the pursuer’s motion for summary decree requires to contend.

[201] The first matter is what he had submitted earlier, namely: to notice the differing roles

and responsibilities as between the police and the Crown for investigation and prosecution.

Ultimate responsibility for the investigation of crime lies with the Crown and not with the

police. Mr Duncan directed the court to the following authorities in support of that

proposition: section 12 of the Criminal Procedure (Scotland) Act 1995; section 17(3)(a) of the

Page 68 ⇓

Police and Fire Reform (Scotland) Act 2012; Smith v HM Advocate 1952 JC 66 at pages 71-72;

McBain v Crichton 1961 JC 25, at page 29; HM Advocate v Miller (in the particular context of

investigations post-arrest) 2017 SC 1, at paragraph 12; and to Crown Office Book of

Regulations, Chapter 2, paragraphs 2.1, 2.1.2. The investigation and precognition of major

fraud cases is the subject of a specific regime in chapter 2.29 of the Book of Regulations. The

essence of this regime is the early involvement of the Regional Procurator Fiscal, and possibly

a specialist unit in Crown Office, in a case where it becomes clear that the case is likely to be

indicted (rather than the subject of summary complaint) in the Sheriff Court or the High Court

and, thus, requires precognition.

[202] Overall, the position in relation to investigation can be summarised as follows: