Douglas J. Cusine: Scotland’s malicious prosecution scandal – the silence is deafening

Douglas J. Cusine: Scotland’s malicious prosecution scandal – the silence is deafening

We have a new justice secretary who, at least in one respect, bears a similarity to his predecessor: he has not made any public statement about the ill-fated prosecution of Whitehouse and Clark, the Rangers’ administrators.

I wrote to Keith Brown on 19 May asking about a public inquiry and received an automated response. On 8 June, I wrote a reminder and his assistant private secretary advised that I would get a reply – day, month, year unspecified. The presiding officer referred me to the Scottish government, who it seems condones the absence of any public statement from this justice secretary and the previous one. No point, therefore, in raising the matter with them. My email to them about the previous finance minister, Mackay and his use of public funds, was not even acknowledged.

In February, the then Lord Advocate said in Parliament that there ought to be a public inquiry and no one in Parliament demurred. The new Lord Advocate made a statement criticising, by name, three persons involved in the prosecution, a statement which is certainly unusual, if not unprecedented.

It was accepted that the Whitehouse and Clark should never have been prosecuted and they received £21 million from public funds. One would have thought that the justice secretary would accept that the public are entitled to know why the prosecution was mounted, who made the decision to prosecute, what steps will be put in place to ensure that there is no repetition. There may be some in the Crown Office who had nothing to do with this matter, but they may feel that they are “guilty by association”.

These issues so far have not made a sufficient impact on the justice secretary to prompt him to make any public statement. He may be hoping that, if no one raises the matter, it will be forgotten: that would be a serious tactical mistake, as there are claims in the pipeline from others involved in the Rangers case and, indeed, speculation that claims could result in compensation as much as £100 million.

Money has been and will be paid out of public funds, but that seems to be of no importance.

The issue raised has broader implications than the Rangers case. In the report on the inquiry into the Salmond “harassment” matters, one important point was whether the government is answerable to Parliament, or not. Paragraph 734 states: “The experience of our committee, particularly in respect of its efforts to obtain government legal advice, suggests that the Parliament may have insufficient powers to hold the executive to account. The Committee recommends the establishment of a commission to review the relationship between the executive and the legislature and make recommendations for change.” One hardly needs say that the government will not be keen to have this commission, because it was their approach to the Committee/Parliament which gave rise to the comment.

It is not only sad, but worrying that public funds of that magnitude can be used, but the Scottish government does not seem to feel accountable. It is sad that the compensation was paid because of a prosecution that should never have taken place and yet, the Scottish government does not seem to be concerned that the Crown Office and indeed the role of the Lord Advocate were the subject of criticism at the time.

It is very worrying that the government seems to be of the view that it is not answerable to Parliament, the members of which seem to be in favour of a public inquiry into the Rangers case. It may be that it required a degree of perseverance to get as far as para. 734, and that the Scottish government prefers the “executive summary”.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.

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