Police and prosecutors accused of 'criminality' over Rangers fraud case prosecutions

Court documents reveal details of allegations that police and the Crown Office acted unlawfully and in "abuse of power" in relation to the fraud case inquiries surrounding the purchase of the club by Craig Whyte reports The Herald.

Among the concerns that surfaced were around the examination of a hacked email account of former Rangers owner Craig Whyte and a trawl through a cache of protected confidential legal communications, as part of the inquiry.

The court has heard that police initially 'withheld' emails and recordings which were illegally accessed by a hacker, eventually sold to the club’s chairman David King for £20,000 and then passed onto the police.

During Craig Whyte's fraud trial his lawyer said that an individual known to the Crown "stole material" known as the Charlotte Fakes trove of emails and recordings after hacking into the former Rangers owner's computer.

The court papers emerged in the case of key Rangers takeover figure David Grier of Duff and Phelps who is suing the Chief Constable and the Lord Advocate for a total of nearly £9m over wrongful arrest. Both the Chief Constable and the Lord Advocate are contesting the action.

The court files in Mr Grier's damages case also reveal allegations that moves were made to obtain a warrant from a sheriff rather than the High Court to secure the privileged documents from Duff and Phelps solicitors in an attempt to secure prosecutions in what the High Court in London labelled "an abuse of state power".

It is argued that the correct practice was to secure the warrant through the High Court where criminal proceedings against Mr Grier had already begun.

Legal firm Holman Fenwick Willan was awarded £500,000 costs at the High Court through carrying out an illegal raid.

"No prosecutor would act in 'abuse of power' as has been determined by a court of competent jurisdiction," stated Mr Grier's legal team in a submission.

The court papers further claim there was a further use of legally privileged material by police through use of Duff and Phelps CD discs with emails and other documents which included sensitive legal material including a potential action against the BBC, which had broadcast an expose over the controversial sale of the club to Craig Whyte in the documentary Rangers: The Men Who Sold The Jerseys.

It is further claimed that the Charlotte Fakes trove uncovered an executive who had been involved in a potential offer for the club rejected as "insufficient".

The club was sold to the Sevco consortium headed by Charles Green for £5.5m in 2012 and its sale at 'under value' was an important component of the doomed fraud conspiracy allegations.

But the legal team for Mr Grier who is suing the Chief Constable and the Lord Advocate for a total of nearly £9m says that it was never investigated.

Representatives for the Lord Advocate have objected to what they say are claims of criminality over the way the prosecution was conducted.

Gerry Moynihan QC, for the Lord Advocate, said it was contrary to procedure to bring accusations of criminality in relation to the investigation to court which had not previously been raised.

He said allegations in relations to boxes of information obtained in relation to Duff and Phelps and a law firm that were properly raised with appropriate warning would have led to a debate about its relevance.

Further allegations surfaced in papers seen by the Herald on Sunday relating to the damages case pursued by Mr Grier, a key figure in businessman Craig Whyte's purchase of Rangers from Sir David Murray for £1 in May 2011.

Former Rangers administrators David Whitehouse and Paul Clark along with Mr Grier and four others were subjected to detention and criminal proceedings in relation to fraud allegations in the wake of Craig Whyte's disastrous purchase of Rangers and its subsequent sale before a judge dismissed all charges.

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

Mr Whyte had agreed to take on Rangers' financial obligations, which included an £18m bank debt, a potential £72m 'big tax case' bill, a £2.8m "small tax case" liability, £1.7m for stadium repairs, £5m for players and £5m in working capital.

But he controversially helped fund his takeover by setting up a loan in advance from London-based investment firm Ticketus against rights to three to four years of future club season ticket sales in a bid to raise £24 million and pay off bank debt as part of a share purchase agreement with Sir David Murray.

Mr Grier has always said he was unaware that London finance firm Ticketus funded Mr Whyte's controversial purchase of the club by buying up rights to future season tickets.

Mr Grier, of London was charged with fraud, conspiracy, a charge under the Proceeds of Crime Act and a charged of attempting to pervert the course of justice - before the case was dropped.

Prosecutors and the police argue that they had a degree of reasonable cause to pursue Mr Grier who was an executive with Duff & Phelps in the wake of the controversial BBC documentary.

The Chief Constable argues that officers formed a "reasonable belief" that he was implicated in criminal wrongdoing and had assisted in a fraudulent scheme.

Court of Session judge Lord Tyre has already ruled there was no “probable cause” to prosecute Mr Grier and the continuing case is trying to establish malice and the amount of damage caused.

Mr Grier's legal team said in the legal submissions: "The Crown were driven by a desire to convict any or all of [Mr Grier], Mr Whitehouse and Mr Clark irrespective of the evidence available against any or all of them.

"It is believed and averred that that was because they were seen as 'high profile individuals."

Andrew Smith QC, representing Mr Grier said that the way aspects of the case was handled amounted to oppressive conduct. He said another judge had said that he did not consider he could see that there was oppressive conduct in bringing the charges against Mr Grier - but that was without knowing the full details of what had happened, including the seizure of discs which were legally privileged.

"I think each of the defenders acknowledges that there were there was to some extent in some respects, unsatisfactory conduct. But the analysis of the case ... is utterly eclipsed by the wrongdoing, which we say has occurred.

"If the rules are being broken, that is evidence of malice," he said.

According to Scottish law oppression is seen where an abuse of executive power has occurred and an unfairness has arisen which has caused such prejudice relief is entitled.

He said the prosecution had been led by the Crown Office - whereas south of the border there's a "very clear line" between the investigation by the police and the involvement of the English version of the Crown Office, the Crown Prosecution Service on the other.

"This case is different, because the Crown were involved, in fact they directed this investigation take place from the outset directed the police, the Crown were in it from the beginning.

"So, in these circumstances it is somewhat out of the ordinary, I would think that there was the very close involvement of the crown and the police together."

He also said he believed that Jim Keegan QC was “thrown in at the deep end” when he was asked to handle the prosecution against Mr Grier.

And he said claimed that that the then Lord Advocate Frank Mulholland QC - who now sits in the high court as judge Lord Mulholland - had some involvement in ‘directing’ the prosecution. The 'hand on the tiller' claim is denied by representatives of the Lord Advocate.

Mr Grier's legal team say police took possession of the Charlotte Fakes database containing correspondence between Mr Whyte and other through Mr King.

According to the court documents, Mr Grier's team assert that the Crown was aware that the police had accessed an unlawfully obtained version of the database and sought to conceal that.

"The material was not 'intelligence' gathered material. It was illegally obtained material," the state.

"The efforts by the Crown to avoid disclosing it and its illegal source, itself is unlawful.

"Accordingly at various stages the Crown was aware that there had been gross irregularity in the proceedings, and failed to disclose that to the pursuer or his legal advisers."

They added: "The Crown failures to disclose matters namely the implication of another individual in possible fraud regarding the purchase of the club, the existence of the Craig Whtye database and its provenance, the lack of incriminating material upon it, the presence of exculpatory material upon it, the accessing of documents over which privilege was maintained.... were all matters which the Crown ought to have disclosed to [Mr Grier]," said the legal team. "Far from disclosing the material, in several respects the Crown took active steps to conspire with the police to manufacture a reason (which was false) to avoid disclosure."

Mr Moynihan said criminality had been raised in aspects of the case relating to boxes of documents. The court heard that legal privilege had been asserted in relation to boxes of files obtained from Duff and Phelps and a law firm.

"He said [Andrew Smith] is alleging criminality that was never raised" and said it contradicted past Scots law to bring forward a proposition of criminality at a late stage.

"When something like this, you know, a mistake that's being made, is going to be translated into a crime counsel ought to have raised it, ought to have raised that," he said.

He said the evidence showed prosecutors and police acted appropriately and lawfully.

“As far as malice is concerned my lord, these people were not acting out of an ulterior motive - they rightly or wrongly believed there to be a sufficiency of evidence," he said.

“They proceeded, wrongly, on the basis that there was a sufficiency of evidence to bring the case to trial.”

Lord Tyre is to give a judgement in the case later in the year.