SCOTLAND’S most senior prosecutor has been accused of an “abuse of process” in a £14m wrongful arrest damages claim by a key figure in Craig Whyte’s takeover of Rangers.
It comes as David Grier, an executive with Duff & Phelps and a negotiator in the Craig Whyte’s takeover more than doubled his claim against the Lord Advocate over the failed club fraud case.
Mr Grier is now seeking £5m instead of £2m from the Lord Advocate. He is also making a claim against Police Scotland for £9m.
The Lord Advocate was accused of an “abuse of process” over a defence of the claim which Mr Grier’s legal representatives says lacked “objective, reasonable and probable cause”.
The claim, denied by the Lord Advocate, emerged as Mr Grier continued a multi-million-pound wrongful arrest case in connection with the botched probe into the takeover of the Ibrox club by Mr Whyte.
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Mr Grier was subjected to criminal proceedings with others in the wake of Craig Whyte’s purchase of Rangers from Sir David Murray for £1 in May 2011 and its subsequent sale before a judge dismissed the charges.
Mr Grier and others had criminal cases against them dropped leaving Mr Whyte last man standing in a fraud conspiracy trial. Mr Whyte was acquitted three years ago at the end of a seven-week trial.
Andrew Smith QC, acting for Mr Grier, has told the Court of Session that there was a “significant admission” that there “lacked objective, reasonable and probable cause” in the pursuit of the executive over one of the charges he faced under the Proceeds of Crime Act 2002.
“There is an admission to that extent,” he claimed.
He said he struggled to see where the fraud was and there was “simply no evidence” on which the decision for prosecution of Mr Grier was taken.
“Absence of evidence is absence of reason and probable cause (RPC) and therefore amounts to malice. If you prosecute someone without RPC, you are prosecuting unreasonably.
He later added: “In this case, any suggested challenge by the defender in this case to suggest that there was a relevant indictment being presented, that ship has sailed.”
And he said public policy aimed to stop “what I fear the defender wishes to do in this case, which is to go to proof and really have the whole thing re-determined as to whether there was a relevant indictment”.
He added: “If there was no relevant indictment, I say there is no RPC [reasonable probable cause], pure and simple. And any suggestion otherwise is an abuse of process…”
Gerry Moynihan QC for the Lord Advocate said the prosecution was not malicious and was not an abuse of process in this case.
“The decision of the court is accepted. The argument is nonetheless that there was probable cause. It was a proper exercise, a proper function of the discharge of the exercise of the Lord Advocate to raise a case that was thought to have merit, even though it ultimately fails on relevancy,” he said.
“A case is fit or suitable to be put to court if it is statable, if it is arguable. The fact the argument fails doesn’t mean there has been a waste of the courts time and an abuse of process. “Quite the opposite. It is a proper use of the function of the court.
“I am simply saying there was probable cause to put this into court.”
Officers suspected Mr Grier, of London, had broken the law during the sale of the Ibrox side and the businessman was charged with fraud, conspiracy and a charge under the Proceeds of Crime Act – before the case was dropped.
Lord Advocate to make public apology over malicious prosecutions in failed Rangers fraud case
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, 58, has also demanded a public apology from officials after the Lord Advocate admitted the “malicious prosecution” of Duff and Phelps colleague and former Rangers administrators David Whitehouse and Paul Clark who have agreed a compensation settlement with Police Scotland estimated to be in the region of £20m.
Mr Whitehouse, of Cheshire, brought a damages claim against the Lord Advocate James Wolffe QC and the former chief constable of Police Scotland, Phil Gormley, for £9m. Mr Clark, of Surrey, sued for £5m. In August the total claim was said to have gone up to £21m.
Mr Whitehouse and Mr Clark’s actions stemmed from their alleged treatment by the police and prosecution authorities.
The Lord Advocate has previously admitted malicious prosecution and a breach of human rights in the investigation while the administrators sought to clear their names.