Malicious prosecution of Rangers’ administrators raises further questions about the Hate Crime Bill – John McLellan

If the Crown can act with malice, it raises questions about how prosecutors would use the provisions of the Hate Crime Bill with claims by Alex Salmond about a conspiracy against him adding to a disturbing mix, writes John McLellan.

An internal Scottish Government inquiry into allegations against Alex Salmond was found to have been unlawful and “tainted by apparent bias” by a judge (Picture: Andrew Milligan/PA Wire)

Tuesday was a day of contrasts, most of it spent listening to the self-congratulation of what passes for Edinburgh City Council’s political administration, but starting with an altogether more constructive evidence session at the Scottish Parliament’s Justice Committee.

Under discussion was the Defamation & Malicious Publications Bill, a much-needed piece of legislation, conceived and steered by one of Scotland’s most senior judges, Lord Pentland, who as president of the Scottish Law Commission recognised that current defamation law did not reflect the reality of modern communication or strike the correct balance between freedom of expression and the right of individuals to defend their reputations.

As part of civil law, defamation legislation exists to resolve disputes and to remedy damaging claims made without reasonable justification. People can be defamed unintentionally and although difficult to prove, malicious intent really ramps it up. There can be no greater damage to reputation than to be wrongly accused of criminal behaviour, but when the accuser is the state the consequences are obviously enormous.

Lawyers, police officers and judges are only human and mistakes happen, assumptions are made and inaccurate conclusions drawn. The mark of a just society is not that errors never happen but they are rectified swiftly – it’s one reason we no longer hang murderers – but effective justice relies on the belief that when allegations are made, even mistaken ones, they are done so honestly and there is no hidden agenda. This is why the Crown’s admission this week that the prosecution of Rangers FC administrators David Whitehouse and Paul Clark of Duff & Phelps was malicious is so staggering.

It might be argued the confession proves there are effective checks and balances within the system, but as one of the men’s representatives, Roddy Dunlop QC, pointed out, it is only because they are wealthy individuals – the case has cost £2.8m between them so far – that they were able to sue the Lord Advocate and Police Scotland for wrongful arrest in 2012 following the football club’s collapse. Mr Whitehouse is seeking £9m damages and Mr Clark £5m, and much of their expense was incurred in challenging the Crown’s position that the Lord Advocate could not be sued. The checks and balances only kicked in because another senior judge, Lord Carloway, ruled the Lord Advocate was not immune from legal action.

It is certainly reassuring that the Scottish courts have enough independence to allow a case against the head of the legal service, who is also a member of the Scottish Government and the First Minister’s Cabinet, and only now after eight years has the truth begun to emerge. By any stretch of the imagination it is extraordinary that the Lord Advocate’s QC has admitted the arrests and detention violated the men’s rights, that their privacy had been breached in an official press release, and the prosecution was “conducted with a lack of probable cause”.

Why the government’s legal establishment was – by its own admission – prepared to take malicious action against two individuals as yet remains unclear, and it appears that one reason the Crown came clean is to mediate an out-of-court settlement which would no doubt come with non-disclosure agreements. Having come so far, Mr Clark and Mr Whitehouse may well prefer to have their day of judgement in the new year.

The rocking of trust this episode represents is another good reason to fear the consequences of the Hate Crime and Public Order Bill. The new offences of insulting behaviour likely to stir up hatred would be punishable by up to seven years’ imprisonment and this week First Minister Nicola Sturgeon was forced to defend the legislation, saying the bill included “explicit provisions on freedom of expression and the Bill’s provisions are required to be interpreted in accordance with the European Convention on Human Rights”. This is the same ECHR the Crown has just admitted it maliciously breached in its prosecution of Mr Clark and Mr Whitehouse, so there is clearly no guarantee that the Crown will always honour them. Justice Secretary Humza Yousaf now seems to accept the bill is in trouble, saying he will “reflect on whether any changes need to be made”, but against this background it shouldn’t be a question of whether but what.

It is also now crystal clear that defences against conviction in any legislation are no barrier to prosecution and the core problem with the Hate Crime proposals is they provide the legal means for angry people with an axe to grind to turn their fury against those with whom they disagree into criminal investigation. So often, legislation which threatens civil liberties is justified on the basis that “if you’ve done nothing wrong, you’ve nothing to hide” but the new hate crime offences do not need to involve intent, so the principle instead becomes “even if you have nothing to hide, it doesn’t mean you haven’t done anything wrong”. The admission of malice in the Duff & Phelps case shows we cannot presume prosecutors will apply the defences the Scottish Government says the bill provides and we now know that can go right to the top.

Into the mix is the claim by former First Minister Alex Salmond that conspiracy at the very highest levels lay at the heart of the sex assault allegations against him and Lord Pentland’s ruling at the Court of Session – that the internal Scottish Government inquiry into the allegations was unlawful and “tainted by apparent bias” – led to the current Parliamentary inquiry. Mr Salmond was cleared of all charges, but his reputation was unquestionably, and possibly permanently, damaged in the process. The conspiracy theory is unproven and we do not yet know what agenda was at the heart of the Duff & Phelps prosecution, but what we do know is that trust at the heart of the Scottish Government is under scrutiny as never before. Like the Salmond case, when the Duff & Phelps court process is over another inquiry is needed to find out what went on behind closed doors, both to prevent a repeat and to safeguard trust in all aspects of Scottish legal process. For someone not afraid to rock governmental boats, look no further than Lord Pentland.

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