Aidan O’Neill QC, one of the country’s most experienced advocates, said that ministers alone are responsible for deciding to apply for one of the so called 'McMafia' orders, and that it was “entirely reasonable” to expect the government to explain its decision making process in considering the use of an UWO.
His opinion, echoed by another leading advocate, directly contradicts claims made by First Minister Nicola Sturgeon, who has argued that any application for such an order is a decision for the Crown Office.
It comes as the legal director of Avaaz, a non-profit global activism organisation, has written to Ms Sturgeon, asking her to "take responsibility" for an issue that is becoming increasingly "urgent."
However, a spokeswoman for the Scottish Government said last night that any decision to apply to the Court of Session for a UWO was an “operational matter” for the civil recovery unit, which reports to the Lord Advocate, and that it was “not appropriate” for the government to comment. She added that given the “sensitive nature” of the unit’s work, it was convention to neither confirm nor deny “the existence of any ongoing investigation.”
The legislative mechanism is designed to target suspected corrupt foreign officials who have potentially laundered stolen money through the UK. If the subject of an order, or their family, is unable to show a legitimate source for their wealth, authorities can apply to a court to seize their properties.
Mr O’Neill said that under the section 396A of the Proceeds of Crime Act 2002, the decision of whether to seek, or not to seek, an UWO was “a matter only for the Scottish ministers,” adding that that there was no legal basis for the government not to explain its position on whether or not it was looking into or considering seeking an UWO.
“Such an order makes no accusation of any criminality, but it is instead an aspect of good housekeeping, to make sure that everything is in fact in order from a money laundering perspective when there are cases of significant expenditure by [a] foreign politically exposed person in Scotland,” the double silk explained.
The legal advice, prepared for Avaaz by Mr O’Neill and advocate David Welsh - both part of the legal team behind the historic 2019 Supreme Court victory in the prorogation case against the UK government - states that even if the immediate departmental responsibility for seeking an UWO had been allocated to the Lord Advocate, the Crown Office, or the civil recovery unit, it “does and cannot change the legal responsibilities” of ministers as the “relevant enforcement or competent authority” for the administration of the orders.
Avaaz first presented Ms Sturgeon with a 30 page briefing in April 2019, which was subsequently passed to the Lord Advocate’s office. It set out what Avaaz described as “enough reasonable suspicion as to the nature of Mr Trump’s cash payments for the Turnberry golf resort to justify Scottish ministers’ application for an UWO to investigate the matter.”
It went on: “It is Mr Trump’s own actions that prompt legitimate questions about his income which, if left unanswered, would call into doubt the Scottish Government’s determination to confront the spectre of money laundering.”
Nick Flynn, Avaaz’s legal director, said: “Ms Sturgeon has been avoiding our questions about Trump's cash purchase of Turnberry for nearly two years, saying the decision is nothing to do with her.
“Aidan O'Neill's advice confirms that it is everything to do with Ms Sturgeon. Her ministers are collectively responsible for the decision on seeking an UWO for Turnberry and they should expect to explain the decision they make.”
The Trump Organisation did not respond to a request for comment, but Mr Trump and his company have always denied that they required outside financing for their Scottish properties.
The £35 million purchase price for Turnberry was settled in cash. However, questions about the finances behind Mr Trump’s resorts predate his single term in office.
In February 2019, the New York Times reported that Mr Trump sought to secure a loan in 2016 from Deutsche Bank against its Miami resort to pay for work at Turnberry, a story his firm called “absolutely false.”
In November 2008, the then Trump Organisation executive vice-president, George Sorial, said Mr Trump had £1bn “sitting in the bank and ready to go” to finance his inaugural Scottish course.
But The Scotsman later revealed that a month beforehand, Mr Trump wrote personally to a Bank of Scotland executive, asking the institution for a 15-year £23m mortgage and a construction loan of £15m to establish a hotel in St Andrews. The bank refused.
Last February, Patrick Harvie, co-convener of the Scottish Greens told Holyrood there were reasonable grounds for suspecting Mr Trump’s lawfully obtained income was insufficient to finance the “huge cash transactions” underpinning his acquisitions.
Eric Trump, executive vice-president of the Trump Organisation, branded Mr Harvie “irrelevant and spineless,” and called for him to be sanctioned after making “disgusting statements” that were “reckless, irresponsible, and unbecoming.”
Responding to Mr O’Neill’s legal advice, Mr Harvie said: “This legal advice is clear, that the first minister was wrong to pass the buck when it comes to seeking an UWO on Trump’s business dealings in Scotland.
“We’ve seen cases against Trump escalate as his sorry term in office draws to a thankful close, and the question of how he managed the cash purchases of Scottish golf courses during a global financial crisis remains unanswered.
"It’s long past time the Scottish Government demonstrated that Scotland cannot be a country where anyone with the money can buy whatever land and property they want, no questions asked.”