New Lord Advocate should have 'no role' in ongoing Rangers prosecution cases

The new Lord Advocate should have no role in the ongoing legal challenges or future criminal action brought against the Crown Office around the “malicious prosecution” of Rangers FC administrators, a Scottish Conservative MSP has said.

The call comes as Dorothy Bain QC, announced as the replacement as Lord Advocate for the departing James Wolffe QC last week, was highly critical of Crown Office lawyers involved in the prosecution of David Whitehouse and Paul Clark.

Taxpayers have paid a £24 million compensation bill for the pair after the Crown Office settled a legal claim brought against it last year.

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First Minister Nicola Sturgeon (left), Dorothy Bain QC lord advocate (right) and Ruth Charteris QC Solicitor General for Scotland, at appointment of law officers at the Scottish Parliament in Holyrood, Edinburgh.

In an affidavit, Ms Bain claimed three lawyers working on behalf of the Crown including advocate depute Jim Keegan QC “did not appear to accept the issues of legal privilege”.

The new law officer advised a lawyer, James Clibbon, who was representing Whitehouse, Clark and their law firm Duff & Phelps, during the case, succeeding in blocking the seizure of legally privileged documents from the law firm via an unlawful search warrant.

Legal privilege protects the confidentiality of correspondence between lawyers and clients in almost all circumstances.

Ms Bain said: “It was apparent that they believed that the rules regarding privilege were different in Scotland. I expressed the view to all present that I considered that their understanding of the law, as set down in correspondence, was incorrect.”

She added: “I concluded that Mr Keegan and [official] had not fully grasped the importance of legal privilege.”

Ms Bain later succeeded in blocking a second search warrant obtained by Police Scotland to gain access to Mr Clibbon’s law firm Holman Fenwich Willian, with Lady Dorrian ordering the return of all seized documents and the court later ruling the application to search the law firm had been “oppressive”.

The charges against Mr Whitehouse and Mr Clark were later dropped by the Crown Office, leading to the compensation claims.

However, Ms Bain’s role in the case has led to calls for her to have no involvement in future or current claims against the Crown Office amid concerns of a potential conflict of interest.

Scottish Conservative community safety spokesman Russell Findlay said her account of the Crown Office was “damning” and showed “sustained incompetence” and questioned the Lord Advocate’s potential role in future cases.

He said: “Dorothy Bain was proved entirely correct as we have seen with the unprecedented admission of malicious prosecutions and the consequent payment of eye-watering sums of compensation with more to follow.

“The malicious prosecution scandal will likely be the biggest issue in Ms Bain’s in-tray.

“On the basis of her prior involvement, I don’t see how she can have any role in the various ongoing civil claims against the Crown.

“This would also preclude her from consideration of the associated criminal allegations which have been made by Mr Whitehouse.”

He added: “It is scandalous and frightening that the Crown Office rode roughshod over basic legal rights while doggedly pursuing innocent men whose lives could have been destroyed.”

A spokesperson for the Crown Office & Procurator Fiscal Service said: “It is common for lawyers involved in litigation to have differing views and legal arguments are best understood in the full context of proceedings."

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