Former Rangers boss Charles Green has been told that he will receive damages after Crown lawyers told him he was subjected to a ‘malicious’ fraud prosecution.
The 67-year-old businessman was told at the Court of Session on Wednesday that prosecutors should have never taken legal action against him.
This admission prompted his lawyer Garry Borland QC to call the fraud probe a “shameful episode” in the history of the Crown Office.
Green has gone to Scotland’s highest civil court in a bid to recover £20m in damages from the Crown Office and Police Scotland.
He was arrested five years ago over the “alleged fraudulent acquisition” of the club in 2012 but the prosecution was later abandoned.
On Wednesday, lawyers acting for the current Lord Advocate, James Wolffe QC, told judge Lord Tyre that they wanted to make a public statement.
Advocate Gerry Moynihan QC told the court that the Crown had admitted it acted wrongly in legal papers but that he wanted to speak in a public forum.
He said: “It is admitted that the prosecution of Mr Green had no proper basis.
“It is admitted that there has never been objective probable cause and it is admitted in these circumstances that malice in the sense required to give liability at common law can be inferred.
“The import of all that is that Lord Advocate acknowledges there has been a malicious prosecution in the sense that term is used in our law and accordingly there is liability in damages to Mr Green.”
Green is the latest figure to bring legal action against the Police and the Lord Advocate over their supposed and actual activities during a fraud investigation at Rangers.
It has been brought in the light of admissions made by the Crown in another case brought by businessmen David Whitehouse and Paul Clark.
Prosecutors have admitted Mr Whitehouse and Mr Clark were wrongfully arrested and prosecuted – the two men are seeking a total of £20.8m from the Crown Office and Police Scotland.
Business expert David Grier has also raised a separate action against Police Scotland in which he is seeking £2m from the force.
In that action, Mr Grier, who works in helping to turn around failing businesses, claims that detectives acted unlawfully when he was arrested in 2014.
Officers suspected Mr Grier, of London, had broken the law during the sale of the Ibrox side and the businessman was charged with fraud and conspiracy.
The men were arrested following events surrounding Rangers’s financial position last decade.
They were charged with offences relating to businessman Craig Whyte’s takeover of Rangers in 2011. But charges were dropped and the men were cleared of any wrongdoing.
The Lord Advocate at the time of the investigation was Frank Mulholland QC, who is now Lord Mulholland, a high court judge.
In the case of Whitehouse and Clark, Mr Moynihan admitted earlier this year that the Crown were now admitting liability for wrongdoing in parts of the prosecution.
Mr Moynihan said his clients accepted that the two men’s rights under article five of the European Convention on Human Rights had been violated during the prosecution.
The violation referred to how they were detained in custody following their arrest in advance for their first appearance in court. Article five of the ECHR relates to the right to liberty and security.
Mr Moynihan said the two men’s right to a private life had been breached in relation to a press release which had been sent out in February 2016.
Mr Moynihan also said the Crown admitted that it acted unlawfully in its prosecution beyond the two men’s first appearance in court.
On Wednesday, Green’s lawyer Garry Borland QC told the court that his client had suffered a miscarriage of justice.
He added: “The public admission that Mr Green has been the subject of a malicious prosecution represents a shameful episode in the history of the prosecution service of Scotland.”
Mr Borland also explained the reasons why his client was suing the Lord Advocate and the police.
He said: “This case calls by order following a highly significant development; namely that it has been recognised by the Lord Advocate that he prosecution of Mr Green was a wrongful one.
“Our action is proceeding on the following grounds; firstly the prosecution of Mr Green never had any proper basis; secondly the prosecution was conducted without probable cause – it was unjustifiable and should never have been pursued.
“Thirdly, the prosecution was malicious and consequently improper and unlawful. He is suing the Chief Constable in relation to his detention.
“He is entitled to substantial damages from the Lord Advocate because the prosecution of Mr Green was a malicious prosecution.”
Mr Borland also told the court that his legal team were days away from appointing an expert who would conduct an investigation into the financial losses sustained by Green as a consequence of his arrest.
He said the probe could take until February to conclude.
Police Scotland’s lawyer Alastair Duncan QC said his clients were contesting the action and that the hearing against them would proceed on liability and quantum – the amount of money which would be due to Green in the event of him being successful in the action.
Judge Lord Tyre ruled that Green was entitled to damages. His case against the Lord Advocate will proceed only only on quantum.
Lord Tyre fixed a further procedural hearing to take place in February 2021. A full hearing is expected to take place in August 2021.