In the last two days, the Lord Advocate, James Wolffe QC has appeared before MSPs on two occasions.
In a matter of fact way he has admitted to what constitutes the most profound scandal in the history of the Crown Office.
On Tuesday, he made a public apology to Paul Clark and David Whitehouse. Both men were the former administrators in the winding up of Rangers Football Club in 2012. The decision to indict the Duff and Phelps Two, according to Mr Wolffe, was “indefensible in law”.
The public apology followed an award of damages of £21m to both men with another £3m in costs and with the probability of a further charge to the public purse when related proceedings eventually conclude.
Yesterday, Mr Wolffe listened as the Scottish Conservative MSP Murdo Fraser said both men had been treated like terrorists when they were initially arrested. His colleague Adam Tomkins, an academic lawyer specialising in constitutional law, put it like this: “It stinks. And you know what it stinks of – it stinks of corruption.”
This story of malicious prosecutions, reputational damage and a haemorrhaging of taxpayers’ money is truly a scandal without precedent in the history of Mr Wolffe’s office.
It also comes at a time when there is a lot of other noise around whether the Crown Office is ‘corrupt’, to use the favourite social media charge.
Some of the supporters of the former First Minister Alex Salmond believe a prosecutorial sledgehammer was taken to a set of circumstances that did not merit a High Court appearance. Canvass opinion among lawyers and you will get a spectrum of views on that one.
If the case against Mr Clark and Mr Whitehouse was knowingly prosecuted when there was no justifiable legal basis to do so, then that would seem to me to be a prime facie case of a ‘corrupt’ prosecution.
The case against the two men was under the charge of the former Lord Advocate, Lord Mulholland. Many others within Crown Office would have had a hand in the preparation of the indictment.
Now, malicious prosecution does not require a malicious intent on the part of the prosecutor, but even on a benign reading of circumstances they would have to be, at the very least, incompetent.
It begs a question. How many Crown Office officials central to the prosecution of Clark and Whitehouse are still working on prosecuting others? How can parliament and the public have confidence in individuals who are at best incompetent?
Wolffe’s predecessor Frank Mulholland is currently a Senator of the College of Justice. He was a respected figure among Holyrood ministers who valued his judgement and acumen. His unstuffy, approachable air helped in the relationships with senior politicians.
This afternoon, in a highly unusual move, Lord Mulholland’s solicitor issued a statement deploring personal attacks made on the former law officer under parliamentary privilege at Holyrood yesterday.
He said the judge welcomed the prospect of an inquiry which he said should cover the decision-making process in both the civil and criminal cases.
To this observer, if the prosecutions were indeed malicious, Lord Mulholland’s position on the bench is untenable. If they were not then the current Lord Advocate has apparently settled a case at huge expense, perhaps unnecessarily. I say ‘perhaps’ because we do not know the precise basis on which liability was admitted.
In any case, if Mr Wolffe has played free and easy with public money it is his neck that will be in the parliamentary noose when final judgement is made on all of this.
Which begs the question, when will an inquiry into this take place? Yesterday Mr Wolffe told MSPs: “I have committed the Crown to releasing further information when it is possible to do so and I have committed myself and the Crown to supporting the process of an inquiry once related legal proceedings have concluded.”
I have to say that doesn’t cut the mustard. I am astonished, given the gravity of this crisis, that the matter has not been taken out of the Lord Advocate’s hands. The Justice Secretary should issue a statement making it clear that the government will determine the nature and scope of any inquiry. The Conservatives want a full public inquiry led by a judge outwith Scotland.
Whatever happens here, it would be outrageous for the Lord Advocate to establish an inquiry or have ministers rubberstamp how he thinks matters should proceed. He really cannot have a hand in marking his own homework.
The prosecution of citizens for criminal offences is necessary to keep other citizens safe. The loss of liberty is the ultimate sanction for wrongdoing and as such the responsibility to prosecute is a huge one. When it goes wrong, the innocent can be incarcerated.
Normally, miscarriages of justice take place for different reasons. The Crown being art-and-part liable in a stich-up is the most serious of all, for it suggests that a prosecutor cares not a jot about the presumption of innocence.
I do not think for a moment that the Crown Office is institutionally ‘corrupt’ in how it goes about its business, but neither do I think that it gets it right all of the time.
It is the seriousness of this case and its ability to lend credence to other less well-founded charges about ‘corruption’ which mean that an inquiry is needed as a matter of urgency.