Iain Macwhirter: Like a fish, Scotland's Crown Office is rotting from the head down

When various legal fees are included the bill is now bumping against £24m and could rise still further.

But that is not all.

The Lord Advocate himself, James Wolffe QC, will shortly make a public apology to the two men for having pursued a “malicious prosecution” against them “without probable cause”.

“Malicious”, note. Not just mistaken in law, or based on unreliable evidence, but acting with malice: with the intention of personally injuring two innocent citizens.

Forget reputational damage to the Crown Office – this is reputational obliteration.

This is causing a lot of people concern – in and out of the rarified world that is Scots law.

This is such an epic story, you might also wonder why it is not dominating the Scottish and even the UK front pages right now. Admittedly, there has been a lot going on with Covid and Joe Biden, but this is a scandal without precedent.

It suggests that Scotland’s prosecution service is rotting, like a fish, from the head down.

It was only because Clark and Whitehouse were so dogged in their determination to clear their names that the truth finally came out. The administrators in the Rangers case spent many years and millions of pounds pursing their claim which they finally won outright last week.

The Crown Office admitted in an earlier Court of Session hearing that they had been acting “unlawfully” and in “violation of human rights law”. In other words, like some dodgy state prosecutor in a banana republic.

The Herald’s Martin Williams deserves great praise for his tenacious pursuit of this complex story week by week. All the more admirable in that he has in the past been accused of being biased against Rangers. Football is politics in Scotland.

For reasons lost in the mists of time, independence supporters and many journalists tend to be pro-Celtic, while unionists and many businessmen have lined up behind the Rangers flag. They fight it out on Twitter day by day. But Martin has remained a dedicated follower of the only club that matters: team truth.

Another reason, perhaps, why the case has not cut through is public confusion over the role of the Lord Advocate. He is not, as some people assume, a judge or a member of the independent judiciary. He is a political appointee, a minister in Nicola Sturgeon’s Government, who acts as the Government’s own lawyer as well as being head of the prosecution service, the Crown Office.

The former SNP Justice Secretary, Kenny MacAskill, has called for Wolffe to resign forthwith, and for these twin roles to be separated, so that there is no longer this potential for political interference.

There is surely a conflict of interest in being a creature of the First Minister of Scotland as well as head of the Scottish prosecution service. This is all the more problematic because of other legal scandals in which politics and the law have become explosively intertwined.

There are disturbing parallels between the pursuit of Clark and Whitehouse and the reckless behaviour of the Scottish Government in pursuing the former First Minister, Alex Salmond, through the courts.

Lord Advocate Wolffe has “recused” himself from the Salmond harassment inquiry in Holyrood, which means he has to turn a blind eye to what his Crown office minions have been up to.

But Kenny MacAskill, a

time-served lawyer himself as well as a former Justice Secretary, regards that as largely a bureaucratic fiction.

James Wolffe is still the man ultimately in charge of the prosecution service, which pursued the former First Minister, on those sex harassment and attempted rape charges that were thrown out by a female-led jury last March.

What led to that legal fiasco was the “tainted” and “unlawful” findings of the botched civil service disciplinary inquiry conducted under the Permanent Secretary, Leslie Evans.

Ms Evans is another figure still miraculously in post despite having been responsible for losing large amounts of public money.

On behalf of the Scottish Government, she pursued a hopeless case against Salmond in the Court of Session in 2019 which led to the award of “exemplary” costs of £500,000 – paid for by you and me.

Mind you, that is chickenfeed compared with the £20-£24m of taxpayers’ money that has been blown by her friends in the Crown Office.

There appears to be disturbing similarity of conduct, even a modus operandi, in both the Rangers and the Salmond cases.

Paul Clark and David Whitehouse’s lawyers were blocked at every turn when they tried to get to the bottom of why their clients had been put through this malicious and unlawful prosecution.

They eventually winkled out messages in which senior law officers talked of the need to “nail these ... guys”.

The committee convener Linda Fabiani wrote to Lord Advocate Wolffe in November asking him to release any documents “relevant” to the committee’s investigation from Salmond’s criminal trial.

The Crown Office wrote back saying there was “no legal basis” for this request and that releasing witness statements would leave “a significant risk that this would undermine public confidence in both the police and the Crown Office”.

You might think it would be hard for public confidence to be undermined any further than it already has been.

Nicola Sturgeon has also refused to disclose her Government’s legal advice. Yet she told the committee when it convened last year that it would have all the access to documents that it needed.

She forgot to add: except any that look bad for us or the Lord Advocate.

The Crown Office also threatened Alex Salmond with prosecution if he released any of the incriminating material he has himself seen during his judicial review and his court case.

The Crown Office has similarly been dead-batting the attempts by the Holyrood committee investigating the botched Salmond affair to get sight of court documents which Alex Salmond has told them about and which shed important light on what happened.

The prosecutors and senior politicians are in an incestuous embrace. There is evasion and lack of transparency.

I fear there is a culture of collusion and cover up, and I believe there is an ethical void at the prosecution service. This is intolerable in a democracy. There is ample evidence that the Crown Office is not fit for purpose and it’s time for the legal establishment and Holyrood to wake up and act to arrest this decay before it becomes irreversible.