David Whitehouse: Ex-Rangers chief fears justice system won't face up to malicious probe scandal

Lord Advocate James Wolffe has, however, said he will sanction an examination of any criminality that is uncovered by Mr David Whitehouse, who is seeking to change the way that prosecutors and police in Scotland act in investigating those suspected of criminal behaviour after winning a landmark case and compensation for his malicious prosecution.

The position of the Lord Advocate was made clear by Gerry Moynihan QC as Mr Whitehouse sought sanction to use documents uncovered in his landmark damages case for a potential criminal prosecution of individuals within the Crown Office and Police Scotland, including a former Lord Advocate Frank Mulholland.

READ MORE: Lord Advocate found "no criminal conduct" in malicious prosecutions over Rangers fraud case 

He and Paul Clark, former joint administrators of Rangers when it fell into financial trouble agreed a settlement estimated to be around £24m after an agreement in their malicious prosecution case against the Lord Advocate and the Chief Constable was reached "extra-judicially".

Mr Whitehouse told the Herald on Sunday that the money is not enough and that he is determined that "something good" comes out of his ordeal by pursuing change within Scotland's justice system.

Mr Moynihan added: "That is the Lord Advocate's unwavering position...on his responsibility, he will give due consideration to any allegations.

"But I must make it clear... that the actions settled on a certain basis involved no suspicion of criminal activity on the part of any of those involved."

But a spokesman for Mr Whitehouse said: "David had to fight for four, long years to get to the truth, in the face of bitter opposition. We are in no doubt that there are serious questions to be answered.

“The Lord Advocate’s senior counsel Gerry Moynihan, QC, said that his team’s review of evidence revealed no criminal conduct. We would point out that same team insisted for four, long years that there was nothing whatsoever wrong with the prosecution, only to dramatically change position at the last minute.

“The fact that Mr Moynihan’s statement was made today, before the conclusion of the court process and the submission of a formal complaint, gives us no confidence whatsoever that Crown Office will investigate our concerns comprehensively, fairly and objectively."

Insolvency expert Mr Whitehouse and Mr Clark (above) were subjected to detention and criminal proceedings with others in relation to fraud allegations in the wake of businessman Craig Whyte's purchase of Rangers from Sir David Murray for £1 in May 2011 and its subsequent sale before a judge dismissed the charges.

Mr Moynihan said there were questions of consent over material that was uncovered in the damages claim being used in any future criminal cases.

He said that there were witnesses who gave consent to statements for a specific purpose which was to resolve the damages action.

"Those individuals would require to be given the opportunity to take legal advice if so advised," he said.

He told Lord Tyre at the Court of Session: "I have been instructed to make the position of the Lord Advocate quite clear, from the point of view of the fairness to the witnesses, against whom these allegations are being made.

"What I have been instructed to make clear is that the investigations undertaken for the purposes of these actions that were under the direction of the Lord Advocate, and carried out by a team led by me have to date disclosed no criminal conduct."

But he said he the Lord Advocate would have "in principal have no objection to Mr Whitehouse making any allegations of criminal or disciplinary misconduct as he sees fit."

The Lord Advocate indicated that in the event allegations are made, either criminal or disciplinary, he will involve independent external senior counsel, not previously involved in the cases to be involved "and that is to provide further confidence" in fairness and integrity.

Mr Dunlop had earlier mentioned to Lord Tyre about the "many commentators" on the case in the press and legal articles saying that it was "unimaginable in modern day Scotland that could we have a prosecution that was both without probable cause and malicious and yet that is exactly what we have here."

He added: "Mr Whitehouse wants to know why that happened."

READ MORE: 'Crown Office must face up to scandal': Ex-Rangers administrator pursues criminal action over malicious prosecutions

He said Mr Whitehouse is seeking release of relevant documents for any further investigation.

The two men had been originally been suing Police Scotland and the Lord Advocate for a total of £14m in damages, alleging that they were subjected to wrongful detention, arrest and prosecution during police investigations in 2014 and 2015.

All seven charges against them, alleging conspiracy to defraud and attempting to pervert the course of justice, were later either withdrawn by the Crown or ruled irrelevant by the High Court.

Lawyers for the Lord Advocate have admitted that prosecutors acted unlawfully for a significant amount of time in the prosecution of the two men.

It as admitted that the human rights of both Mr Whitehouse and Mr Clark - who were cleared of all wrongdoing - had been breached at times during the investigation.

The Court of Session previously heard that the businessmen's legal teams had been supplied with papers which show senior Crown Office lawyers speaking about the "need to nail the Duff & Phelps people".

Details of the scandal started emerging four years ago when it emerged that London-based legal firm Holman Fenwick Willan, who were acting for Duff and Phelps, was awarded £500,000 costs after police and prosecutors were found by the High Court in London to have "abused state powers" by carrying out an illegal raid and seizing privileged documents in connection with the failed Rangers fraud case.

Mr Whitehouse told the Herald on Sunday that the money is not enough and that he is determined that "something good" comes out of his ordeal by pursuing change within Scotland's justice system.

"Compensation might serve my interests. But it doesn't serve the interests of the justice system in Scotland," he said as the weekend.

Mr Dunlop told Lord Tyre he rejected the criticism of him raising what had been reported in the media.

He said he was recording the admission that Mr Whitehouse was prosecuted maliciously and without probable cause.

"I have not made any allegations of criminality against anyone," he said. "Mr Whitehouse wants to find out if there was anything.

"It would be completely vacuuous of me to ignore the admitted background in which Mr Whitehouse was maliciously and without probably cause prosecuted.

"I'm sorry but I make no apology for saying that."

The police investigation was launched against a backdrop of the controversial nature of Mr Whyte's nine-months in charge after his 2011 takeover.

He agreed to take on Rangers' financial obligations, which included an £18m bank debt, a potential £72m 'big tax case' bill, a £2.8m "small tax case" liability, £1.7m for stadium repairs, £5m for players and £5m in working capital.

But he controversially helped fund his takeover by setting up a loan in advance from London-based investment firm Ticketus against rights to three to four years of future club season ticket sales in a bid to raise £24 million and pay off bank debt as part of a share purchase agreement with Sir David Murray.

Mr Whyte ended up being the last man standing in the fraud conspiracy case and was acquitted of taking over the club by fraud at the end of a seven-week trial four years ago.

Mr Whitehouse also believes there should be a "full and transparent" public inquiry into the affair.

The result of Mr Whitehouse and Mr Clark's legal pursuit to clear their names has meant that the Lord Advocate no longer has absolute immunity from being pursued in the civil courts for malicious prosecution. It marks a momentous change in an area of the law that has remained largely untouched for almost sixty years.