Judge told a crime probe is in the public interest over malicious prosecutions in the failed Rangers fraud case

Lord Tyre is considering whether to sanction the release of documents uncovered in Mr Whitehouse's successful civil case where it was admitted that he was subject to a malicious prosecution.

In a breakthrough in the case Police Scotland indicated that they had no objection to a release, and Scotland's senior Scottish law officer, the Lord Advocate said he was "neutral".

Gerry Moynihan for the Lord Advocate has said it had not yet been decided whether it will be a judicial public inquiry rather than a private inquiry.

But he said that if Mr Whitehouse has complaints that he wishes to draw to the attention of the authorities then there was no objection to that.

David Whitehouse (left) and Paul Clark (right)

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.

My Moynihan said: "It has not yet been determined whether there will will be a public inquiry under the Act rather than a private judicial inquiry. And plainly the terms of reference of the inquiry have not yet been determined."

Scotland's top law officer previously stated he had so far found no evidence of criminal conduct in connection with settled damages cases won by two insolvency experts were unlawfully prosecuted.

But some have opposed a full documents disclosure.

Alan Dewar QC for one party accused in documents said it was not clear what Mr Whitehouse intends to to and to who.

"There is a fundamental lack of specification," he said.  "He does wish to oppose."

Mr Whitehouse and Paul Clark of Duff and Phelps, 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".

Insolvency expert Mr Whitehouse and Mr Clark 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.

Helen Watts, for the Chief Constable said allegations that are made against police officers in what is described as an Iomega Minute, which is key to a documents release and a future criminal probe "are denied".

Roddy Dunlop QC, for Mr Whitehouse, said he had a "justifiable concern", that it's already been said on behalf of the Lord Advocate that it has already been determined there is no evidence of criminality.

"Mr Whitehouse is entitled to raise the query, how can that be. Misconduct in public office is a crime under the common law of Scotland," said Mr Dunlop.

"And one might have thought that a malicious prosecution would at least prima facie qualify as misconduct in public office. So there this is not something that is ephemera, made up, illusory.

"It's a real concern on the part of Mr Whitehouse, and it's something that is worthy of investigation."

Mr Dunlop questioned how appropriate it is for the Lord Advocate to "mark his own homework", and to declare that there has been no criminality, when the Crown Office admitted malicious prosecution.

"Mr Whitehouse wants, and is in my submission, entitled to have this explored independently."

Mr Whitehouse gained no private interest by calling for an investigation, instead it was a "clear case of an overriding public interest", added Mr Dunlop.

"Mr Whitehouse seeks to explore where there has for the first time in Scottish legal history been an admitted malicious without probable cause prosecution. It is in the public interest, and it's in the interest of justice that this be properly and fully explored, and that Mr Whitehouse be entitled to co-operate with whatever investigation might ensue.

"What Mr Whitehouse wants to do is to be able to use the documents which are now substantial and which took an awful lot of time and an awful lot of money to recover.

"He wants to use them in order to effectively do three things.

"He wants to be able to make a complaint to the relevant authorities that he was subjected to a malicious and without probable cause prosecution.

"He wants to be able to co-operate with any investigation that may ensue.

"And he wants to be able to fully co-operate with a judge led public inquiry that would appear to be in the offing, having been announced to the Scottish Parliament by the Lord Advocate on the February 10, 2021."

Mr Whitehouse and Mr Clark 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.

They 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 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 the Herald revealed 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.

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.

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.

Mr Whitehouse's PR adviser Jack Irvine said: "The Dean of Faculty Roddy Dunlop made it clear that Mr Whitehouse needs all the documents to enable him to make a comprehensive complaint to determine how on earth a malicious prosecution could have taken place. Furthermore he needs the information to enable him to cooperate with an investigation and to assist in the planned public inquiry.

"Frankly I am shocked that everybody is trying to filter and put a lid on complaints . Are we to assume that double standards would apply to accused persons inside and outside the Crown office.

"In all my years in newspapers covering crime I don't remember the police saying to a suspected bank robber, do you mind awfully if we question you or maybe even take you to court?"