David Grier Against Chief Constable, Police Scotland And David Grier Against The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2022] CSOH 2 |
| Date | 11 January 2022 |
| Docket Number | CA86/19 & CA72/20 |
| Court | Court of Session |
| Published date | 11 January 2022 |
OUTER HOUSE, COURT OF SESSION
[2022] CSOH 2
CA86/19 & CA72/20
OPINION OF LORD TYRE
In th e cause
DAVID GRIER
Pursuer
against
CHIEF CONS TABLE, POLICE SCOTLAND
Defender
and in the cause
DAVID GRIER
Pursuer
against
THE LORD ADVOCATE
Defender
Pursuer: Smith QC, MacLeod, Markie, Black; Kennedys Scotland
Defender (Chief Constable): Duncan QC, Watts, Laurie; Ledingham Chalmers LLP
Defender (Lord Advocate): Moynihan QC, Ross QC; Scottish Government Legal Directorate
11 January 2022
Introduction
[1] On Friday 14 November 2014, the pursuer was detained by the police at his home in
Englan d. He was taken to Glasgow, where he was arrested and charged, together with three
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co-accused, with participation in a fraudulent scheme along with Mr Craig Whyte to acquire
a controlling shareholding in The Rangers Football Club plc (“the Club”), and further
charged with attempting to pervert the course of justice. He remained in custody over
the weekend and appeared on petition, along with the others who had been arrested, at
Glasgow Sheriff Court on Monday 17 November 2014, when he was bailed.
[2] On 15 September, 2015, an indictment was served on the pursuer and others. The
pursuer was charged with fraud and with involvement in serious crime by participation in
a fraudulent conspiracy. A second indictment was served on the pursuer and others on
2 December, 2015. In this indictment the pursuer was charged with seven offences including
fraud, money laundering, and carrying on a business with intent to defraud.
[3] At a preliminary hearin g before Lord Bannatyne on 5 February 2016, four of the
charges against the pursuer were withdrawn by the advocate depute. In two judgments
issued in February and April 2016, Lord Bannatyne upheld the pursuer’s plea to the
relevancy of all of the remaining charges against him. On 13 May 2016, the Appeal Court of
the High Cou rt of Justiciary refused the Crown’s appeal against Lord Bannatyne’s decisions.
The criminal proceedings against the pursuer came to an end.
[4] In these two actions the pursuer seeks damages from the Chief Constable and from
the Lord Advocate for wrongful, unlawful and malicious prosecution. Although the action
against th e Lord Advocate was raised some time after the action against the Chief Constable,
the cases were latterly managed jointly, and a proof before answer was heard in the two
cases together. The proof proceeded against the background of my having held, in the
action again st the Lord Advocate, that there was no relevant defence pled to the pursuer’s
case that from the stage of indictment the prosecution continued in the absence of objective
reasonable and probable cause (see 2021 SLT 371 and 2021 SLT 833). All other issues in
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relation to the existence of subjective and objective reasonable and probable cause and
malice remained alive for the proof.
Factual background
Introduction
[5] The fraud that was suspected of having been committed, in relation to Mr Whyte’s
acquisition (via Liberty Capital Ltd, a company under his control) of a controlling
shareho lding in the Club, can be summarised as follows: that it was fraudulently
represented to the sellers, Murray International Holdings (“MIH”), that the funds which
Mr Whyte intended to use to repay the Club’s bank debts came from his own resources,
when in fact he had no such resources and intended to (and did) obtain most of the
necessary funds by selling the Club’s future season ticket revenues to an American company
called Ticketus, and that the sellers were thereby induced to sell their interest in the Club
for £1.
[6] Nobody has been convicted of any offence in relation to Mr Whyte’s acquisition of
the Club. All of the charges against the pursuer’s co-accused, Mr David Whitehouse and
Mr Paul Clark, were either withdrawn or dismissed as irrelevant. Claims by Mr Whitehouse
and Mr Clark for damages for malicious prosecution have been settled, with an admission of
liability by the Lord Advocate. The charges against the co-accused Mr Gary Withey (since
deceased) were either withdrawn or dismissed on grounds of oppression due to the
recovery and use of legally privileged material. In Ju ne 2017 Mr Whyte was acquitted by
a jury of the two remaining charges against him.
[7] The police investigation of alleged wrongdoing in relation to the acquisition of the
Club was lengthy and complex. Large quantities of documents, including voluminous email
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David Greir Against The Chief Constable Of Police Scotland And The Lord Advocate
...Actions by some of the other former accused may be pending. [5] This reclaiming motion (appeal) arises from the first instance decision ([2022] CSOH 2; see also 2021 SLT 371 and 833) in separate actions by the pursuer against the defenders. Th e Lord Ordinary held that, in contrast to Messr......