Appeal Under Section 74 Of The Criminal Procedure (scotland) Act 1995 By Her Majesty's Advocate Against (first) Gary Martin Withey And (second) David Henry Grier
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Bracadale,Lord Justice General |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2017] HCJAC 47 |
| Docket Number | HCA/2016 |
| Court | High Court of Justiciary |
| Date | 13 May 2016 |
| Published date | 22 June 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 47
HCA/2016/213/XC and HCA/2016/214/XC
Lord Justice General
Lord Menzies
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
HER MAJESTY’S ADVOCATE
Appellant;
against
(FIRST) GARY MARTIN WITHEY and (SECOND) DAVID HENRY GRIER
Respondents:
Appellant: W McVicar AD, Jadelski, Shand; the Crown Agent
First Respondent: Duguid QC, Meehan; MacRoberts, Glasgow
Second Respondent: Jackson QC, Cheyne; Fleming & Reid, Glasgow
13 May 2016
The indictment
[1] The respondents are indicted along with Craig Whyte on a charge which libels, inter alia, as follows:
“(001) between 1 January 2010 and 6 May 2011 ... at the premises occupied by the Rangers Football Club plc ... you ... did conspire together to acquire and obtain by fraud a majority and controlling stake in the shareholding of [Rangers] ... through Wavetower Limited ... this being a company incorporated for the purposes of and the means used to effect said acquisition ...”.
At the material time, the vast majority of shares in Rangers was held by Murray MHL Limited (Murray). Wavetower was controlled by Mr Whyte. The charge continues by libelling that, in furtherance of this conspiracy, the accused carried out a number of actions, some involving false representations to certain companies, in order to obtain access to sums, which they could pretend were their own, with a view to establishing their financial credit. These subheadings involve only Mr Whyte and the first respondent, with the exception of one, which states that all three:
“(c) ... knowing that an independent committee ... had been set up by the board of [Rangers] ... with powers to consider the full implications of any future offers for [Rangers] you ... did ...
(ii) on 24 April 2011 at a meeting of the independent committee at Murray Park, wilfully conceal from the independent committee the Ticket Purchase Agreement with Ticketus hereinafter described ... in respect of sales of season tickets for seasons 2011-12, 2012-13 and 2013-14 being assets of [Rangers] normally available for public sale; induce the independent committee to believe that there was no requirement to arrange ring-fenced accounts for season ticket sales for the forthcoming season 2011-12, knowing that sales of season tickets for seasons 2011-12, 2012-13 and 2013-14 had been agreed with Ticketus aforesaid and this you did to prevent the independent committee from discovering same; knowing that the independent committee had concerns regarding the source of funding for the acquisition of [Rangers], the ability to provide cash to invest in [Rangers] for player acquisition, the ability to meet the liabilities of [Rangers] and the ability to provide working capital to fund future operations of [Rangers] you did repeatedly make false representations and pretences to the independent committee to the effect that they would be provided with sufficient evidence of same, knowing that you did not have sufficient evidence of same and had no intention of providing sufficient evidence of same; ...”.
The charge libels that Mr Whyte and the first respondent made certain pretences to representatives of Ticketus, with a view to ensuring that £24,337,094 was paid into a particular account so that they could demonstrate that this was part of their own funds. It continues with a series of detailed allegations before concluding, in relation to all three accused, as follows:
“All whereby you ... did obtain from Murray through Wavetower Limited ... 85.3% of the issued capital of [Rangers] for £1 by fraud and did thus obtain a majority and controlling stake in the shareholding of [Rangers] through Wavetower Limited aforesaid by fraud ...”.
[2] What is now charge (5) against all three accused, reads that:
“(05) between 6 May 2011 and 14 February 2012 ... at the premises occupied [Rangers] ... you ... were knowingly a party to the carrying on of the business of [Rangers] with intent to defraud creditors of the said company or for any fraudulent purpose (sic) in that you did exercise control and de facto control over the business, assets and financial management of the company in such a manner so as to make the Administration of the company inevitable and did fail to pay £2,800,000 to discharge a tax liability due by the company, fail to pay VAT, PAYE and National Insurance, fail to pay other debts due by the company, when funds were available to the company, pay debts due by Liberty Capital Limited from funds of the company, receive a further sum of £6,090,255.72 colloquially referred to as ‘roll over money’ from Ticketus ... and apply same to pay sums due in terms of the said Ticket Purchase Agreement dated 9 May 2011 all in order you (sic) [Craig Whyte] could buy back the said company from the Administrators free of debt: CONTRARY to section 993(1) and (3) of the Companies Act 2006”.
[3] After extensive debate, on 19 April 2016 the Preliminary Hearing judge determined that, in respect of the first respondent, his plea in bar of trial on the ground of oppression should be sustained, along with a plea to the relevancy of charge (5). In respect of the second respondent, the judge upheld a plea to the relevancy of charges (1) and (5). This effectively ended the charges against both respondents. Leave to appeal was granted. The appeal raises two issues. The first relates to the relevancy of charges (1) and (5). The second concerns the plea in bar. This plea is linked to a previous decision of the court (Holman Fenwick Willan v HM Advocate, 5 February 2016, unreported), sustaining pleas of oppression, taken in respect of a warrant granted for the recovery of material subject to a plea of confidentiality (legal privilege) maintained by solicitors for the respondents.
The Preliminary Hearing judge’s decision
Relevancy
[4] The PH judge took the view that charge (1), as pled against the second respondent, was irrelevant, primarily because he did not consider that subparagraph (c)(ii) (supra) relevantly averred the crime of fraud. It did not, in his view, aver any practical result from the false pretence averred. This reasoning stemmed from evidence, which was adduced at the PH, demonstrating that the Independent Committee did not have the power, as originally averred, to recommend acceptance or rejection of an offer to acquire Rangers. Rather, its role was to consider the implications of offers and nothing more. The judge took the view that no practical result could flow from the exercise of that power. The evidence was that the owner of the majority shareholding (Murray) would have proceeded with the sale no matter how the Committee viewed the offer. The judge noted that the Crown were suggesting that the Committee had smoothed the path to acquisition, but he commented that this allegation was wholly unspecific. In the absence of averments of causation, that the conduct led to a practical result, the averments within the subparagraph did not relevantly constitute fraud.
[5] The PH judge noted that the basis of the charge in subparagraph (c)(ii) was the wilful concealment of the Ticketus Purchase Agreement. He took the view, however, that, in a fraud of that type, it was essential to aver that there was a duty to disclose. For this reason also, the charge was irrelevant. A third basis for sustaining the plea to the relevancy was that it was not averred that, as at the date of the relevant meeting, the second respondent knew of the Agreement and its effect. He did not feature in the events surrounding the Agreement, as subsequently libelled.
[6] The PH judge accepted the general proposition that it was not necessary for each individual subhead in a charge of conspiracy to amount to a crime. However, in deciding whether the second respondent had been involved in a conspiracy, the jury would have to be directed to ignore the content of the subheads upon which he did not appear and to look solely at his actings as libelled in the subhead. They would have to be directed that the respondent had done nothing which was, in itself, criminal. He had no duty to disclose the Ticketus Purchase Agreement (assuming that he knew about it). Finally, the jury would require to be directed that his conduct was not only not criminal, it had no practical effect. No jury, properly directed, would have been entitled to return a verdict of guilt in relation to this respondent on the conspiracy charge.
[7] In relation to charge (5), the PH judge noted that the Crown had amended another charge, which had formally been on the indictment, by deleting averments of a conspiracy by Mr Whyte and others to acquire Rangers from the administrators fraudulently. The judge took the view that, if the Crown accepted that there was no such conspiracy, it had to follow that charge (5), in so far as it libelled a fraudulent intention to acquire Rangers from the administrators, no longer had a proper foundation. Where the Crown accepted that there was no fraudulent intention of the nature deleted, the equivalent words in charge (5) made no sense.
Oppression
[8] The PH judge rejected a plea of oppression from the second respondent based upon the conduct of the Crown in relation to a number of matters including: what was said to be the unnecessary detention of the second respondent in a dawn raid; his appearance on a petition which had no evidential basis; and the failure of the Crown to investigate his defence. In approaching this plea, the judge distinguished two different bases for the plea of oppression. The first was where, as a result of the Crown’s conduct, a fair trial could not take place. The second was where, again as a result of the Crown’s conduct, it was necessary for the court to intervene in order to protect the integrity of the justice system. The judge based this distinction upon Warren v Attorney...
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