Bill Of Suspension By (1) Holman Fenwick Willian Llp And (2) Duff & Phelps Ltd Against Procurator Fiscal, Glasgow
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Bracadale,Lord Justice General |
| Judgment Date | 05 February 2016 |
| Neutral Citation | [2017] HCJAC 38 |
| Court | High Court of Justiciary |
| Date | 05 February 2016 |
| Published date | 07 June 2017 |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 38
HCA/2015/3517/XJ
Lord Justice General
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY,
the LORD JUSTICE GENERAL
in
BILL OF SUSPENSION
by
(1) HOLMAN FENWICK WILLAN LLP and (2) DUFF & PHELPS LTD
Complainers;
against
PROCURATOR FISCAL, GLASGOW
Respondent:
Complainers: Bain QC; Paterson Bell
Respondent: J Keegan QC (sol adv) AD; the Crown Agent
5 February 2016
Introduction
[1] This Bill seeks to suspend a warrant, granted by the sheriff at Glasgow on 4 December 2015, authorising the police to enter the offices of the first complainers, a firm of London solicitors, and to take possession of documents relative to the “acquisition, running, administration and disposal of the assets” of Rangers Football Club. The procedure adopted in obtaining and executing the warrant raises a number of substantial issues in connection with: (1) the scope of the warrant; (2) the proper practice to be adopted when the Crown seek to recover papers likely to be the subject of a claim of legal privilege (confidentiality); (3) the appropriateness of seeking a warrant of this nature from a sheriff after the service of a High Court indictment; (4) the procedures available to enable a person to raise a claim of legal privilege and to have it determined expeditiously; and (5) the application of Article 8 of the European Convention to such a warrant and its execution. Not all of these issues were raised in the Bill as originally presented. They are all, however, of such fundamental importance that, in so far as not included in the Bill, the court has required to raise and deal with them.
Background
[2] The proceedings have, as their background, the events surrounding the collapse of Rangers FC, whose corporate owners were placed into administration on 14 February 2012. A police investigation commenced in June 2012; initially focusing upon the actings of Craig Whyte who had effectively acquired the club from its previous owners, following dealings from late 2010 onwards, in May 2011. The focus was, in due course, to shift and include the administrators themselves, namely two employees of the second complainers, a company of accountants, whose parent is an American Limited Liability Company engaged in global valuation and financial advice.
[3] Mr Whyte engaged Collyer Bristow LLP, another firm of London solicitors, to act for his company in the acquisition of Rangers. These solicitors were subsequently sued by the administrators, represented by Clyde & Co, over the acquisition deal. The action was settled for a multi-million pound sum. In the course of that action, a contribution was sought from the second complainers, who instructed the first complainers to act in the anticipated litigation following upon a pre-action Letter of Claim sent by Clyde & Co on 22 October 2012.
[4] The pre-action letter had prompted James Clibbon, a partner of the first complainers, to compile a chronological bundle of materials, presumably relating to the second complainers’ role in the administration. In August 2013, the police obtained and executed search warrants for the second complainers’ offices relative to the acquisition of Rangers. Although there was no formal legal challenge to the 2013 warrants, the first complainers did raise issues of legal privilege. Prolonged negotiations between Mr Clibbon and the Crown followed. The material was not examined, pending their resolution. Meantime, a revised chronological bundle was prepared, which had the allegedly privileged material removed. Matters still remained unresolved as at November 2014.
[5] On 17 November 2014, Mr Whyte, three employees of the second complainers, and one other person, appeared on a first petition at Paisley Sheriff Court on charges arising out of the acquisition of Rangers. On 15 September 2015 an indictment, citing these accused to a Preliminary Hearing at Glasgow High Court on 16 October 2015, was served. On 2 September 2015 Mr Whyte, two employees of the second complainers and two other persons appeared on a second petition in connection with the administration and sale of Rangers between February and June 2012. A second, more comprehensive, indictment was served on all accused on 2 December 2015.
[6] Meantime, in November 2014, the second complainers instructed a different firm of solicitors, namely DWF, to resolve the legal privilege claim relative to the documents held under the 2013 warrants. Andrew Gregory of DWF took up the reins. Some material, which had been in the original, but not the revised, bundle was released as not covered by legal privilege. This, and other enquiries, suggested (at least to the police) that the material omitted from the revised bundle was of significance in that it related to the fraudulent conspiracy “under investigation”. It was on this basis that the police submitted an application to the procurator fiscal to seek a warrant to recover this missing material, which had by then been passed from the second to the first complainers.
The Warrant Application
[7] The petition for the warrant is dated 4 December 2015. Notwithstanding the prior communings, it was not intimated to either complainer. It narrated that, from information received, it appeared that various named persons were, in the period January 2010 to December 2013, involved in a conspiracy: to acquire Rangers by fraud; to trade in a fraudulent manner so as to bring about the administration; and to defraud the creditors by disposing of the assets at a discounted price. The petition made no mention of the High Court indictments. It averred that there were reasonable grounds for believing that evidence material to the investigation was held in the first complainers’ offices, notably:
“material relating to the acquisition, running, administration and disposal of the assets of [Rangers] and in particular, but without prejudice to the foregoing generality, all material which James Clibbon ... had access to and/or were (sic) reviewed in consequence of which ‘chronological bundles’ of material were produced ...”.
[8] The operative part of the petition craved a warrant for the police to search the first complainers’ offices and to take possession for examination as evidence:
“any material in relation to the acquisition, running, administration and disposal of the assets of [Rangers] ...”.
It continued:
“and all material which James Clibbon ... had access to and/or were (sic) reviewed in consequence of which ‘chronological bundles’ of material were produced ...”.
Notwithstanding that the signature on the warrant was that of a senior procurator fiscal depute and that this procedure was known to, and authorised by, the advocate depute in charge of the High Court prosecution, the circumstances justifying the warrant were described to the sheriff only by a police detective sergeant. The police officer did not, apparently, tell the sheriff of the ongoing High Court proceedings. It was suggested that the sheriff may have been aware of these proceedings. If so, he made no mention of them in his reports.
[9] The sheriff’s first report is in short compass. It was, no doubt, composed as a matter of urgency in response to the Bill which, at that stage, raised only two complaints, viz: that there had been no exclusion clause in the warrant relative to privileged material and no provision for independent scrutiny of the warrant’s execution. The sheriff narrates that the petition was one of several warrant applications which he, and his colleagues, had dealt with over an extended period relative to Rangers. The sheriff was aware of the general background. He was told about the chronological bundles. There was no suggestion that legal privilege might apply. He made no provision for independent supervision of the search because that was not done, in the sheriff’s experience, when granting warrants for solicitors’ files. He did not consider that the warrant would breach the first complainers’ Article 8 right.
[10] The sheriff’s supplementary report is much more comprehensive. Contrary to the terms of the first report, it specifically notes the claim of legal privilege made by the first complainers in respect of the 2013 warrants. It narrates much of the background set out above. The revised chronological bundle had excluded material which the first complainers considered to be protected by legal privilege. The report mentions the arrest of the three employees of the second complainers and the switch of agency to DWF. The sheriff had been told by the police officer that Mr Clibbon’s actions had “impacted on the timescales involved in progressing the criminal investigations”. The application had been made to recover the items edited out of the original bundle.
[11] The warrant was granted. It was accompanied by a request for endorsement by London magistrates in terms of the Summary Jurisdiction (Process) Act 1881. Endorsement followed on 9 December 2015 when, again without any advance notice, the police arrived at the first complainers’ offices and seized 47 boxes of documents, notwithstanding further expressed claims of legal privilege. The first complainers applied to the Administrative Court of the High Court of Justice, Queen’s Bench Division and obtained an injunction prohibiting the police from examining the documents and requiring them to hold the documents in a secure room pending further orders.
[12] At the same time, the first complainers presented this Bill. On 18 December 2015, the court ordered the return of the material to the first complainers’ offices; there to be kept in a secure room and reviewed by “independent counsel”. With commendable speed, the two commissioners reported on the 47 boxes on 12 January 2016. They were able to report that the original bundle had consisted of 23 lever arch files, whilst the revised bundled contained only 11. From the excluded material, 3 lever arch files had...
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