Craig Whyte and Vital UK Ltd – The BBC About to Jog his Memory regarding his Disqualification?

Newsnight Scotland on 6^th February 2012 will show more about Mr Whyte, unless his lawyers manage to stop the programme.

The programme will include a piece by Mark Daly, whose Inside Story in October brought threats of immediate court action upon the BBC from Mr Whyte (although no action has yet been raised.)

According to the BBC website, they have obtained a transcript of the judgement by which Mr Whyte was banned for seven years from holding a post as a company director.

This has been unobtainable up to now, although it is believed that it was being sought by lawyers acting for One Stop Roofing Supplies in its case against Tixway UK Ltd, a company where Mr Whyte is the sole director.

The BBC report quotes an exchange between Mr Whyte and the QC for One Stop, Alastair Clark.

“In court, he said: “This is going back to matters some time ago. I don’t have any recollection of what it was about just now.”

He was then asked: “You can’t remember why you were banned for seven years?”

Mr Whyte replied: “Well, I’m not going to say in open court and get it wrong.”

The Rangers owner was then asked: “Was it anything to do with the treatment of creditors?”

He replied: “No.”

The decision of Registrar John Simmonds regarding the disqualification was handed down on 13 June 2000.

In it, Registrar Simmonds is stated as having said “the assets of the company (Vital UK) were put out of the reach of the creditors on a somewhat dubious delayed basis”.

The ruling continued: “Shortly after that Mr Whyte put the company into a members’ liquidation disclosing promissory notes as an asset. This seems to me to be a self-seeking action with regard to the company. If this is too harsh, then the degree of recklessness shows Mr Whyte to be thoroughly unfit to be a director.”

Registrar Simmonds’ ruling concluded: “I have heard mitigation from Mr Whyte’s counsel that he is a young man and that some voluntary recompense has been made. There is nothing that I have heard that the self-seeking behaviour and deliberately placing of assets beyond the liquidators that would not make this a middle bracket case and I consider seven years the correct order and I so order.”

I have been trying to get to the bottom of this issue, and have been hugely helped by BillyBhoy68, but alas, we do not have the resources of the BBC.

It is interesting though to look at the paperwork I have been able to find regarding Vital UK Ltd.

I wrote about it here in December. As I wrote then and I apologise for quoting myself extensively:-

Vital UK Limited was incorporated on 15^th April 1994 as Vital (UK) Ltd. The name changed to Vital UK Ltd (the brackets having been removed) on 31^st August 1994.

On 27^th October 1995, the company passed a special resolution (Vital Spec Res) resolving that it should be wound up. The resolution was signed by a “David Anderson”. This was a voluntary liquidation by the members of the company, and as such a Declaration of Solvency (a Form 4.70) had to be completed. The Declaration must:-

• be based on a full inquiry into the company’s affairs;
• state that all debts and interest can be paid within 12 months;
• include an up-to-date statement of the company’s assets and liabilities; and
• be made by the majority of directors of a company no more than five weeks before the passing of a resolution for voluntary winding-up of a company.

It is a criminal offence to make a declaration of solvency without reasonable grounds.

I have not been able to access the Declaration of Solvency. (But now see below!)

The liquidator was appointed with immediate effect and the relevant papers were received at Companies House on the 2^nd November 1995.

The London Gazette of 7^th November 1995 reported the appointment of the liquidator. The company was described as a “Dealer in all goods”. The same edition of the Gazette also reported the passing of the Special Resolution.

Vital UK Ltd (in liquidation) then lingered on for far longer than it had existed as a solvent company. The liquidation continued until, finally, the Company was dissolved in 2003.

The liquidator prepared a statement of affairs (Vital Statement of Affairs) detailing the financial position of the company as at 25^th October 1996 and produced the statement on 6^th November 1996. The liquidator noted that the company would not, despite the terms of the Declaration of Solvency, pay its debts within the required period of one year (which was by this point about to expire).

This disclosed the following:-

The only assets were Bills Receivable with a Book Value of £649,139 but an estimated sum recoverable of only £100,000.

The preferential creditors were as follows; VAT £33,039; PAYE + NIC £279,976.

The estimated trade creditors totalled £66,674.

There was £2 of issued share capital and therefore an estimated shortfall for members of £279,691.

Listed in the creditors is a balance of £40,042 owed to Custom Cleaning Services of Wishart Street in Glasgow. A quick search of Companies House shows that “Custom Cleaning Services Ltd” changed its name in 1996 to CCS 1996 Ltd. This company was wound up in 1998. Amongst its directors were David Anderson, who had signed the Special Resolution to wind up Vital UK Ltd, Craig Whyte and Kenneth McLeod.

Vital UK Ltd had a liquidator appointed on the basis that it could pay its debts. The directors, or at least a majority thereof, put their names to the Declaration of Solvency.

However, once the liquidator discovered that less than one sixth of the bills receivable were likely to be recovered, this made it clear that the debts would not be paid. At that stage the tax man was a preferential creditor, but even he was not getting anything near what he was due.

In fact, bearing in mind the length of the liquidation (and subject to looking at the liquidator’s income and expenditure accounts) I suspect the tax man got back little or nothing. The cost of a liquidation running nearly 7 years would be enormous normally.

On the information available therefore the issues seem to be (a) was the Declaration of Insolvency filled in falsely and (b) why were the bills receivable in the books so far above what the liquidator thought could be recovered.

One wonders too how a cleaning business based in Glasgow came to be owed £40,000 by a company based in Essex. Could there have been an issue here which brought the attention of the Insolvency Service to bear?

—————————-

To bring matters up to speed, I now have a copy of the Declaration of Solvency (thanks BillyBhoy68!)

You can see it here – VitalDeclaration.

It is completed only by the same Mr Anderson who signed the Special Resolution.

Page 3 of the form lists the Company’s assets and liabilities. Interestingly, though I am sure just a clerical error, the declaration states that a statement of affairs up to 31^st August, being the latest date practicable, is attached. The statement of affairs is dated 23^rd October.

The Company seems to have had little variety of material available to it. The only asset listed is £649,139 of “Bills Receivable”. There are no other assets of any kind listed. This perhaps is what Registrar Simmonds is referring to when he talks about assets being pout out of reach. The only liabilities disclosed are Bills Payable of £56,266 and “Other Liabilities” of £537,503, leaving a surplus of £55,410.

As I detailed above, the recovery from the surprisingly precise figure of “Bills Receivable” was far less, and, according to the BBC, involved the liquidator pursuing “Pelcroft”, stated to be another of Mr Whyte’s companies. (Which is the subject of my next post).

We shall see what the BBC has to add to this – the judgment of the Court sounds damning, ironically as Rangers and Mr Whyte await decisions from the Tax Tribunal and from Sheriff Ross in the Tixway case.

The story has a long way to go before it ends, I feel.

 

Advertisement

Why Did the Jury Acquit Neil Lennon’s Attacker? Paul McBride QC Thinks He Knows

 

 

Following on from the furore regarding the acquittal of John Wilson on the charge of assaulting Neil Lennon last season at Tynecastle, Paul McBride QC turned up on Newsnight to discuss the verdict.

Mr McBride is one of the finest lawyers in Scotland, and his courage in dealing with having an alleged letter bomb allegedly sent to him is much to be admired.

However I think that he was slightly less than fair in all that he said, and I wonder if his comments are a preview of a position which will become more widely adopted.

Mr McBride expressed astonishment at the verdict passed by the jury. He commented that he had spoken to no one, whether in the legal profession or outside, who could remotely understand the verdict of not guilty on the assault charge. As he was speaking, various people, some with legal backgrounds, were seeking to explain the verdict if not seeking to justify it.

Chris Fyffe, a Dundee solicitor-advocate, in a detailed and thoughtful analysis commented at length regarding the matters which had been publicised to point out how the jury might have arrived at its decision.

The process by which a jury reaches its verdict is shrouded in mystery, and under Section 8 of the Contempt of Court Act 1981  it is an offence to “obtain, disclose or solicit” details of the jurors’ deliberations. The Scottish Courts have regularly confirmed that it is impossible to go past the jury room door once the judge has sent the jury off to consider its verdict, for example in the case of Scottish Criminal Cases Review Commission, Petitioners in which the decision was handed down on 25^th July 2001 and which is reported here.

So all that anyone can do is to guess at quite how or why the jury reached its verdict as regards Mr Wilson.

Mr McBride however did appear to be well aware of what was, in his view, relevant to the decision. He commented that the Crown had presented an excellent case. Bearing in mind that Mr McBride was not present in court throughout the case, as I have had confirmed to me, one wonders how he is in position to comment on how the case was presented. It is not uncommon for an apparently watertight case to leak like a colander once the lawyers start talking, and witnesses enter the witness box. That is why, after all, we actually hold a trial!

Whilst I have read and heard opinions expressed that the Crown must, in some way have botched the presentation of the case, I am in an equally poor position as Mr McBride to comment on how the case was laid out in court as I was not there either. Any criticism I have of Crown Office relates to the background of the apparent removal of discretion from the individual prosecutor, rather than anything done in Edinburgh Sheriff Court by them.

But Mr McBride concluded with a statement which is, to me, of great concern. Whilst he did not specifically relate it to this jury (and neither he nor anyone else is capable of speaking with authority about this particular jury) his comment by implication did seem directed towards the jury box at Edinburgh Sheriff Court.

He complained that in Scotland, unlike many other systems, we had jurors who could not read, who could not write and who were laden with prejudices. Something had to be done, said Mr McBride, to resolve this problem.

Mr McBride, as well as his prominent position in the legal firmament, is closely linked with the Conservative Party, having left the Labour Party behind.

In light of that, might his musings about the defects in the jury system be given greater credence, than those of other lawyers?

Many lawyers over the years have blamed the jury and its quirks for a case ending in a way they did not like. This applies equally to prosecution and defence. It’s like blaming the referee for losing a football game, or the doctor stating that the operation was a success, but the patient died.

Is the Scottish court system imperilled by illiterate, innumerate and prejudiced jurors? Have we now reached a stage where the jurors’ oath and the directions of the judge are no longer sufficient to ensure that justice is done? Does Mr McBride want a return to the days of “peremptory challenges” of jurors, where generally the defence would object to any teacher sitting on the jury and if a person turned up for jury duty with a suit, bowler hat, rolled umbrella and copy of the Daily Telegraph, they would be objected to before they had had a chance to move towards the jury box?

Does Mr McBride want to have jury vetting, as in the United States? In a recent high profile case there, where the baseball star Roger Clemens was tried for perjury, jury selection went on for over a week, before the trial, having started, collapsed on Day 2! Whilst the legal profession might delight in the extra work such a process would bring, it would do nothing for the hard pressed courts and the amounts of work that has to be processed.

Should there be pre-jury service questionnaires to establish competence on the part of prospective jurors? I suspect some would try to “fail” such tests so as to avoid service! Should we revert to some form of property or other qualification for jurors? For example, must they be a home owner and in employment, and how does that deal with the questions of competence and prejudice?

I may be making far too much of a throw away remark by Mr McBride QC, but he is not a man known for that. Generally his comments are well thought out and delivered clearly. If he feels that the jury system needs revised in some way, then I am sure he could persuade others to that view. Where might that lead?

In conclusion, the maxim that “Hard Cases make bad law” is figuratively engraved on anyone who has studied law. Taking unique or especially troubling, distressing or baffling cases or incidents and trying to establish some across the board change as a result is usually a recipe for disaster, for example with the Dangerous Dogs Act. Let’s hope that the decision of the jury in Mr Wilson’s case, who were of course the best placed people to determine the issue of Wilson’s guilt or innocence, is not used to make radical changes of any sort.

 

Should Mr Al-Megrahi Be Sent Back to Prison? Newsnight and the Curious Thoughts of Geoffrey Robertson QC

Libya is in chaos and Mr Abdelbaset Al-Megrahi, the man convicted of murder in connection with the Lockerbie bombing, cannot be found. Politicians here and in the USA are calling for him to be extradited or sent back to prison.

Newsnight Scotland decided it would be useful to debate the issue with the assistance of two QCs, Gordon Jackson and Geoffrey Robertson. After a brief report including Nick Clegg saying  that he would prefer Mr Al-Megrahi to be back in prison, the 24^th August edition went back to the studio for the discussion. Mr Robertson took the lead.

What followed did a disservice to the viewers, and makes one wonder how Newsnight Scotland chose its guests (or one of them at least).

 

Geoffrey Robertson QC is one of the most eminent and well known lawyers in Britain. The catalogue of famous and ground-breaking cases in which he has been involved is long and his reputation is rightly illustrious. He is also a man who has been willing to serve, having been one of the judges in the UN Special Court for Sierra Leone for some years and a Distinguished Jurist Member of the United Nations Internal Justice Council since 2008.

As his biography on his website states, he has appeared “as leading counsel in over 200 reported cases, many in the European Court of Human Rights, the House of Lords, the Court of Appeal, the High Court and the Privy Council, with appearances in the Courts of Appeal of Singapore, Trinidad, the Eastern Caribbean, Malawi, Florida and appearances in various courts in Australia, New Zealand, Fiji, Mauritius, Malaysia, Anguilla, Antigua, in the World Bank Arbitration Court (ICSID) and in the Revolutionary Military Tribunal of Mozambique.”

He is a prolific author, and his The Tyrannicide Brief, about John Cooke, the lawyer who prosecuted King Charles I, is a masterful book, emphasising the rule of law, and the fact that even monarchs and rulers are bound to follow the law. I would heartily recommend that book to any reader, lawyer and non-lawyer alike.

One might think that having such a distinguished legal mind available to take part in the debate was a chance not to be missed. There was only one problem. Mr Robertson’s list of countries and courts where he has acted does not include Scotland. As far as I am aware, Mr Robertson, not being a member of the Scottish Bar, has never appeared in our courts.

 

As a very wise and clever man, I am sure he is more than capable of understanding points of Scots Law, but this Newsnight appearance did not demonstrate that. Why did Newsnight Scotland feel that, other than Gordon Jackson QC, there were no other lawyers practising in Scotland worth having on? Perhaps the answer is that they could not find any Scots lawyers to disagree with the position adopted, correctly I believe, by Mr Jackson. Perhaps the chance to have such a famous name as Mr Robertson on meant that Newsnight did not ask any other Scots lawyers. Was this a decision by Newsnight that there required to be “balance” even if that meant balancing the wrong view with the right view?

 

The Lallands Peat Worrier had done the hard work of writing about the legislation dealing with the question of compassionate release, and what the rules were governing any possible recall to prison. I commend his post to all readers. He made clear that, in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, Mr Al-Megrahi could only be recalled to prison under s17(a) if either of the following took place: (i) if the Parole Board recommended that the Justice Secretary recall him; or (ii) if the Justice Secretary decided that it was expedient in the public interest to revoke the licence and recall him to prison and it was not practicable for the Justice Secretary to await a Parole Board recommendation.

Mr Robertson did not trouble himself to make reference to these rules and he launched himself into the fray, with almost everything he said being incorrect in some way. My thoughts on Mr Robertson’s comments are in italics below.

 

First of all, despite it being a discussion about Mr Al-Megrahi, Mr Robertson started with Colonel Gaddafi, stating that there was “increased evidence” to show that the Libyan leader (or former leader, depending on when this is read) “gave orders to Mr Al-Megrahi to blow up the jet”. He later stated that the former Libyan Justice Minister had stated that he had proof of this.

                    Professor Black, on his Lockerbie Case Blog, noted that this proof, whist promised, had still to emerge.

 

He commented that Mr Al-Megrahi had had a fair trial “before eight judges”.

                    Many observers and commentators do not accept that the outcome of the trial was fair at all. Whilst the issue of Mr Al-Megrahi’s guilt or innocence  is not relevant, legally, to any question of recall (in law he is a convicted murderer the matter of his involvement remains at issue, as the Justice Form Megrahi campaign pursues its quest for a full inquiry into the atrocity.

                    The trial of course was before three judges with a further five hearing the appeal. There were a number of areas not explored at the trial or appeal, which are, apparently, identified by the as yet unpublished report by the Scottish Criminal Cases Review Commission.

 

He felt that “the country” should fulfil the promise made by Robin Cook, when Foreign Secretary, to Madeleine Allbright, who was the US Secretary of State, that Mr Al-Megrahi would serve 27 years in prison.

                    If Mr Cook did make such a promise, then he had no authority to do so. The matter of Mr Al-Megrahi’s release was one for the Scottish Courts, in connection with his appeal and the Crown appeal that the sentence was too lenient, or for the Scottish Ministers, not the UK Foreign Secretary. In any event, the reason for Mr Al-Megrahi’s release was his ill health and imminent death, not any assessment that he had tholed his assize.

 

He referred to the “extraordinary behaviour” of the Minister (presumably Mr MacAskill) who had been “conned by doctors paid by Libya” into accepting that the prisoner had only three months to live. He said that the doctors had been so wrong in their diagnoses that their findings should be questioned and that there had to be a proper examination by independent doctors.

                    Whilst one of the medical experts who provided comment upon Mr Al-Megrahi’s condition was an expert engaged on Libya’s behalf (and in a situation like this there is nothing wrong with a person hiring their own expert to offer an opinion) Mr MacAskill has always made it clear that the medical advice he considered was that from the Chief Medical Officer of the Scottish Prison Service. The suggestion that doctors “conned” the Justice Secretary is one which seems clearly defamatory, and it would not surprise me if the members of the medical profession involved took the matter further.

                    The implication of what he said was that Mr Al-Megrahi was either not terminally ill at all, or if he was, that his prognosis was far longer than three months .In either event, this is a serious allegation to make, and I suspect one that the learned gentleman had not thought through. His comments amounted to a suggestion that the medical experts deployed for the Libyan had produced reports not based upon their medical expertise, but instead influenced by their paymaster.

                    “Independent” doctors have already determined the position of Mr Al-Megrahi. The fact that a change of location in returning to his homeland and family, and an apparent new treatment regimen has extended his life beyond what was predicted is not, in my view, a cause for re-incarceration, and indeed the legislation does not see it as such when dealing with a “long-term prisoner”.

 

He pointed out, with reference to Mr Al-Megrahi’s recent appearance at a pro-Gaddafi rally, that if he was demonstrating in favour of his leader when he was on probation, that was wrong.

                    The Scottish Ministers have helpfully made a copy of Mr Al-Megrahi’s licence available to all. As Mr Jackson pointed out, there is nothing there which precludes an appearance at a rally, and, as Mr Jackson went on to say, how likely was it that Mr Al-Megrahi could have refused to attend if told to by Colonel Gaddafi.

 

Mr Robertson then referred to the application in 2009 made by Mr Al-Megrahi’s lawyers for bail due to his ill-health, which was refused by the High Court who, according to Mr Robertson, said that if Mr Al-Megrahi was sufficiently unwell, he should go to a “bail hostel” in Scotland.

                    This was on the premise that his appeal was continuing and was not connected to the matter of compassionate release from his sentence. Whilst the compassionate release granted could have required Mr Al-Megrahi, as a condition of his licence, to reside in Scotland, the medical evidence specifically referred to the benefits for him in returning home.

 

 

He then returned to Colonel Gaddafi, saying that he expected him to end up strung up from a lamppost, but that if he was captured, there would be an argument about whether Scotland or France would prosecute him first, as each would have the right to seek his transfer from the International Criminal Court in the Hague before the Colonel was tried at the ICC. I would not be surprised if the USA, and various other nations, thought they had grounds for seeking to prosecute him.

As the discussion neared the end, he went back to Mr Al-Megrahi, stating that it was “bewildering” that the “Scottish Probation Office” had not recalled Mr Al-Megrahi for breach of his licence, and that there should be legal proceedings taken to force them “to do their duty”.

                    As Mr Jackson had already pointed out (and the initial report by Julie Peacock had said) it did not appear that the licence conditions had been broken, so far. One reason why the “Scottish Probation Office” had taken no action is that such a body does not exist, nor indeed is Mr Al-Megrahi on probation. His situation, having been released, is monitored by East Renfrewshire Council. I would be interested to know who Mr Robertson thinks should be taking this legal action. Perhaps he might care to initiate it himself, if he feels so strongly about it?

 

It was not fair that Mr MacAskill had not met with the relatives of the dead but he had met with Mr Al-Megrahi before reaching the conclusion that the Libyan would be dead within three months.

                    The Justice Secretary did not reach any conclusion about Mr Al-Megrahi’s condition. He relied upon the expert medical witnesses for that purpose, as is right to do. Whilst there have been questions about the release, as Mr Jackson said, that was not what was being talked about now.

 

He concluded by stating that, if Mr Salmond and his Justice Secretary “had any guts, they would re-visit their earlier decision” to release Mr Al-Megrahi.

                    Here again Mr Robertson failed to get the point. There is no scope to “revisit” the decision to release Mr Al-Megrahi. That has happened. Instead the question is whether or not there are conditions satisfying the legal requirements for the licence to be revoked and a recall to prison ordered. As has been said elsewhere, it is not a breach of his licence to fail to die on schedule! Mr Al-Megrahi’s lawyer, Professor Tony Kelly, would undoubtedly act in the best interests of his client by challenging any decision to recall his client, if there was any scope for so doing. As matters stand, no grounds for recall exist, and the demands of American Senators and UK politicians have no place in that decision.

 

In contrast Mr Jackson sat in the studio talking nothing but sense. He seemed to have a rather world-weary air as he listened to Mr Robertson and tried to correct his errors. Mr Jackson pointed out that, in theory, it was possible, if the conditions referred top above were fulfilled, that Mr Al-Megrahi could be recalled to prison, but he saw that as extremely unlikely. It was not going to happen.  He told the presenter that the issues of Mr Al-Megrahi’s release two years ago had nothing to do with the question of revocation of his licence now.

Perhaps there was a problem with the link to Mr Robertson in London, because he repeatedly sought to talk over Mr Jackson, which is not an easy task to accomplish!

There is clearly great public interest in this issue. Mr Al-Megrahi stands convicted of a heinous crime and it appears that there are people looking for him to remove him from Libya.

However this debate was not helped by one of the contributors having no knowledge at all, it seemed, of the relevant legal rules applicable to the matter at hand. This could be contrasted with the later appearance on the programme of Lord Foulkes to discuss the differing university tuition fees charged in Scotland depending on the domicile of the student. His Lordship, notwithstanding a distinguished career in the House of Commons, the House of Lords and the Scottish Parliament, is not a lawyer. Legal niceties might understandably escape him.

Mr Robertson however does not have that excuse. His failure to acknowledge the “rule of law” in this matter is surprising given his very public stance regarding that doctrine over the years, and the rights people have to protect them from the vagaries or abuses of State power. I suspect John Cooke would not be demanding Mr Al-Megrahi’s return to Scottish imprisonment were he here today.

Perhaps next time Newsnight Scotland considers having a lawyer on as a guest, they should ask if the person actually knows about what the topic under discussion is.