I doubt whether a former lord advocate has ever before been subjected to cross-examination in a court of law where his own conduct has been under scrutiny.
Yesterday Lord Mulholland, Scotland’s senior prosecutor from 2011 to 2016 was in the Court of Session, not in his usual role of holding others to account but as a witness for the defence — his own.
The Crown Office, which he once headed, has admitted to conducting a malicious prosecution against businessmen caught up in the sale of Rangers FC , and now one of them, David Grier, is suing the present lord advocate and Police Scotland for £7 million.
The case was conducted while Mulholland was in charge, and his successor, James Wolffe QC, has admitted it was “a very serious failure in the system of prosecution”.
One might have expected the proceedings to be conducted by judges in scarlet robes and counsel wearing wigs. Instead they were in suits, and, because of the pandemic, giving evidence from the comfort of their sitting rooms.
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“Are you alone? And have you turned your phone off?” asked the presiding judge, Lord Tyre. Mulholland quickly switched it off then took the oath. At one point the door behind him swung open and a head peeped round. His lordship had to gesture hurriedly to get it shut again. Ah, the perils of Zoom.
The key issue was whether Mulholland had been involved in the preparation of the prosecution. He had naturally done his homework: documents were produced to show he had had only a “supervisory role” as the investigation took shape.
“If my hand was on the tiller, I would be up front and taking part in discussing strategy,” he said. “These documents show I wasn’t.”
This is another case of a lord advocate distancing himself from the work of his own office. In the case of Alex Salmond, Wolffe told a parliamentary inquiry that he had nothing to do with legal advice given to MSPs on what could and could not be published. The fact that the advice came from his own office was, apparently, nothing to do with him.
One wonders where the Crown Office buck actually stops – or indeed if there is a buck at all. Half way through the hearing Mulholland informed the court that the Duke of Edinburgh had died; there was a brief pause before proceedings continued. One wonders what the duke would have thought of a leader ducking responsibility for what happened on his watch.
