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Thursday, June 18, 2015

Stolen Art Watch, Da Vinci Madonna Judgement Spells End Of Stolen Art Recovery


The judgement below proves once and for all that no money will be paid for the recovery of stolen art and antiques.
If ever there was any doubt, it has been confirmed by this judgement that anyone with information that leads to the recovery of stolen art and antiques will not get a single penny and any reward offer is not worth the paper it is written on.
Anyone dealing with ex Police such as Dick Ellis and Art Loss Adjusters like Mark Dalrymple will be passed to Undercover Police where they will be set up and not paid for their efforts.
Be warned, unless a person with information that leads to the recovery of stolen art and antiques is prepared to give that information free of charge, without any reward or fee, then they will be hounded, arrested and indicted.
This case started as a letter to Mark Dalrymple, who was offering a public reward. The police intervened and then they rejected the reward offering instead a buyback. Later they claimed this was legitimate police deception.
The unresolved legal question is whether the police have the right to interfere with a public offer of a reward.
Can the state prevent a party claiming a legitimate reward offer and face no legal redress?


OUTER HOUSE, COURT OF SESSION
[2015] CSOH 79
A460/12
OPINION OF LORD BRAILSFORD
In the cause
MARSHALL NEILL CRAIG RONALD
Pursuer;
against
THE DUKE OF BUCCLEUCH
Defender:
Pursuer: Party
Defender: A Young, QC; Anderson Strathern LLP
18 June 2015
[1] In this action the pursuer sues the defender for a sum of money said to be due as an “agreed payment” in terms of a “contract between the parties”. The pursuer at the times relevant to the dispute with which this action is concerned was an English solicitor resident and practising in that jurisdiction. The defender is the 10th Duke of Buccleuch. The defender inherited the title on the death of his late father, the 9th Duke, on 4 September 2007. Throughout most of the period within which the events with which this action is concerned occurred the defender occupied the title of and was known as the Earl of Dalkeith.
[2] I heard a preliminary proof before answer on 4 and 5 June 2015. In terms of an interlocutor dated 11 November 2014 pronounced by Lord Pentland the preliminary proof
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before answer was limited to the specific issue of “whether the defender gave authority to John Craig to enter into the contract which the pursuer seeks to enforce.” By a subsequent interlocutor dated 12 November 2014 pronounced by Lord Stewart the defender had been ordained to lead at the proof before answer.
[3] At proof the defender adduced the evidence of four witnesses. These were three retired police officers who had all served with Dumfries and Galloway Constabulary; Gary Copeland, a retired detective inspector, Peter McAdam, a retired detective chief inspector and Michael Dalgleish, a retired detective superintendent. The fourth witness was the defender. The pursuer elected to lead no evidence.
[4] The factual background to the matter at issue was not by the conclusion of the evidence the subject of material dispute. A clear and relatively concise narrative of the factual issues which are relevant to the matters raised for preliminary proof can be stated on the basis of averments in the pursuer’s pleadings which are admitted in the defender’s pleadings and from the undisputed evidence of the witnesses.
[5] On 27 August 2003 a painting attributed to Leonardo Da Vinci and known as “The Madonna with the Yarnwinder” (“the painting”) was stolen from Drumlanrig Castle, Thornhill, a property owned by the defender’s family. At the date of the theft of the painting it was the property of the defender’s father, the 9th Duke. When the theft of the painting took place the defender was at another part of the Drumlanrig Castle Estate approximately 20 minutes’ drive from the Castle. He was informed of the theft shortly after it was discovered and immediately went to the Castle. On his arrival he found the police already in attendance.
[6] The painting was insured by the 9th Duke. A claim was made against the insurers in respect of the theft. The underwriters of the insurance policy engaged the services of a firm
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of loss adjusters, Tyler & Co and a loss adjuster, Mark Dalrymple employed by that firm became involved in attempts to recover the painting.
[7] The investigations of the police and efforts of the loss adjuster Mark Dalrymple to attempt to recover the painting were apparently extensive and prolonged. In the period between the date of the theft and some time in about 2006 the police officer in charge of the investigation was Detective Chief Inspector Peter McAdam. Mr McAdam gave evidence that following the theft he made contact with a specialist art theft division of the Metropolitan Police in London for advice and assistance in relation to the investigation of the theft of the painting. The Metropolitan Police provided Mr McAdam with the services of two undercover police officers, an individual known to him as John Craig and a further individual who Mr McAdam thought was named David Restor. Mr McAdam said he never knew whether these were these individuals’ real names or not. In order to provide these undercover police officers with what he called a “legend” which would appear convincing to any persons they might have contact with in connection with the painting it was represented during the investigation that David Restor was an art expert and John Craig was a loss adjuster. On the basis of the evidence I heard it would appear that there was a degree of co-operation with and assistance from the genuine loss adjuster Mark Dalrymple in relation to the “legend” created for the undercover agent John Craig. Between about 2004 and early 2007, the evidence was very vague as to the end date, there was contact between the police and a man called “Mr Brown”. The evidence about this aspect of matters was, I think it is fair to say, fairly brief and lacking detail. I say this not as a criticism of the police officers who gave evidence. I can appreciate that for sound operational reasons they would disclose no more about police undercover activities than was necessary to discharge their obligation to the court. Moreover I do not consider that the precise details of the police
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undercover operation in relation to the theft of the painting were either relevant to, or necessary for the resolution of the issues raised in the preliminary proof. Subject to that caveat the evidence I heard was to the effect that the individual known as Mr Brown represented to the undercover police officer John Craig that he either had information pertaining to the painting or could arrange for the return of the painting. His expressed aim was to obtain a payment in return for such assistance. The painting’s insurers had in fact offered a reward for information leading to the return of the painting and an advertisement to that effect had been placed in an art magazine. A copy of this advertisement was produced by the pursuer and comprised No 6/28 of process. The advertisement informed persons claiming to have any knowledge of the painting to contact either Detective Chief Superintendent Peter McAdam or Mr Mark Dalrymple, the loss adjuster.
[8] At this point it is of some significance to note that in evidence which was unchallenged the defender said that he was not party to any offer of reward, had never seen the advertisement No 6/28 of process and was in fact unaware that a reward had been offered until after the recovery of the painting. It should further be noted that in or about 2004 the 9th Duke reached a settlement with his insurers in relation to the painting. The terms of the insurance settlement were not explained precisely in evidence, again they are not relevant to the issues in dispute. The evidence I did have was that payment under the terms of the insurance policy was made to the 9th Duke subject to an agreement in terms of which in the event of subsequent recovery of the painting the Duke reserved the right to purchase it from the underwriters on payment of a specified consideration. On completion of these arrangements, the 9th Duke by Deed of Gift passed his right of ownership in the painting and assigned his right under the agreement with the underwriters to a trust known as the Buccleuch Heritage Trust.
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[9] The next development of significance was that a on date which was not precisely established in evidence but thought by the police officers to have been in 2006, the loss adjuster Mark Dalrymple appeared in a television programme called “The Heist” which appeared to have been a documentary relating to art theft. During this documentary it would seem that Mark Dalrymple disclosed that there was frequently police involvement, or at least knowledge, of negotiations conducted by loss adjusters involved with third parties in attempts to recover art work which had been stolen. After the screening of this documentary the police evidence was that their contact with “Mr Brown” ceased.
[10] The police were anxious to attempt to restore communications with “Mr Brown”. To that end a tactic they adopted was to attempt to bolster or enhance the credibility of the “legend” they had created for the undercover agent John Craig. The police officers Mr Copeland and Mr Dalgleish who succeeded Mr McAdam following his retiral as the senior office on the case, decided to modify John Craig’s “legend” by representing that he no longer worked on behalf of Tyler & Co the loss adjusters but was working directly for the Duke. To further that purpose a number of documents were created to support this “legend”. These comprised, first, a letter purporting to come from the Earl of Dalkeith and addressed to Mark Dalrymple and purporting to be dated 31 July 2006 and a response thereto purportedly dated 4 August 2006. These letters were in fact created in May 2007. They are produced and comprised Nos 6/3 and 6/4 of process. The tenor of these letters was that it would be possible for a deal to be bartered between the Duke of Buccleuch and those holding the painting without involvement of the underwriters. Second, there was also produced at this time an open letter written on the Earl of Dalkeith’s notepaper addressed “to whom it may concern” purporting to come from the Earl and granting authority to Mr John Craig to act as his agent in the recovery of the painting. This letter is produced and
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comprises No 6/7 of process. The circumstances of the creation of this document are as follows. Mr Copeland determined that it would assist his operation if John Craig could purport to be acting directly as the Duke of Buccleuch’s agent. To that end he conceived the idea of a letter of authority. He drafted the form of the document which comprises No 6/7 of process and at that stage discussed the matter with the defender. Mr Copeland said that without going into all the details of the operation, he requested the defender’s co-operation to the extent of signing the letter and thereby purporting to grant authority to the undercover police officer. This evidence coincided with the defender’s evidence. Both Mr Copeland and the defender were at one that the wording of the document 6/7 was Mr Copeland’s. The defender had no input into the drafting of the document and made no suggestions, or alterations to, the draft presented to him. At the time when these arrangements were put in place the defender was on business on the Island of Arran. From there he planned to travel by air to London and to accommodate this it was agreed that he would meet Mr Copeland at Glasgow Airport where he would sign the document which Mr Copeland would have prepared. Mr Copeland in fact took a draft of the document which he had prepared to the defender’s secretary at his office on the Estate where that person put the draft onto the defender’s headed notepaper. Mr Copeland then took the completed document to Glasgow Airport where it was signed by the defender.
[11] It was after police contact with Mr Brown had ceased and after John Craig’s “legend” had been modified in the way described that the pursuer became involved. In 2007 the pursuer practised as a solicitor using the trading name “Marshalls” from premises in Upholland, Lancashire. By letter dated 10 August 2007 written on headed notepaper of the business Marshalls, the pursuer wrote to Mark Dalrymple purporting to act on behalf of unnamed clients “… who can assist in the recovery of the Da Vinci painting ‘Madonna of the
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Yarnwinder’ (The Lansdowne Madonna) which was stolen from Drumlanrig Castle on 27 August 2003”. The letter went on to represent that “Our concern is to negotiate the safe repatriation of the painting and negotiate the reward/finder’s fee on behalf of our clients.” It was further represented that safe delivery of the painting could be effected within a 72 hour time frame. This letter was produced and comprises No 6/20 of process.
[12] Mark Dalrymple contacted the police on receipt of this letter. Thereafter contact was made between the undercover officer John Craig and the pursuer. There were various communings between these persons, the details of which were not the subject of evidence. As a result of these communings, an arrangement was made between John Craig and the pursuer whereby it was agreed that the painting would be handed over to John Craig and in return certain payments totalling £4.25 million would be effected. To that end a meeting between those persons and a number of others was arranged to take place in the offices of HBJ Gateley Wareing, solicitors in Glasgow on 4 October 2007. At that meeting a painting was handed to John Craig. Shortly thereafter other police officers entered the premises and arrested the pursuer and a number of other persons. Until the point of his arrest the pursuer was proceeding in the belief that John Craig was a loss adjuster and, further, acting as the agent of the defender.
[13] The narrative of the facts which I have summarised was not the subject of challenge at cross-examination. As I have already indicated, no evidence was adduced by the pursuer. In these circumstances I was able to proceed on the basis of the uncontested factual background I have rehearsed.
[14] The pursuer’s case is based upon the proposition that there was an express contract of agency between the defender and John Craig in terms of which Mr Craig was authorised to negotiate the recovery of the painting on behalf of the defender. The pursuer’s averments
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in support of this case are in the following terms. In article 16 of condescendence it is averred:
“On 29 August 2007, a telephone discussion took place between the pursuer and John Craig regarding return of the painting. An initial figure of two million pounds was agreed to secure the return of the painting and once this figure was agreed a date for the return of the painting was fixed for the first week in October in order to accommodate the requirements of the defender’s agent John Craig. As a result of further discussions between the pursuer and John Craig, it was agreed that the total sum to be paid by the defender for return of the painting would be £4,250,000. During all of those discussions, John Craig represented to the pursuer that he was acting as the defender’s agent and that he had the defender’s authority to enter into a legally binding agreement on his behalf.”
In article 15 of condescendence it is further averred:
“… John Craig was an undercover police officer under explanation that, in addition, the defender had expressly authorised John Craig to act on his behalf.”
Finally, in article 6 of condescendence it is averred:
“In particular, the defender provided a written letter of authority confirming that John Craig acted as his agent in the recovery of the painting and expressly authorising John Craig to conduct any lawful negotiations or transactions in relation to this matter.”
The letter referred to in article 10 of condescendence is said to be produced and founded upon for its terms. That letter is No 6/7 of process to which I have already referred.
[15] On the basis of the foregoing the pursuer’s case is plainly one of an agent acting with the express and actual` authority of his principal.
[16] Against this factual background the submission for the defender was that the essentials for the creation of a principal and agent relationship were as stated by Diplock LJ (as he then was) in Freeman & Lockyer v Buckhurst Properties (Mancal) Ltd [1964] QB 480 at page 502. In that passage Diplock LJ stated the law as follows:
“It is necessary at the outset to distinguish between an ‘actual’ authority of an agent on the one hand, and an ‘apparent’ or ‘ostensible’ authority on the other. Actual authority and apparent authority are quite independent of one another. Generally they co-exist and coincide, but either may exist without the other and their respective
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scopes may be different. As I shall endeavour to show, it is upon the apparent authority of the agent that the contractor normally relies in the ordinary course of business when entering into contract. An ‘actual’ authority is a legal arrangement between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contract …”.
[17] In the present case it was submitted the pursuer’s position was entirely periled upon the existence of an actual authority. No other case was pled. Applying the facts as disclosed in the evidence it could not be said that there was any actual authority. The defender was not, as a matter of fact spoken to by witnesses and unchallenged in cross-examination, aware of the undercover operation at its commencement and only became aware of its existence when he was asked to provide assistance in relation to the bolstering of the undercover agent’s “legend” sometime in the earlier part of 2007. Whilst documents to that end were produced, and, most relevantly a document was produced which on its face appeared to evidence a relationship of principal and agent between the defender and John Craig, these documents did not, on the facts, represent consensus between the defender and John Craig to the creation of a relationship of agency. On the contrary, these documents were, as all the witnesses stated, no more than a sham or a pretence designed to support a police operation attempting to recover the stolen painting. Throughout all the events with which this action is concerned the person known as John Craig was a police officer acting on the instructions of his superior officers. Similarly the defender was not acting on his own behalf but was acting as a willing assistant in a police scheme aimed at the recovery of the painting. In these circumstances the defender’s position was, quite simply, that there was no evidential basis for the case the pursuer had pled.
[18] The pursuer’s position was set forth in a written submission, which he supplemented by a number of assertions which were not, as a matter of fact, spoken to in evidence. No
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objection was taken to the assertions by senior counsel for the defender. The assertions were, essentially, that the pursuer had not been convicted of any crime in relation to his dealings with the painting. He had acted throughout as an honest intermediary or broker seeking only to achieve the return of the painting to its lawful owner, the defender. Beyond these general assertions the pursuer’s position was that he wished to rely upon a written submission which he submitted and invited me to read. I have read the submission. The pursuer’s written submission was lengthy and detailed. The submissions were made available prior to the leading of evidence at the preliminary proof and had been lodged with supporting documentation before the proof commenced. In the written submission it was accepted that the pursuer’s case rested entirely on an actual authority existing between the individual known as John Craig and the defender. As it is stated in paragraph 18 of the submission:
“The pursuer’s case is that the defender authorised John Craig to act as his agent. John Craig acted with actual authority and entered into an enforceable contractual agreement with the pursuer.”
Beyond that proposition there was a lengthy discussion on various aspects of the law of agency, very little which appeared to have a direct relation to the facts as established in the evidence. In particular the submission did not address the central point of how a case of express or actual authority could be maintained in a position where the unchallenged evidence of all witnesses was that no such contract existed. The written submission entirely failed to address the issue of how an express contract of the sort narrated in the pleadings could exist where all the evidence available to the court was to an entirely contrary effect.
[19] In my opinion the submissions made by senior counsel for the defender were correct. The only case pled by the pursuer was that there was actual authority granted by the defender to John Craig in terms of the letter 6/7 of process. That position, the pursuer’s only
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case, was entirely inconsistent with the evidence I heard in this case. That evidence was clear and, significantly, entirely unchallenged by the pursuer. On the basis of that evidence there was no consensual agreement between the person known as John Craig and the defender of the type desiderated by the pursuer. On the contrary the arrangements were no more than a scheme designed and controlled by the police in an attempt to obtain the return of the stolen property. The test for the creation of authority between a principal and his agent as set forth by Diplock LJ in Freeman & Lockyer (supra) was not met. In these circumstances I consider that the question posed for preliminary proof before answer in the interlocutor of 11 November 2014 falls to be answered in the negative. In the result I will uphold the defender’s second plea-in-law and assoilzie him from the conclusions of the summons.

Is this pub outhouse where Hatton Garden robbers planned diamond heist? Tiny building in north London was raided by police six weeks after jewel theft

  • Small outbuilding is where robbers are thought to have plotted jewel heist 
  • Located behind a suburban streets in the grounds of a North London pub
  • It was raided by plain clothes police in the weeks following the jewel theft  
  • Nine men have so far been charged in connection with the raid on a vault in Hatton Garden
This is the tiny outbuilding where those accused of carrying out the Hatton Garden jewel robbery are said to have plotted the diamond heist.
Hidden behind a suburban street near a public park in North London, the gang members are thought to have met in the building in the months leading up to the raid.
It is believed the building is where they stored property and where neighbours reported hearing loud drilling noises.
The outbuilding in the grounds of a North London pub, where the Hatton Garden robbers are alleged to have plotted the heist 
The outbuilding in the grounds of a North London pub, where the Hatton Garden robbers are alleged to have plotted the heist 
According to The Sun, the brick building, which has black wooden doors, sits in the grounds of a pub and was leased out by a plumbing company around 18 months ago.
It was raided by plain clothes police officers six weeks after the heist over the Easter weekend.
A source told the newspaper: 'The building is very anonymous. There is an old concrete floor inside.'
The picture of the gang's alleged hideout comes after nine people in total have been charged with conspiracy to to commit burglary in connection with the raid.
The gang targeted the Hatton Garden Safe Deposit Company in London's jewellery quarter over the Easter weekend 
The gang targeted the Hatton Garden Safe Deposit Company in London's jewellery quarter over the Easter weekend 
It is thought that the thieves forced open shutter doors and used a drill to bore a hole 20in deep, 10in high and 18in into the vault wall
It is thought that the thieves forced open shutter doors and used a drill to bore a hole 20in deep, 10in high and 18in into the vault wall
Last month, eight men appeared at Westminster Magistrates Court in connection with the jewel heist, with the gang having a combined age of 490.
The so-called Dad’s Army gang, whose ages range from 48 to 76, are accused of stealing jewels worth more than £10million.
The eldest suspect is pensioner Brian Reader, 76, who was arrested after police stormed his £850,000 home in Dartford, Kent, where they also detained his son, Paul, 50.
Boiler engineer and plane enthusiast Hugh Doyle, 48, property developer Terry Perkins, 67, and Daniel Jones, 58, all from Enfield, north London, are among those charged.
The safe was left strewn with empty safety deposit boxes when police found it after the Easter weekend
The safe was left strewn with empty safety deposit boxes when police found it after the Easter weekend
The gang broke through this door to gain entry to the premises before going through 73 boxes
The gang broke through this door to gain entry to the premises before going through 73 boxes
Police have also arrested 74-year-old John Collins, from Islington, north London and former mechanic William Lincoln, 59, from Bethnal Green, east London.
Carl Wood, 58, from Cheshunt, Hertfordshire, has been charged with the same offence.
A ninth man, John Harbinson, 42, of Benfleet, Essex, was also charged.
They were arrested when more than 200 officers swooped on 12 addresses across London and Kent.
John Collins
Paul Reader
John Collins, left, and Paul Reader, right, who have appeared in court in connection with the jewellery heist 
Daniel Jones
Carl Wood
Also to have been charged in connection with the raid are Daniel Jones, left, and Carl Wood, right 
Hugh Doyle
Brian Reader
Hugh Doyle, left, and Brian Reader, right, are taken to court last month to appear in connection with the Hatton Garden heist
The raid over the Easter weekend saw thieves break into the vault at Hatton Garden Safe Deposit Company in London's jewellery quarter.
Officers believe they entered the building, which houses a number of businesses, through a communal entrance before disabling the lift so they could climb down the lift shaft to the basement.
It is thought that they then forced open shutter doors and used a drill to bore a hole 20in deep, 10in high and 18in into the vault wall.
Once inside, the thieves ransacked 73 safety deposit boxes, taking millions of pounds worth of goods.

Friday, June 05, 2015

Stolen Art Watch, Da Vinci Madonna, Lifting the Veil Of State Secrecy To Reveal The Deliberate Dishonesty, Hatton Garden Heist Accused In Court & A Whole Lot More


Duke of Buccleuch was 'an actor' in Yarnwinder probe

A Scottish aristocrat has told a court that he became "an actor" in an undercover police operation to secure the return of a stolen masterpiece.
Richard Scott, the 10th Duke of Buccleuch, gave evidence at the Court of Session in Edinburgh, where he is challenging a £4.25m legal action.
Marshall Ronald claims the duke owes him the sum for recovering the artwork.
Madonna of the Yardwinder was taken from the duke's family home, Drumlanrig Castle, near Thornhill, in 2003.
The Leonardo Da Vinci painting was recovered in 2007 after Mr Ronald, of Upholland, Lancashire, sent a message to an undercover officer stating: "The Lady is coming home".
Three years later the former lawyer was cleared of conspiring to extort money for its return at the High Court in Edinburgh.
Mr Ronald claims in the civil action that the duke provided a letter of authority confirming that the officer, known as John Craig, acted as his agent in the recovery of the painting and was authorised to conduct negotiations.

He contends that the £4.25m was the amount agreed to be paid to him for his role in securing the return of the masterpiece and that the agreement was made by Craig acting on behalf of the Duke.
The duke maintained in the action that Craig had no actual authority to enter any agreement or negotiate on his behalf.
It is said the letter of authority was requested by the police as part of their undercover operation and was designed to support John Craig's undercover persona.
Giving evidence in court, the duke said he first became aware of an undercover operation mounted by the police in 2006.
He said he was informed that a man by the name of Brown had convinced the police that he had seen the painting and possibly had access to it.
He said he was asked by an officer to have a phone conversation with him which he did. "I knew I had to act out a role," he said.
He added: "I was an actor in a process which they were devising and creating."
The judge, Lord Brailsford, reserved his decision in the case.

Below, the Actual Authority Issued by the then Earl of Dalkeith, now Duke of Buccleuch, Which was withheld illegally by the Prosecution at the 2010 trial of the Da Vinci Madonna accused. If it had been disclosed there would not have been any grounds for arrest and indictments, let alone a criminal trial.
This document was only discoverd post trial and there is an enquiry into why the prosecution withheld it from the Defence at the criminal trial.


 

1.    This is a self-proving document.  When a document is subscribed by its granter, or granters, signed by one witness and contains a statement of the latter’s name and address, the authenticity of the granter’s signature is presumed.[1]


[1] Requirements of Writing (Scotland) Act 1995 Act S3 (1)(b)

The terms of the letter could hardly be clearer.  No-one reading the letter could doubt that the defender had appointed John Craig as his agent. 

OUTER HOUSE, COURT OF SESSION


[2014] CSOH 101

A460/12
OPINION OF LORD GLENNIE

in the cause

MARSHALL NEIL CRAIG RONALD
Pursuer;

against

THE DUKE OF BUCCLEUCH
Defender:

________________


Pursuer:  Party
Defender:  A Young, QC; Anderson Strathern LLP

19 June 2014

Introduction
[1]        On 27 August 2003 a valuable painting attributed to Leonardo da Vinci, known as “Madonna of the Yarnwinder”, owned by the ninth Duke of Buccleuch, was stolen from his home at Drumlanrig Castle.
[2]        A criminal investigation was launched together with attempts by the police, insurers and others to recover the painting.  This was known as “Operation Drumlanrig”.  The operation involved the use of undercover police officers, including one who posed as a risk management expert under the assumed name “John Craig”.  It is alleged by the pursuer that the defender, who became the tenth Duke of Buccleuch on his father’s death early in September 2007, participated to some extent in this operation, by holding one or more telephone conversations with one of the then suspects, by preparing written documentation showing a willingness to pay monies in exchange for the safe return of the painting and, of particular relevance for present purposes, by providing an undated written letter of authority, addressed “To whom it may concern”, confirming that John Craig acted as his agent in the recovery of the painting and expressly authorising John Craig on his behalf to conduct any lawful negotiation or transaction in relation to the matter.
[3]        The pursuer avers that on 10 August 2007 he wrote to the loss adjuster offering to facilitate the return of the painting.  After contacting the senior investigating officer, the loss adjuster put him in touch with the undercover officers.  On 21 August 2007 John Craig contacted the pursuer, stating that he was acting on the defender’s behalf.  On 29 August 2007 the pursuer and John Craig entered into an agreement whereby the defender would pay him £2 million to secure the return of the painting.  A few days later, this figure was increased to £4.25 million.  That is said by the pursuer to be less than 10% of the value of the painting.
[4]        The pursuer admits that, at the time of that agreement, he knew that the painting was stolen.  He says that it was being held by persons whose identities were not known to him.  He was in contact with two intermediaries, RG and JD, who were in contact with those in possession of the painting, and had agreed to pay them £700,000 to enable them to secure the release of the painting to them.
[5]        The pursuer avers that, on 3 October 2007, he paid £500,000, being part of that £700,000, to RG.  RG handed over that money at a pre-arranged location and later that day was advised of the whereabouts of the painting.  That evening RG informed the pursuer that the painting had been safely recovered and that he was proceeding with it to Glasgow.  The pursuer notified John Craig, using the phrase: “the Lady is coming home”.  On the next day, 4 October 2007, the pursuer attended at the offices of an Edinburgh firm of solicitors where he met, amongst others, John Craig.  RG and JD arrived at about 11 am and handed over the painting.
[6]        The reward of £4.25 million has not been paid to the pursuer.  A number of criminal prosecutions followed the recovery of the painting.  In particular, the pursuer was charged with extortion, or attempted extortion.  He was indicted in the High Court and the case went to trial.  The jury brought in a verdict of not proven and the pursuer was acquitted.

The pursuer’s case
[7]        The pursuer sues for the sum of £4.25 million.  His case is simple.  That was the sum agreed to be paid to him for his part in securing the return of the painting.  The agreement was made by John Craig acting on behalf of the defender.  John Craig had actual authority from the defender to make that agreement, as evidenced in particular by the “To whom it may concern” letter.  Having been instrumental in securing the return of the painting, he is entitled to be paid the agreed sum.

The defender’s case
[8]        The defender advances two main lines of defence to the claim.  The first is that John Craig had no actual authority to enter into any such agreement on his behalf.  The second is that the agreement relied upon by the pursuer in support of his claim is tainted by illegality and/or is contrary to public policy and should not be enforced.  I shall explain what is said by the defender in more detail below.  But it is to be noted that the defender does not make any case in these proceedings that the pursuer was in any way involved in the theft of the painting or its retention pending its recovery.

Discussion on the Procedure Roll
[9]        The case came before me for discussion on the Procedure Roll.  The defender insisted on his first plea in law, a general plea to relevancy and specification.  He sought dismissal of the action. 
[10]      The discussion was conducted under reference to the well-known principles set out in Jamieson v Jamieson 1952 SC (HL) 44, to the effect that the pursuer’s case will only be dismissed if the court is satisfied that the action is bound to fail even if he succeeds in proving everything which he offers in his pleadings to prove.  However, the defender’s argument was somewhat unusual in that it sought to gain support from averments made in the answers and from the fact that, as he contended, the pursuer’s averments in response were lacking in candour.
[11]      I propose to deal separately with the arguments concerning lack of authority and illegality.

Lack of actual authority
[12]      The defender’s case in summary is this.  The “To whom it may concern” letter was written by the defender on the instructions of the police as part of their undercover operation in order to deceive the pursuer, and possibly others, into believing that John Craig was his agent when in fact he had no actual authority to agree any deal which would bind him.  In those circumstances, he says, it is clear that the letter did not in fact clothe John Craig with authority to act on his behalf.  He avers that the pursuer knows this to be the case, because it was made clear in the evidence led by the Crown at his trial.  This is set out in the answers, and is met by a bald “Not known and not admitted”.  That response is lacking in candour and should be disregarded.  In consequence, the defender’s averments on this point should be treated as admitted.  Furthermore, it is inherently improbable that John Craig, a serving police officer, would undertake a dual role, acting both as a law enforcement officer and also as a private commercial agent for a member of the public.  It would require very detailed and specific averments by the pursuer to explain how such an unusual and potentially contradictory arrangement could arise, but the pursuer makes no such averments.  In those circumstances it is clear that the pursuer’s case on actual authority must inevitably fail.
[13]      I cannot accept this argument, for three main reasons.  First, I accept that there have been cases where a lack of candour in the defender’s answers has been held to be a basis for treating those answers as irrelevant and granting decree de plano, and I would accept that the same approach could, if valid, be adopted mutatis mutandis in respect of a lack of candour in the pursuer’s pleadings.  But that approach has not generally found favour; and I do not consider that in general it is legitimate to treat a denial or non-admission, however bald, as amounting to an admission.  Generally a party is entitled to put the other party to proof of his averments.  The problem of dilatory defences, defences designed simply to delay by not admitting what must obviously be known to be true, is well-known.  That was the reason why the provisions for summary decree were introduced in Rule of Court 21: see Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85 per Lord Rodger of Earlsferry at para [13].  But the rules for summary decree apply only to the case of a pursuer moving for decree on his claim and that of a defender moving for decree on his counterclaim.  They do not apply to a defender seeking dismissal of a claim made against him.  There is no “reverse summary decree”.  This may be a gap in the rules which ought to be addressed, but that is not for me.  In that situation, where the Rules of Court have been altered to provide an answer to the problem caused by a lack of candour in a party’s pleadings, but those rules do not apply to the present case, I do not consider that it would be proper to seek to plug that gap by holding that decree of dismissal is available where a pursuer fails candidly to answer averments made by the defender in his answers.
[14]      My second reason for rejecting this argument is straightforward.  The defender’s case is based upon evidence which will be called by the defender and which is similar in nature to that called by the Crown in the criminal trial.  The pursuer is under no obligation to accept that evidence as true.  He is entitled to put the defender to proof.  This is not a case where his denial or non-admission is of something within his own knowledge which he knows or must know to be true.  Just because he knows that that evidence will be called, and just because he may not have a positive case to advance in answer to it, does not mean that he has to accept it.  In the circumstances of the present case it is perfectly proper to answer the defender’s averments relating to the police operation, the circumstances in which the letter came to be written and the alleged intention of those who were party to it with a simple “not known and not admitted”.
[15]      My third reason for rejecting the defender’s argument on this issue is equally straightforward.  It is, to my mind, by no means obvious that the fact, assuming it to be a fact, that the “To whom it may concern” letter was written by the defender on the instructions of the police as part of the police operation to recover the painting necessarily means that it is not to be taken at face value.  It is by no means impossible to conceive of a case where, as part of a police operation to recover a painting, a reward is offered to someone who may be in a position to facilitate its recovery, and the reward is paid to that person when the painting is in fact recovered.  If, in all such cases, the offer of a reward is to be regarded as a pretence, because made without the authority of those on whose behalf it was purportedly made, then I doubt whether it would often lead to the recovery of a stolen painting.  I accept that it is no doubt also possible to conceive of a situation where the offer of a reward is not intended to be genuine, and the letter granting authority to the intermediary to make that offer on behalf of the owner of the painting is indeed intended as a sham.  Much will depend upon the precise circumstances and the intentions of the parties as revealed by the evidence.  Even if the pursuer were to be taken to have admitted everything in the defender’s pleadings about the offer having been made as part of the police undercover operation, that would not necessarily mean that his case must fail.  Although the burden of proof lies on the pursuer to establish that the agreement under which he sues was made with the authority of the defender, the evidential burden of showing that the letter purporting to have given John Craig authority to make that agreement on behalf of the defender is not to be taken at face value lies with the defender.
[16]      I should add this, in case it may be thought that the existence of the “To whom it may concern” letter gives rise to a case of ostensible authority and therefore makes the arguments about actual authority irrelevant.  The pursuer does not in his pleadings advance any case of ostensible authority.  So far as the letter is concerned, he only became aware of that at a much later date.  So he cannot rely on that letter for any representation made by the defender upon which he relied so as to give rise to a contention that at the time the agreement was made John Craig had ostensible authority to act on behalf of the defender.  Whether he could rely upon any other representation made to him by John Craig as giving rise to ostensible authority is not a matter before me, and, as I have said, there are no pleadings raising such a case.

Illegality/ public policy
[17]      The defender’s second line of defence is that the agreement upon which the pursuer sues is illegal and contrary to public policy.  A number of arguments were advanced. 
[18]      It was said that it would be contrary to public policy to render a party liable on a contract which was purportedly entered into by him as a ruse on the part of an undercover police officer in order to recover stolen property.  I cannot accept that, at this stage at least.  Assuming the contract to have been made with the authority of the defender, an issue which will have to be resolved at proof, I can see nothing in the fact that on the defender’s part it was entered into as part of the police undercover operation and as a ruse to recover stolen property which would make enforcement of it contrary to public policy. 
[19]      It was also argued that the pursuer cannot seek to enforce a contract which would result in him receiving many millions of pounds for the return of a stolen painting which was secured from criminal sources for £500,000.  I cannot see why not.  It is not for this court to determine what a person may be willing to pay, or should be allowed to pay, to recover property which is of a particular monetary or sentimental value.  That would be to remake the bargain struck between the parties.  How is the court to judge what would be an appropriate reward to the pursuer for his part in the recovery of the painting?
[20]      It was also suggested that other adminicles of evidence might be relevant.  For example, there are averments that the pursuer did not want the police involved.  But I cannot see why this should necessarily make any difference.  There may be many reasons, some more respectable than others, why a person seeking to assist in the recovery of stolen painting should think it sensible to involve the police.
 [21]     In developing his argument on behalf of the defender, Mr Young QC focused on the submission that what the pursuer was seeking to do amounted to extortion.  He submitted, under reference to Black v Carmichael 1992 SCCR 709 at 717A-B and 718B-C, that it is the crime of extortion in Scotland if a person seeks to obtain money from the rightful owner of property in order to release or return that property to its rightful owner.  He submitted that, on his own averments, the pursuer knew that the painting had been stolen and that the possessors of it had no legal right to retain it.  On that basis, he submitted, the pursuer had no legal right to retain or deal with the property, and his actions were no different in law from the unknown persons who only released the stolen painting in return for £500,000.  That amounted to extortion.
[22]      I do not accept this argument.  It is, to my mind, a fallacy to equate the position of the pursuer with that of a person who is in possession of the stolen property and refuses to return it except upon payment of a large sum of money.  That might well be extortion.  But the position as shown on the pursuer’s pleadings is quite different.  On his pleadings the agreement was made at a time when he was not in possession of the stolen painting and did not know who was.  He had ascertained that certain others, JD and RG, were in a position to contact the people who held the painting and to procure its release to them upon payment of a sum of money.  On this account the pursuer neither had the painting in his possession nor had the power to procure its release.  The best that can be said is that he was in a position in which he had the opportunity, through others, to pay money in the hope of procuring its release.  If this is the true picture, I can see no basis upon which it can be said that his negotiation of an agreement to be paid a handsome reward for his part in procuring the release of the painting amounts to extortion.  It might be quite different if he himself had possession of the painting or it was within his control; but that is not what is presently averred either by the pursuer or even by the defender.
[23]      One additional point made by the defender was that the pursuer, who was a solicitor at the time, funded the payment to RG by illegally removing monies from various client accounts, as a consequence of which he was struck off.  Mr Young QC confirmed to me that he did not seek to rely upon this as a separate ground of illegality making the agreement unenforceable.  It was put forward, as I understand it, in conjunction with other matters such as the request that the police should not be involved, essentially to present a picture of dishonest dealing by the pursuer colouring his whole involvement in the matter.  I do not consider that it is of any assistance, at least at this stage.  The defender makes no averment that the pursuer was involved in the theft or was a party to the withholding of the painting thereafter.  If such an allegation were made and proved, that would put a very different gloss on the whole matter.
[24]      As matters stand, I do not accept that the pursuer’s case is bound to fail on grounds of illegality or public policy.

Disposal
[25]      For these reasons, I shall allow a proof before answer, leaving the defender’s preliminary plea outstanding.  I shall reserve all questions of expenses. 

Duke rejects £4.25 million claim over return of stolen da Vinci

The Duke of Buccleuch appears in court to dispute a claim he agreed to pay a former solicitor millions of pounds for the return of the Madonna of the Yarnwinder.



























The Duke of Buccleuch outside Drumlanrig Castle.
The Duke of Buccleuch outside Drumlanrig Castle.
One of Britain’s wealthiest aristocrats is embroiled in a court battle over a claim he owes more than £4 million to a former solicitor for the return of a Leonardo da Vinci masterpiece stolen from his castle.
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Richard Scott, the 10th Duke of Buccleuch, rejected a claim by Marshall Ronald that he had agreed to pay the money for the return of the Madonna of the Yarnwinder.
Mr Ronald, of Upholland in Lancashire, was cleared along with others in 2010 following a trial at the High Court in Edinburgh of conspiring to extort money for its return.
But he then raised an action at the Court of Session, Scotland’s highest civil court, demanding £4.25 million that he insisted the duke agreed to pay.
Mr Ronald argued that the duke provided a letter of authority confirming that an undercover police officer, known as John Craig, acted as his agent in the recovery of the painting and was authorised to conduct negotiations.
He said that £4.25 million was the amount agreed to be paid to him for his role in securing the return of the masterpiece and that the agreement was made by Craig acting on behalf of the duke.
But the duke, who is Scotland’s largest landowner, has submitted that Mr Craig had no authority to enter any agreement or negotiate on his behalf. His legal team also told the court that the agreement cited by Mr Ronald is tainted by illegality.
They claimed the letter of authority was requested by the police as part of their undercover operation and was merely designed to support Mr Craig's undercover persona.
 
The 'Madonna of the Yarnwinder' was stolen in 2003 and returned in 2007
The court heard yesterday how the masterpiece was stolen from Drumlanrig Castle, near Thornhill in Dumfriesshire, on August 27, 2003.
Painted around 1500, it depicts the Virgin Mary in a landscape with the Christ child, who gazes at a yarn winder used to collect spun yarn.”
The duke said yesterday that he was elsewhere on the estate when the theft occurred. However, his late father, who was then the duke, had been left “shocked and saddened” by the crime.
He told the court he had first become aware in 2006 of the police’s undercover operation after he was informed that a man by the name of Brown had convinced investigating officers that he had had sight of the painting and possibly had access to it.
The duke said he agreed to a police request to have a telephone conversation with the main, telling the court: "I knew I had to act out a role.”
He was also asked to sign a "To whom it may concern" document which was drafted by police during the sting operation.
The duke said that he had been asked to play a part in supporting the undercover officer in pursuing the investigation. However, he told the court that police had not mentioned a man called Marshall Ronald in the period up to the painting’s recovery.
 
Marshall Ronald claims he struck a deal for the safe return of the painting
The court heard how Mr Ronald had contacted a loss adjuster involved in the case in August 2007 and Mr Craig, the undercover officer, called him later that month.
Mr Ronald told the court: "I believe I had a contract with John Craig and it had agreed the figure."
But Andrew Young QC, the duke’s counsel, told the court that there was no discussion with the aristocrat about what Mr Craig could say in negotiations to try and recover the picture, which now hangs in the Scottish National Gallery in Edinburgh.
He said Mr Ronald had failed to prove the police officer was acting as the duke’s action and his legal action must fail. The judge, Lord Brailsford, reserved his decision in the case, meaning he will issue it at a later date.

Bid to sue Duke of Buccleuch over Da Vinci art theft


Marshall Ronald has begun a bid to sue the Duke of Buccleuch for £4.25m

A man cleared of conspiracy and extortion charges over a stolen Leonardo Da Vinci masterpiece has begun a bid to sue its owner, the Duke of Buccleuch, for £4.25m.
Marshall Ronald, 58, is seeking the pay-out for his role in recovering the Madonna of the Yarnwinder in 2007.
The painting was stolen from Drumlanrig Castle, four years earlier.
He negotiated its return with an undercover police officer whom he thought represented the duke.
In 2010 Mr Ronald, of Upholland, Lancashire, was cleared with others of conspiring to extort money for its return following a trial at the High Court in Edinburgh.
In the damages action at the Court of Session in Edinburgh he claims that the duke provided a letter of authority confirming that the undercover officer, known as John Craig, acted as his agent in the recovery of the painting and was authorised to conduct negotiations.
He contends that the £4.25m was the amount agreed to be paid to him for his role in securing the return of the masterpiece and that the agreement was made by Craig acting on behalf of the duke.

The Madonna of the Yarnwinder was stolen from Drumlanrig Castle in 2003
The 10th Duke of Buccleuch, who took the title after the death of his father in 2007, is contesting the claim.
The court heard evidence from retired detective inspector Gary Coupland, who became involved in the investigation in 2006.
He said the duke, who was then the Earl of Dalkeith, was asked to sign a document on headed notepaper because a man wanted "a letter of comfort" in case he was caught with the painting.
Andrew Young QC, counsel for the duke, asked the former policeman if his client had any part to play in drafting the document. He replied: "None whatsoever."
Mr Young asked the former detective if he had taken any instructions or directions from the duke or his family about how to approach negotiations with Mr Ronald or another man, Michael Brown. He said: "None whatsoever."
He was asked why the duke had been kept in the dark about efforts to recover his painting. The ex-policeman said: "Operational security. People's lives may be at risk."
The latest hearing, before judge Lord Brailsford, continues.

Hatton Garden heist: 'Join us at Belmarsh for tea,' defendant suggests to judge during court appearance

'Dad's Army': The defendants made their first appearance before magistrates last month
One of the men accused of carrying out the Hatton Garden heist today invited the judge to tea at Belmarsh during a court appearance.
A "Dad's Army" of nine men face allegations over the Easter raid in which losses are thought to have run in "excess of £10 million".
Today Terry Perkins, 67, Daniel Jones, 58, and Hugh Doyle, 48, all of Enfield, north London; William Lincoln, 59, of Bethnal Green, east London; and John Collins, 74, of Islington, north London, all appeared via videolink from HMP Belmarsh at Southwark Crown Court.
Also appearing were Brian Reader, 76, and Paul Reader, 50, both of Dartford Road, Dartford, Kent; Carl Wood, 58, of Elderbeck Close, Cheshunt, Herts, and taxi driver John Harbinson, 42, from Benfleet in Essex, who face the same charge of conspiracy to burgle between April 1 and April 7, this year.
They are all also charged with conspiracy to conceal, disguise, convert or transfer criminal property between, namely a quantity of jewellery and other items, between April 1 and May 19.
As the men waited more than 15 minutes for the videolink to connect properly, Perkins asked the clerk: "Can you ask the judge and yourselves to come down to Belmarsh so we can have tea together?"
The raid over the Easter weekend saw thieves break into the vault at Hatton Garden Safe Deposit Company in London's jewellery quarter.
Once inside, the thieves ransacked 73 safety deposit boxes, taking millions of pounds-worth of items.
The nine men, who have been remanded in custody, are due to next appear at court on September 4 for a plea hearing.