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]
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.
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.
ADVERTISING
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.
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
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 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.
'Dad's Army': The defendants made their first appearance before magistrates last month 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.
No comments:
Post a Comment