An international human rights organisation has failed in its bid to force Holyrood to investigate how Donald Trump paid for two Scottish golf courses.
Lawyers acting for AVAAZ told judge Lord Sandison last October that the Scottish Ministers were wrong to not order an Unexplained Wealth Order probe against the former US president.
The group wanted the Scottish Government to have a so-called McMafia probe on how Mr Trump obtained the funding for Menie golf course in Aberdeenshire and the Turnberry resort in Ayrshire.
Advocate Aidan O’Neill QC told the Court of Session that ministers didn’t understand the terms of the Proceeds of Crime Act 2002.
The court heard that the Scottish Government’s current approach to UWOs allowed the Lord Advocate to have a role in deciding whether such probes should be launched.
Lord Sandison was told that the legislation didn’t allow the Lord Advocate to have such a prominent role.
Scottish Green Party first called for an unexplained wealth order
However, Lord Sandison found that the evidence showed that the Scottish Ministers had acted lawfully and in line with the legislation.
In a written judgment issued on Thursday, Lord Sandison rejected the arguments made the New York-based group.
Concluding that arguments about the Lord Advocate’s prominent role in unexplained wealth orders were wrong, Lord Sandison wrote: “I do not find it possible to discern from section 396D any implicit Parliamentary intention that the Lord Advocate may not hold portfolio responsibility as the Scottish Minister concerned with applying for a UWO, whether in relation to a politically exposed person or otherwise.
“All that the section in essence says is that once an Unexplained Wealth Order has been granted and apparently complied with, the Scottish Ministers are to decide whether to give the Lord Advocate the opportunity to take the case forward under the Proceeds of Crime Act functions which are allocated specifically to her under that Act or whether to take it forward under the POCA provisions which are allocated to them generally under that Act, or indeed to take neither course of action.”
The Scottish Green Party first called for an unexplained wealth order amid questions about how Mr Trump had managed to finance the purchases of the courses at Turnberry in 2014 and at Menie in Aberdeenshire, in 2006.
The UK government introduced the orders to help investigations into money laundering and other criminal financial activity.
Patrick Harvie, the Greens co-leader, has said Trump’s unusual pattern of spending and the ongoing civil and criminal cases in the US provided Scottish authorities with the grounds to investigate the businessman.
First minister Nicola Sturgeon told the Scottish Parliament that the responsibility for the investigation lay with the Crown Office’s Civil Recovery Unit – which was politically independent of the government.
The then Justice Secretary Humza Yousaf later announced that Ms Sturgeon was mistaken – and that the law did allow for the Scottish Government to launch an unexplained wealth order investigation.
This prompted AVAAZ to instruct lawyers to go to the Court of Session.
In October 2021, Mr O’Neill said that by looking at the legislation, the court would see that it is the Scottish Ministers and not Scotland’s most senior prosecutor, the Lord Advocate, responsible for ordering an Unexplained Wealth Order investigation.
He added: “We say that duty results in ultimately the finding that it cannot be the Lord Advocate who is designated as being the responsible minister in terms of the seeking of unexplained wealth orders in terms of politically exposed persons.”
The Scottish Ministers contested the action. Its legal team told the court that it had acted lawfully in the affair.
Lord Sandison agreed with the submissions made to him by the government’s lawyers.
He wrote: “I shall repel the petitioner’s pleas in law, sustain the respondents’ second plea in law, and refuse the substantive prayers of the petition.”
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