Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> WHITEHOUSE, RECLAIMING MOTIONS IN THE CAUSES (FIRST) DAVID JOHN WHITEHOUSE and (SECOND) PAUL JOHN CLARK AGAINST (FIRST) THE CHIEF CONSTABLE, POLICE SCOTLAND and (SECOND) THE LORD ADVOCATE [2019] ScotCS CSIH_52 (30 October 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_52.html
Cite as: [2019] CSIH 52, 2020 SCLR 165, 2019 GWD 34-541, [2019] ScotCS CSIH_52, 2019 SLT 1269, 2020 SC 133

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2019] CSIH 52

A293/16 and A295/16

Lord President

Lord Justice Clerk

Lady Paton

Lord Menzies

Lord Brodie

OPINION OF LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motions

in the causes

(FIRST) DAVID JOHN WHITEHOUSE; and (SECOND) PAUL JOHN CLARK

Pursuers and Reclaimers

against

(FIRST) THE CHIEF CONSTABLE, Police Scotland; and

(SECOND) THE LORD ADVOCATE

Defenders and Respondents

First Pursuer: Dunlop QC, McKinlay; Urquharts (for Livingstone Brown, Glasgow)

Second Pursuer: Fairley QC, McNaughtan; Kennedys Scotland (for Beltrami & Co, Glasgow)

First Defender: no appearance

Second Defender: Moynihan QC, DB Ross QC, Charteris; Scottish Government Legal Directorate

30 October 2019

Introduction

[1] These reclaiming motions (appeals) relate to two separate actions by the pursuers

against the Chief Constable and the Lord Advocate. The pursuers each claim damages

against both defenders arising out of their treatment by the police and the prosecution

authorities in connection with their involvement in the winding up and sale of Rangers

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Football Club. The reclaiming motions do not concern the Chief Constable, against whom

claims, which are presented under Article 5 of the European Convention on Human Rights,

are to proceed to a proof before answer. They concern only the Lord Advocate. It is

accepted that he is responsible for the acts of the Advocates Depute and the Procurator

Fiscal Deputes who were involved in the case.

[2] The Lord Advocate contends that he and the ADs and PFDs have immunity from

suit in terms of Hester v MacDonald 1961 SC 370. The first issue, as developed at the Summar

Roll hearing, is whether the law, as stated in Hester, was correctly decided or whether the

Lord Advocate is liable in damages for acts which are malicious and without probable cause.

The second is whether, if Hester was correctly decided, it should nevertheless by overruled

on the basis that the policy considerations which existed in 1961 are not applicable in the

modern era. The third is whether the pursuers’ cases, in so far as they were based on the

right to respect for private life in Article 8 of the Convention, is relevant for inquiry.

Background

[3] The written pleadings in the two cases run respectively to 300 and almost 175 pages.

The following outline of events is a compilation of those averments, some of which have

been admitted, but others not. The pursuers’ cases, as set out below, should not be taken as

established; the averments have yet to be proved. The pursuers aver that they were the

subject of detentions, arrests and prosecutions of a broadly similar nature. In late 2010, a

businessman, namely Craig Whyte, wanted to acquire Rangers. In March 2011, he engaged

MCR, who were a corporate restructuring advisory firm in which the pursuers were

partners, to assist in negotiations with the club’s lenders, the Lloyds Banking Group. MCR

were taken over by Duff & Phelps in October 2011. The pursuers became partners of that

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firm. In May 2011, Mr Whyte, through an acquisition vehicle, namely Wavetower Ltd,

agreed with Lloyds to buy a controlling shareholding in the club. Mr Whyte was appointed

as a director. In February 2012 Rangers entered administration.

[4] The pursuers were appointed as joint administrators of Rangers. They informed

Strathclyde Police that the acquisition of Rangers by Wavetower may have involved illegal

financial assistance. They initiated proceedings in England for payment of sums due to

Rangers which were being held by Collyer Bristow, who were Wavetower’s solicitors. They

also raised proceedings for damages based upon an “unlawful means conspiracy” whereby

Mr Whyte and a partner at Collyer Bristow had: (i) made false representations about the

availability of funds to finance the acquisition; and (ii) acquired the controlling shareholding

by fraud. The police were told of these allegations. On 25 June 2012 the Crown Office

issued a press statement stating that they had instructed the police to conduct an

investigation into the acquisition and financial management of Rangers. In May 2012,

another acquisition vehicle, namely Sevco (Scotland) Ltd, acquired the business and assets of

Rangers on behalf of Charles Green and associates for £5.5 million. During 2012,

Mr Whitehouse provided three statements to the police and Mr Clark provided four. In

October 2012 the pursuers vacated office following the appointment of new joint liquidators.

[5] In August 2013, the police executed search warrants, which had been granted by a

sheriff at Glasgow, at Duff & Phelps’ London and Manchester offices. Duff & Phelps

instructed their solicitor to liaise with the police in relation to documents, which they

maintained were either not within the scope of the warrant or over which legal privilege

was claimed. In February 2014, the Crown Office assured Duff & Phelps that the police had

not reviewed the material which was subject to the privilege claim. This was not true.

[6] In November 2014, Duff & Phelps’ solicitor and counsel had a meeting with the

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AD and PFD involved in the case. The solicitor was told that the pursuers were to be

treated as suspects and would be detained. The AD asked him whether that would

change his position on privilege. At dawn on Friday, 14 November 2014, Mr Whitehouse

and Mr Clark were detained at their respective homes in Cheshire and Surrey by officers

from Police Scotland on suspicion of being involved in a “fraudulent scheme and

attempt to pervert the course of justice”. Both pursuers were taken to Glasgow, where

they were separately interviewed, arrested and charged. Both were kept in police

custody until Monday 17 November, when they each appeared on petition at Glasgow

Sheriff Court and granted bail. They were provided with a summary of the evidence.

The alleged false pretence was that Mr Whyte was a wealthy man who was investing his

own capital, when in fact he was using money advanced to Rangers in anticipation of

season ticket sales. The practical result was alleged to be that Mr Whyte had gained

control of the club and forced it into administration, to the financial benefit of the

pursuers.

[7] In June 2015 the pursuers’ legal advisers were told that the focus of the inquiry

had changed. Any subsequent indictment was likely to include charges relating to the

conduct of the administration itself and the disposal of Rangers’ assets. At dawn on

Tuesday, 1 September 2015, Mr Whitehouse was again detained at his home in Cheshire

and taken to Glasgow, where he was interviewed, re-arrested and charged. He

appeared on petition on 2 September when he was bailed. Mr Whitehouse’s committal

had been opposed on the basis that the charges did not represent new allegations, but

were reformulations of those in the earlier petition. The Procurator Fiscal Depute

insisted that the charges were distinct and had arisen from a separate police

investigation. There was a failed attempt to detain Mr Clark at his home in Surrey on

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1 September 2015. He had been abroad on holiday. On 2 September, after he had heard

of the failed attempt, Mr Clark returned to Glasgow and went to his solicitors’ office,

where he was detained. After detention, he was similarly interviewed, re-arrested and

charged. He appeared on petition on 3 September and was admitted to bail.

[8] On 3 September 2015, and at a continued hearing on 7 September 2015, the

sheriff considered an application for an extension of the statutory time limits within

which to indict and commence a trial (Criminal Procedure (Scotland) Act 1995, s 65(11)).

The pursuers aver that the second petition was brought in order to influence the

outcome of that application. In order to justify an extension, the Procurator Fiscal

Depute told the sheriff that Duff & Phelps had recently produced a large quantity of

material, which ought to have been made available during the August 2013 searches. At

the continued hearing, the PFD intimated that, having checked matters, there had been

no such late production. Instead it was asserted that Clyde & Co, a firm of solicitors

who had acted for Collyer Bristow, had recently produced 39 boxes of material that

ought to have been produced in response to the warrant. On 7 September 2015, the

sheriff granted an extension of time, restricted to three months. It was later explained

that the reference to the 39 boxes had been an error. This had been caused by internal

misunderstandings within Crown Office and its communications with the police. In an

appeal against the extension, the High Court was provided with a fuller explanation.

The appeal was refused.

[9] In terms of new averments, which were added after the Lord Ordinary’s decision

(infra), it is said that, on 10 September 2015, after a meeting at the Crown Office, an email

was sent by one of the Procurator Fiscal Deputes, who was involved in the case, to her

colleagues. This summarised the discussion at the meeting and continued:

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“Ok – here goes…

Plan A and everyone’s preferred choice was that we persuaded the LA to allow us to

take advantage of the hard fought 3 month extension granted on Monday to allow us

to serve an indictment against the 5 on the first petition. We are comfortable with the

indictment against 3 [Mr Whyte and two others] but Whitehouse and Clark have

been causing us concern although we are confident that a sufficiency will be

established in the fullness of time…”.

This appeared to recognise that there was an insufficiency against the pursuers at that time.

The email acknowledged that, if an appeal against the extension were granted, an

indictment would have to be served within the original time limit, which expired during the

course of the following week. The plan to indict “the 5” included a need “to identify some

kind of sufficiency” against the pursuers. Very rapidly, the PFDs came to the conclusion

that 7 persons should be indicted (one of whom had not appeared on petition). They were

“to libel as many charges as we can”.

[10] On 16 September 2015, which was within the original time limit, the pursuers were

indicted to a preliminary hearing on 16 October 2015. On this first indictment, the

pursuers were charged with conspiracy to defraud and attempting to pervert the course of

justice. The pursuers lodged a series of preliminary issue minutes, including an objection

to the relevancy of the charges. The PH was continued to 11 January 2016 in order to

address such matters. On 2 December 2015, which was the day before the appeal hearing

on the extension of time, the pursuers were served with a second (superseding) indictment.

It contained seven similar charges. Again the pursuers lodged a series of preliminary issue

minutes, including an objection to relevancy. A diet of debate was fixed to hear parties on

those pleas in the first week of February 2016. The first indictment was not called by the

Crown on 11 January 2015 and thus fell. At a continued PH on 5 January 2016, five out of

the seven charges on the second indictment were withdrawn; including all of those derived

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from the November 2014 petition. The Advocate Depute renounced the Crown’s right to

prosecute the pursuers on those charges. On 22 February 2016 the court sustained the plea

to the relevancy of the remaining charges. The AD informed the court that the Crown

would consider whether to bring a further indictment. Later that day, the Crown Office

issued a press statement that further proceedings would be brought against the pursuers.

The pursuers aver that, on 3 June 2016, the Crown told them that all proceedings against

them were at an end. No further indictments have ever been served.

[11] It is averred that at no point was there any justification for the detention, committal,

prosecution or indictment of the pursuers. The Lord Advocate had never had sufficient

evidence for any of the charges. Mr Whitehouse focuses on alleged failures by the Crown

to make proper disclosure of both documents which had been recovered and recordings,

which had been made by Mr Whyte of his conversations with Mr Green and which were

said to exculpate the pursuers. The Crown had failed to pursue all reasonable lines of

inquiry, including interviewing the pursuers’ staff. They had failed to respond to requests

for information. Statements had been made to the court which were misleading and lacked

candour. The police had told Duff & Phelps that they would “shut down the Shard” (a

reference to their headquarters in London) if they did not produce certain material. The

sheriff had been invited to grant the search warrant on the basis of one-sided information.

The execution of the warrant in London had involved police, who were wearing

bulletproof vests and carrying tasers, interrupting a reception for clients. On February

2016, the High Court of Justiciary had suspended the warrant on grounds of oppression.

On 6 October 2016 the High Court of Justice in London had ordered the defenders to pay

Duff & Phelps’ costs on an agent and client basis, noting that the actions of the defenders

had been “an abuse of state power”.

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[12] It is averred that the police interfered with legitimate defence investigations. They

had threatened witnesses with imprisonment if they did not change their accounts. They

had amended draft witness statements. The Crown had instructed forensic accountants to

prepare reports in the hope that they would provide an evidential basis for the charges

against the pursuers. The experts had not been provided with all of the relevant material.

They had been invited to reach conclusions on the basis of “one sided information”.

[13] The pleadings make general averments about wrongful conduct, including that: the

initial detentions were “outwith the competence of the officers” and accordingly unlawful;

the detentions lacked probable cause; the instructions from the Crown were actuated by an

ulterior motive, being the desire to allow evidence, over which privilege had been asserted,

to be relied upon in the erroneous belief that detention of the pursuers would allow the

criminal purpose exception to be invoked; and the absence of reasonable grounds for

suspicion demonstrated a degree of recklessness on the part of the Crown amounting to

malice.

The Lord Ordinary’s decision

Hester and absolute immunity

[14] The Lord Ordinary held that, while the decision of the First Division in Hester v

MacDonald (supra), was now almost 60 years old, it remained authoritative. Unless there

was something which clearly rendered it obsolete, its merits could only be reviewed by a

Full Bench. Although Hester adjudicated only upon the position of a Procurator Fiscal

Depute, the outcome had been heavily dependent upon the court’s observations on the

absolute immunity of the Lord Advocate. Those observations could not be categorised as

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mere obiter dicta. They were at the heart of the case, crucial to the decision and rooted in

institutional authority and earlier judicial statements.

[15] The Lord Ordinary was not persuaded that the temporal scope of the decision could

be restricted to immunity following upon an indictment. The institutional writers (Hume:

Crimes ii, v, 135; Alison: Practice 93) cited in Hester v MacDonald (supra) were not so limited.

The Lord President (Clyde) had said that it was essential that the Lord Advocate enjoyed an

absolute privilege in connexion with proceedings brought on indictment. This was habile to

cover conduct before the indictment. The real contrast was with summary criminal

procedure, in which the position had always been statutory (Criminal Procedure (Scotland)

Act 1995, s 170). The Lord Advocate and those acting on his behalf, as opposed to upon

their own authority, enjoyed the same protection as superior judges in any matter which

properly fell within the scope of their official duties. It was not accurate to say that, prior to

the indictment, the Lord Advocate was not acting as a prosecutor, but rather as an

investigator (McBain v Crichton 1961 JC 25, LJG (Clyde) at 29, endorsed in Stewart v Payne

2017 JC 155, LJC (Dorrian) at para 86). The pursuers’ real complaint was about the width of

the immunity, rather than the circumstances in which it would apply.

[16] It was not difficult to conceive of cogent arguments against absolute immunity

(Mitchell: Constitutional Law at 172 (fn 17)). As with superior court judges, the Lord

Advocate was not a public official or servant, but answerable originally to the Queen in

Parliament, and now to the Scottish Parliament. The absolute immunity of judges had been

explained in McCreadie v Thomson 1907 SC 1176 (at 1182). An analogy could be drawn with

the position of the Lord Advocate, in contrast to a procurator fiscal who was exercising an

inferior and local jurisdiction in summary proceedings. A similar constitutional

underpinning could be extended to the immunities enjoyed by the Lord Advocate and the

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Solicitor General (Law Officers Act 1944, section 2). The independence of the Lord Advocate

could be seen as deserving of the same protection as that of the judges (Noon v HM Advocate

1960 SLT (notes) 51). A reasoned justification for granting the widest immunity from civil

suit could be found in Imbler v Pachtman (1976) 424 US 409. A different view was

demonstrated in Nelles v The Attorney General for Ontario [1989] 2 SCR 170. There was no

obviously right or wrong answer to the difficult balancing exercise involved in weighing the

various factors. Any court seeking to review prosecutorial immunity in Scotland, even if it

was starting with a blank canvas, would face a difficult and delicate task; all the more reason

for a Lord Ordinary to be cautious before interfering with settled law.

[17] Although the legal landscape had been changed by the introduction of domestic

remedies for breaches of European Convention rights by public authorities, it was not self-

evident that this had implications for the nature and extent of prosecutorial immunity. The

Human Rights Act 1998 had introduced a limited and separate regime. It had no direct

relevance to whether an absolute, as opposed to a qualified, privilege should be regarded as

reflecting the common law.

[18] Section 170 of the 1995 Act was the current manifestation of a long-standing,

extensive, but not absolute, immunity in summary proceedings. The provision was not

limited to prosecutors, but included judges and clerks of court. Although “judge” did not

include a sheriff, this was without prejudice to the immunities possessed by sheriffs. These

immunities had to be assumed to be no less than those set down in the statute. It was

implicit, in the terms of section 170, that a sheriff, whether in solemn or summary

proceedings, enjoyed absolute immunity. The same applied to High Court judges. It was a

short step to extend this to the Lord Advocate, when discharging functions as public

prosecutor. The pursuers’ contention that the Lord Advocate should be liable for any

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malicious and unfounded prosecution on indictment did not address the anomaly that

would thereby be created, given the terms of section 170. If the pursuers were correct, there

would be a wider immunity for Procurator Fiscal Deputes in summary proceedings than for

the Lord Advocate and the Advocates Depute in solemn proceedings. The common law

envisaged absolute immunity for matters in connection with the prosecution of serious

crime and, in terms of the relevant statute, there was very wide, although not absolute,

immunity in respect of summary proceedings.

Article 8

[19] The Lord Ordinary rejected the Lord Advocate’s submission that Article 8 could not

be engaged by a decision to prosecute, unless the criminalisation of the conduct concerned

was itself a breach of article 8. The difficulty with the Lord Advocate’s reliance on SXH v

Crown Prosecution Service [2017] 1 WLR 1401 was that it did not acknowledge that the

appellant in SXH had conceded that the CPS had been entitled to conclude, at the time of the

decision to prosecute, that the relevant evidential test had been satisfied. No such concession

had been made in the pursuers’ cases.

[20] The potential consequences of a criminal prosecution, including the risk of detention

and broader reputational damage, were not per se sufficient to engage Article 8. An

investigation into the particular circumstances surrounding the decision might result in a

determination that there had been an infringement. Article 8 could be engaged by a decision

to prosecute, whatever the nature of the charge, where the charges had been “trumped up”

(SXH (supra) at para 36). Although it was difficult to envisage an infringement of Article 8,

where the person had been reasonably suspected of committing an offence, different

considerations might arise if the conduct had been a deliberate abuse of process.

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Submissions

First Pursuer

[21] The first pursuer had initially focused on whether Hester v MacDonald (supra) could

be seen as still being authoritative, standing developments in society and the law since it

had been decided. Under some prompting from the court, the question of whether Hester

had been correctly decided was addressed. It was submitted that it had been wrongly

decided. Any immunity had to be justified in terms of public policy and public interest

(Robertson v Keith 1936 SC 29 at 60), yet there had been no analysis of this in Hester. The

immunity in Hester had been created “out of the air” from two obiter dicta (Henderson v

Robertson (1853) 15 D 292 at 294; McMurchy v Campbell (1887) 14 R 725 at 728). The dicta ran

contrary to prior authority that the actings of a public official were protected only on a

qualified basis (Robertson v Keith (supra) following Beaton v Ivory (1887) 14 R 1057). The

contemporary textbook at the time of Hester (Glegg: Reparation (4th ed) at 185-186) pointed to

“a procurator-fiscal, or other public prosecutor” being liable in damages on proof of malice

and lack of probable cause. This echoed Bell: Principles (10th ed at para 2040). It was

consistent with Mackenzie: Matters Criminal II.19.8 citing Justinian: Code 3.26.9 (see Lee:

Malicious Prosecution in Roman-Dutch Law (1912) S African Law Journal 22 at 23-24, invoking

the actio injuriarum). Although a witness had immunity in relation to what he or she said in

connection with criminal proceedings, this did not extend to the complainer or informer (B v

A 1993 SC 232 at 238-239, citing Watson v McEwan (1905) 7F (HL) 109 at 111). None of this

was referred to in Hester, which was built on a foundation of sand.

[22] If Hester v MacDonald (supra) had been correct at the time, it ought now to be

overruled on the basis that there was no good reason in modern practice to maintain

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absolute immunity from civil suit. In Hester, it was said (at 377) that the Lord Advocate’s

responsibilities and privileges were unique and dependent upon public confidence in his

“utter impartiality”. The Lord Advocate had been selected from the “most eminent at the

Bar” and it was not to be “supposed” that he could be actuated by unworthy motives in

commencing or conducting a prosecution. Prosecutorial decisions were now routinely taken

by the ADs or the PFDs. It could not be assumed that they would act with the same degree

of propriety (see eg KP v HM Advocate 2018 JC 33 at para [21]; Lundy v HM Advocate (No 1)

2018 SCCR 269 at para [59]).

[23] There was no good reason for the Lord Advocate to enjoy absolute immunity.

Immunities were rooted in public policy. Public policy was “a very unruly horse” which

was “never argued at all but when other points fail” (Richardson v Mellish (1824) 2 Bing 229

at 252). It was not immutable. It must, and did, vary with the habits and mores of society.

The fact that an immunity was long established was not a sufficient reason for blessing it

with eternal life (Jones v Kaney [2011] 2 AC 398 at para 112). Society had moved on since

Hume (supra) and Hester v MacDonald (supra) (eg the Human Rights Act 1998; vicarious

liability (eg Vaickuviene v J Sainsbury 2014 SC 147); and the enlargement of the Crown Office

and Procurator Fiscal Service). The law had cast aside multiple immunities or re-categorised

them as situations in which no duty of care existed. That had been the evolution of claims

against the police. In Hill v Chief Constable of West Yorkshire [1989] AC 53, it was said (at 63,

see also [1988] QB 60 at 76) that, as with barristers in Rondel v Worsley [1969] 1 AC 191, the

police were immune from suit for reasons of public policy. It was “not to be doubted” that

the police applied their best endeavours in the performance of their functions (Hill at 63). It

had been recognised in Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 (at

para 27) that the immunity for barristers no longer existed. Since Z v United Kingdom (2001)

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34 EHRR 97 (at para 100), the principle in Hill required to be reformulated as an absence of a

duty of care rather than a blanket immunity. A more sceptical approach, than that adopted

in Hill in relation to the police performance, should be taken to the carrying out of all public

obligations.

[24] Like any other public official, the Lord Advocate enjoyed qualified privilege. There

was no public interest in him being given protection from civil liability for malicious acts.

The public interest was adequately preserved by the absence of a duty of care and the need

to show malice and want of probable cause. Immunities were an exception to the principle

that every wrong should have a remedy (Jones v Kaney (supra) at paras 108 and 113). They

required to be justified in the public interest (ibid; Darker v Chief Constable of the West

Midlands Police [2001] 1 AC 435 at 446-448). That justification had to be kept under review

(Jones v Kaney (supra) at para 114). The question was whether there was a compelling need

for the immunity (ibid at para 115). The fact that public servants were made of sterner stuff

rebutted any floodgates argument (ibid at 452, citing Dorset Yacht Co v Home Office [1970] AC

1004 at 1033, borrowing from Shakespeare (Julius Caeser III, II, 94)). Immunities should be

given no wider application than was absolutely necessary (Darker v Chief Constable of the

West Midlands Police (supra) at 453, citing Rees v Sinclair [1974] 1 NZLR 180 at 187; at 456, 461

and 468, citing Mann v O’Neill (1997) 71 ALJR 903 at 907 and Lincoln v Daniels [1962] 1 QB

237 at 263). There was no suggestion that Darker did not represent the law of Scotland.

[25] It was fundamental to a case of malicious prosecution that there was no extant

conviction (Friel v Brown 2019 SLT 377 at para [35]; Hunter v Chief Constable of the West

Midlands Police [1982] AC 529). The civil courts could not look behind a criminal conviction.

Collateral attacks were undesirable (Darker v Chief Constable of the West Midlands Police

(supra) at 457, citing Hunter). This too would militate against the floodgates argument. An

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immunity required to be justified by looking at the potential disadvantages to the public

interest which might result from its abolition (Jones v Kaney (supra) at para 51, citing Rondel v

Worsley (supra) at 228). There was no empirical evidence that liability to suit would cause

the ADs any difficulty (ibid at paras 58-59).

[26] As the issue was about the use and misuse of judicial proceedings, it was for the

courts and not Parliament to “sort it out” (Crawford Adjusters v Sagicor Insurance [2014] AC

366 at para 84). The immunity had not been enshrined in statute. The courts were

accustomed to overruling past cases. It would be most disturbing if it were necessary to go

to London to do so. The law had long since recognised a claim for wrongful civil suit

(Wolthekker v Northern Agricultural College (1862) 1 M 211). A distinction between that and

wrongful criminal proceedings did not make sense (Crawford Adjusters v Sagicor Insurance

(supra) at paras 87 and 88, analysing Jain v Trent Strategic Health Authority [2009] AC 853).

[27] The various arguments against removing an immunity had been considered in

Willers v Joyce [2018] AC 779 (at paras 46 et seq). The Lord Advocate advanced some of these,

but none justified a blanket immunity. Wright v Paton Farrell 2006 SC 404 expressed obiter

views (at para [14]) on the immunity of solicitor advocates in the conduct of trials and on the

restriction of the ambit of the duty of care. Both required justification, whether or not the

issue was addressed from a human rights angle. The obiter view was that immunity from

suit was justified (para [32]) having regard to the due administration of criminal justice,

notably the potential conflict between duties owed to the client and the court. Wright was

immediately eroded by the Legal Profession and Legal Aid (Scotland) Act 2007, which

introduced inadequate professional services as a concept together with awards to

compensate for such services.

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[28] In relation to other jurisdictions, there was no absolute immunity from suit in the

other countries of the Commonwealth. In England & Wales, there were the torts of

malicious prosecution and misfeasance in public office. These were both available against

the Crown Prosecution Service where a prosecution had failed. Malice and want of probable

cause required to be proved (Elguzouli-Daf v Commissioner of Police for the Metropolis

[1995] QB 335 at 347). The proposition that there was a blanket immunity was not “respectable

jurisprudence” (Bennett v Commissioner of Police for the Metropolis (1998) 10 Admin LR 245 at

254). The same approach was thought to be applicable in Ireland (Whatley: Civil Liability of

Prosecutors under Irish Law, Office of the DPP 2010)

[29] In Canada, the existence of an absolute immunity was said (Nelles v The Attorney

General for Ontario (supra) at 195) to “strike[s] at the very principle of equality under the

law”. A malicious prosecution suit was available, even if the plaintiff bore a “formidable

burden of proof” (ibid) to demonstrate a “deliberate and malicious use of the office for ends

that are improper and inconsistent with the traditional prosecutorial function.” (ibid at 196-

197). Such proof was not required where there had been a breach of the constitutional right

of disclosure (Henry v British Columbia (Attorney General) [2015] 2 SCR 214; see also Smith v

Ontario (Attorney General) [2018] OJ No. 914 at paras [26] and [28]).

[30] In Australia there was no immunity from suit where malice was proved (A v New

South Wales [2007] 233 ALR 584; Grimwade v State of Victoria (1997) 90 A Crim R 526; see also

Fleming: Torts (10th ed) at para 8.370). There was no general immunity in New Zealand

(Currie v Clayton [2014] NZCA 511 at para 67). In South Africa, an official, including a

prosecutor, who performed his duties with an ulterior motive, maliciously or dishonestly,

acted unreasonably and outside the bounds of his authority. His actings would, in a case

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involving the infringement of private interests, be regarded as wrongful (Loubser et al: The

Law of Delict in South Africa (3rd ed) 224-226).

[31] The European Public Prosecutor’s Office, which was expected to become functional

in 2020 in order to tackle crimes against the EU budget and cross border VAT fraud, would

be liable “in accordance with the general principles common to the laws of the Member

States” to make good any damage caused by them (EU Regulation 2017/1939 Art. 113). The

Consultative Council of European Prosecutors had stated (The Rome Charter - European norms

and principles concerning public prosecutors, Art X, see also Explanatory Note paras 88-89) that

prosecutors should not benefit from a general immunity, but from functional immunity for

actions carried out in good faith in pursuance of their duties.

[32] The only exception to the qualified immunity principle was the United States of

America, where public prosecutors had absolute immunity (Imbler v Pachtman (supra)) on the

same basis as judges and grand jurors. None of the factors relied upon by the US court in

Imbler justified absolute immunity. All manner of public officials required to exercise

judgment. It was not judgment that was being questioned, but a “deliberate and malicious

use of office for ends that are improper” (Nelles v The Attorney General for Ontario (supra) at

196-197 and 199). Sunlight was the best disinfectant when considering public trust. The

floodgates argument was not borne out in countries where no absolute immunity existed.

The prosecutors’ energy would only be taken up if the floodgates argument were

sustainable. There were “ample mechanisms… to ensure that frivolous claims are not

brought” (ibid). There would be no satellite litigation because a civil suit would not be

permitted where there was a conviction. The requirement to prove malice would prevent a

multiplicity of claims. Standing the terms of section 170 of the 1995 Act, it would be

anomalous if there were no liability in the case of the general (the Lord Advocate) but there

Page 18 ⇓

was for the actings of the foot-soldiers (the ADs or PFDs). Imbler was not the guiding light.

The court should look to the common law position in Bennett v Commissioner of Police for the

Metropolis (supra), the Commonwealth and Ireland.

[33] Alternatively, the immunity conferred was personal to the Lord Advocate. It did not

shield the wrongdoing of his underlings. At the time of Hume (supra) and Hester v

MacDonald (supra), there was little appetite for arguments based upon vicarious

responsibility (respondeat superior, cf culpa tenet suos auctores). It was misreading the

pleadings to say that the Lord Advocate’s hand was on the tiller throughout the

proceedings. There would require to be a proof on who had done what.

[34] Such immunity as existed was not a blanket one. Its precise boundaries would be

best defined after hearing the evidence. It was doubtful whether the immunity extended to

the pre-indictment proceedings, albeit that the Lord Ordinary had held that it did. The press

statement (supra) had nothing to do with the prosecution. Equally, there were averments

that the prosecution had provided damaging information to the Insolvency Practitioners

Association, who were the pursuers’ regulators. Such action was no different from the

situation in which an AD had assaulted someone when leaving court.

[35] The first pursuer adopted the second pursuer’s submissions upon Article 8 of the

European Convention.

Second Pursuer

[36] The second pursuer adopted the first pursuer’s submissions on immunity at common

law. He focused on Article 8. The genesis of the prosecution was a dispute between the

Crown and Duff & Phelps about the documents which had been seized and over which legal

privilege had been asserted. There had been intensive discussions about this between the

Page 19 ⇓

Advocate Depute and Duff & Phelps’ solicitor over many months. The problem had started

when the Crown had placed the pursuers on petition in November 2014, for what was said

to be an ulterior motive. The relevant time limits were thus triggered in a situation in which

there was no evidence against the pursuers. The service of the second petition had been to

secure a further period of time when there was still insufficient evidence. The first

indictment, which was served within the original time limit, had been framed without a

sufficient evidential base. These averments were the core elements in the case and permitted

an inference of improper purpose and lack of probable cause.

[37] Denisov v Ukraine, (App No 76639/1), unreported, 25 September 2018 confirmed that

Article 8 protected the right to personal development and to establish and develop

relationships, including business relationships, with others. This encompassed reputation

(see Cemalettin v Turkey, (App No 22427/04), unreported, 18 February 2009, at para 36, citing

Pfeifer v Austria (2009) 48 EHRR 8 at para 35), including that formed in a business context.

There were two different approaches to private life set out in Denisov (para 102). The first

was reason-based, whereby the “impugned measure was based on reasons encroaching

upon the individual’s freedom of choice in the sphere of private life” (ibid para 103). This

did not arise. The second was consequence-based, whereby the “impugned measure has or

may have serious negative effects on the individual’s private life” (ibid para 107). Where

false and unfounded allegations were made, Article 8 was both engaged and breached,

subject to the exceptions in Article 8.2, if the threshold of severity was reached (ibid

paras 110 et seq).

[38] Mr Clark offered to prove that his reputation had been damaged as a result of the

Lord Advocate’s acts and this this had caused loss of £250,000 per annum. Article 8 “cannot

be interpreted to require individuals to tolerate… being publicly accused of criminal acts by

Page 20 ⇓

Government officials who are expected by the public to possess verified information

concerning those accusations, without such statements being supported by facts (Jishkariana

v Georgia [2018] ECHR 740 at para 62 citing Einarsson v Iceland (2018) 67 EHRR 6). The

pursuers had been the object of a media frenzy when they had appeared on petition. Article

8 made it clear that a prosecutor required to make sure that his claims had a factual basis

before accusing someone of criminality.

[39] The remedy for a breach of Article 8 may be limited to non-pecuniary compensation

(€1,500 in Jishkariana v Georgia (supra)). Article 8 may not dovetail with the common law,

which had different remedies (Van Colle v Chief Constable of the Hertfordshire Police [2009] 1

AC 225). R v G [2009] 1 AC 92 was not authority for the proposition that Article 8 could not

be engaged unless the criminalisation of the conduct was itself a breach. There was no

majority view that prosecutorial policy was not engaged. A minority (see eg para 34)

thought that it would be engaged, whether or not the prosecution had been well founded.

That proposition need not be considered here, where malice and lack of probable cause were

alleged. SXH v Crown Prosecution Service (supra) was distinguishable in that a concession,

that the CPP had been entitled to prosecute, had been made. No such concession was made

by the pursuers. It was accepted in SXH (at para 36; see also [2014] 1 WLR 3238 at para 71)

that Article 8 could be engaged where, for example, false charges were “trumped up”. False

allegations were capable of both engaging and breaching Article 8.

The Lord Advocate

Hester v MacDonald (supra)

[40] The Lord Advocate accepted that he was responsible for the acts of the Advocates

Depute and the Procurator Fiscal Deputes. The question was not whether the Lord

Page 21 ⇓

Advocate was above the law (Bennett v Commissioner of Police for the Metropolis (supra at 254),

but whether he was liable in damages in a civil court to a person who had suffered injuria

and damages as a consequence of the Lord Advocate’s acts, or those for whom he was

responsible, as a prosecutor (Hester v MacDonald (supra) at 386).

[41] Only two jurisdictions had questioned the degree of liability for damages; the USA in

Imbler v Pachtman (supra) and Canada in Nelles v The Attorney General for Ontario (supra).

Nelles had not been the last word in Canada. In Miazga v Kvello (Succession) [2009] 3 RCS 339

it was held (at para [79]) that, in order to prove malice, an improper purpose which was

inconsistent with the office of Crown prosecutor had to be proved. If the prosecutor

initiated or continued the prosecution on the basis of an honest, albeit mistaken, professional

belief that probable cause existed, the action would fail. Even if the pursuer did not believe

that there was probable cause, this was not sufficient to prove malice. The failure might be

due to “inexperience, incompetence, negligence or even gross negligence, none of which is

actionable” (ibid at para [80] citing Nelles v The Attorney General for Ontario (supra) at 199).

Need for malice ensured that liability would not be imposed where a prosecutor proceeded

in the absence of probable cause, “by reason of incompetence, inexperience, poor judgment,

lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross

negligence” (ibid at para [81]). Care had to be taken not to infer malice from the absence of

probable cause, as was done with private prosecutions (ibid at [86]). Miazga represented a

realisation that, having removed absolute immunity in Nelles, there was a potential for

interference with the constitutional position of the prosecutor (see Hume (supra) ii.135). Like

judges, the prosecutor required to be independent.

[42] Both Clerk & Lindsell: Torts (22nd ed at para 16-04) and Fleming: The Law of Torts

(10th ed) at 698) had questioned whether the common law ought to translate to a public

Page 22 ⇓

prosecutor. The Australian cases had proceeded upon the common law relative to private

prosecutions (A v New South Wales (supra)) but, once public prosecution had been

introduced, limitations on liability followed. Queensland prosecutors had absolute

immunity (Director of Public Prosecutions Act 1984 s 25; Richardson v State of Queensland

[2015] QDC 30). In Victoria there was immunity for acts in good faith. The prosecutor had

personal immunity, but there was state liability for his acts (Public Prosecutions Act 1994 s

46). In South Australia, there was no immunity (ie in the Director of Public Prosecutions Act

1991). It was a subject for legitimate choice.

[43] A variety of different approaches were taken throughout the world. In some

European countries there was a liability on the prosecutor to pay damages if he or she had

been grossly negligent or worse (eg Finland, Greece, Norway, Sweden). The norm was that

the state would pay damages in respect of the acts of a prosecutor (eg Denmark, Finland,

Germany, Italy, Netherlands, Romania). There may be no need to prove malice as distinct

from fault (eg Denmark, Germany, Italy, Netherlands) or gross negligence (eg Norway,

Romania, Sweden). This may only be where the person suing has not been convicted (eg

Denmark). Where the person has been acquitted, it may not be necessary to prove fault (eg

Denmark).

[44] As a generality, an official who has acted maliciously ought not to escape liability for

damage caused. “Malice and without probable or reasonable cause” involved deliberate

wrongdoing. It could be inferred from recklessness (Robertson v Keith (supra) at 63), but

recklessness was not malice (Juman v Attorney General [2017] 2 LRC 610 at para [18], citing

Willers v Joyce [2018] AC 779 at para [55]). The justification for the immunity was that it was

impossible to decide if a claim was well founded until a case was tried and the official,

whether innocent or guilty, had been subjected to that trial. This would “dampen the

Page 23 ⇓

ardour of all but the most resolute, or the most irresponsible, in the unflinching discharge of

their duties” (Gregoire v Biddle (1949) 177 F.2d 579 at 581). Immunity was afforded in the

wider public interest, as with judges.

[45] The Human Rights Act 1998 (s 9) provided for liability on the state for judicial acts

when the judge had acted in good faith (see Mazhar v Lord Chancellor [2018] 2 WLR 1304).

There was no mention of the common law or the immunity of prosecutors. Sections 6 to 8

would apply. The 1998 Act had introduced a limited regime which was separate from the

common law. It was not necessary to assimilate the common law with the Convention.

[46] The absolute immunity of the Lord Advocate, and those acting on his behalf, had

been a feature of the criminal justice system for centuries (McMurchy v Campbell (supra) at

728; Hume (supra) ii, 134-135; Henderson v Robertson (supra) at 295). The constitutional basis

for this had not changed (Stewart v Payne (supra) at para [96]). The 1579 Act (c 78) had

referred to the frequency of malicious private prosecutions, or public prosecutions

proceeding on information from private individuals. It had introduced financial penalties,

which were to be divided between the King and the accused when accused were acquitted,

on “said unjust pursuers”. Where the Lord Advocate was the prosecutor, the informer was

to pay. Caution had been introduced for persons seeking to raise criminal letters. In the

system of public prosecution, as it developed, the Lord Advocate had to be absolutely

independent in determining whether to prosecute (Stewart v Payne (supra)). Hester v

MacDonald (supra), which had been based upon the dicta in Henderson v Robertson (supra) and

McMurchy v Campbell (supra), was what it was. No civil suit against the Lord Advocate had

been taken since then. The second edition of Renton & Brown: Criminal Procedure (1928) had

stated (at 297) that the Lord Advocate and his deputes enjoyed an ”absolute privilege”,

which may not have been shared by inferior prosecutors. This had not been mentioned in

Page 24 ⇓

the first edition (1909). The third edition (1956) referred (at 450) to the Lord Advocate

“apparently” enjoying “absolute privilege” (see also Oswald Dykes: Defamation in Greens

Encyclopaedia Vol V para 1138). As with other immunities from civil suit, including judicial

immunity, the structure of the law reflected a policy judgment which was based on the

relative weights given to the objective of providing a remedy for a wrong and the potential

for such provision to have adverse systematic effects on the administration of justice (see

Wright v Paton Farrell (supra) at paras [32] and [178-179]).

[47] It would be wrong to assume that the principles of the Scots system shared a

common base with the cases from England & Wales. Scotland had had public prosecution

by the Lord Advocate for centuries (see Normand: The Public Prosecutor in Scotland (1938) 54

LQR 345). Private prosecution was rigorously controlled and had been virtually unknown

in recent times. The situation in England & Wales was very different (R (Gujra) v Crown

Prosecution Service [2013] 1 AC 484 at paras 10-22, 31, 33, 81 and 95). The differences were

illustrated by the right in England & Wales, but not in Scotland, to review a prosecutorial

decision in the civil courts. The law in England & Wales had its origins in the specific tort of

malicious prosecution in the context of private prosecutions. This tort had almost vanished

with the relatively recent advent of public prosecution (Willers v Joyce (supra) at para 131;

Crawford Adjusters v Sagicor Insurance (supra) at para 121). There was an absolute privilege

attaching to witnesses (B v A (supra)), albeit that it had been abolished in relation to experts

(Jones v Kaney (supra) at 68). The common law had addressed the liability of procurator

fiscals in relation to summary proceedings, but there was no need to discuss this as it had

been regulated by statute since the Summary Procedure Act 1864, s 30. The current

provision in the 1995 Act (s 170) could be traced back to the Summary Jurisdiction (Scotland)

Act 1908.

Page 25 ⇓

[48] The Lord Advocate’s concerns were to ensure that prosecutors continued to act

independently and robustly. This was his unwavering expectation. He had no empirical

evidence about the consequences of removing the immunity, but it could cause resources to

be diverted. It could have a chilling effect on prosecutorial decision-making in difficult

cases. If the test for immunity was to be that in Miazga v Kvello (Succession) (supra), it may be

that very few cases would succeed, but the question was how many cases would be brought.

There were six concerns raised in Van Colle v Chief Constable of the Hertforshire Police (supra):

(i) defensive decision making (at paras 81,108, 132); (ii) diversion of resources (at paras 81,

133); (iii) the stopping of good claims in the wider public interest (at paras 106, 139); (iv) the

erosion of the law of negligence by the Human Rights Act 1998 (at paras 82, 137-9); (v) the

deterrence afforded by disciplinary measures and criminal liability (at para 139); and (vi) the

need to defer to Parliament (at para 102). The same factors, as were used in Van Colle to

prevent a negligence claim, could be used to justify the immunity.

[49] If Hester v MacDonald (supra) was correct, but no longer in accord with today’s mores,

any reform ought to be a matter for Parliament. It would be anomalous to have a rule which

differed between solemn and summary proceedings, although the distinction was

recognised in relation to judicial immunity (McCreadie v Thomson (supra) at 1182-3). There

were three possibilities: (i) the immunity could be excluded in the event of malice and a lack

of probable cause on the Miazga v Kvello (Succession) (supra) standard; (ii) there could be

immunity for acts in good faith, such as applied in Australia; and (iii) the chilling effect

could be removed by abandoning the personal immunity and imposing liability on the state.

[50] The de quo of Hester v MacDonald (supra) was that the immunity applied to the

Procurator Fiscal Depute and not just to the Lord Advocate. In the eyes of the court, an

Advocate Depute was the Lord Advocate (see generally Normand (supra)). The remit of the

Page 26 ⇓

Lord Advocate extended back to the investigation stage. The immunity applied to all

matters “in connection with his administration of crime” (Hester, LP (Clyde) at 378, Lord

Carmont at 383, Lord Guthrie at 387). There was no force in the contention that any

immunity was personal to the Lord Advocate (see Hume (supra)) ii, 132, 134-135 fn 1; Alison

(supra) 86). The Lord Advocate accepted that he was responsible for the acts of the ADs and

PFDs. The Lord Advocate’s prosecutorial functions were usually carried out by the ADs,

who held a personal commission. Procurator Fiscals were required to act upon the

directions of the Lord Advocate (or an AD). The Lord Advocate took his decisions

independently (Scotland Act 1988, s 48(5)). Although there was now a right to have his

decisions not to prosecute reviewed, the Lord Advocate would carry out that review

(Victims and Witnesses (Scotland) Act 2014, s 4; see also Human Trafficking and

Exploitation (Scotland) Act 2015, s 8).

Article 8

[51] Denisov v Ukraine (supra) had been issued after the Lord Ordinary’s opinion. It put a

different cast on the case. Denisov was in the context of employment disciplinary

proceedings, where Article 8 could be engaged in relation to reputational damage. Denisov

did not translate to criminal prosecutions. There was no case in any jurisdiction in which

Article 8 had been used in relation to a prosecution (R (E) v Director of Public Prosecutions

(2012) 1 Cr App R 6 (p 68) at para 75 citing the exception, Ulke v Turkey (2009) 48 EHRR 48).

Article 8 was not engaged in relation to the consequences, including reputational harm

which followed a conviction, of prosecutorial acts (Gillberg v Sweden [2012] 34 BHRC 247).

Cemalettin v Turkey (supra) concerned the storage of data which did engage Article 8. SXH v

Crown Prosecution Service (supra) was not authority that Article 8 applied to prosecutions (see

Page 27 ⇓

para 36). The Lord Ordinary erred in holding that it did. In England & Wales, there was

already scope to review prosecutorial decisions and to sue for malicious prosecution, so an

Article 8 case did not add much to the equation (cf the obiter remarks at [2014] 1 WLR 3238 at

para 71; and [2013] EWHC 71 at para 75; Rudall v Crown Prosecution Service [2018] EWHC

3287 (QB) at para 176). If Article 8 were engaged, it would be in relation to deliberately

trumped up charges which amounted to harassment (cf for illegal searches: Keegan v United

Kingdom (2007) 44 EHRR 33 at para 34, where no malice was required).

Decision

General

[52] The length and detail of the averments of fact on record may have served to obscure

the legal bases upon which the pursuers are seeking damages. In Mr Whitehouse’s case, the

articles of condescendence are divided by headings viz.: The Sale of Rangers…to Craig

Whyte; The Administration; The sale by the Administrators; The Police enquiry2012-2014;

Detention of the pursuer on 14 November; The pursuer’s first appearance on petition –

17 November, 2014; Detention of the pursuer on 1 September 2015; The pursuer’s second

appearance on petition – 2 September, 2015; [The First indictment]; The second indictment;

Preliminary Hearing – 5 January, 2016; The Court’s Ruling 22 February, 2016; The Crown’s

overall conduct of the prosecution – Disclosure…Crown’s obligation to pursue all reasonable lines

of enquiry; Infringement of the pursuer’s rights under Article V; Wrongful Detention and

Arrest; Wrongful Prosecution – Petition & Committal; Petition and Committal – November

2014; Petition and Committal –September 2015; Wrongful Prosecution – Indictment;

Infringement of the pursuer’s rights under Article VIII; The pursuer’s loss, injury and

damage.

Page 28 ⇓

[53] There is little difficulty in understanding Mr Whitehouse’s fundamental contention

that the Lord Advocate did not have sufficient evidence to take any of the steps which were

taken in relation to his detention, arrest and charge and his subsequent prosecution, which is

intermittently described as wrongful and/or malicious. It is slightly more difficult to see the

relevance of the detailed averments in relation to the conduct of the prosecution, including

matters such as disclosure and proper investigation, outwith that simple context.

Mr Whitehouse’s pleas-in-law are as follows:

“1. The [Lord Advocate] having infringed [the pursuer’s] rights under

Article 5… through directing unlawful detentions and arrests, thereby causing [him]

to suffer loss, injury and damage …, the pursuer is entitled to damages therefor.

4. The defenders having infringed the pursuer’s rights under Article 8… thereby

causing the pursuer to suffer loss, injury and damage …, the pursuer is entitled to

damages therefor.

6. The pursuer, having suffered loss, injury and damage through the fault of the

[Lord Advocate], is entitled to reparation from him therefor.”

[54] In Mr Clark’s case, the articles of condescendence are also divided by headings viz.:

The Sale of Rangers…to Craig Whyte; The Administration; The sale by the Administrators;

The Police enquiry2012-2014; Detention of the pursuer on 14 November and first petition;

Detention of the pursuer on 2 September 2015 and second petition; Indictment of the

pursuer; Exculpatory material withheld; Infringement of the pursuer’s rights under

Article 5; Infringement of the pursuer’s rights under statute; Infringement of the pursuer’s

rights under Article 8; Wrongful prosecution – common law; Time bar –Human Rights Act

1998; Loss. The reference to the statute is to section 20 of the Police and Fire Reform

(Scotland) Act 2012 (duties of police constables) and the first article (XXVI) under the

heading “Loss” concerns only the Chief Constable. Neither feature in the reclaiming

motion. The second article (XXVII) refers to the infringement of the pursuer’s Article 8

Page 29 ⇓

rights by the Lord Advocate. The averments include reference to “unfounded accusations of

criminality… [causing] loss, injury and damage to his reputation”. The acts are described as

“wrongful and unjustified”.

[55] Mr Clark’s pleas-in-law are as follows:

“1. The defenders having unlawfully infringed his rights under Article 5… and at

common law, and having caused the pursuer loss injury and damage thereby, the

pursuer is entitled to damages therefor.

4. The defenders having unlawfully infringed his rights under Article 8… and at

common law, and having caused the pursuer loss injury and damage thereby, the

pursuer is entitled to damages therefor.”

[56] Mr Whitehouse’s pleas in relation to the Article 5 and 8 cases are clear. His case is

said otherwise to be based on some form of unspecified “fault of the [Lord Advocate]”.

Mr Clark’s pleas, in so far as they relate to the “common law” lack meaningful content.

They seek “damages” (not reparation) for infringing unspecified common law rights. In

neither pursuer’s case is there a legal case specifically based on malicious prosecution,

despite averments of fact to that effect. There is no legal case based on wrongful arrest or

detention. There is none based upon illegal search. There is no reference to defamation or

other verbal injury. Malicious prosecution and/or defamation/verbal injury appear to be at

the heart of the pursuers’ claims. Each is separate in nature from damages for wrongful

search, arrest or detention and will attract different measures of loss. The conclusions,

however, are directed at both the Chief Constable and the Lord Advocate on a joint and

several basis for different acts. It is essential that the factual averments are radically pruned,

the legal bases relied upon for classifying particular acts to be unlawful clearly stated and

the damages attributed to the specific acts so identified are fitted into specific, recognised

delictual categories. If the common law cases are based on malicious prosecution, the pleas-

Page 30 ⇓

in-law should state that unequivocally. If there is any other basis upon which a common

law case is being pursued, there ought to be a clear plea-in-law which specifies what it is.

The Common Law and Hester v MacDonald 1961 SC 370

[57] The first question for the court is to determine whether Hester v MacDonald (supra)

was correctly decided. The answer to that will depend initially upon an analysis of its

underpinnings. The starting point is the principal submission for the Lord Advocate in

Hester (at 373-4). According to the Justiciary Cases reporter, the submission was based upon

Renton & Brown: Criminal Procedure (3rd ed) 450, Alison: Practice 92; Henderson v Robertson

(1853) 15 D 292, LJC (Hope) at 294 and McMurchy v Campbell (1887) 14 R 725, Lord Young at

728. Hume: Crimes (4th ed) was not relied on. The submission was that, in the conduct of

prosecutions upon indictment, the Lord Advocate had “absolute privilege” (nb not

immunity). In order to counter that, the pursuer (at 374-5) advanced a simple proposition,

viz:

“…nor was there any authority for the view that [the Lord Advocate] possessed the

absolute privilege which attached, for example, to a Judge. Compelling authority

would be required before a contrary view were taken. The opinions of even the most

learned writers and judicial opinions expressed obiter were not enough”.

[58] The Lord President (Clyde), who had been Lord Advocate from 1951 to 1954,

referred (at 377) to the “constitutional trust” which was placed upon the Lord Advocate.

Coupled with a passage from Alison (supra at 93) on the Lord Advocate being “absolutely

exempt from penalties and expenses”, the Lord President concluded:

“It is, therefore, an essential element in the very structure of our criminal

administration… that the Lord Advocate is protected by an absolute privilege in

respect of matters in connexion with proceedings … by way of indictment ([cf

Renton & Brown (supra) (3rd ed) 450]).”

Page 31 ⇓

Lord Guthrie was of a similar view (at 387), again founding on statements in Hume and

Alison, about the trust placed in the Lord Advocate. He concluded that Hume’s references

to this trust:

“infers ... that the Lord Advocate cannot be made liable in damages in respect of a

prosecution in his name”.

In order to determine whether this is correct, the context in which Hume was writing must

be examined.

[59] The critical point to note, in relation to Hume, is that the passages relied on by the

Lord President and Lord Guthrie are in the context of a discussion upon criminal procedure.

They are not about civil liability. The chapter in Hume is headed “Prosecutors and their

Title”. The confidence which was placed in the office of Lord Advocate meant that, in

contrast to a private prosecutor, he did not have to find caution or pay the penalties required

from unsuccessful private prosecutors under the Act of 1579 (c 78). In the event of an

acquittal in a matter pursued, not privately but by the Lord Advocate, it was the informer

“of mere malice and envy” that would have to pay.

[60] Hume noted (ii, v, 134 fn 1) that there had never been an award of expenses against

the Lord Advocate in the event of an acquittal because:

“it will not be supposed of him, that he can be actuated by unworthy motives in

commencing a prosecution, or fall into such irregularities or blunders in conducting

his process, as ought properly to make him liable in that sort of amends”.

The same did not apply to a procurator fiscal. According to Hume (at 136), the Lord

Advocate would have to name the informer (Steven v [Lord Advocate] Dundas 1727 M 7905).

[61] The court in Hester v MacDonald (supra) was referring to the 4th (Bell) edition of

Hume, which was published in 1844, after Hume’s death in 1838. Had the Lord President

and Lord Guthrie resorted to Hume’s writings in relation to civil liability, they may have

Page 32 ⇓

formed a different view. In volume III of his published Lectures (Stair Society Vol 15), when

writing about verbal injuries in the general context of obligations ex delicto (ch XIV), Hume is

clear (at 134) that accusing a person of a crime “wantonly and maliciously” is actionable. No

doubt that is not controversial as a generality. Hume goes on (at 143) to consider “words

uttered or things done in the course of [a person’s] official duties”. There could be no action

if these were “done at the proper season, and in the proper manner, and that the due

measure is not exceeded”. Parties to a lawsuit “must be allowed the due freedom and

latitude in stating the allegations which are anywise material to their cause” (at 144). The

same applied to witnesses. Malice was not readily to be imputed, but it is clear that Hume is

saying that such acts would be actionable if done maliciously and without probable cause.

[62] Most interesting, specifically in relation to the acts of a judge, Hume said (at 145)

that:

“It shall not prima facie be imputed to malice in him, but to sense of official duty,

what he throws out on the Bench, touching the character of parties or their witnesses,

or the conduct even of agent or counsel in the cause. To be relevant as a ground of

charge against him, the thing said must not only be in itself unjust – ill founded –

something which he has not a right to say – and which can be shown, from

circumstances on the part of the complainer, to have been said maliciously. On that

ground absolvitor passed in…Haggart’s Trustees v Lord President (Hope) (1824) 2 Sh

App 125 affirming (1821) 1 S 46 …

…

Thus in these several descriptions of cases the pursuer’s ground of action fails,

because the admitted situation of the party and circumstances of the face, are truly

exclusive, prima facie at least, of the notion of any malus animus, or improper

disposition on his side.”

[63] Hume later (at 148-149) returns to the same subject in connection with a judge’s

remarks from the bench:

“…And I have already said that prima facie his conduct shall be imputed to these

proper and to no malicious motive, and that the pursuer must aver and charge

circumstances in the case, that show the contrary. But such circumstances there may

Page 33 ⇓

be in a case, and they will be relevant if shown. Put the case, that, at deciding some

cause, the Judge drags some character into a suit, where it has nothing to do, to pull

it to pieces, and that afterwards, extrajudicially, he indulges in invectives against this

person and makes a common conversation of his faults – certainly he is answerable

for such an excess. For these things indicate malice on his part”.

If then, Hume was of the view that malicious acts of a judge in the course of his duties were

actionable, it is difficult to see why he would have differed if considering the position of a

prosecutor, including the Lord Advocate.

[64] The case, which is cited in the 4th edition of Hume, is nevertheless authority for the

proposition that a judge’s privilege, in relation to what he says in court, is absolute. In

Haggart’s Trs v Lord President (Hope) (supra), the late Mr Haggart, an advocate, contended

that he had been injured by remarks made by the then Lord Justice Clerk (Hope) (afterwards

Lord President) at an advising in a case in which he had been counsel. The remarks in the

opinion were that:

“Mr Haggart has here, as is his usual practice, stated facts and circumstances of

which there is no evidence on the record, and which live in the memory and

recollection of that gentleman alone. Mr Haggart had conducted this cause, as he

does all the others he is concerned in, differently from all the other counsel at the

Bar”.

Mr Haggart had averred malice, but the Lord Ordinary (Pitmilly), rejected the claim as

incompetent, although he also thought that the averments of malice were insufficient.

[65] In the Second Division, Lord Craigie, whilst agreeing with the result at first instance,

considered (at 133) that “Judges or lawyers may be sued for damages for malversations

creating an injury ...”. Malice may be inferred from the act itself. Lord Robertson thought

(at 135) that any remedy had lay with the King or Parliament. Lord Glenlee agreed (at 135)

with Lord Craigie, adding that an action against a judge would be competent if it could be

proved that he had been “... bribed to pronounce an erroneous judgment ...”. If the judge

had done something ultra vires, he would be responsible for it even if it looked like a judicial

Page 34 ⇓

act. The Lord Justice Clerk (Boyle) considered (at 138) that, if the action were allowed, it

would be “... a total end to the independence, dignity, and security of Courts of Justice “. He

did not entirely exclude (at 139) an action based on an act which was “palpably ultra vires”.

[66] In the House of Lords, it was contended (at 142) that:

“... although Judges were protected in general against claims for what they may have

done in the due exercise of their judicial functions, yet there was no authority which

declared that they should be exempt from responsibility for the malicious abuse of

their powers ...”.

Lord Gifford, who delivered the speech having had express regard to the good sense of the

law of England (at 145), confined himself (at 143) to the narrow question of whether a suit

was competent at the instance of “any private party who may feel himself aggrieved by the

judicial acts of [a] Judge?”. He answered that in the negative; on the basis that it would

subvert the independence of judges.

[67] Turning to Mackenzie: Matters Criminal (1678), it is of passing note to recognise that

Mackenzie was Lord Advocate from 1677 to 1689 (with a short interval) and had a

reputation for displaying what some might regard as extreme malice towards the

Covenanters. Unlike Hume, whose work on criminal law was expressly not focused on the

Roman law principles which form the basis of the Scots law of reparation, Mackenzie did

revert to Roman law for certain purposes. In relation to “Accusations and Accusers” (ch 19)

he wrote (at para 8):

“To the end that persons may not be unjustly pursued, the civil [Roman] law did

appoint two remedies. First, that the pursuer should find caution to insist. Second,

that he should be pursued as a calumniator if his pursuit was found to be

malicious…”.

Mackenzie noted that caution was originally prescribed by an Act of 1535 (c 51). The Lord

Advocate was not obliged to find caution, as he was not presumed to be calumnious, but he

did normally ask his informer to do so. In the event that the accuser was found to be

Page 35 ⇓

calumnious, a penalty was payable in terms of the 1579 Act, even in the absence of malice

and want of probable cause. In the event of malice being proved:

“it is arbitrary for the Justices to inflict what punishment they please, either in that

same sentence wherein the defender is absolved, or upon a separate bill or pursuit;

as also, he [the calumniator] is by the Justice constantly ordained to pay what

damage and interest, or expense, the Justice pleases, both to the parties and to the

assizers. And albeit, according to the civil law, ‘procurator fisci non praesumebatur

calumniousus [the fisc’s (treasury’s) procurator is not to be presumed as a

calumniator] yet ‘si procurator fiscalis culumniose instigat judicem ad inquirendum,

tenetur in damna actione injuriarum, et concremari debet’ [if the procurator calumniously

incites the governor into an investigation, he is liable in an action for the losses

incurred from the outrages, and should be burned] (Code of Justinian 3.26.9 (AD

365)) … And according to the opinion of the doctors…[nowadays both the judge and

the procurator fiscal are to be punished arbitrarily for feignedly pursuing a crime].”

[68] The passage cited from Justinian’s Code is not strictly about damages. It is in a

chapter headed (as translated by Justice Blume of the Wyoming Supreme Court) “Where

fiscal causes… may be conducted” and reads:

“3.26.9 Emperors Valentinian and Valens to Philippus, Vicar.

Everybody may rely on this: that if anyone has been wronged at the hands of

an agent (actore) of our Crown Domain, or a procurator (of the imperial patrimony),

he need not hesitate to complain of his insults or depredations to Your Sincerity or to

the rector of the province, and he may fearlessly ask for a decision involving public

punishment. We ordain and proclaim that if it is clearly proven that (such agent or

procurator) has dared to use such insolence towards a provincial, he shall be publicly

burned alive.

Given at Heracles July 5 (365).”

The Code had earlier recorded, in a chapter headed “Where senators or those holding the

title of clarissimi (honourable) may be sued civilly or criminally”, the following exchange:

“3.24.3 Emperor Zeno Augustus to Arcadius, Praetorian Prefect

...

1a. The measure of punishment to be meted out to persons of dignity rests solely in

the discretion of the Emperor. But if the prosecution was malicious, the accused

forsooth being immediately absolved, the accuser must be punished as the law

provides even without consulting Our Sincerity, unless, perchance, the latter also is

not of a rank inferior to that of the defendant; for it is proper that in such case the

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emperor should be consulted concerning the punishment for malicious prosecution

of such an accuser

Given at Constantinople (485-486?)”.

[69] Whether the sources relied upon by Mackenzie have been correctly identified,

scholars in the modern, or relatively modern, era have expressed the view that, by the time

of Justinian, an action would lie for malicious prosecution. Thus Lee: Malicious Prosecution in

Roman-Dutch law (1912) S African LJ 22 expresses the view (at 24) that, although the law

expressed at the time of Gaius had fallen into desuetude, following Ulpian and Paulus:

“the action injuriarum lay at the suit of any person who had been acquitted of a

criminal charge vexatiously preferred against him by the defendant. But no action

would lie if the accusation were not vexatious or if the accused person had been

found guilty” (see also Justinian: Institutes IV.4.16 De Poena temere litigantium).

This is the law which would have been understood as applicable at the time of Mackenzie;

the action injuriarum forming the foundations of the law of defamation (see generally Stair

Encyclopaedia: Obligations Vol 15 para 214, distinguishing the actio injuriarum from the actio

legis aquiliae). Certainly, Mackenzie understood that there was a remedy of damages in the

event of a malicious prosecution. That understanding is consistent with the 18th century

lectures by Hume (supra).

[70] The citation by the Lord President and Lord Guthrie of Alison (supra) is, like the

reference to Hume (supra), one to a treatise on criminal procedure. Alison (at 92) is

repeating what Hume had said about the Lord Advocate not having to find caution or to

take the oath of calumny and his exemption from “expenses or penalties”. This did not

apply to procurator fiscals:

“who are selected in general from a subordinate class of men, and are not to be

presumed to be either so thoroughly exempt from improper motives, or so

completely under the observation of the King in Council, as those functionaries

whose appointment flows directly from the Crown itself” (at 93).

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Alison does refer (at 96) to the civil remedy of damages against the informer where there

have been unsuccessful or abortive criminal proceedings. He mentions the need for there to

be both malice and lack of probable cause (Arbuckle v Taylor (1815) 3 Dow 160).

[71] Returning the focus to writers on the remedies available in civil law, Chapter I of

Book IV in Bell: Principles (10th ed (1899)) concerns the “Protection of Person and Character”.

Under a heading “Wrongous Imprisonment at Common Law” (para 2036) Bell states (at

2040) that:

“The mere failure of an accusation will not infer damages against the accuser, if the

circumstances justify his suspicion. ‘And a procurator-fiscal or public prosecutor

cannot be made liable in damages without averment and proof of malice and want of

probable cause, the facts being averred from which malice is to be inferred, or at least

of gross and culpable irregularity in procedure’ (Bell v Black & Morrison (1865) 3 M

1026).”

Bell then immediately goes on to consider “Protection of Character”.

In the first edition of Bell (1829) the following appears:

“830. 3. In a court of justice there is a privilege to state what is necessarily called for

in the course of the inquiry, either on the part of the Judge, or by the parties or their

advisers. …In order to overcome that privilege which protects a Judge, and the

dignity and independence of his place, malice must be proved. This must be by

other evidence than the mere construction of the words used, when the Judge

adheres to the matter in judgment before him; but wherever he goes out of the case,

he is unprotected, and the words spoken may infer malice and damages…

831. 4. Counsel are protected in the statement of whatever is relevant to the cause,

and within their instructions; and the same protection is given to the party…”.

There is no mention of a prosecutor being in a different position.

[72] By the time of the 10th edition, Bell had been cautioned by the courts. His editors

wrote as follows:

“2048. (3) Courts of Justice – In Courts there is, on the part of the judge, of the parties,

and of their advisers, an ‘absolute’ privilege to state whatever is pertinent to the

inquiry.

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2049. This privilege protects a judge, and the dignity and independence of his place.

It ‘was erroneously stated by Mr Bell that it’ is forfeited by malice. In an action

against a judge, therefore, malice ‘he says’, must be libelled and proved. And the

proof must be by other evidence than the mere construction of the words used… ‘It

is more correct to say that the privilege of a judge absolutely excludes an action of

damages for words said in his judicial capacity, even though it be averred that they

were malicious and irrelevant, provided only they relate in some way to the matter

before the Court [citing Haggart’s Tr v Lord President (Hope) (supra) ...]

…

2051. Parties ‘litigants’ are privileged in the statement of whatever they believe to be

true, and which is relevant to the cause, unless malice be proved; and counsel have

the same privilege, provided their statement be within their instructions. ‘But the

latter statement is too narrow, for the general rule has been fixed, that whatever is

said or written in the course of judicial proceedings by those engaged in them,

whether as judges, counsel, witnesses, or jurors, is absolutely privileged, however

false, malicious, or irrelevant it may be, provided only it be said or done relative to

the matter in question [citing Forteath v The Earl of Fife (1821) 2 Mur 1463).”

This is all in connection with defamatory statements made in court proceedings.

[73] At the time of Hester v MacDonald (supra) the commonly used and respected text-

books on civil liability in delict were, first, Glegg: Reparation (4th ed) and Walker: Damages,

both from 1955. Glegg has a separate chapter (10) on “malicious prosecution”. He defines

this (at 185) as consisting of the institution of criminal proceedings “maliciously and without

probable cause, for an offence which he has not committed”. The prosecution must have

been abandoned or failed. Specifically on the “Position of Public Prosecutor”, Glegg writes

(at 186):

“A procurator-fiscal, or other public prosecutor, cannot be found liable in damages to

one whom he has prosecuted, although it turns out that the offence charged was not

committed, unless he is shown to have acted maliciously and without probable

cause… It is in the public interest that liability in damages is thus limited, in order

that the prosecutor may have a free hand in dealing with crime, knowing that while

he acts in the discharge of his duty, and not from an improper motive, he is not

responsible. The privilege of criminal officials is simply an application of the

principle which gives protection to all public bodies and officers in the discharge of

their duty…”.

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Glegg does not confine his remarks to procurator fiscals, but includes other public

prosecutors. There is no particular reason to restrict the generality to those practising in the

summary courts, especially as Glegg deals (at 190) with the legislation (then the Summary

Jurisdiction (Scotland) Act 1954 s 75), which covered these courts separately.

[74] Glegg deals (ch 9) with privilege in the context of “slander” as a separate topic. He

describes the principle whereby a person, who has a duty to speak, is not presumed to be

actuated by malice. Proof of malice is required if damages are to be available. If not an

absolute privilege, privilege of a “very high degree” is available (at 163, citing Beaton v Ivory

(1887) 14 R 1057 and Robertson v Keith 1936 SC 29; see infra). As Glegg puts it generally (at

164) “a person may not act as he pleases under pretence of official duty without having to

answer for his doings”. Although it is said that a judge acting in his official capacity is

“absolutely privileged”, this is qualified by a statement that a judge does not have “a right to

use the bench to utter slanders unconnected with the matters or parties before him”.

Absolute privilege was also said to attach to an advocate who is pleading in court and to a

witness (but not a litigant) who is called to give evidence. In all of this, there is no mention

of the Lord Advocate or his deputies being in a different position.

[75] Walker: Damages has a chapter (25) on “Wrongs to Reputation”. It contains an

interesting statement (p 643) that the actionable wrong “may be done principally by

defamation or indirectly by wrongfully using legal process or diligence”. Malicious

prosecution is treated (at 656) separately from defamation in a general statement that:

“Malicious Prosecution. – It is a wrong justifying damages to institute criminal

proceedings, maliciously and without probable cause, against a person for a crime

which he has not committed.

Privileged Persons. – In an action against a public prosecutor or a person similarly

placed specific averment and proof of malice and want of probable cause is

essential…”.

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There is no mention of any immunity from suit afforded to anyone. The protections

available under what was then the 1954 Act are noticed, as are the limitations on damages

for acts in the summary courts (the “Twopenny Acts”; Justices Protection Act 1803; Circuit

Courts (Scotland) Act 1828 and the Criminal Law (Scotland) Act 1830).

[76] So far as the analyses in the textbooks, institutional or otherwise, are concerned, prior

to Hester v MacDonald (supra), there was no “immunity” afforded to the Lord Advocate in

the event of a malicious prosecution. He would be liable, vicariously or otherwise, for a

solemn prosecution carried out maliciously and without probable case. An exception to

these analyses is Guthrie Smith: Reparation (1864) which, somewhat tentatively, suggests,

specifically in relation to malicious prosecution, that:

“The Lord Advocate and his deputes appear, like her Majesty’s judges, not to be

answerable in any private action for acts done by them in an official character”.

Guthrie Smith explains (at 271, see also 210) that this stems from the terms of the 1579 Act.

If the obligation, in a failed prosecution by the Lord Advocate, is on his informer to pay the

penalties :

“This implies that the Lord Advocate cannot be convened in any private action

[citing Hume (supra) ii, c 5; and LJC (Hope) in Henderson v Robertson (supra)]”.

[77] Henderson is the exemplar, which the Lord President in Hester v MacDonald (supra)

used (at 377; see also Lord Guthrie at 387) in stating that “our Courts have consistently

affirmed the existence of such immunity” (emphasis added), referring back to what he

described as “absolute privilege” in solemn proceedings. Henderson was an action for

malicious prosecution against a banker who had informed the procurator fiscal that he (the

pursuer), who was a “share-broker”, had committed perjury. The pursuer sought a

commission and diligence to recover the original documents making the allegation. The

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banker unsuccessfully opposed the application. The Lord Advocate had not objected and

did not appear in the reclaiming motion. The pursuer was not called upon to reply.

Nevertheless, the Lord Justice Clerk (Hope), who coincidentally was the son of the Lord

President in Haggart’s Trs v Lord President (Hope) (supra), opened his opinion as follows:

“It is impossible to disguise the great importance of this question, - one of the most

important that can be raised in reference to the office of public prosecutor. The

public prosecutor has by law great and most important protection. As against the

Lord-Advocate, I do not think that a case of liability to damages could be even stated.

The inferior officers of the Crown – the Procurators-fiscal – are also entitled to the

most large and comprehensive protection; and setting aside the case of irregularity, I

do not know in what circumstances a Procurator-fiscal could be made liable, unless

when, after having received a regular information, he has conspired with others to

carry on a false prosecution”.

[78] Neither the purpose nor the meaning of this introduction is immediately clear. The

application under consideration was for the recovery of the formal written information

provided by the banker to the procurator fiscal about the sharebroker. The issue was

whether the banker had to provide the information if, as the Lord Advocate had maintained

before the Lord Ordinary, he (the Lord Advocate) could not be compelled to do so. It was

not about the Lord Advocate’s liability in damages for a malicious prosecution or any other

delictual act. The Lord Justice Clerk’s introductory remarks are not expressly reflected in

the opinions of the other members of the Division. They are not supported by any authority

or preceded by any submission by the defender or the content of the Lord Ordinary’s report.

They are indeed a flimsy base upon which to draw any conclusion about the “immunity” or

“privilege” of the Lord Advocate.

[79] The Lord President in Hester v MacDonald (supra) included a passing reference to

Lord Young’s opinion in McMurchy v Campbell (supra at 728). Lord Guthrie relied upon it

more directly (at 387). It is important to note that McMurchy was a defamation, not a

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malicious prosecution, case. It proceeded at the instance of a police officer against a police

inspector and a procurator fiscal. It was based upon a report which the defenders had sent

to the chief constable about rumours concerning the pursuer’s immorality. The report

recommended an investigation. It was said that the contents of the report were “unfounded

and malicious” and that the report had been made “maliciously, and without any just or

probable cause”, with the intention of causing the pursuer to lose his employment. The

pursuer had subsequently been cleared of any immorality by the local police committee. In

assoilzing the defenders, the Lord Ordinary held that the general averment was not

sufficient. It had not been said that the rumours had been invented. The pursuers did have

probable cause to make the report and thus the matter was not actionable. The Lord Justice

Clerk (Moncreiff) agreed (at 728) with the Lord Ordinary, holding that, in the absence of

“any intelligible allegation of malice”, the action could not succeed.

[80] Lord Young commented that the law on defamation by public officials in the

discharge of their duty was not “fully matured”. For reasons which remain obscure, he

referred specifically to Haggart’s Trs v Lord President (Hope) (supra) in relation to statements

from the Bench. He continued (at 728):

“Again, with respect to public prosecutors, I do not know that the law stands on any

discussion, but rather on generally received opinion. For example, no action will lie

against the Lord Advocate for averments made by him in the discharge of his duty,

even though they are said to be malicious. The public interest will not allow such

actions. …it is only within the last ten years that it has been decided in England that

an action will not lie against witnesses for slander contained in statements made in

the witness-box on the allegation that they are false and malicious. There again it is

on the grounds of public interest and high expediency…

Though it is not, for the purposes of this action, necessary to decide the point, …it is

not in the public interest that an action for libel should lie against a public officer for

a report made in discharge of his duty to his superior officer. It may cost great

suffering to the person who is affected by these statements that they should be made,

and that he should be without redress, but it is in the interest of the public that the

police should make investigation into such charges, and it would require a very

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exceptional statement indeed, a statement very different from what we have here, to

induce me to allow such an action to proceed…”.

Lord Young acknowledges the absence of authority for his assertion on “received opinion”.

He does not refer to Henderson v Robertson (supra). He appears to accept that there might be

exceptions to that opinion. He does refer to “absolute privilege” being mentioned by

Oswald Dykes: Defamation (in Greens Encyclopaedia vol 5 at para 1138), but there the author

is talking in the context of communications between government ministers. His statement is

qualified by the word “probably”. It is from this article on defamation that a reference to the

obiter dicta of both Lord Justice Clerk (Hope) and Lord Young can be found.

[81] In McMurchy v Campbell (supra) Lord Rutherford Clark, in concurring, left open the

possibility of an exception in “a remarkable case”, which it was possible to conceive and

might involve “special grounds for inferring malice”. Looking at the opinions as a whole,

they do not support the proposition that the Lord Advocate has absolute immunity from

suit, especially where the ground of action is not defamation.

[82] Finally on the reasoning in Hester v MacDonald (supra), there is reference by both the

Lord President and Lord Guthrie to the chapter on the “Liability of Judges, Clerks of Court

and Prosecutors” in Renton & Brown: Criminal Procedure (3rd ed, 1956) 450. As with Oswald

Dykes, the relevant statement is tentative. It is as follows:

“The common law recognises that a public prosecutor, while discharging his public

duties, occupies a position of high privilege. The Lord Advocate apparently

(emphasis added) enjoys an absolute privilege [citing Lord Justice Clerk (Hope) and

Lord Young in respectively Henderson v Robertson (supra) and McMurchy v Campbell

(supra)]. A Procurator-Fiscal or other inferior public prosecutor is not liable in

damages to anyone whom he has prosecuted unless he can be shown to have acted

maliciously and without probable cause [ibid]…. A private prosecutor taking

proceedings in the interest for which they were intended to be used enjoys a similar

protection [Glegg (supra) (3rd ed) at 183]. He loses this when he uses his powers in an

improper interest [Cook v Spence (1897) 4 SLT 295]”.

Page 44 ⇓

[83] The use of the word “apparently” does not appear in the earlier edition (2nd, 1928) in

which Alison (supra) 92 et seq, Urquhart v Dick (1865) 3 M 932 and Beaton v Ivory (supra) are

cited as authority in relation to the liability of the procurator fiscal. In the first edition

(1909), there is no mention of the Lord Advocate having immunity, although that of sheriffs

and “judges of the Supreme Court” is covered (at 278, citing Harvey v Dyce (1876) 4 R 265).

In Harvey the Lord President (Inglis) had referred to the privilege of judges in their judicial

capacity being absolute; that having been settled by a series of judgments of the Court of

Session (ie Haggart’s Trs v Lord President (Hope) (supra); and Hamilton v Anderson (1858) 3 M

363) and “in England” (Scott v Stansfeld (1868) LR 3 Ex 220).

[84] Pulling these various threads together, Hester v MacDonald (supra) was wrongly

decided and should be overruled. The submission of counsel for the pursuer (Stott QC), that

there was no authority for the view that the Lord Advocate possessed the absolute

“privilege”, which attached to a judge, ought to have been sustained in the context of a case

which was based on malicious prosecution and not defamation. The court ought to have

adhered to the reasoning of the sheriff principal (Sherwood Calver QC).

[85] It is relatively clear that, both at the time of Mackenzie (supra) and Hume (Lectures

supra), an action could be pursued against the public prosecutor for: wrongful arrest,

detention or search; malicious prosecution; and/or defamation. This was understood to be

the law by the majority of the textbook writers in the 19th and the first half of the 20th

centuries and by the judges (see infra) who, in Beaton v Ivory (supra) and Robertson v Keith

(supra), explained the scope of the liability in wrongful arrest and defamation cases

involving public officials. Separate proof of malice is not required where an arrest,

detention or search is carried out without warrant and is deemed to have been illegal (Bell v

Black and Morrison (supra), LJC (Inglis) at 1029). As regards malicious prosecution, obviously

Page 45 ⇓

malice has to be proved. That is contained in the very description of the wrong. Since it is

not wrongful to prosecute someone who has committed a crime with a degree of malice,

want of probable cause also requires to be shown. There is no immunity from suit.

[86] Privilege is not a defence to malicious prosecution. It is a defence to an action of

defamation. In relation to what is said in court, whether written or oral, by a party’s legal

representative, whether counsel or solicitor, for the prosecution or the defence, there is

absolute privilege in an action for defamation (see Forteath v Earl of Fife (supra) involving

Francis Jeffrey as counsel). In terms of Haggart’s Trs v Lord President (Hope) (supra), as

confirmed in Harvey v Dyce (supra) a judge enjoys absolute privilege too, as a matter of

public policy. This may not have been quite the view of several of the judges of the Second

Division (supra). Whether it is something which requires to be reviewed in the future may

be a moot point, but at present there is authority from Lord Gifford (whose background was

in English law, cf the Scots judge of the same name) in the House of Lords confirming that it

is so.

[87] In essence, in relation to his acts, the Lord Advocate, and those for whom he is

responsible, are generally subject to the same rights and duties as other public officials in the

conduct of their public duties. In order to define those, it is convenient to revert to the

extraordinary circumstances of Beaton v Ivory (supra), which was a wrongful arrest and

detention case. It was averred that the sheriff of the county of Inverness had instructed the

police to “search for, apprehend, and convey to prison every person whom they could find

in the locality” of Herbista, near Uig on Skye, where deforcement of a messenger-at-arms

had taken place two days previously. The Lord Ordinary (Fraser) describes the

“proceedings” which were going on in Skye as “tumultuary”. They centred on the

reluctance of the crofters to pay rents which are now widely regarded to have been

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exorbitant. The pursuer, who was from a neighbouring township, had been arrested while

tending his cattle, taken to Herbista, placed in the custody of marines, marched three miles

in order to board the gunship “Seahorse” and taken to Portree. He appeared before the

sheriff-substitute and was questioned for more than an hour by the procurator fiscal before

being detained until the following day when, three days after his arrest, he was liberated

without explanation. It was averred that the act of the sheriff had been malicious and

without probable cause.

[88] The Lord Ordinary held that the action was irrelevant. He said this (at 1059):

“It seems to be forgotten that the freedom from responsibility for damages – the

absolute privilege that is given to the chief magistrate endeavouring to do his duty –

is given to him not for his own sake, but for the sake of the public, whose servant he

is, and for the advancement of justice.”

The Lord President (Inglis) was more expansive (at 1061) as follows:

“If it had not been that the pursuer is under an obligation to aver and prove malice as

the condition of his succeeding…, … we could not have disregarded that averment

made as it is, and must have sent the case to trial. But… there is a very special

protection surrounding the defender in the execution of his duty as the Sheriff of the

county, and so responsible for the peace of the county. That protection extends to

this, that he will not be liable for anything that he does in the performance of that

duty unless it can be shewn that he was actuated by a malicious motive of some

kind. The mere use of the word ‘malice’ in a case of this description is… quite

insufficient to fulfil the condition upon which alone such an action can be

entertained. The presumption in favour of a public officer that he is doing no more

than his duty, and doing it honestly and bona fide, is a very strong one, and certainly

ought not to be overcome by the simple use of the word ‘malice’. …[T]he duty of the

pursuer in a case of this kind is to aver facts and circumstances, from which the

Court or jury may legitimately infer that the defender was not acting in the ordinary

discharge of his duty, but from an improper or malicious motive. …It is for the

benefit of the public, and for the interests of justice and good government that public

officers acting in the execution of their duty should be surrounded by very

considerable protection.”

[89] Almost a half century later, the issue of wrongful acts of a public official came to be

debated once again, albeit in markedly different circumstances, this time by the Full Bench

Page 47 ⇓

in Robertson v Keith (supra). A detective inspector had taken leave during the week of the

Hamilton Park Races, at which he was supposed to have been supervising the detectives.

He could not be traced, but it was suspected that he was in the house of a woman, who was

not his wife. This was the pursuer, who was a well-respected pharmacist in Rutherglen.

She did not co-operate with police enquires. The defender, who was the chief constable,

therefore instructed a watch on her house over a period of three days and nights. The

pursuer averred that the defender’s actions had given rise to rumours adverse to her

character and had created the impression that she was suspected to be a criminal. The

pursuer’s first plea-in-law was, as in the pursuers’ cases, remarkably vague in its reference

to the “wrongful and illegal actings of the defender”, but the second was straightforward

defamation.

[90] The Lord President (Normand) adopted (at 43) the reasoning of his predecessor in

Beaton v Ivory (supra). The Lord Justice Clerk (Aitchison) produced (at 47) a succinct

summary of the law, albeit that it should be remembered that this was at least in part a

defamation case:

“1. An act is prima facie within the competence of the public official doing or

authorising it when it is the kind of act that is within his ordinary duty to discharge.

2. When a public official does an act that is prima facie within his ordinary duty,

there is a presumption that he has acted within his authority.

3. This presumption is not absolute, but may be rebutted by showing that the

act was unrelated to any duty arising on the particular occasion, in which case the act

ceases to be within the authority or competence of the public official and becomes

unlawful.

4. When an act is within the competence, no civil liability arises from the doing

of the act, unless it can be shown that the act was done maliciously and without

probable cause.

5. Want of probable cause and malice are not necessarily unrelated and

independent. The absence of just cause may go to prove malice, and similarly the

presence of oblique or dishonest motive may go to show the absence of probable

cause.

Page 48 ⇓

6. Malice may be inferred from recklessness, and the facts and circumstances

from which it may be inferred need not be extrinsic to the circumstances in which the

act is done or to the manner of doing it.

7. Circumstances may show that an act was done with malice, or without

probable cause, or that it was an act outwith the competence of the person doing or

authorising it. In some cases, according to the angle from which the question is

approached, the same facts may be habile to infer each of these conclusions.

8. The onus probandi is on the pursuer to show that the act complained of is

outwith the competence of the person doing or authorising it, or, if within the

competence, that it was done maliciously and without probable cause.”

Where there is proof of malice and lack of probable cause in relation to the general acts of a

public official, including the Lord Advocate and those for whom he is responsible, the

matter is actionable. In defamation claims, however, there is an exception, whereby, as with

all legal representatives and the judge, there is absolute privilege for things said or done in

court.

[91] For completeness, it is noted that section 170 of the Criminal Procedure (Scotland)

Act 1995 prescribes the regime in summary cases whereby a prosecutor cannot be found

liable in damages “... for or in respect of any proceedings taken, [or] act done ...” unless the

pursuer has suffered imprisonment as a result, the proceedings or act has been quashed and

malice and without probable cause has been averred and proved. The prosecutor escapes

liability if the guilt of the pursuer is proved. There is a two month limitation period. These

provisions apply to Justices of the Peace and clerks of court. Their origins go back at least to

the Justices Protection Act 1803, which applied throughout the United Kingdom to JPs. The

pursuer could not obtain damages greater than two pence unless malice and the absence of

reasonable probable cause was proved. The procurator fiscal was added to the list of

officials by the Summary Procedure Act 1864 (s 30) when the limit was £5. The existence of

this regime is of no material relevance to the question of immunity in solemn cases. It exists

as a matter of policy applicable only in the prosecution of what will inevitably be relatively

Page 49 ⇓

minor offences. Whether parts of it might be challenged on Convention grounds, may be for

another day.

Should Hester v MacDonald (supra) be overruled on public policy/interest grounds

[92] This does not now arise, but, in deference to the submissions made, it is appropriate

to make certain observation on whether, if Hester had not been overruled as wrongly

decided, there were reasons to do so on the basis that its ratio is no longer sustainable.

[93] Some myths should be dispelled in limine. There is no substance in the argument

that there has been a change in the duties performed by the Lord Advocate in modern times.

At the time of the decision in Hester v MacDonald (supra), the Lord Advocate was William

Grant (later Lord Justice Clerk). As such, he was not only the law officer in charge of

criminal prosecution in Scotland, he was also the Unionist Member of Parliament for

Glasgow Woodside. He was responsible for providing the UK Government with advice on,

inter alia, matters of Scots law and practice. He would have had to have divided his time

between Edinburgh, London and his constituency. The proposition that the Lord Advocate

of the early sixties had more of a “hands on” role in relation to the direction of prosecutions

does not have any evidential basis. It is inherently improbable. Indeed, from the averments

in these actions, the Lord Advocate of today, whose responsibilities are largely Edinburgh

based, would have more of a direct role to play.

[94] The Lord Advocate in the Macmillan Government would delegate responsibility for

individual cases to the Advocates Depute, just as the Lord Advocate of today will do.

Equally, he may decide to take a personal interest in a particular case, as the circumstances

dictate. Although there was no doubt a minimum required standard, and the ADs had to be

selected from members of the Faculty of Advocates, the ADs of that era were generally

Page 50 ⇓

appointed at least partly on the basis of political allegiance rather than legal excellence. A

glance through the justiciary reports of the time does not reveal the names of ADs whose

skills and experience obviously trump those in the modern Crown Office. Mistakes are

made today, as they were in the late 1950s and 1960s.

[95] There is little substance in the view that modern society requires a more sceptical

view of the performance of public functions. The idea that those who perform official duties

now are in some way less able than those who did so in the past is, again, hardly borne out

by history. The judges of yesteryear, or at least many of them, had lived through

experiences which would have, in all probability, induced at least a moderate degree of

scepticism in relation to those in official positions. When Lord Keith said, in Hill v Chief

Constable of West Yorkshire [1989] AC 53 (at 63), that, although the police sometimes made

mistakes, it was “... not to be doubted that they apply their best endeavours to the

performance of it ...”, he was not saying that all police officers always use their best

endeavours at all times. His six years of experience in the High Court would have provided

him with a broad view of the capabilities of police officers. Rather, he was expressing what

the law presumed, not what a judge would ultimately find as fact. Lord Steyn, in Brooks v

Commissioner of Police of the Metropolis [2005] 1 WLR 1495 (at para 27) was explaining

developments in the law, in the light of Z v United Kingdom (2001) 34 EHRR 97, which had

stressed the duty on the state (including the police) to take positive action to prevent harm

being caused to the individual. In his reference to scepticism, Lord Steyn is not to be taken

as being critical of Lord Keith, but providing a narrative of why and how the law required to

move on.

[96] On the assumption that Hester v MacDonald (supra) was correctly decided, the law,

since 1961 at least, has been that the Lord Advocate has immunity from suit in relation to the

Page 51 ⇓

conduct of all solemn prosecutions. That immunity would extend to all acts from the

investigative to the trial phases. It would include those for whom the Lord Advocate was

responsible; the ADs and PFDs in solemn procedure. That law has been extant for over half

a century, during which Parliament has not sought to change it. The question then becomes

one of whether the courts (ie the judges) ought to step in and determine that the law is

outmoded, or whether the change proposed ought to be one for the Scottish Parliament,

after due consultation and democratic debate, to enact.

[97] In his dissenting opinion in Shaw v Director of Public Prosecutions (“the Ladies

Directory”) [1962] AC 220, Lord Reid borrowed from Pope’s Essay on Criticism when he

cautioned: “Where Parliament fears to tread it is not for the courts to rush in”. Three years

later, in Myers v Director of Public Prosecutions [1965] AC 1001 he said (at 1021):

“The common law must be developed to meet changing economic conditions and

habits of thought… But there are limits to what [the courts] can or should do. If we

are to extend the law it must be by the development and application of fundamental

principles… And if we do in effect change the law, we ought… only to do that in

cases where our decision will produce some finality or certainty.”

Both passages were cited by Toulson LJ in the Court of Appeal in R (Nicklinson) v Ministry of

Justice [2015] AC 657 (at 683). Toulson LJ also quoted from C (A Minor) v Director of Public

Prosecutions [1996] AC 1, in which Lord Lowry had set out (at 28) some useful ground rules:

“It is hard, when discussing the propriety of judicial law-making, to reason

conclusively from one situation to another … I believe… that one can find in the

authorities some aids to navigation across an uncertainly charted sea. (1) If the

solution is doubtful, the judges should beware of imposing their own remedy.

(2) Caution should prevail if Parliament has rejected opportunities of clearing up a

known difficulty or has legislated, while leaving the difficulty untouched.

(3) Disputed matters of social policy are less suitable areas for judicial intervention

than purely legal problems. (4) Fundamental legal doctrines should not be lightly set

aside. (5) Judges should not make a change unless they can achieve finality and

certainty.”

Page 52 ⇓

The reluctance of courts to legislate in areas of social policy was stressed in the UK Supreme

Court in the subsequent appeal in R (Nicklinson) (eg Lord Sumption at paras 230 – 232, Lord

Reed at para 267).

[98] Using Lord Lowry’s check list, there are arguments for and against intervening in

this area. The issue is one which concerns the scope of the law of reparation. This is an area

in which the law has, since Donoghue v Stevenson 1932 SC (HL) 31, undoubtedly been moved

forward by the courts rather than Parliament (see Thomson v Scottish Ministers 2013 SC 628,

LJC (Carloway), delivering the opinion of the court, at paras [45] et seq) . Parliament has not

tended to intervene in this general area and it has not done so in this particular sphere. It

may be reluctant to do so in the absence of political pressure. Change in the scope of

reparation is not usually thought of as creating social policy, but as developing the law to

meet modern expectations. Whether that is correct or not (cf Micosta v Shetland Islands

Council 1986 SLT 193, Lord Ross approving Walker: Delict (2nd ed) at 9), finding a

fundamental principle to be developed and applied is the appropriate way forward from the

perspective of Scots law (cf the incremental approach in Custom & Excise Commissioners v

Barclays Bank [2007] 1 AC 181, Lord Bingham at para 4).

[99] The fundamental principle is that, for every right, there must be a remedy (Bankton:

Institute iv, xxiii, 18; cited recently in Wightman v Secretary of State for Exiting the European

Union 2019 SC 111, LP (Carloway) at para 21). As a broad generalisation, everyone has a

right at common law to his or her liberty, property and reputation. There ought to be a

remedy if these rights are wrongfully interfered with. Malicious prosecution and

defamation are examples of such interference. There must be a mechanism whereby the

interference is remedied by an award of damages for any resultant loss, injury and damage.

If there is to be some limitation on that remedy, it must be justified on public policy/interest

Page 53 ⇓

grounds (Darker v Chief Constable of West Midlands [2001] 1 AC 435, Lord Hope at 446). That

is not to say that the limitation requires to be justified in every individual case. Normally,

reliance can be placed on the original, or a subsequent, justification as endorsed by the

superior courts in previous cases. There will nevertheless occasionally be circumstances in

which the courts will be satisfied that the time has come for a review (Jones v Kaney [2011] 2

AC 398, Lord Dyson at paras 112-114).

[100] In this case, the justification for what has been described as an immunity from suit is

the proper administration of justice. The concerns of the Lord Advocate mirror, to a large

extent, those proffered in Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225.

The first is to avoid defensive decision making; to ensure that prosecutors continue to act

independently and robustly. The Lord Advocate accepted that there was no material which

showed that a prohibition on malicious conduct would have any “chilling effect” on the

manner in which those delegated with the Lord Advocate’s powers carried out their

prosecutorial functions. It is not normally conducive to careful decision making for there to

be a complete immunity from suit in relation to malicious acts which have been taken

without probable cause (see Nelles v The Attorney General of Ontario [1989] 2 SCR 170, Lamer J

at 195). The existence of a right of action is highly unlikely to deter robust and independent

decision making. Neither requires malice or the lack of a proper basis.

[101] The second ground is that there may be a diversion of resources. There could be

some increase in malicious prosecution cases following upon failed prosecutions. There are

probably almost no such cases now, other than those relating to the Rangers’ winding up.

Given the strictness of the test to aver and prove malice and want of probable cause, such

actions ought to remain very few and far between (Nelles v The Attorney General for Ontario

(supra) at 197). The sanction of an award of expenses and the availability of the requirement

Page 54 ⇓

to provide caution for expenses during a civil process is likely to deter the raising and

pursuit of unmeritorious cases. The fact that a flood of actions is unlikely to occur appears

to be the lesson learned from the many jurisdictions, both in Europe and in the

Commonwealth, in which no, or a very limited, immunity exists. The resource implications

ought to be minimal relative to the overall COPFS budget.

[102] The third area of concern relates to whether it is necessary for the better performance

of the prosecution of crime that the immunity should be retained. This is a value judgment,

but there is little reason to suppose that a prohibition on malicious acts would diminish

prosecutorial endeavour. The fourth relates to the impact of the Human Rights Act 1998 (ie

the incorporation of the European Convention into domestic law) on the common law of

reparation. For reasons which will be explored in part in relation to Article 8 (infra) that

impact is likely to be relatively minimal. The class of civil cases involving the Convention is

a small one. As was pointed out in Van Colle v Chief Constable of the Hertfortshire Police (supra,

Lord Brown at para 138):

”Convention claims have very different objectives from civil actions. Where civil

actions are designed essentially to compensate claimants for their losses, Convention

claims are intended rather to uphold minimum human rights standards and to

vindicate those rights.”

In short, the common law of reparation ought to remain relatively unscathed, although it

may, no doubt, be influenced by the strengthening of individual human rights under the

Convention. In the modern era, the pursuer in Beaton v Ivory (supra) might at least have

expected to have had some form of redress under Article 5, if not 8 (infra).

[103] On the fifth ground, that of deterrence, it is reasonable to suppose that an individual

AD or PFD would be more likely to be concerned about the soundness of his acts in terms of

his or her susceptibility to disciplinary measures, notably the loss of employment, rather

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than the remote and distant prospect of an action of reparation against the Lord Advocate,

which would be unlikely to have any direct consequences on him or her outwith that

disciplinary context. Finally, the sixth point, relative to need to defer to the democratic

process of Parliament, has already been covered in the comparison (supra) of the

appropriateness of Parliamentary legislation with that of court innovation in the area of the

development of reparation in contemporary society.

[104] As is said in Fleming: The Law of Torts (10th ed at para 27.10), albeit in the context of

the English common law:

“The tort of malicious prosecution is dominated by the problem of balancing two

countervailing interests of high social importance: safeguarding the individual from

being harassed by unjustifiable litigation and encouraging citizens to aid in law

enforcement.”

The balance in Europe has fallen in favour of a right of action tempered, in some countries,

by a need to prove gross negligence. This is not entirely inconsistent with the approach

taken by Roman law, adjusted to meet modern societal problems and expectations. The

availability of the remedy in South African law is consistent with the continental approach.

[105] Coming from different origins, the law in England & Wales allows claims for

malicious prosecution, even if the principles which are now applied stem from the era of

private prosecution. The idea that blanket immunity is not “respectable jurisprudence”

(Bennet v Commissioner of Police for the Metropolis (1998) 10 Admin LR 245 at 254) is an

attractive one.

[106] Canada and Australia, in large part, demonstrate how matters should be analysed in

modern society. Although stemming from English law roots, it is difficult to fault the

truncated “necessary elements” (cf LJC (Aitchison) in Robertson v Keith (supra)) identified by

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Lamer J in Nelles v The Attorney General for Ontario (supra, at 193, citing Fleming (supra, 5th ed

1977 at 598), viz. that:

“a) the proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause;

d) malice, or a primary purpose other than that of carrying the law into effect.”

On a practical level, as Lamer J describes matters (at 194),:

“…a plaintiff bringing a claim for malicious prosecution has no easy task. Not only

does the plaintiff have the notoriously difficult task of establishing a negative, that is

the absence of reasonable and probable cause, but he is held to a very high standard

of proof …”.

[107] The formidable, but by no means unsurmountable, problems facing a pursuer were

highlighted in Miazga v Kvello (Succession) [2009] 3 RCS 339 in which Charron J was at pains

to express (at 378) the narrow scope of the liability in explaining that:

“…[E]ven if the plaintiff should succeed in proving that the prosecutor did not have

a subjective belief in the existence of reasonable and probable cause, this does not

suffice to prove malice, as the prosecutor’s failure to fulfil his or her proper role may

be the result of inexperience, incompetence, negligence or even gross negligence,

none of which is actionable… Malice requires a plaintiff to prove that the prosecutor

wilfully perverted or abused the office of the Attorney General or the process of

criminal justice…

… the malice element of the tort… ensures that liability will not be imposed in cases

where a prosecutor proceeds, [in the absence of] reasonable and probable grounds,

by reason of incompetence, inexperience, poor judgment, lack of professionalism,

laziness, recklessness, honest mistake, negligence or even gross negligence ”.

[108] Similar views were expressed by the majority (Gleeson CJ et al) in A v NSW

[2007] 233 ALR 584 in relation to the difficulties in proving the absence of probable cause, viz. (at

para [38]):

“…[J]ustice requires that the prosecutor, the person who effectively sets criminal

proceedings in motion, accept the form of responsibility, or accountability, imposed

by the tort of malicious prosecution. In so far as one element of the tort concerns

reasonable and probable cause, the question is not abstract or purely objective. The

Page 57 ⇓

question is whether the prosecutor had reasonable and probable cause to do what he

did; not whether, regardless of the prosecutor’s knowledge or belief, there was

reasonable and probable cause for a charge to be laid. The question involves both an

objective and a subjective aspect”.

[109] The position in the United States of America differs from that in the rest of the

western world. The following dictum of Learned Hand CJ in Gregoire v Biddle (1949) 177 F.2d

579 has been influential and is in tune with the thinking in MacDonald v Hester (supra):

“... [I]t does indeed go without saying that an official, who is in fact guilty of using

his powers to vent his spleen upon others, or for any other personal motive not

connected with the public good, should not escape liability for the injuries he may so

cause; and, if it were possible in practice to confine such complaints to the guilty, it

would be monstrous to deny recovery. The justification for doing so is that it is

impossible to know whether the claim is well founded until the case has been tried,

and that to submit all officials, the innocent as well as the guilty, to the burden of a

trial and to the inevitable danger of its outcome, would dampen the ardour of all but

the most resolute, or the most irresponsible, in the unflinching discharge of their

duties ... There must indeed be means of punishing public officers who have been

truant to their duties; but that is quite another matter from exposing such as have

been honestly mistaken to suit by anyone who has suffered from their errors. As is

so often the case, the answer must be found in a balance between the evils inevitable

in either alternative. In this instance it has been thought in the end better to leave

unredressed the wrongs done by dishonest officers than to subject those who try to

do their duty to the constant dread of retaliation. Judges as res nova, we should not

hesitate to follow the path laid down in the books.”

[110] Although there is force in these observations, the regimes in England, Europe and

the Commonwealth have demonstrated that it is possible at least to confine the outcomes of

any action to “the guilty”; that is those who are proved to have acted malicious and without

probable cause and to limit actions to those in which there are specific averments from

which it can be inferred that both of those criteria can be established. The balance, especially

in regimes in which expenses may be awarded and caution required, favours redressing the

wrongs of dishonest officials, even if there may be rare cases in which unfounded actions are

sought to be pursued.

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[111] Gregoire v Biddle (supra) was in turn highly influential in Imbler v Pachtman (1976) 424

US 409. The plaintiff had sought damages for the loss of his liberty caused by unlawful

prosecution. The specific issue under consideration was the import of section 1983 of Title

42 of the United States Code (originally the Civil Rights Act 1871, s 1) which provided, in

very broad terms, that everyone who caused anyone to be subjected to the deprivation of

Constitutional rights would “be liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress”. No immunities were prescribed. The US Supreme

Court determined that the same considerations of public policy, which underlay the

common law rule of prosecutorial immunity from a malicious prosecution suit applied

equally to a claim brought under section 1983. The reasoning was explained by Powell J,

delivering the judgment of the court (at 424):

“If a prosecutor had only a qualified immunity, the threat of § 1983 suits would

undermine performance of his duties no less than would the threat of common-law

suits for malicious prosecution. A prosecutor is duty bound to exercise his best

judgment both in deciding which suits to bring and in conducting them in court. The

public trust of the prosecutor’s office would suffer if he were constrained in making

every decision by the consequences in terms of his own potential liability in a suit for

damages. Such suits could be expected with some frequency, for a defendant often

will transform his resentment at being prosecuted into the ascription of improper

and malicious actions to the State’s advocate ... Further, if the prosecutor could be

made to answer in court each time such a person charged him with wrongdoing, his

energy and attention would be diverted from the pressing duty of enforcing the

criminal law.

Moreover, suits that survived the pleadings would pose substantial danger of

liability even to the honest prosecutor. The prosecutor’s possible knowledge of a

witness’ falsehoods, the materiality of evidence not revealed to the defense, the

propriety of a closing argument, and – ultimately in every case – the likelihood that

prosecutorial misconduct so infected a trial as to deny due process, are typical of

issues with which judges struggle in actions for post-trial relief, sometimes to

differing conclusions. The presentation of such issues in § 1983 action often would

require a virtual retrial of the criminal offense in a new forum, and the resolution of

some technical issues by the lay jury. It is fair to say, we think, that the honest

prosecutor would face greater difficulty in meeting the standards of qualified

immunity than other executive or administrative officials.

...

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We conclude that the considerations outlined above dictate the same absolute

immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this

immunity does leave the genuinely wronged defendant without civil redress against

a prosecutor whose malicious or dishonest action deprives him of liberty. But the

alternative of qualifying a prosecutor’s immunity would disserve the broader public

interest. It would prevent the vigorous and fearless performance of the prosecutor’s

duty that is essential to the proper functioning of the criminal justice system.”

[112] It may well be that these are sound arguments in the context of the legal system of

the United States, where the expenses regime and the nature of damages litigation are

markedly different from those in the United Kingdom, Europe and the Commonwealth. For

the reasons already given, there is no substantial reason to suppose that the existence of a

qualified immunity would undermine prosecutorial performance. Public trust in the

prosecutorial system is likely to be strengthened by the availability of a malicious

prosecution suit, even one of the limited nature under contemplation. It is not anticipated

that there would be a “frequency” of suits. The court in Imbler v Pachtman (supra) had in

mind the effect of liability on the conduct of the trial itself. That is not something which is

focused in the pursuers’ cases; no doubt because of the absence of any trial. The absolute

privilege from defamation suit in these circumstances would continue to provide the

appropriate protection.

[113] If Hester v MacDonald (supra) had been determined to have been correctly decided, it

would have been overruled on the basis that public policy no longer supported its continued

application. In short, the court would have decided that it would do what it could “to sort ...

out” the undesirable consequences of Hester (see Crawford Adjusters v Sagicor Insurance

[2014] AC 366, Lady Hale at para 84).

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Article 8

[114] In the context of the sums sued for in these actions, it is difficult to see what practical

value is added by the Article 8 cases. The damages which might be available purely for a

breach of Article 8 will pale into insignificance when compared with those available in the

event of a successful action for malicious prosecution.

[115] Article 8 provides for a right to respect for, inter alia, a person’s private life. Even

without having regard to the specific exceptions in Article 8.2, it does not create an absolute

prohibition on the state from interfering with a person’s private life. The prosecution of a

person for a crime, which he or she is reasonably suspected of having committed, does not

show any disrespect for his or her private life. A malicious prosecution which is conducted

without probable cause undoubtedly does.

[116] These general propositions are consistent with the jurisprudence of the European

Court of Human Rights as explained recently in Denisov v Ukraine, (App No 76639/11),

unreported, 25 September 2018. Mr Denisov had been removed from his office as president

of the Kiev Administrative Court of Appeal by the High Council of Justice. The European

Court made some preliminary observations on how Article 8 dovetailed with disciplinary

proceedings of this nature as follows:

“92. ... In the assessment of whether or not a private-life issue under Article 8 of

the Convention is raised in such a case, there is a strong tie between the questions of

applicability and the merits. Once a measure is found to have seriously affected the

applicant’s private life, that conclusion means that the complaint is compatible

ratione materiae [according to the nature of the matter] with the Convention and, at

the same time, that the measure constituted an ‘interference’ with the ‘right to

respect for private life’ for the purpose of the three-limb merits test under Article 8

(assessment of the lawfulness, the legitimate aim and the necessity of such

‘interference’). Therefore, the questions of applicability and the existence of

‘interference’ are inextricably linked in these categories of complaints.”

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Whether there is an interference will thus depend on the nature of the proceedings which

are complained of; in particular whether they were objectively justifiable.

[117] In Denisov v Ukraine (supra), the European Court explained (at para 97) that “private

life” encompassed a person’s reputation, before continuing:

“98. However, it is important to stress that Article 8 cannot be relied on in order to

complain of a loss of reputation which is the foreseeable consequences of one’s own

actions, such as, for example, the commission of a criminal offence ... In Gillberg [v

Sweden (2012) BHRC 247] the Grand Chamber did not limit this rule to reputational

damage and expanded it to a wider principle that any personal, social, psychological

and economic suffering could be foreseeable consequences of the commission of a

criminal offence and could not therefore be relied on in order to complain that a

criminal conviction in itself amounted to an interference with the right of respect for

‘private life’ (ibid, § 68).”

This means that, if a person has committed a criminal offence, he or she cannot complain

about being prosecuted and convicted; at least while that conviction remains extant.

[118] Denisov v Ukraine (supra) continued (at para 102) by narrating that the concept of

private life could be approached on two different bases. The first is the “reason-based”

approach, in which the state measure is itself based on reasons which encroach upon an

individual’s freedom of choice in his or her private life (ibid para 103). The prosecution of

the pursuers for what is a Convention compliant criminal offence is not engaged on this

approach. The second is the “consequence-based” approach, in which the reasons for the

measure are not linked to the individual’s private life, but the measure has “serious negative

effects” on his or her reputation (ibid para 107). It is relatively clear that the prosecution of

the pursuers did have such effects. On that basis, Article 8 is potentially engaged. Although

the matter may be regarded as somewhat circular, whether it is engaged depends upon

whether the Lord Advocate’s acts were, using loose terminology for the present, justified.

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[119] In Jishkariani v Georgia, (2018) ECHR 740, the applicant was a psychiatrist. She was a

director of a rehabilitation centre for the victims of torture. The centre had carried out some

work for the Ministry of Justice at a Tbilisi prison. On a private television channel, the

Minister of Justice had made a defamatory statement of criminal corruption on the part of

the applicant within the ministry and its medical department. The applicant’s domestic

defamation case had failed on the basis that the Minister had been exercising his right of

freedom of expression in a matter of public interest. The applicant complained of a breach

of Article 8 on the ground that the Minister had made the statements without any factual

basis.

[120] The European Court reasoned (at para 43) that the main issue was whether the state

had achieved a fair balance between an individual’s right to protection of his or her

reputation and the other party’s right to freedom of expression. In judging that matter, the

question of whether there was a factual basis to support the allegation fell to be considered.

In finding that Article 8 had been breached, the European Court reiterated:

“62. ... that the Convention cannot be interpreted to require individuals to tolerate,

in the context of their rights under Article 8 of the Convention, being publicly

accused of criminal acts by Government officials who are expected by the public to

possess verified information concerning those accusations, without such statements

being supported by facts (see ... [Einarsson v Iceland (2018) 67 EHRR 6] § 52).”

This supports the circularity whereby Article 8 may be breached if the reputational damage

has been caused by a statement which has no factual basis, but not if there was “probable

cause” to make it. This is essentially what was determined in Cemalettin v Turkey (App

No 22427/04), unreported, 18 February 2009, in which a forwarded inaccurate police report

had constituted the interference.

[121] Prior to SXH v Crown Prosecution Service [2017] 1 WLR 1401, there was some debate

about where the mounting of a prosecution could, of itself, engage Article 8 and thus,

Page 63 ⇓

subject to the exceptions in Article 8.2, interfere with it. In R v G [2009] 1 AC 92 it had been

contended that a decision to charge an offence which involved rape, as distinct from one of

unlawful intercourse, was disproportionate and per se an interference. Views differed; with

Lord Hoffman and Lady Hale holding that Article 8 was not engaged, whereas Lords Hope,

Carswell and Mance reached the opposite view. The claim failed because Lady Hale and

Lord Mance considered that the exception in Article 8.2 applied. R v G (supra) was followed

by R (E) v Director of Public Prosecutions [2012] 1 Cr App R 6 in which there was a challenge

to a decision to prosecute a person who had been 12 years old at the time of serious sexual

offences against her very young sisters. Munby LJ did not consider that Article 8 was

engaged by a prosecutorial decision.

[122] In SXH v Crown Prosecution Service (supra), the question asked by the court (Lord

Toulson at para 1) was whether a decision to prosecute infringed Article 8 in circumstances

in which it had been conceded that the prosecutor had reasonable cause to believe that the

individual had been guilty of the offence. Lord Toulson observed:

“32. By commencing a criminal prosecution the CPS places the matter before a

court. ... There is a striking absence of any reported case in which it has been held

that the institution of criminal proceedings for a matter which is properly the subject

of the criminal law may be open to challenge on article 8 grounds (as Munby LJ

observed in R (E) v Director of Public Prosecutions [2012] 1 Cr App R 6, paras 72-75). It

would be illogical; for if the matter is properly the subject of the criminal law, it is a

matter for the processes of the criminal law. ... If the criminalisation does not

amount to an unjustifiable interference with respect for an activity protected by

article 8, no more does a decision to prosecute for that conduct. The consequences

will be matters for the determination of the court ...”.

This is consistent with the idea that, at least if there is a sound reason to prosecute, Article 8

can neither be engaged nor infringed.

[123] Lord Toulson continued:

“36. However, if article 8 was applicable, I agree also that there was no breach.

...Indeed, even if the original decision to prosecute was an error of judgment by the

Page 64 ⇓

CPS, it would not ... have involved a breach of article 8. It would be a different thing

if the state deliberately trumped up false charges against someone as a form of

harassment. In terms of domestic law, that would involve the torts of malicious

prosecution or misfeasance in public office or both, to which article 8 would add

nothing; ...”

Although the matter may not be entirely clear, given the qualification that what was being

said was on the basis, which he had rejected, of Article 8 being applicable, Lord Toulson

appears to be contemplating that Article 8 could be engaged and infringed in the event that

the state had prosecuted the individual on “trumped up false charges”. That would be

consistent with the European jurisprudence (supra). It is what the pursuers are, at least in

part, alleging. On that basis, although, as Lord Toulson suggested, Article 8 may add

nothing to a malicious prosecution suit, the claim is nevertheless relevant to proceed to

enquiry.

Conclusion

[124] Since Hester v MacDonald (supra) is overruled, the interlocutors of the Lord Ordinary

dated 16 November 2018 must be recalled in so far as they reject the common law cases. In

Mr Clark’s action, the pursuer’s first and fourth pleas-in-law require to remain standing in

their entirety. The Lord Advocate’s third and fourth pleas-in-law fall to be repelled; the

Lord Ordinary having correctly repelled the Lord Advocate’s fifth and sixth pleas-in-law. In

Mr Whitehouse’s action, the pursuer’s (vague) sixth plea-in-law requires to remain standing

as does his tenth plea. The Lord Advocate’s third and fourth pleas-in-law fall to be repelled;

the Lord Ordinary having correctly repelled his fifth and sixth pleas. Quoad ultra in relation

to these parties there will be a proof before answer.

Page 65 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Justice Clerk

Lady Paton

Lord Menzies

Lord Brodie

[2019] CSIH 52

A293/16 and A295/16

OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK

in the Reclaiming Motions

in the causes

(FIRST) DAVID JOHN WHITEHOUSE; and (SECOND) PAUL JOHN CLARK

Pursuers and Reclaimers

against

(FIRST) THE CHIEF CONSTABLE, Police Scotland; and

(SECOND) THE LORD ADVOCATE

Defenders and Respondents

First Pursuer: Dunlop QC, McKinlay; Urquharts (for Livingstone Brown, Glasgow)

Second Pursuer: Fairley QC, McNaughtan; Kennedys Scotland (for Beltrami & Co, Glasgow)

First Defender: no appearance

Second Defender: Moynihan QC, DB Ross QC, Charteris; Scottish Government Legal Directorate

30 October 2019

Introduction

[125] It is not disputed that the wrong of malicious prosecution is recognised by the law of

Scotland. It is attested by numerous authorities examined below. The key issue is whether

the Lord Advocate, by virtue of his constitutional role in the suppression and prosecution of

Page 66 ⇓

crime, is immune from a suit based on such grounds of action. To answer that question we

require to examine the historical basis upon which the argument is advanced.

[126] Sir George Mackenzie (The Laws and Customs of Scotland in Matters Criminal,

Title 19, “Of accusations and accusers”, cap 8) notes that the civil law appointed two

remedies to the end that persons may not be unjustly pursued in criminal matters. These

were that the pursuer in the criminal libel should find caution for proceeding and could

himself be pursued as calumniator if his pursuit were found to be malicious. The King’s

advocate was not required to find caution, “for in him there is no presumption of calumny”

(although it appears that it became usual for the King’s Advocate to require caution of his

informant). This does not appear to be a basis for asserting that should the Lord Advocate

have been found to have acted calumniously he could not be pursued in damages for

malicious prosecution. In fact, Mackenzie goes on to state that according to the civil law

whilst the procurator was not to be presumed calumnious, yet if he calumniously did incite

proceedings he was liable for the losses so caused, as well as for the penalty of burning alive.

The authority which he gives for this is the Code of Justinian, Book 3, Title 26, cap 9.

Examination of the Code in translation, in several examples, does not in fact provide a basis

for the former, so the root of Mackenzie’s understanding must have lain elsewhere. In an

article in the South African Law Journal “Malicious Prosecution in Roman Dutch Law”

(29 S African LJ 22 (1912)) Robert W Lee, later Professor of Roman Law at McGill University,

writer on the topic. At the time of the article he held the part time chair in Roman Dutch law

at the University of London. In 1921 he became the Rhodes Professor of Roman Dutch law

at the University of Oxford. In the article in question he concludes that, at the time of Ulpian

at least, the civil law provided that the actio iniuriarum lay at the instance of one acquitted of

a criminal charge maliciously preferred against him, although no action would lie if the

Page 67 ⇓

action had not been vexatious or if the individual had been found guilty. The latter would

of course imply probable cause. It may be presumed that Mackenzie’s conclusion rested on

a similar basis.

[127] Examination of subsequent writings equally does not seem to present a basis for the

assertion that the Lord Advocate is immune from a suit for malicious prosecution.

[128] Hume (Commentaries on Crimes, Volume ii, 134) repeats that the Lord Advocate finds

no caution for reporting or insisting on criminal letters; nor is called upon to take the oath of

calumny; nor, in the case of a verdict of acquittal, is he liable in the statutory penalties as a

rash or calumnious accuser. The latter is, presumably, a reference to the Act of 1579 which

applied where criminal proceedings had been pursued out of malice; and where the

individual was acquitted. (The combination of malice and acquittal, with the reference to

slander, may together be taken to indicate that the prosecution lacked probable cause.) The

Act provided for payment of a penalty, to be divided between the King and the accused. It

is perhaps noteworthy that prosecutions at the hand of the Lord Advocate were not

excluded entirely from the scope of the 1579 Act. Where the claim was that such a

prosecution had a malicious basis, and was without probable cause, the informant was liable

for the penalties which may be extracted under the Act, and it seems clear from the

authorities as a whole, (see, for example, Hume, ii, 135; Burnett, 313) that in the public

interest, the Lord Advocate was bound to provide the details of the informant if called upon

to do so. It is not surprising that the Lord Advocate should not be held liable for a criminal

penalty in these circumstances but that the responsibility for this should be placed upon his

informant. However, that provision of this kind was made in respect of criminal penalty

does not logically lead to the conclusion that the Lord Advocate is immune from suit for a

prosecution instigated by him maliciously and without probable cause.

Page 68 ⇓

[129] The real source for the assertion that this is so appears to come from Hume’s footnote

(ii, 134, footnote 1) that “as far as I have observed, there is no instance of an award of

expenses to a pannel, on his acquittal, in a prosecution at the Lord Advocate’s instance”.

The conclusion drawn from this is that the constitutional trust reposed in the high office in

question, vouched by the calibre of men from whom the office is appointed, meant that “it

will not be supposed of him that he will be actuated by unworthy motives such as ought

properly to make him liable in that sort of amends”. This is clearly a sound basis for

refraining from asking the Lord Advocate to take an oath of calumny, but it does not appear

to be a sound basis for saying that, if found in fact to have acted from impure motives and

without foundation he cannot be held answerable for the same. The general heading under

which Hume discusses the issue is “Of prosecutors and their title” and it would seem a

considerable stretch to infer from this footnote that the Lord Advocate has complete

immunity from suit, even when acting maliciously and without probable cause.

[130] Burnett in “A treatise on the Various Branches of the Criminal Law of Scotland”, p 313

states that:

“It necessarily follows from the powers entrusted to his Majesty’s advocate, that he

must be exempted from those restraints which are wisely imposed on private

prosecutors”

Hence he is not obliged to find caution, give the oath of calumny, or pay expenses or

penalties on failing in the prosecution. Even on the question of expenses, “failing in the

prosecution” does not imply either malice or want of probable cause. This again does not

appear to provide a basis for asserting complete immunity from suit.

[131] Alison, “Principles and Practice of the Criminal Law of Scotland”, vol ii, p84, draws

heavily on Hume in treating of this matter. He cites the “high confidence” reposed in the

Lord Advocate as requiring that neither he nor his deputes can be called upon to give an

Page 69 ⇓

oath of calumny or to find caution or be subjected to expenses or penalties in the event of an

acquittal. He describes this as “an absolute exemption from penalties and expenses”,

applicable only to the Lord Advocate and his deputies and not to the procurators-fiscal,

being “selected in general from a subordinate class of men” who are “not to be presumed in

every case to be … exempt from improper motives”. To adopt as a starting point the

assumption that the Lord Advocate will not be motivated by base motives seems

unexceptional: to conclude however that where proof of malice and want of probable cause

may be established he is exempt from suit does not seem justified, nor can it truly be said to

be necessary for the discharge of the office of Lord Advocate, a point which I will address

subsequently.

[132] Alison notes (p84) that in the case of private individuals, prosecutions are sometimes

begun in anger, are frequently abandoned for inconstancy, caprice, or the load of expenses

attendant upon the prosecution. As he explains (p113)

“Such is the force of private interest, both in blinding the understanding and exciting

the passions, that if private persons, who either have been, or conceive themselves to

have been injured, were allowed to prosecute without any restriction or

responsibility, trials or commitments would become the means of wreaking

individual vengeance, and the tribunals of public justice be converted into the

instruments of private malignity.”

The utility of placing prosecutions in the hands of the Lord Advocate as the public

prosecutor acted as a guard against these dangers, and prevented individuals being

detained without the existence of such evidence as affords a reasonable prospect of

conviction. Notwithstanding that in the inferior courts prosecution was usually in the hands

of a procurator fiscal, the Lord Advocate was entitled to proceed there in his own person or

at the hand of one of his deputies.

Page 70 ⇓

[133] An important purpose of the vesting of such extensive powers in the Lord Advocate,

and of restricting private prosecutions, appears thus to have been to provide protection

against capricious, unfounded or unjust prosecutions. It is not obvious that the presumption

that the Lord Advocate acts without malignity should be an irrefutable one, given the

purpose of guarding against capricious prosecutions. Of itself, it is not obvious that it

should rule out an action against him if he could be shown to have acted maliciously and

without probable cause. In fact, one might consider that the opposite should be the case.

[134] Remaining, for the moment, with writings concerning the criminal law, the first

edition of Renton & Brown “Criminal Procedure According to the Law of Scotland” (1909)

addresses only the statutory provisions regarding summary prosecution and does not deal

at all with the position of the Lord Advocate. The assertion in the 2nd edition, 1928, p297, is

that the Lord Advocate enjoys “an absolute privilege”, by which it appears is meant

immunity from suit, since the comparison is made with inferior prosecutors “who may incur

liability if they act from malice and without probable cause”. The assertion here made rests

on Alison, ii, 92 and adds nothing to the debate. The 3rd edition, making the same

assertions, p450, cites Henderson v Robertson and McMurchy v Campbell.

[135] Henderson v Robertson was a case in which the only issue was whether a document in

the form of any information provided to the Lord Advocate by one asserting perjury of

another could be made the subject of an order for recovery of documents. The court had

little difficulty in concluding that it could, there being sufficient authority to justify that

conclusion. Accordingly, any observations as to the immunity or privilege of the Lord

Advocate against suit were not relevant and were obiter. The Lord Justice Clerk states that

the “public prosecutor has by law great and utmost protection”, adding “As against the

Lord Advocate, I do not think that a case of liability to damages could even be stated. The

Page 71 ⇓

inferior officers of the Crown—the Procurators-fiscal—are also entitled to the most large and

comprehensive protection;”. No authority was cited for these obiter pronouncements, and

the other judges made no comment on the issue, confining themselves to the point in

question.

[136] McMurchy v Campbell concerned an allegation that a defamatory statement had been

made in a report by a police Inspector to a superior officer in respect of a matter about which

the Inspector had a duty to communicate. The fiscal was called as a second defender,

seemingly on the basis that he had been a party to submitting the report. This being a

defamation case, the issue of privilege was a live and relevant one, and indeed the court

considered the report to be a privileged document requiring detailed averments of malice

before any action could proceed. Again, the liability or otherwise of the Lord Advocate in

damages for malicious prosecution was not an issue in the case, and that of the fiscal only

peripherally relevant. The Lord Justice Clerk therefore did not touch on that issue. Lord

Young however, having alluded to a case in which the absolute privilege of judges in court

proceedings had been determined, went on to refer to the role of public prosecutors, saying:

“Again, with respect to public prosecutors, I do not know that the law stands on any

decision, but rather on generally received opinion. For example, no action will lie

against the Lord Advocate for averments made by him in the discharge of his duty,

even though they are said to be malicious. The public interest will not allow such

actions.”

These observations were obiter and were not based on any authority. Furthermore, they

appear more apposite to address the question of the privilege which may attach to

statements or observations made in court by the Lord Advocate rather than to the question

of immunity from suit for malicious prosecution. I am strengthened in that opinion from

reading the opinion of your Lordship in the chair, with which I am in agreement. Your

Lordship’s observations illustrate that in many cases there has been a confusion between

Page 72 ⇓

these two issues. As your Lordship notes the wrongs of defamation and malicious

prosecution are different, and have been given separate treatment in both Glegg and Walker,

a separation which is not really acknowledged in the criminal treatises touching on the

matter. The fact that it may be necessary in the public interest that the Lord Advocate, and

others, should have absolute privilege against a suit for defamation does not lead to a

concomitant conclusion that there must also exist an absolute immunity from suit for

malicious prosecution.

[137] Before turning to examine Hester v McDonald it may be helpful to consider how the

matter stood in civil text books or writings up to the time of that decision. These appear to

be consistent with the passages in Hume’s Lectures to which your Lordship has made

reference. Green’s Encyclopaedia of the Laws of Scotland, 1898 edition, vol 10 contains a

chapter on malicious prosecution, the author of which was A T Glegg. This confirms that

the crime of malicious prosecution lies in instituting maliciously and without probable cause

criminal proceedings against a person for a crime he has not committed. The article states

that “the person sought to be held liable may either be a private individual who gives

information to a person in authority, or the person in authority who takes the proceedings

complained of”. In the case of a public prosecutor, malice and want of probable cause must

be specifically averred and put in issue. The article does not suggest that the Lord Advocate

is not answerable in damages in such a case.

[138] The 1931 edition of the Encyclopaedia (Vol X11) article on malicious prosecution is

largely in similar terms, being an edited version of Glegg’s original.

[139] Glegg on Reparation, 4th edition 1955, and thus the edition which would have been

current at the time of Hester does not appear to vouch the proposition which was stated in

that case. The requirements of the wrong of malicious prosecution are identified as bringing

Page 73 ⇓

proceedings maliciously and without probable cause against a person for a crime which he

has not committed, it generally being a condition precedent that the prosecution has failed

or the conviction been reduced. The fact of conviction would of course be seen as negating

want of probable cause.

[140] An action against the procurator fiscal or other public prosecutor required specific

averments of malice and want of probable cause to put these points in issue. It is noted that:

“It is in the public interest that liability in damages is thus limited in order that the

prosecutor may have a free hand in dealing with crime, knowing that while he acts

in the discharge of his duty and not from improper motive, he is not responsible.

The privilege of criminal officials is simply the application of the principle which

gives protection to all public bodies and officers in the discharge of their duty.”

[141] There does not seem to be a proper basis in principle for exempting the Lord

Advocate from this general principle. This point is also made by your Lordship in the chair

[paras 86 -89] under reference to Beaton v Ivory and Robertson v Keith. As senior counsel for

the second pursuer noted, the passage in Glegg echoes the passage in Bell’s Principles, 10th

edition, 1899, 20-40, dealing with wrongous imprisonment at common law, that:

“The mere failure of an accusation will not infer damages against the accuser, if the

circumstances justify his suspicion. ‘And a procurator-fiscal or public prosecutor

cannot be made liable in damages without averment and proof of malice and want of

probable cause, the facts being averred from which malice is to be inferred, or at least

of gross and culpable irregularity in procedure’”.

[142] The more recent primary text book available at the time of Hester would have been

Walker: Damages (1955) which defines the wrong of malicious prosecution in the same way

as Glegg. The author states that in an action against “a public prosecutor or a person

similarly placed” there must also be averments of malice and want of probable cause, which

points must be put in issue, but there is again no exemption suggested for the Lord

Advocate.

Page 74 ⇓

Hester v McDonald

[143] The opinion of the Lord President in Hester commences by considering the role of the

Lord Advocate in the prosecution of crime, where he has a universal and exclusive title to

prosecute on indictment, these being matters exclusively for him and exclusively within his

province. He relies on the passages from Hume and Alison quoted above, based on Hume’s

footnote, and the passage from the 3rd edition of Renton & Brown, to state that “the Lord

Advocate is protected by an absolute privilege in respect of matters in connexion with

proceedings brought before a Scottish Criminal Court by way of indictment”. This is then

expressed as creating an immunity from suit: “Never in our history has a Lord Advocate

been sued for damages in connexion with such proceedings. On the contrary, our Courts

have consistently affirmed the existence of such immunity on his part.” The authority cited

for these assertions are Henderson v Robertson and McMurchy v Campbell neither of which, as

noted, appear to be authorities for such a proposition. The Lord President then compares

the position of the procurator fiscal, where there are statutory provisions as to the extent of

liability with that of the Lord Advocate where no such provisions have ever been enacted on

the basis that “in connexion with proceedings by indictment, our law does not recognise any

right to damages against the Lord Advocate or against those acting on his instructions”. It is

difficult, in light of the authorities examined, to see this as other than assertion.

[144] Lord Carmont’s opinion was based entirely on the assertion that “the Lord Advocate

and his subordinates are absolutely immune from attack in our Courts in actions of

reparation by parties alleging injury done them through the exercise of the Lord Advocate’s

functions as prosecutor in respect of alleged crimes”, citing no authority for this proposition.

[145] Lord Guthrie appears to rely almost entirely on Hume’s note commenting that:

Page 75 ⇓

“This statement by an institutional writer infers, in my opinion, that the Lord

Advocate cannot be made liable in damages in respect of a prosecution in his name.

It has been understood by Judges and by text writers since then, that that is the law.”

For the latter statement he relies on Alison vol. ii, p. 92, Henderson v Robertson, and

McMurchy v Campbell. The “generally received opinion” referred to by Lord Young in

McMurchy is said to be reflected in legal texts in recent times, namely Green Encyclopaedia of

the Laws of Scotland, vol. v, section 1138 (which refers to a passage which asserts, under

reference to Henderson and McMurchy, that it is probable that the Lord Advocate has

absolute privilege in defamation); and Renton and Brown, (3rd ed.) p. 450 (which in turn

had relied on Henderson and McMurchy) to justify his conclusion that “it is a rule of the law

of Scotland, founded on the public interest, that the Lord Advocate cannot be sued for

damages in a civil action for any act done by him or on his behalf as public prosecutor.”

[146] There appears to be a complete circularity of approach in which the only real basis

for the immunity asserted rests on the passage in Hume’s footnote. In my view the weight

of authority is against the proposition that the Lord Advocate has an immunity from suit for

malicious prosecution and the case of Hester v McDonald must be viewed as wrongly

decided.

[147] As I indicated above [para 131], I do not consider that immunity from suit for

malicious prosecution is necessary for the discharge of the Lord Advocate’s duties. The

arguments that such an immunity was necessary in the interests of the proper

administration of justice are not sound. I accept that it is in the interests of justice that

prosecutors should be protected against the consequences of mistake, negligence, error of

judgement and similar matters. However this does not require an immunity from suit

which protects the prosecutor who acts maliciously and without probable cause. The

Canadian cases to which we were referred in particular explain the high threshold which is

Page 76 ⇓

necessary to succeed in such an action, and in my view this presents a clear protection for

the honest but mistaken prosecutor.

[148] I agree with your Lordship that the existence of a right of action is highly unlikely to

deter the robust and independent prosecutorial decision making which lies at the core of our

system. The requirements of averring and proving both malice and want of probable cause,

for which the test is very high, are unlikely to have an inhibiting effect on prosecutorial

decision making. The exacting nature of the test is clearly expressed in Nelles v Ontario and

Miazga v Kvello. The demanding character of what has to be proved, and the fact that

liability will not be imposed where the prosecutor mistakenly proceeds “by reason of

incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness,

honest mistake, negligence or even gross negligence” (Miazga, p378) seems to be

substantially destructive of the “floodgates” and “chilling effect” arguments considered in

Gregoire v Biddle and Imbler v Pachtman, particularly when taken with the continued

existence of absolute privilege in defamation.

[149] I do not intend separately to address the subsidiary question of whether, had Hester

v McDonald been correctly decided, is should nevertheless be overruled as a matter of public

policy. It is enough to state that I am in complete agreement on this matter with your

Lordship in the chair.

[150] In relation to article 8, in my view the key to this is to be found in para 114 of the

opinion of your Lordship in the chair. The decision in SXH related to a situation where

probable cause was conceded: thus prosecution in these circumstances could not imply a

lack of respect for the right to private life. On the other hand, I cannot see that a prosecution

mounted without probable cause and from malicious motives could do otherwise. The

pursuers have averred that prosecution in this case was both malicious and embarked upon

Page 77 ⇓

without probable cause: whilst agreeing with your Lordship that Article 8 really adds

nothing to the common law claim, the averments made are sufficiently relevant to merit

inquiry.

Page 78 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Justice Clerk

Lady Paton

Lord Menzies

Lord Brodie

[2019] CSIH 52

A293/16 and A295/16

OPINION OF LADY PATON

in the Reclaiming Motions

in the causes

(FIRST) DAVID JOHN WHITEHOUSE; and (SECOND) PAUL JOHN CLARK

Pursuers and Reclaimers

against

(FIRST) THE CHIEF CONSTABLE, Police Scotland; and

(SECOND) THE LORD ADVOCATE

Defenders and Respondents

First Pursuer: Dunlop QC, McKinlay; Urquharts (for Livingstone Brown, Glasgow)

Second Pursuer: Fairley QC, McNaughtan; Kennedys Scotland (for Beltrami & Co, Glasgow)

First Defender: no appearance

Second Defender: Moynihan QC, DB Ross QC, Charteris; Scottish Government Legal Directorate

30 October 2019

[151] I am grateful to the Lord President and to the Lord Justice Clerk for their opinions. I

agree with their reasoning and conclusions. In relation to Article 8 of the European

Convention on Human Rights, it seems to me that charging a person, remanding him in

custody, putting him on petition, and serving him with an indictment, will inevitably

interfere with his private and family life, including his reputation. In most cases such

Page 79 ⇓

interference, based (as it usually is) on sufficient evidence that an offence has allegedly been

committed by him, would be justifiable as “necessary in a democratic society in the interests

of … public safety … for the prevention of … crime, for the protection of … morals … for the

protection of the rights and freedoms of others” (Article 8.2 of the Convention). Thus

whether or not Article 8 was engaged (and there may be differences of view on that matter:

cf R v G [2009] 1 AC 92), the authorities’ actions would be deemed justified in terms of

Article 8.2. There would accordingly be no disrespect for private and family life, and no

breach of Article 8. The individual suspected of the crime would face pre-trial, trial, and

post-trial proceedings, protected throughout by the procedures laid down by domestic Scots

law and Article 6 of the Convention.

[152] However the circumstances involving Mr Whitehouse and Mr Clark were

exceptional, and (it is to be hoped) rare. If the pursuers prove their averments, it would

appear that the authorities had no evidence of any alleged crime having been committed by

either pursuer. The pursuers were nevertheless taken from England, driven to a police

station in Scotland, charged, kept in custody for several days, placed on petition, and

ultimately served with indictments. On the basis that the pursuers succeed in proving those

averments, together with their averments about the lack of any evidence against them, I

consider that there is a stateable case that Article 8 was, in their case, engaged. The

pursuers’ private and family lives, including their reputations, were, on those averments,

not respected, and the justification contained in Article 8.2 could not be prayed in aid. This

would be an unjustifiable interference with the exercise of the pursuers’ rights to private and

family life: cf the observations of Lord Phillips in Norris v Government of the USA (No 2)

[2010] 2 AC 487 at paragraph 52; Lord Kerr in SXH v CPS [2017] 1 WLR 1401 at

Page 80 ⇓

paragraph 45, and Pitchford LJ in the Appeal Court in SXH v CPS [2014] 1 WLR 3238 at

paragraphs 70-71.

[153] It might be suggested that an Article 8 case adds little to the common law case. But

proof of malice is not necessary for a breach of Article 8: cf Keegan v UK (2007) 44 EHRR 33 at

paragraphs 29 to 36 and paragraph 54; Cemalettin v Turkey (App No. 22427/04), unreported,

18 February 2009. It is possible therefore that a pursuer who failed to prove the elements

necessary for a common law claim might nevertheless succeed in terms of Article 8.

[154] In the result I agree that both the common law case and the Article 8 case should

proceed to a proof before answer in each case.

Page 81 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Justice Clerk

Lady Paton

Lord Menzies

Lord Brodie

[2019] CSIH 52

A293/16 and A295/16

OPINION OF LORD MENZIES

in the Reclaiming Motions

in the causes

(FIRST) DAVID JOHN WHITEHOUSE; and (SECOND) PAUL JOHN CLARK

Pursuers and Reclaimers

against

(FIRST) THE CHIEF CONSTABLE, Police Scotland; and

(SECOND) THE LORD ADVOCATE

Defenders and Respondents

First Pursuer: Dunlop QC, McKinlay; Urquharts (for Livingstone Brown, Glasgow)

Second Pursuer: Fairley QC, McNaughtan; Kennedys Scotland (for Beltrami & Co, Glasgow)

First Defender: no appearance

Second Defender: Moynihan QC, DB Ross QC, Charteris; Scottish Government Legal Directorate

30 October 2019

[155] I am in complete agreement with the views expressed by your Lordship in the chair

and by the Lord Justice Clerk, and I have nothing further to add.

Page 82 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Justice Clerk

Lady Paton

Lord Menzies

Lord Brodie

[2019] CSIH 52

A293/16 and A295/16

OPINION OF LORD BRODIE

in the Reclaiming Motions

in the causes

(FIRST) DAVID JOHN WHITEHOUSE; and (SECOND) PAUL JOHN CLARK

Pursuers and Reclaimers

against

(FIRST) THE CHIEF CONSTABLE, Police Scotland; and

(SECOND) THE LORD ADVOCATE

Defenders and Respondents

First Pursuer: Dunlop QC, McKinlay; Urquharts (for Livingstone Brown, Glasgow)

Second Pursuer: Fairley QC, McNaughtan; Kennedys Scotland (for Beltrami & Co, Glasgow)

First Defender: no appearance

Second Defender: Moynihan QC, DB Ross QC, Charteris; Scottish Government Legal Directorate

30 October 2019

[156] I am in complete agreement with the views expressed by your Lordship in the chair

and by the Lord Justice Clerk, and I have nothing further to add.