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Brian MacGregor against Iain Livingstone QPM, Chief Constable (Court of Session) [2024] CSOH 109 (13 December 2024)
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[2024] CSOH 109
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 109
A256/19
OPINION OF LORD CLARK
In the cause
BRIAN MacGREGOR
Pursuer
against
IAIN LIVINGSTONE QPM, CHIEF CONSTABLE
Defender
Pursuer: MacGregor KC, Byrne KC; Campbell Smith LLP
Defender: Moynihan KC, Arnott; Clyde and Co
13 December 2024
Introduction
[1]
In 2014, the pursuer was charged with the crime of stalking and police officers
submitted a Standard Prosecution Report ("SPR") to the procurator fiscal. In due course, the
charge was not insisted upon and no trial took place. The pursuer seeks damages from the
defender, claiming that the SPR was deliberately false and misleading. The defender denies
this allegation.
[2]
The case called for a diet of debate, with two main contentions raised on behalf of the
defender: firstly, the pursuer's case is irrelevant and lacking in specification and should be
dismissed; secondly, the expert report for the pursuer (from Mr Christopher), incorporated
2
in the pursuer's pleadings, contains substantial amounts of inadmissible evidence and
should not be remitted to probation. The pursuer's position is that the case is relevant, that
Mr Christopher's report is not inadmissible and that there should be a proof before answer.
Background
[3]
Based on the pursuer's pleadings (taken pro veritate) the background is as follows.
There was a relationship between the pursuer and a woman. They became acquainted
in 2013. She received a loan from the pursuer and he let her use a laptop. The relationship
was amicable until 11 September 2014, when he challenged her over advertising her services
as a prostitute. He sought return of his money and the laptop. She first contacted the police
on 12 September 2014. The initial police investigation commenced on that day.
[4]
As the money and laptop had not been returned, the pursuer reported this to the
police on 18 September 2014. At the conclusion of an interview on 10 October 2014, the
pursuer was arrested and charged with the crime of stalking. The police submitted the SPR
to the procurator fiscal on 17 October 2014. It was prepared by Constable Leach under the
supervision of Sergeant Coleman and Inspector Chisholm, with Detective
Constable MacDonald also involved in the investigations.
[5]
The pursuer appeared on petition on 23 October 2014. The indictment was served in
September 2015 and the first diet took place on 22 September 2015. There was sundry
procedure from September 2015 to 2017. The case against him was due to call on 25 August
2017 but the indictment was deserted pro loco et tempore. The case time-barred on
8 December 2017.
3
Pursuer's averments
[6]
The Closed Record is very lengthy (78 pages) and contains various repetitions. In
addition, the pursuer's pleadings incorporate the SPR (37 pages) and the report by
Mr Christopher (126 pages). Consequently, it is not practicable to set out the full details of
the averments that are challenged. The pursuer's main averments are that the police officers
who compiled the SPR acted deliberately and failed to properly investigate matters, failed to
have proper regard to his defence to the complainer's allegation, suppressed exculpatory
evidence and acted with malice. The pursuer avers that no SPR should have been submitted
to the procurator fiscal, meaning that no prosecution would have commenced. These
unlawful actions by the police are said to have resulted in the procurator fiscal and the
Crown being unable to exercise independent judgment and properly discharge their duties.
[7]
It is averred by the pursuer that, having had an amicable relationship with the
woman named in the charge ("the complainer"), the pursuer became concerned about
certain matters, including that she had lied about her marital status, advertised her services
as a prostitute and used aliases for her name. These points are said to have been made clear
by the pursuer to the police in his interview on 10 October 2024. The pursuer explained that
these concerns caused him to seek return of the laptop and the £6,500 he had loaned to her,
which then prompted a change in attitude by the complainer towards him, giving rise to her
making up malicious allegations that he was stalking and harassing her.
[8]
The number and nature of the challenges by the defender to the pursuer's case make
it necessary to discuss the averments in some detail in due course, when dealing with my
decision and reasons.
4
Submissions
[9]
As a consequence of the lengthy pleadings and the points raised, detailed written
and oral submissions were made, with reference to a large number of authorities. The key
matters submitted are analysed later. At this stage, the main points for each side are briefly
summarised.
Submissions for the defender
Relevancy and specification
[10]
The police will be liable if they submit a malicious report containing false or tainted
information or evidence. However, the extent to which the police will be liable for the
ensuing prosecution is a question relating to the causation of loss having regard to the role
of the procurator fiscal and Crown counsel in reaching independent decisions on the
sufficiency of evidence and the public interest in a prosecution. This gives rise to four
distinct phases: the initial police investigation, arrest and charge; the commencement of a
prosecution by the decision of the procurator fiscal to place the pursuer on petition;
indictment following a decision of Crown counsel; and the pursuit of the prosecution by the
procurator fiscal.
[11]
The pursuer's averments proceed on a fundamentally mistaken approach to the
relationship between the police and the Crown as prosecutor and the progression of a
criminal investigation. In addition, his pleadings are riddled with contradictions because he
has not properly addressed the four distinct phases. The SPR will form at least part of the
material that the fiscal will consider in taking the decision to place an accused on petition
(phase 2) but it is not evident or averred that it plays any part in phases 3 and 4. Criticisms
of the SPR are, accordingly, not relevant to decisions by the Crown in phases 3 and 4.
5
[12]
In relation to phase 2, the SPR does in fact contain the information and the evidence
that the pursuer says was omitted. The SPR complies with the legal requirements in Grier v
Lord Advocate [2023] SC 116. Any evidence secured later is irrelevant to the SPR. There was
no suppression of potentially exculpatory evidence. Indeed, the sequence of events and the
evidence set out in the SPR show that it would have been a dereliction of duty for the police
not to have submitted the report to the procurator fiscal.
[13]
Malice requires to be established by the pursuer and that is a matter of fact, for proof.
However, the pursuer also requires to establish a lack of reasonable and probable cause,
which includes a question of law. To have a relevant case of a lack of such cause the pursuer
must identify specific evidence (not general sources) that was omitted by the police in the
SPR and that, put in the balance, would have led to the conclusion that there was no prima
facie case.
[14]
On phases 3 and 4, making its own decision, the Crown decided to maintain the
prosecution. This was based on the totality of evidence available to the Crown. The pursuer
would need to show (and not just assert) that the police misled the Crown and the Crown
was deprived of the opportunity to form an independent judgment. There are several areas
where there is a lack of specification as to reasons why the Crown was so deprived.
[15]
The offence of stalking has a core component and also has defences. On the
pursuer's pleadings, there is no relevant case that the core elements were absent. The
pursuer's contention that there was other evidence (such as emails) and a more amicable
general context is irrelevant because the Crown case is taken at its highest. It would be a
question for the jury whether the other evidence undermined the core case. As to the
defence, there is an absence of averments about the factual content of the defence. But in
any event the SPR specifically highlighted the pursuer's defence and the basis for it. The
6
pursuer cannot have been seeking, as he now argues, to "prevent or detect a crime", because
the course of conduct continued after the crime of theft had allegedly been committed and
reported to the police. There is also no averment that his conduct was reasonable.
[16]
The pursuer's averments are irrelevant because he pleads only vague generalisations
and points only to general sources of evidence but does not identify any specific evidence
that affects the assessment of probable cause. Nor does the pursuer specify any evidential
basis on which Crown counsel instructed a prosecution, so it cannot be determined whether
the absence of any evidence deprived the Crown of a reasonable opportunity properly to
assess the case.
Mr Christopher's report
[17]
Opining on probable cause is the expression of an opinion on a question of law.
Expert evidence cannot be led on that matter. Moreover, malice is an evaluative judgment
on which the court requires no assistance. The four admissibility threshold questions in
three. He gives evidence on the law, which is irrelevant and he does not address the correct
test for malice. He does not have the necessary knowledge and experience. He has not
worked in the police service in Scotland. He is not impartial and engages in prejudicial
speculation. Mr Christopher's report is incorporated in full in the pleadings and there is no
basis upon which it can be filleted down to admissible evidence about police procedure. It
should be excluded from probation in its entirety.
7
Submissions for the pursuer
Relevancy and specification
[18]
The pursuer's case is that the police acted with malice, and without probable cause,
when they made a report to the Crown. The legal basis is the intentional delict clarified by
the Inner House in Grier v Lord Advocate. The pursuer's case is straightforward. It is not
about the Crown. Rather, it is that the alleged crime should not have been reported by the
police in the first place. But for the actions of the police officers, there would have been no
SPR. He offers to prove that the defender's officers illegitimately set out to ensure that he
was prosecuted. They had no probable cause to consider that a crime had been committed
when they arrested him and subsequently submitted the SPR to the Crown. They did not
act in discharge of their public functions when they investigated the complaint against him.
Instead, motived by antipathy and ill-will against him, they presented a false and
misleading position in the SPR.
[19]
The actions of the officers deprived the Crown of the ability to exercise independent
judgment. The defender's officers deliberately suppressed exculpatory material that came
into their possession after the SPR was submitted to the Crown and thereby continued to
deprive the Crown of its ability to exercise its independent functions. The defender's
officers caused the pursuer to be prosecuted in circumstances where no report should have
been submitted to the Crown. The antipathy of the officers who made the SPR is clear from
the language used to describe the pursuer, including that he was "obsessive", "vindictive",
"pig-headed" and "downright despicable". Malice can be inferred from this intemperate
language.
[20]
On the test for relevancy, the court must be satisfied the pleaded case must
"necessarily" fail (Jamieson v Jamieson 1952 SC (HL) 44). The Inner House has warned there
8
is to be no "trial by pleading"; the parties are not to be engaged in an iterative process to
resolve the litigation through those pleadings (Heather Capital Ltd (in liquidation) v Levy &
McRae 2017 SLT 376, para [100]). Issues of credibility and reliability arise in the present case.
[21]
The separate roles of the police and the prosecutor are well-established. The SPR
must be a fair and balanced document. The pursuer's complaint is not that the defender's
officers, with the benefit of hindsight, should have realised that certain information could
have been relevant to the decision the Crown required to make. The pursuer's complaint is
more serious and fundamental. He offers to prove that the defender's officers deliberately
submitted a selective and misleading position in the SPR. The complaint is not of
incompetence or oversight. It is that the SPR was deliberately produced to be misleading to
the Crown.
[22]
It is also well-established that the police must supply all relevant material to the
Crown (Smith v HMA 1952 JC 66 at p 71-72). The pursuer offers to prove that the defender's
officers failed to do so. They deliberately failed to provide exculpatory evidence and did not
investigate the statutory defence. The pursuer's position is that precisely what material
required to be included in the SPR is a judgment that should properly only be made by the
court after proof.
[23]
Antecedent relations are relevant to whether malice can be inferred (e.g. Shaw v
Burns 1911 SC 537). The pursuer has set out on record details of his past dealings with the
police. This includes averments of a prosecution of the pursuer's son for not wearing a seat
belt where the Justice of the Peace was the father of one of the officers responsible for the
report to the Crown. The pursuer sought to ridicule the prosecution including publishing a
poem in the local press. The SPR states that the pursuer was "bragging" about having "put
the police...of Inverness in their place again and again". The pursuer offers to prove that the
9
officers had a grudge against him and made an unfounded report to the Crown. The prior
relations are relevant to whether any inference of malice can be drawn. That is particularly
so when considered in light of the intemperate language used to describe the pursuer in the
SPR.
Mr Christopher's report
[24]
The defender's complaints concerning Mr Christopher's report are unfounded. The
report by Mr Christopher has been produced to assist the court and to provide fair notice to
the defender of the serious criticisms that are made of the police investigation and the report
made to the Crown. It is incorporated into the pleadings to seek to avoid unnecessary
duplication. The report does not seek to usurp the function of the court. The weight to be
accorded to Mr Christopher's views can only fairly be determined after proof.
[25]
The four considerations identified in Kennedy v Cordia are met. The evidence will be
of assistance to the court. Mr Christopher has very considerable relevant experience in
addressing what constitutes improper police conduct in the process of investigating crime.
That experience is practical and academic. He patently has the necessary knowledge and
experience. He has acted impartially, with no conflict of interest. The real issue is about the
weight to be given to his evidence, not the admissibility of it.
Decision and reasons
Issue 1: Relevancy and specification
Legal principles
[26]
To succeed in this allegation of an intentional delict, claiming that the police SPR was
deliberately false and misleading, the pursuer must prove that the police acted with malice
10
and had no reasonable and probable cause for submitting this report. This test applies in a
case based on malicious prosecution but also to a delictual claim of this kind: see e.g.
Whitehouse v Lord Advocate 2020 SC 133, Lord President (Carloway), at paras [89]-[90]. A
number of malicious prosecution cases are of assistance in relation to the test and how it is to
be applied, albeit many of them refer, of course, to the prosecutor rather than the police.
[27]
In this action, the defender accepts that the position on malice is one that can only be
determined after the evidence is led and that there are relevant averments on the allegations
of malice. Accordingly, the central issue at this stage is whether the pursuer has pled a
relevant case, with sufficient specification, that there was no reasonable and probable cause
for this SPR to be prepared and submitted to the prosecutor. In addition, the question of
relevancy on causation also arises.
Reasonable and probable cause
[28]
Reasonable and probable cause means an honest belief based on reasonable grounds
that there is a proper case to lay before the court: Stuart v Attorney General of Trinidad and
Tobago [2023] 4 WLR 21, at para [26]. Older authorities, including Glinski v McIver
[1962] AC 726, explain the elements of the test (Lord Devlin at p 768, Lord Denning at p 760-762).
Lord Radcliffe said (at p 754):
"If there really is some evidence founded on speech, letters or conduct that supports
the case that the prosecutor did not believe in his own charge, the plaintiff is, in my
view, entitled as of right to have the jury's finding upon it."
The approach in Glinski has been applied in several other cases (eg Rees v Commissioner of
11
[29]
It is also the position in Scots law that reasonable and probable cause has both
subjective and objective aspects: Grier v Lord Advocate 2022 SLT 199, at first instance,
Lord Tyre, at para [66]; Whitehouse v Lord Advocate, Lord President (Carloway), at para [108].
The Lord President also referred to A v New South Wales {2007] HCA 10, at para [38], part of
which is that:
"The 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."
[30]
Lord Tyre made the valid point in Grier that it may not, at that time, have been
established whether in Scots law it will suffice for the pursuer, even if he fails on the
objective element, to prove that the prosecutor had no subjective belief. Reference was made
to Miazga v Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339, in which it was said (at
para [70]) that Glinski and A v State of New South Wales support the proposition that a
plaintiff would succeed by showing "either an absence of subjective belief or an absence of
objective reasonable grounds". But the Canadian court in Miazga reached a different view,
holding (at para [73]) that where objective reasonable grounds did in fact exist at the
relevant time, it could not be said that the criminal process was wrongfully invoked. The
court held that the presence or absence of the prosecutor's subjective belief in sufficient
cause is a relevant factor on the other element of the test, the inquiry into malice.
[31]
The need for both elements was, more recently, affirmed by the Privy Council in
Stuart v Attorney General of Trinidad and Tobago, at para [13]:
"Taking first the `lack of reasonable and probable cause' element, there is an
objective aspect to this (whether PC Phillips had reasonable grounds for bringing the
case to court) and a subjective aspect (whether PC Phillips had the honest belief that
this was a proper case to bring to court). The claimant would succeed on this
element if he could prove that PC Phillips did not have the required reasonable
grounds or lacked the required honest belief [emphasis added]."
12
[32]
The means of assessing the subjective and objective aspects have recently been
explained further by the Privy Council in Attorney General of Trinidad and Tobago v
"The subjective aspect is that the prosecutor must believe that there is a proper case
to bring. The objective aspect requires that there existed proper grounds to bring the
case, to be judged by reference to the evidence known to the prosecutor and such
other evidence as would have been known as a result of any enquiries that should
have been, but were not, made. However, the prosecutor does not have to believe
that the proceedings will succeed. It is enough that, on the material on which the
prosecutor acted, there was a proper case to lay before the court: see Willers v Joyce
Lord Burrows."
[33]
The Privy Council went on to say, at para [63]:
"In a case of malicious prosecution, both the subjective motives of the prosecutor and
the reasonableness of the prosecutor's decision to bring charges are in issue. The
trial judge is therefore required to make findings of fact on the first issue on the basis
of the evidence before the court and to make an evaluative assessment of whether the
prosecutor had reasonable and probable cause to bring the charges on the basis of the
information known to the prosecutor when the charges were brought and of
information which would have been known if the prosecutor had undertaken such
further inquiries (if any) as, in the circumstances, it was appropriate to pursue."
[34]
From these authorities, the approach taken is as follows: (i) there is a subjective
element (actual belief) and an objective element (reasonable belief) for reasonable and
probable cause, and failure to have either of them will suffice to establish that there was no
such cause; (ii) if there is no basis for alleging that there was no actual belief, and it is
accepted that there has been sufficient inquiry, and the facts known are undisputed, the
matter can be determined without further evidence; (iii) if there is an allegation of no actual
belief, or it is contended that there has not been a sufficient inquiry, or the facts known are
disputed, it will require to be determined on the evidence; (iv) however, the onus is on the
person suing to aver reasons for there being no actual belief, or why a further inquiry would
have resulted in no objective basis, or which other facts exist to support these positions.
13
[35]
On the subjective aspect, malice may in some circumstances imply that there was no
honest or actual belief. In Grier v Lord Advocate the Lord President (Carloway) said, at
para [136]:
"If the police provide the procurator fiscal with information or evidence which is
either false or tainted, that in itself may be actionable. The wrong is not characterised
as malicious prosecution, since it occurs in advance of any prosecution, but the
information may cause that prosecution and hence result in loss. It will be actionable
if what the police put in those reports is done maliciously. If that malicious reporting
directly causes the Crown to prosecute a person, the police will be liable in damages.
Proof of causation will remain difficult, given the role of the procurators fiscal and/or
Crown counsel in reaching an independent decision on sufficiency and, in the event
of a sufficiency, on whether a prosecution is in the public interest."
This indicates that where there is false or tainted evidence deliberately and maliciously
provided (which can point towards there being no honest belief) that will suffice. It would
therefore support the proposition that it is enough for the pursuer to succeed on the
subjective aspect. That was accepted by senior counsel for the defender. However, as will
become clear from the conclusions I reach below, in this case the same position is reached on
both aspects.
Malice
[36]
It is not necessary to set out the legal principles in relation to malice in Scots law in
any detail, as it is accepted by the defender that in this action there is a relevant case pled on
malice. It suffices to note these further comments made by the Lord President (Carloway) in
Grier:
"[118] There is no indication in the Lord Ordinary's opinion that he erred in his
understanding of the test for malice. That test requires that a prosecutor initiate or
continue a case not with a bona fide purpose of bringing a criminal to justice but for
some other, and thus necessarily improper, motive. The analysis in Glinski v McIver
(Lord Devlin, p 766) accurately reflects how malice ought to be seen in Scots law. It
covers not only spite and ill-will but also any motive other than a desire to bring a
criminal to justice and circumstances in which the prosecutor is attempting to obtain
14
some extraneous benefit. In relation to the latter, Willers v Joyce (No 1) (Lord Toulson,
para 55) offers a useful critique. The Lord Ordinary synthesised the foreign and
domestic jurisprudence and arrived at a correct view of what is required. That is
encapsulated succinctly in four words: improper purpose or motive. The court
adopts, in that regard, the dictum in Henry v British Colombia (Moldaver J, delivering
the opinion of the majority of the Supreme Court of Canada, para 51)."
[37]
As indicated above, if it does come to be proved that the person acted with an
improper purpose or motive that can have an impact on at least the subjective element.
Links, or potential links, between malice and reasonable and probable cause are mentioned,
in similar terms, in some of the authorities. Malice can be inferred from a lack of reasonable
and probable cause, but a finding of malice is always dependent on the facts of the
individual case; it is for the tribunal of fact to make the finding according to its assessment
of the evidence: Trevor Williamson v Attorney General of Trinidad and Tobago, at para [13].
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 Robertson v Keith 1936
SC 29, at p 47. 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: ibid. The two elements of
malice and want of probable cause may run into each other, and the one may be proof of the
existence of the other: McDonald v Ferguson, Lord Fullerton at p 548. Accordingly, these
issues are not unrelated, although as was said in Glinski (at p 759) malice does not
necessarily equate to, or show, lack of probable cause.
15
[38]
As to how malice is to be determined, in Rogers v Orr 1939 SC 121, p 134,
Lord Moncrieff explained:
"But--while facts and circumstances inferring malice must now be averred in all
cases and these must pass the test of relevancy and while the relevancy of the
averments is for separate determination in each separate case--the plausibility or
probability of the oblique motive thus relevantly indicated having acted, rather than
the innocent motive evidenced by the privileged occasion, is never a question for the
Court but is always a question for the jury, and, moreover, only arises for
determination by the jury after the hearing of evidence."
The expression "oblique motive" can be taken as meaning a hidden or ulterior purpose
behind what was done.
The test for relevancy
[39]
The test for relevancy in Scots law is well-established and an action will not be
dismissed as irrelevant unless it must necessarily fail, even if all the pursuer's averments are
proved: Jamieson v Jamieson. Senior counsel for the pursuer placed quite substantial reliance
on what was said by Lord Glennie in Heather Capital Ltd (in liquidation) v Levy & McRae. His
Lordship observed that the purpose of the pleadings is to give notice of the essential
elements of the case and set out the bare bones of the case, with no need to set out in full the
evidence intended to be adduced. Lord Glennie also said:
"The judgments which the court is being asked to make are essentially value
judgments, assessments of the reasonableness or otherwise of a party's conduct.
Such judgments should seldom if ever be made on the basis of the pleadings without
hearing evidence...It is not the function of pleadings to set out every reason why
each relevant individual took or did not take any particular step."
These comments assist but do not demur from the established principles and indeed are to
be construed in the context of Jamieson, along with the need for fair notice and sufficient
specification.
16
[40]
In JD v Lothian Health Board 2018 SCLR 1, Lord Brodie (on behalf of the majority)
said:
"[47] ...here the pursuer avers that he `suffered almost a two year wait for urgent
hormone treatment as a direct consequence of the misdiagnosis'. Of course what that
averment lacks is any indication of what facts the pursuer proposes to prove with a
view to inviting the conclusion that the wait was the `direct consequence' of the
misdiagnosis."
This is a useful reminder that if the consequences are not the obvious or natural result, there
is a need for the pursuer to indicate the basis or reason for, or the link between, the alleged
wrong and its consequences.
[41]
Specifically in relation to malice, in Rogers v Orr, after the passage quoted above,
Lord Moncrieff went on to say:
"A pursuer's condescendence is a narrative of circumstances, but does not profess to
detail the evidence by which these circumstances may be established. If a pursuer
has averred facts and circumstances which may reasonably be regarded as allowing
an inference of malice on the part of a defender, he is always entitled to have an
opportunity of asking any particular defender himself whether or not the averments
are true, and whether or not the inference is a proper one."
Duties of the police
[42]
The requirements to be met by the police in preparing the SPR are covered by
common law. In making a report to the Crown:
"...it is their duty to put before the procurator-fiscal everything which may be
relevant and material to the issue of whether the suspected party is innocent or
guilty...it is not for the police to decide what is relevant and material but to give all
the information which may be relevant and material" (Smith v HMA 1952 JC 66,
at p 71).
[43]
However, in assessing what was done there has to be a realistic and pragmatic
approach. In Grier v Lord Advocate, the Lord President (Carloway) noted, at para [107] that
not every document may have appeared relevant at the time of reporting and important
17
further inquiries may still be merited, even at the stage of indictment. He then observed, at
para [108]:
"A police report, by its very nature, is bound to be a summary in order to make it
reasonably digestible to the prosecuting authority. It cannot, and should not, cover
all the minutiae of months of investigation. It must to a degree, be selective, even
though the law of disclosure must ultimately be complied with. Even then, what is
readily seen in hindsight to have been of relevance may not have assumed such a
significance at an earlier stage. This is the real world in which prosecutions are
commenced."
[44]
The Lord President added, at para [139]:
"As already observed, a police report to the Crown is inevitably a summary which
will contain primarily what the police regard as important, even if, in an ideal world,
that ought to include any material factors in favour of the suspect's innocence. It is
not intended to be a comprehensive account of everything that the police did, or of
what everyone said, and when, during the investigation. Like the Lord Ordinary, the
court is unable to detect anything sinister in the fact that certain matters did not find
their way into the SPR."
[45]
There must be a prima facie case to place an individual on petition, but that does not
require corroboration: Lauchlan v HMA 2010 SCCR 347, at para [23] (Lord Carloway). There
must be a sufficiency of evidence to indict, but that is of course a matter for the Crown and
takes place at a later stage. The duty of the police is to report the results of their
investigation but the police investigation is itself conducted under the supervision of the
Crown: Smith v HM Advocate, at p 71-72. In that case, a failure by the police to disclose the
finding of a separate knife at an early stage, although done later by the Crown when a
special defence was lodged, did not give rise to a miscarriage of justice.
Information received after the SPR
[46]
There is a statutory duty on the police to provide information to the prosecutor in
solemn cases. The statutory duty begins after the accused has appeared on petition
18
(section 117 of the Criminal Justice & Licensing (Scotland) Act 2010) and is a continuing
obligation from that point (section 118).
[47]
In Grier, as noted above, the Inner House confirmed that the law will provide a
remedy when the police provide false and misleading information to the Crown which
prevents the Crown exercising its independent function and results in a wrongful
prosecution. In Smith v HM Advocate, Lord Justice Clerk Thomson put the matter thus
(p 71):
"...(T)he duty of the police is simply one of investigation under the supervision of the
procurator-fiscal and the results of the investigation are communicated to the
procurator-fiscal as the inquiries progress. It is for the Crown Office and not for the
police to decide whether the results of the investigation justify prosecution. The two
functions are quite distinct."
Application of the legal principles
[48]
As noted above the basis for the pursuer's case is primarily that there was,
deliberately, a lack of investigation, a failure to properly consider his defence and the
suppression of exculpatory evidence. These are said to support a lack of reasonable and
probable cause on both the subjective and objective elements. The police officers are also
said to have acted maliciously. For the defender, it is argued that the SPR sufficiently covers
a large number, if not all, of the points relied on by the pursuer, but of course does not
require to cover everything. Further submissions were made for the defender about lack of
specification in the pursuer's averments and the pursuer's case on causation being
irrelevant.
[49]
In relation to malice, the police are accused of deliberately provided a misleading
SPR with the malicious purpose of persuading the prosecutor to pursue a prosecution by
(i) failure to portray a comprehensive and accurate narrative of the facts, (ii) the inclusion of
19
selective email evidence which created a misleading picture of the evidence because
exculpatory material was excluded, (iii) the inclusion of uncorroborated allegations made by
the complainer, (iv) the failure to comprehensively describe the counter-narrative of the
pursuer as the supportive material, and (v) the failure to address the details of the
counter-narrative of the pursuer which had not been thoroughly investigated. The officers
are said to have maliciously failed to investigate and maliciously withheld relevant and
material evidence from the prosecutor. The failures are claimed to have been so obvious
and fundamental to the readily understood practice of police officers that they each acted
maliciously and without probable cause.
[50]
The pursuer refers inter alia to the terms of the SPR, said to reveal that one of the
police officers involved was driven by his perception of the pursuer as disparaging and
arrogant and his comments about the pursuer (including "obsessive", "vindictive", "pig
headedness" and "downright despicable") reveal malice towards him. Such comments are
said to demonstrate that the police officers who compiled the report were not acting in
discharge of their public duty but from an illegitimate motive, namely antipathy towards the
pursuer. The antecedent involvement of the pursuer with officers of the Northern
Constabulary and how that could readily have caused a deliberate and non-subjective
decision are set out in some detail. The pursuer believes and avers that the malice arose
from antecedent ill-will towards the pursuer arising from his criticism of his local police
force.
[51]
The defender accepts that the averments on malice are relevant and suffice to go to
proof. Thus, the defender must have accepted, as the cases above explain, that there are
relevant averments of improper purpose or motive, such as false or tainted evidence or a
20
motive that is oblique. Nonetheless, I have considered the defender's position challenging
similar averments in relation to reasonable and probable cause and causation.
[52]
Applying the law to the averments of the pursuer in the present case raises some
challenges. The pursuer's pleadings do not take the chronological approach, with no real
differentiation in the phases or stages in the prosecution process. In addition, in several
parts of the pursuer's pleadings only general assertions or propositions are made, causing
the need to then check the remaining pleadings to see if any more detailed averments
supporting those general points exist. However, there are also passages in the averments,
particularly in Article 4 and its sub-parts, and in Mr Christopher's report, which provide
more detail. Setting out in full the averments from the lengthy and at times repetitive
pleadings is not desirable, and so the forthcoming references to the pursuer's pleadings pick
out the main points for present purposes, in the terms stated by the pursuer.
Failure to investigate
(i)
Pleadings
[53]
The SPR demonstrates that the police deliberately failed to investigate: (a) the
pursuer's claims that the complainer had stolen his property and money and thereby failed
to link and investigate this conduct on the part of the complainer to the allegations she made
against the pursuer; (b) the pursuer's defence under section 39(5) of the 2010 Act, and
(c) matters which, if investigated, would have shown her to have lied and would have
heavily impacted on her credibility and reliability in general (the complainer's use of a
number of different aliases, her differing accounts of her marital status to witnesses, her
involvement in prostitution and the false allegation she made that the pursuer was
responsible for placing an advert in which she offered her sexual services).
21
[54]
The complainer had, by email dated 16 September 2014 and in her police statement
of 29 September 2014, denied that she placed the advert and suggested that this had been
done by the pursuer. The police could have checked her bank statement, showing that the
advertisement of the complainer's services was placed by her on 5 September 2014, at a cost
of £49.50, and again this should have been done before the SPR was issued. Detailed
averments are also made about a series of emails sent by the pursuer to the police in late
September and early October 2014 and that there were a number of lines of enquiry raised
by the emails, which the police did not pursue.
[55]
The police deliberately also failed to consider, as well as the "Play" SIM card, other
productions seized during the enquiry and in particular the USB stick, a camera SD memory
Card, Nokia mobile telephone, a Lyca mobile SIM card and request an evidential report on
these.
[56]
The complainer had lied when she denied being given a laptop by the pursuer. The
pursuer reported his stolen laptop and money to Police Scotland on 18 September 2014 and
his report was recorded. He followed up these reports with a series of emails to one of the
officers on 27, 28, 30 September 2014 and 3 October 2014. The emails of 27 and 28 September
2014 provided the police with a number of lines of enquiry, that ought to have been
pursued, and these lines are stated. The four-page document produced by the pursuer on
27 September 2014 set out in detail the pursuer's position and outlined clear and obvious
lines of enquiry to vouch the existence of the statutory defence.
[57]
On 27 September 2014 the pursuer also provided a statement to the police about the
circumstances of the theft, confirming payment of monies into her bank accounts and
relevant details. The police carried out a separate enquiry into the theft of the pursuer's
laptop. The evidence engathered by the police clearly demonstrated that the pursuer was
22
truthful in his account of his purchase of his laptop and his allegation that the complainer
had stolen it. This is evidenced by the obviously contradictory accounts provided to the
police by the complainer in the form of an email she sent dated 25 September 2014, the
police statement she provided on 27 September 2014, the interview she gave under caution
on 29 September 2014 and the police statement she later provided on 25 March 2015.
[58]
The pursuer's account was also supported by the evidence available from
PC Katarzyna Wyslouch who visited the complainer at her home on 27 September 2014 and
by the statements of Mr Janick and Mr McKendrick. An officer refused to read the pursuer's
statement of 27 September 2014 when it was presented to him and responded in a
threatening and intimidating manner. Despite the pursuer's allegations being directly
relevant to the allegations made by the complainer, the officers involved in the
investigations failed to link these investigations together. One enquiry ought to have taken
place with one investigating police officer. Police Sergeant Coleman was aware of both
allegations from the outset and ought to have established an investigation to examine both
allegations. The investigations would also have revealed that the complainer deliberately
sought to withhold email communications and text messages that demonstrated she had an
amicable relationship with the pursuer, up to 11 September 2014.
(ii)
The SPR
[59]
Before dealing with what is said in the SPR, it is convenient to note what is required
for the offence of stalking. It is defined in section 39 of the Criminal Justice and Licensing
(Scotland) Act 2010. There are three requirements for the offence to be committed, specified
in section 39(2) and explained in Miller v HM Advocate 2022 JC 33, at paras [44]-[46]: (a) the
suspect must engage in a course of conduct; (b) he must do so with intent to cause the
23
complainer to suffer fear or alarm; or he must have known or ought to have known that
engaging in the course of conduct would be likely to cause the complainer to suffer fear and
alarm; (c) the suspect's course of conduct must cause the complainer to suffer fear or alarm.
[60]
Defence evidence might rebut or neutralise inferences that might be drawn from
other evidence, but until it is led the sufficiency of evidence is judged by taking the Crown
case at its highest, when considering whether there is no case to answer: Behan v Procurator
Fiscal, Hamilton [2013] HCJAC 118, at para [8]. In terms of section 39(5)(b) it is a defence to
show that the conduct of the accused was engaged in for the purpose of preventing or
detecting crime, or, under section 39(5)(c), that it was, in the particular circumstances,
reasonable.
[61]
The SPR was reported to the procurator fiscal on 17 October 2014. It states that
between 1 June 2014 (said to be the date of the first offence) and 9 October 2014 at various
places the pursuer engaged in a course of conduct which caused the complainer fear or
alarm, in that he did repeatedly contact her, to her fear and alarm, in spite of being told not
to do so by the complainer, her solicitor and the police. The means of contact were
predominantly emails and text messages.
[62]
Multiple references are made in the SPR to the dispute over property and money
given by the pursuer to the complainer, and his comments on the allegation of stalking and
the pursuer's allegation of theft. It references the evidence of both the pursuer and the
complainer on these matters, recording that the complainer said when interviewed that the
laptop was returned and that a search of her address found no trace of it. The SPR refers to
the separate investigation into these allegations and gives the police reference code for it. It
notes that a subject report could be submitted on this matter but that the reporting officer
was on annual leave at the date of the SPR.
24
[63]
The SPR records the pursuer's evidence that he was justified in behaving in the way
that he did because of his belief that the complainer had stolen his property and money. It
refers to his complaint of theft, his allegation that the police had not properly investigated it
and that he said he had to do his own investigation. It also informs the procurator fiscal that
the pursuer's and the complainer's phones had been seized and that they could be
interrogated if required. The SPR further explains that several other emails existed beyond
those referenced in the SPR.
(iii)
Relevancy and specification
[64]
The questions of whether there was adequate investigation justifying the SPR, and
whether the SPR properly set out what should have been contained in it, are therefore
substantially in issue in this case. There was plainly some degree of investigation by the
police officers. The SPR is intended to be a summary and even if it is selective that can be
consistent with the nature of such a report. However, it is clear that the pursuer avers that
certain matters were not investigated or properly followed up in the SPR and specific
additional points which should have been covered, but were not, are identified.
[65]
In relation to the six digital devices, the defender submits that there is a lack of
specification as to what the contents actually were. But the pursuer avers that the content of
the "Play" SIM card contained material that was highly relevant to the pursuer's defence
and exposed a series of lies advanced by the complainer to the police. Other digital devices
are said, at least by implication from the averments, to have contained messages between the
pursuer and the complainer which affect reasonable and probable cause. These devices
have been interrogated and messages they contain are available to the defender. It is also
averred by the pursuer that when these devices were disclosed to the procurator fiscal they
25
contributed to the Crown decision to desert the indictment and allow the case to go to time-
bar. Relevant averments are therefore made about the devices.
[66]
While the SPR notes that there was a separate investigation to take place regarding
the alleged theft, the pursuer's averred contention is this was inappropriate and a balanced
approach should have to be taken. It is submitted that the police cannot simply state that
there are two separate alleged crimes, when the pursuer's allegation of the crime against
him can, on his account, be inextricably linked to his conduct and hence should be dealt
with as part of the same investigation at the time. The pursuer submitted that there is no
proper reference in the SPR to any of the emails of 27, 28, 30 September and 3 October sent
by him. The way it is expressed in the SPR is that:
"From 27/09/14 and over the next couple of days, the [pursuer] was in contact
through emails and phone calls with the police witness Coleman. The sole purpose
of this as far as the police witness Coleman was concerned was over a complaint
made against the police."
This is again a disputed issue with sufficiently relevant averments.
[67]
The question of whether investigation into the telephone number used on the advert
was that of the complainer, analysis of the "Play" SIM card, checking her bank statement,
and the lines of enquiry put by the pursuer in relation to his laptop, should have been done
and what results they would actually have given are matters for evidence. Whether the
particular content of the emails, and indeed the other points said by the pursuer not to be
investigated or suppressed, when viewed in the context of the totality of the information
before the police, do or do not add enough to show a want of reasonable and probable cause
are also matters to be determined on the evidence at proof. A past amicable relationship
between the pursuer and the complainer, and the exchanges of messages showing that, may
well be of no relevance to the charge of stalking. However, the SPR notes that the crime
26
relates to the pursuer stalking the complainer by repeatedly contacting her predominately
through emails and text messages "mainly from the summer months to October 2014". The
crime is alleged as commencing on 1 June 2014 and the effect, if any, of the emails from at
least that time must also be a matter for evidence.
[68]
In relation to the pursuer's claim about a lack of balance in the SPR, the defender
argues that Mr Christopher lists the evidence showing the commission of a crime and the
evidence bearing on the defence, and that this material is in the SPR. However,
Mr Christopher's statements on the point are not themselves conclusive. The key question is
whether further investigation into the defence should have been carried out and what
results that would have had. Indeed Mr Christopher repeatedly refers to things that were
not investigated.
[69]
The defender makes the point that it is self-evident from the terms of the SPR that
there were significant factual differences between the pursuer and the complainer and
contends that the veracity of statements is not an issue at that stage. The pursuer's
averments however say that there is material which substantially undermines the
complainer's credibility, showing her to be a liar, and that should be have been taken into
account. The full nature and extent of that material and any impact it has on the credibility
and reliability of the complainer is also a matter for proof. If there were the obvious and
serious consequences on credibility and reliability averred by the pursuer, from the
information available to the police, it could affect reasonable and probable cause.
27
Defence under section 39(5) of the 2010 Act
(i)
Pleadings
[70]
Key averments on the defence not having been properly investigated are noted
above. Information about that defence is also said to have been omitted or suppressed, as is
noted below. However, as to some extent this can perhaps be seen as a discrete part of the
pursuer's case, it is convenient to consider it separately. Further averments on the defences
include that the pursuer had a defence under section 39(5)(b) and (c).
(ii)
The SPR
[71]
The SPR mentions the defence and the basis for it, the alleged theft. However, as
noted, the pursuer avers that further investigation into that potential defence should have
taken place. The SPR references the information received from the pursuer raising questions
about the complainer's identity. It records the pursuer's evidence that she operated as an
escort and advertised her services and includes the opinion of officers that the complainer
was likely engaged in some form of prostitution. But certain further issues about the
credibility and reliability of the complainer's account are averred by the pursuer, as noted
above.
(iii)
Relevancy and specification
[72]
If there is a sufficiency of evidence for the charge, then the defence is a matter for the
procurator fiscal to consider and, if indicted, for the accused to put forward at the trial.
Where, as here, there is conflicting evidence, the existence of some evidence pointing to
innocence does not therefore necessarily exclude probable cause because the Crown case
must be taken at its highest (see Behan v Procurator Fiscal, Hamilton). However, it is averred
28
that there was information, currently available to the police or that should have been found
in an investigation, that substantially undermined or contradicted the complainer's position
and could also contribute materially to a defence to the allegation. The averments go on to
say that the police should have taken that into account in deciding whether an SPR was
necessary and, if so, should have recorded that information in the SPR. To determine what
impact, if any, the points averred would have had on the SPR requires evidence.
[73]
The particular grounds of defence relied upon by the pursuer involve either
preventing or detecting crime or having acted reasonably. While it is no doubt correct that
some of the pursuer's conduct took place after the alleged crime of theft was already
committed and indeed reported, and hence at that stage prevention is impossible, other
conduct by him occurred before it was reported and, for aught yet seen, might have some
relevance to seeking to prevent the crime. It may well also be correct that recovery of
property, which is part of what he was trying to achieve, does not negate commission of the
crime, but it is not possible at this juncture to rule that it could have no bearing whatsoever
on detecting the crime. It will be necessary to hear evidence about the emails and messages
in order to reach a final view on what, if anything, was prevented or detected.
[74]
There is no specific reference in the pursuer's pleadings to him having acted
reasonably and hence having a defence under section 39(5)(c). However, as noted, it is
expressly averred that there is a defence under section 39(5)(b) and (c). The pursuer is, by
necessary implication, averring that he was acting reasonably. While the defender argues
that the defence was treated, and accepted by the pursuer, as some form of civil right, that is
not the pursuer's pleaded position. The defender also makes the point that Mr Christopher,
in his report, says that the pursuer claimed that he was pursuing his civil right to recover his
29
property and this was the reason for contacting her. That is said in the report, but making
that contact could arguably also contribute to the statutory defence of acting reasonably.
[75]
It would need to have been absolutely and irrevocably clear that the defence would
have succeeded for the police to have decided, for that reason alone, that no SPR was
required. That is a very high test to meet, but the remaining averments are that, esto the SPR
was required, more information relevant to the defence should have been recorded in the
SPR. The pursuer's case on the defence and whether more should have been said, and
whether there was a basis for either ground to have been relied upon, is a matter to be
determined at a proof.
Suppression of evidence
(i)
Pleadings
[76]
The terms of the SPR reveal that the reporting officer produced a selective account of
the email communications between the pursuer and the complainer and failed to make
reference to amicable email and text exchanges prior to September 2014. In so doing he
produced an unbalanced and misleading report, not in conformity with the ACPOS
Disclosure in Criminal Proceedings Manual of Guidelines. The totality of the emails, which
were available to the police at the time the report was compiled, substantiated the pursuer's
defence.
[77]
The large number of amicable text messages and emails between the pursuer and the
complainer were not referenced in the SPR and were not provided to the procurator fiscal in
the period that followed submission of the report despite the material being in the
possession of the defender's officers. The mobile phones, USB stick and SIM cards in the
possession of the defender's officers contained exculpatory material that was not disclosed
30
to the procurator fiscal. The four-page document submitted by the pursuer to the defender's
officers on 27 September 2014 was not provided to the procurator fiscal. The defender's
officers failed to provide the statements of Mr Janick and Mr McKendrick to the procurator
fiscal in the period after the SPR was submitted.
(ii)
The SPR
[78]
The SPR refers to a prior amicable relationship between the pursuer and the
complainer. It mentions that the pursuer's phone and the complainer's phone had been
seized and could be interrogated if required. It notes that, in addition to the emails to which
it refers, other emails existed and it mentions the separate theft inquiry. However, it is plain
from the pursuer's averments that aspects relating to these points, and additional matters,
are alleged to have been suppressed.
(iii)
Relevancy and specification
[79]
The suppressed evidence is said to include the witness statement of Mr McKendrick
but what the evidence was in that statement is not set out. However, the pursuer does aver
that the evidence of Mr McKendrick corroborated the pursuer's statutory defence that he
was contacting the complainer to seek to recover his property and prevent a crime (namely
theft). That is sufficient specification. There are said to be no averments of what was in the
emails that are not mentioned in the SPR, which could have negated reasonable and
probable cause, and moreover the broad reference to an amicable relationship is said to be of
no relevance. However, the pursuer's position is that the contents of the emails are
exculpatory and that they substantiated his defence and again that is sufficient for fair
notice, with the individual emails available to the defender. Other documents, such as the
31
four-page statement referred to by the pursuer, said to contain the information referred to
above, are also available to the defender. On the issue of suppression, it cannot be said that
the pursuer's case must necessarily fail.
Conclusions on relevancy and specification in relation to reasonable and probable cause
[80]
Clearly, when assessing the objective part of the test for reasonable and probable
cause, it is necessary to have regard to the totality of the information which the police ought
to have considered. While the police have to provide all relevant evidence, it is equally
plain from the authorities that there is no requirement that the police produce absolutely
everything, as not every document may have appeared relevant at the time of reporting and
important further inquiries may still be merited. Even if the court was to conclude that a
charge was irrelevant there can still have been a reasonable and probable cause (see eg Rae v
Strathern, 1924 SC 147, Lord Skerrington at p 152-3).
[81]
As was observed by Lord Denning in Glinski and in the authorities quoted above, it
is where the facts and information known to the prosecutor are not in doubt, not disputed,
that the court can determine at this point whether there was a reasonable and probable
cause. It is sufficiently clear, from the pursuer's averments, that this is not the case.
Whether the police officers were truthful or lying and whether the conduct of the police
might reasonably allow the inference that they were conscious there was no reasonable or
probable cause for the prosecution, are evidential matters.
[82]
As is also clear from the authorities, there are potentially connections that can be
drawn between malice and lack of a reasonable and probable cause and the case on malice is
accepted here as being relevantly averred and a matter for proof. There are a number of
interactions between the individual points alleged by the pursuer. If, for example, there was
32
a deliberate failure to investigate a matter which should have been investigated, that can be
potentially relevant to both the subjective and objective element. As an illustration, if the
investigation should have been done and would have found information that materially
affected the complainer's credibility, that could impact on the objective element of
reasonable and probable cause. Deliberate suppression of exculpatory evidence could also
be relevant to both elements. Points made in the pleadings about things found out after the
SPR was submitted could also have affected reasonable and probable cause for the SPR, if it
is established that they should have been known at the time as a result of a necessary
investigation.
[83]
The pursuer has made averments that may have a bearing on the subjective element
and if it were to be established at proof that the police officers each acted maliciously that
could, depending entirely on all of the evidence, potentially point towards a lack of an
honest belief. I therefore conclude that the pursuer's case that the police officers had no
honest belief that there was a proper case to put to the procurator fiscal will not necessarily
fail. In short, from the averments made, it is not possible to look into the minds of the police
at the debate stage.
[84]
In relation to the objective aspect, whether there exist proper grounds to bring the
case is, as the case law above explains, to be judged by reference to the evidence known to
the police and such other evidence as would have been known as a result of any enquiries
that should have been, but were not, made. The pursuer makes averments about both of
these lines of evidence. The question of whether what is averred should have been
investigated and what the result of the further investigations or enquiries would have been,
and how, if at all, they would have affected the existence of reasonable and probable cause
when being objectively assessed, also requires to be dealt with after the evidence has been
33
heard. It is not appropriate for the court to make those value judgments in the abstract,
shorn of the context and detail that may emerge at the proof.
[85]
I conclude that there are averments in relation to both aspects of reasonable and
probable cause which indicate the basis or reason for, or link between, the alleged wrong
and its consequences.
Causation
[86]
The pursuer avers that officers knew that the report made to the procurator fiscal
contained false and misleading information and that no attempt was made to correct it in the
period following the submission of the report. It is then pled that, given the misleading
nature of the report, and the failure to provide further exculpatory evidence when it became
available, the procurator fiscal could not independently discharge their duties. It is said that
the information which exposed a series of lies advanced by the complainer to the police,
when disclosed to the procurator fiscal, contributed to the Crown decision to desert the
indictment and allow the case to go outwith the time-bar.
[87]
It is true that the SPR drew attention to the fact that mobile phones had been seized
and left it to the fiscal to decide whether they should be interrogated. In addition, as noted,
it mentioned the theft inquiry. Also, the witness statements given by Mr McKendrick and
Mr Janick, after the SPR was tendered, are not relevant to the SPR. Nonetheless, the pursuer
avers how the SPR is said to have influenced the procurator fiscal and indeed deprived him
of the ability to exercise independent judgement by the presentation of information the
police officers knew to be false and the suppression of evidence. The pursuer also argues
that the witness statements were, at least for a period of time, suppressed.
34
[88]
The defender says that criticisms of the SPR are not relevant to decisions by the
Crown in phases 3 and 4. It is plainly correct that while the police will carry out the initial
investigations (relevant to phases 1 and 2), what happens next is under the control of the
Crown. However, the pursuer avers that the SPR should not have been prepared and
submitted in the first place and but for the actions of the police officers there should have
been no SPR and no prosecution.
[89]
I accept that from the averments it is not entirely clear what the Crown relied upon
to reach its own independent decision and whether, for example, items said previously to
have been suppressed deprived the Crown of a reasonable opportunity properly to assess
the case. It is evident that a number of items, now referred in the pursuer's averments as
Crown productions, were available to the Crown at the time of the indictment. However,
the Crown's decision to desert the indictment and allow the case to time-bar is averred to
have reflected the fact that the complainer no longer wanted to give evidence in the case and
also because it was clear that she had repeatedly lied to the police. In short, her credibility
and reliability is alleged to have been so compromised by the evidence which the police
should have identified in the SPR that, when it did become known to the Crown, this
contributed to the decision not to pursue the prosecution. The conduct of the police is
therefore averred to have played some part in phases 3 and 4 and been relevant to the
decision by the Crown not to proceed. Of course, whether that can be established is a matter
for evidence.
[90]
The pursuer has a secondary approach, which is that there was a loss of chance, the
point being that the SPR and other alleged failures by the police caused him to lose the
chance of avoiding a criminal prosecution and the losses incurred as a result of the
prosecution. The pursuer also accepts that if the Crown took all material said not to have
35
been investigated or suppressed into account when deciding to prosecute that would affect
the claim for damages. However, at this point in time, on the averments made by the
pursuer, the court is not able to presume or conclude that the Crown could not have been in
any way influenced or misled by the conduct of the police.
[91]
It is abundantly clear in a case of this kind, as is observed by the Lord President in
Grier, that there will be difficulties in relation to causation, given the phases of the process
and the independent decisions made by the procurator fiscal and the Crown. But, for the
reasons explained, I am not persuaded that the pursuer's case on causation, as averred, must
necessarily fail. As a result, the case is not dismissed on that ground and the averments
relating to events from the date of the indictment (September 2015) are not excluded from
probation.
Issue 2: Mr Christopher's report
Legal principles
[92]
The defender submits that the expert evidence of Mr Christopher does not meet three
of the four aspects of the test set out in Kennedy v Cordia (at para [44]): (i) whether the
proposed skilled evidence will assist the court in its task; (ii) whether the witness has the
necessary knowledge and experience; (iii) whether the witness is impartial in his or her
presentation and assessment of the evidence.
[93]
The Supreme Court observed, at para [45], under reference to other authorities, that
it is for the court to decide whether expert evidence is needed when the admissibility of that
evidence is challenged. If, on the proven facts, a judge or jury can form their own
conclusions without help, then the opinion of an expert is unnecessary. Where, on its own
or in addition to an opinion, skilled evidence of fact would be likely to assist the efficient
36
determination of the case, the judge should admit it (para [47]). Reference is made to Davie v
Magistrates of Edinburgh 1953 SC 34, p 40, where the Lord President observed that expert
witnesses cannot usurp the functions of the jury or the judge. The court also referred to
Pora v R [2015] UKPC 9, at para [24], in which the Privy Council stated that it is the duty of
an expert witness to provide material on which a court can form its own conclusions on
relevant issues and that the expert witness should be careful to recognise the need to avoid
supplanting the court's role as the ultimate decision-maker on matters that are central to the
outcome of the case.
[94]
In Kennedy it is then added (at para [49]) that
"Thus, while on occasion in order to avoid elusive language the skilled witness may
have to express his or her views in a way that addresses the ultimate issue before the
court, expert assistance does not extend to supplanting the court as the decision-
maker. The fact-finding judge cannot delegate the decision-making role to the
expert."
[95]
Applying the law to the facts in the case, the court held that:
"[70] ...his expressions of opinion as to what Cordia should have done were
capable of being interpreted as legal opinions that Cordia had breached statutory
regulations and thus objectionable. But the Lord Ordinary applied his own mind to
the legal questions which he had to decide (see our discussion, paras 2125, of this
part of his opinion)."
[96]
There are, in Pora some other points made that are of assistance in the present case. It
was said (at para [24]) that the expert:
"trenchantly asserts that Pora's confessions are unreliable and he advances a theory
as to why the appellant confessed. In the Board's view this goes beyond his role. It
is for the court to decide if the confessions are reliable and to reach conclusions on
any reasons for their possible falsity...it is not open to him to assert that the
confession is in fact unreliable."
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The court later states:
"[27] The dangers inherent in an expert expressing an opinion as an unalterable
truth are obvious. This is particularly so where the opinion is on a matter which is
central to the decision to be taken by a jury. There may be cases where it is essential
for the expert to give an opinion on such a matter but this is not one of them. It
appears to the Board that, in general, an expert should only be called on to express
an opinion on the `ultimate issue' where that is necessary in order that his evidence
provide[s] substantial help to the trier of fact. As observed above, Professor
Gudjonsson could have expressed an opinion as to how the difficulties that Pora
faced might have led him to make false confessions. This would have allowed the
fact finder to make its own determination as to whether the admissions could be
relied upon as a basis for a finding of guilt, unencumbered by a forthright assertion
from the expert that the confessions were unreliable. In this way it would be possible
to keep faith with and preserve the essential independence of the jury's role, which is
to evaluate all the relevant evidence, including both expert evidence and other
evidence which the expert may have no special qualification to evaluate."
The report
[97]
Mr Christopher's report contains an Executive Summary in which he repeatedly
expresses his opinion on whether there was a reasonable and probable cause, states that the
police were determined to follow a pre-determined decision to detain, interview and charge
the pursuer, and that the conduct of the police was deliberate and malicious. In the body of
his report he explains his expertise and states that he has been asked to provide an expert
opinion as to the conduct of the criminal investigation into the allegation of stalking by the
pursuer, with regard to inferred malice.
[98]
He states that not only do the omissions demonstrate a lack of investigative and
interviewing professionalism but, in his opinion, any officer acting ethically, fairly and
honestly in the discharge of their public duties would have included the points to prove and
the statutory defences in the interview plan, to ensure that they were covered. He identifies
things which the police officers should have done but did not do. He also identifies matters
that were not taken into account. He gives his opinion on what should have been
38
investigated. He makes the comment that the police had no probable cause that an offence
of stalking had actually been committed until the statutory defences were eliminated. He
gives his opinion that there was a statutory defence. He explains what he "interpreted" to
reach his views on malice and he gives his opinion on that on many occasions. Examples
can be illustrated as follows:
"120. In my opinion, the failure to expeditiously manage information and exhibits
on the part of the police in this case was not accidental, human error, simple
omission or incompetence. The failure by the police was deliberate, wilful and
malicious...
122.
In my opinion, the police intentionally and maliciously suppressed evidence
available from the forensic analysis of exhibits so that the PF received an incomplete,
inaccurate and misleading picture of the circumstances...
124.
In my opinion, the police suppressed the evidence arising from the forensic
analysis of exhibits because they knew it would have demonstrated that
Mr MacGregor had a statutory defence to the allegation of stalking...
126.
In my opinion, the information provided initially to the PF was biased,
incomplete and inaccurate.
127.
In my opinion, the police acted in a prejudicial and discriminatory fashion
towards Mr MacGregor."
[99]
He goes on to give his own opinion on the application of the law as set out in Grier
on reasonable and probable cause. Further comments are made by him on the subjective
element. There are many illustrations and again by way of example they include the
following:
"244. In my opinion, the police pre-determined on 30th September 2014 that
Mr MacGregor was going to be charged with the offence of stalking...
257.
In my opinion, the purpose of the police in furnishing a selective and biased
SPR was to influence the PF to prosecute Mr MacGregor.
258.
In my opinion, the PF was prevented from exercising his independent
judgement by the police submitting a selective and biased SPR...
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260.
In my opinion, the reason the police suppressed exculpatory evidence from
the PF was to ensure the prosecution was not undermined or jeopardised and would
proceed against Mr MacGregor.
261.
In my opinion, the police deliberately tried to mislead or dupe the Crown into
mounting a prosecution of Mr MacGregor on the basis of inaccurate or tainted
evidence...
263.
In my opinion, the foregoing catalogue of actions conducted by the police
during this investigation could not have been accidental, simple omission or human
error.
264.
In my opinion, the conduct of the police was deliberate and malicious
towards Mr MacGregor...
266.
In my opinion, the conduct of the police demonstrated prejudice and
discrimination towards Mr MacGregor with a wilful and malicious intent that he was
prosecuted for the offence of stalking."
Application of the law
[100]
It is convenient to deal with the second and third elements of the test in Kennedy v
Cordia and then to assess the admissibility issues on the opinions expressed by
Mr Christopher, referred to above.
Knowledge and experience
[101]
The defender argues that Mr Christopher does not have the necessary knowledge
and experience, in part because he has not worked in the police service in Scotland. I do not
accept that proposition. Mr Christopher's qualifications and experience, albeit in England,
give him the ability to deal with the relevant matters. He has suitable experience in
addressing what constitutes improper police conduct in the process of investigating crime.
His experience is both practical and academic. He spent 29 years in the police service and
achieved the rank of Detective Chief Inspector. He has extensive experience of working in a
Professional Standards Unit. His academic experience includes lecturing in policing at De
40
Montfort University and as a senior lecturer in criminal investigation. He plainly had
regard to the legal position and guidelines in Scotland, which he repeatedly mentions. The
court may benefit from skilled evidence regarding the ordinary practice of the police in
conducting a criminal investigation. Policies, practices and procedures of the police are, at
least to some extent, outwith the knowledge and experience of the court. He has sufficient
knowledge and experience.
Impartiality
[102]
I also do not accept the defender's position that Mr Christopher is not impartial and
engages in prejudicial speculation. It is simply not possible to glean any such conclusion
from the terms of his report alone. There is no basis in the report for there being any conflict
of interest on his part. Any question of impartiality, if still live, can no doubt be addressed
at the proof.
Opinion evidence
[103]
It is clear from the authorities that for the expert to give his opinion on what is an
ultimate issue before the court it requires to be necessary (or, to use the other expression,
essential), to help the judge or jury. In professional negligence cases it is common to have an
expert opining on the ultimate question of negligence, giving their view on whether no
practitioner of ordinary skill in that discipline would have acted as the defender did. That
conclusion will be drawn by the expert from his reasoning. In those cases, it is necessary to
give that opinion to assist the court.
[104]
In the circumstances of this case, a skilled witness is entitled to explain the practice
and process of the police in considering an alleged crime. This allows him to assess what, in
41
his view, they should have done, by way of investigation and disclosure, and what he
considers they did not do, identifying the matters they did not take into account. These
observations can take him on to whether the SPR properly covers the relevant matters.
[105]
While his opinion on whether there is a reasonable and probable cause may be
viewed as a corollary to his analysis and an obvious outcome, it is clear that opining on the
objective element of probable cause is the expression of an opinion on a question of law,
which is one of the ultimate matters for the court to determine. That is the case even though
his reasoning will inextricably lead to that conclusion. As a consequence, the multiple parts
of Mr Christopher's report in which he expresses his own views on the objective element of
reasonable and probable cause are not admissible.
[106]
This is an intentional delict case, hence involving malice. The decision on malice is
also an evaluative judgment and is another example of an ultimate issue to be determined
by the court. The opinions Mr Christopher gives on whether there was malice are
inadmissible because on that ultimate issue the court needs no assistance and can readily
decide on its assessment of the evidence as a whole. A similar approach was taken in
relation to a police witness in Galletly v Laird 1952 JC 16, who was asked if the publication
was "obscene" (Lord Justice General (Cooper) at p 27). The decision on the subjective
element, involving assessing what was in the mind of the police officers at the time and their
honesty, is also something that can readily be determined by the court based on all of the
evidence and again it is not assisted by expert evidence.
[107]
As a result, on malice and honesty, Mr Christopher oversteps the mark (although
instructed to do so) when he interprets or draws inferences from the facts and gives his
opinions on whether the officers had pre-determined that they would have the pursuer
charged and that they acted with bias, wilfully, deliberately and maliciously and
42
intentionally suppressed evidence. His evidence on the legal conclusion of there being
malice and dishonesty is therefore irrelevant. The defender submits that he does not
address the correct test for malice. I need not consider that further because his opinions on
whether there was malice are inadmissible. The judge dealing with the proof will apply the
appropriate tests and, on the evidence, reach a decision on malice and reasonable and
probable cause.
[108]
On a separate point, Mr Christopher also makes these comments:
"69.
In my experience, statutory defences or a straightforward defence to offences
must always be considered when conducting an investigation and planning an
interview. That applies from the most minor to the most serious crime. Where a
suspect puts forward a defence to an allegation, it is essential that the account is
investigated until it is confirmed or dismissed. A simple example of this is where a
suspect submits a defence of alibi when interviewed. That account of alibi has to be
investigated before any consideration is given to charging the suspect because, if the
defence is corroborated, there is no probable cause that the individual committed the
crime."
On a number of other occasions he states that the defence had to be "eliminated" before the
pursuer could be charged.
[109]
In the absence of Mr Christopher providing any proper basis for that approach,
serious concerns arise from the suggestions that a defence of alibi would have to be
dismissed or eliminated before a reasonable and probable cause can exist, and that the
defence must be taken as confirmed if it is corroborated. If it is absolutely clear that there
was an alibi (for example shown categorically by CCTV footage) it may be that the police
can go no further. But absent such information, when a defence is put forward, the
commonplace situation in criminal trials is that a special defence is lodged, evidence about it
is led and the jury determines the matter. While I have concluded that there is a relevant
case pled by the pursuer in relation to a potential defence, the police do not need to
completely dismiss the defence before they can issue an SPR. This part of Mr Christopher's
43
report is therefore irrelevant, as is the averment for the pursuer that he should only have
been charged if, after the investigations, it was demonstrated that the statutory defence did
not apply.
[110]
Mr Christopher goes on to give his opinion, expressed on several occasions, that
there was in fact a statutory defence. This is another example of a decision on a matter of
law that is to be left to the court. That opinion evidence is inadmissible.
[111]
It is argued for the pursuer that there is no specific plea-in-law for the defender
seeking exclusion of Mr Christopher's evidence. That is correct and there is also no standard
plea-in-law seeking exclusion of averments from probation (except one in relation to malice,
which was not, of course, relied upon). However, practically speaking the broad terms of
the defender's second plea-in-law, seeking dismissal based on averments being irrelevant,
allow me to exclude any particular irrelevant averments. Significant portions of
Mr Christopher's report are inadmissible and require to be excluded.
[112]
Mr Christopher's report is incorporated in full in the pleadings. As I have indicated,
some of the points he makes do not fall foul of the requirements set out in Kennedy v Cordia.
That said, there is a degree of difficulty in filleting the report down to admissible evidence,
when problems arise from particular paragraphs, parts of a sentence or sentences. I shall
therefore identify only the full, or almost full, numbered paragraphs in the report that are
admissible and able to remain. These are: 12-18; 21-31; 33-45; 47-57; 58 (apart from the last
two sentences); 60; 63-64; 66; 67 (apart from the last sentence); 68 (apart from the last
sentence); 72; 75-79; 80 (apart from the second-last sentence); 81; 83-85; 86 (apart from the
second-last sentence); 89-90; 91 (apart from the fourth-last and last sentence); 92 (apart
from the last three sentences); 95-96; 99; 102-103; 105-111; 116; 118-119; 128-134; 136;
139; 146; 148; 149; 155-156; 159-161; 163-167; 169-171; 173; 176; 178-200; 238-239; 241;
44
245-247; 248 (apart from the last seven words); 249; 252; and 254 (apart from the last seven
words). The rest of the paragraphs in the report, and the sentences and words just
mentioned, are excluded from probation.
[113]
On behalf of the defender, it was argued that if parts of the report are inadmissible
the whole report should be excluded from probation, with reference made to Eadie Cairns v
Programmed Maintenance Painting Ltd 1987 SLT 777. However, that case did not involve
incorporation of an expert report into the pleadings. In the present case, the pursuer relies
upon the whole report, including on relevancy, and it is not appropriate to exclude the parts
of it that are admissible.
[114]
While I have not excluded the report from probation in its entirety, a redacted
version leaving only the passages which can remain would not be as easy to follow. It
would plainly be much more sensible and appropriate for a revised report to be prepared,
which can seek to include any parts of the current report that do not go beyond the limits of
expert evidence.
Conclusions
[115]
There are substantial obstacles and challenges for a pursuer in an action of this kind
and on several aspects of the case the test he will require to meet is a high one. But, where
sufficient averments are made the pursuer must have the opportunity to seek to meet the
tests. It is accepted for the defender that malice is a matter for proof and it is clear from the
authorities that, on relevant averments, the subjective and objective elements of reasonable
and probable cause will also require evidence. Indeed, as is made clear, the evidence on
malice may have a bearing on those elements. For the reasons stated, I do not conclude that
the pursuer's case is bound to fail.
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[116]
Mr Christopher's report, while it contains some information that is admissible and
provides details relied upon by the pursuer, in numerous respects strays beyond what an
expert is entitled to say. Substantial parts of it are therefore excluded from probation and it
would be prudent for a revised version to be prepared.
Disposal
[117]
I shall therefore sustain the second plea-in-law for the defender to the extent of
excluding from probation (i) the contents of the report by Mr Christopher other than the
passages referred to above, and (ii) the pursuer's averment in Article 4.4 "and it was
demonstrated the statutory defence did not apply". I shall repel the defender's third
plea-in-law and quoad ultra allow a proof before answer. All questions of expenses are
reserved.
