Scottish Sheriff Court Decisions

ALAN RAYMOND MYLES v. BARRY HEYWOOD [2001] ScotSC 16 (10th September, 2001)

This case came before me in chambers when Mr Hall, the pursuer's solicitor sought a warrant to cite the defender who is the regional procurator fiscal of Tayside, Central and Fife, together with interim interdict in terms of his first crave.

The first crave is in the following terms:-

The pursuer avers that the complaint referred to in the crave contains two charges. The first is a charge of making false representations to police officers, and the second is one of attempted fraud. He further avers that the police report on which this complaint is based discloses insufficient facts to permit the defender to arrive at the conclusion that the alleged offences had been committed by the pursuer and that by raising the complaint the defender had failed to follow the appropriate procedure and had acted "outwith the guidelines established for the raising of prosecutions". Reference is made to a Crown Office publication "The Prosecution of Crime in Scotland". The pursuer avers that the defender has raised a "speculative prosecution" and has acted in an oppressive manner, thus breaching the pursuer's right to a private life under Article 8 of the European Convention on Human Rights. He goes on to aver that the pursuer, who is a publican, seeks interim interdict because he has been called upon to appear before the Licensing Board for the City of Dundee on 11 September to answer an objection by the police to the renewal of his licence on the basis that he is no longer a fit and proper person to hold a licence because of the pending prosecution.

Mr Hall addressed me in support of his motion for a warrant to cite and interim interdict. He accepted that the action was an unusual one but submitted that it was competent. The defender was a public authority who was obliged to comply with the provisions of the European Convention. The pursuer was entitled to raise a civil action to vindicate his Convention rights, even though the alleged breach of these rights was by way of a criminal prosecution.

In my opinion, this action is clearly incompetent. A sheriff sitting in his civil capacity has no power to interdict a procurator fiscal from proceeding with a criminal prosecution. Mr Hall referred me to no authority in which a sheriff had granted such an interdict.

Mr Hall, as I understood him, sought to equiperate the present action to an action against the Crown in its civil capacity. However, in my opinion, this argument is ill founded as the general rule is that interdict against the Crown cannot be granted (Crown Proceedings Act 1947, sections 21(1), 42 and 43). Whether a civil action might be brought against the Crown to recover damages resulting from a malicious prosecution is, of course, a different matter, but that has nothing to do with the present case.

I suggested to Mr Hall that the appropriate forum in which to take objection to the criminal prosecution was the High Court of Justiciary where the pursuer could seek suspension of the proceedings. That was, of course, only a suggestion, and I cannot say whether such an application would find favour with the High Court.

On the whole matter, I was clearly of opinion that this action was misconceived. I accordingly refused to grant a warrant to cite.