Introduction

MacGregor v Livingstone [2024] CSOH 109 is a pivotal case adjudicated in the Scottish Court of Session's Outer House. The litigants, Brian MacGregor (Pursuer) and Iain Livingstone QPM, Chief Constable (Defender), grappled with allegations of malicious prosecution stemming from the submission of a Standard Prosecution Report (SPR) by police officers. The case delves into whether the SPR was deliberately false and misleading, thereby justifying MacGregor's claim for damages against the Chief Constable.

Summary of the Judgment

The court, presided over by Lord Clark, thoroughly examined the merits of MacGregor's allegations against Chief Constable Livingstone. MacGregor contended that the SPR, prepared by police officers, was intentionally false and omitted exculpatory evidence, thereby obstructing the procurator fiscal's ability to exercise independent judgment. The defender refuted these claims, arguing irrelevance and lack of specification in MacGregor's pleadings, and challenged the admissibility of an expert report by Mr. Christopher.

The court considered two primary issues: the relevancy and specification of MacGregor's allegations concerning reasonable and probable cause, and the admissibility of Mr. Christopher's expert report. While acknowledging the complexities and potential hurdles in proving malicious prosecution, the court ruled that MacGregor's case was not inherently bound to fail, thereby allowing a proof before answer. However, substantial portions of Mr. Christopher's report were excluded from probation due to overstepping the bounds of expert testimony.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shaped the court's reasoning:

• Grier v Lord Advocate [2023] SC 116: Clarified the standards for police liability in submitting SPRs.
• Kennedy v Cordia [2016] SC (UKSC) 59: Established criteria for the admissibility of expert evidence.
• Glinski v McIver [1962] AC 726: Provided foundational elements for assessing reasonable and probable cause.
• Stuart v Attorney General of Trinidad and Tobago [2023] 4 WLR 21: Emphasized the dual aspects of reasonable and probable cause—subjective and objective.
• Rogers v Orr 1939 SC 121: Discussed the inference of malice from circumstantial evidence.

These cases collectively informed the court's approach to determining the validity of MacGregor's claims, especially concerning the intentionality behind the SPR's content and the proper use of expert testimony.

Legal Reasoning

Lord Clark's opinion meticulously dissected the elements required to establish an intentional delict, specifically focusing on:

• Malice: Must be proven as an improper motive beyond a bona fide intention to administer justice.
• Reasonable and Probable Cause: Comprises both subjective belief and objective grounds supporting the prosecution.
• Causation: MacGregor must demonstrate that the alleged false SPR directly led to the inability of the Crown to exercise independent judgment.

The court emphasized that while MacGregor presented substantial averments, the ultimate determination of malice and reasonable cause would require comprehensive evidence presented during the proof phase.

Impact

This judgment underscores the stringent standards courts uphold in evaluating claims of malicious prosecution. It highlights the critical role of SPRs in the prosecutorial process and sets a precedent for scrutinizing the integrity of such reports. Additionally, the court's stance on the admissibility of expert reports, particularly those that venture into legal conclusions, will influence future litigations involving similar expert testimonies.

Complex Concepts Simplified

Standard Prosecution Report (SPR)

An SPR is a document prepared by the police outlining the evidence against a suspect, submitted to the procurator fiscal to initiate criminal proceedings.

Malicious Prosecution

This refers to the wrongful initiation of legal proceedings against an individual without reasonable grounds, often driven by improper motives such as malice.

Reasonable and Probable Cause

A legal standard requiring that there be a rational basis for believing that a crime has been committed and that the accused is responsible before initiating prosecution.

Delict

In Scots law, a delict is a wrongdoing or tort that allows for civil action, similar to the concept of a tort in other jurisdictions.

Conclusion

MacGregor v Livingstone [2024] CSOH 109 serves as a significant milestone in Scottish jurisprudence concerning malicious prosecution and the admissibility of expert evidence. The court's balanced approach, acknowledging the complexities in proving malice and reasonable cause while setting clear boundaries for expert testimonies, provides a robust framework for future cases. This judgment reinforces the necessity for meticulousness in preparing SPRs and ensuring their accuracy, thereby safeguarding the principles of justice and fairness in the prosecutorial process.

Practitioners should take heed of the heightened scrutiny applied to expert reports and the emphasis on substantiated averments in malicious prosecution claims. The delineation between recoverable misconduct by police officers and the protective autonomy of the Crown in prosecutorial decisions remains a cornerstone of this legal landscape.