Introduction

The case of David Henry Grier against the Lord Advocate ([2021] ScotCS CSOH_18) presents a significant examination of wrongful and malicious prosecution within the Scottish legal framework. The pursuer, David Henry Grier, was implicated in charges related to the acquisition of Rangers Football Club plc by Craig Whyte’s company in 2011. Employed as a business restructuring consultant at the time, Grier faced various allegations, including conspiracy to defraud. This case delves into whether the prosecution against Grier was initiated and maintained without reasonable and probable cause and whether it was malicious, thereby setting important precedents for future legal disputes surrounding prosecutorial conduct.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord Tyre, addressed Grier's claims for damages due to wrongful and unlawful prosecution, alongside a separate claim for malicious prosecution. Central to the judgment was the determination of whether the prosecution was initiated and continued without reasonable and probable cause and whether malice was present.

The Court scrutinized the Crown's handling of the indictments, particularly focusing on the relevancy of the fraud charges against Grier. It was found that the charges lacked sufficient connection between the alleged false pretenses and the practical outcome of acquiring the majority shareholding in Rangers. Consequently, the Court held that there was no reasonable and probable cause for the prosecution, thereby supporting Grier's claim of wrongful prosecution. However, the aspect of malice remained to be addressed in further proceedings.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to frame the standards for malicious prosecution:

• Shedden v Patrick (1852): Established that prosecutions alleging fraud must contain "specific and relevant" averments to proceed to proof.
• Miazga v Kvello (2009): A Canadian Supreme Court case that outlined a four-part test for malicious prosecution, emphasizing the necessity of proving absence of reasonable and probable cause and malice.
• A v New South Wales (2007): Highlighted the evolving nature of prosecutorial immunity.
• Clerk & Lindsell on Torts: Provided foundational insights into tortious claims related to malicious prosecution.
• Whitehouse v Lord Advocate (2020): Overruled previous immunity cases, aligning with the principles discussed in Miazga.

These precedents collectively informed the Court's approach to evaluating the subjective and objective components of reasonable and probable cause, as well as the presence of malice in prosecutorial actions.

Legal Reasoning

Lord Tyre’s legal reasoning centered on dissecting the elements required to establish malicious prosecution under Scottish law, influenced heavily by the Canadian test from Miazga v Kvello. The analysis was bifurcated into:

• Reasonable and Probable Cause: Both subjective belief and objective justification were examined. The Court determined that the Crown’s charges lacked a direct link between Grier's alleged misrepresentations and the practical result of acquiring Rangers, rendering the prosecution baseless.
• Malice: While not fully adjudicated in this opinion, the Court acknowledged that procedural failings by the Crown could indicate malice, necessitating further examination in subsequent hearings.

The judgment underscored the importance of precise and substantiated charges in prosecutorial actions, highlighting that vague or irrelevant allegations fail to meet the threshold of reasonable and probable cause, thereby necessitating dismissal.

Impact

This judgment reinforces the stringent requirements for initiating and maintaining criminal prosecutions in Scotland. By adopting aspects of the Canadian standard, the Court has bridged international jurisprudence with Scottish law, potentially shaping future assessments of prosecutorial conduct. The clear delineation of what constitutes reasonable and probable cause, alongside the necessity of proving malice, sets a robust framework that prosecutors must adhere to, thereby safeguarding individuals against unfounded and potentially malicious legal actions.

Complex Concepts Simplified

Malicious Prosecution

Malicious prosecution occurs when an individual is subjected to legal proceedings without reasonable cause and with malicious intent by the prosecutor. This tort requires the claimant to prove that the prosecution was initiated with improper motives beyond enforcing the law.

Reasonable and Probable Cause

This standard assesses whether there was sufficient evidence and rational basis for the prosecution to proceed. It involves both the prosecutor's honest belief in the evidence (subjective) and an objective evaluation of whether the evidence supports the charges.

False Pretence

A false pretence involves deliberately providing misleading information to achieve a practical outcome, such as fraudulently acquiring assets or influence.

Conclusion

The Grier v Lord Advocate judgment serves as a pivotal reference in Scottish law regarding the standards for wrongful and malicious prosecution. By emphasizing the necessity of specific and relevant charges supported by reasonable and probable cause, the Court reinforces the integrity of the prosecutorial process. Additionally, the alignment with international legal standards from cases like Miazga v Kvello underscores the evolving nature of Scots law in addressing complex issues of prosecutorial conduct and civil remedies for plaintiffs. As this case progresses to address the element of malice, its outcomes will further delineate the boundaries within which prosecutors must operate, ensuring that legal actions are both justified and free from improper intent.