Introduction

The case of David Henry Grier against the Lord Advocate ([2021] CSOH 28) represents a significant examination of the standards governing wrongful and malicious prosecution within the Scottish legal framework. The pursuer, David Henry Grier, was implicated in various offenses connected to the 2011 acquisition of a controlling shareholding in Rangers Football Club plc by Craig Whyte. Employed as a business restructuring consultant, Grier faced charges including conspiracy to defraud, which were later deemed legally irrelevant by Lord Bannatyne. This commentary explores the judicial reasoning, precedents cited, and the broader implications of the court's decision on future prosecutions and civil actions in Scotland.

Summary of the Judgment

The Scottish Court of Session, represented by Lord Tyre, addressed Grier's civil actions for damages arising from wrongful and unlawful prosecution, as well as malicious prosecution. The central issue revolved around whether the prosecution had a relevant and sufficiently specific defense that its actions were objectively justified, i.e., whether there was reasonable and probable cause to pursue the charges. The court analyzed previous case law, including Craig v Peebles and Lightbody v Gordon, to determine the applicability of the "reasonable and probable cause" standard in this context. Ultimately, Lord Tyre concluded that there remained relevant defenses concerning both the primary charge ("Independent Committee charge") and an additional charge ("Letter of Comfort charge"), necessitating further inquiry. The court did not dismiss Grier's claims at this stage, reserving judgment pending additional facts and arguments.

Analysis

Precedents Cited

The judgment extensively references key precedents that shape the understanding of wrongful and malicious prosecution in Scotland:

• Craig v Peebles (1876) 3R 441: This case examined the absence of reasonable and probable cause in the context of wrongful prosecution, establishing that even relevant averments of malice do not suffice without demonstrating the lack of probable cause.
• Lightbody v Gordon (1882) 9R 934: Focused on slander in malicious prosecution, this case clarified that malice requires both illegitimate motives and actions without reasonable grounds of belief, emphasizing the need for probable cause.
• Lin v HM Advocate (2014) SLT 173 & Lauchlan v HM Advocate (2010 SCCR 347): These cases were referenced regarding the prima facie case requirement at the petition stage, detailing how evidence must establish a basic foundation for prosecution charges.
• Coudrat v HMRC [2005] STC 1006: Cited to argue that charges not addressed in criminal proceedings should not be presumed irrelevant.
• HM Advocate v Turner [2020] HCJ 12: Discussed in relation to the scope of attempting to pervert the course of justice, although its applicability was limited due to its later decision date.
• Additional references include earlier authorities indicating that false defenses to the police can constitute an attempt to pervert justice.

Legal Reasoning

Lord Tyre's legal reasoning focused on delineating the boundaries of "reasonable and probable cause" in public prosecutions. He articulated that dismissing charges as irrelevant typically suggests a lack of such cause. However, he acknowledged exceptions where complex or controversial legal points might not necessarily negate the presence of probable cause. The analysis also differentiated between subjective and objective assessments of probable cause, emphasizing that the court must consider whether, from an objective standpoint, the prosecution was justified in initiating and continuing the proceedings.

Furthermore, the judgment distinguished between the two charges in the petition: the "Independent Committee charge" and the "Letter of Comfort charge." While the former had been previously scrutinized and found irrelevant, the latter had not been judicially determined and thus required further examination. The court recognized that errors in the prosecution's understanding or application of the law at different stages could influence the assessment of probable cause.

Impact

This judgment has several potential impacts on future cases and the broader legal landscape in Scotland:

• Clarification of Probable Cause Standards: By dissecting the concept of reasonable and probable cause, the court provides clearer guidelines for assessing the validity of prosecutions, particularly in cases where charges are dismissed as irrelevant.
• Influence on Malicious Prosecution Claims: The emphasis on objective assessments of prosecution justification will likely influence how future malicious prosecution claims are evaluated, ensuring that plaintiffs must demonstrate a clear lack of probable cause beyond mere prosecutorial error.
• Guidance on Complex Legal Charges: The recognition that complex or controversial points of law do not automatically negate probable cause offers prosecutorial leeway in nuanced cases, balancing the need for thorough investigations with protection against frivolous charges.
• Precedential Value of Historical Cases: By upholding and applying precedents like Craig v Peebles, the court reinforces the importance of historical case law in contemporary legal reasoning.

Complex Concepts Simplified

Reasonable and Probable Cause

This legal standard assesses whether there is sufficient evidence to justify the initiation and continuation of criminal proceedings. It requires that, from an objective standpoint, a reasonable person would believe that the evidence presented warrants prosecution.

Prima Facie Case

A prima facie case refers to the establishment of a legally required rebuttable presumption. In the context of prosecution, it means that the evidence presented is sufficient to support the charges unless disproven by the defense.

Malicious Prosecution

Malicious prosecution involves the initiation of legal proceedings without reasonable grounds, with malice, and for an improper purpose. It aims to protect individuals from unfounded or vindictive legal actions.

Perverting the Course of Justice

This offense involves actions intended to interfere with the administration of justice. It requires a deliberate attempt to obstruct legal proceedings, such as providing false information to authorities.

Conclusion

The judgment in Grier v Lord Advocate serves as a pivotal reference point in the realm of wrongful and malicious prosecution within Scotland. By meticulously dissecting the standards of reasonable and probable cause, and examining relevant precedents, the court has fortified the legal framework that governs the legitimacy of prosecutorial actions. This decision underscores the necessity for objective justification in public prosecutions and delineates the boundaries within which civil actions for malicious prosecution should be evaluated. As the legal landscape evolves, this judgment will undoubtedly inform and guide future cases, ensuring a balanced approach between upholding justice and safeguarding individuals against unfounded legal charges.