Malicious Prosecution in Scottish Law: Insights from DAVID GRIER v. Chief Constable and The Lord Advocate ([2022] CSOH 2)

Introduction

The case of DAVID GRIER v. Chief Constable, Police Scotland and DAVID GRIER v. The Lord Advocate ([2022] CSOH 2) presents a significant examination of the tort of malicious prosecution within Scottish law. The pursuer, David Grier, sought damages alleging wrongful, unlawful, and malicious prosecution by both the Chief Constable of Police Scotland and the Lord Advocate. This commentary delves into the intricacies of the judgment, exploring its implications for future legal precedents and the delineation of prosecutorial responsibilities.

Summary of the Judgment

The Scottish Court of Session analyzed claims made by David Grier against the Chief Constable and the Lord Advocate, asserting that his detention and subsequent prosecution were carried out maliciously and without reasonable and probable cause. The central thrust of Grier's argument was that the prosecution was not only unfounded but also pursued with malice, thereby entitling him to damages.

However, the court meticulously evaluated the elements required to establish malicious prosecution and found that Grier failed to substantiate his claims against both defendants. The court concluded that there was no objective reasonable and probable cause for the prosecution and that the actions taken by both the Chief Constable and the Lord Advocate did not exhibit malice as defined under Scottish law.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that shape the tort of malicious prosecution:

• Whitehouse v Lord Advocate (2020 SC 133): Overruled earlier authority, establishing that the Lord Advocate is not immune from malicious prosecution claims.
• Nelles v Attorney General for Ontario [1989] 2 SCR 170: Outlined the essential elements required to prove malicious prosecution.
• Performance Cars Ltd v Abraham [1962] 1 QB 33 (CA) and Clinton and Barry v News Group Papers Ltd (1998): Discussed causation and the attribution of damages in cases involving multiple wrongful acts.
• Martin v Watson [1996] AC 74, Mahon v Rahn (No.2) [2000] 1 WLR 2150 (CA), AH v AB [2009] EWCA Civ 1092, and Rees v Commissioner of Police for the Metropolis [2018] EWCA 1587: Explored the definition of a "prosecutor" and when police actions might constitute prosecutorial behavior liable for malicious prosecution.

Legal Reasoning

The court dissected the four essential elements of malicious prosecution as outlined in Nelles:

1. Initiation of Proceedings: The prosecution must be initiated by the defendant.
2. Termination in Favor of Plaintiff: The proceedings must conclude favorably for the plaintiff.
3. Absence of Reasonable and Probable Cause: The prosecution must lack reasonable grounds.
4. Malice: The prosecution must be driven by an improper motive.

The judgment emphasized that in Scottish law, prosecutorial responsibility resides with the Crown, not the police. Therefore, for the police to be deemed "prosecutors," it must be shown that their actions deprived the Crown of its independent prosecutorial judgment through presenting false or tainted information.

Applying this framework, the court found:

• Absence of Reasonable and Probable Cause: Grier did not establish that the prosecution lacked objective reasonable and probable cause. The errors identified in the prosecution process were not sufficient to negate the existence of a proper case.
• Malice: There was no evidence that the Chief Constable or the Lord Advocate acted with malice or an improper motive. Their actions were seen as driven by a desire to administer justice, albeit with procedural oversights.

Impact

This ruling has profound implications for the delineation of responsibilities within Scottish law, particularly concerning the roles of the police and the Crown in prosecutorial conduct. By affirming that the police are not "prosecutors" unless their actions directly deprive the Crown of its prosecutorial discretion, the judgment sets a clear boundary that protects police from being held liable for prosecutorial actions unless there is overt misconduct undermining the Crown's role.

Furthermore, the judgment underscores the high threshold for proving malice, thereby reinforcing that operational or procedural errors do not equate to malicious intent. This fortifies the principle that prosecutions should be conducted with integrity, free from improper motives, without rendering the prosecutorial immunity too restrictive.

Complex Concepts Simplified

Malicious Prosecution refers to initiating legal proceedings against someone without sufficient reason and with improper motives. To succeed, the claimant must prove that the prosecution was wrongful, lacked reasonable grounds, and was driven by malice.

Reasonable and Probable Cause means there must be a legitimate and justified basis for the prosecution. It isn't enough for the prosecutor to believe in the defendant's guilt; there must be objective evidence supporting that belief.

Prosecutorial Immunity is a legal doctrine protecting prosecutors from being sued for actions taken in the course of their official duties, ensuring they can perform their functions without fear of personal liability.

Conclusion

The judgment in DAVID GRIER v. Chief Constable and The Lord Advocate clarifies the stringent requirements for establishing malicious prosecution within Scottish law. By highlighting the separation of investigatory and prosecutorial roles, and setting a high bar for proving malice, the court reinforces the integrity of the legal process while providing necessary protection against unfounded claims. This decision serves as a pivotal reference for future cases, ensuring that the principles of justice are upheld without compromising prosecutorial independence.