Section 170 CPSA 1995 Declared Article 6-Incompatible: Blanket Immunity from Malicious Prosecution Claims in Summary Proceedings

1) Introduction

In Mark Hirst against The Chief Constable Police Service of Scotland and others [2026] CSOH 8, the pursuer (Mark Hirst) sought damages for malicious prosecution arising from Police Scotland’s investigation and the Crown Office and Procurator Fiscal Service’s (COPFS) decision to prosecute him following his YouTube video posted shortly after Alex Salmond’s acquittal in March 2020.

The case was brought against (i) the Chief Constable (for police actings: warrant-related steps, search, interview, charge, and report) and (ii) the Lord Advocate (for COPFS actings: drafting/presenting the warrant application and instituting/maintaining the summary prosecution).

The core issues were:

  • Whether a relevant case of malicious prosecution was pled against either defender.
  • Whether there was an absence of reasonable and probable cause (objective and/or subjective).
  • Whether malice was relevantly averred.
  • Whether Criminal Procedure (Scotland) Act 1995, section 170 barred the claim (and whether it was compatible with Article 6 ECHR).

2) Summary of the Judgment

  • The claim against the Chief Constable was dismissed as irrelevant: in Scotland the police do not initiate prosecutions, and the pursuer did not plead a viable alternative basis of liability.
  • On the merits, the court held there was no objective reasonable and probable cause:
    • for prosecution under Criminal Justice and Licensing (Scotland) Act 2010, section 38(1); and
    • for seeking the warrant on the basis of Communications Act 2003, section 127.
  • The pursuer’s pleadings contained relevant averments of malice sufficient to go to proof (but for the statutory bar).
  • However, the action against the Lord Advocate was nevertheless dismissed because section 170 CPSA 1995 applied:
    • the pursuer had not suffered imprisonment; and
    • the action was not raised within the section’s short limitation period.
  • The court made a declaration of incompatibility under Human Rights Act 1998, section 4: section 170 CPSA 1995 is inconsistent with Article 6 ECHR because it imposes a blanket, unjustifiable restriction on access to a determination of the merits of a malicious prosecution claim.

3) Analysis

3.1 Precedents Cited

(A) Elements of malicious prosecution and the “probable cause + malice” architecture

  • Whitehouse v Lord Advocate 2020 SC 133, [2019] CSIH 52: Lord Lake adopts the Inner House formulation of the four elements of malicious prosecution (initiation by defender; favourable termination; absence of reasonable and probable cause; malice/ulterior purpose). The opinion also relies on Whitehouse for the policy balance: prosecutors should be protected from mistake and error, but not where they act maliciously and without probable cause.
  • Jamieson v Jamieson 1952 SC (HL) 44: sets the threshold for relevancy at debate; used to assess whether averments of malice/ulterior purpose are sufficient to proceed.

(B) Reasonable and probable cause: objective/subjective and the judge’s role

  • McGregor v Chief Constable [2024] CSOH 109 and Stuart v Attorney General of Trinidad and Tobago [2023] 4 WLR 21, [2022] UKPC 53: relied upon for the dual nature of probable cause (objective grounds + subjective belief) and the idea that a prosecutor need not believe the case will succeed—only that it is proper to lay it before the court.
  • Glinski v McIver [1962] AC 726: used for (i) the “proper case to lay before the court” formulation and (ii) the proposition that where facts are not in dispute, probable cause can be determined by the judge as a matter of law.
  • Rae v Strathern 1924 SC 147: cited for the idea that lack of probable cause arises where the prosecutor’s view is “so obviously wrong” as to lack any basis.
  • Craig v Peebles (1876) 3 R 441 and Lightbody v Gordon (1882) 9R 934: used (via the Grier litigation) to show that dismissal/irrelevancy does not automatically equate to absence of probable cause, especially where the prosecution tests a genuinely doubtful or novel legal issue.
  • Grier v Lord Advocate 2023 SC 116, [2022] CSIH 57 and Grier v Lord Advocate [2021] CSOH 18, 2021 SLT 371 and [2021] CSOH 28, 2021 SLT 833: these decisions supply (i) the constitutional delineation between police investigation and Crown prosecution, and (ii) the careful treatment of “irrelevancy/no case to answer” outcomes when assessing probable cause. Lord Lake uses them to frame both the Chief Constable’s non-liability in malicious prosecution and the approach to probable cause.
  • Beaton v Ivory (1887) 14 R 1057: provides the “very strong” presumption that public officers act honestly and bona fide; approved in Grier. It informs the submission that pleadings require clear averments to displace that presumption.

(C) Police/prosecution separation and when police might be civilly responsible

  • Smith v HMA 1952 JC 66: foundational Scottish authority on the separation of roles—police investigate/report; the procurator fiscal decides prosecution. Lord Lake treats this as decisive against framing a police-led malicious prosecution claim.
  • McGregor v Chief Constable [2024] CSOH 109: treated as illustrating a limited route to police liability where police reporting misstates or omits critical material so as to undermine the Crown’s independent judgment (a route not pled here).

(D) Substantive criminal law context: why section 38 and section 127 did not fit

  • R v Murphy [2015] HCJAC 34, Angus v Nisbet [2010] HCJAC 76, 2011 JC 69, Smith v Donnelly 2002 JC 65: used to emphasise that section 38 requires more than annoyance or offensiveness; the conduct must be threatening or abusive in the required sense.
  • Paterson v Harvie [2014] HCJAC 87: used for the objective nature of the test (not dependent on the complainer’s personal stoicism/sensitivity).
  • Orr v Mundell [2018] SAC Crim 11: supports the relevance of context to whether behaviour is abusive; distinguished because the pursuer’s content was online and chosen to be viewed.
  • DPP v Collins [2006] 1 WLR 2223, [2006] UKHL 40: cited to underline that section 127 requires “grossly offensive” content; mere offensiveness is insufficient.

(E) Human Rights Act interpretation and access to court

  • Osman v United Kingdom (2000) 29 EHRR 245 and Hill v Chief Constable of West Yorkshire [1989] AC 53: the template for analysing “blanket immunities” as unjustifiable restrictions on Article 6 access to court. Lord Lake analogises section 170 to the “watertight defence” criticised in Osman.
  • Ghaidan v Godin-Mendoza [2004] 2 AC 557, [2004] UKHL 30: relied upon (Lord Rodger’s speech) for the limits of section 3 interpretation—courts may read words in only if it goes “with the grain” and does not cross from interpretation into amendment.
  • Pickstone v Freemans Plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546: referenced via Ghaidan as examples of implication to make legislation work compatibly.
  • R v A (No. 2) [2001] UKHL 25, [2002] 1 AC 45: cited for the “last resort” character of declarations of incompatibility.
  • Sheridan v News Group Newspapers Limited 2019 SC 203, [2018] CSIH 76: cited for the proposition that superior courts can carry out their own research (relevant to the court raising section 170).

(F) Other cited authorities

  • Micosta v Shetland Islands Council 1986 SLT 193: invoked by the pursuer for the broad proposition that Scots law will provide a remedy for wrongful conduct; distinguished because wrongdoing, causation, and loss were not properly pled against the police.
  • Graham v Strathern 1924 SC 699: used to support the characterisation of the predecessor immunity as going to competency (reinforcing section 170’s mandatory effect).
  • R v Casserly [2024] EWCA Crim 25 and R v Watson and Manchester Chief Constable of Manchester Police [2025] EWHC 954 (Admin): offered in submissions as examples of difficult/free expression boundary cases (context for prosecutorial assessment), though not determinative in Lord Lake’s ultimate analysis.

3.2 Legal Reasoning

(A) The Chief Constable: why the malicious prosecution claim could not lie

Lord Lake treats the claim as properly characterised as one in malicious prosecution. Applying Smith v HMA 1952 JC 66 and Grier v Lord Advocate 2023 SC 116, [2022] CSIH 57, he holds that police do not decide to prosecute in Scotland, so they are not the “initiator” of proceedings in the relevant sense. The opinion recognises a narrow alternative route (highlighted in McGregor v Chief Constable [2024] CSOH 109) where police misreporting could undermine the Crown’s independent decision, but the pursuer expressly disavowed that basis.

Separately, even treating the pleadings as attempting a broader “wrongful investigation” theory (via Micosta v Shetland Islands Council 1986 SLT 193), the court holds the pursuer did not plead (i) identified wrongful police conduct, (ii) a causal mechanism linking police actings to the prosecution, or (iii) distinct loss attributable to police rather than to prosecutorial decisions.

(B) Objective reasonable and probable cause: determined as a question of law

Following Glinski v McIver [1962] AC 726 and Lord Tyre’s approach in the Grier debates, Lord Lake holds that where the evidential material is undisputed (here, the video/transcript), objective probable cause can be decided at debate.

(C) Section 38(1) CJLSA 2010: why there was no “case fit to be put before a court”

The court sets out section 38’s elements and draws on R v Murphy [2015] HCJAC 34 (more than annoyance/offence), Paterson v Harvie [2014] HCJAC 87 (objective test), and Orr v Mundell [2018] SAC Crim 11 (context can matter). Applying these, Lord Lake concludes:

  • The video did not amount to “threatening or abusive” behaviour; the anonymity remark was passive (“will not be continued”) and lacked any stated basis.
  • References to “reap the whirlwind” and “reckoning” were political opinion expressed in passive terms, not threats of personal retribution.
  • Unlike Orr, the content was not “in their faces”; viewers had to choose to watch it online.
  • Given the high public-interest context and Article 10 ECHR considerations, the speech was at most “indecorous, inappropriate or irritating” (echoing Angus v Nisbet [2010] HCJAC 76, 2011 JC 69), not criminally abusive.

Lord Lake also treats the trial court’s upholding of a submission of no case to answer as “highly significant”, and—because no “novel/doubtful point” analysis (as in Craig v Peebles (1876) 3 R 441) was advanced—concludes that it indicated absence of objective probable cause.

(D) Section 127 Communications Act 2003: no objective probable cause for the warrant basis

The warrant was sought on section 127, which requires a message that is “grossly offensive” or indecent/obscene/menacing. Lord Lake finds the content was plainly not indecent/obscene/menacing and, applying DPP v Collins [2006] 1 WLR 2223, [2006] UKHL 40, was not “grossly offensive”. Hence, objectively, there was no probable cause for action under section 127.

(E) Malice: relevant averments (but ultimately stymied)

Using the Inner House description of malice (via Grier v Lord Advocate 2023 SC 116, [2022] CSIH 57 drawing from Glinski), Lord Lake holds the pleadings contain relevant averments of ulterior purpose, including “doing the bidding” of complainers to silence/deter criticism. Crucially, the COPFS report’s stated “public interest” rationale—protecting confidence of complainers in other sexual offence cases—was treated as capable of constituting an extraneous objective where no probable cause exists.

(F) The decisive statutory bar: section 170 CPSA 1995 and the declaration of incompatibility

Although neither party founded on it at debate, Lord Lake identifies Criminal Procedure (Scotland) Act 1995, section 170 as binding and directly relevant. On its terms, a prosecutor is not liable in damages in summary proceedings unless (among other conditions) the pursuer suffered imprisonment and the action is timeously raised. The pursuer did not suffer imprisonment and was outwith the two-month period.

The Lord Advocate invited the court to “read down” section 170 under Human Rights Act 1998, section 3 so it operated as an optional defence that could be waived. Lord Lake rejects this: it would not go “with the grain” (per Ghaidan v Godin-Mendoza [2004] 2 AC 557, [2004] UKHL 30) because it would transform a blanket immunity scheme into a different scheme. More fundamentally, it would not cure the Article 6 problem identified in Osman v United Kingdom (2000) 29 EHRR 245: the incompatibility stems from the court’s lack of control and inability to weigh countervailing considerations.

Having concluded section 170 is incompatible with Article 6 ECHR, Lord Lake nevertheless applies it (as he must) and dismisses the action, but issues a declaration of incompatibility under Human Rights Act 1998, section 4, treating this as appropriate given the structural nature of the incompatibility.

3.3 Impact

(A) A significant human-rights development in Scots procedural law

The central forward-looking effect is the declaration that section 170 CPSA 1995 is incompatible with Article 6. While a declaration does not invalidate the provision, it places political and legislative pressure on the UK Government/Parliament to amend the law. Future litigants may rely on the declaration when arguing for reform or when inviting public authorities to concede non-reliance (though the judgment underscores that, as a matter of law, the court must apply section 170 unless and until changed).

(B) Reaffirmation of the police/Crown constitutional divide in civil liability

The decision reinforces that malicious prosecution is, in Scotland, directed to the decision-maker in prosecution (the Crown), not the police—save for exceptional pleadable circumstances where police conduct undermines independent prosecutorial judgment (as contemplated in Grier and illustrated by McGregor). This will likely tighten pleading discipline: pursuers must specify (i) the precise police wrongdoing, (ii) the causal pathway, and (iii) distinct loss.

(C) Probable cause and “no case to answer”: practical pleading and debate strategy

Lord Lake’s approach indicates that, where the evidential basis is essentially fixed and undisputed (eg, words spoken/written), the court may determine objective probable cause at debate as a matter of law. That encourages early disposal of weak cases (or weak defences), but also increases the importance of properly articulating any “novel/doubtful law” basis (as in Craig v Peebles) if the Crown seeks to maintain probable cause.

4) Complex Concepts Simplified

  • Malicious prosecution: a civil claim for damages where someone was prosecuted without proper grounds and for an improper purpose. It is not enough that the prosecution failed; the pursuer must show no probable cause and malice/ulterior purpose.
  • Reasonable and probable cause (objective vs subjective): “Objective” asks whether, on the known (or reasonably knowable) material, there were proper grounds to put a case before a court. “Subjective” asks whether the prosecutor actually believed there was a proper case to bring.
  • Malice: not limited to spite; it includes bringing proceedings to achieve some extraneous advantage or purpose other than enforcing the criminal law.
  • Declaration of incompatibility (HRA 1998, section 4): a formal statement that a UK statute is inconsistent with the ECHR. The statute remains in force, but the declaration signals that Parliament should reconsider it.
  • “Reading down” (HRA 1998, section 3): courts must interpret legislation compatibly with the ECHR where possible, but cannot rewrite it in a way that changes the statute’s essential scheme (“go with the grain”).

5) Conclusion

This decision’s most important contribution is constitutional and procedural: the Outer House both (i) applies section 170 CPSA 1995 to bar a summary malicious prosecution claim, and (ii) declares that very immunity provision incompatible with Article 6 because it operates as a blanket restriction on access to a merits determination. Alongside that, it reiterates the Scottish separation of police investigation from Crown prosecution for delictual responsibility, and demonstrates a readiness to decide objective probable cause as a matter of law where the evidential record is not in dispute.