Section 170 Criminal Procedure (Scotland) Act 1995: Non-waivable, Substantive Immunity from Damages in Summary Proceedings (and Article 6 Not Engaged)

1. Introduction

Reclaiming motion in the cause Mark Hirst against the Chief Constable and the Lord Advocate (Court of Session, Second Division, Inner House) [2026] CSIH 31 concerns an action of damages for malicious prosecution brought by the pursuer following his acquittal in a summary prosecution at Jedburgh Sheriff Court. The criminal charge alleged threatening or abusive behaviour (section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010) arising from an online video posted shortly after a highly publicised High Court trial involving a former First Minister.

The Lord Ordinary held (i) the pursuer had relevantly averred lack of objective reasonable and probable cause, but (ii) the action was barred by section 170 of the Criminal Procedure (Scotland) Act 1995, and (iii) section 170 was incompatible with Article 6 ECHR (declaring incompatibility under section 4 of the Human Rights Act 1998). The Lord Advocate reclaimed. The Chief Constable took no part in the reclaiming motion (and the case against that defender was already dismissed and not appealed).

The Inner House reversed the Article 6 conclusion, held section 170 to be a substantive exclusion of liability (so Article 6 is not engaged), held it cannot be waived by the Lord Advocate, and dismissed the action as both incompetent (section 170) and, independently, irrelevant (reasonable and probable cause existed on the admitted/proved material).

2. Summary of the Judgment

  • Section 170 is substantive, not procedural: it removes liability in damages for acts in summary proceedings unless the statutory conditions are met (including imprisonment and a quashing). It is therefore an “immunity from liability”, not merely an “immunity from suit”.
  • Article 6 ECHR is not engaged: because Article 6 does not create substantive civil rights; it protects access to a court only where an arguable civil right exists under domestic law. Section 170 prevents such a right arising in the first place.
  • No waiver by the Lord Advocate: the court rejected the parties’ shared submission that the Lord Advocate could waive section 170. Parliament’s wording (“shall be found liable by any court”) directs the court and is not framed as a waivable personal advantage.
  • Relevancy (malicious prosecution): the pursuer’s case depended on asserting that there was never a sufficient evidential basis for prosecuting under section 38(1) and that malice could be inferred. The Inner House held, on the pleadings and incorporated documents, that there was objective reasonable and probable cause, and no factual basis for inferring lack of honest belief or malice.
  • Outcome: the declaration of incompatibility was recalled; the action was dismissed as incompetent (section 170) and irrelevant (no relevant malicious prosecution case pled).

3. Analysis

3.1 The key doctrinal move: Article 6, access to court, and the “substantive/procedural” distinction

The Lord Ordinary relied on Osman v United Kingdom (2000) 29 EHRR 245 to treat section 170 as an unjustifiable “absolute immunity” impairing the essence of access to court. The Inner House held this was legally mistaken because Strasbourg jurisprudence after Osman draws a sharp line: Article 6 protects access to adjudication of existing (or at least arguable) domestic civil rights; it does not guarantee that domestic law must recognise a damages right in the first place.

(a) Osman and why it did not govern the present case

In Osman v United Kingdom (2000) 29 EHRR 245 the European Court of Human Rights treated a domestic rule excluding police negligence liability as an impermissible blanket restriction on access to court. The Inner House treated Osman as displaced (or at least confined) by later authority emphasising that Article 6 is not a tool for creating new substantive delictual rights.

(b) The corrective line: Matthews, Roche, Z, and the “no arguable right” principle

The court’s analysis rests primarily on the approach in Matthews v Ministry of Defence (both [2002] EWCA Civ 773, 2002 1 WLR 2621 and [2003] UKHL 4, [2003] 1 AC 1163), and its Strasbourg endorsement in Roche v United Kingdom (2006) 42 EHRR 30. Those cases emphasise:

  • Article 6 is principally concerned with the integrity and fairness of the judicial process, not with the content of substantive domestic rights (citing also James v United Kingdom (1986) 8 EHRR 123).
  • A substantive bar preventing a cause of action from arising does not (in principle) engage Article 6, because there is no arguable domestic “civil right” to litigate.
  • Labels such as “immunity” are not determinative; the court must examine whether the measure is “immunity from liability” (substantive) or “immunity from suit” (procedural, and sometimes waivable).

The Inner House also relied on Z v United Kingdom (2002) 34 EHRR 3 to reinforce that describing the non-existence of a domestic cause of action as an “immunity” does not itself trigger Article 6.

(c) Bakoyanni treated as fact-specific and not a competing general line

The Lord Advocate invited attention to Bakoyanni v Greece, Application no. 31012/19, where Article 6 was found violated in circumstances involving parliamentary immunity and an applicant’s inability to pursue a specific form of reputational vindication. The Inner House treated Bakoyanni as highly particular, noting that it did not engage with the Grand Chamber’s repeated insistence on the “arguable domestic right” prerequisite and the substantive/procedural distinction.

(d) Grzeda as the contemporary restatement of the orthodox test

The court anchored its conclusion in the Grand Chamber statements in Grzeda v Poland [GC], (2022) 53 BHRC 631 at [257]-[258]: Article 6 applies only where there is a genuine dispute about an arguable domestic right; Article 6 does not create substantive civil rights with “no legal basis in the State concerned”.

(e) Reinforcement from Attorney General of the Cayman Islands v Bush

The Inner House relied on the Privy Council’s application of these principles in Attorney General of the Cayman Islands v Bush [2025] UKPC 39: a statutory exclusion that prevents the right from arising is not a procedural impediment to vindication; it defines the substantive scope of the right.

3.2 Section 170: why it is substantive, why it cannot be “read down”, and why it cannot be waived

Section 170(1) states that “No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages … unless” the listed cumulative conditions are met. The Inner House’s construction is direct: this is a legislative removal of liability in damages (except in tightly defined cases), not a mere procedural protection.

(a) Substantive exclusion of liability

The court emphasised the operative words “shall be found liable”, treating them as a direction to the court about what liabilities the law recognises. Section 170(2) was characterised as a defence mechanism within the scheme, and section 170(3) as a separate procedural time-bar for any action “to enforce such liability” (where liability can exist).

(b) No section 3 HRA “reading down” available

The Lord Ordinary had held that section 170 could not be made Convention-compatible by interpretation, citing Ghaidan v Godin-Mendoza [2004] 2 AC 557. The Inner House ultimately did not need section 3 analysis in the same way, because it held Article 6 was not engaged at all; but its conclusion that section 170 is a substantive bar equally forecloses any interpretative manoeuvre that would convert it into a waivable procedural protection without rewriting the statutory scheme.

(c) Waiver rejected

Notably, both parties argued (for different tactical reasons) that section 170 could be waived by the Lord Advocate. The Inner House rejected waiver for two reasons:

  1. Legislative intention: relying on Bennion on Statutory Interpretation (8th ed) at 9.6, waiver depends on Parliament’s intent. The court read section 170 as binding the court’s competence to “find liable” rather than conferring a personal privilege the Lord Advocate may elect to assert or abandon.
  2. No authority for waiver of substantive law: the court found no authority for parties waiving a substantive rule that defines whether liability exists. It contrasted procedural waiver scenarios with Burns v The Corporation of Glasgow 1917 1 SLT 301.

3.3 Malicious prosecution: how the Inner House applied (and corrected) the framework

(a) Elements and the presumption of regularity

The court restated the four elements (from Whitehouse v Lord Advocate [2019] CSIH52, 2020 SC 133): initiation by the defender; favourable termination; absence of reasonable and probable cause; malice/improper purpose. It stressed a strong presumption that public prosecutors act honestly and in good faith, drawing on: Beaton v W Ivory (1887) 14 R 1057, Robertson v Keith 1936 SC 29, and reaffirmation in Grier v Lord Advocate [2022] CSIH 57, 2023 SC 116.

(b) Reasonable and probable cause: objective assessment for the judge

The Inner House drew heavily on Glinski v McIver [1962] AC 726 (especially Lord Denning and Lord Devlin) and the older Scottish authority Craig v Peebles (1876) 3 R 441: where the material facts/information known to the prosecutor are not disputed, reasonable and probable cause is for the judge and can be resolved without proof. Critically, acquittal is not determinative: “The mere fact of acquittal gets him nowhere”.

(c) The court’s correction of the Lord Ordinary on section 38 and “internet communications”

The substantive criminal issue was not finally adjudicated (this was civil procedure), but it mattered because the pursuer’s malicious prosecution case depended on asserting the prosecution was obviously unfounded. The court held the Lord Ordinary erred by underestimating:

  • The role of context in section 38, and the objective nature of the “reasonable person” fear/alarm test.
  • That section 38 clearly applies to “things said or otherwise communicated” (including online publication).

The Inner House relied on: Paterson v Harvie [2014] HCJAC 87, 2015 JC 118 (Full Bench) and its approval of Rooney v Brown [2013] HCJAC 57, 2013 SCCR 334. Those authorities confirm (i) the objective test, and (ii) that evidence of actual fear or alarm is not required (though it may assist).

(d) The “no case to answer” acquittal was not a reliable proxy for “no probable cause”

The Lord Ordinary treated the sheriff’s no case to answer acquittal as strongly indicating lack of probable cause. The Inner House rejected that approach and went further: it held the sheriff ought to have repelled the submission when applying the correct “highest” test for Crown evidence, citing Mitchell v HM Advocate [2008] HCJAC 28, 2008 SCCR 469 and McPherson v HM Advocate [2019] HCJAC 21, 2019 JC 171.

On the admitted transcript and surrounding circumstances, prosecutors could reasonably view the statements (including about knowing the complainers and their “precious anonymity” not continuing, plus “reap a whirlwind” and “a reckoning”) as capable of being construed as threatening and likely to cause fear or alarm to a reasonable person in the complainers’ position.

(e) Public interest reasoning was treated as proper, not “ulterior”

The pursuer alleged prosecutors were “doing the bidding” of complainers and an advocacy organisation, and that the prosecution’s public interest rationale was an improper political purpose. The Inner House treated this as misconceived: considering public interest is inherent in the prosecutorial function, as described in the Prosecution Code and reflected in constitutional principle (see McBain v Crichton 1961 JC 25). On the incorporated COPFS documents, prosecutors articulated orthodox evidential sufficiency and public interest reasoning, including protecting complainer anonymity and confidence in the justice system—concerns properly connected to the statutory purpose and the factual context.

(f) Malice and “subjective probable cause”: no factual foundation on the pleadings

The court discussed overlap and uncertainty about subjective belief, referencing Miazga v Kello Estate 2009 SCC 51, [2009] 3 SCR 339 (via Whitehouse), Willers v Joyce [2016] UKSC 43, [2018] AC 779, Stuart v Attorney-General of Trinidad and Tobago [2022] UKPC 53, [2023] 4 WLR 21, and Attorney-General of Trinidad and Tobago v Maharaj [2024] UKPC 1. But it ultimately held it unnecessary to resolve doctrinal edges: the pleadings (including the admitted reports and instructions) showed prosecutors did believe there was a proper case, and objectively there was. The inference of malice was therefore unavailable.

3.4 Impact

(a) Immediate doctrinal effect: section 170 blocks damages claims arising from summary prosecutions (absent statutory conditions)

The decision reasserts the strength and character of section 170: in a summary case where the pursuer was not imprisoned and the statutory conditions are not met, a malicious prosecution damages claim against a “prosecutor in the public interest” is not merely difficult—it is incompetent.

(b) Human rights litigation: Article 6 challenges to section 170 face a substantial barrier

By classifying section 170(1) as a substantive delimitation of civil liability, the court places it outside the standard Article 6 “access to court” proportionality analysis. Unless a different Convention right or a different analytical route is advanced (and succeeds), section 4 declarations of incompatibility are unlikely to be available on an Article 6 civil-limb basis alone.

(c) Practical pleading consequences in malicious prosecution cases

Even where section 170 does not apply (for example, in solemn proceedings, as in Whitehouse), this judgment is a warning on relevancy: where prosecution decisions and evidential/public-interest analysis are incorporated into pleadings, bare assertions of political motive or undue influence are unlikely to overcome the presumption of good faith without specific, material facts supporting an improper purpose and lack of probable cause.

(d) Institutional implications and separation of powers

The court’s “Observations on section 170” underscore that any reform of summary prosecutorial immunity is for Parliament, not for judicial modification by Convention-compatible interpretation or waiver. It also signals that contemporary prosecutorial volume and modern crime patterns may be invoked to justify retention (or redesign) of immunities as a policy matter—while acknowledging that Whitehouse contains policy reasoning that could be deployed in the opposite direction.

4. Complex Concepts Simplified

Reclaiming motion
An appeal within the Court of Session (from a Lord Ordinary to the Inner House).
Malicious prosecution
A delict requiring (i) the defender initiated proceedings, (ii) the proceedings ended in the pursuer’s favour, (iii) lack of reasonable and probable cause, and (iv) malice (an improper purpose). It is not enough that the accused was acquitted.
Reasonable and probable cause
Broadly, whether there was a proper basis—on information available at the time—to bring the case before the court. It is primarily for the judge when facts are not materially disputed.
Malice
Not limited to spite. It includes pursuing a case for an improper collateral purpose (e.g., personal vendetta or extraneous benefit), rather than a bona fide use of the criminal process.
Section 170 CPSA 1995
A statutory scheme limiting damages liability for judges, clerks, and prosecutors in summary proceedings, allowing liability only in narrow circumstances (including imprisonment and quashing). Here it operated as a substantive exclusion of liability.
Article 6 ECHR (civil limb)
Protects access to a court for determination of existing (or arguable) civil rights under domestic law. It does not require domestic law to create a damages right where legislation removes it.
“Substantive” vs “procedural” bar
A procedural bar blocks a lawsuit despite an underlying right (e.g., some immunities from suit, limitation rules). A substantive bar means the right never exists under domestic law (so Article 6 may not apply).
No case to answer (section 160 CPSA 1995)
A submission at the close of the prosecution case that evidence is legally insufficient. The court must take the prosecution evidence “at its highest” when deciding it.

5. Conclusion

[2026] CSIH 31 establishes (or firmly re-establishes) three connected propositions of real practical importance in Scottish public-law and delict litigation: (1) section 170(1) of the Criminal Procedure (Scotland) Act 1995 is a substantive removal of damages liability in summary proceedings (save for the statutory exceptions); (2) because it is substantive, Article 6 is not engaged and a declaration of incompatibility was unwarranted; and (3) the protection is not waivable by the Lord Advocate. Independently, the court’s relevancy analysis shows a strict, documents-driven approach to malicious prosecution pleadings: where the incorporated prosecutorial materials disclose orthodox evidential and public interest reasoning, allegations of “doing the bidding” or political motive will not, without specific supporting facts, displace the presumption of bona fides or establish absence of reasonable and probable cause.