WHITEHOUSE, RECLAIMING MOTIONS IN THE CAUSES (FIRST) DAVID JOHN WHITEHOUSE and (SECOND) PAUL JOHN CLARK AGAINST (FIRST) THE CHIEF CONSTABLE, POLICE SCOTLAND and (SECOND) THE LORD ADVOCATE

Factual and Procedural Background

This opinion concerns reclaiming motions (appeals) arising from two separate actions brought by the Pursuers against the Chief Constable of Police Scotland and the Lord Advocate. The claims seek damages related to the treatment of the Pursuers by police and prosecution authorities in connection with their involvement in the winding up and sale of a football club. The motions do not concern the Chief Constable, whose related claims proceed to proof before answer, but focus solely on the Lord Advocate, who is accepted to be responsible for the actions of Advocates Depute and Procurator Fiscal Deputes involved in the case.

The Pursuers were partners in a corporate restructuring advisory firm engaged by a businessman seeking to acquire the football club. They were appointed as joint administrators of the club and raised concerns about potentially unlawful financial assistance involved in the acquisition. Following investigations and police inquiries, the Pursuers were detained, arrested, charged, and prosecuted on allegations including conspiracy to defraud and attempting to pervert the course of justice. The prosecution involved multiple indictments and petitions, some charges were withdrawn, and ultimately all proceedings against the Pursuers ended without further indictments.

The Pursuers aver that there was no justification for their detention, committal, prosecution, or indictment, alleging failures in disclosure, misleading statements, improper police conduct, and malicious motives on the part of the Crown Office and police. The Lord Advocate contends immunity from suit based on established legal principles.

The procedural history includes interlocutors of the Lord Ordinary, appeals against extensions of statutory time limits, and multiple hearings regarding the relevancy of charges and the lawfulness of the prosecution. The matter is now before the Inner House of the Court of Session considering the reclaiming motions.

Legal Issues Presented

1. Whether the law as stated in Hester v MacDonald (1961 SC 370), granting absolute immunity from suit to the Lord Advocate and his deputies for acts done in connection with solemn prosecutions, was correctly decided.
2. If Hester was correctly decided, whether it should be overruled on the basis that the public policy considerations underpinning it are no longer applicable in the modern era.
3. Whether the claims based on the right to respect for private life under Article 8 of the European Convention on Human Rights are relevant and can proceed to inquiry.

Arguments of the Parties

Pursuers' Arguments

• The immunity recognized in Hester v MacDonald was wrongly decided and should be overruled.
• Absolute immunity is not justified by public policy or public interest, especially given modern developments such as the Human Rights Act 1998 and increased accountability of public officials.
• Prosecutors should be liable for malicious acts done without probable cause, consistent with principles in other common law jurisdictions and European norms.
• The Lord Advocate's immunity should not extend to malicious and unfounded prosecutions, and claims for damages should be recognized for such wrongful acts.
• Claims based on Article 8 are relevant because the prosecution caused unjustifiable interference with the Pursuers' private lives and reputations through trumped-up charges and malicious prosecution.
• The factual averments include wrongful detention, arrest, prosecution, failure to disclose exculpatory evidence, misleading court statements, and abuse of power by the Crown Office and police.

Lord Advocate's Arguments

• The Lord Advocate and those acting on his behalf (Advocates Depute and Procurator Fiscal Deputes) enjoy absolute immunity from civil suit in relation to solemn prosecutions, as established in Hester v MacDonald.
• This immunity is rooted in constitutional principles and the need for prosecutorial independence and robust performance of duties without fear of litigation.
• Malicious prosecution claims require proof of malice and lack of probable cause, and the threshold is high, protecting honest but mistaken prosecutors.
• International and comparative law show differing approaches, with the United States uniquely granting absolute immunity, while other jurisdictions impose qualified immunity or liability in cases of malice.
• The Human Rights Act 1998 does not affect the common law immunity of prosecutors, and Article 8 claims relating to prosecution decisions are not generally engaged unless charges are deliberately trumped up.
• Any reform of immunity should be a matter for Parliament, not the courts, given the constitutional and policy implications.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed historical, doctrinal, and comparative analysis of the immunity of the Lord Advocate and those acting on his behalf in relation to malicious prosecution claims. It examined the origins and foundations of the immunity recognized in Hester v MacDonald, finding that the purported absolute immunity rested largely on obiter dicta and assertions unsupported by authoritative precedent or principle.

The court reviewed institutional writings and legal treatises from the 19th and 20th centuries, concluding that the prevailing understanding was that public prosecutors, including the Lord Advocate, could be liable for malicious prosecution if malice and want of probable cause were proved. The constitutional trust placed in the Lord Advocate justified exemption from certain penalties and procedural requirements but did not logically extend to absolute immunity from civil suit for malicious acts.

Comparative law from other common law jurisdictions and Europe was considered. The court noted that most jurisdictions reject absolute immunity for prosecutors, instead imposing qualified immunity that permits liability where malice and lack of probable cause are established. The United States' approach of absolute immunity was found to be exceptional and not persuasive for Scotland.

The court further analysed the impact of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights, concluding that prosecutorial decisions generally do not engage Article 8 unless the charges are deliberately false or trumped up. The Pursuers' allegations of malicious prosecution without evidence potentially engage Article 8 and thus merit inquiry.

Applying principles from prior Scottish cases on public official liability, the court emphasized that immunity is not absolute and that liability arises if the acts are outside the competence of the official or done maliciously and without probable cause. The court stressed the high threshold for proving malice, which protects honest but mistaken prosecutors and avoids a flood of claims.

The court acknowledged the public policy considerations invoked by the Lord Advocate, including the need to protect prosecutorial independence and avoid chilling effects on prosecutions. However, it found these concerns insufficient to justify absolute immunity, especially given the availability of qualified immunity and procedural safeguards.

In light of these analyses, the court concluded that the legal rule established in Hester v MacDonald was wrongly decided and should be overruled. The court recognized that any reform of prosecutorial immunity is a significant matter but held that the courts have the authority to develop the common law in this area to meet modern expectations of accountability and justice.

The court therefore allowed the Pursuers' claims based on malicious prosecution and Article 8 to proceed to proof before answer, subject to clarification and specification of legal pleas and averments.

Holding and Implications

The court overruled the precedent of Hester v MacDonald (1961 SC 370), rejecting the notion of absolute immunity from civil suit for the Lord Advocate and his deputies in relation to malicious prosecution claims.

The court held that the Lord Advocate and those acting on his behalf are liable in damages where it is proved that they acted maliciously and without probable cause. The immunity previously recognized was based on insufficient authority and is inconsistent with modern legal principles and comparative jurisprudence.

The court also held that claims based on Article 8 of the European Convention on Human Rights may be relevant and proceed to inquiry where prosecutions are alleged to be malicious and without justification, as such conduct could constitute an unjustifiable interference with private life and reputation.

The direct effect of this decision is to allow the Pursuers' claims for damages on common law and Convention grounds to proceed to proof before answer. The ruling does not establish a new precedent restricting prosecutorial independence but clarifies that immunity is qualified and subject to accountability in cases of malice and lack of probable cause.

No broader constitutional or statutory changes were made; the court emphasized the role of Parliament in any comprehensive reform but asserted its authority to develop the common law to reflect contemporary values and legal standards.