Brian MacGregor against Iain Livingstone QPM, Chief Constable (Court of Session)

Factual and Procedural Background

In 2014, the Plaintiff was charged with stalking following a police investigation initiated after a dispute with a woman known to him, involving a loan and a laptop he had provided. The police submitted a Standard Prosecution Report ("SPR") to the procurator fiscal. The charge was eventually not insisted upon, and no trial occurred, with the case time-barred in December 2017. The Plaintiff seeks damages from the Defendant, Chief Constable, alleging that the SPR was deliberately false and misleading. The Defendant denies these allegations and challenges the relevancy and specification of the Plaintiff's case, as well as the admissibility of an expert report incorporated in the pleadings.

Legal Issues Presented

1. Whether the Plaintiff has pled a relevant case, with sufficient specification, that the police acted with malice and without reasonable and probable cause in preparing and submitting the SPR.
2. Whether the expert report incorporated in the pleadings is admissible for probation.

Arguments of the Parties

Defender's Arguments

• The Plaintiff's case is irrelevant and lacks sufficient specification, warranting dismissal.
• The Plaintiff's expert report contains substantial inadmissible evidence and should be excluded from probation.
• The police will only be liable if the SPR was maliciously false or tainted, but the Crown retains an independent role in prosecution decisions.
• The SPR complied with legal requirements and contained relevant information; no suppression of exculpatory evidence occurred.
• Malice must be proven factually, and the Plaintiff must identify specific omitted evidence that would negate a prima facie case.
• The expert report improperly opines on legal matters such as probable cause and malice, lacks necessary knowledge of Scottish policing, and is prejudicial.

Plaintiff's Arguments

• The police acted with malice and without probable cause in submitting the SPR, which was deliberately false and misleading.
• The SPR omitted and suppressed exculpatory evidence, depriving the Crown of the ability to exercise independent judgment.
• The officers' language in the SPR demonstrates antipathy and malice towards the Plaintiff.
• The expert report assists the court by detailing improper police conduct and provides fair notice to the Defendant of serious criticisms.
• The expert has relevant practical and academic experience and is impartial; the weight of his evidence should be assessed after proof.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Grier v Lord Advocate [2023] SC 116	Legal requirements for police SPR and remedy for malicious reporting.	Confirmed that false or tainted police reports may give rise to delictual liability and set the framework for reasonable and probable cause and malice tests.
Jamieson v Jamieson 1952 SC (HL) 44	Test for relevancy of pleadings; case must necessarily fail to be dismissed as irrelevant.	Applied to determine that the Plaintiff’s case was not bound to fail on relevancy grounds.
Heather Capital Ltd (in liquidation) v Levy & McRae 2017 SLT 376	Purpose of pleadings and avoidance of trial by pleading.	Referenced for the principle that value judgments should rarely be made on pleadings alone.
Smith v HMA 1952 JC 66	Police duty to provide all relevant material to the Crown.	Confirmed the police obligation to disclose all relevant evidence to the procurator fiscal.
Whitehouse v Lord Advocate 2020 SC 133	Application of reasonable and probable cause and malice in malicious prosecution context.	Used to explain the test for malice and reasonable and probable cause in delictual claims.
Glinski v McIver [1962] AC 726	Elements of reasonable and probable cause and malice.	Guided the court on the subjective and objective elements and their relation to malice.
Stuart v Attorney General of Trinidad and Tobago [2023] 4 WLR 21	Clarification of subjective and objective aspects of reasonable and probable cause.	Affirmed the dual elements of reasonable and probable cause relevant to the case.
Kennedy v Cordia [2016] SC (UKSC) 59	Test for admissibility of expert evidence.	Applied to exclude parts of the expert report that opined on matters of law and ultimate issues.
Davie v Magistrates of Edinburgh 1953 SC 34	Limits on expert evidence and role of the court/jury.	Referenced to emphasize that experts cannot usurp the court’s decision-making role.
Pora v R [2015] UKPC 9	Expert evidence on ultimate issues and reliability of confessions.	Used to illustrate dangers of expert opinions supplanting the court’s role.
Galletly v Laird 1952 JC 16	Expert evidence on ultimate legal issues such as obscenity.	Supported exclusion of expert opinion on malice as ultimate legal issue.
Eadie Cairns v Programmed Maintenance Painting Ltd 1987 SLT 777	Exclusion of expert evidence if substantial parts are inadmissible.	Distinguished as not applicable where expert report is incorporated in pleadings and parts are admissible.

Court's Reasoning and Analysis

The court undertook a detailed analysis of the legal principles governing malicious prosecution and intentional delict claims based on police conduct, focusing on malice and reasonable and probable cause. The court recognized the dual subjective and objective elements of reasonable and probable cause, as affirmed in leading authorities, and acknowledged that malice may be inferred from a lack of reasonable and probable cause but is a distinct factual matter for proof.

The court considered the extensive pleadings and evidence, including the SPR and the expert report. It found that the Plaintiff's pleadings, while lengthy and somewhat repetitive, contained sufficient specification and relevant averments to survive a relevancy challenge, particularly concerning alleged failures to investigate, suppression of evidence, and malice inferred from police officers' language and conduct.

The court emphasized the distinct phases of prosecution and the independent role of the Crown but accepted that deliberate false reporting by the police could impact the Crown’s ability to exercise independent judgment, thus supporting the Plaintiff's claim on causation.

Regarding the expert report, the court applied the Kennedy v Cordia test and concluded that while the expert’s practical and academic experience was relevant and helpful in explaining police investigative practices, substantial parts of the report improperly opined on legal issues such as reasonable and probable cause and malice, which are ultimate issues for the court. These parts were excluded from probation, but the report was not excluded in its entirety. The court suggested that a redacted or revised expert report would be appropriate.

Holding and Implications

The court allowed a proof before answer, sustaining the Defendant's plea-in-law only to the extent of excluding inadmissible parts of the expert report and certain averments relating to the statutory defence. All other pleas were repelled.

The decision means that the Plaintiff's case, including allegations of malice and lack of reasonable and probable cause in the preparation and submission of the SPR, will proceed to a full evidential hearing. The exclusion of parts of the expert report narrows the scope of expert evidence admissible at proof but does not preclude the Plaintiff from relying on the report in its redacted form.

No new precedent was established; the ruling primarily applies established principles to the facts and procedural posture of this case, emphasizing the careful delineation between admissible expert evidence and ultimate legal issues reserved for the court.