Summary of Opinion — Judge Lake
Factual and Procedural Background
The Plaintiff posted a video online shortly after the acquittal of a prominent Third Party in a high-profile criminal trial. Complaints about the video's content were made to the police and prosecutors. The Plaintiff was the subject of a search-warrant application, which was granted by a local judge and executed at the Plaintiff's home. The Plaintiff attended a police station, admitted making and posting the video in a prepared statement, and was cautioned and charged. The charge at trial was under Criminal Justice and Licensing (Scotland) Act 2010, section 38(1); an earlier investigatory step had relied on Communications Act 2003, section 127. The summary criminal trial commenced on 7 January 2021. At the close of the prosecution case a submission of no case to answer was upheld and the Plaintiff was acquitted.
The Plaintiff brought a civil action seeking damages, pleading malicious prosecution against employees of the First Defender (police officers) and the Second Defender (prosecutors). The pleadings averred police involvement in drafting an initial warrant application, executing the warrant, interviewing and charging the Plaintiff, and preparing a standard prosecution report; and averred prosecutorial conduct in drafting and presenting the warrant application and in commencing and conducting the prosecution. The Plaintiff alleged lack of reasonable and probable cause and malice, including motives described as doing the complainers' bidding, political motives, and punishment for criticism.
Legal Issues Presented
- Whether the averments in the pleadings establish a relevancy for a claim of malicious prosecution against the First Defender (police) and the Second Defender (prosecutors), having regard to the established elements of malicious prosecution.
- Whether, on the undisputed material available at the time, there was objective reasonable and probable cause to prosecute under Criminal Justice and Licensing (Scotland) Act 2010, section 38(1), and to seek a search warrant under Communications Act 2003, section 127.
- Whether the Plaintiff has averred malice or an ulterior motive sufficient for a malicious prosecution claim.
- Whether Criminal Procedure (Scotland) Act 1995, section 170, operates to bar the Plaintiff's claim against the Second Defender and, if so, whether that section is compatible with Article 6 of the European Convention on Human Rights.
Arguments of the Parties
Second Defender's Arguments (Attorney Moynihan)
- The assessment of reasonable and probable cause is an objective legal question to be judged by reference to material available at the decision to prosecute; a presumption exists that public officers act honestly and bona fide and must be displaced by averments and evidence.
- The prosecution decision was supported by a procurator fiscal report and Crown counsel advice emphasising public interest considerations; a reasonable prosecutor could properly proceed.
- No sufficient averments of conspiracy or of police conduct that deprived the prosecution of independent judgment were pleaded.
- Section 170 of the Criminal Procedure (Scotland) Act 1995 confers immunity relevant to the Plaintiff's case; the Second Defender had indicated not to plead it but the court must consider its effect and compatibility with Convention rights.
First Defender's Arguments (Attorney Byrne)
- The police do not decide prosecutions; liability for malicious prosecution requires pleadings that the police misreported or otherwise deprived the Crown of independent judgement, which are absent here.
- Averments that the police were "doing the bidding" of complainers lack necessary specification and do not give fair notice of the case to be met.
- The pleadings fail to identify causation or specific wrongful conduct by the police that led to the prosecution.
Plaintiff's Arguments (Attorney Dangerfield)
- The pleaded case is for malicious prosecution against both defenders; the police acted maliciously before the complaint and the prosecutors acted maliciously thereafter, and both sets of acts are actionable.
- The averments rebut the presumption that officials acted honestly; there was no reasonable and probable cause subjectively or objectively, and the prosecutorial reasoning (including public interest concerns) supports an ulterior motive.
- The content of the video was political opinion and not criminal; the warrant application and statements to the sheriff were alleged to be false or misleading.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Whitehouse v Lord Advocate 2020 SC 133, [2019] CSIH 52 |
Elements required to establish malicious prosecution. |
Set out the four elements (initiation, favourability of termination, absence of reasonable and probable cause, malice) that must be averred and proved. |
| McGregor v Chief Constable [2024] CSOH 109 |
Adopted passage on objective/subjective elements of reasonable and probable cause. |
Used to confirm that absence of either objective or subjective reasonable and probable cause suffices. |
| Stuart v Attorney General of Trinidad and Tobago [2023] 4 WLR 21, [2022] UKPC 53 |
Explanation of subjective vs objective elements of prosecutor's belief. |
Quoted with approval to explain the two aspects of reasonable and probable cause. |
| Beaton v Ivory (1887) 14 R 1057 |
Presumption that public officers act honestly and bona fide. |
Reiterated that displacing this presumption requires averments and evidence. |
| Grier v Lord Advocate 2023 SC 116, [2022] CSIH 57 |
Delination of police/prosecutor roles; discussion on reasonable and probable cause and malice. |
Used to emphasise separation of responsibilities and to guide assessment of relevancy and malice. |
| Glinski v McIver [1962] AC 726 |
Judicial determination of absence of reasonable and probable cause where facts undisputed. |
Supported court's view that it could determine objective reasonable and probable cause on undisputed material. |
| Rae v Strathern 1924 SC 147 |
Absence of reasonable and probable cause where prosecutor's view is "so obviously wrong". |
Referenced in defining the objective test. |
| Craig v Peebles (1876) 3 R 441 |
Reasonable and probable cause may exist where disputed legal question is open to reasonable argument. |
Distinguished: here there was no asserted legal uncertainty supporting a decision to prosecute. |
| Lightbody v Gordon (1882) 9R 934 |
Authorities on reasonable and probable cause. |
Referenced in discussion of legal uncertainty as a basis for probable cause. |
| R v Casserly [2024] EWCA Crim 25 |
Contextual examples involving freedom of expression. |
Noted as illustrating difficult evaluative judgments where Article 10 issues arise. |
| R v Watson and Manchester Chief Constable of Manchester Police [2025] EWHC 954 (Admin) |
Context on free expression and prosecution decisions. |
Referenced as illustrating evaluative prosecutorial judgments. |
| Smith v HMA 1952 JC 66 |
Division of investigative and prosecutorial responsibilities. |
Referred to for delineating police/investigation and fiscal/prosecution roles. |
| Micosta v Shetland Islands Council 1986 SLT 193 |
General principle that Scots law provides remedies for wrongful conduct. |
Addressed and distinguished as not assisting because essential averments were missing. |
| Jamieson v Jamieson 1952 SC (HL) 44 |
Test of relevancy for malice averments. |
Applied to assess whether the pleadings sufficiently averred malice. |
| DPP v Collins [2006] 1 WLR 2223, [2006] UKHL 40 |
Meaning of "grossly offensive" in Communications Act context. |
Used to conclude video content did not meet "grossly offensive" threshold for section 127. |
| R v Murphy [2015] HCJAC 34 |
Clarified that conduct must be more than annoying or offensive to be abusive under section 38. |
Applied in assessing whether the video constituted threatening or abusive behaviour. |
| Angus v Nisbet [2010] HCJAC 76, 2011 JC 69; Smith v Donnelly 2002 JC 65 |
Common law context for breach of the peace and objective tests. |
Used to support the objective threshold for abusive/threatening conduct. |
| Paterson v Harvie [2014] HCJAC 87 |
Objective test unaffected by particular stoicism of target. |
Referred to in discussing the objective standard of section 38. |
| Orr v Mundell [2018] SAC Crim 11 |
Importance of context in assessing abusiveness; "in their faces" example. |
Distinguished: online publication required active access and was not directly "in the faces" of complainers. |
| Ghaidan v Godin-Mendoza [2004] 2 AC 557, [2004] UKHL 30 |
Limits on reading statute compatibly with Convention rights under Human Rights Act section 3. |
Applied to conclude section 170 could not be read down compatibly with Article 6 without changing its essential scheme. |
| Pickstone v Freemans plc [1989] AC 66; Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 |
Authority that courts may imply words to secure Convention compatibility where consistent with legislative scheme. |
Considered and rejected as the required implication would change the essential scheme of section 170. |
| Graham v Strathern 1924 SC 699 |
Historical context on immunity in summary jurisdiction. |
Noted in discussion of section 170's antecedents. |
| R v A (No. 2) [2001] UKHL 25, [2002] 1 AC 45 |
Guidance that declarations of incompatibility are measures of last resort. |
Considered in deciding to make a declaration under Human Rights Act section 4. |
| Osman v United Kingdom (2000) 29 EHRR 245 |
Effect of blanket immunities on Article 6 access to courts (comparison with Hill). |
Found persuasive: section 170 confers a blanket immunity incompatible with Article 6. |
| Hill v Chief Constable of West Yorkshire [1989] AC 53 |
Immunity context considered by Strasbourg in Osman. |
Used by analogy in assessing Article 6 implications of section 170. |
Court's Reasoning and Analysis
The court first summarised undisputed law: the four elements of malicious prosecution and the twofold (objective/subjective) test for reasonable and probable cause. It analysed the distinct constitutional roles of the police (investigation/reporting) and the prosecution (decision to prosecute), observing that liability for malicious prosecution against the police requires averments that police conduct deprived prosecutors of independent judgment or misreported material.
As to the First Defender, the court found the pleadings did not identify wrongful police conduct causing the prosecution or specific consequences attributable to police acts. The admitted fact that employees of the Second Defender drafted and presented the warrant application undermined the claim that the police obtained it wrongfully. The pleadings lacked averments of causation and of specific misreporting that led to prosecution; accordingly the case against the First Defender was irrelevant.
As to the Second Defender, the court treated the question of objective reasonable and probable cause as one it could decide on the undisputed material. It examined the statutory test in section 38(1) and the principles from cited authorities. The court concluded that the video content, objectively assessed, did not amount to threatening or abusive behaviour likely to cause a reasonable person fear or alarm; the assertions about anonymity and references to "reaping the whirlwind" were expressions of opinion and not threats. On that basis, and having regard to the sheriff's sustaining of a submission of no case to answer at trial, the court concluded there was no objective reasonable and probable cause to prosecute under section 38, nor to rely on section 127 for the warrant. The court nonetheless observed that absence of probable cause alone does not establish liability — malice must also be proved.
Turning to malice and subjective belief, the court found the pleadings contained averments that could, if proved, establish an ulterior purpose (do the complainers' bidding; to silence a political opponent; to deter others). The prosecutorial report and Crown counsel's reference to "public interest" reassurances were identified as potentially constituting ulterior motive if used to justify commencing prosecution absent probable cause. Thus the pleadings were not irrelevant on malice/subjective-belief grounds.
Finally, the court addressed Criminal Procedure (Scotland) Act 1995, section 170. It observed that section 170 provides a statutory immunity in relation to summary proceedings unless specified conditions are met (imprisonment, quashing, proof of malice and lack of probable cause, and timeliness). The Plaintiff had not been imprisoned and did not bring action within two months, so section 170, on its terms, barred the claim against the Second Defender. The court considered whether section 170 could be read compatibly with Article 6 by applying Human Rights Act 1998, section 3, but concluded that any reading that would remove the blanket immunity would change the essential scheme of the provision and would not render it compatible. The court found that section 170, as it operates, infringes Article 6 (by creating a blanket immunity preventing adjudication on merits) and therefore made a declaration of incompatibility under section 4 of the Human Rights Act. Nevertheless, because the provision is binding and applicable to the facts (Plaintiff not imprisoned, time limits not met), section 170 operated to render the Plaintiff's claim against the Second Defender legally irrelevant.
Holding and Implications
Holding: The court dismissed the action.
DISMISSED
Implications:
- Direct effect: The action was dismissed as irrelevant against both defenders — no relevant case against the First Defender; the Second Defender was immune under Criminal Procedure (Scotland) Act 1995, section 170 given the statutory conditions were not satisfied.
- Human-rights implication: The court made a declaration under Human Rights Act 1998, section 4, that Criminal Procedure (Scotland) Act 1995, section 170 is inconsistent with Article 6 ECHR insofar as it creates an unjustifiable restriction on a pursuer's right to a merits determination in malicious prosecution claims.
- No further remedies were granted to the Plaintiff in this action; the court noted the declaration of incompatibility but applied the statutory immunity as binding in this case.