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Reclaiming motion in the cause Mark Hirst against the Chief Constable and the Lord Advocate (Court of Session)

Smart Summary

Summary of Opinion — Second Division, Inner House, Court of Session ([2026] CSIH 31)

Factual and Procedural Background

The Plaintiff brought an action for damages of £200,000 against the Second Defendant (the Reclaimer) alleging malicious prosecution after acquittal on a summary charge of threatening behaviour following publication of a recorded online commentary about witnesses in the High Court trial of a Former Public Official. The summary prosecution was tried at the Local Court and the Plaintiff was acquitted on a no case to answer submission. The action was remitted to the Court of Session. At first instance the Judge at first instance (the Lord Ordinary) found there was a lack of objective reasonable and probable cause but dismissed the claim as irrelevant because section 170 of the Criminal Procedure (Scotland) Act 1995 provides immunity in summary proceedings; the Judge also made a declaration under section 4 of the Human Rights Act 1998 that section 170 was incompatible with Article 6 ECHR. The Second Defendant reclaimed, challenging the declaration of incompatibility and the finding on objective reasonable and probable cause. The First Defendant (the Chief Constable / police) had no contested case against her and that dismissal is not challenged.

Legal Issues Presented

  1. Whether the Lord Ordinary erred in declaring section 170 of the Criminal Procedure (Scotland) Act 1995 incompatible with Article 6 of the European Convention on Human Rights.
  2. Whether the protection in section 170 is capable of being waived by the Second Defendant (the prosecuting authority) such that a declaration of incompatibility was unnecessary.
  3. Whether the Lord Ordinary erred in finding as a matter of relevancy that there was no objective reasonable and probable cause for the prosecution.
  4. Whether the Plaintiff's pleadings disclosed a relevant case of malicious prosecution (including absence of reasonable and probable cause and malice).

Arguments of the Parties

Second Defendant and Reclaimer's Arguments

  • The Lord Ordinary erred in declaring section 170 incompatible because the Second Defendant had waived reliance on section 170 and thus the declaration was unnecessary.
  • The Lord Ordinary should not have made a general declaration limited to prosecutors without considering other office-holders protected by section 170 (clerks of court, justices of the peace).
  • The Lord Ordinary erred in finding absence of objective reasonable and probable cause; the Plaintiff failed to plead a relevant case.

Plaintiff's Arguments

  • The Lord Ordinary was correct to find no objective reasonable and probable cause to prosecute.
  • The Lord Ordinary erred in holding that section 170 could not be waived by the Second Defendant; if waiver were available, the case should be recalled to proof on subjective reasonable and probable cause and malice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
McBain v Crichton 1961 JC 25 Lord Advocate is the recognised public prosecutor and the decision to prosecute is his office's responsibility. Cited to explain prosecutorial role and delegation in Scotland.
Glinski v McIver [1962] AC 726 Guidance that absence of reasonable and probable cause is for the judge to determine; claimant must show lack of reasonable and probable cause. Used to frame the allocation of issues between judge and jury and to assess relevancy on the pleadings.
Grier v Lord Advocate [2021] CSOH 18, 2021 SLT 371 Supports that question of objective reasonable and probable cause is for the judge; presumption public officer acts bona fide. Referenced for the legal standard on presumptions concerning public prosecutors.
R v Murphy [2015] HCJAC 34 Establishes that conduct must be threatening or abusive and not merely annoying or offensive. Applied in assessing whether the recording could constitute an offence under section 38.
Angus v Nisbet [2010] HCJAC 76 Authority on the interpretation of threatening or abusive behaviour. Used in construing section 38(1) of the 2010 Act.
Smith v Donnelly 2002 JC 65 Further authority that annoyance/offence is insufficient for threatening/abusive conduct. Referred to support the legal threshold under section 38.
Whitehouse v Lord Advocate [2019] CSIH52, 2020 SC 133 Definition of malice including improper motive beyond bringing a criminal to justice. Cited for the meaning of malice and its relation to prosecutorial motive.
Beaton v W Ivory (1887) 14 R 1057 Presumption in favour of public officers acting honestly and bona fide; claimant must aver facts from which malice may be inferred. Adopted as historical authority on burden and presumption in actions against public officials.
Robertson v Keith 1936 SC 29 Presumption that a public official acts within authority; malice must be proved. Used to reinforce the presumption applicable to prosecutors.
Craig v Peebles (1876) 3 R 441 Example where court found probable cause in novel statutory prosecution; illustrates judge's role on relevancy. Discussed as authority for dismissing insubstantial averments of want of probable cause.
Mitchell v HM Advocate [2008] HCJAC 28, 2008 SCCR 469 At no-case stage the court must take Crown evidence at its highest for the purpose of assessing sufficiency. Applied to critique the Trial Judge's handling of the no case submission.
McPherson v HM Advocate [2019] HCJAC 21, 2019 JC 171 If one of several inferences open supports guilt, a no case submission should be rejected. Applied to conclude the no case submission ought to have been repelled.
Paterson v Harvie [2014] HCJAC 87, 2015 JC 118 Clarifies the objective nature of the section 38 test and applicability to internet communications. Relied on in assessing the appropriateness of a section 38 charge for online conduct.
Rooney v Brown [2013] HCJAC 57, 2013 SCCR 334 Objective assessment of likely fear/alarm; context is relevant; no need for evidence of actual fear. Approved and applied in the court's analysis of the recording's context.
Osman v United Kingdom (2000) 29 EHRR 245 Considered compatibility of domestic immunities with Article 6; proportionality of restrictions on access to court. Examined by the Judge at first instance; discussed in the court's analysis of Article 6 engagement.
Ghaidan v Godin-Mendoza [2004] 2 AC 557 Limits on reading down primary legislation under Human Rights Act section 3. Referenced regarding the difficulty of reading down section 170 to make it Convention-compatible.
Matthews v Ministry of Defence [2002] EWCA Civ 773, 2002 1 WLR 2621; [2003] UKHL 4, [2003] 1 AC 1163 Debate on substantive/procedural distinction and whether Article 6 applies where domestic substantive law denies a right. Discussed with later Strasbourg authority to determine applicability of Article 6.
Roche v United Kingdom (2006) 42 EHRR 30 Restated that Article 6 applies only to rights arguable under domestic law; emphasises procedural/substantive distinction. Relied on in concluding that section 170 is substantive and Article 6 is not engaged.
Z v United Kingdom (2002) 34 EHRR 3 Distinguishes immunities from substantive denials of a cause of action in Article 6 analysis. Applied to show that non-existence of a cause of action does not automatically engage Article 6.
Bakoyanni v Greece, Application no. 31012/19 Chamber decision on immunity affecting access to criminal proceedings and publication of judgments. Discussed by parties; court examined its particular circumstances and limited weight.
Grzeda v Poland [GC] (2022) 53 BHRC 631 Grand Chamber restatement on when Article 6 §1 applies to civil disputes; substantive/procedural distinction clarified. Relied on to conclude Article 6 does not extend to substantive bars created by domestic law such as section 170.
Nait-Liman v Switzerland, Application no 51357/07 Engagement of Article 6 where it is arguable domestic law recognises the claimed right. Distinguished as inapposite to section 170 because section 170 expressly prohibits liability.
Attorney General of the Cayman Islands v Bush [2025] UKPC 39 Applied Grzeda principles; confirms Article 6 procedural/substantive distinction in comparable contexts. Noted as supportive of the court's view on Article 6 and substantive exclusions.
Graham v Strathern 1924 SC 699 Explains policy rationale for prosecutorial immunity in summary procedure to avoid inhibiting prompt decisions. Referenced to demonstrate historical and policy basis for section 170 protection.
Khaliq v HM Advocate 1984 JC 23 Illustrates test-case prosecutions where prosecutor could not know outcome in advance. Used to caution against requiring a prosecutor to know guilt before proceeding.
Willers v Joyce [2016] UKSC 43, [2018] AC 779 Reinforces that a prosecutor need only be satisfied there is a proper case to lay before the court. Noted in discussion of the proper standard for reasonable and probable cause.
Stuart v Attorney-General of Trinidad and Tobago [2022] UKPC 53, [2023] 4 WLR 21 Approved the formulation that a prosecutor need only be satisfied there is a proper case to bring. Cited to support the standard on subjective belief and objective grounds.
Miazga v Kello Estate 2009 SCC 51, [2009] 3 SCR 339 Canadian authority that malice requires wilful perversion or abuse of prosecutor's office; negligence insufficient. Referenced when considering the meaning and proof of malice.
Maharaj [2024] UKPC 1 Discusses subjective and objective aspects of reasonable and probable cause and malice. Noted for its articulation of subjective/objective elements and overlap between lack of cause and malice.

Court's Reasoning and Analysis

The court proceeded in two principal strands: (A) whether section 170 engaged Article 6 and could be disregarded or waived; and (B) whether the Plaintiff's pleadings disclosed a relevant case of malicious prosecution.

A. Section 170 and Article 6

  • The court analysed Strasbourg and domestic authority (including Osman, Matthews, Roche and Grzeda) and concluded that a distinction between substantive bars to liability and procedural bars to suit is decisive for Article 6 engagement.
  • Section 170(1) was held to be a substantive provision excluding liability unless cumulative conditions are met; it prevents a substantive right from arising and therefore does not engage Article 6's right of access to court in the civil limb.
  • Because section 170 is substantive, the court held it could not be read down under section 3 HRA nor declared incompatible in the circumstances identified by the Lord Ordinary; the Lord Ordinary erred in making a section 4 declaration and that declarator was recalled.
  • The court further held the protection in section 170 is not waivable by the Second Defendant: the statutory language and absence of authority for waiver show Parliament intended a substantive exclusion of liability rather than a waivable procedural immunity.

B. Relevancy and malicious prosecution averments

  • The court reviewed the statutory test for threatening or abusive behaviour (section 38 Criminal Justice & Licensing (Scotland) Act 2010) and authorities on its objective test, and examined the material before prosecutors at the time they recommended and instructed prosecution (police reports, a Procurator Fiscal Depute report and Crown Counsel instruction).
  • Applying the authorities on no-case submissions (Mitchell, McPherson) the court concluded that prosecutors had a conventional, reasoned basis to conclude there was sufficient evidence and a public interest in prosecution; the recording and contextual material could be construed as threatening and capable of causing fear or alarm to reasonable complainers.
  • The court held that there was objective reasonable and probable cause on the pleadings and incorporated documents, and that the Plaintiff had not pled facts permitting a reasonable inference of prosecutorial malice or lack of genuine prosecutorial belief in probable cause.
  • Accordingly, even setting aside section 170, the Plaintiff's averments did not disclose a relevant claim of malicious prosecution and were irrelevant and properly dismissed.

Holding and Implications

HOLDING: The court recalled the Lord Ordinary's declaration under section 4 of the Human Rights Act 1998 and dismissed the Plaintiff's claim.

Implications:

  • The court held that section 170(1) of the Criminal Procedure (Scotland) Act 1995 is a substantive statutory exclusion of liability in respect of summary proceedings and does not engage Article 6; it is not waivable by the prosecuting authority.
  • As a result, the Plaintiff's action is incompetent by reason of section 170. The court also held, alternatively, that the pleadings were irrelevant because they did not disclose absence of objective reasonable and probable cause or malice. No change to statute was made; any policy or legislative change to section 170 lies with Parliament.

Note: All personal names, institutional names and locations in this summary have been replaced with generic placeholders to preserve anonymity. The summary reflects only the matters and reasoning contained in the provided opinion.

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Reclaiming motion in the cause Mark Hirst against the Chief Constable and the Lord Advocate (Court of Session)

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Reclaiming motion in the cause Mark Hirst against the Chief Constable and the Lord Advocate (Court of Session)
(Jun 18, 2026)