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David Whitehouse and Paul Clark v The Chief Constable and The Lord Advocate [2019] CSIH 52

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David Whitehouse and Paul Clark v The Chief Constable and The Lord Advocate [2019] CSIH 52

30 October 2019

A five judge bench of the Inner House has unanimously held that the Lord Advocate does not have immunity from civil law suit for malicious prosecution.

David Whitehouse and Paul Clark each claim damages against the Chief Constable of Police Scotland and the Lord Advocate arising from their treatment by the police and prosecution services in connection with their involvement in the winding up and sale of Rangers Football Club. They allege that the there was no evidential basis for their detention and subsequent prosecution on a number of charges.

The Lord Ordinary (Malcolm) had held that the Lord Advocate (and the Advocates Depute and Procurator Fiscal Deputes who acted on his behalf) had immunity from suit for malicious prosecution. That decision was based upon the Inner House’s decision in Hester v MacDonald 1961 SC 370. The Lord Ordinary considered himself bound by that decision.

The Inner House has now held that Hester was wrongly decided and should be overturned. Following a review of the institutional writers (including Hume and Mackenzie) and authoritative textbooks at the time Hester was decided (including Glegg: Reparation and Walker: Damages), it held that there was no authority for the view that the Lord Advocate possessed absolute immunity from civil law suit.

The Lord President summarised the practical result of the Inner House’s decision as follows (at paragraph [87]):

“In essence, in relation to his acts, the Lord Advocate, and those for whom he is responsible, are generally subject to the same rights and duties as other public officials in the conduct of their public duties.”

The Inner House also held, in obiter remarks, that had Hester been determined to have been correctly decided at the time, the Inner House would have overruled it on the basis that public policy no longer supported its continued application.

Whilst the interest of justice require prosecutors to be protected against the consequences of mistake, negligence and error of judgment, this was held not to require or justify an immunity from suit which protects the prosecutor who acts maliciously and without probable cause. Nor was the Inner House persuaded that the prospect of liability could have a “chilling effect” on prosecutorial decision making.

The Inner House held that the high threshold for proving malice provides a clear protection for the honest but mistaken prosecutor.

The pursuers’ claims based upon Article 8 ECHR (private and family life) were also held to be relevant and allowed to proceed to Proof before Answer. The Inner House upheld the decision of the Lord Ordinary in that regard. 

A number of members of Axiom Advocates were instructed in this case. Roddy Dunlop QC and Adam McKinlay appeared on behalf of David Whitehouse. Gerry Moynihan QC was instructed on behalf of the Lord Advocate.