A journalist who was prosecuted and subsequently acquitted of a statutory offence of threatening and abusive behaviour after making a YouTube video about the outcome of the Alex Salmond trial has lost an action for damages for malicious prosecution before the Court of Session due to the application of a blanket immunity provision, however it was found that the relevant provision was in breach of claimants’ rights under Article 6 ECHR.
Mark Hirst, who was acquitted of an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 following a no case to answer submission, sought reparations from the chief constable of Police Scotland, the lord advocate, and others arguing he had been maliciously prosecuted for political motives. The defenders sought dismissal of the action on the basis of lack of specification of the cases against each of them.
The case was heard by Lord Lake in the Outer House of the Court of Session, with Dangerfield, solicitor advocate, appearing for the pursuer, Byrne, advocate, appearing for the chief constable, and Moynihan, advocate, for the lord advocate.
Duty to protect
On 29 March 2020, six days after former first minister, Alex Salmond, was acquitted of various sexual offences, the pursuer posted a video on YouTube entitled “Salmond Trial Observations”. Complaints were made about the contents of this video to the police and to prosecutors which resulted in a warrant to search his home being granted and a summary prosecution in January 2021. At the end of the Crown case, a submission of no case to answer was upheld and the pursuer was acquitted.
It was averred by the pursuer that there was no reasonable or probable cause for the police to bring charges against him, and that these actions had been carried out to silence him and prevent him from criticising the complainers in the Salmond case, whom he had alleged in the video were senior members of the SNP involved in active collusion to destroy Mr Salmond’s reputation. The actions of the second defender’s employees, i.e. members of the Crown Office and Procurator Fiscal Service, were also lacking in probable cause for the same reasons.
For the lord advocate it was submitted that the pursuer’s video had within it a threat of disclosure of the identities of the complainers in the Salmond trial and threats of repercussions to these women having been complainers. This meant that a prosecutor with a duty to protect the public could reasonably reach the conclusion that it was fit to be put before a court. In respect of malice, no averments had been made of any contact between those complainers and the prosecutors who made decisions in relation to the pursuer.
The principal submission for the chief constable was that, once it was apparent that the action sought damages in respect of malicious prosecution, the action could not proceed against the chief constable. In any event, the action lacked the necessary specification to allow her to know what the complainers’ bidding was, who said that it was their bidding, when they had said it, where they said it and to whom they had said it.
As the pursuer had not been imprisoned and had not brought the action within two months of his prosecution, the court invited the parties to make submissions on the immunity provision found in section 170 of the Criminal Procedure (Scotland) Act 1995. The pursuer invited the court to construe the section as conferring an invocable defence on the part of the specified officeholders, which they had in this case chosen not to rely on.
Applied as it stands
In his decision, Lord Lake said of the pursuer’s case against the police: “In this situation, the pursuer is not offering to prove that he had suffered any loss caused by the wrongful acts of the police. These factors means that the decision in Micosta v Shetland Islands Council (1986) is of no assistance to the pursuer. The pursuer submitted that the actions of the police ‘ought’ to have a remedy. Despite this, no basis has been identified on which they would be actionable, and the pursuer has not averred any consequences which flow from the acts. In summary, no relevant case is plead against the chief constable.”
Moving to the case against the lord advocate, he added: “Nothing has been brought to my attention to indicate why, notwithstanding the submission of no case to answer being upheld, it could be said that there was a case fit to try. It therefore appears that in the circumstances, the decision of the sheriff to sustain a submission of no case to answer indicates that there was no objective reasonable and probable cause. It should be stressed that this does not lead automatically to liability. If that was the position it would impose an unreasonable burden on the Crown and could impede the proper functioning of the prosecution.”
Considering whether section 170 was Convention compatible, Lord Lake said: “But for section 170, there would be an entitlement to seek a decision on the merits of the pursuer’s claim that there had been malicious prosecution. However, the section confers an absolute immunity that does not permit the court to undertake any weighing or evaluation of factors that might suggest that it should not apply. On this basis, it can be concluded that section 170 does infringe the rights of prospective claimants under Article 6.”
He concluded: “The submission for the pursuer was that I should deal with relevancy leaving aside section 170 and only then turn to consider the effect of the section. I do not consider that that course of action is properly available. The immunity is a key issue in determining whether the claim is relevant. In addition, as the 1995 Act is an Act of the United Kingdom Parliament, there is no basis on which I can deny it effect. Accordingly, section 170 must be applied as it stands. As the pursuer was acquitted at his trial, the result is that the pursuer cannot succeed in his action against the Lord Advocate and the action against is accordingly irrelevant.”
Lord Lake therefore dismissed the action but made a declaration under section 4 of the Human Rights Act 1998 that section 170 of the 1995 Act was incompatible with Article 6 ECHR as an unjustifiable restriction on the pursuer’s right to have the merits of his claim determined.
