The Lord Advocate – no longer immune from suit
19 November 2019
In an appeal brought by the former joint administrators of Rangers Football Club, the Inner House of the Court of Session ruled that the Lord Advocate does not have absolute immunity from suit for malicious prosecution. It marks a significant change in an area of the law that has remained largely untouched for almost sixty years.
The serious financial troubles and subsequent winding up and sale of Rangers Football Club is well documented.
The two pursuers in this case were appointed as the joint administrators of Rangers when the club entered administration in 2012. They reported to the police that the acquisition of Rangers may have involved illegal financial assistance. The police then investigated the acquisition and financial management of Rangers. Whitehouse and Clark ceased to be the administrators later in 2012 when the club entered liquidation after an agreement with the club’s creditors couldn’t be reached. New joint liquidators were then appointed.
In November 2014, the pursuers were detained by Police Scotland on suspicion of being involved in a “fraudulent scheme and attempt to pervert the course of justice”. It was alleged that Craig Whyte, who became the club’s majority shareholder in 2011, had fraudulently bought the club and forced it into administration, which had financially benefitted the pursuers. Over the next year, there were a series of hearings and court proceedings. The pursuers were detained once again and re-arrested and charged with similar offences. They were then charged on a separate occasion with “conspiracy to defraud and attempting to pervert the course of justice”. They objected to the relevancy of these charges.
Whitehouse and Clark aver that they were then told by the Crown in June 2016 that all proceeding against them were finished, and they have not been charged with any offences since.
The pursuers’ submissions
The pursuers claim that there was no justification for their detention or prosecution and that the Lord Advocate lacked sufficient evidence to charge them. They therefore sought damages from the Lord Advocate for wrongful and/or malicious prosecution, and for a breach of Article 8 of the European Convention on Human Rights. They are also bringing a claim under Article 5 of the Convention against the Chief Constable of Police Scotland and the Lord Advocate, but these were not dealt with in this appeal and will proceed to a proof before answer, where the court will hear all of the evidence before deciding on the matter.
The Lord Advocate’s immunity
The key question in this case was whether the Lord Advocate can be liable in damages in a civil court to a person who has suffered loss as a result of the Lord Advocate’s acts, or the acts of those he is responsible for.
The Lord Advocate sought to rely on the case of Hester v MacDonald 1961 SC 370 , which held that the Lord Advocate is immune from civil suit in relation to his conduct in all solemn prosecutions. This immunity extends to acts of those who the Lord Advocate is responsible for, which are the Advocates Depute and Procurator Fiscal Deputes. The pursuers argued that Hester had been wrongly decided and therefore should be overruled.
In assessing this matter, Lord Carloway conducted a detailed analysis of the historical basis upon which the case for immunity was founded upon. He examined the institutional writings on this subject by Hume and Allison, and demonstrated that prior to Hester, the Lord Advocate did not have absolute immunity.
He found that Hume viewed that malicious acts of a judge were actionable, and that it would have been strange if he had considered the position of the Lord Advocate or a prosecutor to be different. Upon analysing other institutional writings, Lord Carloway concluded that Mackenzie had also understood that damages could be sought in the event of a malicious prosecution.
The court in Hester had also relied on a passage from Henderson v Robertson to conclude that the Lord Advocate had immunity, which read: “As against the Lord-Advocate, I do not think that a case of liability to damages could be even stated”. However, Lord Carloway described this as
a flimsy base upon which to draw any conclusion about the ‘immunity’ or ‘privilege’ of the Lord Advocate
as this was obiter and the case did not concern the Lord Advocate’s liability for a malicious prosecution.
Furthermore, Lord Carloway concluded that references by the court in Hester to the case of McMurchy v Campbell also did not support the argument for the Lord Advocate being immune from suit as this mainly discussed privilege, which is a defence to a defamation action, not to malicious prosecution.
He therefore held that Hester “was wrongly decided and should be overruled”. He summarised the correct position as this:
Where there is proof of malice and lack of probable cause in relation to the general acts of a public official, including the Lord Advocate and those for whom he is responsible, the matter is actionable. In defamation claims, however, there is an exception, whereby, as with all legal representatives and the judge, there is absolute privilege for things said or done in court.
He also concluded that even if Hester had been found to have been correctly decided, it would have been overruled on the grounds that public policy did not support its use nowadays. The court did not rule on whether the Lord Advocate is liable in the current case as it is to proceed to a proof before answer.
The Article 8 Claim
The pursuers also alleged a violation of their rights under Article 8 of the Convention as they claimed that their reputation had been damaged as a result of the Lord Advocate’s acts.
The court looked to the case of Denisov v Ukraine, (App No 76639/11), in which the European Court of Human Rights discussed the link between the rights under Article 8 and criminal or disciplinary proceedings. It observed that Article 8 can be engaged where a state measure has “serious negative effects” on a person’s reputation. In this case, the prosecution of the pursuers did have these effects. However, whether Article 8 is engaged depends on if the acts of the Lord Advocate were “justified”.
In considering this, Lord Carloway examined, amongst others, the case of SXH v Crown Prosecution Service 1 WLR 1401. In that case, the court considered that it would be “illogical” if a decision to prosecute an individual where there was reasonable cause to believe that they were guilty of an offence violated Article 8. Article 8 is therefore neither engaged nor infringed where there is “a sound reason to prosecute”. However, in circumstances where the prosecution has invented or brought charges without any reasonable basis, this may lead to a finding that Article 8 was engaged and had been infringed.
Therefore, in the current case, there may be a violation of Article 8 if it is found that the charges against the pursuers were “trumped up” and lacked evidence. We must, however, wait for the outcome of this claim as it is also proceeding to a proof before answer.
It is also worth highlighting that Lord Carloway considered that the Article 8 claim had little value alongside the malicious prosecution action as the damages available for the latter would be much greater.
The overruling of Hester by the Inner House is a significant change to the law in this area. Lord Carloway’s analysis of the historical basis behind the Lord Advocate’s immunity was perhaps overdue, especially given that he found that Hester had essentially established the immunity of the Lord Advocate based on obiter in cases that did not directly deal with immunity from suit for malicious prosecution.
The judgment can be seen to have modernised the law, and it makes the position in Scotland similar to that of jurisdictions across Europe and the Commonwealth. The Lord Advocate had contended that his immunity was justified by the aim of the proper administration of justice. These arguments were rejected as there was no reason to suggest that a lack of absolute immunity would undermine the ability to prosecute crime. The court considered that the trust of the general public in the prosecution of crime would instead be “strengthened by the availability of a malicious prosecution suit”. Moreover, the strictness of the test to prove malice means that the courts will not suddenly be inundated with a flood of actions.
Perhaps of more interest from a human rights perspective is the court’s discussion of the relationship between common law actions and actions brought under the Human Rights Act 1998. The HRA provides domestic remedies for breaches of Convention rights by public authorities (sections 6-8). The Lord Advocate is a public authority within the meaning of the Act, and therefore can be liable under the HRA for some of his acts, although it does not mention the immunity of prosecutors or the common law. Section 9 also provides that an action can be brought against the state for a violation of Article 5 of the Convention resulting from judicial acts where the judge has acted in good faith.
The pursuers contended that because of these provisions in the HRA, the immunity or absolute privilege of the Lord Advocate could not be considered as an “essential element in the structure of criminal administration in Scotland” as he had sought to argue. The Lord Advocate considered that there was no reason to bring the common law of reparation in line with the Convention by removing his immunity from suit for malicious prosecution.
Since the enactment of the Human Rights Act, the courts have often grappled with its relationship with the common law. Concerns have been raised on several occasions, such as in Van Colle v Chief Constable of the Hertfordshire Police  1 AC 225, that the HRA has encroached into and eroded areas of the common law. Moreover, Lord Hoffman believed that there was a “regrettable tendency to try to convert the whole system of justice into questions of human rights” (in R v G (Secretary of State for the Home Department intervening) 1 AC 92).
In the Outer House in this case, the Lord Ordinary concluded that the HRA was a “limited and separate regime” and was not relevant when deciding if the Lord Advocate should have limited or absolute immunity under the common law.
Lord Carloway stated that the impact of the HRA on this area of the common law would be minimal, as actions under the HRA, such as the article 8 claim in this case, added little value to a malicious prosecution case. He highlighted the difference between common law and HRA actions, quoting Lord Brown in Van Colle:
Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights.
He concluded that the common law of reparation would not be largely affected by the HRA, although he noted that the strengthening of Convention rights may have some influence on it. Therefore, those wary of large-scale changes to the common law in this area provoked by the HRA need not worry.
Whether the Lord Advocate is liable to pay damages to the pursuers in this case remains to be seen, and depends on the evidence to be heard by the court at the next hearing. It will be interesting to see whether the pursuers can meet the high threshold required in a malicious prosecution case. It will also be curious to see the court’s approach to the claims under Articles 5 and 8.
Regardless of the outcome, the case provides an opportunity to reflect on the relationship between the HRA and the common law, and the effect that the HRA has had on it in other areas. And, of lesser relevance, it may also prove to be another interesting development in the cases that have emerged following the demise of Rangers.