Mark Hirst against The Chief Constable Police Service of Scotland and others (Court of Session) [2026] CSOH 8 (05 February 2026)

Mark Hirst against The Chief Constable Police Service of Scotland and others (Court of Session) [2026] CSOH 8 (05 February 2026)

The pursuer's pleadings do not disclose a relevant case against the Chief Constable, as police cannot be liable for malicious prosecution absent deprivation of prosecutorial independence or causative wrongful conduct. Against the Lord Advocate, the court finds there was no objective reasonable and probable cause for prosecution under section 38 of the 2010 Act or section 127 of the Communications Act 2003, and the pursuer's averments of malice are relevant. However, section 170 of the Criminal Procedure (Scotland) Act 1995 provides a blanket immunity to prosecutors in summary proceedings unless the pursuer was imprisoned and the action is raised within two months, which is not the case...

Citation
[2026] CSOH 8
Parties
Pursuer: Mark Hirst; First Defender: The Chief Constable, Police Service of Scotland; Second Defender: Scottish Government Legal Directorate (Lord Advocate/COPFS)
Jurisdiction
Scotland
Judgment Date
05 February 2026
Procedural Posture
Civil (delict – Malicious Prosecution) / Opinion on Relevancy and Legal Immunity (pleadings Debate)
Outcome
Action dismissed as irrelevant against both defenders; declaration of incompatibility made regarding section 170 of the Criminal Procedure (Scotland) Act 1995.
Legal Topics
Malicious Prosecution, Police Liability, Prosecutorial Immunity, Article 6 ECHR, Section 170 Criminal Procedure (scotland) Act 1995, Freedom of Expression
Civil Liability Human Rights Criminal Procedure Malicious Prosecution Police Liability Prosecutorial Immunity Article 6 ECHR Section 170 Criminal Procedure (scotland) Act 1995 +1 more

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Parties

Mark Hirst

Pursuer

The Chief Constable, Police Service of Scotland

First Defender

Scottish Government Legal Directorate (Lord Advocate/COPFS)

Second Defender

Procedural Posture

Civil (delict – Malicious Prosecution) / Opinion on Relevancy and Legal Immunity (pleadings Debate)

Legal Issues

  1. 1 Whether the pursuer has pled a relevant case of malicious prosecution against the Chief Constable and the Lord Advocate
  2. 2 Whether there was reasonable and probable cause for prosecution
  3. 3 Whether malice was present in the prosecution

Ratio Decidendi

The pursuer's pleadings do not disclose a relevant case against the Chief Constable, as police cannot be liable for malicious prosecution absent deprivation of prosecutorial independence or causative wrongful conduct. Against the Lord Advocate, the court finds there was no objective reasonable and probable cause for prosecution under section 38 of the 2010 Act or section 127 of the Communications Act 2003, and the pursuer's averments of malice are relevant. However, section 170 of the Criminal Procedure (Scotland) Act 1995 provides a blanket immunity to prosecutors in summary proceedings unless the pursuer was imprisoned and the action is raised within two months, which is not the case...

Court Disposition

Action dismissed as irrelevant against both defenders; declaration of incompatibility made regarding section 170 of the Criminal Procedure (Scotland) Act 1995.

Orders

  • Dismissal of the action against the Chief Constable and the Lord Advocate
  • Declaration that section 170 of the Criminal Procedure (Scotland) Act 1995 is incompatible with Article 6 ECHR