WHITEHOUSE, RECLAIMING MOTIONS IN THE CAUSES (FIRST) DAVID JOHN WHITEHOUSE and (SECOND) PAUL JOHN CLARK AGAINST (FIRST) THE CHIEF CONSTABLE, POLICE SCOTLAND and (SECOND) THE LORD ADVOCATE [2019] ScotCS CSIH_52 (30 October 2019)

WHITEHOUSE, RECLAIMING MOTIONS IN THE CAUSES (FIRST) DAVID JOHN WHITEHOUSE and (SECOND) PAUL JOHN CLARK AGAINST (FIRST) THE CHIEF CONSTABLE, POLICE SCOTLAND and (SECOND) THE LORD ADVOCATE [2019] ScotCS CSIH_52 (30 October 2019)

The Lord Advocate and those acting on his behalf enjoy absolute immunity from civil suit for acts done in connection with prosecution on indictment, as established in Hester v MacDonald. This immunity extends to pre-indictment conduct and is rooted in constitutional independence and public policy. Article 8 ECHR may be engaged by prosecutorial acts only where deliberate abuse of process or trumped-up charges are alleged, but not by mere reputational harm following prosecution.

Citation
[2019] ScotCS CSIH_52
Parties
First Pursuer and Reclaimer: David John Whitehouse; Second Pursuer and Reclaimer: Paul John Clark; First Defender and Respondent: The Chief Constable, Police Scotland; Second Defender and Respondent: The Lord Advocate
Jurisdiction
Scotland
Judgment Date
30 October 2019
Procedural Posture
Reclaiming Motions (appeals) in Civil Actions for Damages / Inner House, Court of Session, Opinion on Preliminary Legal Issues
Outcome
Reclaiming motions refused as regards the Lord Advocate; claims against Chief Constable to proceed to proof before answer.
Legal Topics
Prosecutorial Immunity, Malicious Prosecution, Article 8 ECHR, Damages, Qualified and Absolute Privilege, Vicarious Liability
Civil Liability Human Rights Criminal Procedure Constitutional Law Prosecutorial Immunity Malicious Prosecution Article 8 ECHR Damages +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 39 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

David John Whitehouse

First Pursuer and Reclaimer

Paul John Clark

Second Pursuer and Reclaimer

The Chief Constable, Police Scotland

First Defender and Respondent

The Lord Advocate

Second Defender and Respondent

Procedural Posture

Reclaiming Motions (appeals) in Civil Actions for Damages / Inner House, Court of Session, Opinion on Preliminary Legal Issues

Legal Issues

  1. 1 Whether the Lord Advocate enjoys absolute immunity from civil suit for acts as prosecutor
  2. 2 Whether absolute immunity should be overruled in light of modern policy and comparative law
  3. 3 Whether Article 8 ECHR is engaged by prosecutorial acts causing reputational harm

Ratio Decidendi

The Lord Advocate and those acting on his behalf enjoy absolute immunity from civil suit for acts done in connection with prosecution on indictment, as established in Hester v MacDonald. This immunity extends to pre-indictment conduct and is rooted in constitutional independence and public policy. Article 8 ECHR may be engaged by prosecutorial acts only where deliberate abuse of process or trumped-up charges are alleged, but not by mere reputational harm following prosecution.

Court Disposition

Reclaiming motions refused as regards the Lord Advocate; claims against Chief Constable to proceed to proof before answer.

Orders

  • Lord Advocate enjoys absolute immunity from civil suit for acts as prosecutor on indictment.
  • Claims under Article 8 ECHR against the Lord Advocate dismissed.