WHITEHOUSE, DAVID JOHN WHITEHOUSE AGAINST PHILIP GORMLEY QPM AND OTHERS [2018] ScotCS CSOH_93 (06 September 2018)

WHITEHOUSE, DAVID JOHN WHITEHOUSE AGAINST PHILIP GORMLEY QPM AND OTHERS [2018] ScotCS CSOH_93 (06 September 2018)

The Lord Advocate's absolute immunity from civil suit at common law applies to acts done in prosecution on indictment, but does not necessarily extend to investigatory or pre-indictment stages. ECHR claims are not subject to immunity. Acts outwith competence are not protected by absolute privilege. The statutory and operational changes since Hester require reconsideration of the scope of immunity. The article 5 claim and time bar issue are suitable for proof; article 8 claim is not engaged unless criminalisation of conduct breaches personal integrity.

Citation
[2018] ScotCS CSOH_93
Parties
Pursuer: David John Whitehouse; First Defender: Philip Gormley QPM; Second Defender: Procurator Fiscal For Specialist Casework in the Crown Office; Third Defender: Lord Advocate
Jurisdiction
Scotland
Judgment Date
06 September 2018
Procedural Posture
Civil Damages Action / Opinion Following Joint Procedure Roll Debate
Outcome
Partial dismissal and proof before answer
Legal Topics
Absolute Immunity of Lord Advocate, Wrongful Detention, Malicious Prosecution, ECHR Articles 5 and 8, Disclosure Obligations, Privilege and Competence
Civil Liability Human Rights Criminal Procedure Absolute Immunity of Lord Advocate Wrongful Detention Malicious Prosecution ECHR Articles 5 and 8 Disclosure Obligations +1 more

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Parties

David John Whitehouse

Pursuer

Philip Gormley QPM

First Defender

Procurator Fiscal For Specialist Casework in the Crown Office

Second Defender

Lord Advocate

Third Defender

Procedural Posture

Civil Damages Action / Opinion Following Joint Procedure Roll Debate

Legal Issues

  1. 1 Scope of Lord Advocate's absolute immunity from civil suit
  2. 2 Requirement of malice and lack of probable cause for police liability
  3. 3 Compatibility of common law immunity with ECHR remedies

Ratio Decidendi

The Lord Advocate's absolute immunity from civil suit at common law applies to acts done in prosecution on indictment, but does not necessarily extend to investigatory or pre-indictment stages. ECHR claims are not subject to immunity. Acts outwith competence are not protected by absolute privilege. The statutory and operational changes since Hester require reconsideration of the scope of immunity. The article 5 claim and time bar issue are suitable for proof; article 8 claim is not engaged unless criminalisation of conduct breaches personal integrity.

Court Disposition

Partial dismissal and proof before answer

Orders

  • Action dismissed against second defender subject to procedural clarification
  • Plea of immunity sustained except for article 5 claim and time bar issue