Where criminal charges are dismissed as irrelevant, it will normally be difficult to argue that reasonable and probable cause to bring a prosecution existed from an objective standpoint, a Court of Session judge has held.

Lord Tyre in the Outer House so stated in upholding in part the pursuer's argument that there was no relevant defence, in a further action against the Lord Advocate alleging malicious prosecution in relation to financial dealings in Rangers FC.

The pursuer, David Grier, was one of five individuals who had been charged with conspiring to obtain by fraud a controlling interest in the club, charges which were held irrelevant by a preliminary hearing judge, affirmed on appeal by the High Court. He sought damages for wrongful and unlawful prosecution and, separately, malicious prosecution. 

At debate, Lord Tyre was asked to decide whether the defender had pled a relevant and sufficiently specific defence that the prosecution of the pursuer was (a) subjectively justified, i.e. that the Crown personnel responsible considered they had reasonable and probable cause to initiate and continue the proceedings; and (b) objectively justified, i.e. whether as a matter of law there was reasonable and probable cause to initiate and continue the proceedings.

Lord Tyre accepted that, as stated in a Canadian case, Miazga v Kvello, to succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.

Considering the subjective belief of those responsible, as part of the third stage of the test, the judge said that a draft "precognition" (an analysis of the evidence) having been identified as the primary source of the prosecutors' subjective beliefs from time to time, adequate notice had been given of the basis of the defence on this aspect. It would also be relevant to the question whether the prosecution has been malicious.

Turning to objective justification, however, Lord Tyre said a different approach had to be taken, as this was an issue of law, as recognised in Miazga

"Where, as here, the charges were dismissed as irrelevant, it seems to me that it will normally be difficult to argue that reasonable and probable cause existed from an objective standpoint. A decision that a charge is irrelevant is a decision that even if the Crown were to prove all of the facts narrated in the indictment, the essentials of the criminal charge are not present. As a general rule, it can hardly be said, on an objective assessment, that there is reasonable and probable cause for initiating and continuing proceedings if a conviction cannot result because the circumstances averred do not, as a matter of law, amount to commission of the offence charged."

While there might be marginal cases, such as where an accepted view of the law had been overturned by an appellate court, "The present case does not, in my view, fall within such marginal territory. It raised no difficult or complex point of law." There was, accordingly, "no relevant defence pled to the pursuer’s case that the prosecution was initiated and continued in the absence of reasonable and probable cause".

However, the pursuer having acknowledged that a finding of absence of reasonable and probable cause did not necessarily imply that the prosecution was malicious, and that, at least on the law as currently understood, the pursuer would require to prove malice before his claim for damages could succeed, proof before answer would be required on that aspect of the case.

Click here to view the opinion.