The Lord Advocate has no immunity from being sued in the civil courts where it is alleged that he acted maliciously and without probable cause in bringing a prosecution, a full bench of the Court of Session has ruled.
Five judges headed by the Lord President, Lord Carloway, and Lord Justice Clerk, Lady Dorrian, overruled the 1961 case of Hester v MacDonald and agreed that David Whitehouse and Paul Clark, the former administrators of Rangers Football Club, had pled a relevant case for proof against the Lord Advocate, in addition to cases agains the Chief Constable of Police Scotland.
Both pursuers averred that after they left office as administrators they were detained by police in dawn raids on their homes in November 2014, on suspicion of being involved in a "fraudulent scheme and attempt to pervert the course of justice". This followed a police search of their office in which documents were taken over which legal privilege was claimed, and which had been reviewed by the police despite assurances that they had not. On their detention trhey were taken from their homes in England and kept in police custody in Glasgow over a weekend, after which they appeared on petition and were granted bail. It was alleged that by false pretences they had enabled Craig Whyte to gain control of Rangers and force it into administration, to their own financial benefit. They were each further detained in 2015 on reformulated charges. Two indictments were served and preliminary procedure took place, following which five of the seven charges were withdrawn by the Crown and the court sustained a plea to the relevancy of the others. The Crown stated it would bring further proceedings, but a few months later announced that proceedings against them were at an end.
It was averred that at no point was there any justification for the detention, committal, prosecution or indictment of the pursuers. The Lord Advocate had never had sufficient evidence for any of the charges. The Crown had failed to pursue all reasonable lines of inquiry, and statements had been made to the court which were misleading and lacked candour. The absence of reasonable grounds for suspicion demonstrated a degree of recklessness on the part of the Crown amounting to malice.
The Lord Ordinary held that he was bound by the decision in Hester, which stated that the Lord Advocate held an absolute immunity. On appeal it was argued that Hester had been wrongly decided, and in any event was no longer authoritative, standing developments since then in the law and society. Any immunity had to be justified in terms of public policy and public interest and there was no good reason for the Lord Advocate to enjoy absolute immunity.
The Lord Advocate agreed that the question was not whether he was above the law, but whether he was liable in damages in a civil court to a person who had suffered wrong. The justification for the immunity was that it was impossible to decide if a claim was well founded until a case was tried, which would act as an inhibiting factor in the discharge of his duties. Immunity was afforded in the wider public interest, as with judges.
Delivering the leading opinion, the Lord President said the previous authorities did not support the absolute rule stated in Hester. Rather, there was recognition that malicious acts of a judge in the course of his duties were actionable, and it was difficult to see why the position of a prosecutor, including the Lord Advocate, would be considered differently. "In essence, in relation to his acts, the Lord Advocate, and those for whom he is responsible, are generally subject to the same rights and duties as other public officials in the conduct of their public duties", he stated.
"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."
Hester was wrongly decided and should be overruled. In any event it would have been overruled as having undesirable consequences and as being no longer supported by public policy.
Lord Carloway added that a separate case based on article 8 of the European Convention on Human Rights did not appear to add anything in practical terms but would also be allowed to go to proof before answer.
Lady Dorrian and Lady Paton delivered short concurring opinions, and Lord Menzies and Lord Brodie also agreed.