Inner House recalls lord ordinary’s declaration that summary immunity provision is incompatible with Article 6 ECHR

About this case:

• Citation:
  [2026] CSIH 31
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Beckett

Mark Hirst, the pursuer in an action against the chief constable of Police Scotland and the lord advocate, had sought damages of £200,000 for malicious prosecution following his acquittal of a charge alleging threatening behaviour on summary procedure at Jedburgh Sheriff Court. The lord ordinary dismissed the action, remitted to the Court of Session from the sheriff, under section 170 of the Criminal Procedure (Scotland) Act 1995 on account of the immunity from summary proceedings conferred to judges and prosecutors, but proceeded to declare that section incompatible with Article 6 ECHR.

The appeal was heard by Lord Justice Clerk Beckett, Lord Malcolm, and Lord Armstrong. Smith KC and Dangerfield, solicitor advocate, appeared for the pursuer and respondent and Moynihan KC for the second defender and reclaimer. No appearance was made by the first defender.

Unjustifiable restriction

The prosecution of the pursuer arose from him posting a recording online making comments about witnesses who testified in the High Court trial of former First Minister Alex Salmond. Comments made in the video suggested that he knew the identities of significant anonymous female witnesses, that they had colluded to destroy Mr Salmond’s reputation, that there was “not a cat’s chance in hell” they would get away with what they were doing, and that they were going to “reap a whirlwind” once the Covid-19 pandemic was over. Five of the complainers in the Salmond case made complaints to the police about these statements, which led to charges being brough against the pursuer.

Following a diet of debate on 9 May 2025, the lord ordinary held that, on the papers before him, there was a lack of objective reasonable probable cause for criminal proceedings to have been taken against the pursuer by the reclaimer but dismissed the claim as irrelevant under section 170. The sheriff sustaining a submission of no case to answer indicated that there was no objective reasonable and probable cause, and he considered the statement in the video to be passive and possibly protected by the right to freedom of expression.

When section 170 was drawn to the attention of the parties, the pursuer submitted that the lord advocate had provided an assurance that she would not plead section 170 as a secondary defence. However, the lord ordinary concluded that there was no basis on which he could deprive it of effect and had no option but to make a declaration of incompatibility as the section constituted an unjustifiable restriction on the pursuer’s right to have a determination of the merits of his claim.

It was argued by the lord advocate that the lord ordinary erred in making that declaration since it was within her gift to waive the protection afforded by the provision. Additionally, he erred in finding that there was no reasonable probable cause for prosecutorial action against the pursuer, who had failed to plead a relevant case.

No proper basis

Delivering the opinion of the court, Lord Beckett said of the effect of section 170: “The language of section 170(1) excludes there being liability unless the cumulative conditions in sub-paragraphs (a), (b) and (c) are met. It is a substantive provision excluding liability. It offers immunity from liability as opposed to immunity from suit. Where it applies, it prevents a substantive right from arising. Accordingly, domestic law expressly restricts the scope of the substantive law on malicious prosecution.”

He continued: “Since section 170(1) excludes liability, Article 6 is not engaged. There is no proper basis for the court to fail to apply this provision of substantive law. Accordingly, there was no justification for declaring the provision incompatible with Article 6. The Lord Ordinary erred in doing so and we shall recall his declarator.”

Considering that the lord advocate could not in any event waive the section 170 protection, Lord Beckett explained: “First, the wording of the provision lays bare Parliament’s intention: ‘No judge, clerk of court or prosecutor in the public interest shall be found liable by any court.’ In our view, Parliament’s intention was to direct the court that it may find no party listed in the provision liable in damages in certain prescribed circumstances, not to provide an advantage to the lord advocate in civil proceedings. Secondly, we have been unable to find any authority that a substantive rule of law can be waived by a party who is advantaged by it. The position would be otherwise if we had found the provision to be procedural.”

Reasonable person test

Turning to the dispute over relevancy, Lord Beckett said: “The prosecution would proceed on the reasonable person test in the absence of evidence of actual fear and alarm. The recording was directly threatening to the complainers and had an indirect potential to threaten complainers in other sexual offence cases and diminish their confidence in their anonymity being protected. On this analysis, it was at the very least arguable that the pursuer was reckless as to whether he had caused fear and alarm to the complainers and accordingly there was sufficient evidence for a charge under section 38. A reasonable person ought to have known that those complainers would feel threatened by the content of his recording.”

He concluded: “It would have been open to the sheriff to find that the pursuer, a journalist, chose his words carefully to make remarks which would be threatening to the complainers but which he could argue were metaphorical and not literal. It would have been the sheriff’s prerogative as the fact finder to determine if any such inferences ought to be drawn. These were all matters for the sheriff to determine in light of any evidence adduced by the defence, and we cannot anticipate what the outcome would have been. Accordingly, the lord ordinary misdirected himself in his acceptance that there was insufficient evidence at the trial.”

The court therefore recalled the lord ordinary’s declaration under section 4 of the 1998 Act and dismissed the pursuer’s claim on the basis of incompetence.