Man charged with stalking allowed proof in damages action against police after case dropped before trial

About this case:

• Citation:
  [2024] CSOH 109
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

Brian MacGregor claimed that a Standard Prosecution Report prepared by the police was deliberately false and misleading, and so raised an action against the chief constable. The defender contended that the pursuer’s case was irrelevant and lacking in specification, and esto the case was relevant, the expert report prepared for the pursuer contained inadmissible evidence.

The case was heard by Lord Clark. MacGregor KC and Byrne KC appeared for the pursuer, with Moynihan KC and Arnott, advocate, appearing for the defender.

Antecedent ill-will

In 2013, the pursuer became involved with a woman and allowed her to use his laptop. The relationship deteriorated in September 2014 when he challenged her over advertising her services as a prostitute. He sought the return of his laptop as well as money he had loaned her. When the money and the laptop were not returned to him, he reported the matter to the police, but at the conclusion of an interview on 10 October 2014 he was arrested and charged with stalking.

An SPR was prepared by a Constable Leach, under the supervision of a Sergeant Coleman and Inspector Chisholm. The pursuer first appeared on petition on 23 October 2014 and a first diet took place the following year, but the indictment was deserted pro loco et tempore on 25 August 2017 with the case time-barring that December.

The pursuer’s main averments were that the police officers who compiled the SPR acted deliberately and failed to properly investigate matters, failed to have proper regard to his defence to the complainer’s allegation, suppressed exculpatory evidence and acted with malice. He claimed this was motivated by antecedent ill-will towards him arising from his criticism of the local police force, with the report driven by a perception of him as disparaging and arrogant. His position was that had the matter been investigated properly, no SPR would have been submitted to the procurator fiscal and thus no prosecution would have commenced.

For the defender it was submitted that the pursuer’s averments proceeded on a fundamentally mistaken approach to the relationship between the police and the Crown. The evidence that the pursuer said was omitted from the SPR was in fact contained in the report and the pursuer did not have the evidence to show that the Crown was deprived by the police of an opportunity to form an independent judgment about his case.

In relation to the report prepared by Mr Christopher, who had previously achieved the rank of detective chief inspector in England, it was submitted for the defender that he did not have the necessary knowledge and experience to qualify as an expert, having never worked in the police service in Scotland.

Serious consequences

In his decision, Lord Clark said of the contents of the SPR: “The SPR demonstrates that the police deliberately failed to investigate the pursuer’s claims that the complainer had stolen his property and money and thereby failed to link and investigate this conduct on the part of the complainer to the allegations she made against the pursuer [and] matters which, if investigated, would have shown her to have lied and would have heavily impacted on her credibility and reliability in general.”

He continued: “The pursuer’s averments say that there is material which substantially undermines the complainer’s credibility, showing her to be a liar, and that should have been taken into account. The full nature and extent of that material and any impact it has on the credibility and reliability of the complainer is also a matter for proof. If there were the obvious and serious consequences on credibility and reliability averred by the pursuer, from the information available to the police, it could affect reasonable and probable cause.”

Assessing whether the police had deprived the Crown of an opportunity to form its own view, Lord Clark added: “It is abundantly clear in a case of this kind, as is observed by the Lord President in Grier v Lord Advocate (2022), that there will be difficulties in relation to causation, given the phases of the process and the independent decisions made by the procurator fiscal and the Crown. But I am not persuaded that the pursuer’s case on causation, as averred, must necessarily fail. As a result, the case is not dismissed on that ground.”

Turning to the admissibility of Mr Christopher’s evidence, Lord Clark accepted that he had suitable experience, but concluded: “Mr Christopher’s report, while it contains some information that is admissible and provides details relied upon by the pursuer, in numerous respects strays beyond what an expert is entitled to say. Substantial parts of it are therefore excluded from probation and it would be prudent for a revised version to be prepared.”

Lord Clark therefore allowed a proof before answer but excluded from probation significant parts of Mr Christopher’s report.