Hester v MacDonald
| Jurisdiction | Scotland |
| Judgment Date | 14 July 1961 |
| Docket Number | No. 40. |
| Date | 14 July 1961 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
ReparationWrongous imprisonmentTrial on indictment in Sheriff CourtConviction quashed because of defect in procedureLiability in damagesPrivilege of Lord AdvocatePrivilege of Procurator-fiscal Depute who conducted prosecutionMalice and want of probable cause Criminal Procedure (Scotland) Act, 1887 (50 and 51 Vict. cap. 35), secs. 1 and 2.
After the conviction and imprisonment of an accused person who had been tried on indictment before a Sheriff and jury, it was discovered that there had been a defect in procedure at the trial in respect that, by error, an indictment had not at any time been served upon the accused. The conviction and sentence having been quashed, the accused brought an action of damages against the Lord Advocate, at whose instance and by whose authority the prosecution was brought; against the Procurator-fiscal who prepared and signed the indictment; and against the Procurator-fiscal Depute who conducted the prosecution. The pursuer averred that during the trial he expressly and repeatedly informed the Procurator-fiscal Depute of the failure to serve him with an indictment and of the other irregularities consequent thereon. He did not aver that the Procurator-fiscal Depute had knowledge of, or was responsible for, these irregularities, but averred that he could easily have confirmed their truth on being informed of them. In such circumstances the pursuer averred that the Procurator-fiscal Depute had acted maliciously and without probable cause in proceeding with the trial and moving for sentence against him.
Held (1) that, in connexion with prosecutions on indictment, the Lord Advocate was protected by absolute privilege; that that privilege extended to Procurators-fiscal and Depute Procurators-fiscal acting on his authority and instructions, and conferred upon them the same immunity from a claim of damages which the Lord Advocate enjoyed, and, accordingly, that the action against the Procurator-fiscal Depute was incompetent; (2) that, in any event, civil liability could only attach to the Procurator-fiscal Depute if he had acted maliciously and without probable cause, anp that, as the facts averred were not sufficient to infer malice and want of probable cause, the action against him was irrelevant.
Martin Hester brought an action of damages in the Sheriff Court at Glasgow against (first) Robert MacDonald, Procurator-fiscal for the Lower Ward of Lanarkshire; (second) The Right Honourable William Rankine Milligan, Her Majesty's Advocate, and (third) Russell Miln, Procurator-fiscal Depute, Glasgow. The pursuer sought decree against the defenders, jointly and severally, or severally, for payment to him of the sum of 1000 in respect of loss and injury which he claimed that he had sustained by his imprisonment on a conviction for theft, after trial before a Sheriff and jury. The pursuer averred that, as a result of a fundamental defect in procedure during his trial, his imprisonment was unlawful.
The following narrative of the facts is taken from the opinion of the Lord President:"This is an appeal in an action of damages for 1000 brought by the pursuer in the Sheriff Court in Glasgow. It arises out of the fact that the pursuer was unanimously found guilty by a jury of the reset of a series of articles, and was sentenced, after admitting several previous convictions, to six months' imprisonment by the Sheriff-substitute who presided at the trial. The conviction and sentence were quashed by the Court of Criminal Appeal when the Lord Advocate intimated that he would not support the conviction owing to a defect which had since been discovered in the procedure before the trial.
"The defect had arisen in this way. On 7th January 1959 the pursuer had been apprehended by the police on a charge of breaking into a house and stealing certain articles therefrom. On 12th January he appeared on petition before the Sheriff charged with theft by housebreaking along with certain others, and was ordered to be detained in custody. A solicitor, acting on his behalf, adjusted the amount of bail to be required with the Procurator-fiscal or his office, and a warrant for the pursuer's liberation on bail was granted by the Sheriff on 20th January 1959. Under the relevant statutory provisions the domicile of citation for the purposes of an indictment of an accused who is liberated on bail is the Sheriff Clerk's office.
"In this particular case, however, the necessary bail money was not produced and the pursuer's solicitor apparently ceased to act for the pursuer. The pursuer, accordingly, remained in custody. Meanwhile, Crown counsel advised proceedings by way of indictment against the pursuer; the indictment was prepared and signed by the Procurator-fiscal by authority of the Lord Advocate. As the warrant for the pursuer's liberation on bail had been granted before the indictment was drawn, the pursuer was designed in the indictment as having a domicile of citation at the Sheriff Clerk's office. The indictment was served there, and service accepted on the pursuer's behalf at the Sheriff Clerk's office. It appears that the Sheriff Clerk's office did not send the service copy to the pursuer, and that he never received a copy of it.
"He was brought with his co-accused to the Sheriff Court on 7th April 1959 for his trial. The prosecution was conducted by the Procurator-fiscal Depute, who is the third-called defender in the present action. The pursuer pleaded not guilty, and, after evidence and speeches, the jury unanimously found him guilty of reset of the articles in question. He avers that, while pleading not guiltyand in the course of the hearing before us this was explained to mean "When asked by the Court whether he pleaded guilty or not at the beginning of the trial"he informed the Court publicly of the failure to supply him with his copy of the indictment. But the presiding Sheriff-substitute took no action in the matter, and the case proceeded. He avers also that he raised the point later in the trial. But the case proceeded and, after consideration by the jury, the Depute Fiscal moved for sentence. It was subsequently ascertained that his service copy of the indictment had never reached the pursuer in prison."
The pursuer averred, inter alia:(Cond. 2) "The prosecution in the said pretended trial was conducted by the third-named defender. In conducting the prosecution the third-named defender was authorised and instructed by the first-named defender who was responsible for the third-named defender's actions and signed the indictment against the pursuer. The said indictment and prosecution were at the instance of, in the name of and by authority of the second-named defender. No indictment was served on the pursuer prior to the said trial, nor was a copy sent to the pursuer's solicitor, although it is normal practice so to do. The pursuer received no proper or lawful notice of the indictment. He received no notice of any pleading diet. He was neither required nor given any opportunity to attend a pleading diet and did not in fact attend such a diet. He was neither lawfully required nor given any proper or lawful notice to attend the trial diet. He was through the said lack of notice and failure to serve an indictment deprived of any opportunity to avail himself of legal representation and assistance subsequent to the date of the indictment and deprived of the opportunity to prepare his defence to the charge in the indictment. He was never lawfully required to compear in Court to answer to the indictment. In the circumstances any proceeding in Court with regard to him under the indictment lacked the character and status of judicial proceedings " (Cond. 3) "The said pretended proceedings taken by the defenders against the pursuer were wholly illegal and without the authority of any law or statute. In any event they were taken maliciously and without probable cause. The defenders knew or ought to have known, as the result of such enquiries as it was their duty to make, that the pursuer had never been served with an indictment and had received no proper or lawful notice thereof, had neither been required nor given any opportunity to attend a pleading diet and had been deprived of the opportunity to avail himself of legal representation and assistance and of the opportunity to prepare his defence, and had never lawfully been required to compear in Court to answer to an indictment; and that in consequence any proceedings against the pursuer were unlawful and wrongful and lacked the character and status of judicial proceedings. In particular, there was a duty upon the third-named defender to refrain from proceeding with the said pretended trial, and to refrain from moving for sentence in the circumstances. These were the more his duties since he was expressly and repeatedly informed of these irregularities. He could easily have confirmed their truth, as was his duty in the circumstances. In course of his said duties he proceeded with the said pretended trial of the pursuer and moved for sentence against him. But for the illegal and wrongous actings of the third-named defender as condescended on, the said unlawful trial, and the conviction, sentence and imprisonment following thereon, would not have taken place."
The pursuer pleaded, inter alia:"(1) The pursuer having suffered loss, damage and injury by the wrongous actings of the defenders as condescended on, is entitled to reparation therefor."
The first and second defenders each pleaded, inter alia:"(1) The present action in so far as directed against this defender being incompetent, should be dismissed. (2) The pursuer's averments being irrelevant et separatim lacking in specification and insufficient in law to support the crave of the initial writ against this defender, the action so far as laid against this defender should be dismissed.
The third defender pleaded, inter alia:"(1) The present action in so far as...
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