Liability for Wrongful Deprivation of Liberty: Malice and Police Privilege

Since the earliest accounts of the law of reparation, infringement of liberty has been regarded as a “delinquence” which requires to be compensated.¹ There is no claim where personal freedom has been “lawfully abridged” in conformity with the rules of criminal procedure,² but the precise form of privilege protecting public officers in this context has not always been delineated with clarity. The Outer House case of Whitehouse v Gormley³ is the latest in a series of decisions to tackle the uncertainties thereby created. It concludes that where claims are made against police officers for wrongful arrest, a form of “privilege” exists, requiring want of probable cause and malice to be proved if they are to be held liable for conduct within their “competence”.⁴ This is so construed as to allow officers to avoid liability even in some circumstances where the detainee has offered to prove that freedom was “unlawfully” abridged.⁵ This article will argue that this broad construction of police privilege is inconsistent with the weight of Scots and comparative authority.

Whitehouse v Gormley arose out of the complex circumstances surrounding the winding up and sale of Rangers Football Club in 2012, in the course of which the pursuer, David Whitehouse, and his colleague, Paul Clark, had acted as joint administrators. Allegations were made that in acquiring the Club the previous year the owner had committed fraud. Whitehouse and Clark were suspected of being party to that criminal enterprise and of concealing key information from a police inquiry. They were arrested and detained for substantial periods before being charged with conspiracy to defraud and attempting to pervert the course of justice, but all charges were eventually dismissed or withdrawn. Whitehouse and Clark then each raised separate actions, based on common law fault and breaches of ECHR Article 5 and Article 8, against the Chief Constable of Police Scotland, the Procurator Fiscal, and the Lord Advocate.

A joint procedure roll debate took place to discuss various issues of law, the principal of which were the nature and extent of the Lord Advocate's immunity from civil suit at common law, and whether, in respect of complaints concerning the conduct of police officers, it was necessary to demonstrate that they acted maliciously and without probable cause. On the first point Lord Malcolm held, on the authority of Hester v MacDonald,⁶ that the Lord Advocate as public prosecutor, and those acting on his instructions, enjoyed absolute immunity from common law challenge in the civil courts, although the claim alleging breach of the ECHR was to be permitted to proceed to proof. The pursuers reclaimed to the Inner House on the issue of the Lord Advocate's immunity, and Lord Malcolm's decision on this point was overturned by a court of five judges.⁷ The court held that Hester v MacDonald was wrongly decided, and further observed that, even if it had not taken this view, it would have overruled Hester on the basis that its ratio was no longer sustainable; “public policy no longer supported its continued application”.⁸ As the Lord Justice Clerk, Lady Dorrian, observed:

…it is in the interests of justice that prosecutors should be protected against the consequences of mistake, negligence, error of judgement and similar matters. However this does not require an immunity from suit which protects the prosecutor who acts maliciously and without probable cause.⁹

The common law case against the Lord Advocate was therefore permitted to proceed to proof alongside the Article 8 case. Others will no doubt comment on the decision of the Inner House in this matter. The focus here is instead upon the second issue debated, on which Lord Malcolm held that the actions against the police for wrongful arrest could succeed at proof only if the pursuers could establish malice as well as want of probable cause. Although his decision on this point was not reclaimed, it raises important questions about the scope of the privilege conferred on police officers defending such actions.

At the procedure roll debate Whitehouse argued that in detaining him without reasonable cause and arresting him on insufficient evidence the police officers responsible had acted outwith their “competence”, by which he meant that they had acted beyond their lawful powers.¹⁰ He contended that in so acting they had lost the privilege conferred on police officers acting lawfully in such circumstances, and that a relevant case could therefore be made against them without also proving malice. Lord Malcolm did not disagree in principle that privilege was lost where police officers acted outwith their competence, but he construed competence differently. The Scottish cases were to be read as conferring upon the police “a high degree of protection, privilege, or immunity…from civil liability, even when it involves depriving a citizen of his liberty”.¹¹ The policy was that “the police should be able to discharge the duties of their office without being exposed to civil damages claims unless want of probable cause and malice are proved”.¹² Unlawfulness was not enough therefore, and mistakes or errors of judgment did not mean loss of privilege.¹³ Conduct was outwith competence only if it was:¹⁴

…‘manifestly outwith the ambit of the defender's official powers and duties.’ This connotes an objective test based on a comparison of the conduct involved with the ordinary duties of the official. Thus, by way of example, if a police constable detains someone, it will not cease to be within the general ambit of his powers if he did so for no good reason because of spite and ill will, though if those factors can be established the privilege flies off.

In short, privilege survived except in extreme situations where the conduct was “of a type which the law could never recognise as part of the officer's authorised duties”.¹⁵ In the circumstances of this case therefore it would not be enough for the pursuer to show that his detention and arrest were unlawful, and at proof he would require to establish malice in addition.¹⁶

Lord Malcolm's analysis focussed in particular upon the apparently divergent approaches to wrongful arrest in two first instance cases decided in 1998: Woodward v Chief Constable, Fife Constabulary¹⁷ and McKinney v Chief Constable, Strathclyde Police.¹⁸ In Woodward, an Outer House decision, a police officer had detained the pursuer purportedly under statutory powers allowing detention of a suspect where there were reasonable grounds for suspecting an offence had been committed.¹⁹ But although there were grounds for suspicion, the arresting officer herself had not been involved in the prior investigations and had detained the pursuer only on being requested to do so by colleagues. This meant that she personally had no reasonable grounds for suspecting the pursuer and was not acting within the statute. At proof Lord Kingarth stated that the essential question in determining the scope of privilege available to police officers was whether the impugned actions lay within the “competence” of the police officer, broadly construed so as to mean anything done “in the course of or in discharge of his ordinary duty”.²⁰ An arrest that was “wrongful”²¹ but within the competence of a police officer in this general sense would found an action of damages only if shown to have been made without probable cause and with malice.²² Accordingly, in the absence of malice the claim for wrongful detention could not succeed. In essence, therefore, this reasoning allowed three categories of case to be identified, namely, where the conduct of arresting officers was: i)

lawful in the sense that an arrest warrant had been issued, or the defender was otherwise acting within statutory or common law powers;

Lord Kingarth's decision in Woodward indicated that a successful claim for wrongful arrest required proof of malice in categories i) and ii), although not in iii).

By contrast in McKinney, a sheriff court decision, proof before answer was allowed in a case of unlawful arrest, without proof of malice, where police officers had arrested the pursuer in the honestly-held but mistaken belief that they had power to do so under a matrimonial interdict. Sheriff Principal Cox distinguished Woodward as relating to “a procedural irregularity”, but also pointed out that the principal authorities cited by the defender had no direct relevance to the situation where the police activity was relevantly averred to have been unlawful: “Woodward alone supports the proposition that even if a citizen is detained unlawfully by a police officer, in the sense that that officer had no lawful power to detain, the detention is not actionable unless malice is proved”.²³ His view was that:²⁴

the decided cases can be divided between those in which the pursuer avers that he or she has been deprived of liberty unlawfully – in which case averments of malice are unnecessary – and those in which the pursuer concedes that the constable had the power to arrest or detain but that the exercise of that power on the particular occasion was unwarranted – in which case malice must be averred and proved.

Thus, for Sheriff Principal Cox there appeared to be a straightforward binary distinction between cases of lawful arrest, in which liability turned on proof of malice, and cases of unlawful arrest, in which it did not. There was no additional privileged category, as in Lord Kingarth's category ii), for arrests that were unlawful but within the officer's...