Qualified Immunity of the Lord Advocate in Whitehouse and Clark v Chief Constable and Lord Advocate

Document Cited authorities (2) Cited in Related
DOI10.3366/elr.2022.0794
Author
Pages449-452
Date01 September 2022
Published date01 September 2022

In Whitehouse and Clark v. The Chief Constable and The Lord Advocate,1 the pursuers, the administrators of Rangers Football Club, sought damages against the Chief Constable of Police Scotland and the Lord Advocate arising out of their treatment by police and prosecution following the winding up and sale of Rangers.2 The Lord Advocate contended that he and his Advocate Deputies and Procurator Fiscal Deputies had immunity from suit in terms of Hester v MacDonald.3 Therefore, the issue before the Inner House on a reclaiming motion was whether the Lord Advocate had absolute immunity against a malicious prosecution action following upon an indictment, and, secondarily, whether Article 8 of the European Convention on Human Rights (ECHR) could be engaged.

Overturning sixty years of established law, the Inner House decided that the Lord Advocate had no absolute immunity in connection with prosecutions if they are proved to have been malicious and without probable cause. Whitehouse therefore represents a significant constitutional change in Scotland, and sets a new precedent for civil actions against the Lord Advocate following upon indictment. This article examines the court’s reasoning in order to understand how and why the court reached its decision, and briefly considers the implications for Scots constitutional law going forward.

This case arose out of the 2011 winding up and sale of Rangers Football Club. The pursuers were the administrators of the club, and were indicted in connection with alleged wrongdoing with regard to its acquisition and financial management.4

By June 2016, all proceedings against the pursuers were at an end, having been dismissed or withdrawn.5 Pursuers subsequently filed the instant action, averring malicious prosecution and infringement of Article 8 of ECHR by the Chief Constable, the Lord Advocate, and his deputies.

At first instance, the Lord Ordinary held that the Lord Advocate enjoyed the same protection as superior judges in any matter which properly fell within the scope of his official duties, following Hester v MacDonald.6 Further, Article 8 could be engaged by a decision to prosecute where the charges had been “trumped up”.7

Was Hester correctly decided or could the Lord Advocate be liable in damages for acts which were malicious and without probable cause?8

The pursuers’ submission averred that Hester had been wrongly decided, creating an...

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