Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Relegated No Longer? The Role of Malice in the Delictual Protection of Liberty: Whitehouse v Gormley

Document Cited authorities 3 Cited in Related
Vincent
Date01 January 2019
Published date01 January 2019
Author
Pages75-82
DOI10.3366/elr.2019.0525
<p>Disputes about nomenclature in law sometimes turn out to be no more than exercises in branding. On other occasions, the inability to settle on the name of a legal concept may be symptomatic of deeper doctrinal unrest. This, it is submitted, is evident in the case of the delictual protection of the right to liberty. The general heading of “injuries to liberty” describes only the result of the wrongdoing, and does not indicate how that wrongdoing might manifest itself. Terms which seek to describe the events which may give rise to an actionable injury to liberty tend to consist of an adjective paired with a noun. The various nouns employed include “apprehension”, “imprisonment” and “detention”, not one of which accurately captures the fact that an actionable constraint on movement may entail simply a restraint on the movement of certain limbs.<xref ref-type="fn" rid="fn1"><sup>1</sup></xref> That, however, is mere pedantry compared to the importance of selecting the appropriate adjective. Which modifier is suitable for describing the conditions under which such physical constraint will be delictual: wronguous/wrongful; unjustified; unlawful; false; or malicious? This goes beyond mere “fair labelling”: the selection determines the conditions a citizen must satisfy before an allegation of an infringement of liberty will be actionable. In <italic>Whitehouse v Gormley</italic>,<xref ref-type="fn" rid="fn2"><sup>2</sup></xref> Lord Malcolm, sitting in the Outer House of the Court of Session, resolved the terminological dispute – at least as it applies to police officers – in favour of “malicious” imprisonment, detention, or restraint.</p> FACTS AND ISSUES

Whitehouse joins a long list of reported cases – some of which have already featured in these pages3 – which have arisen after the sale(s) of Rangers Football Club by, and to, various parties.4 Whitehouse was, as an employee of Duff and Phelps, appointed by Craig Whyte to conduct the administration of Rangers’ old holding company. Subsequently, Strathclyde Police were instructed to investigate Whyte's initial share acquisition, and obtained a warrant to search the administrator's offices in London and Manchester. Documents, including items which were privileged and others which were outside the scope of the warrant, were also taken from a search of a connected law firm, for which the authorities were later rebuked by Scottish5 and English6 courts. The Crown Office concluded that there were reasonable grounds to charge the pursuer: first, for his involvement in a fraudulent scheme (by obscuring the fact that Craig Whyte was using outside funding to purchase his shares); and, secondly, with attempting to pervert the course of justice. The pursuer was arrested at his home in England and transported to Glasgow, where he was detained for three days in November 2014. After being granted bail, he was later detained overnight pending an appearance in court in September 2015. Subsequently, a series of indictments were issued against the pursuer. Ultimately, however, all charges were dropped in June 2016.

The pursuer raised an action seeking compensation from the Lord Advocate and Police Scotland, craving damages of £9 million. He alleged financial loss (as an insolvency practitioner, the pending prosecution rendered him unable to practice) and reputational damage. His claims were founded on allegations that the Lord Advocate's pursuit of the investigation and prosecution amounted to the delict of malicious prosecution,7 and that the injury to his liberty brought about by four day's detention at the order of Police Scotland was also actionable in delict. The action against the Lord Advocate was held to be barred by the immunity that attaches to that office;8 this note will therefore discuss only the claim against the police.

 ACTIONABLE DETENTION: THE DECISION IN <italic>WHITEHOUSE</italic>

The protection of liberty through the law of delict in Scotland is under-theorised. The fullest consideration, which unfortunately does not appear to have been relied on in Whitehouse, is Chapter 5 of Professor Elspeth Reid's Personality, Confidentiality and Privacy in Scots Law.9 It is at least clear that the delict has two elements: (i) the defender must have constrained...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT