In Scotland, almost all prosecutions are brought in the name of the Crown. The public prosecution service in Scotland, the Crown Office & Procurator Fiscal Service, is responsible for everything other than a handful of technical cases (such as school truancy cases, which are brought by local education departments).
Investigations of crime are generally handled by the police (or other specialist reporting agencies such as HMRC or the Health & Safety Executive). Cases are then reported to the Crown for consideration. It is for the Crown, not the police, to decide whether someone should be prosecuted. The Crown has to consider whether there is sufficient evidence to justify prosecution, and if so, whether it is in the public interest to go ahead.
Often those who are prosecuted are acquitted. That doesn’t necessarily mean that the Crown was wrong to prosecute. Witnesses who seemed credible might be disbelieved, or another explanation might be offered that wasn’t originally available.
From time to time, there are cases where it is clear the Crown was wrong to prosecute – where the available evidence simply could not support a conviction. Those wrongly accused may seek redress, to compensate them for the huge impact that being prosecuted can have: stress, anxiety, loss of reputation, loss of employment, and so on.
Most countries recognise the right to seek damages for ‘malicious prosecution’. That generally requires a claimant to prove that they were prosecuted; that the prosecution was determined in their favour (eg by being dropped, or them being found not guilty); that the prosecutor lacked ‘probable cause’ (sufficient evidence) to prosecute; and that the prosecutor acted maliciously.
In Scotland, however, it was long understood that the Crown was ‘immune from suit’, meaning that no claim could be brought, regardless of how little evidence there was and how malicious the prosecution had been.
That changed in late 2019, with the case of Whitehouse v. Gormley. The Inner House (Scotland’s highest court of appeal in civil cases) decided that the Crown had no immunity. A person who had been prosecuted without sufficient evidence and maliciously had a right to damages. The court ruled that an action could also be brought under human rights legislation.
Malicious prosecution cases are complex and difficult to prove. It is not enough to believe that a prosecutor acted maliciously; that fact has to be proved. However, the courts now recognise that such actions can be brought. Our criminal defence lawyers have unparalled experience in this area, and can assist clients in determining whether a claim can be brought.
Similar remedies may be available in other circumstances. For example, a wrongly accused person may be able to bring proceedings against someone who makes a malicious and untrue complaint to the police.
Livingstone Brown is a 'top-tier' rated firm for both fraud and general criminal work in the Legal 500 directory, the only firm in Scotland to achieve this dual rating. Stuart Munro and Gerard Brown are recommended lawyers in the directory. If you need specialist advice on your case, call us on 0141 429 8166 or complete on our online contact form.
Livingstone Brown is a leading firm of Scottish solicitors. Based in Glasgow, but dealing with cases around the country, the firm has been at the forefront of legal service provision for over thirty years.
If you have a legal problem, getting good quality legal information at the earliest stage can be invaluable. The firm offers a free initial enquiry service; all you have to do is call in, telephone, or e-mail. You won't be charged for your enquiry; we'll let you know by return whether we can help, what we can do, and how much it's likely to cost. We can also offer legal aid where available.
Led by former senior partner Gerard Brown CBE, who continues as a consultant, the firm has built up an enviable reputation for quality of service and client care.
The firm has won various awards over the years. In the 2019 edition of the prestigious Legal 500 rankings Livingstone Brown was ranked as a 'top-tier' firm for general criminal work, and is also recommended for fraud cases. Stuart Munro and Gerard Brown were named as 'Recommended Lawyers'. In the Chambers directory the firm has a Band 1 ranking for criminal work, and Stuart Munro is a ranked financial crime lawyer. The firm was named Criminal Defence Firm of the Year and Family Law Team of the Year at the Scottish Legal Awards 2019.