Hansard

I wish to raise a matter of some considerable importance. I have given notice and a draft copy of my speech to the Presiding Officer, the Cabinet Secretary for Justice and Home Affairs and the Minister for Parliamentary Business.

I should say that I have been a solicitor for 45 years. However, I am no longer in practice.

Last Thursday—5 February—in the case of Hirst v chief constable and the Crown Office and Procurator Fiscal Service, Lord Lake, of the Court of Session, issued a seminal judgment in which he found Scots law to be in clear breach of the European convention on human rights and fundamental freedoms. In particular, he found that Scots law unjustifiably restricts the right to a free trial.

Lord Lake even took the step of issuing a formal declaration to that effect under section 4 of the Human Rights Act 1998. Specifically, he said that section 170 of the Criminal Procedure (Scotland) Act 1995 is inconsistent with the ECHR.

Such a declaration has been described judicially as a “last resort”. Section 170 requires, inter alia, that, for a case of malicious prosecution—which was what the case was about—to succeed, the pursuer must first have suffered imprisonment. That is plainly ludicrous. Of course it is correct that the Crown must be immune when it simply makes a mistake. Not every case results in a guilty verdict. Mistakes can be made and prosecutions brought forward in good faith, but the law should surely not protect those cases in which it can be proven that the prosecution was brought out of malice. That blanket immunity, which section 170 provides, is what I believe led to Lord Lake making his finding.

The pursuer, Mark Hirst, a former STV journalist and prominent supporter of the late Alex Salmond, was prosecuted for an alleged breach of the peace for making comments that the sheriff found simply to be an expression of an opinion. The Court of Session found that Mr Hirst had a relevant statable case for malicious prosecution to go to proof but, because of the terms of section 170, the court’s hands were tied and the action could not proceed, and Lord Lake could not consider the proof even though he found that there was a statable case.

Because he was acquitted, the pursuer, Mr Hirst, cannot succeed in a subsequent case of malicious prosecution. It seems to me that section 170 is our own legal version of a catch-22.