Case Study - Whitehouse v. Lord Advocate

At the conclusion of the criminal proceedings, the client sought advice on a malicious prosecution claim against the Crown, along with a related wrongful arrest claim directed against the police.  An immediate issue was the long-standing immunity enjoyed by the Lord Advocate, the head of Crown Office, Scotland’s public prosecution service.  It was also noted that the Scottish disclosure legislation, unlike the English equivalent, did not provide a mechanism to extend the purposes to which disclosed evidence could be put, thereby preventing it being relied upon in civil proceedings.

Guided by Stuart Munro and the team, the client petitioned the noble office of the High Court in order to secure access to the disclosed evidence for the purposes of bringing civil proceedings.  An action was brought, and the Lord Advocate’s immunity successfully challenged in a full bench reclaiming motion (appeal) to the Inner House of the Court of Session.  The hearing included analysis of the international position (in the Commonwealth, US and Europe) and arguments about public policy. The court confirmed that all aspects of the client’s claim could proceed to proof.

The UK Supreme Court has repeatedly noted that ‘no wrong should be without a remedy’.  Thanks to the tireless efforts of Stuart and the team, the client has been left with a remedy where none previously existed.  It is now possible to bring an action for malicious prosecution in Scotland.