David Grier against The Lord Advocate and The Chief Constable of Police Scotland
Dec 20, 2022
In November 2014, Mr Grier was, along with others, charged with involvement in a fraudulent conspiracy relating to the acquisition of Rangers Football Club. The prosecution ultimately failed. Mr Grier alleged that he had been prosecuted maliciously and raised an action for damages. In an opinion issued in January 2022, a judge (Lord Tyre), who heard the evidence, found that the prosecution had lacked reasonable and probable cause, but had not been malicious. He held that the test for malicious prosecution had not been met. Mr Grier appealed.
Mr Grier contended that the judge had failed to consider relevant evidence, and that malice was bound to be inferred from the actions of the Crown Office and the police during the prosecution. He criticised the actions of particular individuals involved. Specifically, he alleged that the Crown Office had failed to prepare a proper analysis of the evidence and had misled a sheriff into granting an extension of the time limit in which to bring a prosecution. He relied upon the fact that the then Lord Advocate had admitted to having maliciously prosecuted Mr Grier’s co-accused and that the High Court had described the grant of search warrants as “oppressive”.
Mr Grier alleged that the police did not believe that they had a proper case to put before the Crown and that they were motivated by the desire to secure a conviction at all costs. He pointed to exculpatory material which the police had failed to forward to the Crown. He made an application to have new evidence heard, concerning emails which had been produced to his legal team two and a half weeks before the appeal hearing and which he alleged demonstrated that Crown counsel had personally misled the court when seeking the extension of time.
The unanimous opinion of the Court of Session was delivered by Lord Carloway, the Lord President. The judge at first instance had been entitled to hold that there was no malice on the part of either the Lord Advocate or the Chief Constable. Malice in a legal sense meant that a case was pursued with an improper motive; ie one other than for the purpose of bringing a criminal to justice. Malice need not be inferred from an absence of reasonable and probable cause. The individual making the decision to prosecute may simply have been mistaken in his understanding of the law or in his interpretation of the evidence.
The court stated:
“The detection and prosecution of crime is often far from a simple task. Allegations of fraud…can be difficult to investigate… Both at the investigation stage, and when Crown counsel elect to prosecute, it is important that those involved, especially those taking the critical prosecutorial decisions, are both experienced and skilled in financial matters and commercial ethics and practices.
Mistakes can still be made. Cases may be reported by the police to the Crown Office which Crown counsel reject as inadequate evidentially, or because of the manner in which the investigation has been conducted. Carefully drafted indictments may be dismissed by the court because of some undetected flaw, or as a result of a misunderstanding of the law. In due course, an accused may be acquitted because the testimony at trial did not reach the threshold which had previously been thought, … to exist.”
At the heart of the case against the Lord Advocate was the mind-set of Crown counsel when he made the decision to serve the indictment on Mr Grier. The independence of the Crown counsel was a constitutional safeguard of the greatest importance in the system of criminal justice. It would be very difficult to impute an improper purpose or motive to such an individual in the absence of clear evidence to the contrary. It was not to be readily assumed that a failure by the police to report a particular piece of information or to produce a specific document to the Crown was caused by malice. There was a presumption that a public office holder was doing no more than his duty, and doing it honestly. The occurrence of mistakes did not normally constitute a conspiracy or give rise to an inference of malice.
The court agreed with the judge that it should not be influenced by extra-judicial settlements of the actions raised by others. The precise reasons for settling those cases, as disclosed in a statement to Parliament, may not be have been entirely clear but were no doubt based, in part, on a consideration of the evidence available against those other individuals.
The court was not satisfied that it was in the interests of justice to hear new evidence. The emails did not assist directly in the proof of any material fact. The fact that the wrong information had been given by Crown counsel to the sheriff in support of the application for the extension of time was already well-known before the hearing of evidence by the judge. Mr Grier had elected not to use the error in his attempt to prove malice at that time. The court was not persuaded that the newly produced emails demonstrated dishonesty on the part of Crown counsel.
The court refused the appeals and upheld the decision of the judge at first instance.
The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.