The Police & the need to prove malice

The case of Whitehouse v Philip Gormley, QPM & Others (2018) CSOH 93 arose out of the administration of Rangers Football Club plc. The Pursuer had been one of the Administrators.

The Pursuer sought damages on various grounds arising out of the actings of Police Scotland.

These claims were considered in a Debate (legal argument) before Lord Malcolm who issued his Opinion on 6 September 2018. One particular aspect of this Opinion is of considerable interest.

It was argued on behalf of the Pursuer that he had been detained without having reasonable cause to suspect him of having committed an offence and because he was then arrested without sufficient evidence for a Charge, the Police acted “outwith competence”. On that basis it was said the Officers who had detained and arrested the Pursuer had no power to act as they did. It was therefore argued that there was no requirement on the Pursuer to aver and prove malice or an “improper motive” on the part of the Police.

The Defenders’ position was that the Police Officers were acting within their general powers under statute and at common law. There was a distinction to be made between conduct which could never fall within the powers of Police Officers on the one hand and complaints as to how an Officer had actually exercised the powers on the other.

The Defender argued that if it was the latter case, a Police Officer enjoyed a degree of protection from a Civil claim. In short, proof of both malice and want of probable cause were essential elements of any successful claim.

This line of argument brought into play two conflicting cases, McKinney v Chief Constable, Strathclyde Police 1998 SLT (Sheriff Court) 80 which was a Decision of Sheriff Principal Cox and Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342, a Decision by Lord Kingarth.

In McKinney the Court had taken the view that averments and proof of malice were not required. A differing view had been taken in Woodward.

Lord Malcolm gave detailed consideration to both Decisions and came to the view that Woodward had been correctly decided. He said that in his opinion Sheriff Principal Cox’s analysis was flawed and he preferred that of Lord Kingarth.

Essentially Actions “generally within the competence of a Police Officer would have to have been taken without probable cause and maliciously in order to found an Action in Damages.” He went on to say that in any particular case there might be argument as to whether a Police Officer’s conduct was “outwith competence” but simply to show a mistake and resulting illegality wouldn’t be sufficient.

Lord Malcolm then went on to consider “outwith competence”. Having considered the relevant case law he said:

“The touchstone is whether or not the official is genuinely and honestly trying to do something which falls within the four corners of his authorisation. On this view, to succeed against the Police Mr Whitehouse will require to prove that the present case falls on the wrong side of this boundary in respect of either or both detentions and arrests.”

As a consequence of the views he had expressed, Lord Malcolm said that he wasn’t prepared to uphold the Pursuer’s submissions that the Action could be decided on the pleadings to the effect that he did not need to prove malice on the part of the Police. He accordingly allowed the claim to proceed to a Proof Before Answer ie, a Proof where evidence needs to be led before a decision could be taken on the law relevant to the matter in dispute.

It remains to be seen whether or not the Pursuer seeks to appeal the Decision but as matters stand at the moment this Opinion goes a long way to resolving the 20 year old conflict between McKinney and Woodward.

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