A Right Without a Remedy: The Structural Flaw in Scottish Justice
A landmark Court of Session judgment has exposed a disturbing "dead zone" in the law: a place where a citizen’s rights are officially recognised as violated, yet the state remains legally untouchable.
In a legal system built on the principle of fairness, the recent ruling by Lord Lake serves as a cold dose of reality. It confirms that in Scotland, a prosecution can be objectively groundless, yet the architects of that prosecution remain shielded from accountability.
The case centred on a claim for malicious prosecution. Lord Lake reached a startlingly honest conclusion: the pursuer’s case was relevant and deserved to be heard on its merits. However, the door was slammed shut not by a lack of evidence, but by a 29-year-old statutory wall.
"Scots law acknowledges the injustice, yet deliberately denies the remedy."
Under Section 170 of the Criminal Procedure (Scotland) Act 1995, prosecutors enjoy a sweeping immunity from civil liability. Lord Lake didn't just overlook this; he issued a formal declaration that this immunity is incompatible with Article 6 of the ECHR. In plain English: the Scottish system is currently operating in breach of fundamental human rights.
"No Case to Answer" — The Empty Victory
Perhaps the most damning part of the judgment is Lord Lake’s assessment of failed trials. He noted that when a judge rules there is "no case to answer", it is a clear signal that the prosecution should never have reached the courtroom in the first place. These are cases with no objective basis, yet the law continues to protect the decision-makers behind them.
This creates a dangerous vacuum. If a prosecution is "no case fit to be put before a court", but the law prevents any civil inquiry into why it was brought, the system effectively grants itself a licence for error without consequence.
The Accountability Gap
WHY THIS MATTERS
This isn't just a technicality for lawyers; it is a systemic failure that weakens the entire justice fabric:
- Hidden Failures: Without civil discovery, we never learn if a groundless prosecution was a mistake, negligence, or something worse.
- Institutional Inertia: A system that cannot be sued has little incentive to fix the internal cultures that lead to wrongful prosecutions.
- The Illusion of Rights: Having a "Right to a Fair Trial" is meaningless if the state can force you through the trauma of a groundless trial with total impunity.
The Ball is in Parliament's Court
Lord Lake has done the heavy lifting by identifying the rot. He has formally signalled that the current statutory immunity is legally and morally indefensible in a modern democracy.
The question now moves from the courtroom to Holyrood. Will legislators act to close this gap, or will they allow the "immunity shield" to remain, ensuring that in Scotland, some injustices stay beyond the reach of the law?