Immunity without accountability
A Court of Session ruling has declared part of Scotland’s criminal procedure incompatible with the right to a fair hearing. The case is not about a controversial prosecution, but about a deeper constitutional question: how much immunity should public prosecutors enjoy in a modern democracy?
A ruling from the Court of Session earlier this month should have prompted a constitutional debate in Scotland. Instead, it risks being reduced to personality politics. It should not be.
The case concerned a journalist who had been prosecuted and later acquitted. He raised a civil action alleging malicious prosecution. The presiding judge, Lord Lake, examined the circumstances and concluded that, viewed objectively, there had been no reasonable and probable cause to bring the criminal charge. In other words, the prosecution should not have proceeded.
But the case did not succeed.
It was blocked by section 170 of the Criminal Procedure (Scotland) Act 1995 – a statutory provision that grants prosecutors immunity from damages claims in summary proceedings unless strict conditions are met. The pursuer had not been imprisoned and had not raised the case within two months. The immunity applied. The action was dismissed.
Yet Lord Lake did something constitutionally significant. He issued a declaration under section 4 of the Human Rights Act 1998 that section 170 is incompatible with Article 6 of the European Convention on Human Rights – the right to a fair hearing.
That declaration does not invalidate the statute. It does not award damages. It does not compel immediate change. But it is the formal statement that the law, as written, unjustifiably restricts access to the courts. That is not primarily about one prosecution. It is about the Scottish structures of power.
Scotland’s prosecution system is unusual. The Lord Advocate heads the prosecution service and sits in government. The Crown Office and Procurator Fiscal Service operates with constitutional independence in prosecutorial decisions, but within an architecture where legal and political roles intersect.
That system functions largely on trust. Trust that decisions are taken in good faith. Trust that internal professional culture guards against abuse. Trust that errors will be rare and corrected through appeal.
Section 170 reflects that philosophy. It shields prosecutors from civil liability in summary cases unless the accused was imprisoned and meets other strict criteria. It was designed to prevent defensive lawyering and protect the public interest in robust prosecution.
But immunity is not neutral. It is a design choice. And like all design choices, it reflects priorities. Here, the priority is institutional protection over individual remedy.
Lord Lake’s declaration does not say prosecutors acted maliciously. It does not conclude that improper motive existed. What it says is narrower and more structural: the law prevents even testing that question in many cases. That is the accountability gap.
Article 6 of the ECHR protects the right to have a civil claim determined by a court. The European jurisprudence is clear that blanket immunities that bar claims without judicial assessment are constitutionally suspect. Section 170 operates in precisely that way.
If you were acquitted but not imprisoned, and if more than two months have passed, the court cannot examine whether your prosecution was malicious – even if, as here, a judge later considers there was no reasonable and probable cause.
That is not an appeal on merits. It is a procedural bar. The state can prosecute you. The prosecution can fail. A judge can indicate that it should not have been brought. But the statute can prevent any civil examination of whether it was malicious.
This isn’t about discouraging weak claims. It is about denying jurisdiction entirely. For a modern legal system that prides itself on rule-of-law values, that is difficult to defend.
The public conversation will likely focus on the personalities adjacent to the original prosecution. That is understandable. Scotland’s recent political history has been intense. But if this case becomes another proxy battle about factions, we will miss the institutional question.
“Independence without accountability is fragility disguised as strength.”
The real issue is not whether this prosecution was politically motivated. It is whether Scotland’s justice system contains sufficient structural safeguards, if one ever were. Accountability systems are not built for ordinary cases. They are built for exceptional ones.
Immunity provisions assume good faith. Most of the time, that assumption may be justified. But constitutional design is not about optimism. It is about resilience. The question raised by this judgment is simple: should a prosecutor in Scotland enjoy an immunity that prevents a citizen from even asking a court to test whether malice existed? That is not an anti-prosecution stance. It is a rule-of-law stance.
Prosecutorial independence is essential. A prosecution service that fears personal liability for every unsuccessful case would become paralysed. Public confidence would erode in a different way. But independence and accountability are not opposites. They are complements.
In many jurisdictions, the balance is struck through high thresholds rather than absolute bars. Claims may be permitted where bad faith or abuse of process can be demonstrated, subject to rigorous proof standards. Section 170 goes further. It removes the court from the equation in large classes of cases. That is what triggered the declaration of incompatibility.
If Parliament wishes to protect prosecutorial independence, it can do so through calibrated mechanisms: limiting claims to cases of demonstrable bad faith, requiring leave of the court, or imposing strict evidential thresholds. But an absolute immunity that blocks access entirely is difficult to reconcile with modern human rights jurisprudence.
Declarations of incompatibility are not routine. They are constitutional warning lights. The court cannot strike down the statute. Parliamentary sovereignty remains. The law continues to operate unless amended.
But the judiciary has now formally stated that this part of Scots criminal procedure unjustifiably restricts the right to a fair hearing. That is significant for a devolved justice system that frequently presents itself as distinctively rights-based.
If Scotland wishes to maintain that claim, it cannot ignore the implications of this ruling. The issue now passes to legislators. Will they amend section 170? Will they introduce a narrower form of immunity? Or will they allow the declarations to sit unaddressed?
Silence would signal that institutional insulation is valued over individual redress. Reform would signal that accountability and independence can coexist.
This case does not prove systemic abuse. It does not demonstrate widespread malicious prosecution. It does not undermine the legitimacy of Scotland’s prosecution service. What it does is expose a design assumption. Scotland’s justice system assumes that prosecutorial culture and professional ethics are sufficient safeguards. In most cases, they likely are.
But constitutional systems should not rely solely on culture. They require mechanisms that allow scrutiny when culture fails. Section 170 closes that mechanism in many cases.
Lord Lake’s declaration does not answer every question. But it clarifies one: the current statutory framework is incompatible with the right of access to a court in certain circumstances. That is not a minor technicality. It is a structural issue.
This moment presents an opportunity for sober reform. Scotland can choose to defend blanket immunity as a necessary shield for public interest prosecution. Or it can choose to recalibrate, recognising that modern democratic systems require meaningful, if limited, routes for challenging state power.
This debate should not be about personalities. It should be about architecture. If the state has the power to prosecute, it must also tolerate structured scrutiny of how that power is exercised. Independence without accountability is fragility disguised as strength. The Court of Session has identified the tension. The next move belongs to Parliament.
