Judgement day
JUDGE REJECTS CLAIM AGAINST LORD ADVOCATE ON BASIS THAT CURRENT SCOTS LAW IS INCOMPATIBLE WITH HUMAN RIGHTS LEGISLATION
The Court of Session has today (5th February 2026) rejected a claim against the Lord Advocate and Chief Constable who were being sued by a prominent Alex Salmond supporter for “malicious prosecution”.
However Lord Lake’s grounds for rejecting the claim raise serious questions over the compatibility of Scots law and the European Convention on Human Rights, as the judge sets out clearly in his ruling published today (Thursday). The declaration by Lord Lake states the Criminal Procedure (Scotland) Act 1995, section 170 is incompatible with Article 6 of the ECHR legislation, namely the right to a free trial. Lord Lake's judgement states that the incompatibility places an "unjustifiable restriction" on those who believe they have been maliciously prosecuted by Scottish authorities.
Former STV journalist Mark Hirst brought the case against Scotland’s senior prosecutor after he was acquitted in 2021 of publishing a video that anonymous complainers claimed had placed them in a state of “fear and alarm”.
At his trial at Jedburgh Sheriff Court on 7th January 2021 Sheriff Patterson ruled that “no reasonable person could have been placed in a state of fear and alarm” following publication of the video. Patterson added that the video contained the opinion of Mr Hirst, “and nothing more.” Sheriff Paterson accepted a motion of “no case to answer” from Hirst’s defence team during the trial and Hirst was fully acquitted.
In July 2021 Hirst’s legal team served a writ against both the Lord Advocate and the Chief Constable of Police Scotland claiming “malicious prosecution”.
Two days of hearings were heard before Lord Lake at the Court of Session on 8th and 9th May 2025 and today Lord Lake published his written judgement on the case.
Responding to the written judgement, Hirst said, “The court has found that I have a relevant case of malicious prosecution against the Lord Advocate which should proceed to proof.
"However, because of a statutory provision granting immunity to prosecutors – section 170 of the Criminal Procedure (Scotland) Act 1995 – the court’s hands are tied, and my action has to be dismissed," Hirst added.
"The court has made a declaration under the Human Rights Act 1998, section 4, that this provision is inconsistent with the European Convention on Human Rights and Fundamental Freedoms, Article 6, as it is an unjustifiable restriction on my right – and the right of anyone prosecuted in a Scottish Court -- to have their claim of malicious prosecution decided," Hirst added.
According to Hirst's lawyers the inconsistency and lack of compatibility will need to be addressed through urgent legislation passed by Parliament.
"This now becomes a matter for the legislators to correct, and to correct with urgent legislation. It is clearly a decision of historic importance. I’ll be consulting with my legal team on where I go from here in my own case," Hirst said.
“The fight for truth will continue,” Hirst added.
"Lastly I would like to offer my deepest gratitude and thanks to my legal team, led by the tireless and dogged Solicitor Advocate Gordon Dangerfield. Solicitor Liz Coyle has also been a huge support throughout, for which I am very grateful to have had," Hirst said.
NOTES:
Lord Lake's concluding paragraph of the judgement:
"In addition, I make a declaration under the Human Rights Act 1998, section 4, that the Criminal Procedure (Scotland) Act 1995, section 170, is inconsistent with the European Convention on Human Rights and Fundamental Freedoms, Article 6 (right to a fair trial), as it is an unjustifiable restriction on a pursuer’s right to have a determination of the merits of his claim that he was the subject of a malicious prosecution."
Further on Lord Lake states:
“Nothing has been brought to my attention to indicate why, notwithstanding the submission of no case to answer being upheld, it could be said that there was a case fit to try. It therefore appears that in the circumstances, the decision of the sheriff to sustain a submission of no case to answer indicates that there was no objective reasonable and probable cause [for bringing a prosecution].” – para [28]
and
“In conclusion, whether on the basis of the view taken by the sheriff at the trial or an examination of the evidence available in relation to the requirements of section 38 (breach of the peace), viewed objectively there was no reasonable and probable cause to commence the prosecution – no case fit to be put before a court.” – para [31]
The full judgement can be read by clicking HERE.
Timeline:
23rd March 2020: Alex Salmond, former First Minister is acquitted of all criminal charges against him following a two-week trial at the High Court in Edinburgh.
29th March 2020: Complainers in Salmond case issue a joint letter attacking the verdict. Mark Hirst records a video later that same day on his mobile of 2 minutes and 38 seconds duration criticising, but not naming, the complainers. Sheriff Patterson would subsequently rule, “I do not accept [the comments made in the video] would cause a reasonable person fear and alarm.”
30th March 2020: Anonymous individuals contact Police Scotland to formally complain about the short video that had been posted to YouTube. The same complainers also tip off STV News and the Daily Record newspaper informing them they have made a police complaint. Both these outlets then publish stories on the complaint.
20th April 2020: Five detectives from Police Scotland and the same unit that investigated Salmond, execute a search warrant at the address of Mark Hirst and remove a number of electronic devices, phone, iPad, USB and a laptop (the latter was not formally recorded as being removed by Police Scotland). Hirst is not questioned or arrested at this stage.
12th May 2020: Hirst is formally arrested by appointment in Edinburgh, questioned then charged with a communication offence (Section 127, Communications Act), later amended in August 2020 to a charge under Section 38, Criminal Justice Act “breach of the peace”.
7th January 2021: Trial proceeds with a motion of “no case to answer” accepted by Sheriff Patterson at Jedburgh Sheriff Court.
22nd July 2021: Letter before action issues to Crown Office and Police Scotland.
13th January 2022: Writ issued against Crown Office and Police Scotland for malicious prosecution; that they had acted with malicious intent in pursuing the prosecution against Mark Hirst.
8th/9th May 2025: Two-day debate hearings before Lord Lake at the Court of Session.
5th February 2026: Lord Lake’s written judgement.
Notable quotes in support of Mark Hirst:
The former Scottish Government Justice Secretary Kenny MacAskill, “Are the Crown acting as Government lawyers or impartial prosecutors? This isn’t just an abuse of process; it’s looking like an abuse of power. The Crown once again tarnished but justice prevails. Those damaging the institution need redded out. This is a pattern and an abuse of privilege.”
Professor Robert Black QC, FRSE, Professor Emeritus in Scots Law added, “Equality before the law is a crucial component of a civilised justice system. My concern is that the conduct of the Scottish police and Crown Office, in the aftermath of the acquittal of Alex Salmond, has failed to respect and promote that value.”
Iain MacWhirter - Ex BBC TV/ radio presenter. Former Rector Edinburgh University, "Losing £24million in damages for "malicious prosecutions", blocking documents in the Salmond Inquiry, hounding journalists like Mark Hirst. Scotland's prosecution service is too close to government, too remote from natural justice."
Professor Tim Crook, President of the Chartered Institute of Journalists, “Mark Hirst is a respected professional journalist and a member of our Institute. Freedom of expression in the UK means that he has the right to exercise his skills with political activism in the media.”
Tommy Sheridan, former MSP and political activist, “If Mark Hirst is a criminal today in Scotland then I fear for each and every one of us who holds political opinions, particularly opinions in support of Scottish independence and against the neo-liberal economic E=establishment.”
Craig Murray, former UK Ambassador, “Scotland has politically controlled, vindictive and corrupt police and prosecutors who will, as the Mark Hirst case could not demonstrate more plainly, twist any law to the maximum to contrive a prosecution against those labelled as political enemies.”
John Pilger, documentary filmmaker and journalist, “I think it is terrific that Mark Hirst had the guts to fight this.”
Jim Sillars (Former Labour and SNP MP, former Deputy Leader of the SNP)
“Having five [police] officers call on you seems like a police state. I think (Professor) Robert Black is right about the Crown Office whose reputation was badly bruised by the failure to get a single conviction. When the Crown Office and Police venture into the political arena we are entering dangerous territory for basic civil liberty.”
