Mark Hirst case raised in the Scottish Parliament

Fergus Ewing’s speech to the Scottish Parliament 11th February 2026 following the issuing of Lord Lake’s judgement in “Hirst Vs the Lord Advocate and Chief Constable of Police Scotland”.

(Fergus Ewing MSP is a former Scottish Government Cabinet Secretary and Government Minister who has held various Ministerial posts since 2007. He is the son of veteran Scottish Nationalist Winnie Ewing MP and MEP).

Fergus Ewing (Inverness and Nairn) (Ind): I wish to raise a matter of some considerable importance. I have given notice and a draft copy of my speech to the Presiding Officer, the Cabinet Secretary for Justice and Home Affairs and the Minister for Parliamentary Business. I should say that I have been a solicitor for 45 years. However, I am no longer in practice.

Last Thursday—5 February—in the case of Hirst v chief constable and the Crown Office and Procurator Fiscal Service, Lord Lake, of the Court of Session, issued a seminal judgment in which he found Scots law to be in clear breach of the European convention on human rights and fundamental freedoms. In particular, he found that Scots law unjustifiably restricts the right to a free trial. Lord Lake even took the step of issuing a formal declaration to that effect under section 4 of the Human Rights Act 1998. Specifically, he said that section 170 of the Criminal Procedure (Scotland) Act 1995 is inconsistent with the ECHR.

Such a declaration has been described judicially as a “last resort”. Section 170 requires, inter alia, that, for a case of malicious prosecution—which was what the case was about—to succeed, the pursuer must first have suffered imprisonment. That is plainly ludicrous. Of course it is correct that the Crown must be immune when it simply makes a mistake. Not every case results in a guilty verdict. Mistakes can be made and prosecutions brought forward in good faith, but the law should surely not protect those cases in which it can be proven that the prosecution was brought out of malice. That blanket immunity, which section 170 provides, is what I believe led to Lord Lake making his finding.

The pursuer, Mark Hirst, a former STV journalist and prominent supporter of the late Alex Salmond, was prosecuted for an alleged breach of the peace for making comments that the sheriff found simply to be an expression of an opinion. The Court of Session found that Mr Hirst had a relevant statable case for malicious prosecution to go to proof but, because of the terms of section 170, the court’s hands were tied and the action could not proceed, and Lord Lake could not consider the proof even though he found that there was a statable case. Because he was acquitted, the pursuer, Mr Hirst, cannot succeed in a subsequent case of malicious prosecution. It seems to me that section 170 is our own legal version of a catch-22.

Liam Kerr (North East Scotland) (Con): Will the member take an intervention?

Fergus Ewing: I will take an intervention in one minute when I finish this point. However, section 170 was written not as a work of fiction by Joseph Heller but as a provision by the United Kingdom legislature in 1995. To proceed with his malicious prosecution action, Mr Hirst would have had to have said to Sheriff Paterson, “Please find me guilty and send me to jail, because otherwise I can’t pursue a case for malicious prosecution.” That is plainly absurd. Justice was served and done by his acquittal, but justice was also then denied because of his acquittal.

The right to a free trial is a cornerstone of democracy. It is what protects the citizen against the knock on the door in the middle of the night. It is what protects people from unlawful detention. It is what protects people from the jackboot of totalitarianism. Democracy is based on personal freedom, and where there is no fair trial, freedom does not exist.

I will take the intervention from Mr Kerr.

The Presiding Officer: I say at this point that this item is to seek changes to future business, and it is important that that is borne in mind.

Liam Kerr: Perhaps I may assist then, Presiding Officer. I remind members that I am a practising solicitor. Clearly, if Scots law breaches the right to a fair trial under the ECHR, that needs to be remedied without delay, so what does Fergus Ewing suggest that members do about it?

Fergus Ewing: Indeed. I will cut to the chase, Presiding Officer. I appreciate—and I have communicated this to the Minister for Parliamentary Business—that there is not enough time for a bill. There would need to be massive consultation on the bill anyway, and I recognise that, but the issue must be addressed, nonetheless, as expeditiously as possible. We cannot allow a breach in the right to a fair trial - the most fundamental right of all - to subsist for any longer than is absolutely necessary. Therefore, in conclusion, I request that the Scottish Government, perhaps in the next couple of weeks, make a ministerial statement. If, in that statement, it indicates to members that it believes that the defect must be cured and that it will be cured, we can have confidence that this is a Parliament and a Government that believes in personal freedom, democracy and the rule of law.

The Minister for Parliamentary Business and Veterans (Graeme Dey): I thank Fergus Ewing both for the advance notice of his intention to air the matter that he did and for the accompanying detail that he provided. The Government notes the terms of the court judgment, but we also note—as I hope Mr Ewing recognises—that the period of time in which an appeal can be lodged runs until February 2026 and, accordingly, it would at this stage be premature to comment publicly on the matter.

Self evidently, if an appeal were to be lodged, it would be appropriate and proper to defer any decision on specific action pending the final decision on the case. I acknowledge that it is entirely reasonable for Parliament to ask the Government what it intends to do to remedy an ECHR incompatibility if that is the final position of the court after any appeal proceedings have been concluded or if no appeal is lodged.

Given that we are in the period during which an appeal can be considered, I note the need to afford the proper respect to the judiciary and to the litigants, and to be mindful of the later potential application of the Parliament’s sub judice rules. However, I note that, if the terms of the judgment broadly remain, careful consideration will be needed—as with any court judgment—regarding the judgment and what action may be necessary to address the incompatibility. With just six weeks left in the current session of Parliament, as Fergus Ewing acknowledged, that would, therefore, be a decision for the next Government and Parliament to take when the process is complete.

Fergus Ewing: I accept the argument that Mr Dey has produced—that we wait until February 2026—but I cannot see why, after February 2026, there should not be a ministerial statement. The minister appeared to rule that out, although perhaps I misinterpreted that.

Graeme Dey: I am making the point that, if we get into the situation that I have referred to, there will have to be careful consideration of the judgment and any action that is required to address the incompatibility. I very much acknowledge the seriousness of the matter that Mr Ewing has raised, although we disagree on the merits of a statement and when it would be delivered.