MARK HIRST V CHIEF CONSTABLE AND LORD ADVOCATE

I’m very pleased to be able to update you all at last on developments in Mark’s action for malicious prosecution.

Since my post of 26 July last year when I shared my firm’s letter before action to the Lord Advocate, we’ve been engaged in what is called “pre-action correspondence” with the defenders. I’ll say more about that below.

However, the upshot is that we have now lodged at Jedburgh Sheriff Court the document which initiates court proceedings – called, appropriately enough, an “initial writ” – and on 11 February the court granted a warrant for the action to be served on both defenders – the Chief Constable of Police Scotland and the Lord Advocate.

The action was served on 17 February and each of the defenders now has until 10 March to confirm to the court that they intend to defend it.

They will then be allowed further time to lodge their detailed defences and the court will issue a timetable setting out how things are to proceed from there.

We are suing for damages of £200,000.

The pre-action correspondence

I’m also pleased to say that the considerable delay in getting to court while we have pursued pre-action correspondence with the defenders has been worth it for one important and substantial reason.

I explained in my last post how section 170 of the Criminal Procedure (Scotland) Act 1995 bears to provide immunity from liability for prosecutors in “summary proceedings” when no imprisonment of the accused is imposed.

I argued that there was no reason in law or in common sense why the Crown should be liable in damages for maliciously prosecuting someone who goes to jail as a result but not someone who is, rightly, acquitted of the charges against them.

Nor, I argued, was there any reason why people tried before a jury (in “solemn proceedings”) should be treated differently from those tried by a judge alone (in “summary proceedings”).

I pointed out that this provision seems incompatible with Article 6 of the European Convention in that it fails to provide a remedy when a wrong is committed, and that we therefore intended to challenge the compatibility of section 170 with the Convention had the Lord Advocate contested the action on this ground

I can’t disclose the details of our pre-action correspondence with the Lord Advocate, which was conducted on a “without prejudice” basis, but I can say that we are now confident that section 170 is not going to be a factor in this litigation.

The malicious prosecution of Mark Hirst

Our action then proceeds on the following basis.

Mark was prosecuted for an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 – supposedly behaving in a “threatening and abusive” manner towards the Salmond complainers – following comments which he made after Alex Salmond’s acquittal on all charges at the High Court in Edinburgh.

On 07 January 2021 a submission of no case to answer by Mark’s defence team was upheld by the sheriff at Jedburgh.

The sheriff made quite clear in dismissing the case that all of the facts brought before the court by the prosecution – facts which were evident from the outset and had never been disputed by Mark – did not constitute any crime known to the law of Scotland.

Any such crime existed only in the minds of Mark’s powerful accusers, and of their mouthpiece Rape Crisis Scotland, and had no business at all in entering into the minds of the police or Crown.

We submit in our court documents that there never was any basis for Mark being prosecuted, and that the prosecution against him lacked reasonable and probable cause, both objectively and subjectively.

We also maintain that the prosecution was brought maliciously, not least because a warrant was obtained against Mark when the primary evidence was plainly available. The warrant application, among other things, made false allegations about threats being made by Mark.

The police obtained the warrant to search Mark’s home on the basis that it appeared that he had committed an offence. He had not. The police did not produce any information to the sheriff which would have permitted scrutiny of the application as, had that been done, it would have been obvious that no offence had been committed.

In any event, we argue there was no need for a warrant to have been obtained at all. The police had already obtained a full copy of all of the relevant material posted by Mark. The material obtained by the gang of officers from the “Salmond team” during their raid on Mark’s home produced precisely nothing to add to the relevant evidence in the case.

We’ll seek to establish that the obtaining of the warrant in such circumstances was “oppressive, an abuse of power, unnecessary and indicative of malice”.

The political dimension

We’ll also seek to establish that the prosecution of Mark was politically motivated.

As most of you will know, Mark was an active and outspoken supporter of Alex Salmond.

Rape Crisis Scotland, who played an active part in the charges against Alex Salmond, also played an active part in having Mark investigated and charged.

We intend to explore in the course of this litigation whether Rape Crisis Scotland were encouraged to make a complaint about Mark for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.

Rape Crisis Scotland are of course funded by the Scottish Government.

47 thoughts on “MARK HIRST V CHIEF CONSTABLE AND LORD ADVOCATE

  1. Thanks for the update Gordon.

    The expression ‘oh what a tangled web we weave when first we practice to deceive’ is the first that springs to my mind. Hopefully, this will be the first of the dominoes to fall.

    Good luck to you and Mark.

    Liked by 6 people

  2. This is so important, not just for Mark’s case, but for the principle of justice under the law, free from political or other reasons of malicious interference. In the wider frame it is notable how those who criticised the entire Salmond fiasco were targeted in similar fashion with highly dubious, flimsy and entirely hypothetical accusations of thought crime. That is why it is important that they truth be known, and accordingly legislation changed if necessary, to ensure such modern political witch hunts can never happen again, and that we can be confident that Scottish justice is independent from political influence and can be demonstrably seen to be so, via transparent and accountable procedures.

    Liked by 4 people

  3. That warrant is a wee stink bomb in their midst, isn’t it?

    It will have to have been read in detail and signed off by a Police Officer of Inspector or higher rank. Oops.

    An officer will have had to depone (swear under oath) to a Sheriff, that the reasons for seeking the warrant were true. And their name will be on the warrant.

    I struggle to see how that isn’t a jailable offence… along the lines of perverting the course of justice. Strange that the Chief Constable hasn’t seen fit to discipline/suspend them? My inner cynic suspects they may even have been promoted.

    It will have to have been read over by each and every Police officer who attended at Mark’s house in order to carry out the search, and as is normal procedure, each one normally signs the back to show they’ve understood the contents. That will be about a 1/2 dozen cops, with twitchie bottoms.

    And it will have to have specified exactly what they were searching for, which, in order to substantiate the claim of ‘threats’ should have been, if they’d been playing fair, a ‘pitch fork’. Not often you see that on a warrant.

    And all of that, all those resources, for what did not even amount to the slimmest of breaches of the peace.

    Iain Livingston used to have a good reputation as a cop, believe it or not. Shame.

    Liked by 6 people

  4. Great to see you posting again Gordon! Although your posts are now coming in thick and fast and I’m having trouble keeping up. I’m glad to see Mark’s case progressing … is ‘glad’ the appropriate phrase?? He shouldn’t be having to pay for any of this – it shouldn’t have happened in the first place! £200 000 sounds like a piddly amount (well, compared to other malicious prosecutions anyway).

    What happens if the Chief Constable and Lord Advocate decide not to defend – do they just pay the money and that’s it or do they have to admit malicious prosecution, give apologies and stick themselves in the jail for a few months?

    I have to admit I’m so pissed off with the state of Scotland today – all caused by the SNP (government, but the whole lot of them) and our legal institutions, and in all the rest of our institutions (including the so-called charities, just a front for political retirees) – between the obvious corruption involved in the Alex Salmond stitch-up, as well as the gender identity ideology cheerleading – I mean, who thought anyone would think it reasonable to write a new cult-religion into law? (especially even before they’ve managed to sort out how many cults they actually have, what the rules are – apart from ‘burn witches’ of course – or any definitions – haha, try asking any what the meaning of gender is! And they plan on legislating on it… oh it makes me cringe, despair, want to curl up and pretend this isn’t my world). But the loony SNP are trotting along in their labotomised happy world and destroying ours. Anyway, I’m so pissed off with the state of Scotland, I hope the Lord Advocate and the policeman … sigh, nothing will happen will it? Even if they admit any kind of liability, they’ll be getting off scot free won’t they?

    Did you hear Craig Murray talk about this appeal case? That it was delayed by an hour, suddenly, because a cabinet minister needed to have an urgent meeting with Lord Carloway – who was one judge very hostile to Craig’s case immediately after said meeting with the cabinet minister. Not suspicious in the slightest is it, a cabinet minister needing an urgent meeting at that time, with a judge, who was just about to sit and hear a scheduled case… Nope not suspicious at all, just coincidental timing is all.

    “We intend to explore in the course of this litigation whether Rape Crisis Scotland were encouraged to make a complaint about Mark for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.” Oho! You do, do you? That will be VERY interesting information, for which we will eagerly be awaiting an answer to – in fact, I believe quite a few people might be very interested ….

    Liked by 9 people

    1. “That will be about a 1/2 dozen cops, with twitchie bottoms.”

      Oh Daisy, I so wish that you were right about that – but having seen the level of corruption involved – and the obvious protection afforded to those in on the conspiracy top to bottom – ah hae ma doots.

      If any heads roll – you can be sure it will be the puir bloody infantry – the generals and their political sponsors can sleep easy.

      Sadly the seas of corruption in colonial Scotland are deep, wide, rank and putrid.

      Liked by 8 people

    2. Thanks, Contrary and John, a lot of food for thought there as always. On the specific issue of RCS, yes, a lot of people — some of them veterans of Rape Crisis themselves — are very concerned about what is going on in that organisation and have very interesting stories to tell. We intend to do all we can to bring out the role of RCS in all of this and we’ll be seeking full disclosure from the police and Crown.

      Liked by 3 people

      1. Very pleased to hear that Gordon. The more of these facts that can be brought into the public domain, the better.

        It is utterly staggering that what should be public and – in particular – women’s – protection agencies and charities, have been so comprehensively infiltrated by truly sinister players.

        And that’s before we consider what has happened to the SG (which is after all a British construct) and the SNP, (which of course shouldn’t be playing for the Britnat side – but now appears to be doing so), not to mention disturbing developments in the Law and administration of justice (if such a concept means anything in Scotland)

        Like many on the Independence-minded Left, I would really love to see the authors of these conspiracies and fell deeds exposed in all their depravity. Sooner the better.

        Thanks for all your great work

        Liked by 2 people

  5. Excellent work Gordon, my congratulations on the case you have presented thus far. I think you have a fair chance of success in proving the malicious intent and hopefully being awarded the sought damages. My only word of caution would be in your final couple of paragraphs where you are attempting, quite rightly, to determine Rape Crisis Scotland’s involvement and ultimate culpability; along with the complainers. We need to know whether there was indeed the external encouragement from unknown (sic) 3rd parties. I fear any attempts by your goodself to ‘widen’ the scope of the writ will be curtailed by the court. Doesn’t stop you from trying though. A fair wind to you and Mark.

    Liked by 5 people

  6. This is great news. I missed the post last year and have been overwhelmed with other things, so I had no idea what was happening in Mark’s case.

    Like

  7. Good day Gordon,

    I hope you are well.

    Your post on Mark Hirst makes a few salient points, one in particular that strikes harmony with search warrants illegally obtained in America through presenting false or misleading information to Judges. FISA

    Today, you would actually wonder why a judge or magistrate would sign warrants without some grounds for application being lodged with him/her/them/z/. Are you still surprised at the level of competence in the Scottish legal system after all the recent revelations ( Salmond case/ Rangers case et al) . Our Legal system has been politically weaponised. I think the real question here is the system fit for purpose and is it really protecting us all?

    Your reference to Rape Crisis Centre: I do think they punch above their weight in influence in the justice system and political halls, if not one of the same. Why do you think this is?

    We come to the big debate on failed and weak politicians that are afraid to speak up in the event of being persecuted by the keyboard terrorist from fringe groups that use terror and cancellation threat to anyone who dares to speak up on sense of balance and use of resources properly.

    The recent events in Canada (Emergency Power Act) invoked against a very civil and well organised and supported event, was met with the Police, riot gear, bank accounts frozen, citizens arrested with no charge and their truck insurance was cancelled by the Liberals, ie Trudeau. Not one media outlet picked up on this with any great vigour. Absolutely astounding events. “democracy indeed”.

    I know I digress, however, I do think there are synergies with this case and what else is happening around the western world. Where did this “Build Back Better” soundbite that all the Western leaders were all singing in harmony come from ? I fear that political parties are cancerous with the influences of keyboard terrorist and their demand for power at any cost and are a global cancer infiltrated in western democracy to the peril of us all. Do you think Mark Hirst is a victim of these “find an empty vessel or vassal “ cancerous keyboard terrorist?

    Great article on “Trudeau trained by the World Economic Forum WEF. You should watch the youtube show Jimmy Dore show, this is an eye opener. In youtube if you type jimmy dore trudeau ,not a long clip but watch to the end and see who else is in the cabal.

    Keep up the good work and look forward to the next blog.

    Like

    1. Many thanks, Allan.

      On warrants, lawyers have to take some of the blame. It’s nearly thirty years since I was last practising criminal law on a regular basis and I’m alarmed now when I look at the case law over that time and see how little challenge there has been to the widening of warrants and the rubber-stamp attitude of the courts towards granting them. When you then get what we submit is the malicious use of a warrant in Mark’s case, the path has been made so much easier for it by the general lack of rigour.

      On RCS, see my replies to the commenters above.

      Liked by 2 people

  8. Good luck to you all in this case. Rape Crisis Scotland has been a mouthpiece for the SG in so many ways now that it can almost be conflated with the latter and its public policy. This is a dire and damaging stance for any public body to take, but they are all susceptible these days precisely because they rely on funding from central government in Scotland. If this case does blow open the whole cesspit, we might begin to see some sanity prevail again in other areas.

    Liked by 2 people

    1. It’s fairly obvious that there is an open door policy between certain members of the Scots gov, civil servants working there, the RCC, the media and the upper structures of the legal system. That cannot survive the scrutiny any open society would subject it to, and until it is we can have no confidence in these various arms of government. The executive must be held to account, and it is savage indictment of Scotland that it falls to lone individuals and sympathetic lawyers to battle this on their own, against the bottomless pit of resources the state has.

      Liked by 2 people

      1. maceasy: in a smaller country (population-wise) like ours, it seems to me that such separation of powers is even more essential because of the propensity for ‘incestuous relationships’. We saw it with Labour and, now, we are seeing it with the SNP.

        Liked by 1 person

      2. Very good point, Robert. I’m afraid they have, for practical purposes, unlimited resources provided by the Scottish taxpayer and they’ll seek to use that advantage for all it’s worth in defending Mark’s action.

        Like

  9. Thank you for the update. I’ve made a further donation to Mr Hirst’s legal fund.
    I’m waiting for the 10th March to pass to see whether the matter is defended. I’m not sure whether there is an equivalent to entering a default judgment in Scots law. I suspect there must be if there is a time limit for the response.

    Given that the proceedings, if continued, will reveal the rats’ nest and extent of twisted, inappropriate connections between the Scottish government, the Scottish police and the Advocate, I wouldn’t be at all surprised if the proceedings are conceded and damages paid to Mr Hirst. A far cheaper outcome for respondents both in terms of money but, more importantly, in terms of reputational damage and possible exposure to criminal proceedings.

    I imagine the attempt will be to jam down pressure cooker’s lid!

    I wait further updates, when possible, with bated breath.

    Like

  10. Interesting developments Gordon. However, in such instances the motivations and actions of authorities are arguably rather more than political. As you may be aware, I relate such events and the ongoing oppression of the Scots more widely to the nature of the colonial relationship and condition, the ending of which is ultimately the reason for independence (i.e. decolonisation). As Albert Memmi described it:

    “The ideological aggression which tends to dehumanize and then deceive the colonized finally corresponds to concrete situations which lead to the same result. To be deceived to some extent already, to endorse the myth and then adapt to it. That myth is furthermore supported by a very solid organization; a government and a judicial system fed and renewed by the colonizer’s historic, economic and cultural needs.”

    Liked by 3 people

  11. Really pleased for you and Mr Hirst, well done. A few other posters here have asked about what might happen next. Assuming this is a civil matter could the Chief Constable and the Lord Advocate avoid any further scrutiny by just paying the £200k without admitting to any wrong doing (like in other recent high profile cases)? How do you then get at the prior circumstances behind what happened to Mr Hirst – another govt. inquiry? A large piece of me hopes the action is defended to ensure things get a proper airing. All the best for the 10th.

    Liked by 1 person

  12. Not sure if I am getting the jargon right here but might this end up being a case that’s only about the ‘quantum’?

    Like

  13. I believe that it’s now past “close of business” on Thursday 10 March 2022. Have the defenders in the action confirmed that they intend to defend the claim?
    I’m sure you’ll let us know in due course.

    Like

    1. Ingwe — and others interested — they have as expected intimated that they intend to defend the action and they now have until 24 March to lodge their full defences. As a lawyer yourself, I know you appreciate that I’m limited in what I can say here about an ongoing case, but I’ll try to keep you and others updated in the comments here, if not in a full post.

      Many thanks as always for your interest and support.

      Liked by 1 person

      1. Gordon, thank you for keeping us informed.Fully appreciate the constraints on what can be properly discussed given the case is ongoing. Neither would I wish any inadvertent disclosure of your client’s tactics and strategy.

        And a special thanks to you for making time to post on your blog. It gives us hope in these especially dark and troubling times.

        Liked by 1 person

      2. Hi Gordon, hope all is well with you. Are you able to confirm that full defences have now been lodged (by 24 March) and if you can say, is it now more or less likely to be played out in court?

        Like

  14. Many thanks Gordon for the pursuance of this absolute abuse by Police and Prosecution.

    And it is abuse and absolutely no different from the tactics of the Nazi state that was 1930s Germany.

    Citizens should fear what has been happening here in Scotland where the police and prosecution have been turned into foul weapons of political oppression.

    It’s brutal and displays a mindset that would stop at nothing to destroy political opponents. But of course we know that too from circumstances in Ireland where political opponents were killed. The two pesky human rights lawyers Pat Finnucaine and Rosemary Nelson being two particular examples.

    And would the deep state security services do it here. Well of course they would with lawyer Willie MacRae being widely suspected as being a victim of state assassination.

    We ignore these precedents at our absolute peril. Nazi Germany was not a one off aberration. Apartheid South Africa neither. And a rotten and corrupt police and prosecution in Scotland neither again.

    So thank you Gordon for supporting the case of Mark Hirst whilst we still have a semi functioning justice system.

    Liked by 2 people

    1. Thanks, Willie. Like you, I’m shocked by how easily rights that we took to be well entrenched can be simply removed from us with very little public protest or resistance. Those who smugly think we’re far too civilised for regimes like those you mention to take hold in our “progressive” wee country are deluding themselves.

      Liked by 4 people

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: