About this case

Case name

Mark Hirst v The Chief Constable & Lord Advocate

Case reference number

A156/24

Dates of hearing

• Wednesday 8 April 2026
• Thursday 9 April 2026

Time of hearings

10:30 to 13:00 then 14:00 until conclusion

Division

Second division

Judges

• Lord Justice Clerk
• Lord Malcolm
• Lord Armstrong

Agents and Counsel

For the Pursuer (Mr Hirst)

• Agents: DAC Beachcroft LLP
• Counsel: Andrew Smith KC and Gordon Dangerfield, sol adv 

For the First Defender (The Chief Constable)

• Agents: Ledingham Chalmers LLP
• Counsel: Dan Bryne KC

For the Second Defender (The Lord Advocate)

• Agents: Scottish Government Legal Directorate
• Counsel: Gerry Moynihan KC

Case description

[1]   The respondent was tried at Jedburgh Sheriff Court on a summary complaint alleging a contravention of section 38(1) of the Criminal Justice and Licencing Scotland Act 2010. The complaint alleged that he created a video in which he uttered threatening remarks directed towards the complainers in the High Court prosecution of Alex Salmond.

[2]   On 7 January 2021, the trial sheriff upheld a no case to answer submission and acquitted the respondent. The respondent now sues for damages on the basis of malicious prosecution.

[3]   Following a diet of debate on 9 May 2025, the Lord Ordinary dismissed the action against the reclaimer. Whilst holding that there was no reasonable or probable cause for the prosecution, section 170 of the Criminal Procedure (Scotland) Act 1995 provided a statutory immunity from liability which rendered the claim irrelevant. Despite dismissing the claim, the Lord Ordinary went on to make a declaration of incompatibility under section 4 of the Human Rights Act 1998, declaring that section 170 of the 1995 Act was incompatible with a pursuer’s right to have a determination of the merits of their claim as guaranteed by Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms.

[4]     The reclaimer argues that the Lord Ordinary was correct to dismiss the claim but erred in making a declaration of incompatibility. She contends that section 170 can be read in a Convention compatible manner, but the claim ought to be dismissed since the respondent has not pled a relevant case.

[5]   The respondent argues that the Lord Ordinary erred in holding that section 170 barred the claim in circumstances where the reclaimer had waived her right to rely upon it. In the alternative, he contends that the Lord Ordinary was correct to make the declaration of incompatibility, that the claim was relevantly pled; and the claim ought to proceed to proof before answer.

[6]   The reclaiming motion will be heard before the Second Division of the Inner House on 8 April 2026.