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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 33
CA9/20
OPINION OF LORD TYRE
In
MINUTE FOR THE PURSUER
In the cause
DAVID JOHN WHITEHOUSE
Pursuer and Minuter
against
(FIRST) THE CHIEF CONSTABLE OF POLICE SCOTLAND and
(THIRD) THE LORD ADVOCATE
Defenders
Pursuer: Dean of Faculty, McKinlay; A & W M Urquhart, on behalf of Livingstone Brown,
Glasgow
First Defender: Watts; Ledingham Chalmers LLP
Third Defender: Moynihan QC, M Hamilton; Scottish Government Legal Directorate
First, Second and Third Respondents (Aver Corporate Advisory Services Ltd, Emma Porter ACA
and William Cleghorn CA): Howie QC; Pinsent Masons LLP
Fourth Respondent (Sally Clark): No appearance
Fifth Respondent (Helen Nisbet): Lindsay QC; Gilson Gray LLP
Sixth Respondent (Alan MacDonald): Dewar QC; Russells Gibson McCaffrey
24 March 2021
Introduction
[1]
The pursuer raised an action for damages against the first and third defenders for
inter alia unlawful detention and arrest and malicious prosecution. Proof before answer was
allowed and a proof was due to commence in January 2021. Before the action came to proof,
2
however, the third defender admitted that there was no probable cause for the charges
libelled against the pursuer in the first petition, that the decisions to place the pursuer on the
second petition and the two indictments lacked objective probable cause, and that from the
stage of the appearance of the pursuer on the second petition there was a malicious
prosecution in the technical sense of that term in the law of delict, and accordingly that the
third defender was liable to make reparation to the pursuer. Both defenders have now
settled the claims by the pursuer against them, and the action is effectively at an end.
[2]
In the course of the proceedings, large amounts of documents have been produced
by the defenders: some voluntarily and some in response to specifications of documents
and commissions for recovery of documents. The documents lodged for the purposes of the
proof include witness statements prepared in accordance with interlocutors of the court.
[3]
The pursuer has lodged a minute craving the court:
"To grant permission to the minuter to use and disclose a. documents recovered
by commission; b. documents produced on a voluntary basis by the defenders;
c. statements and affidavits lodged by the defenders; and d. productions lodged
by any party in the present action for the purpose of:
(i)
reporting suspected breaches of regulations, misconduct and/or criminal
conduct, arising from the factual circumstances relevant to the present action,
to the police, Crown Office & Procurator Fiscal Service, Crown Prosecution
Service or other public authority; and
(ii)
cooperating with any investigations, inquiries and prosecutions pursued by
the police, Crown Office & Procurator Fiscal Service, Crown Prosecution
Service or other public authority, whether following a report by the pursuer
or otherwise, including the provision of witness statements and the giving of
evidence."
[4]
The first defender does not oppose the granting of permission as sought. The third
defender does not oppose the granting of permission except in so far as paragraph (ii) refers
to "inquiries" that may be pursued, on the ground that until the nature and scope of such an
inquiry have been determined and announced, the application is premature. Answers have
3
been lodged by a number of individuals referred to by name or by implication in the minute,
objecting to it on various grounds. Some of those grounds fell away in the course of the
hearing of the pursuer's application.
The law
[5]
The relevant law is not in dispute. It is as stated by Lord President Rodger in Iomega
Corporation v Myrica (UK) Ltd 1998 SC 636, and may be summarised as follows:
1. A party who, as a result of commission and diligence, obtains possession of
documents or other items is subject to an implied obligation or undertaking to the
court not to use them nor to allow them to be used for any purpose other than the
conduct of the actual or prospective proceedings in respect of which they have been
recovered.
2. The Court of Session has power to permit items recovered for particular
proceedings in this court to be used for other proceedings, where that would be in
the interests of justice.
3. Since it is the court which has the power to give the necessary permission and the
party can do nothing without that permission, the court can attach any conditions
which it thinks fit to any permission that it grants. The attaching of appropriate
conditions gives rise to no issue of competency, and the framing of such conditions is
a matter for the exercise of the court's discretion.
4. In deciding whether to grant permission and, if so, on what conditions, the court
is exercising a discretion and the guiding principle in the exercise of that discretion
will be the interests of justice in the circumstances of the particular case.
4
[6]
It was also common ground at the hearing before me (i) that the implied undertaking
not to use documents for other proceedings, and the court's discretion to permit their use,
applied to documents produced voluntarily in the same way as they did to documents
recovered by commission and diligence; and (ii) that the implied undertaking applied not
only to the documents themselves but also to the information that they contained (cf Cobra
Golf Inc v Rata [1996] FSR 819 (a case cited with approval in Iomega), Laddie J at page 830).
Matters not in dispute in this application
[7]
In the course of his submission on behalf of the pursuer, the Dean of Faculty
confirmed certain important matters which reduced the scope of the issues between the
parties. Firstly, he confirmed, for the avoidance of any doubt, that the permission that was
sought was restricted to reports to and other communications directly with the bodies
mentioned in the application. Permission was not sought to use or disclose the documents
and information in any other way, such as by way of communication of any of it to the
media. Secondly, he confirmed that in relation to use or disclosure of the documents and
information for the purpose of making a criminal complaint, permission was sought only in
relation to disclosure to the police, the Crown Office and the Crown Prosecution Service of
England and Wales. Permission was not at this time sought to disclose documents or
information to any other body such as a disciplinary body. Thirdly, in relation to
documents disclosed to the pursuer by the Crown for the purposes of the criminal
proceedings against him (and therefore falling within section 162 of the Criminal Justice and
Licensing (Scotland) Act 2010), permission was sought only in relation to such documents as
had been brought into the damages action by means of an application for commission and
diligence. Permission was not sought in relation to documents disclosed by the Crown for
5
the purposes of the criminal proceedings which had not been included within that
application. In this context, the Dean of Faculty confirmed expressly that no report
produced by the first, second and third respondents for the purposes of the criminal
proceedings had been included in the application for commission and diligence, and that
permission to use or disclose those reports was not being sought.
Arguments against the granting of permission
[8]
On behalf of the third defender, it was submitted that the application was premature
in so far as it sought permission to use and disclose documents to any "inquiry". Although
it had been confirmed by the Lord Advocate to the Scottish Parliament that an inquiry
would in due course be held, the nature and form of the inquiry had not yet been
determined. No decision had been made as to whether it would be a statutory public
inquiry, or as to its terms of reference. It was, however, acknowledged that whatever form
of inquiry was held, the pursuer would be a key witness. It was also submitted on behalf of
the third defender that any permission granted should be under reference to a list of the
documents intended to be covered by it. This would be appropriate to avoid uncertainty as
to whether documents initially disclosed for the purposes of the criminal proceedings had
been included in those brought into the civil proceedings and therefore covered by the
permission.
[9]
The objection by the first, second and third respondents was addressed by the
pursuer's confirmation that permission was not sought in relation to their reports.
[10]
The fourth respondent's objection related solely to use and disclosure of the witness
statement that she had provided in the damages action. She did not object to its disclosure
to the police, the Crown Office or a statutory inquiry. She did, however object to its
6
disclosure to the Crown Prosecution Service or other public authority. No reasons had been
given as to why such disclosure would be in the interests of justice.
[11]
The fifth respondent objected to the granting of permission unless and until she had
had an opportunity to peruse all of the documents sought to be disclosed. The application
did not make clear what allegations of criminal conduct, if any, were to be made against her,
or what documents might be relied upon in support of such allegations. She denied any
wrongdoing, but she had a right to protection against self-incrimination. In order to know
whether that right had to be insisted upon, she required to know what was being disclosed,
and whether it was said to give rise to criminal conduct on her part. Her right extended not
only to her witness statement for the purposes of the damages action but also to
contemporaneous material in which she may have given advice. In the meantime the
pursuer's application should be refused in hoc statu. The fifth respondent also adopted the
third defender's prematurity argument.
[12]
The sixth respondent adopted the third defender's prematurity argument and also
adopted the fifth respondent's submissions mutatis mutandis. He too denied any
wrongdoing. His witness statement had been accompanied by an analysis, prepared in
conjunction with the witness statement, of the evidence considered in relation to the
pursuer's criminal prosecution. Such material fell within the protection from
self-incrimination. It was not in the interests of justice to grant a blanket permission until
details had been provided to him of the documents and information covered by it.
Argument for the pursuer
[13]
In response to the prematurity argument, the pursuer submitted that there was no
reason to delay the grant of permission. The Lord Advocate had confirmed that there would
7
be an inquiry; regardless of its nature or terms of reference, it was inconceivable that the
pursuer would not be required to give evidence, which he wished to do. In relation to use of
the documents in a complaint to the Crown Prosecution Service, it was to be recalled that the
pursuer had been arrested and detained in England, and that documents had been seized
there. It was in the interests of justice to extend the permission accordingly. As already
noted, permission was not sought for disclosure to any other bodies at this time. There was
no need for a list to be produced of the documents in respect of which permission was
sought. It would remain at the pursuer's risk to ensure that only documents brought into
the damages action were used or disclosed. It was not for the pursuer to specify the person
or persons alleged to have committed offences; that was the task of the investigating
authorities once the complaint had been made. The protection against self-incrimination did
not extend to contemporaneous documents, even if they were incriminatory. In any event
these respondents would have been fully aware of their right not to self-incriminate when
they provided their witness statements.
Decision
[14]
In my opinion, subject to the qualification below regarding witness statements, the
interests of justice favour the granting of the permissions sought. As regards use of the
documents for the purposes of making a criminal complaint, I accept the pursuer's
submission that it is unnecessary for him to specify at this stage which offence he alleges
was or may have been committed by any particular person; that is what would require to be
investigated by the police. Standing the admissions made on behalf of the third defender in
the damages action, I consider that if the pursuer regards it as appropriate to make a
complaint of criminal conduct, then he should be able to do so without being hindered by
8
being unable to use material that came to his attention as a result of being produced in the
civil proceedings. I am also satisfied that the fact that certain events took place in England
renders it appropriate and in the interests of justice to grant permission for disclosure to the
Crown Prosecution Service as well as to the police and to the Crown Office and Procurator
Fiscal Service. I emphasise that permission is neither sought nor granted for use in any
other way or disclosure to any other person or body, and in particular is not sought or
granted for disclosure of the terms of any criminal complaint, in so far as founded upon the
material in respect of which permission is granted, to the media.
[15]
As regards use or disclosure for the purposes of an inquiry, I see no good reason to
delay consideration of the application until the nature and terms of reference of the inquiry
have been determined. As has been noted, the Scottish Parliament has been informed that
an inquiry in some form will be held, and it cannot seriously be doubted that the pursuer
will be invited to provide evidence to that inquiry. In these circumstances it is unnecessary
to incur the expense of a further application after the details of the inquiry have been
determined and announced.
[16]
I am not persuaded that there is a need for the pursuer to list the documents in
respect of which permission is sought. I suspect that that would be an onerous and
expensive task, and I am content to rest matters on the basis that it will be the responsibility
of the pursuer to ensure that nothing is used that was disclosed by the Crown in the criminal
proceedings but has not been included in productions for the purposes of the damages
action. I shall note in the minute of proceedings that permission is not sought to use or
disclose any reports by the first, second and third respondents.
[17]
As regards the objections of the fifth and sixth respondents, I accept that their right to
protection from self-incrimination must be respected, but in my view that right is much
9
more circumscribed than was suggested by senior counsel for the fifth respondent. The
scope of the right has been examined by a number of courts in the context of the taking of
bodily samples such as DNA swabs, and it has been emphasised that "the right not to
incriminate oneself is primarily concerned with respecting the will of an accused person to
Maclean v Procurator Fiscal, Glasgow [2012] HCJAC 34 at paragraph 20. It does not extend to
the use of potentially self-incriminatory statements made by an accused person before
criminal proceedings are pending. In the circumstances of the present case I am doubtful
whether it extends to anything that was lodged for the purposes of the damages action.
However, in the interests of justice, although I am clearly of the view that the fifth and sixth
respondents have no entitlement to review all of the documents for which permission is
sought before it is granted, I consider that they should be given an opportunity to consider
whether there is anything in the witness statements that they provided for the purposes of
the damages action that might amount to self-incrimination. I bear in mind that if they had
declined to provide witness statements they could nevertheless have been cited and led as
witnesses, but they would have been entitled to receive the usual warning if a possibility of
self-incrimination arose. I shall accordingly allow each of the fifth and sixth respondents a
period of 7 days in which to state whether they consider that there is anything in their
statement that amounts to self-incrimination and which ought to be excluded from the
permission to use and disclose. If they do (or either does), a hearing will require to be fixed
to hear argument. If they do not, the permission that I am granting will extend to their
witness statements. For the avoidance of doubt, I include within the scope of "witness
statements" any analysis prepared by the witness in conjunction with the statement, but not
10
any analysis or other material that was prepared at the time of the criminal proceedings
against the pursuer.
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