Delictual Liability for Wrongful Deprivation of Liberty: The Scope of Privilege
29 Pages Posted: 7 May 2019
Date Written: May 6, 2019
Since the earliest accounts of the law of delict, infringement of liberty has been regarded as a “delinquence” which requires to be compensated, but public officers may in some circumstances be protected against liability where freedom has been “lawfully abridged” in conformity with the rules of criminal procedure. The boundaries of this form of privilege have not always been delineated with clarity, however. The recent Outer House case of Whitehouse v Gormley is the latest in a series of decisions to tackle these uncertainties. The decision in Whitehouse notes the “important changes in our legal system” made by the Human Rights Act 1998 and the “encouragement” by the European Convention on Human Rights (ECHR) of developments in the common law. However, it concludes that where claims are made against police officers for wrongful arrest, they may be held liable for conduct within their “competence”, broadly construed, only if malice and want of probable cause are proved. This means that privilege in this form may be available, even where police have acted unlawfully, if their conduct can be regarded as falling within their “ordinary duty”. This article argues that this broad construction of privilege is not supported by historical analysis of the Scots cases or by comparative authority.
Keywords: law of delict, wrongful infringement of liberty, privilege of public officers, requirement to prove malice in cases of lawful and unlawful arrest and detention
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