Judges have ruled two former Rangers FC administrators can pursue claims for damages against Scotland’s most senior law officer.
Five judges at the Court of Session overturned a ruling giving the Lord Advocate immunity from civil liability.
The decision allows former Rangers administrators David Whitehouse and Paul Clark to press ahead with their claims for damages against the Lord Advocate, currently James Wolffe QC, and former Police Scotland chief constable of Phil Gormley, which are contested.
Mr Whitehouse and Mr Clark claim there was no justification for their arrest and prosecution, and the Lord Advocate “never had sufficient evidence for any of the charges”.
The pair were arrested in 2014 regarding their involvement with the administration of the football club but the attempt to prosecute failed when the Crown dropped charges and others were dismissed by the High Court.
They then launched a civil case claiming for damages.
The Lord Advocate’s legal team argued the “absolute immunity of the Lord Advocate, and those acting on his behalf, had been a feature of the criminal justice system for centuries”.
Lawyers acting for Mr Whitehouse said a previous ruling giving the Lord Advocate prosecutorial immunity had been “wrongly decided”.
In a ruling on Wednesday, the Lord President Lord Carloway agreed this ruling was “wrongly decided and should be overruled”.
Fellow judge Lord Justice Clerk Lady Dorrian wrote: “I do not consider that immunity from suit for malicious prosecution is necessary for the discharge of the Lord Advocate’s duties.
“The arguments that such an immunity was necessary in the interests of the proper administration of justice are not sound.
“I accept that it is in the interests of justice that prosecutors should be protected against the consequences of mistake, negligence, error of judgement and similar matters.
“However this does not require an immunity from suit which protects the prosecutor who acts maliciously and without probable cause.”
In a statement after the ruling, Mr Whitehouse said: “The last five years have been hugely traumatic for me and my family.
“I have faced claims by the Lord Advocate that he and his staff are above the law. The effect of this judgment is that they are not.
“I look forward to seeing how the Lord Advocate responds to my complaints of serious misconduct on the Crown’s part.”
The Lord Advocate’s legal team argued the question in the case was not whether the Lord Advocate is above the law but whether he is liable for damages in a civil court to a person who had suffered damages as a consequence of his acts as a prosecutor, or those for whom he is responsible.