Scottish Court of Session Decisions

Hugh Thomson, the pursuer in this action, was a moulder and pigeon-fancier by trade, and occupied a dwelling-house in Fleming Street, Glasgow, in the loft of which tenement he erected, with the consent of his landlord, certain wood-fittings and pigeon-houses. This property was bought by the defender George Denholm, residing at Findlay Drive, Dennistoun, Glasgow, in November 1876. The pursuer was removing from the said property at Whitsunday to a house situated in Parkhead, and in order to have the loft of the latter property made suitable for his pigeons, he on the evening of Friday 16th April, between the hours of eight and ten, proceeded to remove some of the said wood-fittings from the house in Fleming Street to Parkhead, carrying them away in a barrow. While so engaged he was accosted by the defender, who in the presence of numerous witnesses accused him of taking what did not belong to him, and violently threatened him at the same time with being given into custody on a charge of theft. On the pursuer stating that the fittings were his the defender called him a thief and gave him into custody of the police on a formal charge of theft for stealing the wood, and on this charge the pursuer was walked along the public streets of Glasgow in custody of the police, and in the presence of a large crowd of people brought to the police-station, where the charge of theft was reiterated by the defender. Ultimately the charge was not persevered in, and the pursuer in order to be released agreed to return the wood. Thereupon the pursuer raised an action of damages in the Sheriff Court against the defender for the sum of £50, pleading that his character, reputation, and feelings had been severely damaged by this grossly calumnious charge. The defender, on the other hand, pleaded privilege and probable cause. The Sheriff-Substitute ( Spens) found that the defender in preferring the charge had acted with a recklessness amounting to malice in the legal sense, and that the charge was made without probable cause, and that therefore he was liable in the damages sued for by the pursuer.

The following note was appended to his interlocutor:—“The slander is lost in the greater offence of a criminal charge preferred maliciously and without probable cause; for I have arrived at the conclusion that pursuer's contention on this head has been proved. There is no question that the defender is entitled to plead privilege, and this infers that the pursuer must prove that defender acted, in preferring the charge, maliciously and without probable cause. In cases of privilege the question of malice is said to be one for the jury, and the want of probable cause a question for the consideration of the Judge. In the Sheriff Court, however, this distinction does not properly arise, for there the Judge disposes of a case both as Judge and jury. Although, however, the question of malice is one supposed to be a jury question, yet it is subject to the direction of the Judge as to what constitutes malice. Of course, malice, in the usual and ordinary sense of the word, implies preconceived ill-will; and I may say here, that while some portion at least of the proof was taken up in attempting to establish malice in the above specified sense, I cannot hold that this has been proved. I do not intend to enter into any minuter details in reference to this question of fact, for I do not think it is open to argument on the part of the pursuer that malice of this description has been proved. To break down the plea of privilege, however, it is settled law that malice in this sense need not be proved. Even although a person making a charge of theft acts in good faith in the sense that he believes the man whom he charges to be guilty of the crime, he must not do so unreasoningly. If he does so without reasonable grounds for his so doing—at all events, if the grounds for so doing are so flimsy that ordinary common sense negatives their reasonableness—such a charge must come under the category of a grossly reckless one; and of a grossly reckless charge the law says, in the legal sense, that it must be held to be a malicious charge. I have come to the conclusion that the charge preferred was of this description……. There is no doubt that for a respectable man to be marched through the streets to the police office on a groundless criminal charge is a gross indignity.”

The defender appealed, and argued—No malice had been proved. The defender on receiving no explanation from the pursuer was only asserting his rights of property in giving him into custody of the police.

Authority— Thomson v. Adam, Nov. 14, 1865, 4 Macph. 29.