Scottish Court of Session Decisions

Matthew Leask, seaman, Lerwick, raised an action against Alexander Burt, sergeant of police in the Stirlingshire Constabulary, for £500 as damages for wrongous apprehension.

The pursuer stated—“(Cond. 1) In March 1891 the pursuer was a passenger on board the steamship ‘St Rognvald’ from Lerwick to Aberdeen. He had secured an engagement on board a Dundee whaler, and had taken his passage on said steamer in order that he might join his vessel at Dundee. The ‘St Rognvald’ was wrecked on the passage, and a portion of the pursuer's effects, including a bed and cooking utensils, were lost. (Cond. 2) The pursuer was at this time a member of the National Amalgamated Sailors and Firemen's Union of Great Britain and Ireland. Under the rules of said union (Rule 17) it is provided that, ‘If a member is shipwrecked or loses his clothes by fire on board ship, and at the time of shipwreck or fire is in benefit as hereinbefore defined, he shall, for the loss of his clothes, or for such portion of them as in value do not exceed the sum allowed, be paid the sum of two pounds, if such loss has not arisen through his own default, negligence, or design. All questions of proof, value and evidence required must be answered and rendered in the discretion and to the satisfaction of the committee.’ The pursuer was at the time ‘in benefit’ within the meaning of the rules of said union, and was accordingly entitled to an allowance in respect of the loss of his effects, the word ‘clothes’ in said rule having been uniformly construed and understood as including personal effects as well as articles of apparel. (Cond. 3) On his arrival at Dundee the pursuer informed Mr Millar, the Dundee secretary of said union, of the loss that he had suffered, and was then told that he was entitled to an allowance, but that certain documents were required to prove the loss. Mr Millar also informed the pursuer that he would have a better chance of recovering the allowance by applying to the branch of the union to which he had paid his subscriptions. The pursuer had not at that time an opportunity of making such an application, as he had to join his ship immediately, and accordingly no formal application was then made by him. (Cond. 4) The pursuer was absent on the voyage in the Dundee whaler for eight months. Thereafter he resided three months at Lerwick, which is his native place, and he also took one short voyage. He returned from said last-mentioned voyage in June 1892, which was the first occasion on which he had an opportunity of applying to the secretary of the branch of the union to which he had paid his subscriptions, namely, the defender Mr Cowie, who was then secretary at Grangemouth. Pursuer then verbally informed Mr Cowie of the circumstances of the loss which he had sustained by the wreck of the ‘St Rognvald,’ and produced some of the evidence required; and on or about 15th July he received a letter from Mr Cowie, dated 14th July 1892, informing him that his claim had been admitted to the extent of thirty shillings, but that arrears due by him to the union amounted altogether to 19s. 5d., leaving a balance at his credit of 10s. 7d., which he stated that he was willing to remit. Pursuer thereupon

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wrote Mr Cowie to remit this amount, which was accordingly done. (Cond. 5) The pursuer was thereafter employed as a seaman on board the new steamship ‘Durward,’ belonging to Leith. During the month of October 1892 Mr T. D. Rennie, who acts as organising secretary for the Sailors and Firemen's Union, accompanied by James Black, secretary of the said union at Leith, called upon the pursuer at the said ship, then lying in the Albert Dock, Leith. Mr Rennie stated to the pursuer that he had received a shipwreck allowance on false statements, and that he would require to pay it back. The pursuer denied the charge, and declined to pay back the allowance, whereupon Rennie said that he would give him (the pursuer) an hour to think over it, otherwise he would take him away with a policeman. Mr Rennie returned in about ten days afterwards, and again asked the pursuer if he did not intend to pay back the money. The pursuer again declined, whereupon Rennie stated he had the authority of the officials of the union to prosecute the pursuer, which he threatened would now be done. The pursuer still declined to make any payment to the union, and Mr Rennie then left. (Cond. 6) On or about Tuesday, 15th November, the pursuer was engaged at his duties on board the ‘Durward,’ then lying in Leith Docks, when he was called on shore by a man whom he afterwards found to be the defender Alexander Burt. The said defender was dressed in plain clothes, and was accompanied by Black. The defender Alexander Burt asked the pursuer to accompany him to the Union Office, which the pursuer refused to do unless one of the ship's officers was made aware of the fact that he was leaving his duties. Black then informed the second officer of the vessel that the pursuer was being taken to the Union Office on a charge of receiving money on false representations, and that he would return in an hour and a-half and let him know whether the pursuer would be detained or not. (Cond. 7) The pursuer accordingly accompanied the parties above mentioned to the Union Office, where some conversation took place as to matters in respect of which the charge was made. The pursuer objected to being kept waiting in the office an indefinite time, and asked the said defenders whether they had a warrant for his apprehension. To this the defender Burt replied, ‘I am the warrant.’ During the time that the pursuer was being detained at the said office, the first officer of the vessel arrived and inquired what they were going to do with the pursuer, as he would require to ship another man if the pursuer was not promptly released. The pursuer is unable to say what passed between the first officer and the defender Burt, Black, and Cowie; but the result of it was that the first officer left the office, and as the pursuer afterwards learned, engaged a man to take his place. Pursuer was detained a considerable time in the said office until after the arrival of Mr Cowie, who stated his version of what took place in June 1892 when the pursuer made his claim, which the pursuer contradicted upon every material point. (Cond. 8) The pursuer was then taken in charge by the defender Burt. As he wanted his clothes out of the ship, he was accompanied to the ‘Durward’ by the defender Burt and Cowie, where he got his clothes, which were left at the Union Office. He was then taken by the defender Burt and Cowie to the Police Office at Leith, and on the instructions of the said defender Burt was locked up in a cell by one of the Leith police. On the defender Burt's return several hours afterwards the pursuer was taken out of the cell, handcuffed by the said defender Burt, and taken by him on a tramcar to Edinburgh, and thence by rail to Falkirk where he was locked up for the night in the police office, without food and without bed or covering of any description. (Cond. 9) The following morning, 16th November, the pursuer was taken to the court-room of the Sheriff Court at Falkirk, and placed in the dock. A complaint, copy of which is herewith produced, was then read over to him, charging the pursuer with fraud, on the allegation that he had pretended to Edwin Cowie, secretary of the union at Grangemouth, that when he was wrecked on board the screw-steamer ‘St Rognvald,’ near Kirkwall, he had lost all his clothes, and did thus induce the said Edwin Cowie to pay to him 10s. 7d. in money as an allowance from said union in respect of the pretended loss of his clothes, which sum he had appopriated to his own use. No copy of this complaint was served upon the pursuer. Appended to the said copy complaint was the usual warrant by the Sheriff-Substitute to officers of Court to search for and apprehend the pursuer, and in the meantime to detain him in a police station-house or other convenient place. The said warrant is dated 16th November 1892, and was in point of fact only granted after the Sheriff-Substitute arrived in Court. (Cond. 10) On the complaint having been read over to him, the pursuer was asked to plead. He pleaded not guilty, and was thereafter admitted to bail to the extent of 25s. (Cond. 11) On Friday, 18th November, the pursuer was tried on the said complaint before the Sheriff-Substitute at Falkirk. After evidence had been led the Sheriff-Substitute (Moncrieff) found the charge not proven, and dismissed the complaint. (Cond 12) The whole of the said proceedings were wrongous, irregular, nimious, and oppressive. The pursuer was apprehended on 15th November without a warrant of any kind, and was subjected to the indignity of being taken through the public streets in Leith and Edinburgh in custody, and of being detained in the police cells, both at Leith and at Falkirk, without a warrant of any kind having been first obtained from the proper authorities. The said Alexander Burt, in apprehending and detaining the pursuer in the manner above mentioned, without legal warrant, and in treating him in the manner before described, acted wrongously and oppressively. … (Cond. 14) In consequence of the said wrongous and illegal actings of the defender

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the pursuer has suffered great loss, injury, and damage.”

The defender lodged defences, alleging that the statements of pursuer in condescendence 1 to 5 were unknown to him, and in regard to the statements in condescendence 6 to 8, “The statements here made, so far as referring to this defender, are admitted to be substantially accurate, subject to the explanations that the pursuer was only handcuffed for a short part of the journey, viz., between Leith and Edinburgh, and that he was supplied with food and drink by the defender at Edinburgh station. Denied that in Falkirk police office the pursuer was without food, bed, or covering of any description. Explained that on 10th November 1892 this defender was informed by Mr Rennie that the pursuer had committed a fraud upon the Sailors' Union by falsely representing to Mr Cowie that he had lost his clothes in the shipwreck of a vessel on the northern coast, and by claiming and receiving payment of thirty shillings in respect of said alleged loss. Mr Rennie desired the immediate apprehension of the pursuer upon this charge, but this defender explained that he could not in any view act upon second-hand information. On 14th November the defender received from Mr Rennie a letter enclosing one bearing to be written by Mr Cowie substantiating the grounds of the charge. This defender accordingly went to Falkirk and placed the papers in the hands of his superior officer there, Superintendent M'Donald, who, after consulting with the assistant of the procurator-fiscal, instructed this defender to go to Leith next morning, see and examine Mr Cowie there, and if prima facie evidence of the alleged charge of fraud was forthcoming, arrest the pursuer. It was known to this defender and his superior officer that the pursuer's ship was to leave Leith on 15th November. This defender accordingly went to Leith on the morning of the 15th and saw Mr Black and Mr Cowie, and the latter having distinctly stated the said charge of fraud against the pursuer, and the detailed grounds thereof, this defender, after having seen the pursuer and having had a prima facie case of fraud disclosed against him, arrested him in conformity with the instructions he had received from his superior officer as above explained, and conveyed him to Falkirk. This defender acted throughout upon the instructions of his superior officer, and in good faith, and he had reasonable grounds for apprehending the pursuer.”

The defender pleaded, inter alia—“(1) The action is irrelevant.”

On 16th October 1893 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—“The Lord Ordinary having considered the debate, Repels the first plea-in-law stated for the defender, and assigns Wednesday the 25th day of October as a diet for the adjustment of issues.

“ Note.—In my opinion the pursuer has set forth on record a relevant case against the defender, who is a sergeant of police in the Stirlingshire constabulary. The case stated against Burt is not merely that he apprehended the pursuer without a warrant in circumstances which, prima facie, do not seem to justify such a proceeding, but that he apprehended him in Leith, which is in another jurisdiction than that in which he was entitled to act, without any authority from a magistrate of that jurisdiction.”

The defender reclaimed, and argued—The action was irrelevant. The arrest was legal. A policeman acting in good faith, and on proper instructions from his superior, was entitled to arrest without a warrant if the circumstances of the case justified— Peggie v. Clark, November 10, 1868, 7 Macph. 89; Young v. Magistrates of Glasgow, May 16, 1891, 18 R. 825. In this case the police-constable was entitled to apprehend, as he had grounds for believing that the pursuer intended to abscond. In any event, the action was irrelevant, as in the condescendence there was no averment of malice or want of probable cause.

Counsel for the pursuer were not called on.

At advising—