Scottish Court of Session Decisions

On 18th November 1898 John Somerville was tried at the Northern Police Court, Glasgow, on a charge of assault and was acquitted. He afterwards raised this action in the Sheriff Court at Glasgow against the acting procurator-fiscal in the Northern Police Court, Donald Sutherland by name, in which he claimed £250 damages, in respect that the defender had at the conclusion of the trial in the Police Court illegally caused the pursuer's apprehension on a charge of perjury. The circumstances in which the alleged apprehension took place were stated by the pursuer to be as follows:— At the close of the prosecution Somerville tendered himself as a witness, and was examined by his own law-agent, and cross-examined by the acting procurator-fiscal. In the course of his cross-examination, and whilst the pursuer was still in the witness-box, the defender falsely and calumniously charged the pursuer with swearing falsely and committing perjury, and ordered two of his subordinate officers to apprehend the pursuer there and then.

He was not, however, at once apprehended; but when his evidence was finished and the magistrate had intimated that he found the charge not proven, the pursuer was thereupon, on the instructions of the defender, who had no warrant or other authority, apprehended by the said officers, removed from the Court, and lodged by them in the police office. The pursuer was detained in custody for about half-an-hour, when the defender, being unable to formulate any charge against him, ordered the pursuer's liberation and he was liberated accordingly.

The pursuer further averred that the arrest was absolutely unjustified, and the defender in arresting him acted recklessly, maliciously, and without probable cause. The pursuer is a law-abiding subject, and holds a licence from the Magistrates of Glasgow as a 'bus driver. As such his residence was well known to the defender. Further, he was at the time before the Court under citation upon a complaint which fully set forth his name and place of abode, and there was not the remotest probability of his fleeing from justice.

The pursuer pleaded—“(2) The defender having illegally, unwarrantably, maliciously, and without probable cause apprehended the pursuer, or caused him to be apprehended, on a charge of perjury, is liable to the pursuer in reparation for the loss, injury, and damage thereby sustained by the pursuer.”

The defender pleaded—(2) “The actings of the defender having been in bona fide and in discharge of his public duty as procurator-fiscal, those actings were privileged. (3) The pursuer having, as matter of fact, committed perjury when being examined before a competent court as a witness in his own behalf, has no claim against the defender.”

The Sheriff-Substitute pronounced the following interlocutor—Finds that the defender, in ordering the pursuer's apprehension on the 18th November 1898, after the police charge against him had on that day been dismissed by the magistrate, was privileged, and being privileged, that there are no relevant averments of malice and want of probable cause libelled against the defender: Therefore sustains the first plea-in-law stated for the defender, dismisses the action, and decerns: Finds pursuer liable in expenses,” &c.

Note.—“At the outset of the debate pursuer's agent stated that what may be described as a charge of slander in the fifth article of the condescendence he did not press, but confined himself entirely to a claim of damages for illegal apprehension. Defender, it appears from the statements and admissions of parties, was the acting fiscal in the Northern Police Court in Glasgow on 18th November last, when pursuer was charged with assault on a tramway conductor. The case was found not proven and dismissed, but the defender thereafter ordered pursuer's apprehension on a charge of perjury, and he was taken into custody for a few minutes—defender says five, and pursuer says twenty. It may be doubted whether defender acted with discretion and common sense in ordering pursuer's immediate apprehension, but that is one question, and the question which has to he determined here is another. The pursuer contends that the apprehension was made without warrant. The defender unquestionably was acting as fiscal, and he says— and there is no reason to disbelieve him— that he heard pursuer swearing that he had not a shilling in his possession, and

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there was evidence before him that pursuer had a shilling in his possession, and knew that he had a shilling in his possession, and nevertheless swore to a contrary effect. It was in these circumstances that the defender ordered pursuer's apprehension, and if the case is one of privilege and arising out of official duties, it is, I think, clear that special malice requires to be averred, supported by facts and circumstances from which special malice may be deduced— Innes v. Adamson, 17 R. 11. Now, here the defender had been acting as fiscal in a case in which he thought the pursuer had committed perjury. I incline to think that a fiscal would probably fail in his duty, if acting as public prosecutor, and believing that justice had been frustrated by perjury committed by any witness (and pursuer, though accused, was in no position better than any other witness) if he did not see that the case was investigated on a charge of perjury. It would perhaps have been more judicious to have applied for a warrant for his apprehension, but I hold he was legally entitled to order his apprehension, if he believed, and had reasonable grounds for believing, that perjury had been committed. The case was subsequently reported to the procurator-fiscal for the county, and the charge it appears was not taken up by Mr Hart, the explanation being that he considered the alleged false oath ‘that he had not a shilling in his possession’ was not pertinent to the issue of assault in the police court. I hold, then, that the defender in this case is entitled to plead that the action is irrelevant, in respect that in ordering the pursuer's apprehension he was acting in his official duty, and there is no averment of special malice. I may add that defender is a police superintendent, and I am also of opinion that a police superintendent who bona fide believed that perjury had been committed in his presence, and had ordered the apprehension of the supposed perjurer, would also be entitled to plead privilege in an action brought against him on the ground of illegal apprehension.”

The pursuer appealed to the Court of Session, and argued—A relevant case is averred. The act of the defender was illegal in itself. The necessity for a warrant is a question of circumstances— Peggie v. Clark, 7 Macph. 89; Leask v. Burt, 21 R. R. 32; Hume, ii. 76. In the circumstances of this case a warrant was necessary before apprehension could take place. There is no case in the books where a person was apprehended on a charge of perjury with out either a warrant or instructions from the presiding judge. If the apprehension was not itself illegal, facts and circumstances are stated sufficient to infer malice.

Argued for the defender—The defender was acting in the combined capacities of procurator-fiscal and police constable. As a constable he was by common law entitled to arrest a man committing a crime in his presence— Morton v. Duncan, 24 R. 747; Beaton v. Ivory, 14 R. 1107. Further, the Glasgow Police Act 1866 (secs. 88, 99, 100, 107, 108, and 122) gives power to do what was done in this case. Assuming there was no absolute illegality in the act done, there is no relevant averment of malice and want of probable cause.