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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hill v. Campbell And Another [1905] ScotLR 43_226 (09 December 1905)
URL: http://www.bailii.org/scot/cases/ScotCS/1905/43SLR0226.html
Cite as: [1905] ScotLR 43_226, [1905] SLR 43_226
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[Sheriff Court of Lanarkshire at Hamilton.
v.
Reparation— Arrest—Public Officer—Police Constable— Unnecessary Violence in Making Arrest— Issue.
Facts:
In an action of damages against two police constables for an alleged illegal arrest and an alleged false charge made by them while admittedly acting within the scope of their duty, the pursuer averred no facts and circumstances from which malice might be inferred, and admitted that he was convicted on the charge of which he complained.
Held that the pursuer was not entitled to an issue either quoad the arrest or quoad the charge, inasmuch as (1) while want of probable cause was essential to an issue, the conviction showed that there was probable cause, and (2) the pursuer had failed to set forth on record facts and circumstances from which malice might be legitimately inferred.
In an action of damages against police constables, the pursuer, who had been arrested and charged by them while acting within the scope of their duty, and had subsequently been convicted on the charge, proposed the following issue:—“Whether … the pursuer was wrongly and forcibly taken into custody … by the defenders while acting as police constables.”
In support of the issue he inter alia averred that “he was violently seized by the defenders and subjected to gross and unnecessary violence. He was held by the wrists by the defenders, one on each side, and his arms twisted, and considerable and unnecessary violence was applied to him, causing several bruises on one of his arms, as well as swelling with considerable pain, in consequence of which he had to submit himself to medical inspection and treatment the following morning.”
Held (1) that the issue was inappropriate and must be disallowed in as much as the insertion of malice and want of probable cause was unnecessary unless the question was as to the use of improper violence, and (2) that the averments were insufficient to found a case upon improper violence.
Wood v. N.B. Railway Company, February 14, 1899, 1 F. 562, 36 S.L.R. 407, distinguished.
Opinion (per Lord Kinnear) that the issue (1) failed to put the question of
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unnecessary violence to the jury, and (2) erroneously assumed that for a police constable to use any force at all in making an arrest was an actionable wrong.
This was an action of damages, raised in the Sheriff Court at Hamilton, at the instance of Thomas Benjamin Hill, restaurateur, Windmillhill Street, Motherwell, against Donald Campbell and William Smith, police constables, Motherwell, in which the pursuer prayed the Court to grant decree ordaining the defenders, jointly and severally and severally, to pay to the pursuer the sum of £300 sterling, or alternatively the sum of £150 each.
The pursuer averred—“(Cond. 2) On or about the night of Saturday the 15th or early morning of Sunday the 16th days of July 1905, and while quietly and peacefully engaged in his business, he was without any reason or warning being given suddenly accosted and illegally and wrongously arrested by the defenders acting in concert as police constables aforesaid. Defenders without permitting him to put on his coat and vest, which were off at the time, and either ignoring or refusing pursuer's request to be allowed to put his garments on, conveyed him in custody from the back door of his said place of business through Windmillhill Street and Brandon Street and Clyde Street of the said burgh, in the presence of a number of residenters of Motherwell, and brought to the local police office in the street last named, and therein the defenders, acting as aforesaid, falsely and maliciously and without probable cause charged the pursuer to the officer in charge, Inspector Moir, with having in the rear of the restaurant in Windmillhill Street aforesaid occupied by him behaved in a riotous manner and committed a breach of the peace by shouting and swearing in a loud voice, and making use of abusive language towards the defenders and challenging them to fight with him, all of which was untrue. As stated, the arrest of the pursuer was not only illegal, irregular, wrongful, and oppressive, and in gross violation of their duty as police constables, but the charge preferred against him by the defenders was false and made maliciously and without probable cause. Admitted that pursuer was convicted and fined 10s., the alternative being five days' imprisonment, but explained and averred that said conviction proceeded on erroneous use of the evidence and law. (Cond. 3) While being conveyed to the police office as aforesaid pursuer was assaulted by the defenders. Offering no resistance to his arrest he protested against his being so wrongously arrested, but in spite of his remonstrances he was violently seized by the defenders and subjected to gross and unnecessary violence. He was held by the wrists by the defenders, one on each side, and his arms twisted, and considerable and unnecessary violence was applied to him, causing several bruises on one of his arms as well as swelling with considerable pain, in consequence of which he had to submit himself to medical examination and treatment the following morning. Said arrest of pursuer by defenders and their subsequent abusive behaviour were entirely outwith the scope of their employment as police constables.
The pursuer pleaded—“(1) The defenders having wrongously and illegally arrested the pursuer, and conveyed him in custody through the public streets of Motherwell to the police office there, and having assaulted him while taking him there, all as before condescended on, are liable in damages therefor. (2) The defenders having falsely, maliciously, and without probable cause charged the defender with aving committed the offence hereinbefore set forth, slandered the pursuer, and being therefore liable in damages, decree should be granted therefor.”
The defenders pleaded—“(1) Privilege. (2) The pursuer having by his own conduct as condescended on necessitated his apprehension by the defenders, is barred from insisting in the present action. (3) The defenders having acted throughout in the course of their duty and without malice, and having done nothing which they were not entitled to do as police constables to preserve the peace, should be assoilzied, with expenses.”
The Sheriff-Substitute ( Thomson) having allowed a proof, the pursuer appealed for jury trial, and proposed the following issues:—“(1) Whether on or about the night of Saturday the 15th, or early morning of Sunday the 16th, both days of July 1905, the pursuer was wrongly and forcibly taken into custody and removed from his restaurant in Windmillhill Street, Motherwell, to Motherwell Police Office, in custody by the defenders Donald Campbell and William Smith, while acting as police constables, to the loss, injury, and damage of the pursuer? (2) Whether on or about the night of Saturday the 15th, or early morning of Sunday the 16th, both days of July 1905, in the Police Office, Motherwell, the defenders Donald Campbell and William Smith, or one or other of them, falsely, maliciously, and without probable cause, charged the pursuer to Inspector Moir, the officer in charge, with having in the rear of the restaurant in Windmillhill Street, Motherwell, occupied by the pursuer, behaved in a riotous manner and committed a breach of the peace by shouting and swearing in a loud voice, and making use of abusive language towards the said defenders, and challenging them to fight, or made one or other of these charges, or charges of a like import, of and concerning the pursuer, to the loss, injury, and damage of the pursuer? Damages laid at £300.” During the discussion the pursuer also proposed the following issue:—“(3) Whether on or about the night of Saturday the 15th or early morning of Sunday the 16th, both days of July 1905, the pursuer was wrongously, maliciously, and without probable cause apprehended by the defenders, &c. (as in the first proposed issue.”
The respondents (defenders) moved that the action should be dismissed as irrelevant, and argued—There was no issuable matter
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on record. The issues proposed could not be granted. Want of probable cause must be in them for the defenders otherwise were only doing their duty, but the conviction which was admitted showed that there was probable cause both for the arrest and the charge. There was indeed no averment on record of want of probable cause in regard to the arrest. Malice must also go into the issues, and a mere averment of malice was not enough against a public official. Specific facts and circumstances must be set forth from which malice could be legitimately inferred— Beaton v. Ivory, July 19, 1887, 14 R 1057, 24 S.L.R. 744. No appeal had been taken against the conviction, and standing the conviction the present action was irrelevant Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. c. 62), sec. 3; Maclellan v. Miller, December 7, 1832, 11 S. 187; Gilchrist v. Anderson, November 17, 1838, 1 D. 37; Young v. Mitchells, June 12, 1874, 1 R. 1011, 11 S.L.R. 582; Kennedy v. Wise, June 21, 1890, 17 R. 1036, 27 S.L.R. 813. Argued for appellant (pursuer)—It was unnecessary that want of probable cause should go into the first issue, as there was there put in issue the use of unnecessary violence in the arrest. The pursuer's averments on that point were amply specific, and the first issue was modelled on the issue approved in similar circumstances by the Court in Wood v. North British Railway Co., February 14, 1899, 1 F. 562, 36 S.L.R. 407. [ Lord Kinnbar—In that case the constables were acting not as constables but as servants of the railway company.] [ lord president—In Wood's case want of probable cause was not necessary, so if this issue is modelled on Wood the issue is wrong.] If it were necessary, a third issue would be proposed similar to the first, but inserting malice and want of probable cause quoad the apprehension, viz., “Proposed Additional Issue”—(3) “Whether the pursuer was wrongously, maliciously, and without probable cause apprehended by the defenders, &c.” [ Lord President—If you go to trial on that issue and the conviction is proved would the judge not direct the jury that there was probable cause? In what way can probable cause be better proved than by a conviction?] In any event, the pursuer was entitled to an issue of unnecessary violence without inserting malice or want of probable cause— Wilson v. Bennett, January 16, 1904, 6 F. 269, 41 S.L.R. 216.
The two issues the pursuer proposed originally were, first, whether he was wrongly and forcibly taken into custody, and, second, whether the defenders falsely and maliciously and without probable cause charged him with breach of the peace. His counsel now proposed a third issue, namely, whether he was wrongously, maliciously and without probable cause apprehended. As regards these two last issues I am clearly of opinion that they cannot be granted, and for the very simple reason that the pursuer has averred himself out of Court upon the matter of probable cause, and therefore cannot be granted an issue the success of which must depend on proof of want of probable cause. The case was simply one of an arrest and a charge made by ordinary police constables acting admittedly in the scope of their duty, and in a place where they had a right to make arrests and charges. Doubtless if they did that without probable cause, and in order to gratify their own spite, they would be liable to an action of damages, but unless malice and want of probable cause were proved against them the action could not succeed. But it appears to me that if a conviction followed on the complaint that was made, as is here admitted, it is idle to say that the constables had no probable cause in preferring the complaint. The conviction might have been wrong in this sense, that it is possible, if there had been a review of the facts, the Court of review might have taken a different view from the presiding Magistrate, but none the less it could never be said that there was no probable cause for making the complaint if the result was that the proper tribunal before whom the complaint was heard found a conviction. Therefore upon the pursuer's own showing he has disentitled himself to either of these two issues.
I think there is another reason, too, if it is necessary to slay the slain, why these issues should not be allowed, and it is that, on the principle laid down in the case of Beaton ( 14 R 1057) there must be facts and circumstances set forth from which malice may legitimately be inferred. I find no such facts and circumstances set forth in the record here, and I therefore think that that is an additional ground for refusing these two issues,
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I do not for one moment say that there might not be a case where an issue would be granted in respect of the use of improper violence by police constables, and that without any question of malice or want of probable cause. The expression “want of probable cause” has no application to such circumstances, the question being whether the violence used can be justified as necessary. I have no doubt whatever that a police constable is not to be allowed, in excess of his duty, to take advantage of his position and brutally assault a person who is rightly in his custody. But that class of case would never be allowed to proceed unless there were very distinct averments to that effect. The averment here, although to a certain extent an averment of unnecessary violence, is really not sufficient to found a case of that class. The pursuer says he was held by the wrists and his arms were twisted, but these appear to me to be the ordinary circumstances of nearly every arrest, and I confess that the idea seems to me to be ridiculous that every pickpocket who is hauled
along the street, by averring that the policeman twisted his arms a little further round than he need have done, should have as a matter of right an action of damages and a jury trial, in which twelve jurymen would be called upon to determine the precise angle of distortion at which the arms ought to be in taking a struggling man along a street. If, on the other hand, really serious violence is specifically averred, then that would be a case for allowing an issue. But, as I have said, I think there are. no such averments here, and on the grounds that I have stated I am for refusing all the issues.
As to the second and third issues, they both appear to me to give rise to the same objection. These two issues follow on the averment that the defenders arrested the pursuer, took him to the police office, and there stated to the inspector the grounds on which their charge against him was preferred. Now, it is admitted that the pursuer can have no claim for damages for these actings except on a relevant averment of malice and want of probable cause. I agree with your Lordship that want of probable cause must be excluded here, for it is admitted that there was probable cause inasmuch as the charge when inquired into resulted in a conviction.
I agree further that there are no sufficient averments of malice to be sent to a jury, for it is settled that in alleging the malicious exercise of a public duty, such as that of a police constable effecting an arrest, it is necessary, not only to aver malice in general terms, but to set forth specific facts and circumstances from which malice can be legitimately inferred. The presumption is that those who are acting in discharge of a public duty are acting honestly; and the onus is on the pursuer to set forth facts and circumstances which, if proved, will displace the presumption of honesty, by showing that in point of fact they were acting maliciously. There are no such facts and circumstances averred here, and I therefore agree with your Lordship that these issues must be disallowed. ’
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The Court disallowed the issues, dismissed the action, and decerned.
Counsel for Pursuer and Appellant— M. P. Fraser. Agent— D. Hill Murray, S.S.C.
Counsel for Defenders and Respondents— Guthrie, K.C.—W. Thomson. Agent— Ross, Smith, & Dykes, S.S.C.