APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD KIRKWOOD
PROCURATOR FISCAL, Dunfermline
Appellant: Scott; Martin Johnston & Socha
Respondent: Doherty, Q.C., A.D.
14 May 1999
This is an appeal by Evan Mason by stated case against conviction and sentence. The appellant was convicted at Dunfermline Sheriff Court of a contravention of section 41(1)(a) of the Police (Scotland) Act 1967 and sentenced to nine months imprisonment. The charge narrated that on 14 January 1998 at 38 Barr Crescent, Inverkeithing, the appellant assaulted Alexander Watson, Constable, Fife Police then in the execution of his duty and struck him on the head with a wooden pole to his injury.
We are informed by the sheriff that on 14 January police officers were investigating an alleged attempted armed robbery and they had a warrant to search the house at 38 Barr Crescent. It is a ground floor flat in a block of four. At about 7.20am six CID officers assembled outside. They were all in plain clothes and Detective Sergeant Watson had a sledge hammer. The police had had information that a firearm had been used in the attempted armed robbery and for operational reasons it had been decided that the element of surprise was of paramount importance and that the door of the flat should be forced without any prior warning being given. Accordingly D.S. Watson struck the door with the sledge hammer between four and seven times, there being a negligible gap between the first blow and the final blow. The hall of the house was in darkness and the appellant and his girl friend were in bed. The final blow with the hammer succeeded in forcing open the front door. At that point D.S. Watson called out loudly and clearly "It's the police. We are coming in. It's the CID". One of the other officers shouted "Police. Police". The sheriff found that these exclamations were clear and audible and were heard by the appellant. D.S. Watson waited for a moment and then stepped inside. As he did so the appellant, who had been standing naked behind the front door, struck him on the head with a wooden table leg. A brief struggle took place and the appellant was subdued. The wound sustained by D.S. Watson was stitched and he suffered pain for several days and was off work for that time.
The appellant gave evidence that he had not known who was trying to break the door down and, in particular, he did not know that it was the police. He had been asleep and was wakened by the sound of banging. He could see nothing and he thought that those at the door had hostile intentions. He shouted, enquiring who was there, but received no response. The police did not shout at any time and it was only after he had been apprehended that they told him who they were. Evidence in support was given by his girl friend. His sister, Louisa Wynn, stated that it was her flat although she was not there on the night in question. She said that she owed a well-known drug dealer money for drugs and had received threats and for that reason she had moved out. The drug dealer had convictions for assault and the appellant knew of the situation.
The sheriff accepted the three police officers who gave evidence, including D.S. Watson, as credible and reliable witnesses and he disbelieved the appellant and his girl friend. He concluded that the police had orally identified themselves as police officers and that in the particular circumstances there was really very little else the police could have done.
Counsel for the appellant submitted that the sheriff had erred in holding that the appellant knew that the men who had just broken down the door of the house were police officers, particularly as they had all been in plain clothes and had not produced any evidence of identity. Further, even if an intruder shouted that he was a police officer, it did not necessarily follow so far as those present in the house were concerned that he was one. The only circumstance founded on by the sheriff to show that the appellant knew that there were police officers at the door was the shouting spoken to by the police witnesses. But shouting fell short of the evidence required to establish that the appellant did in fact know that police were at the door. Even if, in the particular circumstances of this case, the police could not have done more to identify themselves, that was neither here nor there. In the circumstances the Crown had not established that the appellant knew that the men who had broken down the door were police officers and he was entitled to be acquitted.
In reply, the advocate depute accepted that it was for the Crown to show facts and circumstances from which it could be inferred that the appellant knew that the people at the door were police. As there had been a loud announcement that they were police officers, and the sheriff found that that announcement had been heard by the appellant, the sheriff had clearly been entitled to convict.
The question which arises in this case is whether the appellant was aware that the men who were breaking into the house were police officers. In cases of this nature, where police officers in plain clothes are executing a search warrant, it is clear that they have a duty to inform those present in the house that they are police officers and in normal circumstances they will produce their warrant cards and the search warrant. In the present case the police decided that for operational reasons the element of surprise was important and that the first step was to break down the door using a sledge hammer. In the event the door was forced open and two of the police officers, according to the sheriff's findings, called out loudly and clearly that it was the police. D.S. Watson then stepped into the house but as he did so the appellant struck him on the head with a wooden table leg. D.S. Watson was the first officer to enter the house which was in darkness and it was clear that neither he nor any of the other officers had an opportunity to show the appellant a warrant card before he was struck. However, the issue in this case is whether the appellant in fact was aware that the men at the door were police officers. In the particular circumstances of this case we are satisfied that the police had identified themselves before D.S. Watson was struck by the appellant. The sheriff has found that the police shouts were in fact heard by the appellant before he committed the assault and in our opinion that is a finding which the sheriff was entitled to make. In these circumstances we are of the opinion that the sheriff was entitled to convict.
The appellant also challenges the sentence of nine months imprisonment. The sheriff took the view that as the appellant must have been aware that he was striking a police officer, the assault had been a premeditated act of serious violence against a police officer acting in the exercise of his duty. The sheriff also referred to what he described as the appellant's substantial criminal record, including two previous convictions for assault. Counsel for the appellant submitted that in the particular circumstances of this case the sentence which the sheriff had imposed was excessive. The sheriff had been in error in observing that this was a premeditated act of serious violence and he had made no allowance for a panic reaction on the part of the appellant in an incident with a very short time scale. Further, the appellant's record was in fact not a very serious one. He had only served two very short periods in custody. Since the trial there has been a change in his personal circumstances. He is now in full-time employment and he has a girl friend and a son aged 14 weeks. The Social Enquiry Report recommended the imposition of community service. It was also significant that he had not offended since this particular offence was committed. We have given very careful consideration to the submissions made by counsel for the appellant and, having regard to the unusual circumstances in which this offence took place, the nature of the appellant's record and the change in his personal circumstances, we have been persuaded that the sentence which the sheriff imposed was excessive.
We have decided to quash the sentence of nine months imprisonment and in what, as we have said, were unusual circumstances we propose to substitute an order for 240 hours community service.
We will answer questions 1, 2, 3 and 4 all in the affirmative.