APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 1262/98
OPINION OF THE COURT
delivered by LORD SUTHERLAND
DAVID ALEXANDER WIGHTMAN
PROCURATOR FISCAL, Edinburgh
Appellant: Shead; More & Co.
Respondent: Gray, A.D.; Crown Agent
16 June 1999
The appellant was convicted of a charge of theft. The circumstances were that a building contractor, Mr. Barratt, was renovating flats at Infirmary Street, Edinburgh. Scaffolding had been erected outside the building and all the flats were unoccupied. On the day in question Barratt went to the locus to check that the doors of the flats had been properly secured by his employees for the night. On the stairs between the first and second floors of the tenement he came across the appellant who was descending the stairs. The appellant was carrying a black holdall. Barratt stated that only his employees had any right to be in the tenement as the flats were all unoccupied. He asked the appellant where he was going and was told that he, the appellant, had come up the wrong stair and was looking for a friend. Barratt was under the impression that the appellant had been stealing something from the tenement, having had tools stolen before. He followed the appellant downstairs to the close mouth and the appellant then ran away. Barratt gave chase and obtained assistance from one of his employees from a nearby public house. Eventually they caught up with the appellant a short distance away and caught hold of him. The appellant was then taken back to the locus and there his holdall was opened. It in fact contained a cordless drill which Barratt recognised as being his property and which had been left in one of the flats. He then telephoned the police who arrived and detained the appellant. Under caution the appellant admitted taking the drill.
During the course of the Crown case objection was taken by the appellant's solicitor to the admissibility of any evidence from Barratt after he had apprehended the appellant. This was on the view that this was a citizen's arrest which was unlawful. The sheriff allowed the evidence to proceed subject to competency and relevancy but eventually rejected the submission. This was the principal issue which was raised in this appeal.
Mr. Shead on behalf of the appellant argued that Barratt's apprehension of the appellant was an unlawful citizen's arrest and that all evidence flowing therefrom was inadmissible. At best Barratt had a suspicion that the appellant had committed theft and this was not sufficient. In Renton & Brown Criminal Procedure paragraph 7.03 it is said
"A private citizen is entitled to arrest without warrant for a serious crime he has witnessed, or perhaps where, being the victim of the crime, he has information equivalent to personal observation, as where the fleeing criminal is pointed out to him by an eye witness".
This statement was approved in Cadona v. Cardle 1989 S.C.C.R. 287 and Bryans v. Guild 1990 J.C. 51. The court in Bryans accepted that the limits of the rule concerning a citizen's arrest should not be departed from lightly. Accordingly as Barratt had not seen a crime being committed he was not in a position to carry out a citizen's arrest. Mr. Shead submitted that the rule was quite rigid and could allow for no exceptions. In particular it could not be a question of degree. Two examples were put to counsel. The first was the situation of a householder who arrives home to find a man running down the garden path carrying a bag and a front window having been broken. Mr. Shead submitted that as the householder had not observed the apparent housebreaker actually lifting any goods from the house he had not seen the crime being committed and accordingly was not entitled to make a citizen's arrest. The other example was of a man walking along the street hearing a scream from a close then seeing a man emerge from the close throwing away a bloodstained knife followed immediately by another man staggering out covered in blood. Mr. Shead submitted that as the bystander had not actually seen any stabbing he was not entitled to make a citizen's arrest. Even if the victim of that crime shouted to the bystander that he had been stabbed by the man running away, the bystander would still not be entitled to make a citizen's arrest because, according to the rule in Renton & Brown, it is only the victim of the crime who is entitled to arrest someone when a third party has told him that he was the person who committed the offence.
The advocate depute submitted that the rules stated in Renton & Brown were not absolutely rigid. While two examples were given of a situation where a citizen's arrest would be lawful it is not said in terms that these are the only two situations. The observation in Bryans that the limits of the rule should not be departed from lightly again did not mean that the rules were absolutely rigid but did mean that in certain circumstances there could be an extension of them. Thus he submitted, in the two examples we have given, the citizen would be entitled to make an arrest and the law would be absurd if he was not so entitled. In the present case the information available to Barratt was that no person other than his employees had any right to be in the tenement. It was obvious that the building was unoccupied and therefore nobody could go up the stair by mistake on the excuse that they were looking for someone else. The appellant was carrying a holdall and tools had been stolen before. When he was followed down stairs, instead of going up another tenement stair in order to look for the person he said he was looking for he ran away. In these circumstances Barratt had every reason to believe that a crime of theft had been committed and accordingly was entitled to make a citizen's arrest.
In our opinion the statement contained in Renton & Brown cannot be regarded with the same rigidity as was suggested by Mr. Shead. We are of opinion that a degree of common sense must be allowed to enter the equation. Accordingly while the rule is clear that a citizen is entitled to arrest in respect of a crime he has actually witnessed, this must be capable of extension to a situation where he is aware of circumstances which are strongly indicative of a crime having been committed, such as in the two examples we quoted above. To rule otherwise would, in our view, make a mockery of the law. Having said that, however, we agree with what was said in Bryans that the limits of the rule should not be departed from lightly, and that a citizen's arrest should not be made lawful just because the citizen has a suspicion that a crime may have been committed or a suspicion that the person arrested was the perpetrator of a crime. If, however, the citizen has a moral certainty that a crime has been committed and that a particular person has committed that crime, we consider that it cannot be said that the limits of the rule have been extended unduly if he makes a citizen's arrest of that person. It is, therefore, a question of degree in each case. The question in the present case therefore becomes whether the information available to Barratt was such that he was justified in coming to the conclusion that a crime had been committed rather than merely having a suspicion that a crime had been committed. Having regard to the facts that the appellant had no right whatever to be in the tenement, that he gave an explanation that was palpably false, that he was carrying a holdall, and that he ran away when he reached the street rather than simply walking off, we are satisfied that the circumstances pointed so strongly to the conclusion that a crime of theft had been committed that Barratt was justified in making a citizen's arrest.
Mr. Shead made two subsidiary points. The first was that Barratt did not hand the appellant over to the police as soon as possible. Instead of contacting the police from the point at which the appellant was arrested he took him back to Infirmary Street. In our view this point has no substance. It was perfectly reasonable for Barratt to take the appellant back to the locus and get him off the street before contacting the police, rather than endeavouring to contact the police from a public place. In any event the distance and timescale involved were so small that it made little difference. The second point was that Barratt and his employee had no right to search the appellant's holdall. While that may be so, the fact remains that as soon as the police were contacted and came to the scene and were informed of the circumstances they were entitled, as they did, to detain the appellant and they were then entitled to search the holdall which they did. We are therefore satisfied that there is no substance in either of counsel's subsidiary points.
Finally, we should add that the advocate depute did not attempt to support the sheriff's view that even if Barratt's apprehension of the appellant was unlawful, nevertheless there was sufficient evidence from the evidence given by the police as to their lawful detention of the appellant and the finding of the stolen property and the special knowledge confession made by the appellant. This concession was made on the basis that the calling of the police and what followed therefrom was so intimately tied up with the apprehension of the appellant by Barratt that it could not be argued that they were entirely separate matters, nor could it be argued that the apprehension, if unlawful, did not taint what happened thereafter. In our opinion this was a proper concession by the advocate depute.
On the whole matter we shall answer question 1 in the negative, questions 2 and 3 in the affirmative, and refuse the appeal.