Scottish High Court of Justiciary Decisons

KEVIN KEEGAN and KEVIN McMULLEN and ROBERT McLEAN v. PROCURATOR FISCAL, PAISLEY [1999] ScotHC 66 (12th March, 1999)

The appellants Kevin Michael Keegan, Kevin McMullen and Robert McLean each appeared as co-accused in the one complaint before the sheriff at Paisley. They appeared on a variety of charges but only two concern the present stated cases. All three appellants were charged in Charge 1 of the complaint which was to the effect that on 23 July 1997 in New Sneddon Street, Paisley, they conducted themselves in a disorderly manner and committed a breach of the peace. Charge 3 was directed only against the appellant, McMullen and also libelled breach of the peace. It arose also

out of the incident on 23 July 1997 and the offence charged was said to have been committed in the course of a journey by police van from New Sneddon Street, Paisley through various locations in that town. All three appellants went to trial on the particular charges we have indicated insofar as relating to each of them and on behalf of each at the end of the Crown evidence a submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 was made and repelled. On 21 August 1997 after trial the sheriff found the appellants guilty of the foregoing charges so far as they concerned each of them.

Each appellant has now appealed by way of a stated case against conviction only. Thus all three appellants have appealed against conviction in respect of charge 1 and Kevin McMullen has appealed against conviction in respect of charge 3. The sentences received by each appellant have not been appealed and therefore need not be narrated.

The facts of the case as set out in the sheriff's findings in fact may be summarised as follows. At about 12.55 am on 23 July 1997, police officers Linden and Willis were on mobile patrol when they received a message directing them to three youths whose behaviour was being observed by close circuit television. The three youths were in fact the three appellants. The patrolling police officers proceeded to where they had been directed by the CCTV operator and when they arrived at New Sneddon Street they observed the three appellants walking there. The patrolling officers had been receiving a contemporaneous account from the said operator of what had been observed in relation to the three youths. In particular they got information that the youths who were stopped by them corresponded to three youths who had been observed kicking-in the entry door to a common close next to premises known as "Pitchers Sports" in Moss Street, Paisley. The youths had been observed on close circuit television entering the close and running out minutes later.

On observing the youths in New Sneddon Street the patrolling police officers had requested them to stop and alighted from their police vehicle. On approaching the appellants the accused Kevin Alan McMullen was seen to drop an object, later identified as a bent spoon. The appellant Kevin Keegan was seen to drop an object, later identified as a knife. The sheriff found as a fact that a bent spoon and a knife can be used to force locks to enter secure premises. All three youths were under the influence of alcohol. The appellants Keegan and McLean were handcuffed together in the street. The appellant McMullen was placed in the police vehicle. The sheriff found as a fact that all three appellants were informed that they were being arrested for a contravention of section 57(1) of the Civic Government (Scotland) Act 1982. That section provides in effect that it is an offence for any person, without lawful authority to be there, to be found in a building or other premises whether enclosed or not or in its curtilage so that, in all the circumstances, it may reasonably be inferred that he intended to commit theft there. The sheriff found that the police officers had reasonable grounds for suspecting that all three appellants had been committing an offence in contravention of section 57(1) of the Civic Government (Scotland) Act 1982. Moreover he found that the basis for this suspicion related to contemporaneous information which the officers were receiving from the CCTV operator. The sheriff further made a finding in fact that the appellants were arrested by virtue of powers afforded to the police in terms of section 59(1) of the said 1982 Act. That power gives a constable the right to arrest without a warrant a person whom he finds committing an offence to which this section applies.

After their arrest, all three appellants shouted and swore at the police officers. Moreover they refused to desist from doing so. The appellant McMullen shouted and swore at Constables Linden and Willis as they conveyed him by motor car to the police office. Moreover he made obscene comments to WPC Willis as well as uttering threats to both officers. It was the said conduct of the appellants that formed the basis of the breaches of the peace convictions we have referred to. The sheriff notes that she found the police witnesses reliable. Police Constable Linden and WPC Willis were the first police on the scene and were the arresting officers. In the original applications for a stated case the appellants had suggested that there was some confusion as to whether or not the arrest proceeded under the said section 59(1) or under common law powers. However, in presenting their appeals the appellants were each content to accept the sheriff's finding that the arrests had proceeded under the statute.

When the solicitors acting for the appellants had each submitted to the sheriff at the end of the Crown case that there was no case to answer, they had done so on the basis that there had been no lawful arrest. If there had been no lawful arrest the appellants were entitled to object to the purported arrest and to resist it. The point had been made, and this was maintained at the appeal, that the arresting constables had no reasonable grounds for suspecting that the appellants had been committing an offence under section 57(1) of the 1982 Act.

In addressing us in support of the appeal, counsel for Keegan referred us to the case of Nicol v Lowe 1989 S.C.C.R. 675 at 679. It was submitted that there was nothing seen by the arresting constables that would have justified their suspicion that an offence was being committed. The case of Breen v Pirie 1976 J.C. 60 was also referred to. It was submitted that in that case the Court had held that where a statutory provision provides that "a constable may arrest without warrant a person committing an offence" the arrest was not competent unless the arresting constable knew from his own knowledge that an offence was being committed.

Counsel for the appellant McMullen took up and expanded upon the submission that the Crown had not proved that the arresting constables had reasonable grounds for suspecting that a crime was actually being committed at the time of their arrest. It was suggested that section 59(1) had been intended to cover a situation where the accused persons had been caught red-handed on the premises. If the suspected crime was not actually being committed, but had already been committed when police officers intervened, then they had powers to arrest at common law or preferably, in situations where a common law arrest was not necessary, they had power to detain a suspect. Counsel recognised that in Nicol v Lowe the Lord Justice Clerk had stated at page 679:

That case of course was concerned with the interpretation of a constable's statutory power to arrest under section 59(1) of the 1982 Act. It would appear that the Lord Justice Clerk had accepted that it was sufficient for a statutory arrest if there were reasonable grounds for believing that an offence had been committed or was being committed. Counsel suggested that the reference to an offence having been committed was obiter and in any event was not justified by the terms of the statute. Counsel for the third appellant, McLean, argued his case along similar lines. He accepted that in the present case there were reasons to suspect that a crime had been committed, but not that a crime was being committed, at the time of the purported arrest. He referred to the constables' power to detain under section 14 of the Criminal Procedure (Scotland) Act 1995 and submitted that in the circumstances with which they were presented the arresting constables should rather have detained under that provision. Counsel adopted the argument that the Lord Justice Clerk's observation in Nicol about crimes that had been committed was too widely stated and was in any event obiter.

The Advocate Depute disputed that the arrest of the appellants had been unlawful. He argued on the contrary that the police constables effecting the arrest had had solid and contemporaneous information to indicate that a crime was being committed originally at the point where they first followed the directions of the CCTV controller in order to intercept the appellants. He relied upon the test stated by the Lord Justice Clerk in Nicol and differentiated Nicol on its facts because, in the present case, there was much more information to justify the police constables' suspicion that a crime was being committed. The officers themselves had seen the appellants drop a spoon and a knife when they as police officers had appeared. The Advocate Depute accepted that, in general, if persons are unlawfully arrested, they are entitled to resist arrest. However, he submitted that, in any event, in the circumstances of this case the behaviour of the appellants went well beyond anything that was needed to free themselves, or to indicate their resentment at the fact that they had been arrested. In particular he emphasised the obscene language that the appellant McMullen had directed at WPC Willis.

In our view the arrest of the three appellants was perfectly lawful. In the first place we should say that the comments by the Lord Justice Clerk in Nicol to the effect that the test is whether there is reasonable ground for suspicion that the crime has been committed or is being committed does not rest unsupported. In the earlier case of Breen the Court were dealing with an arrest which purportedly was effected under section 5(5) of the Road Traffic Act 1972. That provides that "a constable may arrest without warrant a person committing an offence under this section". We see, therefore, that once again that the statutory power appears to be directed to a person who is in the course of committing an offence. At page 64 the Lord Justice General observes,

It has to be observed that in Breen the arresting officers did not hear of an incident until some time after it had occurred. At page 65 of the report the Lord Justice General in criticising the arrest observes, "They had no means of knowing, and there were no facts within their own knowledge to suggest that that man was probably driving the vehicle". We think it follows that the Lord Justice General was not objecting to the arrest on the basis that the police constables had not seen the offence being committed with their own eyes but was prepared to recognise that sufficient material to amount to "means of knowing" the offence had been committed would satisfy the requirements of the Act.

The present case is a much stronger case for the justification of a statutory arrest than Breen. In our view the commission of an offence that justifies an arrest under section 59(1) extends not only to the actions taken to commit the offence but extends to the immediate steps taken by the delinquents to get away from the scene of the crime. The arresting constables had been provided by the closed circuit television operator with a contemporaneous account of what was happening. The interception of the appellants was part of a combined operation in which, as would be necessary in such an arrangement, information is being shared. Moreover the police officers had an opportunity themselves to confirm the likelihood that what they had been told was accurate. When they arrived where they had been directed to proceed, they found three youths as had been described to them. Moreover the youths immediately on the arrival of the police acted suspiciously in that they dropped implements, which as the sheriff has held, were well suited to an attempt to effect illegal entry to premises. Thus for the purposes of the police operation the arresting constables had every reason to know that the three appellants were on the point of departure from the scene of the crime. Unlike the constables in Breen the constables in this case had a sound basis for concluding that a crime had very recently been committed. In the circumstances they were entitled to elect to exercise their statutory power of arrest rather than to adopt some alternative procedure such as taking the appellants into detention.

Since we have concluded that the arrests of each of the appellants was valid and lawful we do not need to consider whether or not the behaviour they showed after the police had detained them would have been justified in the case of an unlawful arrest. We must say, however, that at least the question arises as to whether the obscene remarks directed at the woman police constable could be said to be an acceptable reaction to unlawful detention.

We therefore shall answer the questions posed in the three stated cases as follows. Questions 1 and 3 in each case are answered in the negative. Question 4 in each case is not applicable. All the remaining questions in each case are answerable in the affirmative. It follows that we shall refuse the appeals.