Scottish High Court of Justiciary Decisons

KENNETH LESLIE STEWART KINNAIRD v. PROCURATOR FISCAL, GLASGOW [2001] ScotHC 18 (24th April, 2001)

[1] In this appeal by Stated Case the appellant Kenneth Kinnaird was convicted by the stipendiary magistrate at Glasgow on 29 March of a charge under Section 41 of the Police (Scotland) Act 1967. The complaint also contained (as the first of two charges) a charge of breach of the peace, on which he was acquitted (the stipendiary magistrate reaching the view it could not be said that the appellant's conduct amounted to breach of the peace), and the charge under Section 41, putting the matter briefly, was of resisting arrest by constables in the execution of their duties.

[2] The background to what happened was that in early May 1998 a particular police constable was briefed that there was a warrant in force for the appellant's arrest. It is unnecessary to go into further detail of the background, but on this particular day the same police officer saw the appellant and he and another officer followed him for a significant distance by car. The appellant went into a cul-de-sac and left his vehicle. He approached the police. At that stage he was said to have appeared aggressive and to have his fists clenched. He was asked for his name. He did not reply but told the constable to "go catch muggers and rapists". The constable then told the appellant that he believed there was a warrant in force for his arrest. If at that stage the appellant had been arrested in execution of the police officer's duty, and if he had a justifiable belief for that, then no question would arise about the legitimacy of the arrest.

[3] However, there was no arrest in execution of the warrant. What happened was that the constable asked the appellant to wait while he checked the matter of the warrant. The appellant replied "fuck off I've nae warrant". He then tried to walk away. He was stopped and again informed of the situation and asked to wait while a check was made. He again told the constable to "fuck off". The request was repeated with the same response of "fuck off". At that stage the constable decided to arrest the appellant. This was not in execution of the warrant, but for breach of the peace. We will return to that matter. What happened thereafter was that the constable took hold of the appellant's left arm and told him he was being arrested. The appellant pulled his arm away and there were then events which in common law terms would clearly amount to an assault and which in terms of the statute would clearly amount to resistance of arrest if the arrest was lawful.

[4] It was accepted on behalf of the Crown that the conviction on the statutory offence depended on the legality of the arrest. It was moreover accepted that the arrest would only be legal if the constable had a reasonable belief that an offence was being, or was about to be committed. The question therefore becomes the narrow one of whether upon the facts of this case, notwithstanding the appellant's subsequent acquittal of the first charge, there is a basis in the findings for concluding that the constable had a reasonable belief that the offence of breach of the peace was being committed.

[5] All such cases depend very much upon their own facts. Plainly there will be cases in which swearing at the police may involve, or be likely to lead to, some kind of alarm or distress and constitute a breach of the peace. We were referred to certain authorities but they are sufficiently different not to be useful in resolving the present case. In the present case it is to be noted that the appellant was not gratuitously hurling insults at the police or the like. It was they who had been following him. It was they who had asked him to wait. The Advocate Depute accepted that one was at the lower or lowest end of what might justifiably or reasonably be regarded as constituting breach of the peace. It did not appear to be suggested that if the appellant had merely refused to wait in other robust terms, this would have constituted a breach of the peace or could reasonably be thought of as doing so. It is to be noted also that while the words "fuck off" were spoken, it is held that they were not shouted. It does not appear that this was anything other than a conversation in which these no doubt impolite words were used. No-one other than the police was present. Notwithstanding the offensive nature of the appellant's response, and however much one might disapprove of its tone and content, there was no finding that anyone was, or was likely to be, alarmed or distressed.

[6] On the facts of this case we are satisfied that the appellant's position is sound and it cannot be said that there was a basis upon which the constable could reasonably conclude that the offence of breach of the peace was being or was about to be committed. That being so the appeal succeeds. There are two questions. The first is whether the police had lawful authority to arrest the appellant. The second is whether the stipendiary magistrate was entitled to convict. We answer both questions in the negative.