LAURA MARIE BECK (AP) v. CHIEF CONSTABLE STRATHCLYDE POLICE
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION XA147/02 |
| Lord Justice Clerk Lord Penrose Lord Weir | OPINION OF THE LORD JUSTICE CLERK in APPEAL From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Airdrie in the summary cause LAURA MARIE BECK (AP) Pursuer and Appellant; against THE CHIEF CONSTABLE, STRATHCLYDE POLICE Defender and Respondent: _______ |
For appellant: A. Smith QC, Olson; Balfour & Manson (for Taylor & Kelly, Coatbridge)
For respondent: Miss Maguire QC, Miss Ross; Simpson & Marwick, WS
22 December 2004
Introduction
[1]This is a summary cause in which the pursuer seeks damages for her allegedly unlawful arrest and detention by officers of the defender. The sheriff at Airdrie held a proof. He assoilzied the defender. The pursuer appealed by stated case to the sheriff principal. The sheriff principal refused the appeal. The pursuer now appeals to this court. This being a summary cause, the appeal is confined to questions of law and the sheriff's findings in fact are not open to review (Sheriff Courts (Scotland) Act 1971, s 38).
The facts
[2]On Friday 17 December 1999 at about 11.40 pm PC Sandra Cairns and PC James McGinty were on uniform mobile patrol in Coatbridge. They saw the pursuer driving a car. The pursuer was known to both officers. On 26 November 1999 PC Cairns had stopped the pursuer when she was driving a vehicle and had given her an HO/RT/1 form requiring her to produce her driving licence and her insurance and MOT certificates. The officers knew that the pursuer had failed to produce those documents. PC Cairns had seen a form that showed that the pursuer's driving licence had lapsed. The officers also knew that on three previous occasions the pursuer had driven without the appropriate documentation, including her licence and her insurance and MOT certificates, and that prosecutions were pending for these incidents.
[3]The officers stopped the pursuer. PC Cairns asked her to come to the police vehicle. PC Cairns there cautioned her at common law and asked her why she had failed to produce her documents under the HO/RT/1 form issued on 26 November. The pursuer replied that she had no insurance or MOT. PC Cairns then told her that she was under arrest.
[4]The sheriff found that "The pursuer was arrested for refusing to desist and continually driving without having the necessary documentation" (finding 4).
[5]The vehicle was seized by the officers as a production (finding 5). The officers took the pursuer to Coatbridge Police Office. At the charge bar she was dealt with in accordance with usual police procedure. The custody record was completed shortly after midnight and at about that time she was placed in a cell.
[6]The decision to detain the pursuer in custody was taken by Sergeant Kennedy, the duty officer (finding 7). He considered it appropriate that she should be detained while the arresting officers pursued their enquiries into the charges that were outstanding against her.
[7]Sergeant Kennedy released the pursuer at about 7 am after it had become apparent to him that he would be unable to assemble the documentation to bring all of the outstanding cases before the procurator fiscal in time for the Monday court.
[8]The parties are agreed that if the defender is found liable in this case, damages for the pursuer's wrongful detention should be awarded in the sum of £1,000. This sum is assessed by reference to the period of seven hours during which the pursuer was detained.
[9]The offences for which the pursuer was arrested were contraventions of section 87 (no driving licence), section 143 (no insurance certificate) and section 47 (no MOT certificate) of the Road Traffic Act 1988. The parties agree that imprisonment is not a competent sentence for any of these offences. Such offences are normally to be tried summarily. If tried on an indictment in association with other offences, they can be punished only at the appropriate summary levels.
[10]The parties also agree that the officers were entitled to arrest without warrant for a statutory offence; and that an arrest without warrant, although not normally justifiable, may be justified in certain circumstances, for example where there is a likelihood that the suspect will commit a further offence (Renton and Brown, Criminal Procedure, 6th ed, pp 69-73; Walker, Delict, 2nd ed, pp 686-687; Dahl v Chief Constable, Central Scotland, 1983 SLT 420). The sole issue is therefore whether the decision to arrest was justified in the circumstances of this case.
The sheriff's decision
[11]Before the sheriff the solicitor for the pursuer confined his submissions to the question of the lawfulness of the arrest. He contended that if the arrest itself was unlawful, the detention that followed from it was also unlawful.
[12]The sheriff concluded that the pursuer was neither credible nor reliable. He accepted the police evidence in its entirety. He considered that the relevant issue was the state of the officers' knowledge at the time of the arrest. He concluded that when those officers had spoken to the pursuer under caution, they knew that she had committed offences of driving without the relevant documents on 26 November and on the night in question, and that there were outstanding prosecutions on charges of a similar nature arising from the three previous incidents to which I have referred. They took the view that the pursuer was failing to desist from this course of conduct. They arrested her for that and for having continued to drive without the appropriate documentation. In the view of the sheriff they were entitled in terms of section 17 of the Police (Scotland) Act 1967 (infra) to arrest her in order to prevent the commission of such offences, even though those offences could not be punished by imprisonment (Note, pp. 28-29).
The decision of the sheriff principal
[13]The sheriff principal took the same view as the sheriff. He raised no new points and I need not refer further to his judgment.
Statutory provisions
[14]Two statutory provisions have a bearing on this appeal. Section 17 of the Police (Scotland) Act 1967 provides inter alia that " ... it shall be the duty of the constables of a police force (a) to guard, patrol and watch so as to prevent ... (i) the commission of offences ... [and] (b) where an offence has been committed ... to take all such lawful measures ... as may be necessary for the purpose of bringing the offender with all due speed to justice ... "
[15]Section 22(1) of the Criminal Procedure (Scotland) Act 1995 provides inter alia that "where a person has been arrested and charged with an offence which may be tried summarily, the officer in charge of a police station may (a) liberate him upon a written undertaking ... in terms of which the person undertakes to appear at a specified court at a specified time or (b) liberate him without any such undertaking or (c) refuse to liberate him." It is agreed that the officer in charge of the police station in this case was Sergeant Kennedy.
Submissions for the parties
[16]Counsel for the appellant submitted that the sheriff had misunderstood section 17 of the Police (Scotland) Act 1967. The duty referred to in section 17(1)(a) was merely a general job description of a police officer. It did not confer a power of arrest. The sheriff had also erred in law in making assumptions as to the possible consequences of these offences for other road users. There was, in any event, no finding in fact that the police took that consideration into account in making the decision to arrest. There was no finding that, if not arrested, the pursuer would have continued to commit the offences or was likely to have absconded. The police knew the pursuer. They knew where she lived. There was no rational connection between the arrest and the prevention of further offences.. The police seized the car as a production. There was therefore no likelihood of the pursuer's continuing to commit these offences. In any event, the decision to arrest was unreasonable per se because (a) the offences were trivial and (b) there were other options available. Counsel for the pursuer, wisely in my view, abandoned a human rights point that was tabled in the grounds of appeal.
[17]Counsel for the respondent submitted that the decision to arrest was based on a relevant and reasonable suspicion and was proportionate. The officers knew of the pursuer's previous history of offending. The offences were serious by reason of the possible consequences for other road users (Doherty v Normand, 1995 SCCR 20, Lord Sutherland at p 21). The officers had witnessed the commission of these crimes by the appellant. It was their duty, a duty echoed in section 17 of the Police (Scotland) Act 1967, to prevent the commission of crime (Peggie v Clark, (1868) 7 M 89). The pursuer's behaviour was persistent. She had failed to desist from a determined course of conduct. Even if other courses of action were open to the officers, for example to release the pursuer but retain the car, or to give her another HO/RT/1 form, that did not make the decision to arrest unreasonable (Robertson v Keith, 1936 SC 29, Lord Murray at p. 63). The decision to arrest was by far the most reasonable option. There was a rational connection between the arrest and the prevention of further offences of this nature. The pursuer was actually committing the offences when she was stopped. In arresting her the police officers were not merely preventing the continuation of those offences but preventing the possible consequences.
Decision
[18]In my opinion, this appeal is misconceived. The case for the pursuer proceeds on the basis that the detention was a direct and natural consequence of the arrest and was unlawful because the arrest was unlawful. Before the sheriff and the sheriff principal the case for the respondent proceeded on the same basis. That view was also implicit in the opening speech for the respondent and is reflected in the agreement on damages.
[19]In my opinion, that approach is wrong. It assumes that the detention was a natural consequence flowing from the arrest. I do not agree. The decision to detain the pursuer was made under section 22 of the Criminal Procedure (Scotland) Act 1995 (supra). A decision under that provision falls to be made by "the officer in charge of a police station." That decision is entirely separate from the prior decision to arrest. When officers arrest a suspect and bring him to a police station, the decision whether he should be liberated or detained is not in their hands. That decision is made by the officer in charge, on considerations that may be quite different from those on which the officers made the decision to arrest. I cannot see how a detention made on the decision of the officer in charge of the station can be said to be caused by the arrest. In my view the arrest is merely the causa sine qua non. However, it is unnecessary to decide this appeal on that point.
[20]In my view, the sheriff was entitled to conclude, on the findings to which I have referred, that the arresting officers had reasonable grounds to arrest the pursuer without warrant. Counsel for the pursuer suggested that the officers were not entitled to have regard to the previous history of the pursuer's offending. I do not agree. That history was material to the question whether the pursuer could safely be left at liberty. The pursuer was well-known to the officers for having persistently committed the same offences. At the locus she did not dispute her guilt. The officers knew that she had committed the same offences about three weeks earlier. They knew that numerous similar charges arising from earlier incidents were pending against her. It was apparent that she was incorrigible in her commission of those offences. Moreover, in deciding whether the arrest was made on reasonable grounds, the sheriff was entitled to take into account the possible consequences of the offences. There was no need for him to make an express finding as to those consequences or as to the police officers' awareness of them. Counsel for the pursuer accepted that the lack of an insurance certificate is good prima facie evidence of a lack of insurance and that the lack of an MOT certificate may well indicate that the vehicle is unroadworthy. The possible consequences of driving such a vehicle and of driving it while uninsured are well-known to any experienced police officer.
[21]While I accept that the officers had other options available, such as the issue of yet another HO/RT/1 form to the pursuer, I consider that, on an objective judgment, the sheriff was entitled to decide that the option of arrest was the appropriate one in the circumstances.
[22]I do not accept the submission that the decision was made unreasonable by the fact that these were trivial offences that are normally to be tried summarily and are not punishable by imprisonment. They were not trivial, in my opinion. They could have had serious consequences if the pursuer had had an accident that resulted in injury or loss of life or damage to property (cf Docherty v Normand, supra).
[23]I conclude, therefore, that the sheriff committed no error of law in the decision that he reached. In my opinion, it was the right decision.
[24]I propose that we should refuse the appeal.
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION XA147/02 |
| Lord Justice Clerk Lord Penrose Lord Weir | OPINION OF LORD PENROSE in APPEAL From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Airdrie in the summary cause LAURA MARIE BECK (AP) Pursuer and Appellant; against THE CHIEF CONSTABLE, STRATHCLYDE POLICE Defender and Respondent: _______ |
For appellant: A. Smith QC, Olson; Balfour & Manson (for Taylor & Kelly, Coatbridge)
For respondent: Miss Maguire QC, Miss Ross; Simpson & Marwick, WS
22 December 2004
[25]I agree with the Opinion of your Lordship in the Chair and have nothing further to add.
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION XA147/02 |
| Lord Justice Clerk Lord Penrose Lord Weir | OPINION OF LORD WEIR in APPEAL From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Airdrie in the summary cause LAURA MARIE BECK (A.P.) Pursuer and Appellant; against THE CHIEF CONSTABLE, STRATHCLYDE POLICE Defender and Respondent: _______ |
For appellant: A. Smith QC, Olson; Balfour & Manson (for Taylor & Kelly, Coatbridge)
For respondent: Miss Maguire QC, Miss Ross; Simpson & Marwick, WS
22 December 2004
[26]I agree with the Opinion of your Lordship in the chair and have nothing useful to add.