SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE SITTING AT FORFAR
SHERIFF K.A. VEAL
IN THE CASE OF
STEPHEN HOUSE THE CHIEF CONSTABLE OF POLICE SCOTLAND
Forfar, 28 May 2014
The sheriff, having resumed consideration of the whole cause, finds in fact: -
- The pursuer is Gwen Laidlaw or Louden. She resides in Dundee. She is a serving police officer, having completed – as at May 2014 – 22 years police service. In 2010, she was serving with Tayside Constabulary, (in the Constabulary’s Eastern Division). With the amalgamation of the Scottish police forces, she now serves with Police Scotland.
- The defender is the Chief Constable of Police Scotland. Their headquarters are located at PO Box 21184, Alloa, Clackmannanshire. Police Scotland is the successor organisation to Tayside Police.
- The events giving rise to this action occurred at the former Tayside Eastern Divisional Headquarters in West High Street, Forfar, and at Arbroath Police Office.
- In 2010, the pursuer was employed in Community Policing at Muirhead, by Dundee, which was then part of the Eastern Division of Tayside Police. Her then role was that of Community Liaison Officer, working inter alia in Community Centres, schools etc. In consequence, she operated on her own at most times. She would also interview suspects, caution and charge persons, and if necessary carry out arrests and submit reports to the Procurator Fiscal.
- On 27 May 2010, the police were contacted by telephone and a colleague of the pursuer was advised that James Donaldson wished to make a complaint about an assault allegedly committed against him. At the time of the receipt of this information, the police were unaware that the alleged perpetrator was Miss Claire Powell. The gist of the complaint, as she subsequently ascertained, was that Miss Powell was alleged to have thrown a McFlurry ice cream at Mr Donaldson.
- On 31 May 2010, the pursuer made an appointment to see Claire Powell at the home she occupied with her mother. Although the interview with Claire Powell was scheduled to take place on 1 June 2010 at about 11 a.m., her colleague from Kirriemuir, (Police Constable Steven McIntosh), whom she had requested to be present with her at the interview for corroboration purposes, was delayed by the necessity of having to attend a Road Traffic Accident that morning. The meeting with Miss Powell and the furthering of this investigation did not thus proceed until the early afternoon of the same day.
- The pursuer, with P. C. McIntosh present as the corroborating officer, first interviewed Mrs. Veronica Powell, the mother of Claire Powell. At the commencement of that interview, the pursuer told Claire Powell to leave the room in which the interview was being conducted and go temporarily into another part of the house. In the course of that interview, Mrs Veronica Powell denied that her daughter, Claire, had assaulted James Donaldson. At the end of that interview, the pursuer agreed that P C McIntosh could leave the scene. She did not proceed at that time to take a statement from Claire Powell. She did however make it clear to Claire Powell that her investigations into the allegation were not necessarily ended at that time, nor would her investigation and enquiry about this incident on that day (1 June 2010)be the end of this matter. She explained that the crime of assault did not have to include the use of violence or force. The pursuer did not formally interview Claire Powell at that stage, although she did speak with her prior to leaving the locus. In light of what was said by Mrs Powell and Claire Powell to her, the pursuer updated the initial crime report, and attempted to update the complaint about the alleged assault committed against James Donaldson by Claire Powell. The pursuer intended to return and interview Claire Powell a few days later.
- The pursuer never at any time in the course of her conversation with Claire Powell on 1 June 2012 coached Claire Powell as to either what she ought to say to the police about the alleged assault or to say nothing if and when she was questioned. In particular, she never advised Claire Powell to deny the assault.
- Subsequently, Claire Powell was interviewed by P C Kelly Bramhill in connection with the alleged assault on her by James Donaldson. In the course of that interview, Claire Powell denied assaulting James Donaldson. (Neither the interviewing nor corroborating officer believed Claire Powell when she denied the assault.) When the same officer interviewed Claire Powell at her home on another occasion soon thereafter on an entirely separate issue, Miss Powell was accused by P C Bramhill of previously lying in connection with the assault on James Donaldson. At that stage, and for the first time, Claire Powell admitted to having lied when previously spoken to by the police. When asked why she had lied, Miss Powell claimed that the pursuer had told her to deny the assault.
- Thereafter, all papers in connection with allegation against the pursuer, that she had coached Claire Powell and had thus attempted to pervert the course of justice, were passed to the District Procurator Fiscal, who advised Inspector Alistair Waghorn, (one of the officers involved in the enquiry against the pursuer), that he – the District Procurator Fiscal – considered that there was an insufficiency of evidence against the pursuer to sustain a charge of attempting to pervert the course of justice. He did however advise that, if there was an admission by the pursuer, this could provide the necessary corroboration to support such a charge being brought against the pursuer.
- At about noon on 25 June 2104, the pursuer, who was off duty, received a telephone message from Detective Inspector Waghorn, who sought a meeting with her urgently. She readily and quickly arranged to attend at Tayside Police Eastern Divisional Headquarters in West High Street, Forfar. Prior to her arrival at Police Headquarters in Forfar, the pursuer had not been told of the reason for the meeting.
- At Forfar Police Headquarters, the pursuer was interviewed by Detective Sergeant Nicola McGovern and Detective Inspector Alistair Waghorn of Tayside Police. She was asked to and did complete Voluntary Attendance Forms. She was cautioned at the very commencement of the interview. She was also advised that “the Police Federation ha(d) been informed that (she was) there and that (she was) (t)here on a voluntary basis.” The interview commenced at 14.13 hours and concluded at 14.54 hours. Pages 1 to 13 of the pursuer’s Inventory of Productions number 5/6/12 of process is a transcript of that interview.
- The pursuer, at no point in the course of the interview, admitted or accepted that she had attempted to pervert the course of justice. In particular, she strenuously denied that she had coached the potential witness, Claire Powell, as to what she ought to say in any statement that she would give to the police.
- Following that interview, the pursuer was again interviewed by the same two officers, (Detective Inspector Waghorn and Detective Sergeant McGovern), at 15.42 hours the same day, when she was formally cautioned and charged with the offence of attempting to pervert the course of justice. To that charge, she made no reply. Page 14 of the pursuer’s Inventory of Productions number 5/6/12 is a transcript of that subsequent interview.
- The pursuer was informed, after being cautioned and charged, that her status as voluntary attendee not longer applied, and that the interviewing officers considered her to have been earlier arrested as at 15.30 hours. She was detained in custody and was no longer at liberty to leave the police headquarters. There was no warrant sought or granted for her arrest.
- To enable the pursuer to be processed as an arrested person, she was taken by Inspector Waghorn to Arbroath Police Station.At Arbroath Police Station, she was read her rights as an arrested person. Her fingerprints and DNA were taken and she was photographed. The pursuer was not detained or placed in a detention cell at any time. After being processed, she was driven back to Forfar Police headquarters by Detective Inspector Waghorn, where she collected her own motor vehicle.
- The pursuer felt belittled and grossly humiliated by her arrest. She was of the belief that the original incident was de minimis and that the allegation made against her was predicated on information that, in her eyes, was completely untrue. Furthermore, she believed that such evidence would not, on objective examination, be regarded as credible and reliable.
- Papers were passed back to the Area Procurator Fiscal who decided to take no proceedings. His decision was intimated to the Deputy Chief Constable of Tayside Police by letter dated 12 November 2010. This decision was subsequently intimated to the pursuer by a representative of the Police Force.
- The pursuer, because of her failure to formally interview Claire Powell at the time of the original complaint by James Donaldson, received in 2011 a “66” warning and had a mark placed on her work record, this warning lasting for 3 years. The effect of this sanction was to prevent her from applying for any level of promotion during the requisite period. Whilst electing not to attend the subsequent disciplinary hearing which imposed this sanction, she nonetheless submitted a report detailing her side of this matter.
- As a result of being formally arrested, and particularly because she, a serving police officer, was processed as an arrested person within the Eastern Division of Tayside Police, (her own Division of Tayside Police), where she had worked and had continued to work for many years, the pursuer felt belittled and humiliated. When she relayed the fact of her arrest to her family and friends, she would break into tears. She felt unable, even if she had so wished, to return to work. She suffered from anxiety, mental trauma and stress. She was paranoid about coming into contact – even inadvertently – with any other police officer. She finally returned to work in January 2011, working an 80% week. Thereafter, this was increased to full-time working.
- The pursuer was subsequently formally diagnosed as suffering from an Adjustment Disorder with Mixed Anxiety and Depressive Reaction, the foregoing diagnosis being based on the pursuer’s development of emotional and behavioural symptoms in response to an identified stressor, namely her being charged with attempting to pervert the course of justice and subsequent arrest. Such symptoms were clinically significant as evidenced by her marked distress and impairment in social and occupational functioning.
- If the pursuer had not been charged and arrested in June 2010, this Adjustment Disorder would not have surfaced. Her condition improved after intimation to her of the Procurator Fiscal’s decision not to proceed with the charge against her, and she returned to work in January 2011 in Central Division of Tayside Police. She ceased to suffer from the Adjustment Disorder in the summer of 2011, whilst residual symptomatology continued to be experienced until the autumn of 2011.
Finds in fact and in law
- That, in the absence of any admission of guilt by the pursuer, there was no corroborated case which could support a conviction against the pursuer on a charge of attempting to pervert the course of justice.
- That the arrest of the pursuer on 25 June 2010 was both wrongful and unlawful
- That, in the circumstances prevailing on 25 June 2010, the arrest of the pursuer was not justified
- The arrest of the pursuer caused her to suffer from an Adjustment Disorder for a period of approximately one year after her arrest on 25 June 2010.
- That, in these circumstances, the defender is liable in damages to the pursuer.
Assesses damages in the total sum of Four Thousand Pounds (£4,000) Sterling, with interest on the sum of Two thousand Five Hundred Pounds Sterling (£2,500) at the rate of Eight (8) per centum per annum from 25 June 2010 until payment, and on the sum of One Thousand Five Hundred Pounds Sterling (£1,500) at the rate of Eight (8) per centum per annum from 25 June 2011 until, payment;
- Grants decree in favour of the pursuer against the defender for the total sum of Four Thousand Pounds Sterling (£4,000) Sterling with interest on Two Thousand Five Hundred Pounds Sterling (£2,500) at the rate of Eight (8) per centum per annum from 25 June 2010 until payment; and on the sum of One Thousand Five Hundred Pounds Sterling (£1,500) from 25 June 2011 until payment;
- Finds the defender liable to the pursuer in the whole expenses of this action as taxed, and allows an account of said expenses to be ingiven, remitting the same when lodged to the Auditor of Court to tax and to report.
- Certifies Dr Alan Scott Wylie MB ChB FRCPsych and Dip FM as an expert witness and, as such entitled to additional remuneration; and
- Certifies the whole cause as suitable for the employment of junior counsel.
Procedural History and General Introduction
 This case, which was first warranted on 17 June 2013, came to proof before me, the evidence being heard on 14 April and 16 May 2014. On that latter date, I took the case to avizandum.
 The pursuer, in the spring of 2010 and as at the date of proof, was and continues to be in employment as a police officer. In May and June 2012, she was employed as a Community Liaison Officer with Tayside Police at their small police office in Muirhead, a commuter village located just outside the boundaries of the City of Dundee. In the course of her duties, she dealt with a whole myriad of different issues.
 On 27 May 2010, there was reported to the police by one James Donaldson an allegation of a very minor assault, namely, that a female acquaintance of his, Claire Powell, had assaulted him by throwing a McFlurry ice cream over him. Because the incident had occurred in the Muirhead area and because the alleged perpetrator lived in Auchterhouse, the pursuer was asked to progress the investigation.
 The only verbal evidence presented to the court came from: -
- The pursuer herself, Mrs Gwen Louden.
- Dr Alan Scott Wylie, Consultant Psychiatrist, of Stobhill Hospital, Glasgow.
- Acting Detective Inspector Nicola McGovern, (who was a Detective Sergeant with Tayside Police at the date of the events giving rise to this litigation),
- The now retired Detective Inspector Alistair Waghorn, (who was also in post as a Detective Inspector at the date of the events giving rise to this litigation).
All witnesses were called by the pursuer. There was no separate or additional evidence on behalf of the defender put before the court. In addition, I have to record that Joint Minute number 16 of process was lodged on the first day of proof, and most, if not all, of the documentary evidence was agreed and accepted in terms of that Joint Minute.
 I must make the following observations about the evidence. I considered that the pursuer, Mrs Louden, gave her evidence in a clear and concise manner. Having seen her demeanour in the witness box and her response to both examination-in-chief as well as to the cross-examination, I considered her to be a truthful and reliable witness, who was very straightforward and open with her evidence to the court. I think that this was eloquently demonstrated by the fact that she very candidly accepted that she could not have faulted her
colleagues, Detective Inspector Waghorn and Detective Sergeant McGovern, for proceeding with the interview after she had voluntarily attended at Forfar Police Office. Where she did part company and take serous issue with them was their decision to move matters – wrongly and unjustifiably, in her view, – to the next stage of arrest and detention. In addition, when she spoke about the health problems that she believed were the consequences of the arrest and detention, she did not make wild and unsustainable claims, but put before the court in a very matter of fact way how the events of 25 June 2010 had impacted on her life, both professionally as a police officer, and personally as a mother, daughter, relative and friend and as a member of the wider local community.
 Dr Alan Scott Wylie, who is a very eminent Consultant Psychiatrist, spoke to his two reports, numbers 5/3/3 and 5/5/6 of process, which detail his findings about the pursuer’s health. Suffice it to say, that having considered the terms of these reports, as well as the content of his evidence which was presented in the clearest possible manner, I had little difficulty in accepting his diagnosis that the pursuer, after her arrest and detention, was suffering from an Adjustment Disorder with Mixed Anxiety and Depressive Reaction. As he stated on page 11 of his report 5/3/3 of process: -
“I note from the medical records that she (the pursuer) had presented in the past with emotional symptoms sufficient to warrant the prescription of antidepressant medication. As such, Mrs Louden would have been, to a degree, predisposed to the development of this disorder. I would, however, not consider that this disorder would have arisen in the absence of the index stressor of her being arrested and charged on 25 June 2012. With such symptomatology, she attended her general practitioner.
Following being informed that the Procurator Fiscal was not proceeding with the charge, against (her) in late 2010, she recounts an amelioration in her symptomatology to the point (where) she was able to return to work in January 2011.
I would, on the balance of probabilities, consider that the amelioration in her symptomatology was such that it was reasonable to consider that she was no longer suffering from an Adjustment Disorder by the summer of 2011, while recognising that she did experience residual symptomatology until the autumn of 2011. While she has been left with a degree of diminished confidence in her work, I would not consider that her employability or psychiatric health will be adversely affected in the longer term as a result of any psychiatric sequelae arising from the index incident.”
 I now turn to the evidence of both acting Detective Inspector McGovern and the now retired Detective Inspector Waghorn. Both officers were, in my opinion, decidedly ill at ease when giving evidence, and did not present as impressive witnesses. I thought that both of them were extremely uncomfortable finding themselves being questioned about their part in the process of the complaint against Mrs Louden. Both of them accepted that, in the absence of an admission by Mrs Louden, there would not have been the necessary corroboration to sustain a criminal charge of attempting to pervert the course of justice against the pursuer. As I understood the evidence, the only suggestion that Mrs Louden had coached Claire Powell or told her not to say anything had come from Miss Powell herself. Claire Powell’s mother, Mrs Veronica Powell, had denied absolutely that any assault by Claire Powell on James Donaldson had ever taken place. Mrs Powell had also intimated that her daughter was unlikely to be a reliable witness, because, at an earlier time, she had sustained a serious head injury when she had been knocked unconscious. (That can be gleaned from the production 5/5/8 of process, a statement taken from Mrs Veronica Powell by Detective Douglas Winter on 4 January 2011.)
 Both officers, acting Detective Inspector McGovern and Detective Inspector Waghorn attempted to justify the arrest, subsequent detention and consequent “processing” of Mrs Louden at the Charge Bar in Arbroath, on the basis that the necessary “admission” had been given by Mrs Louden in the course of her interview by Sergeant McGovern and Inspector Waghorn. I have read and re-read the transcript of the interview, (number 5/6/12 of process), and I cannot find anything therein that remotely resembles, or could be accorded the description or status of, such an “admission”.
 In what was a very frank discussion between the interviewing officers and Mrs Louden, the pursuer talked openly about the whole matter, and most of the discussion centred on the alleged assault on Mr Donaldson and how that had been processed. What Mrs Louden reported that she had said to Mrs Powell, as recorded at the end of the first full paragraph at the top of page 4 of the transcript, when Claire Powell had said that she was worried about what would happen was: -
“Well, it depends on what you say when I come back”.
Other observations made in the course of that interview are typical of the sort of response that I would expect from a Community Police Officer, who may very well know something about the circumstances of the various personnel concerned and who would also be able, in my opinion, to exercise a proper discretion having regard to the subject matter of the complaint and all the surrounding circumstances.
 It is my judgement that, at the time of the interview, both officers, Detective Sergeant McGovern and Detective Inspector Waghorn, were not as confident as they claimed at proof that they were at the time, that Mrs Louden had made the necessary admission, without which a charge of a most serious nature (levelled against a serving police officer and which is alleged to have been committed while she was in the course of her duties and in uniform) of attempting to pervert the course of justice could not be sustained. It is of no small import that the initial part of the interview was terminated at 14.54 Almost one hour later, at 15.42, Mrs Louden was charged and arrested. (For what it is worth, I would comment that the suggestion, as articulated by Detective Inspector Waghorn after the formal caution and charging of Mrs Louden, that the pursuer was “arrested” as at 15.30 the same date, is a little difficult to understand.)
 Because of the opinion already expressed by me that, on no fair reading of the transcript of the interview of the pursuer, could it confidently asserted that the pursuer had made the necessary and full admission of guilt which the District Procurator Fiscal had indicated was the necessary corroboration without which the proposed charge of attempting to pervert the course of justice could not even commence life, it must follow that the arrest of the pursuer was unjustified, wrongful and unlawful.
 Given my view as to the lack of any admission by the pursuer that she had attempted to pervert the course of justice, I can only – regretfully – observe that the effect of proceeding with the arrest and detention of Mrs Louden at that stage was to belittle and humiliate her. The charge which she might have faced would be, for any serving police officer, a matter of the utmost gravity. Conviction on such a libel could well result in a sentence of immediate custody, the inevitable loss of very secure employment and pension, and a catastrophic collapse of her standing and status in the community. In truth, the arrest and detention of Mrs Louden at that stage was based on information which, at its highest, would not be able to even start to secure a conviction. Thus, in my opinion, the arrest and detention was both unlawful and most certainly unjustified. I pause, at this point, to comment that, in the course of her evidence, Mrs Lowden quite freely accepted that she could not argue with her being interviewed about this matter. She accepted that her professional colleagues had a job to do and, uncomfortable as it was for her, she understood and appreciated their role.
 Was there a necessity for Mrs Louden to be arrested and detained, albeit for a short period when she was processed at the charge bar? There was no difficulty as to her identification. Her DNA profile, (and a swab of salive was taken from her at the charge bar) would never have been required to secure a conviction. However, this allegation and charge was processed. Nor would her fingerprints, (which were also taken), have been required to secure any conviction. All documentary evidence would have been available to the police authorities. Furthermore, the pursuer had a permanent home in Dundee, (which she owned), and had a 16 years old son, as well as an ageing mother in the community. There was no suggestion that she would flee outwith the jurisdiction. Taking all these factors into consideration, I have little hesitation in holding that there was no necessity for her arrest and subsequent detention.
 For the pursuer, counsel submitted that the law supported his submissions, that malice was not a pre-requisite before a claim for wrongful, unlawful and unjustifiable detention could be upheld. He began his analysis by referring to Renton & Brown’s Criminal Procedure according to the Law of Scotland 6th Edition, paragraphs 7.01 and 7.03 at pages 69 and 70. He highlighted, inter alia, the following: -
“The general rule is that arrest without warrant is a proceeding which requires to be justified if challenged...A person should not be arrested without a warrant unless this is necessary in the interests of justice, and more particularly unless it is necessary to prevent the arrestee absconding, committing further crimes, of hindering the course of justice by, for example, interfering with witnesses or disposing of stolen property or of evidence. Whether or not a particular arrest without warrant is wrongful usually depends on whether it was reasonable for the arrester to believe it was justified. The arrestee’s subsequent conviction or discharge is not in itself conclusive of the propriety or impropriety of the arrest. The reasonableness of the arrester’s belief in the existence of the justifiable conditions may depend on such things as the arrestee’s character, the fixity or otherwise of his residence, or the seriousness of the offence which in some cases...may justify the arrest. The arrest of a member of the criminal classes or of someone with no means of honest livelihood or fixed abode has been said to be easier than that of a respectable householder, of “what, in our justiciary practice, we call a “law-abiding party”.”
It may be said too that arrest without warrant is not justifiable if the interests of justice can be equally served by waiting for a warrant or by proceeding by citation. It is for this reason that arrest without warrant is not normally justified...The longer the time which has elapsed since the offence, the more difficult it will be to justify arrest without warrant.”
 I was then taken through a number of cases, commencing with Peggie v Clark (1868) 7M 89. On an interpretation of the then relevant statute, Lord President Inglis opined at page 92: -
“I am not satisfied that that enactment introduced any new law, or extended the powers of police officers to apprehend without a warrant. But, I am of the opinion that, under special circumstances, a police officer is entitled to apprehend without a warrant and it will always be a question whether the circumstances justify the apprehension. There are some cases about which there can be no doubt...This is a different case but, looking to the circumstances, I think they did justify the defender in proceeding without a warrant. But I rest my opinion in the common law, and not on the provisions of the County Police Act. The Act...gives him, in my opinion, no power beyond what he has at common law.”
Similar sentiments were expressed by Lord Deas in his opinion on page 93 of the same case. On this scenario, counsel asked whether the arrest of the pursuer could be justified. He submitted that the whole facts appeared to have the hallmarks of a wrongful arrest. Turning then to the case of Leask v Burt (1893) 21R 32, where the pursuer’s averments were held to be relevant, Lord Justice Clerk Kingsburgh stated that: -
“There is no doubt that it is established law as stated by Hume II.76 that a police constable, if he has witnessed a felony being committed, or has immediate information from others who are sure of the fact, may arrest without a warrant. But this case does not resemble those mentioned by Hume in the least. There was here an allegation against the pursuer of having committed a fraud six months before by receiving ten shillings and seven pence by false representations, and the case stated by (counsel for the defender) amounted to this, that a police constable, acting on the instructions of his superior officer, is entitled to leave his own county and go into another county, and there practically take precognitions, and if satisfied in his own mind that there are good grounds for doing so, arrest the suspected person. That seems to me an extremely inadvisable method of proceeding even if it fell within the letter of the law, which I cannot hold that it does.
The only other ground taken up on behalf of the defender was that the pursuer when he was arrested intended to abscond from justice. That is a defence which cannot well be considered on a question of relevancy, for it almost of necessity arises on the defender’s statement, since a man is hardly likely to state facts which involve the inference that he intended to abscond from justice. Here, we have nothing beyond this that the pursuer was a seaman who for some months before the arrest had been regularly employed on trading voyages between this country and the Continent, and to say that a seaman who is on the eve of starting one of his regular trips is on that account to be assumed to have the intention of absconding from justice, is absurd. But even if he had been going away on that voyage without any intention of returning, I can find nothing to show that that there was no time to get a regular warrant before the ship sailed. It is, however, quite plain that with reference to this six months old offence, the only person whose authority was considered to be of any importance was this police constable who took the precognition, and after he had satisfied himself with the result of his investigations, proceeded to arrest the pursuer. On the whole matter, I think that the pursuer has stated a relevant case.”
Lord Young, at page 36 if the same case, in rather trenchant language stated: -
“The suggestion that that it is not necessary in such circumstances to go before a magistrate and state a case, and ask him for a warrant to apprehend and lock up – that all this may be done by a policeman of his own authority or upon the instructions of one of his superior officers – is one of the most extravagant that I have heard submitted to this court for a long time. The thing is utterly and absolutely illegal. Of the relevancy of this case, therefore, I have no doubt.”
 Moving forward to the case of Dahl v Chief Constable Central Scotland Police1983 SLT 420, Lord Ross, sitting in the Outer House, held that sufficient averments had been made by the pursuer in that case to the effect that her arrest was without a warrant and that there were no circumstances which would justify arrest at all. The case was allowed to proceed to proof. In the course of his judgement at page 421, Lord Ross alluded to the decisions in Pringle v Bremner and Stirling 1876 5M (HL) 55; Peggie v Clark supra; Leask v Burt supra; and Shields v Shearer 1914 SC (HL) 33. Lord Ross held that that
“there is clear authority for the view that to make a relevant case, it is enough for the pursuer to aver that she was arrested wrongfully and illegally, leaving it to the defenders to contend that that the arrest without warrant was justified.”
He summarised his opinion on page 422, where he opined: -
“In the light of all these judicial observations, I am of the opinion that the following may reasonably be inferred. In an action for damages for wrongful arrest against a police officer, it is not enough for a pursuer merely to aver that the arrest was without a warrant, because not every case of arrest without a warrant is illegal. What the pursuer must aver is that the arrest was wrongful and illegal i.e. that it was without a warrant and that there were no circumstances which would justify an arrest at all. On the other hand, if then pursuer does make averments which meets these requirements, and the defender wishes to justify the arrest on any of the grounds referred to by Lord Deas in Peggie v Clark, then the defender should make averments to that effect. However, if the defender cannot make averments to that effect, it will still be open to him to seek to negative the pursuer’s contention that there was no reason or justification for the arrest without a warrant. If, of course, the defender has not sought to make any specific case of justification in his defences, he may not be able to lead evidence of any such specific cause at the trial.”
 Counsel made rapid reference to the case of Henderson v Chief Constable Fife Police 1988 SLT 361, with particular attention to what Lord Jauncey said at page 364 C-D, namely: -
“Similarly, where a discretionary power to arrest is given to police officers, they are “not entitled to overstep the necessity or reasonable requirements of the particular case” (Peggie v Clark, Lord Deas at page 93). To exercise a discretionary power to arrest in circumstances where such arrest was neither reasonable or necessary would amount to undue interference or tampering with the liberty of the subject (see Lord Kinloch at p.94 in Peggie v Clark). The pursuers aver that that their arrest and subsequent detention was wrongous and unlawful, in other words, that the exercise of discretion to arrest was wrongly exercised. In that situation, the onus of establishing these matters rests upon them (Shields v Shearer. Lord Salvesen 1913 2SLT at p.71; Lord Shaw of Dunfermline 1914 1SLT at p. 362).”
 Turning to the case of Beck v Chief Constable Strathclyde Police, 2005 SC 149, Lord Justice Clerk Gill at paragraph  on page 153, sets out his decision that, in the circumstances of that case where the appellant was well known to police officers for having persistently committed the same offences, the arresting officers had reasonable grounds to arrest the pursuer without warrant.
 The provisions of Section 17(1) (d) of the Police (Scotland) Act 1967, which statute was then in force, stated inter alia: -
“...it shall be the duty of any constable in carrying out his duties under paragraph (b) of this subsection to take every precaution to ensure that ant person charged with an offence is not unreasonably and unnecessarily detained in custody,”
In similar vein, reference was made to Article 5 of the European Convention on Human Rights, with particular reference to Article 5 sub-section 1(c). On one view, so it was submitted, the only subsection which could conceivably cover the detention of the pursuer was subsection 1(c) which provides: -
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing having done so.”
Counsel for the pursuer suggested that, in this case and having regard to the evidence of Acting Detective Inspector McGovern, it was abundantly clear that the pursuer would not have been detained in custody until the next lawful court day. Thus, there was no cogent reason why the pursuer should have been arrested and detained.
 It was submitted that there was a legal requirement for justification for the arrest. In the circumstances of this case, there was no justification at all for an arrest. Whilst the witness, Acting Detective Inspector McGovern, appeared to place some reliance on so-called “admissions”, this witness had also conceded that without an admission by the pursuer there was no justification for the arrest. Even if there had been the necessary admission, it was submitted that there would still have been no justification for her arrest and detention. Detective Inspector Waghorn had accepted that the pursuer did not admit any guilt to an offence of attempting to pervert the course of justice. Any admission could have only been secured in the course of the interview. In the course of the interview, the pursuer had accepted that she had explained to Claire Powell the scenario of what could or could not happen. Reference was made to the pursuer’s response at page 10 of her interview, the transcript of which is 5/6/12 of process. There, she states: -
“No, what I said was: -“No, don’t say that, I’ll need to come back”. I didn’t want to get into it with her. What I was trying to explain to her, I’ve known her for years, and I know how she goes off on a tangent, and what I was trying to say to her was “Look, if there is enough evidence, you will be charged” and I was explaining to her but she was going “But I didn’t assault him, it’s not an assault” and I says “No matter, if you say that you threw something, then that will be an assault, that will be enough for you to be charged.”
It was further submitted that, in speaking to Claire Powell in that way, the pursuer was merely giving broad advice and counsel, as would be expected of a Community Liaison Police Officer.
 Any belief that the pursuer had admitted the offence had to be a reasonable one. If the defence were to submit that the “admission” was a pre-requisite for the arrest, then such submission should be roundly rejected and completely disregarded. On the face of the interview and what was said by the pursuer therein, there was no justification to “progress” matters to the stage of arrest and detention. There were many factors which should have militated against the arrest and detention of the pursuer, these including: -
- The pursuer was of good character.
- The pursuer was a serving police officer and long serving employee of the local constabulary.
- She was settled within the community.
- She was not considered as being at risk of absconding or fleeing ouwith the jurisdiction.
- The alleged incident had occurred 24 days before her arrest and detention.
- She had continued to work in her capacity as a police officer at the same location between 1 and 25 June 2010.
- The complaint arose as an isolated incident.
- There was no great urgency to deal with this matter, particularly since a period of 24 days had elapsed before she was formally interviewed.
- On any view, the alleged incident giving rise to this matte was at the lower end of the scale.
- (10)No attempt had been made to obtain a judicial warrant. No good or cogent reason had been out forward why application for such a warrant had not been made.
- (11)In the absence of corroborated evidence, there was no case made out against the pursuer.
- (12)There was no practical necessity to arrest the pursuer.
- (13)There was no procedural necessity to arrest the pursuer.
- (14)It thus followed, in light of all the foregoing factors, that the arrest and detention of the pursuer was unlawful and unjustified.
 Counsel very properly recognised that the case which would appear not to be in the pursuer’s favour is the Outer House decision of Lord Kingarth in Woodward v Chief Constable Fife Constabulary 1998 SLT 1342. Counsel submitted that that case was distinguishable on its facts from the circumstances of the present case. The rubric of that case sets out that Lord Kingarth held that any detention would be unlawful unless the constable actually executing the detention had a relevant suspicion which was based on reasonable grounds assessed objectively. (pages 1345L and 1346 A-B.) In that case, Lord Kingarth accepted the arguments made by the defender that a privilege attached to a police officer carrying out his duties and that, so acting, he is not open to a claim for damages unless there is proof that injury was caused by actings without probable cause and actuated by malice. Counsel for the pursuer submitted that, in the specific circumstances of the instant case, no person could have lawfully detained Mrs Louden. There were no reasonable grounds or justification, which could have been followed by a lawful arrest. Lord Kingarth quoted at page 1348 F-H from the opinion of Lord Justice Clerk Aitchison in Robertson v Keith 1936 SC 29 at page 45, where the following opinion was expressed: -
“The conditions affecting the civil liability of a chief constable, or other high officer of police, for an injury done to a citizen when purporting to act in the exercise of an official duty, are obviously different where the act is truly done in the exercise of an official duty, and where the act is only pretended to be, but is not in fact, so done. In the latter case, the act being outwith the proper authority or competence of the police officer, it is not protected and, as regards reparation for injury caused by the act, it stands in the same position as it the act were done by someone who was not discharging any official function. In the former case, where the act is done truly in the pursuance of an official duty, so as to be an act within the competence of the officer doing or authorising it, a large measure of protection attaches to that act so as to confer upon the public officer a wide immunity from liability.”
At page 1350H of Woodward v Chief Constable Fife Constabulary, Lord Kingarth stated: -
“It seems to me that the weight of the authorities suggests that the actings of a police officer in the course of or discharge of his ordinary duty would attract the privilege referred to and if he was doing that which he as an officer generally had power to do, it would not be enough for a pursuer who sought damages to prove that his or her actings in a particular case were wrongful (that is that they exceeded such constraints as might be imposed by common law or by statute on those powers) but also that proof of want of probable cause and malice would be necessary.”
Counsel sought to distinguish this case, on the basis that the facts in the instant case were very different from the facts there averred. It was submitted that malice did not require to be proved, but that it could be inferred from the whole particular circumstances of any case. The case of Woodward v Chief Constable Fife Constabulary was, it was submitted, the first case which suggested that, even in an “unlawful” situation, proof of malice was a sine qua non.
 Special mention was made of the case of McKinney v Chief Constable Strathclyde Police 1998 SLT (Sh. Ct.) 80 and the observations of Sheriff Principal G L Cox QC. In the specific facts of that case, it was held that there was no obligation on the pursuer to aver and prove malice on the part of the arresting and detaining police officers. It was observed that the authorities could be divided between those cases in which the pursuer averred that he had been deprived of liberty unlawfully, in which case averments of malice were unnecessary; and those in which the pursuer conceded that the constable had power to arrest or detain him but that the exercise of that power on the particular occasion was unwarranted, in which case malice had to be averred and proved. Sheriff Principal Cox comments in that case on the Woodward v Chief Constable Fife Constabulary case. (Page 82). At page 84E, the Sheriff Principal states – with reference to Peggie v Clark:-
“I have quoted from this case at length because it illustrates the sanctity of liberty and the care which the law takes to ensure that the citizen will not lose his liberty unless lawfully apprehended.”
Analysing in his judgement the case of Shields v Shearer, the Sheriff Principal commented that: -
“(this case) is clear authority for the view that an unlawful arrest is per se actionable although no personal malice or ill will is involved. It is also a clear statement, if one is required, that police officers must act within the law.”
 Counsel submitted that “malice” could be inferred from the whole circumstances. It was observed that the pursuer’s averments made on record in the case of McKie v Orr 2003 SC 317 fell short of what would be necessary to be capable of justifying an inference of malice and lack of probable cause on the part of any of the police officers against whom the allegation had been made. (Paragraph  at Page 319H of the judgement refers.)
 Proceeding to the questions of intention and sufficiency, it was submitted that Detective Inspector Waghorn considered the justification for the arrest to be that the necessary sufficiency of evidence (i.e. the alleged corroboration) had been achieved. It was submitted that that was not a good ground for justification for the arrest and detention. If there was not a sufficiency of evidence, that fact alone was fatal to the defender’s case. When the circumstances had first been reported to the Procurator Fiscal, he had not been persuaded that there was a sufficiency of evidence. The serious allegation was that the pursuer had coached a witness. There was the evidence of Veronica Powell, the mother of Claire Powell, which was not at all supportive of the defender’s case. Looking broadly at the matter, it was submitted that the defender’s case “did not stack up”.
 On the issue of quantum, it was suggested that an appropriate award for wrongful arrest and detention would be £2,500 with an additional award for Psychiatric injury, (as spoken to by Dr. A S Wylie) of between £1,100 and £4,200. The pursuer had not exaggerated her condition, and the circumstances of this whole matter were very serious for the pursuer, who was a serving police officer. She was processed by colleagues from her own police division, (she knowing these officers), and it was clear that she felt upset and humiliation when communicating with her employers and colleagues.
 The figure for psychiatric injury was drawn from the suggested awards for “less severe” psychiatric damage, contained in the Judicial College, Guidelines for the Assessment of General Damages for Personal Injury 11th edition, paragraph JSB 20.
 Hardly surprisingly, the solicitor for the defender took the opposite view, citing the dicta of Lord Kingarth, sitting in the Outer House, in the case of Woodward v Chief Constable Fife Constabulary, to which reference has earlier been made. He reminded me that, notwithstanding the facts giving rise to the original complaint by James Donaldson, the case being processed by Acting Detective Inspector McGovern and Detective Inspector Waghorn was one of considerable gravity, with an allegation of attempting to pervert the course of justice being levelled at a serving police officer, who was in uniform at the time of the alleged incident. In the specific circumstances of this case, it was submitted that the arrest was justified – having regard to the seriousness of the matter in issue.
 In light of what had been said at the outset by Claire Powell, the solicitor for the defender submitted that there was ample justification for the actions taken at the time by Acting Detective Inspector McGovern Drawing from the dicta of Lord Kingarth in Woodward, it was submitted that malice had to be averred and proved before the pursuer could be successful. In this action, malice had not, the defender’s solicitor argued, been proved and thus the pursuer’s case must fail.
 I was taken to the case of McKie v Orr, and the dicta of Lord Kirkwood, (delivering the judgement of the court) at paragraph  on page 319, where he stated: -
“...As the hearing proceeded, it became clear that there was no significant dispute as to the legal principles which fell to be applied in this case. It was common ground that the law gives a police officer a high degree of protection in the discharge of his or her duties, and that there is a presumption that a police officer in the discharge of those duties is acting in good faith (Ward v Chief Constable Strathclyde Police 1991 SLT 292, per Lord Clyde at page 298). As Lord President Inglis observed in Beaton v Ivory (1887) 14R 1057 (at page 1061): -
The presumption in favour of a police officer that he is doing no more than his duty, and doing it honestly and bona fide, is a very strong one, and certainly ought not to be overcome by the simple use of the word “malice”. I think the duty of the Pursuer in a case of this kind is to aver facts and circumstances from which the court or a jury may legitimately infer that the defender was not acting in the ordinary discharge of his duty, but from an improper or malicious motive.
Thus, it was agreed that it was not sufficient for the pursuer simply to aver that the police officers concerned had acted maliciously. There had to be reasonable specification of facts and circumstances which were capable of giving rise to the inference that a police officer had acted maliciously and without probable cause.”
 The decision in the case of Woodward v Chief Constable Fife Constabulary by Lord Kingarth in the Outer House suggested, per the rubric, that: -
“...the weight of the authorities was to the effect that the actings of a police officer in the course of or in discharge of his ordinary duty would not attract any liability in damages if the officer was doing that which he as an officer generally had power to do, and it would not be enough for a pursuer to prove that such actings were wrongful in that they exceeded such constraints as might be imposed by common law or by statute , but that proof of want of probable cause and malice would also be necessary.”
It was submitted that the instant case is on all fours with Woodward.
 From the Woodward case, I was referred to the dicta at page 1347 H-K, where Lord Kingarth quoted from the judgements of Lord President Inglis and Lord Shand in the case of Beaton v Ivory (1887) 14R 1057, as well as Lord President Inglis’ judgement in the case of Young v Magistrates of Glasgow (1891) 18R 825 at page 828, where he held: -
“There is the further question whether the issues against the two constables must be qualified by the insertion of the words “maliciously and without probable cause”. These words have not been inserted in the issues, but I am of the opinion that they ought to be.”
I was also drawn to the content of 1349D and 1350D in the judgement in the Woodward case, where it was noted that the observations of all three members of the court (in the case of Word v Chief Constable Strathclyde Constabulary1991 SLT 292),as to the privilege attaching to the actions of police officers were made entirely without qualification. At page 294 of that case, Lord President Hope stated: -
“It is in the public interest that officials in that position should be free to discharge the duties of their office without being exposed to actions of damages for what Lord Justice Clerk Aitchison in Robertson v Keith 1936 SC 29 described as “mistakes or errors of judgement”.
 The defender’s solicitor submitted that the case of McKinney v Chief Constable Strathclyde Police could be readily distinguished. In the first place, it related to an action of interdict, in a case where no power of arrest had been attached to the interdict. The present case had arisen from a different angle and background.
 Police officers have a common law power of arrest. The case of Woodward supports the view that, for this action to be successful, malice needs to be proved. In the circumstances of this case, can malice be inferred? Even if the arrest was “unjustifiable”, it does not follow that the arrest was malicious. Other officers were investigating a significant allegation, made against a serving police officer, of attempting to pervert the course of justice in the course of the officer’s police duties. The pursuer had been interviewed, and the pursuer had conceded that the two interviewing officers could not be faulted for proceeding with the interview. Where was malice to be found in the actions of the two officers? The failure of the pursuer to prove malice was fatal to the pursuer’s case, and the defender should be assoilzied.
 The defender’s solicitor founded on the same Judicial College Guidelines for the Assessment of General Damages for Personal Injury as the pursuer. It was submitted that the pursuer had made a good recovery and any award had to be at the lower end of the scale, which was between £1,100 and £4,200 for “less severe psychiatric damage”.
 On the issue of damages for wrongful arrest, two cases were referred to by the defender’s solicitor. Lord Jauncey in Henderson v Chief Constable Fife Constabulary suggested that an award of £1,000.00 for wrongful arrest and subsequent detention would have been appropriate in the specific circumstances of that case. Lord Kingarth, in Woodward v Chief Constable Fife Constabulary, assessed damages in the sum of £1,000. Any detention is this case was minimal. The pursuer had been processed at Arbroath Police Office, only after everyone else had been removed from the locus. She was quickly processed and then set at liberty. She had then been driven back to Forfar by Detective Inspector Waghorn, where she collected her motor car. The assessment of damages should, in the event of an award being made, be at the lower end of the scale.
Decision and Interlocutor
 I have found the analysis of Sheriff Principal Cox in the case of McKinney v Chief Constable Strathclyde Police particularly helpful. Every case must be decided on its own specific merits and, in this case, I have concluded that the facts put it squarely within the first category of cases where a pursuer has been deprived of her liberty unlawfully, in which case there is no requirement for averments or proof of malice.
 It seems to me that, in the circumstances which I have narrated supra within this judgement, I am entitled to conclude that the arrest and detention of the pursuer on 25 June 2010 did not comply with the objectives of lawfulness, justification and necessity. It matters not under which heading the analysis is made. The actings and decisions of acting Detective Inspector McGovern and Detective Inspector Waghorn on this day were, in my opinion, properly called into question. In particular, I would highlight: -
- That the District Procurator Fiscal had advised the police, prior to the interview with the pursuer, that there was an insufficiency of evidence against the pursuer to sustain a charge of attempting to pervert the course of justice.
- That, should there be an admission of guilt by the pursuer in the course of the police interview, there would then have been a sufficiency of evidence to allow the earlier decision by the Procurator Fiscal not to proceed to be revisited.
- That the conclusion of the two interviewing police officers that the necessary admission had been made by the pursuer in the course of the interview on 25 June 2010 was plainly wrong. It is my opinion that the two interviewing officers were determined to treat the words of the pursuer as such admission.
- Detective Inspector Waghorn accepted, under questioning from counsel for the pursuer, that no such admission had been achieved in the course of that interview.
- That the fact that no such admission from the pursuer had been given in the course of that interview, meant that there was no corroborated evidence to support the charge of attempting to pervert the course of justice. Given that the District Procurator Fiscal had told the police at the outset that there was an insufficiency of evidence against the pursuer to sustain a charge of attempting to pervert the course of justice, there was no justification whatsoever for the two police officers to arrest and detain the pursuer for however short a period.
- Having regard to the various criteria posed by the pursuer’s counsel; and which I have set out at length in paragraph  of this note, there was no necessity or justification to arrest and detain the pursuer.
 Having determined that the arrest and detention of the pursuer was unjustified, unnecessary and, in my opinion, unlawful, (as there had been no case made out against her, which would have been successful in court), it follows that the pursuer is entitled to succeed in this action.
Assessment of Damages
 I now turn to the question of damages. The arrest and detention of any person is never anything other than a matter of gravity and consequence. It is much more serious when the person arrested is a serving police officer. In this case, the pursuer was arrested and detained at a time when, in my opinion and based on the evidence presented to me, there was no case for her to answer. (It is also to be noted that Mrs Veronica Powell, the mother of the complainer, had expressed the greatest reservations about the credibility and reliability of the complainer, her daughter.)
 Damages in this case fall to be assessed under two headings, for wrongful, arrest and psychiatric injury. I shall deal first with damages for wrongful arrest and detention. I accept at the outset that the pursuer was not detained for any significant period of time. However, for a serving police officer to be detained for whatever period of time is a matter of significance. The whole arrest and detention process, including her being finger printed, photographed and having a DNA swab taken failed each and every one of the tests of Justification, lawfulness and necessity. In addition, she was processed within the very division of police in which she was a long serving police officer. I can only think of this as being altogether humiliating and belittling for her. Because she was at the time of the arrest and detention a serving police officer, the arrest and detention would have had a greater effect on her than it would have had on another member of the wider public. Taking all these factors into account, I would assess damages for wrongful arrest in the sum of £2,500. (Two thousand Five Hundred Pounds).
 The issue of psychiatric damages follows on from the pursuer’s absence from work, as well as the diagnosis by Dr Alan Wylie. The pursuer was formally diagnosed as suffering from an Adjustment Disorder with Mixed Anxiety and Depressive Reaction. I entertain not the slightest doubt that this Disorder was occasioned solely by her being arrested and detained. Furthermore, she fairly rapidly started to make a significant recovery after she was informed that there would be no prosecution against her. Because this psychiatric condition is attributable solely to the events set out within the body of this judgement, the pursuer is entitled to an award of damages for psychiatric injury. Both counsel for the pursuer and the solicitor for the defender were agreed that the Judicial College’s Guidelines for the Assessment of General Damages for Personal Injury 11th Edition pages 817 and 818 paragraph JSB 20 applied. The range of awards for “less severe” injury is between £1,100 and £4,200. Having regard to the Adjustment Disorder of the pursuer, the period in respect of which she had to remain absent from work and the recovery that she quickly made after being advised that she would not be the subject of a prosecution, I consider that an appropriate award in the specific circumstances of his case should be £1,500. (One Thousand Five Hundred Pounds). Interest will run on this figure from 25 June 2011, being the date a full year after her arrest when Dr Wylie considered that hr Disorder Anxiety was behind her and a recovery had been effected.
 Decree will therefore be granted for the total sum of £4,000 with interest. Expenses will follow success. I consider this case to have been a suitable case for the instruction of junior counsel and I have made the necessary certification. I have also certified the medical expert for the pursuer, Dr Alan Scott Wylie, as an expert witness with an entitlement to the remuneration and reimbursement of expenses that will follow such certification.
 The foregoing disposes of this action. However, I feel constrained to make the following observations, notwithstanding that this was not the subject of any submissions to me. A Joint Minute, number 16 of process, was lodged on the morning of the proof, agreeing much, if not all of the documentary productions before the court. For so doing, I am grateful to both the pursuer’s counsel and the defender’s solicitor. That Joint Minute reduced substantially the extent of oral evidence that would otherwise have had to be presented to the court. I examined all these documents whilst the case was at avizandum. I have to confess that I had the greatest anxiety when I read the content of the letter number 5/4/4 of process from the Deputy Chief Constable of Tayside Police to the representative of the Police Federation, that letter being dated 25 November 2011.
[46[ It appears to be accepted that Acting Detective McGovern’s now husband had previously been in a relationship with the pursuer. In fairness to Ms McGovern, when she was asked to take charge of this enquiry, she told the senior officer of this relationship. She also set out an additional four factors to the senior officer, namely: -
- The previous relationship between her husband and the pursuer was “historical”.
- She had never engaged with or discussed her husband with the pursuer.
- He had had minimal contact with the pursuer both professionally and personally, and
- She was entirely comfortable investigating this matter.
 It is my considered opinion that this investigation should never have been placed with the then Detective Sergeant McGovern and she should never have undertaken this very sensitive investigation. Because of the previous intimate relationship between the pursuer and the investigating officer’s now husband, the unbiased, objective and independent observer would, in my opinion, readily conclude that the enquiry did not have the necessary element and appearance of independence and objective fairness. Bluntly, when a matter as serious as an attempt to pervert the course of justice falls to be investigated, it is essential that the enquiry officer who is appointed must have no connection with the officer under investigation. In the circumstances of this case, I consider that the appointment of Ms McGovern could not withstand objective scrutiny and criticism. Even at this first stage of an investigation which could potentially lead to a prosecution and a sentence of imprisonment, it is important that objective criteria, which are readily applied and observed in so many other cases, are also rigidly adhered to in these circumstances. Although it was not necessary for the determination of this case that malice on the part of the investigation officers be established, it seems to me that, standing the accepted relationship between Ms McGovern’s now husband and the pursuer, it would not have been difficult to have held that malice was established.
 For the future, it is to be hoped that, when it may be deemed necessary to investigate the actings of a police officer, the selection process will not permit a similar situation to arise.