Scottish Court of Session Decisions

Mrs Teresa Kussick or Malcolm, wife of and residing with James Malcolm, cabman, 10 Brown Square, Edinburgh, with consent of her husband raised an action for £500 damages against William Duncan, a detective officer in the Edinburgh Police.

The pursuer averred—“(Cond. 2) About ten o'clock on the night of 18th December 1896 the pursuer's son John Malcolm, a boy aged twelve, found in Guthrie Street, Edinburgh, among some refuse, a number of clinical thermometers. Several of them had been broken, but there remained ten whole ones. These he picked up and carried home. On the way home he gave one to a girl, Emily Sutherland, who also resides at said No. 10 Brown Square, and after he got home he handed the remaining nine to the pursuer, who showed them to her husband. The pursuer and her husband did not know what the articles were or whether they were of any value, but it was arranged that the pursuer's husband should on the following day take them to Mr Hume, instrument maker in Lothian Street—the said James Malcolm's stance being in College Street adjoining—to ascertain whether they were of any value. It was the intention of the pursuer and her husband, if the found property were of any

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value, to take steps to restore same to the rightful owners thereof. (Cond. 3) On the following afternoon, viz., 19th December, the pursuer, as she had not received any message from her husband in regard to the said articles which he had in terms of said arrangement taken away with him about two hours previous, sent her daughter Annie Malcolm to Malcolm's stance in College Street to see her father about the matter. The girl there ascertained that her father had gone to Powderhall with a ‘fare,’ and returning home told the pursuer so. The pursuer accordingly obtained from the said Emily Sutherland the said thermometer which had been given to her, and thereafter sent her son Robert Malcolm, a lad about fifteen years of age, to Mr Stevenson, instrument maker in Forrest Road, Edinburgh, with it, to make the same inquiries as it had been arranged her husband should make at Hume's, in order to have information before the shops would be closed on Saturday afternoon. She also gave her son a note or line to hand to Mr Stevenson, which was in these terms:—‘Please would you be kind enough to let me know if this article is of any value, as my boy found a parcel containing some of them, if they are worth advertising, and oblige, yours respectfully, T. Malcolm.’ The boy Robert Malcolm took the thermometer and the note to Mr Stevenson. Mr Stevenson having read the note and examined the thermometer sent for a policeman. After the policeman came, Mr Stevenson gave him the said note and the thermometer, and informed him that he believed the said article was part of property reported to have been stolen. The said Robert Malcolm told them how the same had come into his brother's possession. The policeman, notwithstanding, took the boy in charge, and marched him to the police office in High Street, holding him by the wrist all the way. While going to the police office they passed Chambers Street, where the pursuer lives, and the boy asked the policeman to go with him and see his mother, telling the constable that he would there receive a full explanation. The policeman refused to do so. (Cond. 4) After arriving at the police office the policeman and the boy were interviewed by two detectives, namely, the defender and another detective named Strachan. The defender was then told of the circumstances under which the thermometers had been found, where they were, how the boy had taken one of them to Stevenson's, and he was given the said note from Mrs Malcolm.… The defender, accompanied by Strachan and the boy, then proceeded to the pursuer's house. The pursuer was not at home when the defender arrived. She was out in quest of her son Robert, the report of his arrest having been brought to her by a boy who knew her son. On arriving at the house the defender saw the pursuer's mother Mrs Teresa Kussick. The defender said something to her about some thermometers having been stolen. Mrs Kussick expressed surprise. ‘Yes, stolen,’ the defender said, ‘and you know all about them.’ He was asked to sit down to await the pursuer's return, but he refused to do so. He proceeded to search the house, and the pursuer's repositories, including three drawers. He then turned over a bed and carpet, and searched an oven, after which he proceeded to search Mrs Kussick's bedroom. This searching of the pursuer's house was done illegally and without any warrant, and was unnecessary and uncalled for, as the defender had received full information in regard to the thermometers, and where they were. There was no reason to suspect that any stolen property was hidden in the said house and repositories. The defender then sent out Strachan to search for the pursuer, who, however, returned to her house before Strachan did. The defender then accused the pursuer of knowing that the thermometers had been come by dishonestly, and said ‘She would very shortly know that, for she would be locked up in the police office.’ The pursuer again explained to the defender how the property had been come by, how she had one in her possession, where the others were, and the reason why her husband had taken them away, and she offered to go to Powderhall for them, but the defender nevertheless told her that she must go with him to the police office and that he was going to take her there. The pursuer asked to be allowed to walk alone, and not under charge of the defender. Notwithstanding this, the defender assaulted the pursuer by pushing her violently from the kitchen in her house into the house passage, and again from the house passage into the staircase. He then forcibly and against her will compelled her to accompany him to the police office, and conducted her there along George IV. Bridge and High Street. This occurred between three and four o'clock on the afternoon of Saturday, the said 19th December. The defender and the said detective Strachan are well-known to the public as members of the Edinburgh Police Force. (Cond. 5) On the way down the stair from the pursuer's house the pursuer, the defender, and the said Robert Malcolm and John Malcolm were met by Strachan. The defender then falsely, calumniously, maliciously, and without probable cause, said to the said Strachan, of and concerning the pursuer, and in the presence and hearing of the said Strachan, of the pursuer and of her said two sons, i.e., John Malcolm and Robert Malcolm, or one or more of them, ‘This is the lady that has caused all the trouble, and this’ (John Malcolm) ‘is the boy that stole the articles. He is the thief and she is the resetter,’ or used words of the like import and effect of and concerning the pursuer. The defender, on the way to the police office, frequently repeated the said false and calumnious accusation, and said that the pursuer was a resetter, and would be put in the lock-up. This he said in a loud voice in the presence and hearing of the persons above mentioned, or one or more of them, and also of persons passing along the street. He spoke in the same fashion all the way along to

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the police office, and he kept continually telling the pursuer of what she would receive in the ‘lock-up.’ (Cond. 6) At the said police office the pursuer gave her name, address, and age, and again told the circumstances connected with the possession of the property. The defender then proceeded to take the boy John Malcolm apart from his mother and examined him. The boy told him the same story about the finding of the thermometers. The defender thereupon asked him ‘if his mother had not told him to make this story up.’ The defender then threatened the boy with a birching if he would not admit the false accusation of theft and reset made against him and his mother. (Cond. 7) The pursuer was thereafter told she might go, but before she was finally released the detective Strachan took her and her son John to Guthrie Street. There Strachan was shown by John Malcolm the place where the thermometers had been found by him. On looking about the spot there was found a piece of a broken one, and Strachan took possession thereof. The pursuer was then allowed to return home. The pursuer thereafter saw her husband, and got from him the rest of the thermometers which he had taken to Mr Hume's, and about which he had made due inquiry, and all the thermometers which the boy John had found were handed over to the police at the said police office between six and seven o'clock on the said Saturday evening. At the same time, on the pursuer's request, the said note herewith produced, which had been sent to Mr Stevenson, and which had since been in the defender's possession, was redelivered to the pursuer. (Cond. 8) The defender acted unreasonably, wrongfully, illegally, maliciously, and without probable cause towards the pursuer. Before going to the pursuer's house he was told the whole facts about the said thermometers and had possession of the said note. In these circumstances his proceeding to search the pursuer's house without a warrant was unreasonable, wrongful, illegal, malicious, and oppressive. The accusation which he made against the pursuer, to the effect that she was a resetter, was slanderous, malicious, and untrue, and was known to him to be so, and was made without probable cause. In assaulting the pursuer and compelling her to go to the police-office, the defender acted unreasonably, wrongfully, and oppressively, and also maliciously and without probable cause. Further, he had no warrant. The pursuer was a law-abiding citizen with a fixed residence, and the defender had no reason to believe that the pursuer was about to abscond. By the wrongful and unwarrantable actings of the defender she has suffered grievously in her feelings, and has been damaged in her reputation among her friends and neighbours. Her being marched by the defender to the police-office as condescended on, was witnessed by her neighbours and the public, and the matter has been the cause of talk in the vicinity of her abode. The defender has been called upon to make reparation, but he declines to do so, and thus the present action has been rendered necessary.”

The defender pleaded, inter alia—“(l) No relevant case.”

By interlocutor dated 5th March 1897 the Lord Ordinary approved of the following issues for the trial of the cause—“(1) Whether, on or about 19th December 1896, the defender maliciously and without probable cause apprehended the pursuer in her house at No. 10 Brown Square, Edinburgh, and thence took her to the Police Office of Edinburgh, to the loss, injury, and damage of the pursuer? Damages laid at £300. (2) Whether, on or about 19th December 1896, at or near No. 10 Brown Square, Edinburgh, in the presence and hearing of pursuer's sons, Robert Malcolm and John Malcolm, or one or more of them, the defender falsely and calumniously said, ‘This is the lady’ (meaning thereby the pursuer) ‘that has caused all the trouble, and this is the boy’ (meaning thereby the said John Malcolm) ‘that stole the articles. He is the thief, and she is the resetter,’ or words to a like import and effect, to the loss, injury, and damage of the pursuer? Damages laid at £100.”

To this interlocutor the Lord Ordinary appended the following note:—

“I am of opinion that the pursuer's averments are sufficient to entitle her to have the case sent to trial, and the main question appears to me to be whether she is bound to put malice and want of probable cause in issue.

The pursuer argued that the defender, by apprehending her and taking her to the police office without a warrant, acted illegally and altogether beyond his powers as a police constable, either at common law or under the Police Statutes, and could not therefore plead privilege. The proper issue, the pursuer contended, was one of wrongful apprehension, leaving it to the Judge who presided at the trial to deal with a case of privilege if it arose.

Now, I think that it is impossible to distinguish with precision the case's in which a police officer may apprehend without a warrant from those in which he may not do so. The question was very carefully considered in the case of Peggie v. Clark, 7 Macph. 89, which in many respects was not unlike the present, and the Lord President there said—‘I am of 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.’

The circumstances, as averred by the pursuer, under which the defender came to take her to the police office are shortly these:—Upon the night of 18th December the pursuer's son John found in the street a number of clinical thermometers. On the following day the pursuer's husband, who is a cabman, took all the thermometers except one away with him when he went to his work, with the intention of asking an instrument maker, who had a shop near his stance, about them. In the afternoon of the same day the pursuer, not having heard from her husband, sent another son,

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Robert, a lad of fifteen, to Mr Stevenson, instrument maker in Forrest Road, with the remaining thermometer, and a note in the following terms:—‘Please would you be kind enough to let me know if this article is of any value, as my boy found a parcel containing some of them; if they are worth advertising.’

Mr Stevenson had heard that there had been a theft of clinical thermometers, and accordingly he called a policeman, who took the boy, the note, and the thermometer to the police office. The defender and another detective named Strachan were on duty there, and having examined the boy they took him along with them to the pursuer's house. The pursuer was out at the time, and Strachan went to look for her. The pursuer, however, returned to her house before Strachan did, and after an interview with her, the defender took her back with him to the police office. The pursuer was examined at the police office, and Strachan then went with her and her son to the place where the thermometers were said to have been found, and a piece of a broken thermometer was there discovered. The pursuer was then allowed to go home.

Now, in going to the pursuer's house and making inquiries there, I think that the defender was plainly acting within the scope of his duty. There seems to have been, in fact, a theft of clinical thermometers, and the circumstances under which Robert Malcolm came to Mr Stevenson's shop with a thermometer of the kind which had been stolen were suspicious. The defender therefore began the proceedings complained of in a capacity in which he was privileged.

The pursuer, however, contended that it was so plainly illegal for the defender to take the pursuer to the police office without first obtaining a warrant from a magistrate, that he lost the protection of his privileged position. Even upon the pursuer's own statement, I think that it is impossible to say that the defender's act was so plainly illegal that he is not to be treated as being, prima facie, a police officer in the discharge of his duty. If it appears from the evidence that the defender was not justified in taking the pursuer to the police office without a warrant, that will be an element for the consideration of the jury upon the question of malice.

I am therefore of opinion that the issue upon the apprehension and taking to the police office must be laid upon malice and want of probable cause.

The pursuer also asks a separate issue for assault. Now, the alleged assault consisted simply in the defender's using some force to compel the pursuer to go to the police office. It is therefore only an incident in the alleged wrongful apprehension, and although it may be material upon the question of malice, it does not, in my opinion, entitle the person to a separate issue.

The pursuer further asks an issue of slander. That matter is in a different position from those with which I have been dealing.

The pursuer's averment is that after the defender apprehended her, and when he was taking her downstairs, he met Strachan and the pursuer's two sons, Robert and John, and that he said that the pursuer was the lady who had caused all the trouble, and that her son John was the thief, and she was the resetter. The defender, the pursuer avers, frequently repeated the accusation in a loud voice on the way to the police office, and in the hearing not only of Strachan and her sons but of passers-by.

Now, if that is true, as I must at this stage assume it to be, I do not think that the defender can plead privilege. No charge had been made against the pursuer by anyone, no duty lay upon the defender to announce his opinion of her criminality, and nothing was to be gained by his doing so. He would have been quite entitled to tell Strachan that he considered it to be necessary to take the pursuer to the police office, and he might have explained to Strachan his reasons for coming to that conclusion, but according to the pursuer's averments he went very far beyond anything of that sort.

I therefore think that the pursuer is entitled to an issue of slander in ordinary terms. Of course it will be open to the Judge before whom the case is tried to direct the jury that in this case also malice must be established, if the result of the evidence is to disclose a case of privilege.”

The defender reclaimed, and argued—There was no ground for granting any issue. There was no relevant or issueable case stated on record. In the first place the defender was entitled to arrest without a warrant. And if that was so, then he stood in a privileged position, and it was not enough for the pursuer to use merely the phrase that he acted maliciously and without probable cause; there must be circumstances disclosed on record showing that this was the case. A police officer was prima facie authorised by his holding his office to make an arrest. The whole matter in the present case arose out of Mr Stevenson giving the boy in charge, and the subsequent report to the police. The present defender was sent to the house, and in going there and taking steps to investigate the matter he only acted in the discharge of his duty. This was not a case like Peggie v. Clark, infra, where the initiative was taken by the defender. The other cases founded on by the pursuer were also not in point. In Leask v. Burt, infra, the arrest was made months after the alleged offence. In Pringle v. Bremner and Stirling, infra, the defenders had not the protection of the policeman's mandate or the detectives' appointment, and acting under a warrant to search for wood they took possession of letters. As to the case of Young v. Magistrates of Glasgow, infra, the jurisdiction exercised in that case was a delicate one, and it could form no precedent in a matter like the present. In the present record no facts had been

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stated inferring malice. There was no allegations of ill-will. As to the alleged slander, an issue was only taken as regards the slander in the house. This was part of the res gestae of the arrest; the alleged statement was said in making the arrest, and the words were addressed to a fellow constable at the time of the apprehension. It was therefore privileged— Hassan v. Paterson, June 26, 1886, 12 R. 1164. It would have been a different matter if there had been a relevant averment that the words had been used before specified members of the public on the way to the office. But they were not so; they were only uttered in presence of the accused and the defender's fellow-detective. In any view, the words “maliciously and without probable cause” must be inserted in the second issue.

Argued for pursuer—The case should go to trial. This was not a proper case of apprehension. The detective had abused his powers. If an arrest was made without a warrant that was done in order to take the accused before a magistrate. Here the arrest was made in order that the detective might conduct his inquiry in a more comfortable manner for himself. In order to do this he had taken a respectable woman through the public streets to the police office. He had thus acted illegally. The purpose of apprehension was to bring the person arrested before a court, not in order to precognosce— Peggie v. Clark, November 10, 1868, 7 Macph. 89; Leask v. Burt, October 28, 1893, 21 R. 32. The pursuer was the wife of a householder, and it was ridiculous to say that the detective could have any apprehension that she would abscond. The words “wrongly and illegally” should be inserted in the first issue in place of the words “maliciously and without probable cause”— Pringle v. Bremner and Stirling, May 6, 1867, 5 Macph (H.L.) 55, opinion of Lord Chancellor Chelmsford, p. 60. The facts and circumstances stated on record were sufficient to infer malice— Young v. Magistrates of Glasgow, May 16, 1891, 18 R. 825. As to the issue of slander, the detective was not entitled after the apprehension of the pursuer to call her a resetter and her son a thief. It was a gratuitous and uncalled for insult— Douglas v. Main, June 13, 1893, 20 R. 793.

At advising—